Per curiam:—This is an application in writing under Rule 324 for a consent judgment, the effect of which consent judgment would be that the judgment of the Trial Division would be set aside and there would be a judgment of this Court whereby the appellant’s assessment under Part I of the Income Tax Act for the 1961 taxation year would be referred back to the respondent “to reassess the appellant’s tax and interest in the total amount of $100,000 in accordance with the Amended Minutes of Settlement filed’’.
When this application was first considered, as we had doubt that the application should be granted, we gave reasons for judgment on April 22 last [reported  CTC 313] setting out our difficulties and we gave counsel an opportunity to speak to the matter.
Counsel took advantage of that opportunity. At the resulting hearing, it was, in effect, conceded that judgment could not go in the terms that had been consented to but it was sought to persuade the Court that judgment could be granted in other terms that would accomplish what the parties had actually had in mind when the Minutes of Settlement were agreed upon.
In support of submissions made at the oral hearing, an affidavit was filed by counsel for the respondent and reference was made during argument to some of the evidence that was before the learned trial judge, in that connection, it should be emphasized that there is, as far aS we know, no way in which this Court can be put into a position to exercise its powers to dispose of an appeal from a judgment of the Trial Division by setting aside or varying such judgment other than by a hearing of the appeal on the merits or a consent to judgment. Furthermore, where a consent judgment can be given, the judgment should, In our view, be based exclusively on the consent. It is no part of the Court’s function, on an application for consent judgment, to examine the issues, either of fact or of law, involved in the appeal except in so far as may be necessary for the Court to satisfy itself that the judgment sought is within the jurisdiction of the Court and is one that can legally be granted. For the latter purpose, there may be occasions when affidavit evidence may be appropriate but, generally speaking, the papers should be so drawn that such evidence is not necessary.
Leaving aside the difficulties raised by our Reasons of April 22 last that have been accepted by counsel as barring a consent judgment in the terms originally agreed upon by the parties, we shall endeavour to indicate the remaining problem as briefly as possible.
The reasons for judgment of the learned trial judge disclosed that what was in issue in the proceeding before that Court, which was an attack on the appellant’s 1961 assessment, was whether an amount of $200,500 had been received in such circumstances as to require that it be included in computing the appellant’s income for the 1961 taxation year for the purposes of Part I of the Income Tax Act and that there was no dispute as to the amount of the alleged benefit. The amount of additional tax involved, if that amount was properly included in income, was $133,381.58. The Trial Division held that the amount was properly included in computing income and did not, therefore, interfere with the assessment. The judgment originally sought, on consent, was a judgment that would have reduced the amount of tax flowing from the transaction in question without eliminating it. Having regard to the fact that there had been no issue between the parties as to quantum, the proposed judgment appeared to be intended to implement a compromise settlement rather than to implement an agreement between the parties as to how the assessment should have been made by application of the law to the true facts. That being so, there was, in our view, doubt as to whether the Court had jurisdiction to grant the proposed judgment.
The reason for that doubt, as indicated by our Reasons of April 22, was that, in our view, the Minister has a statutory duty to assess the amount of tax payable on the facts as he finds them in accordance with the law as he understands it. It follows that he cannot assess for some amount designed to implement a compromise settlement and that, when the Trial Division, or this Court on appeal, refers an assessment back to the Minister for reassessment, it must be for reassessment on the facts in accordance with the law and not to implement a compromise settlement.
Is the position any different where the parties consent to a judgment? In ordinary litigation between private persons of full age and mentally sound, the Court has not, in normal circumstances, any duty to question a consent by the parties to judgment. We should have thought that the same statement applies where the Crown, represented by its statutory legal advisers, is one of the parties. There is, however, at least one exception to. the unquestioning granting of consent judgments, regardless of who the parties are, namely, that the Court cannot grant a judgment on consent that it could not grant after the trial of an action or the hearing of an appeal. It follows that, as the Court cannot, after a trial or hearing, refer a matter back for assessment except for assessment in the manner provided by the statute and cannot therefore, at such a stage, refer a matter back for reassessment to implement a compromise settlement, the Court cannot refer a matter back by way of a consent judgment for reassessment for such a purpose.
We did not understand counsel to make any submission inconsistent with this view. What they did indicate was that, notwithstanding the appearances flowing from the circumstances to which we have referred, in fact, the Minutes of Settlement were designed to give effect to an agreement reached by the parties as to what the assessment should be when the law is applied to the actual facts. In the circumstances, there is no reason why the parties cannot re-apply on the basis of a consent to a judgment designed to implement an agreement of the parties as to how the assessment should have been made by application of the law to the true facts. If there should be such a further application, we suggest that, having regard to the history of the matter, there should be an express recital in the consent that it is designed to implement such an agreement. We also suggest, in the circumstances of this case, that the appropriate judgment would be a judgment that sets the judgment of the Trial Division aside and refers the assessment back for reassessment on the basis of the fact agreed upon without attempting to determine the amount of tax or interest payable.
We have concluded that the application for consent judgment should be dismissed without costs and without prejudice to the right of either or both parties to make an application for judgment on consent in terms that are different from the terms of the judgment sought on this application.