Kempo,
T.C.CJ.:—This
is
an
application
by
notice
of
motion
pursuant
to
Rule
58(1)(a)
of
the
Tax
Court
of
Canada
(General
Procedure)
Rules
for
the
determination
of
a
question
of
law.
An
identical
motion
was
launched
by
Joanne
M.
Gaitens
under
her
appeal,
Court
file
number
91-1762.
She
is
the
applicant’s
spouse
and
is
also
represented
by
applicants
counsel.
It
was
agreed
that
her
motion
would
stand-by
and
that
since
it
is
identical
in
every
respect
to
this
motion
the
decision
made
herein
would
be
determinative
of
and
binding
upon
her
motion.
A
statement
of
agreed
facts
and
points
of
law
was
submitted.
The
following
chronological
outline
presented
to
the
Court
during
argument
portrays
a
very
concise
and
succinct
picture
of
the
whole
matter
as
it
evolved:
Crescent
Research
and
Development
Ltd.
("Crescent")
Relevant
provisions
|
Dates
|
Events
|
Amount
|
of
the
Act
|
|
Sept.
1/84
|
1.
Commencement
of
Crescent's
|
|
|
1985
tax
year
|
|
—
|
|
—
|
|
|
Sept.
12/84
|
2.
Crescent's
first
designation
(ex
|
|
|
hibit
A)
|
$1
million
|
194(4)
|
|
Oct.
31/84
|
3.
Date
at
which
50
per
cent
pay
|
|
|
ment
required
to
be
paid
by
Crescent
|
|
|
on
account
of
its
Part
VIII
tax
|
$500,000
|
195(2)
|
|
Dec.
14/84
|
4.
Crescent's
second
designation
|
|
|
(exhibit
B)
|
$1
million
|
194(4)
|
|
Jan.
31/85
|
5.
Date
at
which
50
per
cent
pay
|
|
|
ment
required
to
be
paid
by
Crescent
|
|
|
on
account
of
its
Part
VIII
tax
|
$500,000
|
195(2)
|
|
Aug.
31/85
|
6.
End
of
Crescent's
1985
fiscal
year
|
|
|
—
its
Part
VIII
tax
return
must
be
filed
|
|
|
by
28
February
1986
|
|
Relevant
provisions
|
Dates
|
Events
|
Amount
|
of
the
Act
|
|
Oct.
31/85
|
7.
Date
upon
which
any
Part
VIII
re
|
|
|
fund
is
deemed
to
be
then
paid
on
|
|
|
account
of
Part
VIII
tax,
the
amount
|
|
|
of
which
is
ultimately
founded
upon
|
|
|
ensuing
events
(see
event
9
and
event
|
|
194(2),(3)
|
|
11(c))
|
$386,610
|
and
(5)
|
|
Feb.
27/86
|
8.
Part
VIII
return
T2115
filed
by
|
|
|
Crescent
with
its
Part
VIII
liability
|
|
|
claimed
as
|
|
195(1)
|
|
June
10/86
|
9.
Proposal
letter
of
Minister
of
Na
|
|
|
tional
Revenue
(the"Minister")
to
|
|
|
Crescent,
after
audit,
with
a
Part
VIII
|
|
|
refund
proposal
amount
for
1985
year
|
|
|
(exhibit
F)
|
$386,610
|
|
|
Oct.
26/87
|
10.
Minister's
internal
memo
recom
|
|
|
mending
court
action
following
|
|
|
Crescent's
further
submissions
in
re
|
|
|
sponse
to
event
9
(exhibit
C)
|
|
|
Nov.
25/87
|
11(a)
Crescent's
notice
of
assessment
|
|
|
for
its
1985
taxation
year
(exhibit
G),
|
|
|
$1.0
million
less
Part
VIII
refund
of
|
|
194(1),
|
|
$386,610
(plus
interest)
|
$613,398.50
|
195(2)
|
|
11(b)
Certificate
filed
in
Federal
|
|
|
Court,
Trial
Division
against
Crescent
|
|
|
(exhibit
D).
No
Part
VIII
refund
in
the
|
$1
million,
|
|
|
amount.
|
plus
interest
|
222,
223
|
|
11(c)
Writ
of
Fieri
Facias
re
Crescent
|
as
per
|
|
|
(exhibit
E)
|
certificate
|
|
|
Mar.
29/88
|
12.
Sheriff's
Nulla
Bona
(exhibit
E)
|
|
|
June
6/89
|
13.
Applicant's
notice
of
assessment
|
|
|
(exhibit
1)
made
referable
to
Cres
|
|
|
cent's
assessment,
item
11(a),
for
the
|
|
|
amount
of
the
unpaid
Part
VIII
tax,
|
|
227.1(1),
|
|
interest
and
penalties
|
$929,029.20
|
227(10)
|
The
Minister’s
assessments
of
the
applicant,
Joanne
Gaitens
and
Crescent
Research
are
all
under
appeal
to
this
Court.
The
question
of
law
raised
by
the
pleadings
is
worded
in
the
filed
statement
of
agreed
facts
and
points
of
law
thusly:
Has
the
Minister
complied
with
the
precondition
in
paragraph
227.1(2)(a)
of
the
Act?
The
applicable
portions
of
the
relevant
fiscal
provisions,
and
amendments
if
any,
relied
upon
by
the
parties
follow
the
submissions.
Submissions
of
the
applicant
The
certificate
amount
of
$1
million
registered
November
25,
1987
in
the
Federal
Court
was
the
wrong
amount
at
that
time.
The
amount
of
Crescent's
liability
for
Part
VIII
tax
had
by
then
been
acknowledged
by
the
Minister
to
be
less
because
the
amount
of
the
Part
VIII
refund
had
been
determined
and
assessed
in
the
amount
of
$386,610
on
that
very
same
day.
Thus,
the
precondition
of
paragraph
227.1(2)(a)
was
not
fulfilled
and
thus,
as
a
matter
of
law,
the
applicant
is
not
liable
under
subsection
227.1(1).
1."The
amount”
in
paragraph
227.1(2)(a)
is
the
amount
specified
in
subsection
227.1(1)
which
in
turn
is
an
amount
of
tax
payable
by
Crescent
"as
required
under
Part
VIII”.
Subsection
194(5)
in
Part
VIII
of
the
Act
provides
that
the
Part
VIII
refund
is
deemed
to
have
been
paid
on
account
of
Crescent's
Part
VIII
tax
two
months
after
its
year
end,
i.e.,
by
October
31,1985.
The
November
25,
1987
certificate
filed
in
Federal
Court
failed
to
take
this
refund
into
account
which
the
legislation
itself
deems
to
have
been
paid
some
two
years
earlier
and
which
had
been
ascertained
and
assessed
when
the
certificate
was
filed.
If
Parliament
had
intended
the
certificate
to
be
filed
for
the
$1
million
designated
amount
it
would
have
referenced
subsection
195(2)
in
subsection
227.1(1).
As
it
stands,
however,
subsection
227.1(1)
is
directed
to
the
amount
of
Crescent's
liability
under
all
of
Part
VIII
because
the
provision
is
directed
to
the
failure
to
pay
an
amount
of
tax
“as
required”
under
Part
VIII.
Part
VIII
itself
includes
the
refund
and
the
requirement
to
pay
any
outstanding
balance
upon
the
filing
of
the
Part
VIII
return
within
six
months
of
year
end.
The
proper
interpretation
of
subsection
227.1(1)
respecting
the
unpaid
amount
of
tax
as
required
under
Part
VIII
is
the
amount
unpaid
on
the
day
the
certificate
is
filed
in
Federal
Court.
Further,
the
French
version
of
paragraph
227.1(2)(a)
states
that
the
Minister
is
to
file
a
certificate
"précisant"
la
somme
pour
laquelle
la
corporation
est
responsable”
which
indicates
that
the
amount
of
the
certificate
must
be
precisely"
the
amount
of
the
corporation's
liability.
The
Collins-Robert
French
Dictionary
(2nd
ed.,
1987)
defines"
précis”
as"
precise,
exact"
and“
préciser"
as
“to
specify,
make
clear,
clarify”.
Moreover,
"précisant"
is
significant
in
that
it
was
substituted
for
spécifiant"
by
S.C.
1988,
c.
55,
subsection
172(1),
retroactive
to
1981.
The
change
to
“
précisant”
is
indicative
of
Parliament's
intent
to
require
the
certificate
to
be
filed
for
the
exact
amount
of
the
corporation's
liability.
2.
The
certificate
to
be
filed
is
governed
by
section
223.
Firstly,
it
must
reflect
an
amount
payable
under
the
Act
which
includes
all
matters
under
Part
VIII
and
secondly,
the
certified
amount
may
not
exceed
the
then
amount
payable,
or
any
part
thereof,
unpaid
under
the
Act.
3.
As
liability
for
tax
arises
under
the
Act
without
an
assessment,
so
too
does
a
deemed
payment
statutorily
arise
in
identical
manner.
In
this
vein
it
is
irrelevant
whether
the
Minister
assesses
or
not.
Here,
Crescent's
debt
of
$1
million
was
reduced
by
statutory
operation
of
the
Part
VIII
refund.
The
certificate
was
statutorily
excessive,
and
the
condition
precedent
to
the
applicant's
liability
has
not
been
met.
Submissions
of
the
respondent
The
provisions
of
paragraph
227.1(2)(a),
subsection
227.1(1)
and
those
in
Part
VIII
all
have
to
be
considered
simultaneously
to
determine
the
amount
of
tax
that
was
unpaid
when
it
was
required
to
be
paid.
That
is
the
failure
for
which
the
applicant
was
liable.
Crescent's
failure
to
pay
occurred
on
October
31,
1984
in
the
amount
of
$500,000
and
again
on
January
31,
1985
in
the
amount
of
$500,000.
That
Crescent
may
have
been
subsequently
entitled
to
a
Part
VIII
refund,
or
that
it
was
later
assessed
for
a
lesser
amount,
are
all
irrelevant.
1.
The
real
debt
arises
from
subsection
195(2).
It
did
not,
and
could
not,
arise
at
the
time
Crescent
had
failed
to
gain
enough
of
a
refund
to
offset
its
Part
VIII
tax
liability
in
whole
or
in
part.
In
this
case,
the
applicant's
liability
arose,
and
was,
for
the
$1
million
amount
under
195(2)
that
Crescent
had
failed
to
pay
when
it
was
required
to
pay.
The
certificate
must
be
in
that
amount
and
no
other.
The
Part
VIII
unpaid
amount
referenced
in
227.1(1)
in
this
case
is
$1
million.
2.
Section
223
is
permissive.
It
authorizes
certification
of
the
debt
without
any
time
constraints.
It
does
not
establish
Crescent's
liability
for
Part
VIII
tax.
If
the
unpaid
amount
ultimately
turns
out
to
be
less,
subsection
227.1(5)
applies
and
the
amount
recoverable
from
the
applicant
is
no
longer
the
amount
he
was
liable
for.
The
proper
amount
of
the
certificate
is
governed
by
the
provisions
of
195(2)
in
Part
VIII,
and
227.1(1).
The
Minister's
authority
to
assess
the
applicant
is
pursuant
to
subsection
227(10)
which
does
not
purport
to
govern
or
affect
the
certificate
amount.
3.
The
liability
to
pay
tax,
or
to
pay
any
amount
on
account
of
tax,
exists
apart
from
an
assessment
of
tax.
Crescent's
liability
is
not
affected
by
no
assessment
having
been
made
because
subsection
195(8)
incorporates
subsection
152(3)
into
Part
VIII.
4.
The
certificate
filed
in
this
case
is
valid
on
its
face;
the
applicant's
only
avenue
of
challenge
is
whether
the
certificate
is
in
the
right
amount
under
paragraph
227.1(2)(a).
Indeed,
it
is
not
open
to
Crescent
to
challenge
the
certificate
at
this
point,
their
sole
avenue
being
one
of
appealing
their
assessment.
Accordingly,
the
assessed
amount
is
irrelevant,
the
amount
referenced
in
subsection
227.1(1)
arising
substantively
from
subsection
195(2)
only.
5.
Alternatively,
it
may
factually
be
inferred
that
the
certificate
was
registered
before
Crescent's
assessment
was
issued
because
the
amount
of
Crescent's
debt
was
calculated
as
at
a
prior
time,
October
23,
1987,
in
which
interest
was
claimed
on
a
day-to-day
basis
thereafter
until
paid.
Administrative
flexibility
ought
to
be
accorded
to
allow
a
reasonable
period
of
time
to
pass
between
the
actual
date
of
debt
certification
and
its
registration.
Thusly,
the
certified
amount
was
the
right
amount
on
the
day
of
its
calculation
because
the
assessment,
which
included
the
Part
VIII
refund,
had
not
yet
been
issued.
Additionally,
this
situation
attracts
analogous
treatment
to
the
situation
in
Lambert
v.
The
Queen,
[1977]
1
F.C.
199,
[1976]
C.T.C.
611,
76
D.T.C.
6373
(F.C.A.),
wherein
it
was
held
that
a
reassessment
which
was
made
after
a
certificate
had
been
filed
neither
nullified
the
taxpayer's
liability
to
pay
the
tax
previously
assessed,
nor
had
it
affected
the
validity
of
the
certificate,
as
the
amounts
were
carried
forward
into
the
second
reassessment.
6.
The
object
and
spirit
of
paragraph
227.1(2)(a)
had
been
met
as
collection
from
Crescent
was
attempted
and
proved
to
be
unsuccessful.
The
purported
erroneous
amount
in
the
certificate
is
likened
more
to
mere
irregularity,
attracting
section
166.
The
law
The
relevant
fiscal
provisions
follow.
Part
I
—
Division
I
—
Returns,
Assessments,
Payment
and
Appeals
Assessment
152(3)
Liability
for
the
tax
under
this
Part
is
not
affected
by
an
incorrect
or
incomplete
assessment
or
by
the
fact
that
no
assessment
has
been
made.
General
166
An
assessment
shall
not
be
vacated
or
varied
on
appeal
by
reason
only
or
any
irregularity,
informality,
omission
or
error
on
the
part
of
any
person
in
the
observation
of
any
directory
provision
of
this
Act.
Part
XV
—
Administration
and
Enforcement
227(10)
The
Minister
may
assess
(a)
any
person
for
any
amount
payable
by
that
person
under.
.
.
section
227.1
and,
where
he
sends
a
notice
of
assessment
to
that
person,
Divisions
I
and
J
of
Part
I
are
applicable
with
such
modifications
as
the
circumstances
require.
227.1(1)
Where
a
corporation
.
.
.
has
failed
to
pay
an
amount
of
tax
for
a
taxation
year
as
required
under
Part.
.
.VIII,
the
directors
of
the
corporation
at
the
time
the
corporation
was
required
to
.
.
.
pay
the
amount
are
jointly
and
severally
liable,
together
with
the
corporation,
to
pay
that
amount.
.
.
.
[Emphasis
added.]
(2)
A
director
is
not
liable
under
subsection
(1),
unless
(a)
a
certificate
for
the
amount
of
the
corporation's
liability
referred
to
in
that
subsection
has
been
registered
in
the
Federal
Court
of
Canada
under
subsection
223(2)
and
execution
for
such
amount
has
been
returned
unsatisfied
in
whole
or
in
part;
[Emphasis
added.]
The
French
text
of
227.1(2)(a)
read:
Un
administrateur
n’encourt
pas
la
responsabilité
en
vertu
du
paragraphe
(1),
à
moins
que
(a)
un
certificat
spécifiant
la
somme
à
l'égard
de
laquelle
la
corporation
encourt
la
responsabilité
en
vertu
de
ce
paragraphe
n'ait
été
enregistré,
en
vertu
du
paragraphe
223(2),
à
la
Cour
fédérale
du
Canada
et
qu'il
n'y
ait
eu
défaut
d'exécution
totale
ou
partielle
à
l'égard
de
cette
somme;
[Emphasis
added.]
Paragraph
227.1(2)(a)
was
amended
by
S.C.
1988,
c.
55,
subsection
172(1)
thusly:
Paragraph
227.1(2)(a)
of
the
said
Act
is
repealed
and
the
following
substituted
therefor:
(a)
a
certificate
for
the
amount
of
the
corporation’s
liability
referred
to
in
that
subsection
has
been
registered
in
the
Federal
Court
of
Canada
under
section
223
and
execution
for
such
amount
has
been
returned
unsatisfied
in
whole
or
in
part;
(2)
Subsection
(1)
is
applicable
with
respect
to
certificates
registered
under
section
223
of
the
said
Act
after
November
12,
1981.
The
French
text
of
227.1(2)(a)
as
amended
reads:
L’alinéa
227.1(2)(a)
de
la
même
loi
est
abrogé
et
remplacé
par
ce
qui
suit:
(a)
un
certificat
précisant
la
somme
pour
laquelle
la
corporation
est
responsable
selon
ce
paragraphe
n'ait
été
enregistré
à
la
Cour
fédérale
du
Canada
en
application
de
l'article
223
et
qu'il
n'y
ait
eu
défaut
d'exécution
totale
ou
partielle
à
l'égard
de
cette
somme;
[Emphasis
added.]
227.1(5)
Where
execution
referred
to
in
paragraph
(2)(a)
has
issued,
the
amount
recoverable
from
a
director
is
the
amount
remaining
unsatisfied
after
execution.
Part
VIII
—
Refundable
Tax
on
Corporation
in
Respect
of
Scientific
Research
and
Experimental
Development
Tax
Credit
194(1)
Every
corporation
shall
pay
a
tax
under
this
Part
for
a
taxation
year
equal
to
50
per
cent
of
the
aggregate
of
all
amounts
each
of
which
is
an
amount
designated
under
subsection
(4)
in
respect
of
a
share
or
debt
obligation
issued
by
it
in
the
year
or
a
right
granted
by
it
in
the
year.
(2)
In
this
Act,
the
"Part
VIII
refund"
of
a
corporation
for
a
taxation
year
means
an
amount
equal
to
the
lesser
of
.
.
.
(4)
Every
taxable
Canadian
corporation
may,
by
filing
a
prescribed
form
with
the
Minister
at
any
time
on
or
before
the
last
day
of
the
month
immediately
following
a
month
in
which
it
issued
a
share
or
debt
obligation
or
granted
a
right
under
a
scientific
research
and
experimental
development
financing
contract
.
.
.
designate,
for
the
purposes
of
this
Part
and
Part
I,
an
amount
in
respect
of
that
share,
debt
obligation
or
right
not
exceeding
the
amount
by
which
.
.
.
(5)
For
the
purposes
of
this
Act,
the
Part
VIII
refund
of
a
corporation
for
a
taxation
year
shall
be
deemed
to
be
an
amount
paid
on
account
of
its
tax
under
this
Part
for
the
year
on
the
last
day
of
the
second
month
following
the
end
of
the
year.
[Emphasis
added.]
195(1)
Every
corporation
that
is
liable
to
pay
tax
under
this
Part
for
a
taxation
year
shall,
on
or
before
the
day
on
or
before
which
it
is
required
to
file
its
return
of
income
under
Part
I
for
the
year,
file
with
the
Minister
a
return
for
the
year
under
this
Part
in
prescribed
form.
(2)
Where,
in
a
particular
month
in
a
taxation
year,
a
corporation
issues
a
share
or
debt
obligation,
or
grants
a
right,
in
respect
of
which
it
designates
an
amount
under
section
194,
the
corporation
shall,
on
or
before
the
last
day
of
the
month
following
the
particular
month,
pay
to
the
Receiver
General
on
account
of
its
tax
payable
under
this
Part
for
the
year
an
amount
equal
to
50
per
cent
of
the
aggregate
of
all
amounts
so
designated.
[Emphasis
added.]
(8)
Sections
.
.
.
,
152
.
.
.
are
applicable
to
this
Part
with
such
modifications
as
the
circumstances
require
and,
for
greater
certainty,
the
Minister
may
assess,
before
the
end
of
a
taxation
year,
an
amount
payable
under
this
Part
for
the
year.
Part
XV
—
Administration
and
Enforcement
Collection
222
All
taxes,
interest,
penalties,
costs
and
other
amounts
payable
under
this
Act
are
debts
due
to
Her
Majesty
and
recoverable
as
such
in
the
Federal
Court
of
Canada
or
any
other
court
of
competent
jurisdiction
or
in
any
other
manner
provided
by
this
Act.
223(1)
An
amount
payable
under
this
Act
that
has
not
been
paid
or
such
part
of
an
amount
payable
under
this
Act
as
has
not
been
paid
may
be
certified
by
the
Minister.
(2)
On
production
to
the
Federal
Court
of
Canada,
a
certificate
made
under
this
section
shall
be
registered
in
the
Court
and
when
registered
has
the
same
force
and
effect,
and
all
proceedings
may
be
taken
thereon,
as
if
the
certificate
were
a
judgment
obtained
in
the
said
Court
for
a
debt
of
the
amount
specified
in
the
certificate
plus
interest
to
the
day
of
payment
as
provided
for
in
this
Act.
Section
223
was
amended
by
S.C.
1988,
c.
55,
s.
168
as
follows:
Section
223
of
the
said
Act
is
repealed
and
the
following
substituted
therefor:
223(1)
For
the
purposes
of
subsection
(2),
"an
amount
payable”
by
a
person
means
any
or
all
of
(a)
an
amount
payable
under
this
Act
by
the
person;
[the
other
paragraphs
are
not
applicable]
(2)
An
amount
payable
by
a
person
(in
this
section
referred
to
as
a“
debtor”)
that
has
not
been
paid
or
any
part
of
an
amount
payable
by
the
debtor
that
has
not
been
paid
may
be
certified
by
the
Minister
as
an
amount
payable
by
the
debtor.
(3)
On
production
to
the
Federal
Court
of
Canada,
a
certificate
made
under
subsection
(2)
in
respect
of
a
debtor
shall
be
registered
in
the
Court
and
when
so
registered
has
the
same
effect,
and
all
proceedings
may
be
taken
thereon,
as
if
the
certificate
were
a
judgment
obtained
in
the
Court
against
the
debtor
for
a
debt
in
the
amount
certified
plus
interest
thereon
to
the
day
of
payment
as
provided
by
law
and,
for
the
purposes
of
any
such
proceedings,
the
certificate
shall
be
deemed
to
be
a
judgment
of
the
Court
against
the
debtor
for
a
debt
due
to
Her
Majesty
enforceable
in
the
amount
certified
plus
interest
thereon
to
the
day
of
payment
as
provided
by
law.
Analysis
Through
227.1
(2)(a)
Parliament
has
made
the
registration
of
a
certificate
in
the
Federal
Court
under
223(2)
a
condition
precedent
to
the
applicant's
liability
for
Crescent's
failure
to
pay
an
amount
"as
required
under
Part
VIII”
of
the
Act.
The
interpretative
approaches
advanced
by
applicant's
counsel
are
analytically
persuasive
and
are,
in
the
main,
preferred
to
those
advanced
on
behalf
of
the
respondent.
In
my
view
the
subject
certificate
registered
in
this
case
did
not
correspond
to
the
amount
contemplated
and
mandated
by
227.1(1)
for
the
following
reasons.
Parliament
employed
broad
terminology
in
the
phrase
"as
required
by
Part
VIII"
which,
prima
fade,
incorporates
all
matters
under
that
Part.
Payment
of
the
designated
amount
by
the
end
of
the
following
month
so
mandated
by
195(2)
crystallized
Crescent's
liability
at
that
time.
That
is
but
one
matter
under
Part
VIII.
The
refund
under
Part
VIII,
which
is
deemed
to
have
been
paid
on
account
of
its
tax
under
that
Part
pursuant
to
194(5),
is
another.
Year
end
filing
requirements
are
also
included,
as
well
as
payment
of
Part
VIII
tax
then
owing
plus
interest
because
of
non-payment
at
a
prior
time
as
required
thereunder.
Of
particular
note
is
that
the
phraseology
in
227.1(1)
is
not
directed
to
any
singular
event.
Liability
to
pay
tax,
or
to
pay
an
amount
on
account
of
tax,
is
not
dependent
on
any
notice
of
assessment
being
issued.
In
keeping
with
the
principle
that
liability
for
tax
arises
by
virtue
of
the
Act,
any
satisfaction
thereof
arising
from
the
same
source
must
be
operative
in
similar
manner.
However,
it
still
remains
that
the
Part
VIII
tax
itself,
and
payments
made
on
account
of
that
tax,
are
mutually
exclusive
concepts.
The
refund
under
Part
VIII
does
not
operate
to
reduce
the
Part
VIII
tax;
it
is
and
remains
an
amount
paid
on
account
of
the
Part
VIII
tax:
c.f.
Thompson
v.
M.N.R.,
[1989]
1
C.T.C.
2134,
89
D.T.C.
66
(T.C.C.)
at
pages
2136-37
(D.T.C.
68).
Registration
of
a
certificate
is
not
dependent
upon
a
notice
of
assessment.
The
certificate
does
not
fix
liability
for
tax,
nor
does
it
determine
the
due
date
for
payment
of
the
tax.
Indeed
152(3),
being
incorporated
into
Part
VIII
through
195(8),
specifically
provides
that
liability
for
tax
is
not
to
be
affected
by
no
assessment
having
been
made.
Nonetheless,
there
appears
to
be
no
good
reason
to
deny
or
diminish
the
effectiveness
of
Crescent's
statutory
Part
VIII
refund
payment
once
it
had
been
determined
and
assessed
by
the
Minister.
This
is
what
distinguishes
Curylo
v.
M.N.R.,
[1992]
1
C.T.C.
2389,
92
D.T.C.
1250
(T.C.C.)
from
this
case.
There,
one
of
the
taxpayer's
arguments
was
that
the
certificate
should
have
included
a
Part
VIII
refund
which,
at
that
time,
had
not
been
determined.
The
Court
found
this
was
not
fatal
because
it
was
only
necessary
that
the
certificate
amount
be
correct
at
the
time
of
registration.
Applicant's
counsel
urged
the
words
"spécifiant"
and
“précisant”
used
in
the
French
text
of
227.1(2)(a),
as
amended,
imply
specificity
or
precision
as
to
the
amount.
In
other
words
they
modify
"la
somme”.
I
disagree.
I
believe
they
mean
stating
the
sum
or
indicating
the
sum,
or
for
the
sum
which
produces
harmonization
with
the
English
text,
“for
the
amount”.
Paragraph
227.1(2)(a)
provides
that
the
certificate
is
to
be
filed
under
223.
An
examination
of
223(2)
indicates
that,
by
its
wording,
two
situations
are
contemplated.
One
is
expressed
in
terms
of
an
amount
payable
rather
than
an
amount
to
be
paid.
The
other
is
reflective
of
an
unpaid
"part"
of
an
amount
payable.
That
two
situations
are
contemplated
is
expressed
by
the
disjunctive
"or".
Given
the
broad
nomenclature
employed
in
227.1(1),
and
given
that
223(2)
contemplates
Ministerial
certification
of
any
part
of
an
amount
payable
that
had
not
been
paid,
and
given
that
the
amount
of
the
Part
VIII
refund
was
actually
assessed
on
November
25,
1987
triggering
a
deemed
payment
under
194(5),
the
amount
of
the
certificate
registered
on
that
day
did
not
conform
to
or
comply
with
227.1(2)(a),
227.1(1)
and
223(2)
and
therefore
was
not
for
the
correct
amount
at
that
time.
Interpretative
integration
is
possible
between
these
three
provisions,
thus
achieving
harmony
and
concordance
between
them.
With
respect
to
the
claim
for
administrative
accommodation,
I
fail
to
see
how
it
could
or
should
be
introduced
here.
Firstly,
the
engagement
of
vicarious
liability
upon
a
taxpayer
is
usually
antipathetic
to
such
notions.
Secondly,
and
more
importantly,
the
need
for
the
requested
accommodation
arises
only
because
the
Minister’s
employees
failed
to
ensure
the
ordering
of
their
own
activities.
Accordingly,
this
relief
would
not
be
appropriate.
Lastly,
the
One'll
Lambert
situation
is
too
dissimilar
to
be
of
any
assistance.
The
erroneous
amount
in
the
certificate
in
the
case
at
bar
is
fundamental.
It
goes
beyond
mere
error
or
irregularity
contemplated
within
166
or
152(3).
Determination
The
answer
to
the
question
of
law,
“Has
the
Minister
complied
with
the
precondition
in
paragraph
227.1(2)(a)
of
the
Act?”
is
no.
Judgment
This
determination
has
the
result
of
disposing
of
the
appeal
in
its
entirety.
The
motion
is
allowed.
The
applicant
is
not
liable
under
subsection
227.1(1)
of
the
Act
in
respect
of
the
assessment
issued
to
him
by
the
Minister
of
National
Revenue
on
June
6,
1989,
the
appeal
is
allowed
and
the
assessement
is
vacated.
There
will
be
one
set
of
costs
on
a
party-to-party
basis
to
be
shared
with
the
motion
and
appeal
of
Joanne
M.
Gaitens,
supra,
but
with
disbursements
in
each
appeal.
Motion
and
appeal
allowed.
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