McDonald J.A.:
1 We have not been persuaded that the motions Judge made any error which would warrant the intervention of this Court. It is not plain and obvious to us that the alleged agreement is irrelevant to the issues which must be resolved. Should it be determined on the evidence that the alleged agreement was within the power of the Minister to make, and providing its agent was acting within the scope of his or her authority and in accordance with the law, the Minister might be bound by the agreement.
2 We are all of the view that whether the Minister is bound by the agreement or indeed the existence of an agreement are matters that are best left to a Judge at a trial and not on a motion to strike under Rule 53. We are also of the view that Rule 58 does not apply.
3 By proceeding to trial this would also give counsel an opportunity to ask the Court to revisit the jurisprudence in Cohen v. R. (1980), 80 D.T.C. 6250, [1980] C.T.C. 318 (Fed. C.A.); Ludco Enterprises Ltd./Entreprises Ludco Ltée v. R. (1994), 95 D.T.C. 5311 (Eng.)(Fed. C.A.); leave to appeal refused,[1995] 4 S.C.R. vii (S.C.C.), in light of the comments of Judge Bowman in Consoltex Inc. v. R., [1997] 2 C.T.C. 2846 (T.C.C.)and the statement of Chief Justice Laskin in Smerchanski c. Ministre du Revenu national (1977), 76 D.T.C. 6247 (S.C.C.).
4 The appeal is dismissed with costs.