Catzman, Galligan and Arbour, JJ.A.:— It is not disputed that the liability for income tax, which was ultimately discharged by the respondent, was that of the appellant. Regardless of the reason why the respondent failed to withhold that income tax from the appellant and to remit it on her behalf to the tax authorities, subsection 215(6) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act"), provides that the respondent is entitled to recover from the appellant the amounts of income tax which it paid on her behalf.
When pressed during the argument, counsel for the appellant grounded his position upon the release found in paragraph 2 of the agreement made between the parties in August, 1984. In that agreement, they acknowledged the completion of the transaction envisaged by their share redemption agreement in 1981 and mutually released all claims arising out of that agreement.
The examination for discovery of the vice president of the respondent on this subject went no further than the language of the release itself. The appellant put forward no evidence on the motion for summary judgment respecting the intended scope of that release. On the material before the court, there was no genuine issue for trial on that subject. The release did not comprehend the release of the respondent's statutory right to recover from the appellant the income tax which it subsequently was called upon to pay on her behalf. We therefore agree that this was an appropriate case in which summary judgment should have been granted against the appellant.
At the outset of the appeal, counsel for the appellant noted that the formal judgment of Boland, J., as issued and entered, did not accurately reflect her endorsement, in that paragraph 2 did not indicate that judgment was granted for an additional sum of $13,000 (said to be costs incurred in opposing the income tax assessment made against the respondent), and made no adjustment in the amount of pre-judgment interest to reflect that addition. Counsel for the respondent acknowledged that, on the material before the court, summary judgment should not have been granted in respect of the claim for $13,000. We therefore do not order that any amendment be made to the formal judgment.
For the foregoing reasons, the appeal is dismissed with costs.
Appeal dismissed.