A-109-78
James J. Forestell (Appellant) (Defendant)
v.
The Queen (Respondent) (Plaintiff)
Court of Appeal, Heald, Urie and Ryan JJ.—
Ottawa, September 21, 1978.
Income tax — Practice — Costs — Jurisdiction — Judge
purporting to deal with matter of costs of taxpayer where tax
in controversy not exceeding $2,500 — Taxpayer granted
adjournment at outset of hearing, and appeal not yet heard —
Whether or not Judge erred in exercising jurisdiction under s.
178(2) — Income Tax Act, S.C. 1970-71-72, c. 63, s. 178(2).
INCOME tax appeal.
COUNSEL:
W. E. Baker for appellant (defendant).
W. Lefebvre and D. Olsen for respondent
(plaintiff).
SOLICITORS:
William E. Baker, Campbellford, for appel
lant (defendant).
Deputy Attorney General of Canada for
respondent (plaintiff).
The following are the reasons for judgment
delivered orally in English by
HEALD J.: I am of the opinion that the learned
Trial Judge erred in purporting to deal with the
matter of costs pursuant to the provisions of sec
tion 178(2) of the Income Tax Act. That section
requires the Federal Court, in delivering judgment
disposing of the appeal, to order the Minister to
pay all reasonable and proper costs of the taxpayer
in connection therewith in cases, inter alia, where
the tax in controversy does not exceed $2,500.
In the case at bar, the taxpayer applied for an
adjournment in order to amend his statement of
defence at the outset of the hearing. Because the
learned Trial Judge granted the adjournment,
albeit subject to terms, the appeal was not heard at
that time and has not yet been heard. Accordingly,
the learned Trial Judge erred in exercising his
jurisdiction under section 178(2) since that juris-
diction only devolves upon him when delivering a
judgment disposing of the appeal. To exercise that
jurisdiction at any prior point in time is, in my
view, wrong in law.
For these reasons, I would allow the appeal with
costs in this Court and strike paragraph 5 from the
order of the Trial Division dated February 16,
1978.
* * *
URIE J. concurred.
* *
RYAN J. concurred.
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.