Reed,
J.:—The
plaintiff
filed
a
statement
of
claim,
on
February
14,
1986,
appealing
a
decision
of
the
Tax
Court
of
Canada
whereby
the
plaintiff's
claim
for
the
payment
of
taxes
allegedly
owing
by
the
defendant
was
disallowed.
This
disposition
of
the
plaintiff's
claim,
by
the
Tax
Court,
was
based
on
the
fact
that
the
notice
of
reassessment
sent
to
the
defendant
in
December
of
1982
relied
on
subsection
74(5)
of
the
Income
Tax
Act,
a
section
which
at
that
time
had
been
repealed.
The
plaintiff's
statement
of
claim
before
this
Court
refers
to
this
fact
but
adds
that
following
the
notices
of
objection
filed
by
the
taxpayer,
the
Minister
acknowledged
his
error
and
“correctly
confirmed
his
reassessment
on
the
basis
that
the
defendant's
farm
operation
was
a
sole
proprietorship
and
not
a
partnership
.
.
.”.
The
defendant
argues
that
the
plaintiff's
statement
of
claim
should
be
struck
out
because
it
discloses
no
cause
of
action,
the
reassessment
of
December
6,
1982
having
been
based
on
a
repealed
section
of
the
Income
Tax
Act.
(This
argument
was
successful
before
the
Tax
Court.)
The
plaintiff
argues
that
the
fact
that
an
assessment
was
originally
made
in
reliance
upon
a
repealed
provision
of
the
Income
Tax
Act
does
not
render
it
a
nullity
providing
the
amount
assessed
is
not
changed
and
is
supportable
on
the
basis
of
another
provision
of
the
Act.
And,
the
plaintiff
argues
that,
in
any
event,
a
motion
by
way
of
section
419(1)(a)
of
the
Rules
of
Court
to
strike
the
plaintiff’s
statement
of
claim
as
disclosing
no
cause
of
action
is
not
an
appropriate
way
of
proceeding
on
the
facts
of
this
case.
A
motion
to
strike,
pursuant
to
Rule
419(1)(a),
can
have
no
evidence
adduced
to
support
or
refute
it;
it
should
not
be
used
when
there
are
arguable
questions
of
fact
or
law;
it
is
only
appropriate
to
grant
such
a
motion
when
it
is
clear
beyond
all
reasonable
doubt,
from
the
face
of
the
pleadings,
that
the
plaintiff's
claim
cannot
succeed.
I
agree
with
the
plaintiff's
position
that
a
motion
pursuant
to
Rule
419(1)(a)
is
not
appropriate
on
the
facts
of
this
case.
It
might
very
well
be
appropriate
for
the
defendant
to
bring
a
motion
pursuant
to
Rule
474
for
the
determination
of
a
question
of
law
which
could
be
determinative
of
the
appeal.
But
such
a
determination
would
then
proceed
on
the
basis
of
an
agreed
statement
of
facts
and
by
reference
to
the
relevant
documentary
evidence
(the
notices
of
reassessment,
objection
and
information).
I
cannot
find
on
the
basis
of
the
statement
of
claim
alone,
and
without
reference
to
the
appropriate
documentary
evidence
that
the
plaintiff's
claim
is
beyond
all
reasonable
doubt
without
merit.
Accordingly,
the
defendant's
motion
will
be
dismissed.
Motion
dismissed.
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