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.
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