Jerome,
A.C.J.:—In
this
application
the
plaintiff
seeks
an
order
in
the
nature
of
certiorari
quashing
the
decision
of
the
Minister
of
National
Revenue
to
issue
two
assessments
and
a
reassessment
of
income
tax
against
the
plaintiff,
on
the
grounds
that
the
defendant
failed
to
file
the
assessments
with
due
dispatch
and,
at
the
time
of
their
issue,
the
plaintiff
was
a
dissolved
corporation.
By
resolution
dated
August
31,
1984
the
shareholders
of
the
plaintiff
corporation
resolved
that
the
corporation
be
voluntarily
dissolved.
On
September
4,
1984
the
plaintiff
filed
its
income
tax
return
for
the
period
ending
August
31,
1984
and
requested
the
Minister
of
National
Revenue
to
assess
its
final
income
tax
return.
The
Minister
did
so
and
on
December
17,
1984
issued
a
notice
of
assessment
which
assessed
the
plaintiff's
tax
payable
in
respect
of
its
1984
taxation
year
as
being
in
accordance
with
the
tax
return
filed.
On
March
27,
1985
the
Minister
of
National
Revenue
of
the
province
of
Ontario
issued
a
consent
to
the
voluntary
dissolution
of
the
plaintiff.
The
corporation
was
dissolved
by
articles
of
dissolution
which
received
their
certificate
on
April
3,
1985.
A
year
and
a
half
later,
the
defendant
issued
a
notice
of
reassessment
dated
October
14,
1986,
purporting
to
reassess
the
plaintiff
for
federal
taxes
of
$33,391.70.
The
reassessment
was
a
result
of
the
defendant
treating
the
gain
on
the
disposition
of
certain
leasehold
interest
by
the
plaintiff
as
income
rather
than
a
capital
gain,
thereby
reclassifying
net
rental
income
earned
by
the
plaintiff
in
the
year
as
active
business
income
instead
of
investment
income.
On
December
8,
1986
the
plaintiff
filed
a
notice
of
objection
but
the
defendant
confirmed
the
reassessment
by
notice
of
confirmation
dated
January
12,
1988.
In
addition
to
the
reassessment,
the
defendant
issued
two
notices
of
assessment
to
the
plaintiff
dated
September
11,
1987
for
tax
owing
under
Part
III
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the"Act"),
in
the
amounts
of
$75,000
and
$34,500
respectively.
The
plaintiff
filed
notices
of
objection
on
September
21,
1987
but
the
defendant
confirmed
the
assessments
by
notices
of
confirmation
dated
February
17,
1988.
The
plaintiff
appealed
to
the
Tax
Court
of
Canada
which,
in
a
judgment
dated
October
26,
1988
ruled
that
as
a
dissolved
corporation
the
plaintiff
could
not
sustain
its
appeals
so
the
Court
lacked
jurisdiction
to
consider
the
validity
of
the
assessments.
In
order
for
the
Minister
of
National
Revenue
to
issue
valid
assessments
against
a
dissolved
Ontario
corporation,
his
act
must
fall
within
the
parameters
of
section
241
of
the
Ontario
Business
Corporations
Act,
1982,
S.O.
1982,
c.
4,
as
amended,
which
provides
as
follows:
241.
(1)
Notwithstanding
the
dissolution
of
a
corporation
under
this
Act,
(a)
a
civil,
criminal
or
administrative
action
or
proceeding
commenced
by
or
against
the
corporation
before
its
dissolution
may
be
continued
as
if
the
corporation
had
not
been
dissolved;
(b)
a
civil,
criminal
or
administrative
action
or
proceeding
may
be
brought
against
the
corporation
within
five
years
after
its
dissolution
as
if
the
corporation
had
not
been
dissolved;
and
(c)
any
property
that
would
have
been
available
to
satisfy
any
judgment
or
order
if
the
corporation
had
not
been
dissolved
remains
available
for
such
purpose.
The
defendant
submits
that
the
assessments
in
question
were
in
compliance
with
subsection
241(1)(b)
in
that
they
were
civil
or
administrative
actions
or
proceedings
brought
within
five
years
of
April
3,
1985,
the
date
of
the
plaintiff
corporation's
dissolution,
and
I
accept
that
argument.
The
issuing
of
a
notice
of
assessment
or
reassessment
under
the
Income
Tax
Act
is
an
administrative
proceeding
within
the
meaning
of
paragraph
241(1)(b)
of
the
Business
Corporations
Act,
R.S.O.
1980,
c.
54.
The
facts
demonstrate
that
the
impugned
assessments
were
issued
within
the
prescribed
five
year
limitation
period
and
therefore
valid.
However,
the
defendant's
submission,
that
the
Act
does
not
confer
upon
a
dissolved
corporation
the
means
by
which
to
defend
itself
in
the
event
that
a
"civil,
criminal
or
administrative
action
or
proceeding"
is
commenced
against
it
subsequent
to
its
dissolution,
is
untenable.
Paragraph
241(1)(b)
of
the
Act
contemplates
that
where
an
action
is
brought
against
a
dissolved
corporation,
the
matter
is
to
proceed
as
it
normally
would
have;
i.e.,
"as
if
the
corporation
had
not
been
dissolved".
I
do
not
agree
that
the
right
to
take
advantage
of
an
appeal
procedure
in
the
context
of
administrative
proceedings
or
the
right
to
defend
itself
in
the
case
of
civil
litigation
or
criminal
charges
must
be
conferred
upon
a
dissolved
corporation
by
the
statute
which
authorizes
the
commencement
of
the
action.
A
dissolved
corporation
has
no
status
to
commence
legal
proceedings,
but
having
determined
that
the
issuance
of
a
notice
of
assessment
or
reassessment
by
the
Minister
is
an
administrative
proceeding
within
the
meaning
of
paragraph
241(1)(b),
I
reject
the
argument
that
the
plaintiffs
appeal
to
this
Court
from
the
decision
of
the
Tax
Court
of
Canada
represents
the
initiation
of
legal
proceedings.
Once
the
Minister
issues
a
notice
of
assessment
or
a
notice
of
reassessment
against
a
taxpayer,
it
must
be
open
to
the
taxpayer
to
exercise
his
rights
of
appeal
as
set
out
in
the
Income
Tax
Act.
These
provisions
permit
the
taxpayer
to
file
a
notice
of
objection,
and
if
the
assessment
is
confirmed
by
the
Minister,
to
launch
an
appeal
to
the
Tax
Court
of
Canada,
and
at
the
relevant
dates
in
this
case,
to
this
Court.
Although
the
appeal
to
this
Court
is
a
trial
de
novo,
it
is
not,
in
my
opinion,
the
commencement
of
an
action,
rather
it
is
a
final
stage
of
the
appeal
procedure.
The
denial
of
the
fundamental
right
of
this
taxpayer
to
court
scrutiny
of
this
obligation
to
pay
would
be
manifestly
unjust.
Indeed,
it
has
been
established
since
the
decision
of
the
Supreme
Court
of
Canada
in
Johnson
v.
M.N.R.,
[1948]
S.C.R.
486,
[1948]
C.T.C.
195,
3
D.T.C.
1182
that
a
judicial
appeal
taken
against
an
assessment
(or
reassessment)
continues
to
be
directed
against
the
assessment
(or
reassessment)
as
such,
and
it
was
further
established
as
far
back
as
1953
that
the
character
of
such
an
appeal
remains
unchanged
even
where
it
is
conducted
by
way
of
trial
de
novo
before
this
Court.
(See
The
Queen
v.
Lavers,
[1978]
C.T.C.
341,
78
D.T.C.
6230,
at
pages
342-44
(D.T.C.
6231-32)
and
the
cases
referred
to
therein.)
It
is
therefore
clear
that
under
the
appeal
procedures
provided
by
the
Income
Tax
Act,
a“
"proceeding"
as
that
word
is
used
in
section
241
of
the
Ontario
Business
Corporations
Act
is
commenced
by
the
issuance
of
an
assessment
(or
reassessment)
and
that
all
further
steps
taken
by
a
taxpayer
in
the
contestation
thereof
do
not
constitute
the
commencement
of
proceedings,
but
are
consequential
upon
the
assessing
action
of
the
Minister.
The
defendant's
motion
striking
out
the
plaintiff's
statement
of
claim
on
the
grounds
that
the
plaintiff
has
no
capacity
to
conduct
this
action
is
dismissed.
Having
so
found,
it
is
not
necessary
for
me
to
deal
with
the
merits
of
the
plaintiff's
section
18
application
for
an
order
in
the
nature
of
certiorari.
That
matter
is
adjourned
sine
die.
No
order
as
to
costs.
Reasons
for
order
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