Ryan,
J:—This
is
an
appeal
from
the
order
of
the
Trial
Division
dated
November
10,
1980,
dismissing
an
application
by
the
appellant
for
an
order
in
the
nature
of
certiorari
in
respect
of
a
stay
of
proceedings,
filed
under
sub-
section
239(4)
of
the
Income
Tax
Act,
staying
an
appeal
brought
by
the
appellant
under
the
Income
Tax
Act
pending
the
final
determination
of
the
outcome
of
a
prosecution
under
section
239.
Subsection
239(4)
provides:
Where,
in
any
appeal
under
this
Act,
substantially
the
same
facts
are
at
issue
as
those
that
are
at
issue
in
a
prosecution
under
this
section,
the
Minister
may
file
a
stay
of
proceedings
with
the
Tax
Review
Board
or
the
Federal
Court,
as
the
case
may
be,
and
thereupon
the
proceedings
before
that
Board
or
Court
are
stayed
pending
final
determination
of
the
outcome
of
the
prosecution.
The
appellant
submitted
that
the
proceeding
sought
to
be
stayed
is
not
an
appeal
under
the
Act.
The
proceeding
was
commenced
by
a
statement
of
claim
filed
in
the
Federal
Court.
The
submission,
as
I
understood
it,
was
that
the
proceeding
was
an
action,
not
an
appeal.
The
“relief
sought”
by
the
statement
of
claim
is
that
the
claim
.
.be
allowed
in
full.
.
and
that
the
reassessments
in
issue
should
be
varied
or
referred
back
to
the
Minister
for
reassessment
so
as
to
exclude
certain
amounts
from
the
.
.inoome
of
the
plaintiff”.
The
appellant
also
submitted
that
he
had
filed
a
notice
of
objection
to
the
reassessments,
but
had
received
no
reply;
the
Minister
not
having
replied,
his
proceeding,
he
said,
could
not
be
an
appeal.
The
proceeding
initiated
by
the
statement
of
claim
is
an
appeal
under
the
Act.
In
saying
this,
I
cite
subsection
172(2)
of
the
Income
Tax
Act,
and
Division
D
of
the
Federal
Court
Rules.
I
also
have
regard
to
the
relief
sought
in
the
statement
of
claim.
The
appellant
also
submitted
that
the
facts
at
issue
in
the
appeal
are
not
substantially
the
same
as
those
at
issue
in
the
prosecution
of
the
appellant
under
section
239.
I
am
of
the
opinion
that
this
submission
is
unsustainable.
There
are
certain
variations
in
amount,
but
there
is
substantial
identity
in
the
facts
at
issue.
The
appellant
made
several
other
submissions
which
in
my
view
lack
substance.
I
would
dismiss
the
appeal
with
costs.
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