MNR v. Parsons and Flemming, 84 DTC 6345, [1984] CTC 352 (FCA)

Pratte, J:—This is an appeal from a judgment of the Trial Division quashing assessments made by the Minister of National Revenue pursuant to subsections 159(2) and (3) of the Income Tax Act. The special feature of this case is that the judgment under attack was not rendered on an appeal under the provisions of the Income Tax Act. Indeed, the respondents did not bring such an appeal; instead, they chose to apply to the Trial Division under section 18 of the Federal Court Act for an order quashing the assessments made against them and restraining the Minister and his servants from taking further action pursuant to those assessments. The application was granted by the judgment appealed from.

We are all of opinion that the appeal must succeed on the narrow ground that the only way in which the assessments made against the respondents could be challenged was that provided for in sections 169 and following of the Income Tax Act. This, in our view, clearly results from section 29 of the Federal Court Act.

The learned judge of first instance held that, in this case, section 29 did not deprive the Trial Division of the jurisdiction to grant the application made by the respondents under section 18 of the Federal Court Act because, in his view, the appeal provided for in the Income Tax Act was restricted to questions of “quantum and liability” while the respondent’s application raised the more fundamental question of the Minister’s legal authority to make the assessments. We cannot agree with that distinction. The right of appeal given by the Income Tax Act is not subject to any such limitations.

In our view, the Income Tax Act expressly provides for an appeal as such to the Federal Court from assessments made by the Minister; it follows, according to section 29 of the Federal Court Act, that those assessments may not be reviewed, restrained or set aside by the Court in the exercise of its jurisdiction under sections 18 and 28 of the Federal Court Act.

The appeal will be allowed, the decision of the Trial Division will be set aside and the respondents’ application to the Trial Division will be dismissed. The appellant will be granted his [sic] costs both in this Court and in the Trial Division.