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A-470-79
The Queen (Appellant) v.
Coopers & Lybrand Limited, agent for Mercantile Bank of Canada and Receiver and Manager of Venus Electric Limited (Respondent)
Court of Appeal, Urie and Ryan JJ. and Kelly D.J.—Ottawa, September 9, 1980.
Practice — Motion for Court to reconsider judgment on grounds that amount that Court held that respondent had available to it to pay on account of wages was incorrect and that pronouncement as it relates to costs does not agree with the reasons — Appellant claimed amounts that respondent was allegedly obligated to remit for tax deductions on wages paid — Respondent denied liability and did not plead alterna tively that liability was restricted to a lesser amount Appellant established respondent's failure to deduct tax pay able from wages paid — Motion dismissed — Appeal was a necessary result of complete denial of liability — It was unnecessary to combine application to correct error with application for reconsideration of Court's disposition of costs.
MOTION in writing without appearance of parties.
COUNSEL:
P. Barnard for appellant.
T. A. Sweeney for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Borden & Elliot, Toronto, for respondent.
The following are the reasons for order ren dered in English by
URIE J.: The respondent seeks to have this Court reconsider its judgment [page 169 supra] herein on two grounds:
(a) that the sum referred to on pages 185 and 186 in respect of the amount which the respond ent had available to it to pay on account of wages was $190,270 rather than $196,207.01 as shown therein; (it has been conceded by the appellant that the latter figure is incorrect and the proper figure for inclusion in the reasons is
$190,270 and the reasons for judgment will be so amended), and
(b) that the pronouncement as it relates to costs does not agree with the reasons.
With respect to the latter contention it is impor tant to note that the appellant sought from the respondent by assessment, amounts it claimed the respondent was obligated to remit to it for tax deductions on wages paid. The respondent denied liability on the basis that it was
(a) an agent of Venus Electric Limited and the liability, if any, was that of its principal; and
(b) the amount of $190,270 made by it "did not constitute salary, wages or remuneration under the Income Tax Act and no income tax need be withheld from such payments ...".
It was held by this Court that the conduct of the respondent constituted failure to deduct from wage payments the requisite tax payable thereon. Its liability, therefore, was fixed by statute at 10% of the aggregate amount that it should have deducted.
The respondent did not, in its statement of claim, plead alternatively that its liability was restricted to deducting the lesser amount and in its action sought to have the Trial Division find that it was not liable at all for either deducting or remit ting tax. It did not raise the alternative plea that if it were found to be liable such liability should relate in the circumstances only to its failure to deduct tax so that the liability should be limited to 10%. That defence was not raised until the appeal was brought by the appellant herein. The result of the appeal was that the appellant established the respondent's failure to deduct tax payable from wages paid and consequently its liability for such failure.
The respondent thus failed in its action as framed. By virtue of the judgment of the Court of Appeal, the appellant successfully defended the respondent's action, a result which would not have occurred had the appeal not been taken. Put in
another way, the appeal was a necessary result of the complete denial of liability by the respondent.
Thus, by virtue of the appeal, the respondent failed at Trial since the issue put before the Trial Division ultimately was decided against it. It was also unsuccessful at the appeal level on that issue. Therefore, in our view, the disposition of costs by this Court correctly follows the result of the appeal.
The application for reconsideration is, therefore, dismissed. While the applicant, Coopers & Lybrand Limited, quite properly brought to the Court's attention the error in the figures shown on pages 185 and 186, correction of such error could have been accomplished quite simply by applying to the Court to effect the necessary correction without combining that application with the application for reconsideration of the Court's dis position of costs. We do not consider, therefore, that the applicant on the motion, the respondent on the appeal, has succeeded in any way on its motion and that the respondent (appellant) in this application is entitled to her costs in respect thereto.
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RYAN J.: I agree.
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KELLY D.J.: I concur.
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