Peter
A.K.
Giles,
A.S.P.:—The
plaintiffs
in
this
case
have
each
been
reassessed
for
income
tax
purposes
in
each
of
five
taxation
years.
Most
of
the
transactions
in
each
year
giving
rise
to
the
reassessment
of
each
plaintiff
in
each
year
were
the
same.
Each
plaintiff
filed
five
notices
of
objection
and
in
due
course
filed
five
appeals
to
the
Tax
Court
of
Canada.
The
ten
appeals
were
heard
together
on
common
evidence
and
were
all
dismissed
and
a
single
set
of
reasons
issued.
The
two
plaintiffs
then
appealed
to
this
Court
by
filing
a
single
declaration
including
the
appeals
of
both
plaintiffs
for
all
five
taxation
years.
That
is
to
say,
the
plaintiffs
have
in
a
single
proceeding
tried
to
appeal
ten
orders
of
the
Tax
Court
of
Canada.
In
the
motion
before
me,
the
Crown
seeks
to
strike
out
the
statement
of
claim
(declaration)
pursuant
to
Rule
419(1)(f)
of
the
Federal
Court
Rules
and
paragraph
175(3)(a)
of
the
Income
Tax
Act.
The
legislation
in
question
reads
as
follows:
(3)
An
appeal
instituted
under
this
section
shall
be
deemed
to
be
an
action
in
the
Federal
Court
to
which
the
Federal
Court
Act
and
the
Federal
Court
Rules
applicable
to
an
ordinary
action
apply,
except
as
varied
by
special
rules
made
in
respect
of
such
appeals,
and
except
that
(a)
the
Rules
concerning
joinder
of
parties
and
causes
of
action
do
not
apply
except
to
permit
the
joinder
of
appeals
instituted
under
this
section;
In
argument
before
me
counsel
for
the
Crown
relied
on
L
&
M
Wood
Products
Ltd.,
et
al.
v.
M.N.R.,
[1972]
C.T.C.
556;
72
D.T.C.
6843
where
Mr.
Justice
Heald
sitting
in
the
Trial
Division
of
this
Court
considered
the
meaning
of
paragraph
175(3)(a)
and
concluded
that
the
paragraph
permitted
the
joinder
of
appeals
only
after
the
appeals
had
been
instituted
seriatim.
Counsel
for
the
defence
argued
that
in
the
L
&
M
Wood
Products
case,
the
appeal
was
made
direct
to
the
Trial
Division
and
was
not
instituted
as
an
appeal
from
the
Tax
Court
(at
that
time
the
Tax
Review
Board).
Paragraph
175(3)(a)
does
not
indicate
any
distinction
is
to
be
made
between
proceedings
in
the
nature
of
a
direct
appeal
or
proceedings
in
the
nature
of
an
appeal
from
the
Tax
Court.
To
so
limit
the
possibility
of
joinder
of
appeals
to
those
cases
where
the
appeal
is
from
the
Tax
Court
would
be
entirely
inconsistent
with
the
dicta
of
Mr.
Justice
Heald
in
L
&
M
Wood
Products
which
indicated
circumstances
under
which
direct
appeals
might
be
joined.
I
have
considered
the
cases
cited
to
me
by
plaintiffs’
counsel
in
an
attempt
to
distinguish
L
&
M
Wood
Products
and
note
that
they
involve
attempts
to
involuntarily
join
parties
and
not
join
causes
of
action.
I
have
noted
that
paragraph
175(3)(a)
does
not
prohibit
the
joinder
of
parties
or
causes,
but
merely
provides
that
the
Rules
concerning
such
joinder
do
not
apply.
I
have
considered
whether
the
plaintiffs
have
any
right
outside
of
the
Rules
to
bring
an
action
jointly
based
on
several
causes
of
action
and
have
been
unable
to
find
any
indication
of
the
existence
of
such
a
right,
in
fact,
an
extract
from
the
speech
of
Lord
Russell
quoted
below
would
indicate
that
there
is
no
such
right.
Finally,
I
have
considered
the
argument
of
the
plaintiffs
that
the
pleading
is
not
fatally
defective.
In
L
&
M
Wood
Products
Mr.
Justice
Heald
so
described
a
similar
unauthorized
joinder.
In
Smurthwaite
v.
Hannay,
[1894]
A.C.
494
(H
of
L),
Lord
Russell
of
Killowen
in
discussing
a
joint
suit
by
plaintiffs
found
an
appeal
to
the
House
of
Lords
not
to
be
authorized
by
an
English
Rule
and
said
“in
my
judgment,
such
joinder
of
plaintiffs
is
more
than
an
irregularity:
it
is
the
constitution
of
a
suit
as
to
parties
in
a
way
not
authorized
by
the
law
and
the
rules
applicable
to
procedure;
and
apart
altogether
from
any
express
power
given
by
the
rules,
it
is
fully
within
the
competence
of
the
Court
to
restrain
and
prevent
an
abuse
of
its
process."
What
is
fatally
defective
in
this
case
is
the
institution
of
the
appeal.
There
is
no
appeal
and
therefore
I
cannot
apply
Rule
1716
nor
through
Rule
5
any
Ontario
Rule
to
divide
up
the
appeal
or
reduce
it
to
authorized
size
by
eliminating
a
party
and
causes
of
action.
While
it
is
apparent
that
in
so
doing,
I
will
apparently
eliminate
the
plaintiffs’
ability
to
have
their
appeal
heard,
I
find
that
I
must
strike
out
the
declaration
(statement
of
claim)
as
I
am
bound
by
the
decision
in
L
&
M
Wood
Products.
Order:
The
declaration
of
the
appellants
is
struck
out.
Order
accordingly.
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