IN THE ONTARIO SUPERIOR COURT OF JUSTICE

In the Judicial District of Ottawa

BETWEEN:

Thomas: Kennedy,

Applicant,

- and -

Canada Customs and Revenue Agency,

- and -

The Ottawa Carleton District School Board,

Respondents.

______________________________________________________________________________

Reply Factum of the Applicant

_____________________________________________________________________________

Agent - Dave Lindsay

P.O. Box 72105 6142-90th Ave.

Edmonton, Alberta

T6B 3A7

fax 780 922-5073

cell 780 953-1434

The Attorney General Ontario                                                                           The Ottawa Carleton District School Board

Constitutional Law Division                                                                               133 Greenbank St. 3^rd Floor

7^th Floor 720 Bay St.                                                                                       Nepean, Ontario K2H 6L3

Toronto, Ontario M5G 2K1                                                                             Attn. Roger Mills 237-3448 ext. 311

fax (416) 326-4015                                                                                          Suite 500 Lisgar St. Ottawa, Ont. K2P 0C2

The Attorney General of Canada Canada Customs and Revenue Agency

East Memorial Building 333 Laurier St.

Department of Justice Ottawa, Ontario

284 Wellington

Ottawa, Ont. K1A 0H8

IN THE ONTARIO SUPERIOR COURT OF JUSTICE

In the Judicial District of Ottawa

BETWEEN:

Thomas: Kennedy,

Applicant,

- and -

Canada Customs and Revenue Agency,

- and -

The Ottawa Carleton District School Board,

Respondents.

Reply Factum of the Applicant

Table of Contents

Reply...........................................................................................................................................1

Reply Brief..................................................................................................................................3

IN THE ONTARIO SUPERIOR COURT OF JUSTICE

In the Judicial District of Ottawa

BETWEEN:

Thomas: Kennedy,

Applicant,

- and -

Canada Customs and Revenue Agency,

- and -

The Ottawa Carleton District School Board,

Respondents.

Reply of the Applicant

• The Applicant denies the allegations contained in para. 1-6 of the Factum of the Respondent C.C.R.A.

• The Applicant denies the allegations contained in para. 7-8 of the Factum of the Respondent, C.C.R.A.
  
• The Applicant denies the allegations contained in para. 9 of the Factum of the Respondent C.C.R.A.

• The Applicant denies the allegations contained in para. 10 of the Factum of the Respondent C.C.R.A.

• The Applicant denies the allegations contained in para. 11 of the Factum of the Respondent C.C.R.A.

• The Applicant denies the allegations contained in para. 12 of the Factum of the Respondent C.C.R.A. in relation to delegation, and admits the allegation in this same paragraph in relation to the Ontario Income Tax Act only under s. 92(2) of the British North America Act, 1867.

• The Applicant denies the allegations contained in para. 13-15 of the Factum of the Respondent C.C.R.A.

• The Applicant takes no position on the allegation contained in para. 16 of the Factum of the Respondent, C.C.R.A. except to state that it is not relevant to this application.
  
  

  ---

  IN THE ONTARIO SUPERIOR COURT OF JUSTICE

In the Judicial District of Ottawa

BETWEEN:

Thomas: Kennedy,

Applicant,

- and -

Canada Customs and Revenue Agency,

- and -

The Ottawa Carleton District School Board,

Respondents.

Reply Brief of the Applicant

• The Applicant denies the allegations in para. 1- 4 of the Factum of the Respondent, Canada Customs and Revenue Agency and states that it was not Thomas: Kennedy, in his capacity as a natural person of commoner status who was assessed, but THOMAS KENNEDY, which is a fictitious legal entity called a "taxpayer" or "person," as defined below. Also known as a legal fiction.
  
  TAB 1 - Applicant's Reply Factum

•   Legal Fiction: "An assumption that something is true even though it may be untrue, made esp. in judicial        reasoning   to alter how a legal rule operates."
  
  
  Black's Dictionary of Law, 7^th Ed.

Fictitious person: "An entity, such as a corporation, created by law and given certain legal rights and duties of a human being; a being, real or imaginary, who for the purpose of legal reasoning is treated more or less as a human being. (aka artificial person)"

           Black's Dictionary of Law, 7^th Ed.

Natural Person: "A human being, as distinguished from an artificial person created by law."

Black's Dictionary of Law, 7^th Ed.

TAB 2 - Applicant's Reply Factum

• The Applicant states that he was under no obligation to pay any of his personal property, ie. money, to the Respondent, C.C.R.A. The Applicant refers to and relies upon the common law and Magna Charta 1215 which nullifies any mandatory taxes upon the Applicant, who is a living human, and a natural person of commoner status.
  
  

TAB 13 - Book of Authorities of the Applicant

• The Applicant further states once again that he is not a "person" or "taxpayer"as defined in the Income Tax Act of Canada. This definition originates from and is virtually identical to the definition of "person" and "taxpayer" in the Income War Tax Act 1917, the current Act being only an addendum to the Income War Tax Act 1917, for the Income War Tax Act of 1917 was never repealed. The Applicant states that this is virtually an identical definition to that contained in the Business Profits War Tax Act of 1916, which only applied as well to corporations and fictional entities, called a "person" or "taxpayer."
  
  

TAB 3 - Reply Factum of the Applicant - Income War Tax Act 1917

TAB 4 - Reply Factum of the Applicant - Business Profits War Tax Act 1916

• The Applicant further states that the Income War Tax Act, from which the current Income Tax Act is derived from, cannot apply to a human, or natural person of commoner status, but only to a corporate entity. Section 18 of the said Act would otherwise be a violation of a man's right to his court of common law jurisdiction. A compulsory confiscation of property from humans living in Canada through a general tax would violate the absolute individual rights of life, liberty and property, as guaranteed in common law.

The Income War Tax Act 1917, and subsequent amendments to it, known as the Income Tax Act of Canada of various dates, is a private statute. It is not a public or general statute. It is only applicable to legal entities called "taxpayers."

TAB 3 - Reply Factum of the Applicant

• The Applicant further states, in response to para. 4 of the Respondent C.C.R.A.'s Factum, that he is not "resident" in Canada. As a living human, a natural person of commoner status, the Applicant does domicile in a house, in a country called Canada. Only corporations "reside" somewhere, living humans must live or domicile somewhere.
  
  
• Res: an object, interest, or status, as opposed to a person

TAB 5 - Black's Dictionary of Law, 7^th Ed.

Res: (Latin, things)

TAB 6 - Bouviers Law Dictionary 8^th Ed. 1914

Ident: location of in relation to something else

• The definition of "person" only applies to corporate, legal or fictitious entities. It does not apply to a living human, a natural person of commoner status which the Applicant is, except where the living human, natural person of commoner status, be in good contract to be such a legal entity. The Applicant is not in any such good contract. Further, the Respondent C.C.R.A. is attempting to establish a link or joinder to a fraudulent contract by tacit consent, using a letter or assessment, presuming that the Applicant would not answer or void it in a timely manner and thus create evidence of a contract and joinder. To the contrary, however, the Applicant has sent in his Constructive Notice canceling any and all assumed or other contracts with the Respondent and has voided any correspondence or assessment the Respondent attempted to impose upon him.
  
  
• The Respondent, after acknowledging that they received the Applicant's Constructive Notice (para. 3 of the Respondent's Factum), does not deny that there was an original contract of some form or type which was canceled by virtue of the Applicant's Constructive Notice. A fortiori there was a contract of some form or type prior to the filing of the Applicant's Constructive Notice, albeit a fraudulent contract. This, and any and all other contracts, between the Applicant and the Respondent C.C.R.A. and/or the Parliament of Canada are canceled by the Applicant, and are now null and void and of no force and effect. The Applicant is not subject to the administrative procedures imposing the Income Tax Act of Canada by the Respondent under any circumstances and for any purpose.
• 
  
  

Applicable maxims

Maxime ita dicta quia maxima estejus dignitas et certissima authoritas, atquie quod maxime omnibus probetur:

A maxim is so called because its dignity is chiefest, and its authority the most certain, and because it is universally approved by all.

Qui non improbat, approbat: He does not disapprove, approves.

Qui tact, consentire, videtur: He who is silent is deemed to consent.

See also Ontario Rules of Civil Practice, s.25.07 (2)

TAB 7 - Applicant's Reply Factum

• The Applicant further tenders that if there were any and all contracts, assumed or otherwise, between himself and the Respondent, C.C.R.A. they are now null and void and of no force and effect, for fraud. The Applicant states that any contract which is not voluntary, equitable, disclosed or written and signed are voidable for fraud by the injured party. The Applicant has done exactly this. The Applicant states that full disclosure was never made to him by the Respondent, C.C.R.A. at any time, of any and all of the facts in relation to any assumed or other contracts. The contract(s) was (were) unlawful from the very beginning and constitutes fraud. The canceling of all contracts by the Applicant was never denied or contested by the Respondent C.C.R.A.
  

Applicable maxims

Nulla pactione effci potest ut dolus praestetur (see 1297 Magna Charta):

No contract can provide that a fraud shall be committed.

TAB 13 - Applicant's Book of Authorities

See also para. 9 Maxims

• The Applicant states that at no time does the Respondent C.C.R.A. deny the fact that the Applicant is a natural person of commoner status and a living human. At no time does the Respondent deny the fact that Applicant has canceled any and all assumed or other contracts that may have previously existed prior to the filing of the Applicant's Constructive Notice. The Applicant further states that the Respondent, who received and knew of the filing of this notice on or shortly after October 5, 1998 also did not respond to deny the allegations contained therein. All of the above being true and correct and constituting a recognition by the Respondent that the Applicant's position in this matter is correct.
• 
  
  Applicable maxim-

Qui non negat, fatetur: He who fails to deny, admits. In pleadings, a party is required to specifically deny the allegations in the opponent's pleading which he does not admit.

• The Applicant denies the allegations in para. 5 of the Respondent's Factum and states that the issue is not one of authorization, it is one of jurisdiction. In order to have authorization, or authority, there first must be jurisdiction and the Applicant states that the Respondent, C.C.R.A. possesses no jurisdiction over him for reasons already detailed.
  
• The Applicant denies the allegations in para. 6 of the Respondent, C.C.R.A.'s Factum. The Applicant states that he is not a "taxpayer" or a "person", nor is he a "resident" as defined in the Income Tax Act. As such he is not subject to the provisions of this Act.

• The Applicant states that under the Income Tax Act, the Respondent, C.C.R.A. may be required to perform the obligations contained in para. 7 and 8 of the Respondent's Factum, however this only applies to a "taxpayer" or "person" as defined in the Act. This does not apply to the Applicant. These sections are not relevant to this matter.
  
• The Applicant states, in response to para. 9, that the common law, aka the rule of law, applies to all. It is a fundamental principle of common law that no one shall be deprived of their property (including money) except by due process of law before a fair and impartial tribunal. The common law is also explicit that all taxes are voluntary. Thus the only way the Respondent C.C.R.A. could take the Applicant's money (property) is by way of a contract. The Applicant tenders that such a contract does not now exist, as tacitly admitted by the Respondent C.C.R.A.

The Applicant further states that the Income Tax Act is private legislation and is only applicable to those defined within the Act itself, which, once again, does not include the Applicant.

TAB 13 and 14 - Applicant's Book of Authorities

The Applicant tenders that his Application is true and correct and the relief sought must be granted by law, and that there is no jurisdiction to order otherwise in this matter.

In the Alternative

• The Applicant denies the allegations contained in para. 10 of the Respondent C.C.R.A.'s Factum.
  
• The Applicant denies the allegations contained in para. 11 of the Respondent C.C.R.A's Factum, however the Applicant states that the actual divisions of legislative taxation powers is not directly in issue. The issue is, can the Federal Government pass legislation in relation to 92(2) of the British North America Act 1867, the exclusive powers of the provinces to Direct Taxation within the province for provincial purposes? The answer has already been decided as no, and the Government of Canada and the Government of Ontario cannot come in through the back door and do indirectly what they cannot do directly.
  

TAB 8 - Applicant's Book of Authorities

• The Applicant agrees with the Respondent's assertion in para. 12 that the Ontario Income Tax Act is intra vires the Ontario Provincial Government by virtue of s. 92(2) of the BNA Act, in so far as it meets the restrictions imposed by s. 92(2) and other sections of the British North America Act.
  
• The Applicant denies the allegations contained in para. 12 of the Respondent C.C.R.A.'s Factum in relation to delegation and states that the impugned provisions do constitute a delegation of legislative powers.
  
• The Applicant denies the allegations contained in para. 13 of the Respondent C.C.R.A.'s Factum and states that whether or not money is eventually returned to the Ontario Government is not relevant. The money is not initially permitted to leave the Provincial Consolidated Revenue Fund, and what happens after that is not material. It is important to recognize that the money so collected in fact never even goes into the Provincial Consolidated Revenue Fund as required by law.

TAB 8 - Reply Factum of the Applicant

• The Applicant denies the allegations contained in para. 14 of the Respondent C.C.R.A.'s Factum and states that the Government of Canada does not structure its accounts so as enable a differentiation of sources to be established.
  
• AB 20 - Respondent's Application Record- Winterhaven Stables Ltd. v Canada (Attorney General) 1988 @ p.17

• The Applicant denies the allegations contained in para. 15 of the Respondent C.C.R.A.'s Factum and states that the Applicant has indeed been deprived of his property. Such deprivation is immediate upon withholding from the Applicant's remuneration as he now no longer has control of his property so as to enable him to enjoy same.
  
• The Applicant states that the allegations contained in para. 16 of the Respondent C.C.R.A.'s Factum may very well be true, however they are not relevant in this matter as the Respondent C.C.R.A. had no jurisdiction to assess the Applicant to begin with.
• 
  

Form/Formule 4C

Rules of Civil Procedure Backsheet/Feuille arrierfe

Regles de procedure civile

(Short title of proceedings) Courts of Justice Act, R.R.O. 1990, Reg. 194 Court File. No. 00-CV-14232

(Intitule abrege de l'instance) Loi sur les tribunaux judiciaires, R.R.O. 1990, Regl. 194 No du dossier de la cour

______________________________________________________________________________________________________________________

Thomas: Kennedy, ___________________ Ontario Court (General Division) Cour de l'Ontario (Division generale)

Applicant, Proceeding commenced at Ottawa District Law Courts

Instance introduit a

- and -

Notice of Application

Canada Customs and Revenue Agency,

- and -

Reply Factum of the Applicant

The Ottawa Carleton District School Board,

Respondents.

Agent- Dave Lindsay

P.O. Box 72105 61-42 90^th Ave.

Edmonton, Alberta T6B 3A7

fax 780 922-5073

cell 780 953-1434

Motion Confirmation Form

Superior Court of Justice

BETWEEN: Court File No. 00-CV-14232

Thomas: Kennedy,

Applicant,

- and -

Canada Customs and Revenue Agency,

- and -

The Ottawa Carleton District School Board,

Respondents.