The Queen (Plaintiff)
v.
Garry Bowl Limited (Defendant)
Trial Division, Kerr J.—Winnipeg, October 19,
1973.
Practice and procedure—Motion for summary judgment—
Rule 341—Not appropriate where issue of law involved.
Rule 341 does not permit summary judgment where there
is an issue of law involved which cannot be settled upon
admissions in the pleadings. In this case the question of law
was whether or not a "nil" assessment to income tax is an
assessment.
MOTION.
COUNSEL:
N. A. Chalmers, Q.C., and C. H. Fryers for
plaintiff.
M. Greene and A. Fineblitt for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Buchwald, Asper, Henteleff & Co., Win-
nipeg, for defendant.
KERR J. (orally)—This is a motion for judg
ment in favour of the plaintiff on the basis of
allegations made and admitted in the pleadings.
The allegations relate principally to so-called
notices of "nil" assessments in respect of the
defendant's 1967, 1968 and 1969 taxation
years, copies of which are attached to the plain
tiff's Statement of Claim as schedules 2, 3 and
4. The defendant filed Notices of Objection,
copies of which are attached to the Statement of
Claim as schedules 5, 6 and 7. The defendant
subsequently appealed to the Tax Appeal Board
(now the Tax Review Board). The Minister of
National Revenue applied to the Tax Review
Board for an order to quash the defendant's
appeal on the ground that no appeal lies from a
"nil" assessment. The Tax Review Board dis-
missed the application, heard the appeal on its
merits and allowed it. Her Majesty, as plaintiff,
then brought this appeal action by a Statement
of Claim asking, inter alia, that the Crown's
appeal be allowed and that the decision of the
Tax Review Board be quashed on the grounds
that the notices that no tax was payable by the
defendant for its 1967, 1968 and 1969 years
were not "assessments" within the meaning of
subsection (4) of section 46 of the Income Tax
Act, R.S.C. 1952, c. 148 (prior to the amend
ment effected by section 1 of c. 63, S.C. 1970-
71-72) but were only notifications that no tax
was payable for those years, with the conse
quence that
(a) the documents entitled Notices of Objection set forth in
Schedules 5, 6 and 7 did not at law constitute, within the
meaning of section 58 of the Act, objections to assessments
made under Part I of the Income Tax Act; and
(b) the Tax Review Board under the provisions of section
59(1) of the Act had no jurisdiction to issue the decision
under appeal since, the Defendant had never served a
Notice of Objection to an assessment under section 58 of
the Act, and since it was not and could not appeal to have
any assessments vacated or varied.
The Statement of Claim also submitted that the
sums involved were income from a business.
The defendant filed a Statement of Defence,
saying, inter alia, that the notices of "nil" tax
payable (the aforesaid schedules 2, 3 and 4) are
"assessments", with the consequence that the
defendant's notices of objection (the said
schedules 5, 6 and 7) were in law notices of
objection within the meaning of section 58 of
the Income Tax Act, that the Notice of Appeal
filed by the defendant was a proper Notice of
Appeal and that the Tax Review Board had
jurisdiction to try the case and make a decision
on the merits. The defendant also said that the
plaintiff is estopped from denying that the said
schedules 2, 3 and 4 are assessments or the
validity of any of the documents filed by the
defendant.
The present motion for judgment is made
under this Court's Rule 341, which is a succes
sor to the Exchequer Court's Rule 256B(2). The
similarity between the rules is obvious.
In Libbey-Owens-Ford Glass Company v.
Ford Motor Company of Canada, Ltd. [1969] 1
Ex.C.R. 440, Jackett P., as he then was, said in
respect of Rule 256B(2) as follows at page 444:
In my view, Rule 256B(2) is intended for the cases where
more than one cause of action or claim arises in the same
legal proceeding and, having regard to admissions that have
been made, a particular cause of action or other claim can
be wholly and finally disposed of without waiting for the
disposition of the other causes of action or claims in the
proceeding.
The issue here involves a question or ques
tions of law, and the application is for a judg
ment disposing of the whole matter. I do not
think that Rule 341 is intended for a motion
such as this one, or appropriate for it. More
over, there is Rule 474, which provides for
preliminary determination of questions of law,
but only upon application and where the Court
deems it expedient so to do, and for directions
by the Court, also upon application, as to the
case upon which the question shall be argued. I
think that it would be more appropriate to have
the matter dealt with by an application under
Rule 474, in which a definite statement of the
question or questions would be set forth and
appropriate directions sought.
Consequently, the present motion for judg
ment will be dismissed, with costs to the
defendant, but without prejudice to any right of
the plaintiff to apply under Rule 474.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.