Boehm v. Canada
T-497-89
Hargrave P.
10/1/96
10 pp.
Motion to strike statement of claim seeking declaration plaintiff properly computed taxes for 1971 to 1974-Final assessment for 1974 showing no taxes payable-No right of appeal from nil assessment-Statement of claim concerning 1974 taxation year struck out-Defendant submitting statement of claim concerning 1971, 1972, 1973 taxation years ought to be struck out by reason of issue estoppel- Conviction entered in provincial court against plaintiff for tax evasion-Conviction upheld by County Court, B.C. Court of Appeal; Supreme Court of Canada dismissing motion for leave to appeal-Issue estoppel arising where, although initial cause of action may have been different, some points or issues of fact already decided-Although usually arising where both proceedings either civil or criminal, hybrid version of issue estoppel can also arise from criminal conviction, preventing plaintiff from litigating same issues in civil context-Application of test in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L.)-Decision final; parties same-That Queen acting in capacity as Attorney General for Canada in criminal proceedings and in capacity as Minister of National Revenue in civil proceedings not material-Common identity of subject matter central or fundamental in earlier proceedings-Issue estoppel arising herein resulting from decided questions fundamental to final decision in criminal proceedings, and which are identical to questions raised herein, that of validity of Revenue Canada assessments for 1971, 1972, 1973-Commencement of present proceedings abuse of process-Statement of claim struck out.