Executive summary: Key legal and evidentiary issues

• Eleven self-represented appellants who participated in the Global Learning and Gifting Initiative (GLGI) donation program face potential striking of their appeals for abuse of process under section 53(1)(c) of the Tax Court of Canada Rules (General Procedure).

• Approximately 1,500 GLGI appeals have been managed by the Court over about seven years, with none being allowed — all have been dismissed, quashed, or discontinued.

• The seminal lead case, Mariano v. The Queen (2015 TCC 43), established that no GLGI participant could have had donative intent due to the program's inherent structure, a principle upheld repeatedly by both the Tax Court and the Federal Court of Appeal.

• Judicial economy, consistency, and finality all weigh in favour of striking the appeals, as relitigation of identical facts and issues wastes judicial resources and risks undermining the credibility of the judicial process.

• No new facts, arguments, or evidence have been presented by the appellants to distinguish their cases from the extensive prior GLGI jurisprudence, including the Supreme Court of Canada's denial of leave to appeal on February 19, 2026.

• Each appellant has been given until April 24, 2026 to file written submissions (not exceeding 10 pages) explaining why their appeal should not be struck, failing which the appeal will be struck without further hearing.

Background of the GLGI donation program and the appeals

The case of Kelly v. The King, 2026 TCC 53, is an Order and Reasons for Order issued by Justice David E. Graham of the Tax Court of Canada on March 19, 2026. The decision addresses eleven appellants — Ordia Kelly, Peter Wood, Walter Furlan, Ernest Fraser, Tina Cassidy, Francis Schmeichel, Brenda Rees, John Hassall, Gordon Denning, Joe McLean, and Robert P. Warren — all of whom participated in the Global Learning and Gifting Initiative ("GLGI"), a charitable donation program. Each appellant filed individual tax appeals against His Majesty the King (the Crown). The appeals are part of the GLGI group of appeals.

How the GLGI program worked

The GLGI program was a tax scheme marketed to members of the public. As described by Justice Bocock in Malone v. The King (2025 TCC 43), each donor expected to receive, in return for their cash donation, software licences having an expected value of three to eight times greater than the cash donation, resulting in a tax receipt that entitles the taxpayer to claim an inflated tax credit. The seminal lead case, Mariano v. The Queen (2015 TCC 43), was a 25-day trial in which Justice Pizzitelli was presented with extensive evidence about the GLGI program. He heard testimony not just from the appellants but also from program insiders and expert witnesses. In dismissing the appeals, he relied on multiple different flaws in the program and concluded that no GLGI participant could have had donative intent, given the manner in which the scheme was marketed and in the makeup and integration of the transactional documents that deliver it.

A long history of unsuccessful GLGI appeals

Justice Graham, who has been case managing the GLGI group of appeals for about seven years, noted that the Court has dealt with approximately 1,500 GLGI appeals during that time. None of those appeals has been allowed. Each of them has been dismissed, quashed, or discontinued. The principles set out in Mariano have been applied and upheld again and again both by the Tax Court and the Federal Court of Appeal across key reported cases including Tudora v. The Queen (2020 TCC 11), Aslam v. The King (2024 FCA 193), Bacchus v. The King (2024 TCC 62), and Malone v. The King (2025 TCC 43). Furthermore, approximately 700 of the 1,500 GLGI appellants retained counsel to pursue the one legal issue that was not dealt with in Mariano — whether they should be allowed to claim a donation credit for the cash that they put into the scheme. They lost in this Court in Walby v. The Queen (2023 TCC 164) and at the Federal Court of Appeal (2025 FCA 94). On February 19, 2026, the Supreme Court of Canada denied leave to appeal. Despite this, a small number of appellants persisted, presenting no new grounds for appeal, no new facts, no new arguments.

The problem with group appeals

Group appeals arise when a promoter develops and markets a tax scheme to members of the public and can involve hundreds or thousands of different taxpayers. The problem, as Justice Graham explained, is that the Court ends up having to repeatedly hear trials with the same facts and same issues and the same outcome — the only thing that changes is the appellant. There is no viable method to force appellants into a single action. Section 174 of the Income Tax Act provides for the possibility of asking the Court to determine a common question, but the provision is unworkable with anything other than a small number of taxpayers. Section 146.1 of the Tax Court of Canada Rules (General Procedure) provides a mechanism for establishing a lead case, but there is no mechanism to force appellants to be bound by the outcome. Additionally, the collection restrictions in section 225.1 of the Income Tax Act provide a perverse incentive for financially-strapped appellants to string their appeals out as long as possible in order to defer the collection of tax, albeit at the cost of incurring significant interest charges.

The Court's concern about abuse of process

Justice Graham raised the issue of abuse of process on his own initiative under section 53(1)(c) of the Rules, which allows the Court to strike a pleading without leave to amend if the Court finds that the pleading is an abuse of the process of the Court. Drawing on the Federal Court of Appeal's description in Csak v. The King (2025 FCA 60) and the Supreme Court of Canada's guidance in Toronto (City) v. C.U.P.E., Local 79 (2003 SCC 63), Justice Graham analyzed the doctrine of abuse of process by relitigation across several factors. On consistency, he found that if, in the face of all the prior GLGI decisions, a judge were now to somehow find that one of the appellants had donative intent, this inconsistent result could seriously undermine the credibility of the judicial process. Justice Graham also emphasized that the risk to the judicial process arises as soon as all potential issues of law and fact have been thoroughly canvassed by the Court, and that each new case heard increases the risk of an inconsistent decision. On judicial economy, he observed that managing and hearing GLGI appeals has put a huge burden on judicial and registry resources, with appellants routinely failing to appear for their trials or withdrawing their appeals at the last minute. At the peak of GLGI litigation, the registry was scheduling entire sitting weeks full of nothing but GLGI appeals, and of the 20–25 appeals scheduled before a given judge, it was common that only one or two of them actually went ahead. Nine of the current appellants' appeals had already been scheduled for trial, collectively representing eight trial days. On finality, the Respondent had been a party to each of the 1,500 GLGI appeals, and the Respondent's and by extension the public's interest in finding finality in the process favoured a finding of abuse of process.

No subjective elements to distinguish these appeals

Justice Graham addressed whether subjective factors could differentiate any individual GLGI appellant from the prior cases. He noted that while there is a subjective component to donative intent, given Justice Pizzitelli's conclusive statement in Mariano and Justice Bocock's observations in Malone, that subjective component will not make any difference to the outcome of a GLGI appeal. The GLGI program was structured in such a way that, regardless of an appellant's charitable intentions, they were still going to profit. As the Federal Court of Appeal stated in Markou v. The Queen (2019 FCA 299), "where a person anticipates receiving tax benefits that exceed the amount or value of an alleged gift, the donative intent is necessarily lacking." Other than donative intent, there has been no subjective element to any of the GLGI appeals. The amount donated has been irrelevant. The cash-to-courseware multiplier has been irrelevant. The specific charities involved have been irrelevant. The year in which the donation was made has been irrelevant. Most importantly, since the Minister neither assessed beyond the normal reassessment period nor assessed gross negligence penalties, the appellants' individual actions, beliefs, and knowledge have been irrelevant.

Fairness, fraud, and the self-represented appellants

Justice Graham considered whether any exceptions applied — fraud or dishonesty tainting the first proceeding, fresh new evidence previously unavailable that conclusively impeaches the original results, or fairness dictating that the original result should not be binding — and found no indication that any of those factors were present. He noted that his view on fairness would likely be different if Mariano and Walby had been unbalanced wins for the Respondent against a single self-represented taxpayer rather than fully-litigated, seemingly well-funded appeals with the benefit of counsel. As to concerns that the appellants' self-represented status might make the procedural step unfair, Justice Graham stated that it appears to be precisely because the appellants are self-represented that they continue their appeals in the face of clear case law, and that while their inexperience or lack of understanding of the law may explain their actions, it cannot be a reason to allow those actions to continue at the expense of consistency, judicial economy, and finality. He also addressed the Federal Court of Appeal's decision in Morel v. The Queen (2008 FCA 53), which dealt with whether abuse of process by relitigation could ever be used against someone who was not a party to the previous litigation, and concluded that the GLGI appeals represent just such an unforeseen situation where the facts and issues are identical, they have been extensively litigated, and there is nothing left to litigate.

Specific appellants with additional issues

The Court noted that some of the appellants had also appealed issues unrelated to GLGI. Francis Schmeichel had appealed two different tax schemes: GLGI and the Relief Lending Group. The order only covers his involvement in GLGI. If his appeal is struck, the Court would only strike the appeals of his 2007, 2008, 2011, and 2012 tax years and the bifurcated portion of the appeal of his 2010 tax year relating to GLGI; the appeal of his 2009 tax year and the bifurcated portion of the appeal of his 2010 tax year relating to Relief Lending Group would remain. Gordon Denning had also appealed two different tax schemes: GLGI and Royal Crown Gold. Unlike Mr. Schmeichel, Mr. Denning's appeal had not yet been bifurcated. The Respondent had separately brought a motion to strike Mr. Denning's Fresh As Amended Notice of Appeal on the basis that it discloses no reasonable grounds for appealing either the GLGI or the Royal Crown Gold issues, and Justice Graham indicated he would hold that motion in abeyance until he had decided whether to strike the GLGI portions of Mr. Denning's appeal for abuse of process. It also appears that Ordia Kelly was involved in two different schemes: GLGI and the Universal Donation Program. However, Ms. Ordia's Notice of Appeal only refers to GLGI, and other than a comment in a footnote, the Reply makes no reference to the Universal Donation Program. The Court stated it would assume the Universal Donation Program is not in issue in Ms. Ordia's appeal unless the parties indicate otherwise.

The ruling and next steps

Justice Graham ordered that each appellant shall have until April 24, 2026 to file written submissions explaining why their appeal should not be struck for abuse of process without leave to amend. If an appellant fails to file written submissions on or before April 24, 2026, their appeal will be struck without further hearing. If, after reviewing an appellant's written submissions, the Respondent wants to file written submissions in response, the Respondent may do so on or before May 15, 2026. Written submissions filed pursuant to the order shall not exceed 10 pages. Justice Graham indicated he would decide whether or not to strike each appellant's appeal, with or without leave to amend, based solely on the written submissions, and that there will not be hearings on this issue. No specific monetary amount was awarded or ordered in this decision, as the Order is procedural in nature — it provides the appellants an opportunity to explain why their appeals should not be struck rather than making a final determination on the merits.