Reed, J.:—The defendant brings a motion to have the plaintiff's statement of claim struck out because the plaintiff is a non-existent company. There is no doubt that the plaintiff was dissolved on May 17, 1988, pursuant to subsection 240(3) of the Ontario Business Corporations Act, 1982, S.Q. 1982, c. 4, as amended, for failing to comply with the Ontario Corporations Tax Act, R.S.O. 1980, c. 97, as amended.
There is abundant authority for the proposition that a dissolved corporation has no status to commence legal proceedings: 460354 Ontario Inc. v. M.N.R., [1988] 2 C.T.C. 2338, 88 D.T.C. 1679 (T.C.C.); Lord Elgin Hotel Ltd. v. M.N.R., [1969] C.T.C. 24, 69 D.T.C. 5059 (Ex. Ct.); Spray Construction Company Ltd. v. M.N.R. (1950), 2 Tax A.B.C. 170, 50 D.T.C. 282 (T.A.B.).
That conclusion however seems incongruous in the context of the present case where both the notice of reassessment of the taxes payable by the company and the Tax Court decision which is the subject of the plaintiff's statement of claim were issued after the company was dissolved on May 17, 1988. The notice of reassessment was issued on May 24, 1989. An appeal of that assessment was launched in the Tax Court on June 2, 1989, and the decision of that court was rendered on December 5, 1991. It is that decision which the plaintiff attempts to appeal by way of trial de novo before this court in the present action.
Counsel for the defendant argues that the decision of the Tax Court is a nullity because the plaintiff had no legal existence at the relevant time. That fact was simply not brought to the attention of the Tax Court. Counsel for the defendant notes that the notice of reassessment is valid and operative because section 241 of the Ontario Business Corporations Act, 1982, as amended, provides that companies may be sued even though they have been dissolved:
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.
(2) For the purposes of this section, the service of any process on a corporation after its dissolution shall be deemed to be sufficiently made if it is made upon any person last shown on the records of the Ministry as being a director or officer of the corporation before the dissolution.
(3) Where an action, suit or other proceeding has been brought against a corporation after its dissolution, notice of the commencement of the action, suit or other proceeding, together with the writ or other document by which the action, suit or other proceeding was commenced, shall be served upon the Public Trustee.
242. (1) Notwithstanding the dissolution of a corporation, each shareholder to whom any of its property has been distributed is liable to any person claiming under section 241 to the extent of the amount received by that shareholder upon the distribution, and an action to enforce such liability may be brought within five years after the date of the dissolution of the corporation.
(2) The court may order an action referred to in subsection (1) to be brought against the persons who were shareholders as a class, subject to such conditions as the court thinks fit and, if the plaintiff establishes his claim, the court may refer the proceedings to a referee or other officer of the court who may,
(a) add as a party to the proceedings before him each person who was a shareholder found by the plaintiff;
(b) determine, subject to subsection (1), the amount that each person who was a shareholder shall contribute towards satisfaction of the plaintiff's claim; and
(c) direct payment of the amounts so determined.
(3) In this section, "shareholder" includes the heirs and legal representatives of a shareholder.
[Emphasis added.]
Thus, the Ontario Business Corporations Act, 1982 would appear to allow a dissolved company to be sued but provides no guidance as to how it might defend itself or how it might challenge a claim such as that in issue here where a taxpayer has the burden of initiating an action in order to dispute the Minister's reassessment of taxes. Counsel for the defendant indicated that with one exception, she could find no jurisprudence on this point.
The one exception is Burri v. The Queen, [1985] 2 C.T.C. 42, 85 D.T.C. 5287 (F.C.T.D.) where the style of cause is:
Eric Burri in his capacity as a director of New Park Apartments Ltd. at the time of its dissolution (plaintiff) v. Her Majesty The Queen (defendant)
There is no reference in the case however to the role of Mr. Burri as plaintiff or to the correctness of that way of proceeding.
Counsel for the defendant argues that the only way open for the plaintiff to challenge the reassessment is for it to revive itself under subsection 240(4) of the Business Corporations Act, 1982 and, then, in its revived state to commence an appeal:
(4) Where a corporation is dissolved under subsection (3) or any predecessor thereof, the Director on the application of any interested person immediately before the dissolution, made within five years after the date of dissolution, may, in his discretion, on such terms and conditions as he sees fit to impose, revive the corporation and thereupon the corporation, subject to their terms and conditions imposed by the Director and to any rights acquired by any person after its dissolution, is restored to its legal position, including all its property, rights and privileges and franchises, and is subject to all its liabilities, contracts, disabilities and debts, as of the date of its dissolution, in the same manner and to the same extent as if it had not been dissolved.
(5) The application referred to in subsection (4) shall be in the form of articles of revival which shall be in prescribed form.
(6) Upon receipt of articles of revival and any other prescribed documents, the Director, subject to subsection (4), shall endorse thereon in accordance with section 272 a certificate which shall constitute the certificate of revival.
In the present case, Mr. Hadi Sarraf was the only shareholder and the only director of the plaintiff company. It is he, to the extent that he holds any property of the company, who would have an obligation to pay the tax assessed under the reassessment. In my view, the correct plaintiff is Mr. Hadi Sarraf in his capacity as shareholder and director of 495187 Ontario Ltd. at the time of its dissolution. An order will issue amending the style of cause accordingly.
Having found that Mr. Sarraf is entitled to represent the dissolved company, it is unnecessary for me to deal with the second part of the defendant's motion which seeks an order preventing Mr. Sarraf from appearing for the company on the ground that he is not an attorney or solicitor within the meaning of section 11 of the Federal Court Act. He has not sought permission of the Court pursuant to Rule 300 to act on the company's behalf.
Application denied.