Kerr, J (orally):—This is a motion for judgment in favour of the plaintiff on the basis of allegations made and admitted in the pleadings.
The allegations relate principally to so-called notices of “nil” assessments in respect of the defendant’s 1967, 1968 and 1969 taxation years, copies of which are attached to the plaintiff’s statement of claim as Schedules 2, 3 and 4. The defendant filed notices of objection, copies of which are attached to the statement of claim as Schedules 5, 6 and 7. The defendant subsequently appealed to the Tax Appeal Board (now the Tax Review Board). The Minister of National Revenue applied to the Tax Review Board for an order to quash the defendant’s appeal on the ground that no appeal lies from a “nil” assessment. The Tax Review Board dismissed the application, heard the appeal on its merits and allowed it. Her Majesty, as plaintiff, then brought this appeal action by a statement of claim asking, inter alia, that the Crown’s appeal be allowed and that the decision of the Tax Review Board be quashed on the grounds that the notices that no tax was payable by the defendant for its 1967, 1968 and 1969 years were not “assessments” within the meaning of subsection (4) of section 46 of the Income Tax Act, RSC 1952, c 148 (prior to the amendment effected by section 1 of SC 1970-71-72, c 63) but were only notifications that no tax was payable for those years, with the consequence that
(a) the documents entitled notices of objection set forth in Schedules 5, 6 and 7 did not at law constitute, within the meaning of section 58 of the Act, objections to assessments made under Part I of the Income Tax Act; and
(b) the Tax Review Board under the provisions of subsection 59(1) of the Act had no jurisdiction to issue the decision under appeal since the defendant had never served a notice of objection to an assessment under section 58 of the Act, and since it was not and could not appeal to have any assessments vacated or varied.
The statement of claim also submitted that the sums involved were income from a business.
The defendant filed a statement of defence, saying, inter alia, that the notices of “nil” tax payable (the aforesaid Schedules 2, 3 and 4) are “assessments”, with the consequence that the defendant’s notices of objection (the said Schedules 5, 6 and 7) were in law notices of objection within the meaning of section 58 of the Income Tax Act, that the notice of appeal filed by the defendant was a proper notice of appeal and that the Tax Review Board had jurisdiction to try the case and make a decision on the merits. The defendant also said that the plaintiff is estopped from denying that the said Schedules 2, 3 and 4 are assessments or the validity of any of the documents filed by the defendant.
The present motion for judgment is made under this Court’s Rule 341, which is a successor to the Exchequer Court’s Rule 256B(2). The similarity between the rules is obvious.
In Libbey-Owens-Ford Glass Company v Ford Motor Company of Canada et al, [1969] 1 Ex CR 440, Jackett, P, as he then was, said in respect of Rule 256B(2) as follows at page 444:
In my view, Rule 256B(2) is intended for the cases where more than one cause of action or claim arises in the same legal proceeding and, having regard to admissions that have been made, a particular cause of action or other claim can be wholly and finally disposed of without waiting for the disposition of the other causes of action or claims in the proceeding.
The issue here involves a question or questions of law, and the application is for a judgment disposing of the whole matter. I do not think that Rule 341 is intended for a motion such as this one, or appropriate for it. Moreover, there is Rule 474, which provides for preliminary determination of questions of law, but only upon application and where the Court deems it expedient so to do, and for directions by the Court, also upon application, as to the case upon which the question shall be argued. I think that it would be more appropriate to have the matter dealt with by an application under Rule 474, in which a definite statement of the question or questions would be set forth and appropriate directions sought.
Consequently, the present motion for judgment will be dismissed, with costs to the defendant, but without prejudice to any right of the plaintiff to apply under Rule 474.