Executive Summary: Key Legal and Evidentiary Issues

• Mr. King sought recusal of the case management judge based solely on the judge's prior employment with the Department of Justice, providing no concrete evidence of actual bias.

• The motion for advanced costs failed to satisfy the three-part test requiring genuine inability to afford litigation, prima facie meritorious claim, and issues of public importance not resolved in prior cases.

• Limited evidentiary support was presented regarding financial inability, with no corroborating documents for alleged third-party funding attempts.

• Federal Court of Appeal precedent in Horseman establishes that procedural provisions, including limitation periods, apply even when Indigenous constitutional and treaty rights are asserted.

• Judge shopping was identified as an improper attempt to circumvent the Chief Justice's exclusive authority under s. 14(2) of the Tax Court of Canada Act to appoint case management judges.

• The Applicant's underlying claim—seeking a refund of all taxes he has ever paid from 2001-2021 based on constitutional and treaty arguments—was found not to be prima facie meritorious given existing binding precedent.

Background of the dispute

Jeremy King, a crane operator who represented himself, filed a Notice of Application with the Tax Court of Canada on December 7, 2021, seeking an extension of time to appeal his 2001-2021 tax assessments. If successful in extending his time limits, the Applicant was seeking a refund of all taxes he has ever paid to the Government of Canada. Mr. King identified various legal issues he intended to rely upon, including a Constitutional question, expert evidence to explain treaties and government duties, historical materials, treaty analyses, and constitutional experts. In his written materials, Mr. King stated that his case would affect not only him but also Mi'kmaq individuals awaiting recognition, families excluded from Qalipu enrolment, the band he currently belongs to, and other Indigenous people across Canada facing Crown gatekeeping.

The recusal motion

On September 10, 2025, the Chief Justice of the Tax Court made an Order appointing Justice Ronald MacPhee as case management judge. Almost immediately, Mr. King filed his motion requesting that the judge recuse himself and that a different judge who has never worked for the Department of Justice be appointed. The Court noted that pursuant to s. 14(2) of the Tax Court of Canada Act, the appointment of a case management judge is solely a determination to be made by the Chief Justice of the Tax Court. In his materials, Mr. King named specific judges he believed were more appropriate for this role, which the Court characterized as judge shopping. The Court stated it would not allow this to occur, both because it appears to be unfair to one of the parties before the Court and it tarnishes the reputation of the justice system.

The Supreme Court of Canada has established the test for determining whether a reasonable apprehension of bias exists: would an informed person, viewing the matter realistically and practically, and having thought the matter through, think it is more likely than not that the decision-maker, whether unconsciously or consciously, would not decide the matter fairly? Justice MacPhee noted he had long since passed a "cooling off" period concerning his previous employment, having been appointed 7.5 years ago, and furthermore his former Justice office never dealt with Mr. King. The Court emphasized that judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions, or sensibilities—rather, they require that the judge's identity and experiences not close his or her mind to the evidence and issues. There is a crucial difference between an open mind and an empty one. Since Mr. King put forth no concrete evidence to support his allegation of judicial bias and the request was based purely on conjecture, the motion was rejected.

The advanced costs motion

Mr. King also sought an order that the Crown finance his litigation, with amounts to be determined at a later date. At the outset of the motion, it was the Court's understanding that Mr. King was seeking $2 million in advanced costs. Mr. King claimed that private counsel quoted between $250,000 and $1,000,000 for services. His argument was that without advanced costs, he is unable to obtain counsel, access expert testimony, or meaningfully argue s. 35 of the Constitution and various related treaty issues. Mr. King testified that he is presently living off borrowed money and credit cards, that he was recently denied unemployment insurance payments, and had bank accounts frozen by CRA. He described his work opportunities as "feast or famine."

The Court outlined the three preconditions from British Columbia (Minister of Forests) v. Okanagan Indian Band that must be met for an advanced costs order: the party seeking interim costs genuinely cannot afford to pay for the litigation and no other realistic option exists for bringing the issues to trial; the claim to be adjudicated is prima facie meritorious; and the issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases. However, even where all three preconditions are met, a litigant is not automatically entitled to receive advanced costs. The court still holds discretion and should only grant advanced costs as a last resort in "rare and exceptional" cases where the need for them is clearly established.

Very limited evidence was put forth by the Applicant to support his request. Mr. King provided a brief description concerning his own income amounts but did not provide any evidence, other than answers in cross-examination, as to whether other interested parties were approached to consider paying a portion of the costs of litigation. In cross-examination, he claimed he had made efforts to seek the support of interested third parties, but this evidence was not convincing. No corroborating material, such as emails or other written correspondence, was provided in support. Mr. King also called almost no evidence as to his proposed costs, other than at one point providing a $2 million estimate. The Court found Mr. King had not met his burden concerning the first component of the test.

For reasons affecting both the second and third components of the test, the Court did not find that this matter was "prima facie meritorious." A very similar Application had previously been considered by the Federal Court of Appeal in Horseman, where it was found that procedural provisions such as limitation periods found in the Excise Tax Act apply and must be obeyed even where the Constitutional rights and treaty rights of Indigenous peoples are asserted. Such a finding, applied to almost identical procedural provisions in the Income Tax Act, would be fatal to Mr. King's Application to extend time. Since similar issues had been considered by the FCA in Horseman wherein the Applicant's arguments were rejected, the third component of the test was also not met.

Ruling and outcome

Justice MacPhee denied both of Mr. King's motions in the Order signed January 14, 2026. The recusal motion was rejected because the Applicant put forth no concrete evidence to support his allegation of judicial bias beyond the judge's prior employment with the Department of Justice, and the request was based purely on conjecture. The advanced costs motion was rejected because Mr. King did not meet the established three-part test, failing to demonstrate genuine financial inability with supporting documentation and failing to establish that his claim was prima facie meritorious given binding Federal Court of Appeal precedent. Both parties shall be responsible for their own costs on this motion, meaning no monetary award was granted to either side.