The Queen (Appellant)
v.
Joseph M. Weintraub (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Sheppard D.J.—Ottawa, June 26, 1972.
Income tax—Appeal from assessment—Defendant should
be the Queen—Income Tax Act, R.S.C. 1952, c. 148, s. 175
(am. 1970-71, c. 63)—Federal Court Act, s. 48.
Having regard to the provisions of the Department of
National Revenue Act, R.S.C. 1970, c. N-15, section 4, the
Minister in exercising his functions under the Income Tax
Act does so as an officer of the Crown and not as persona
designata. Accordingly an appeal against an income tax
assessment must under section 175 of the Income Tax Act,
R.S.C. 1952, c. 148, as amended by 1970-71, c. 63, be
instituted in the manner set forth in section 48 of the
Federal Court Act, i.e. against Her Majesty the Queen and
not the Minister of National Revenue.
APPEAL from Noël A.C.J., ante, p.
G. W. Ainslie, Q.C. and A. P. Gauthier for
appellant.
B. Verchere for respondent.
JACKETT C.J. (orally)—This is an appeal from
a decision of the Trial Division dated June 13,
1972, dismissing an application for an order
dismissing this appeal, which was brought by
way of a Statement of Claim or a Declaration
under section 48 of the Federal Court Act on
the ground "that no relief can be sought or
obtained from Her Majesty ... in respect of the
exercise by the Minister of National Revenue of
the administrative duty conferred on him as a
persona designata under the provisions of the
Income Tax Act to assess the tax payable by
the Plaintiff".
I am of opinion that this appeal should be
dismissed with costs for the reasons given by
the Associate Chief Justice in dismissing the
motion. However, out of deference to the argu
ment of counsel, I shall endeavour to summa
rize briefly the reasons as I see them why the
appeal must fail.
The Income Tax Act imposes taxes payable
to Her Majesty. (See section 118 of the "former
Act" and section 222 of the "amended Act"'.)
The Minister of National Revenue, who is head
of a government department (see the Depart
ment of National Revenue Act, R.S.C. 1970, c.
N-15), is charged with the administration and
enforcement of the Income Tax Act. (See sec
tion 220 of the amended Act.) He has no rights
or obligations personally in respect of the
taxes imposed. What he does, through his
department, is carry on, on behalf of Her
Majesty, all the operations that are required to
collect the amounts payable under the Act and
to repay, on behalf of Her Majesty out of Her
Majesty's funds, any amounts that have to be
repaid under the Act.
One of the things that must be done by any
minister who has to collect amounts payable to
the Crown is to make a determination, as best
he can, of the amounts that are payable, so that
he can claim them. The device adopted in the
Income Tax Act to get a final determination of
such amounts is to make the minister's determi
nation, or assessment, of any such amount final,
subject to appeal to the Courts. In my view,
however, such a determination or assessment is
nevertheless merely a part of the minister's
administration of the Act. It is done in the
carrying out of his duties as a minister of the
Crown charged with the collection of the
revenues.
On an appeal to the Courts from such an
assessment, the issue is an issue as to the
amount of tax payable to Her Majesty and is,
therefore, an issue between the taxpayer and
Her Majesty. When, heretofore, such an appeal
has been carried on by way of a proceeding set
up as a proceeding between the taxpayer and
the minister, the minister has been a nominated
party carrying on litigation on behalf of Her
Majesty just as the Attorney General is con
ducting litigation on behalf of Her Majesty
when he brings an action, as Attorney General,
in one of the other courts of the land for a debt
owing to Her Majesty.
Until recently, it has been the custom to carry
on litigation concerning rights or obligations of
the Crown by way of special proceedings, e.g.,
petitions of right and informations. The current
tendency is however to eliminate such special
proceedings, with a view to obtaining a uniform
proceeding for all law suits whether the Crown
is a party or not. So, section 48 of the Federal
Court Act provides for actions against the
Crown being launched by a statement of claim
or declaration as are actions in this Court
between subject and subject and Rule 600 of
the Rules of this Court provides for actions by
the Crown being launched in the same way.
Section 175 of the amended Income Tax Act is
another step in the same direction.
In my view, section 175 of the amended
Income Tax Act is clear and unambiguous. It
provides for appeals being instituted "in the
manner set forth in section 48 of the Federal
Court Act", which provision authorizes the
institution of a proceeding against the Crown by
a document in the form set out in Schedule A of
that Act, and that Schedule provides for a state
ment of claim or declaration entitled between
the person launching the proceeding, called
"Plaintiff", and "Her Majesty the Queen"
called "Defendant". I have difficulty in under
standing how it could be thought that section
175 of the amended Income Tax Act could
mean anything except that an appeal may be
brought by a statement of claim or declaration
in which the taxpayer is called "Plaintiff" and
the other party is "Her Majesty the Queen" and
is called "Defendant".
With regard to the argument that an assess
ment cannot be referred back to the minister if
he is not named as a party, I find it difficult to
understand the force of the logic involved. A
Court of Appeal, if so authorized, refers an
ordinary matter back to a trial court although
that Court is not named as a party to the appeal.
So, also, I find no difficulty in applying a provi
sion that authorizes the referring back of an
assessment to the minister for re-assessment
although he is not named as a party to the
proceeding. The same answer may be made to
any difficulty that may be raised concerning
any other order that may be made in disposing
of an income tax appeal. What the minister does
under the Act, he does on behalf of Her Majes
ty and, if the Court has authority to give a
direction that involves him exercising his func
tions under the Act, as, for example, an order
that he make a refund, all that is necessary is
that Her Majesty, whose rights and monies are
those involved, be a party.
*
THURLOW J.—I am of the same opinion and I
only wish to add that even if some of the
functions of the Minister under the Income Tax
Act should be regarded as exercisable as a
persona designata rather than as a servant of
the Crown, I would reach the same conclusion
as to the interpretation of section 175.
* * *
SHEPPARD D.J. concurred with Jackett C.J.
I use these expressions in the sense defined by section 8
of c. 63 of 1970-71.
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.