Noël, A C J:—A request is here made for directions pursuant to Rule 473 of the Rules of this Court as to:
(1) the proper party in proceedings instituted from assessments by the Minister of National Revenue and from appeals from decisions of the Tax Review Board;
(2) the proper description of the pleadings in any such proceedings; (3) the proper description of the parties, and
(3) the pleading of statutory provisions and reasons which the party pleading intends to submit.
The request is made in four different proceedings:
(1) Mastino Developments Ltd and the Queen, where the taxpayer is described as plaintiff (appellant) and the other party as the Queen, defendant (respondent) and where the proceedings are described as a statement of claim and contain a number of allegations;
(2) Welland Chemical of Canada Ltd and the Minister of National Revenue where the taxpayer is described as the appellant and the Minister of National Revenue is described as representing Her Majesty the Queen as respondent and where the document contains the following words:
“Notice of appeal is hereby given from the income tax assessments . . . ” and the grounds for appeal are dealt with under the following separate headings:
(A) Statement of facts and summary reassessments;
(B) Statutory provisions and reasons which the appellant intends to submit to show that the respondent’s reassessments are in error.
A “Notice to the Respondent” then follows:
“You are required to take cognizance of the within notice of appeal and make opposition thereto in accordance with its terms and the appropriate provisions of the Rules of this Court. If you fail to do so, you will be subject to have such judgment as the Court may think just”.
and then a number of allegations follow.
(3) Nouvelle lie Inc and the Minister of National Revenue where the taxpayer is described as “appellant” and the Minister of National Revenue is described as the “respondent” and the proceedings are entitled “Notice of appeal” followed by two headings:
(A) Statement of facts, and
(B) Statement of reasons and a number of allegations under each heading and finally
(4) The matter of a proposed appeal by the Minister of National Revenue from the decision of the Tax Review Board allowing the appeal of one Lewie Leon from the assessments made under the Income Tax Act for his 1965, 1966, 1967 and 1968 taxation years.
Because of the various designations and forms of proceedings adopted in the above cases, the Attorney General of Canada, on behalf of the Minister of National Revenue, applies for directions in order to determine:
(a) the proper party in proceedings from assessments made under the provisions of the Income Tax Act, RSC 1952, c 148;
(b) the appropriate name for the pleadings and the parties thereto.
it indeed appears from the above that since the amendment to the Income Tax Act, RSC 1952, c 148, by c 63, SC 1970-71-72, appeals to this Court from assessments made under the Income Tax Act have been instituted in some cases
(a) where Her Majesty the Queen has been shown as a party;
(b) in other cases where the Minister of National Revenue representing Her Majesty the Queen is described as a party, and
(c) in other cases the Minister of National Revenue.
It also appears that in appeals instituted subsequent to June 1, 1971 and to the amendments made to the Income Tax Act the originating document has been variously described as
(1) a notice of appeal, or
(2) a statement of claim.
Furthermore, the parties to the proceedings have been variously described as either
(1) appellant and respondent, or
(2) plaintiff and defendant, or
(3) plaintiff (appellant) and defendant (respondent).
Subsection 62(5) of Part II of chapter 63 of SC 1970-71-72 [Income Tax Application Rules, 1971] provides that the amended provisions of the Income Tax Act in respect to the institution of appeals to the Federal Court are:
. . applicable in respect of any appeal or application instituted or made, as the case may be, after the coming into force of this Act”.
Subsection 175(1) of the Income Tax Act, RSC 1952, c 148, as amended by c 63 SC 1970-71-72, provides that:
175. (1) An appeal to the Federal Court under this Act, other than an appeal to which section 180 applies, shall be instituted,
(a) in the case of an appeal by a taxpayer,
(i) in the manner set forth in section 48 of the Federal Court Act, or
(ii) by the filing by the Minister in the Registry of the Federal Court of
a copy of a notice of objection pursuant to paragraph 165(3)(b); and
(b) in the case of an appeal by the Minister, in the manner provided by the Federal Court Rules for the commencement of an action.
Subsection 48(1) (to which subparagraph 175(1)(a)(i) refers) of the Federal Court Act, SC 1970-71-72, c 1, provides that a proceeding against the Crown may be instituted by the filing in the Registry of the Court of a document in the form set out in Schedule A to the Act. Schedule A sets forth a document described as a statement of claim or declaration and the parties therein are described as plaintiff and defendant and in the schedule Her Majesty the Queen is in fact shown as the defendant. The confusion involved in the designation of the parties and of the description of the proceedings is evidently due to the reference in subparagraph 175(1)(a)(i) of the Income Tax Act to section 48 of the Federal Court Act and the above schedule and some clarification is required in order to ensure uniformity in the designation of the parties and the description of the proceedings taken under the Income Tax Act.
Section 48 of the Federal Court Act is an indication of a trend in Canada towards eliminating nominated parties and towards having Her Majesty as the party where She is the person whose legal rights or obligations are involved. This is preferable as a person litigating against the Crown does not have to decide which department or departments are responsible for the situation of which he complains.
Each of the government departments is constituted by statute and placed under the management and control of its particular Minister (cf Public Works Act, RSC 1970, c 38). The Department of Justice (RSC 1970, c J-2) is subject to the management and direction of the Minister of Justice who is ex officio Attorney General of Canada and as Attorney General of Canada, has the regulation and conduct “of ali litigation for or against the Crown or any public department” (para 5(d)). The Deputy Attorney General has, by virtue of the Interpretation Act, the powers of the Attorney General. The Minister of National Revenue has a special statutory function to do certain things which have legal effects under the Income Tax Act. He has, indeed, the duty and authority to “assess” the tax payable for each taxation year of each taxpayer (section 152) and, when he has done so his assessment is deemed to be “valid and binding” subject to being varied or vacated on an objection or appeal and subject to a reassessment. Under the [former] Income Tax Act, a notice of appeal had no style and no title (see subsection 58(3) and the second schedule). Generally speaking, when there is an “appeal” of a judicial character, the tribunal or authority appealed from is not a party except where it has an administrative role in connection with the matter in addition to its statutory power to make decisions. Courts are not ordinarily parties to appeals against their decisions. Nevertheless, the Appeal Court may return matters to them in appropriate cases for re-hearing, etc.
I now turn to subsection 175(1) of the Income Tax Act to see what is meant by this section. It would seem from the language used: “an appeal by the Minister” and to an order for “payment or repayment . . . by the Minister”, that it is intended that those proceedings are to be called appeals, that they are to be carried on in the name of the Minister in his capacity as the officer in charge of Revenue collection for Her Majesty and that being appeals, the parties should be described as appellants or respondents. However, if that view is adopted the result will be that the changes in the form in Schedule “A” to the Federal Court Act and to the corresponding form in the Rules will be so substantial that they will no longer be the forms prescribed by subsection 175(1) at all. We cannot escape from the direction that the forms indicated shall be used, that the documents shall be called statements of claim or declarations (which is the equivalent of a statement of claim in the Province of Quebec), and that the parties shall be described as plaintiffs and defendants. Anything less than that would mean that the forms prescribed are not being used at all. I am, however, also inclined to the view, but with less certainty, that the party should be Her Majesty herself, as She is in Schedule “A”. That would be a literal compliance with the Act and the references to the Minister in sections 175 et seq of the Act should not be an obstacle to proceeding in this manner. When the Minister of Public Works decides to institute legal proceedings, he instructs the Department of Justice and the proceedings are instituted in the name of Her Majesty or such substitute name as may be required by statute. There should be no greater difficulty in the statute contemplating that a proceeding by the Minister of National Revenue to attack a decision of the Tax Appeal Board be launched in the name of Her Majesty. A person who is discontented with a decision of a Board may “appeal” from it, depending on the practice that is current, by an action or motion or an appeal. It is not too great an incompatability of words, therefore, to require an appeal to be instituted by an originating document called a statement of claim or declaration. Finally it is common form for statutes to impose obligations and confer rights on Her Majesty by requiring the Minister who is in charge of the particular part of Her Majesty’s affairs to make a payment or do something, or by authorizing such Minister to do something. Obviously such a statute does not impose an obligation or confer a right on the person who happens to be a Minister in his private capacity. All such statutes are merely using a device to impose duties or confer rights on Her Majesty in what is regarded as a more dignified way. The obligation to pay is an obligation on the Minister, whoever he may be, in the course of performing his duties as an officer of the Crown to make a payment out of Her Majesty’s monies. Finally, the provisions authorizing the Court to dispose of an appeal by referring the assessment back to the Minister for reassessment, appears to be quite consistent with Her Majesty being the party who opposes the appeal. There is, indeed, no need for the person who exercises a power under a statute to be a party to a proceeding attacking his decision. He is in the position of a tribunal or an authority whose decision is under appeal. The person interested in maintaining his decision in this case is Her Majesty and as long as She or somebody acting for Her is a party to protect Her interests, that is all that should be required.
I have no hesitation in concluding that the forms as indicated in subsection 175(1) should be used, that the documents should be called statements of claim or declarations and that the parties should be described as plaintiffs and defendants. Although as mentioned above my inclination would be to the view that the party should be Her Majesty herself as She is in Schedule “A”, I do so with some hesitation in view of the clear language of the Income Tax Act which refers only to the “Minister of National Revenue” upon whom certain statutory duties are imposed and the possibility of raising the arguable submission that unless the Minister of National Revenue is in fact made a party to the proceedings, the Court may be powerless to exercise the jurisdiction conferred on it by section 177 of the Income Tax Act, RSC 1952, c 148, as amended by c 63, SC 1970-71-72, to refer an assessment back to the Minister for reconsideration and reassessment. There is also the possibility of an arguable submission being made that in those cases, where Her Majesty is the unsuccessful party in the litigation, the Court would not have jurisdiction under section 178 of the Income Tax Act, RSC 1952, c 148, as amended by c 63, SC 1970-71-72, to order Her Majesty to pay the costs or repay the tax on the submission that the Court’s jurisdiction is limited to making orders against the Minister and that if he is not a party to the proceedings, such an order could not be made against him.
Should the present motion be one to strike, or should I be faced with such a submission on appeal, I would have to come to a conclusion on the matter. The problem is here not only a question of procedure but one of interpretation of a number of sections of a statute dealing with the manner in which appeals should be taken before this Court and which, if improperly taken, may possibly result in the dismissal of the proceedings. Rule 473 of the Rules of this Court under which the present motion was presented, allows the Court to give directions only as to the procedure to govern the course of the matter and does not permit the Court to issue directions on the interpretation to be given to a statute which deals with the manner in which proceedings should be launched. Obviously, no decision on the above matter can be given until the matter is raised during an appeal or comes up on a motion to strike out, and the present motion is not such a motion.
I should point out that section 62 of the Income Tax Application Rules, 1971 provides for proceedings to be instituted in accordance with the old Act, for a period of two years after the coming into force of the 1971 Income Tax Act. This section reads as follows:
62. (6) An appeal to the Federal Court instituted within 2 years after the coming into force of this Act, that is instituted in accordance with Division J of Part I of the former Act and any rules made thereunder as those rules read immediately before the coming into force of this Act, shall be deemed to have been instituted in the manner provided by the amended Act; and any document that is served on the Minister or a taxpayer in connection with an appeal so instituted in the manner provided in that Division and those rules shall be deemed to have been served in the manner provided by the amended Act.
The above must, therefore, necessarily be more in the nature of comments than directives but it is put forward in the hope that it will be persuasive in indicating to the parties the most desirable manner in which proceedings in appeal should be dealt with before this Court.
I shall now deal with the pleading of statutory provisions and reasons. I am of the view that although because of the repeal of the provisions of subsection (3) of section 98 and subsection (1) of section 99 of the Income Tax Act, RSC 1952, c 148 by section 1 of c 63 of SC 1970-71-72, there is no longer any statutory obligation for a party to plead either statutory provisions or reasons, I am inclined to encourage such pleadings in view of their usefulness in allowing the parties and particularly the taxpayer, to be informed on precisely what basis the proceedings are taken, having regard to the assumptions which the Minister, in some cases, is entitled to adopt with regard to the basis of the assessments.
Although the provisions for providing for such pleadings have been repealed, this does not mean that they cannot be pleaded or even ordered for that matter, if by not pleading them they may take the other party by surprise. Rule 409 of the General Rules of the Court indeed provides, inter alia that
A party shall plead specifically any matter
(b) that, if not specifically pleaded, might take the opposite party by surprise . . .
and Rule 412 says “A party may by his pleading raise any point of law”.
The parties are hereby authorized to amend their pleadings in order to conform to the preferred forms of pleading as hereinbefore indicated. There shall be no costs.