In Kelly v R, 2026 TCC 53, Justice Graham has given multiple taxpayers until April 24, 2026, to provide written submissions on why their appeals should not be struck without a hearing “for abusing this Court’s process”. The taxpayers were participants in the Global Learning and Gifting Initiative (GLGI) donation scheme. Numerous taxpayers who were denied donation tax credits by the CRA have already tried their luck in the courts but without success. Justice Graham writes (at para 7) “And yet, a small number of appellants persists. They present no new grounds for appeal, no new facts, no new arguments, nothing. Just the stale recitation of a string of arguments that have failed time and again.”
What is an abuse of process through “relitigation”. Justice Graham cited Csak v R, 2025 FCA 60:
The doctrine of abuse of process is rooted in a court’s inherent jurisdiction to prevent misuse of its process that would be unfair to a party or otherwise bring the administration of justice into disrepute. It is a discretionary remedy, characterized by its flexibility and unencumbered by the specific requirements of concepts such as issue estoppel: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at para. 35; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at paras. 35 and 37 (C.U.P.E.).
Abuse of process by relitigation may exist where the parties are not the same (which is required to establish issue estoppel) but the litigation is found to be, in essence, an attempt to revisit the “same issue” as in a prior proceeding: C.U.P.E. at para. 37. Allowing the litigation to proceed may be considered to violate important principles such as judicial economy, consistency, finality and the integrity of the administration of justice: C.U.P.E. at para. 37.
After applying these factors—consistency, judicial economy, finality and the integrity of the administraiton of justice—to the GLGI appeals still before the court, Justice Graham concluded he could strike the appeals, subject only to giving the appellants a chance to argue otherwise, in writing.
Justice Graham, at paras 26ff, found that the GLGI cases did not engage a subjective element, which distinguished them from the Fiscal Arbitrators cases where gross negligence penalties were (or are) in issue. In the latter cases, the “knowledge, state of mind or actions” of the taxpayers were (or are) relevant to whether penalties were properly applied, which required each taxpayer to be given her or his day in court. According to Justice Graham, no such subjective elements are relevant to the GLGI program. While donative intent is subjective, the Tax Court, in a number of cases, has found that the structure of the program, which “guaranteed” that gifts would be profitable, precluded the existence of donative intent. No protestation of a taxpayer to the contrary could get around the profit element embedded in the program.
