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Motion to Strike

Motion by defendants pursuant to Federal Courts Rules, SOR/98-106, r. 221(1) for order striking amended statement of claim on ground disclosing no reasonable cause of action—Plaintiffs seeking to recover amounts of GST remitted to government as GST on exempt disbursements, passed on to clients—Statement of claim alleging tort of misfeasance in public office—Such tort founded on vicarious liability—Necessary to identify specific officer responsible for alleged misfeasance—Plaintiffs failing to do so—Also failing to plead material facts supporting conclusion alleged illegal acts deliberate, known to be illegal by public officer, intended to harm plaintiffs—No cause of action in “wrongful receipt” or for “monies wrongfully taken”—Supreme Court of Canada in Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3 not creating common law remedy to recover taxes where Tax Court of Canada Act, R.S.C., 1985, c. T-2, s. 12, Excise Tax Act, R.S.C., 1985, c. E-15, s. 312 supplanting such remedy—Excise Tax Act providing Tax Court of Canada with jurisdiction over recovery of any money collected as GST—Federal Court not acquiring jurisdiction in matters of GST simply because plaintiffs failed to object to payment of GST on certain disbursements, appeal to Tax Court of Canada—Federal Court thus not having jurisdiction to hear proposed class action to recover money collected as GST—In reality, action challenge to tax assessment—As Excise Tax Act providing administrative remedies for disputes regarding GST, issues of whether any GST paid by plaintiffs not legally exigible outside Court’s jurisdiction—Motion granted.

Merchant Law Group v. Canada (Revenue Agency) (T-1761-07, 2009 FC 755, Kelen J., judgment dated August 31, 2009, 29 pp.)