A-1206-83
Minister of National Revenue (Appellant)
(Respondent)
v.
A. W. C. Parsons, Hugh J. Fleming Jr. for them
selves and as Executors of the Estate of Hugh
John Flemming Sr. (Respondents) (Applicants)
Court of Appeal, Pratte, Urie and Ryan JJ.—
Ottawa, June 12, 1984.
Jurisdiction — Federal Court, Trial Division — Appeal
from Trial judgment quashing assessments — Relief at trial
sought under s. 18 Federal Court Act instead of on appeal
under Income Tax Act — Trial Judge holding s. 29 Federal
Court Act not depriving Trial Division of jurisdiction to grant
s.18 application because right of appeal provided for in Income
Tax Act restricted to questions of quantum and liability while
application raising more fundamental questions of Minister's
legal authority to make assessments — Appeal allowed —
Express right of appeal from assessments provided for in
Income Tax Act not subject to limitations — S. 29 therefore
prohibiting review of assessments under ss. 18 or 28 Federal
Court Act — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, ss. 18, 28, 29 — Income Tax Act, S.C. 1970-71-72, c. 63,
ss. 159(2),(3), 169.
Income tax — Practice — Appeal from assessments —
Trial Judge quashing assessments pursuant to s. 18 Federal
Court Act on ground appeal provided for in s. 169 Income Tax
Act restricted to questions of quantum and liability whereas
application raising more fundamental questions of Minister's
legal authority to make assessment — Appeal allowed — S.
169 right of appeal not subject to limitations — Only way to
challenge assessments provided in s. 169 and following of
Income Tax Act — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, ss. 18, 28, 29 — Income Tax Act, S.C. 1970-71-
72, c. 63, ss. 159(2),(3), 169.
COUNSEL:
D. G. Gibson for appellant (respondent).
E. J. Mockler, Q.C. and B. Crane, Q.C. for
respondents (applicants).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (respondent).
Mockler, Allen & Dixon, Fredericton, for
respondents (applicants).
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: This is an appeal from a judgment
of the Trial Division [[1984] 1 F.C. 804] quashing
assessments made by the Minister of National
Revenue pursuant to subsection 159(2) and (3) of
the Income Tax Act [R.S.C. 1952, c. 148, as am.
by S.C. 1970-71-72, c. 63, s.1]. The special feature
of this case is that the judgment under attack was
not rendered on an appeal under the provisions of
the Income Tax Act. Indeed, the respondents did
not bring such an appeal; instead, they chose to
apply to the Trial Division under section 18 of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10] for an order quashing the assessments made
against them and restraining the Minister and his
servants from taking further action pursuant to
those assessments. That application was granted
by the judgment appealed from.
We are all of opinion that the appeal must
succeed on the narrow ground that the only way in
which the assessments made against the respond
ents could be challenged was that provided for in
sections 169 and following of the Income Tax Act.
This, in our view, clearly results from section 29 of
the Federal Court Act.
The learned Judge of first instance held that, in
this case, section 29 did not deprive the Trial
Division of the jurisdiction to grant the application
made by the respondents under section 18 of the
Federal Court Act because, in his view, the appeal
provided for in the Income Tax Act was restricted
to questions of "quantum and liability" while the
respondents' application raised the more funda
mental question of the Minister's legal authority to
make the assessments. We cannot agree with that
distinction. The right of appeal given by the
Income Tax Act is not subject to any such
limitations.
In our view, the Income Tax Act expressly
provides for an appeal as such to the Federal
Court from assessments made by the Minister; it
follows, according to section 29 of the Federal
Court Act, that those assessments may not be
reviewed, restrained or set aside by the Court in
the exercise of its jurisdiction under sections 18
and 28 of the Federal Court Act.
The appeal will be allowed, the decision of the
Trial Division will be set aside and the respond
ents' applications to the Trial Division will be
dismissed. The appellant will be granted his costs
both in this Court and in the Trial Division.
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.