Walsh, J:—Plaintiff’s motion to substitute Her Majesty the Queen as plaintiff in place of the Minister of National Revenue in this case was contested by defendant. In making this motion plaintiff relies on the judgments in the cases of Mastino Developments Limited et al v The Queen, [1972] CTC 249; 72 DTC 6211, and Her Majesty the Queen v Joseph M Weintraub, [1972] CTC 331; 72 DTC 6296, which latter judgment affirmed the judgment of Noël, ACJ in the same case, reported at [1972] CTC 302; 72 DTC 6262. These judgments definitively settled that income tax appeals should be brought by or against Her Majesty the Queen rather than the Minister of National Revenue. There had been some uncertainty prior to this time due to the wording of subsection 48(1) of the Federal Court Act when read in conjunction with subsection 175(1) of the Income Tax Act, and this was clarified by these judgments. It should be noted that the first of these judgments was that of Noel, ACJ in the Mastino case rendered on May 12, 1972 which was subsequent to the production of the Statement of Claim in the present proceedings which took place on April 18, 1972. Moreover, the present proceedings are an appeal by the Minister from a judgment of the Tax Appeal Board in which the parties were designated in the same manner.
Defendant’s counsel argued that by substituting Her Majesty the Queen for the Minister of National Revenue as plaintiff a new party was being introduced into the proceedings to replace the party in whose name they were brought and that this would require new proceedings and not merely an amendment, and since the delays to appeal would have expired these new proceedings could not now be brought. The defendant would therefore suffer prejudice if the present proceedings were allowed to continue against it by an amendment Substituting another party as plaintiff. In support of his argument he relied on the comment by the Associate Chief Justice in the Mastino case (which was an application for directions rather than an issue between parties) in which he said at page 254 [6214]:
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.
He also argued that Rule 425 cannot be invoked to rectify a mistake in law. Rule 425 reads as follows:
425. An amendment to correct the name of a party may be allowed under Rule 424, notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party, if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to Cause any reasonable doubt as to the identity of the party intending to sue, or, as the case may be, intended to be sued.
In support of this contention he referred to the case of Bruno v International Coal and Coke Company (1913), 12 DLR 745. That case held that an employee’s ignorance of the fact that he was entitled to compensation for injuries is not a mistake that will excuse his failure to give notice thereof in the manner required by the Alberta Workmen’s Compensation Act, but it also held that the failure to give notice within the time prescribed was not fatal unless the omission was prejudicial to the employer, so I cannot find that it supports his argument.
If plaintiff did, in fact, make a mistake in law in initiating the proceedings as he did this was because the law was so unsettled at the time that an application for directions was made soon thereafter to the Federal Court in another case in order to determine what was the correct manner in which the parties should be designated in income tax appeals. In any event, section 62 of the Income Tax Application Rules, 1971, referred to in the Mastino case, 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 1 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.
Moreover, Rule 424 reads as follows:
424. Where an application to the Court for leave to make an amendment mentioned in Rules 425, 426 or 427 is made after any relevant period of limitation current at the date of commencement of the action has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that rule if it seems just to do so.
and this leaves discretion to the Court. Rule 425 permits the substitution of a new party:
. . . if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue, or, as the case may be, intended to be sued.
and it is abundantly clear that there has never been any mistake as to the identity of the plaintiff, nor has defendant in any way been prejudiced whether the proceedings are brought in the name of the Minister of National Revenue or in the name of Her Majesty the Queen, as plaintiff. The present amendment is sought merely to bring the proceedings into line with what is now considered to be the proper procedure.
I therefore permit the amendment. Had the motion not been contested no costs would have been allowed on it, but in view of the unsuccessful contestation, costs of the motion will be in favour of plaintiff.