Heald,
J:—This
is
a
section
28
application
to
review
and
set
aside
a
decision
of
the
Tax
Review
Board
(hereafter
the
Board)
made
by
F
J
Dubrule,
QC,
Assistant
Chairman
of
the
Board
on
April
6,
1979.
The
pertinent
facts
may
be
summarized
as
follows:
The
applicant
filed
a
timely
notice
of
appeal
to
the
Board
in
December
of
1977
from
an
income
tax
reassessment
for
the
1974
taxation
year,
the
notice
of
appeal
being
signed
on
the
applicant’s
behalf
by
his
firm
of
solicitors.
A
notice
of
hearing
dated
April
27,
1978
was
sent
to
that
firm
of
solicitors
and
to
the
Department
of
National
Revenue,
Taxation,
to
the
effect
that
the
hearing
would
take
place
on
June
5,
1978.
The
same
firm
of
solicitors,
on
behalf
of
the
applicant
wrote
to
the
Board
on
May
12,
1978
advising
that
applicant’s
appeal
“is
hereby
withdrawn’’
and
stating
further:
“We
understand
that
no
further
action
need
be
taken
to
terminate
this
matter
but
would
appreciate
receiving
from
you
confirmation
of
this.’’
A
copy
of
that
letter
was
sent
to
the
applicant.
The
Board
replied
to
that
letter
under
date
of
May
17,
1978
and
stated
therein,
inter
alia,
as
follows:
For
your
information,
the
Board
has
departed
from
its
policy
of
issuing
Judgment
in
appeal
withdrawn,
discontinued
or
abandoned.
Therefore,
the
matter
is
now
concluded
so
far
as
the
Board
is
concerned.
The
appeal
was
never
heard.
Early
in
1979,
the
applicant
instructed
his
present
solicitor
to
take
whatever
steps
may
be
necessary
to
have
the
appeal
heard
by
the
Board.
Accordingly,
that
solicitor
brought
a
notice
of
motion
to
the
Board
for
an
order
directing
the
setting
of
a
new
date
for
the
hearing
of
the
appeal.
The
Assistant
Chairman
of
the
Board,
in
dealing
with
the
motion
stated
the
issue
as
follows
(Case,
p
34):
The
real
issue
thus
becomes—Does
a
valid,
authorized
letter
of
withdrawal
nullify
a
valid,
existing
notice
of
appeal,
or
is
it
(the
valid
letter
of
withdawal),
in
effect,
a
nullity
until
a
formal
judgment
has
been
issued
by
this
Board
acting
on
it?
He
then
proceeded
to
decide
the
application
in
the
following
manner
(case,
p
35):
The
application
comes
down
to
the
question
of
whether
or
not
there
is
now
a
notice
of
appeal
in
the
inventory
of
this
Board
which
should
have
been,
but
has
not
been,
set
down
for
hearing.
If
there
is
still
such
a
notice
of
appeal
in
this
case,
then
of
course
it
should
be
set
down
for
hearing
in
the
not
too
distant
future.
In
the
circumstances
of
this
case,
there
was
a
valid
letter
of
withdrawal
received
by
this
Board
which
clearly
expressed
that
the
appeal
was
closed.
Why
is
a
formal
judgment
necessary?
What
does
it
achieve?
As
I
view
section
9(3)
of
the
Tax
Review
Board
Act,
that
section
refers
to
a
case
which
is
still
in
dispute
and
is
being
heard
by
a
member.
It
has
no
application
in
a
case
where
a
valid
letter
of
withdrawal
has
been
filed.
A
judgment
dismissing
the
appeal,
as
suggested
by
counsel
for
the
appellant,
would
only
tell
the
appellant
that
which
he
knew
from
the
moment
his
solicitor
filed,
on
his
behalf,
the
letter
of
withdrawal
and
stated:
“no
further
action
need
be
taken
to
terminate
this
matter”.
The
result
is
that
there
is
no
appeal
in
this
matter
which
I
can
direct
the
registrar
of
this
Board
to
set
down
for
hearing.
An
Order
will
go
dismissing
the
application.
In
my
view,
the
Assistant
Chairman
was
in
error
in
deciding
as
he
did.
Section
7
of
the
Tax
Review
Board
Act,
SC
1970-71-72,
c
11,
sets
out
the
duties
of
the
Board:
The
duties
of
the
Board
are
to
hear
and
dispose
of
appeals
to
the
Board
on
matters
arising
under
the
Income
Tax
Act,
the
Canada
Pension
Plan,
the
Estate
Tax
Act
and
any
other
Act
of
the
Parliament
of
Canada
in
respect
of
which
an
appeal
is
provided
under
any
such
Act
to
the
Board.
Subsection
9(3)
of
that
Act
further
provides:
(3)
Every
appeal
to
the
Board
and
all
business
arising
out
of
the
appeal
shall
be
heard,
determined
and
disposed
of
by
a
single
member;
and
where
a
member
has
been
assigned
by
the
Chairman
to
preside
at
a
hearing
in
respect
of
an
appeal,
he
constitutes
the
Board
in
relation
to
that
appeal
and
all
business
arising
out
of
it
unless
such
assignment
is
revoked
and
another
member
is
assigned
in
relation
thereto.
Subsection
171(1)
of
the
Income
Tax
Act
is
also
relevant
and
it
provides:
Disposal
of
Appeal
(1)
The
Board
may
dispose
of
an
appeal
by
(a)
dismissing
it,
or
(b)
allowing
it
and
(i)
vacating
the
assessment,
(ii)
varying
the
assessment,
or
(iii)
referring
the
assessment
back
to
the
Minister
for
reconsideration
and
reassessment.
It
is
my
opinion
that
section
7
of
the
Act
requires
the
Board
to
hear
and
dispose
of
appeals
to
the
Board
while
subsection
(3)
of
section
9
of
the
Act
stipulates
that
every
such
appeal
and
all
business
arising
out
of
it
shall
be
heard,
determined
and
disposed
of
by
a
single
member
of
the
Board.
In
this
case,
the
only
action
taken
by
the
Board
in
response
to
the
letter
of
withdrawal
from
the
applicant’s
solicitor
was
the
letter
of
May
17,
1978
referred
to
supra
which
is
signed,
not
by
a
member
of
the
Board,
but
by
Michael
L
Artel
le,
Senior
Court
Registrar.
Respondent’s
counsel
conceded
that
there
was
nothing
in
the
record
to
show
that
any
action
was
taken
in
respect
of
this
appeal
by
any
member
of
the
Board.
A
reading
of
section
7
together
with
section
9
makes
it
clear,
in
my
Opinion,
that
an
appeal
can
be
disposed
of
only
by
a
member
of
the
Board,
and
not
be
administrative
action
pursuant
to
some
policy
of
the
Board
by
an
employee
of
the
Board.
The
statute
requires
a
member
of
the
Board,
by
affirmative
action,
such
as
an
order
of
judgment,
to
dispose
of
the
appeal.
Respondent’s
counsel
submitted
that
the
effect
of
the
letter
of
May
12,
1978
was
to
annul
or
discontinue
the
notice
of
appeal
so
that
from
that
point
in
time
there
was
no
valid
notice
of
appeal.
I
do
not
read
the
statutory
provisions
referred
to
supra
as
permitting
such
a
result.
If
Parliament
had
intended
to
provide
that
one
means
of
disposing
of
an
appeal
could
be
by
way
of
filing
a
notice
of
discontinuance,
it
would
have
been
an
easy
matter
to
so
provide
in
the
statute.
There
are
only
two
ways
in
which
the
present
legislation
provides
for
disposing
of
appeals
to
the
Board.
One
way
is
in
the
manner
discussed
above,
by
virtue
of
sections
7
and
9
of
the
Tax
Review
Board
Act.
The
other
is
provided
in
paragraph
171(1)(a)
of
the
Income
Tax
Act
(supra)
which
provides
for
dismissal.
However,
in
both
cases,
the
legislation
provides
for
action
by
the
Board
itself.
The
respondent
also
submitted
that
the
Board
has
for
matters
necessary
or
proper
for
the
due
exercise
of
its
jurisdiction
all
such
powers,
rights
and
privileges
as
are
vested
in
a
superior
court
of
record
pursuant
to
subsection
8(2)
of
the
Tax
Review
Board
Act*
and
then
refers
to
the
Federal
Court
Rules
and
to
the
Ontario
Rules
of
Practice,
as
being
but
two
examples
of
procedures
providing
for
discontinuance
or
withdrawal
of
actions
in
the
Superior
courts.
The
answer
to
this
submission
is
that
the
powers
granted
in
subsection
(2)
of
section
8
relate
to
the
due
exercise
of
the
Board’s
jurisdiction.
The
Board’s
jurisdiction
is
set
out
in
sections
7
and
9
supra.
Accordingly,
subsection
8(2)
cannot
be
invoked
to
extend
the
jurisdiction
given
to
the
Board
under
sections
7
and
9.
As
I
read
subsection
8(2),
it
merely
confers
on
the
Board,
the
ancillary
powers
of
a
superior
court,
to
properly
exercise
the
jurisdiction
given
to
it
by
sections
7
and
9
but
it
does
not
confer
upon
the
Board
added
jurisdiction.
For
the
above
reasons,
I
have
concluded
that
the
Assistant
Chairman
erred
in
refusing
to
grant
the
applicant’s
request
to
have
his
appeal
heard.
I
would
therefore
allow
the
section
28
application,
set
aside
the
Decision
of
the
Board
dated
April
6,
1979
and
refer
the
matter
back
to
the
Board
for
reconsideration
in
a
manner
not
inconsistent
with
these
reasons.
Kerr,
DJ:—As
indicated
in
the
reasons
for
judgment
of
Heald,
J,
a
notice
of
appeal
from
an
income
tax
reassessment
was
filed
with
the
Tax
Review
Board
on
behalf
of
the
applicant;
and
subsequently
a
letter
was
sent
to
the
Board
on
his
behalf
withdrawing
the
appeal.
Thereupon
a
letter
dated
May
17,
1978,
signed
by
Michael
L
Artelle,
senior
Court
Registrar,
indicated
and
notified
the
disposal
that
was
made
of
the
matter.
It
is
not
clear
whether
the
treatment
of
the
letter
withdrawing
the
appeal
was
a
departure
from
the
Board’s
policy
of
issuing
judgment
in
an
appeal
withdrawn—or
whether
the
policy
itself
had
been
discontinued.
Whatever
the
Board’s
policy
may
be,
I
understand
that
the
Board
has
not
made
any
“rule”
dealing
specifically
with
withdrawals
of
appeals.
The
primary
and
fundamental
issue
between
the
parties
is
the
reassessment
of
the
applicant’s
income
tax.
The
merits
of
that
issue
have
not
been
dealt
with
by
the
Board.
The
more
limited
issue
before
the
Court
is
related
to
the
former.
Subsection
9(2)
of
the
Tax
Review
Board
Act
directs
the
Board
to
deal
with
appeals
“informally
and
expeditiously
as
the
circumstances
and
considerations
of
fairness
will
permit”.
In
the
circumstances,
I
agree
with
the
disposal
of
the
application
as
proposed
by
Heald,
J.
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