Stephens v. The Queen, 77 DTC 5418, [1977] CTC 590 (FCTD)

Walsh, J:—This is a motion by plaintiff for reconsideration pursuant to Rule 337(5) of this Court of a judgment rendered on September 20, 1977, dismissing her motion for an order extending the time within which an appeal might be made from the judgment of the Tax Review Board dated August 12, 1976. Rule 337(5) reads as follows:

Rule 337. (5) Within 10 days of the pronouncement of judgment under paragraph (2)(a), or such further time as the Court may allow, either before or after the expiration of that time, either party may move the Court, as constituted at the time of the pronouncement, to reconsider the terms of the pronouncement, on one or both of the following grounds, and no others:

(a) that the pronouncement does not accord with the reasons, if any, that may have been given therefor,

(b) that some matter that should have been dealt with has been overlooked or accidentally omitted.

Plaintiff’s motion was properly made within 10 days of the pronouncement of judgment but it is clear on a rereading of the reasons for judgment that it is fully in accord with the reasons given and hence paragraph (a) cannot apply.

Plaintiff's contention is really that paragraph (b) applies in that the Court overlooked or accidentally omitted a matter which should have been dealt with namely the application of subsection 165(7) of the Income Tax Act to her case, since the reasons for judgment made no mention of this subsection. The reason why no mention of it was made however is because it was clearly inapplicable in the circumstances of her case to the motion before the Court, and there was therefore no overlooking or accidentally omitting any matter that should have been dealt with. The said subsection 165(7) reads as follows:

165. (7) Where a taxpayer has served a notice of objection to an assessment in accordance with this section and thereafter the Minister reassesses the taxpayer’s tax for the taxation year in respect of which the notice of objection was served or makes an additional assessment in respect thereof, and sends to the taxpayer a notice of the reassessment or of the additional assessment, as the case may be, the taxpayer may, without serving a notice of objection to the reassessment or additional assessment,

(a) appeal therefrom to the Tax Review Board or the Federal Court in accordance with section 169 or subsection 172(2), or

(b) if an appeal to the Tax Review Board or the Federal Court has been instituted with respect to the assessment, amend such appeal by joining thereto an appeal in respect of the reassessment or the additional assessment in such manner and on such terms, if any, as the Board or the Court directs.

It is clear that this covers two situations:

1. where a notice of objection has been made to an assessment and this has resulted in a notice of reassessment the taxpayer may without serving a further notice of objection to the reassessment or additional assessment appeal to the Tax Review Board or the Federal Court;

2. if an appeal to the Tax Review Board or the Federal Court had already been instituted with respect to the assessment then it could be amended by joining thereto an appeal with respect to the reassessment or additional assessment in such manner and on such terms as the Board or Court may direct.

The plaintiff did not come within either situation. She had made a notice of objection to the original assessment which had been rejected, had chosen to appeal from same to the Tax Review Board and it had rendered its judgment and disposed of the matter. The reassessment was made following the decision on such an appeal and allegedly in conformity therewith. There can clearly be no question of joining an appeal from the reassessment (which as a matter of fact has never been made) to an appeal from the original assessment after it had been disposed of by final judgment of the Tax Review Board. The only way to attack the merits of such a judgment was to appeal therefrom. Plaintiff attempted to do this by proceedings under File No T-1681 instituted by her on April 26, 1977 in this Court long after the delays to appeal the judgment of the Tax Review Board had expired and these proceedings were properly dismissed by Justice Marceau who gave her leave to apply under subsection 167(4) for an extension of the delay to file an appeal. It was this application on which my judgment was rendered on September 20, 1977. It was dismissed on two grounds, namely that by application of subparagraphs 167(5)(c)(i) and (ii) no circumstances had been disclosed as to why an appeal had not been brought within the proper time which would justify the Court in making an order extending the time for appealing, and secondly because the application had not been brought as soon as circumstances permitted it to be brought, the application having been made on August 23, 1977, nearly a year after the decision of the Tax Review Board made on August 12, 1976, which was sent to her by registered mail on August 25, 1976 with an indication that an appeal could be made within 120 days thereafter.

It is clear that it was on the basis of these two subparagraphs that plaintiff's motion was dismissed, but since plaintiff was acting as her own attorney without benefit of legal advice and in accordance with the maxim that justice must not only be done but must be seen to be done the reasons for judgment proceeded to make what was purely an obiter finding on the fact that, in any event, an examination of the assessment and the decision of the Tax Review Board indicated that there were no reasonable grounds for appealing so that subparagraph (iii) was also applicable. That this was an obiter finding is clear from the introduction to the paragraph on page 4 of the reasons for judgment [[1977] CTC 488 at 490] which reads:

While what has been said above is sufficient to dispose of plaintiff’s present application by dismissing same, subparagraph (c)(iii) (supra) does indicate that one of the matters which the Court should take into consideration is whether there are reasonable grounds for objecting to or appealing from the assessment.

Possibly because of this plaintiff now attempts to again discuss the judgment of the Tax Review Board and even to introduce additional evidence and argument.

This is clearly not permissible on an application to reconsider pronouncement of judgment by virtue of Rule 337(5), nor would such evidence have been permissible in any event on the earlier motion seeking an extension of delay for appealing the decision of the Tax Review Board, since such evidence and argument would only be applicable on the hearing of such an appeal and not on a procedural motion seeking leave to make an appeal.

There are no grounds on which the Court can give plaintiff directions as she seeks by virtue of Rule 165(7) since it is not applicable.

Plaintiff's motion for reconsideration of the pronouncement of judgment made on September 20, 1977 is therefore dismissed with costs.