Beique v. The Queen, 77 DTC 5336, [1977] CTC 470 (F.CTC)

Walsh, J.:—This is a motion seeking an order to strike the mise en cause, Jacqueline Sicotte, from the case on the grounds that plaintiff illegally made her a party to it unnecessarily since no remedy is sought against her. The action is based on plaintiff’s tax reassessment for the year 1971 in which he divided his income between himself and his wife the said Jacqueline Sicotte on the basis of their allegedly being in community of property. This division of income was refused by the Minister who reassessed her on the basis of her own income earned during the year in question and reassessed plaintiff on the basis of his own personal income for that year. He appealed from this and his appeal was dismissed by the Tax Review Board. He then brought the present proceedings. No appeal was made by his wife, the mise en cause, although she is quite evidently an interested party. Should plaintiff succeed in his present appeal she would undoubtedly then be reassessed so as to reflect the additional income which would thereby be deemed to have been taxable in her hands. However, it would appear that there is nothing in the law which authorizes plaintiff, without the permission of the Court, to make his wife a party to his appeal against defendant. Paragraph 175(3)(a) of the Income Tax Act reads as follows:

175. (3) An appeal instituted under this section shall be deemed to be an action in the Federal Court to which the Federal Court Act and the Federal Court Rules applicable to an ordinary action apply, except as varied by special rules made in respect of such appeals, and except that

(a) the Rules concerning joinder of parties and causes of action do not apply except to permit the joinder of appeals instituted under this section;

It is clear, therefore, that Rules 1715 and 1716 of the Federal Court permitting the joinder of parties by leave of, or order by, the Court when a common question of law arises which affects the rights and interests of the persons who are parties to the action, are not applicable and there can be no question of joinder of appeals such as was referred to by Mr Justice Heald in the case of L & M Wood Products Ltd, North Battleford Lumber and Post Sales Ltd and Glaslyn Forest Products Ltd v MNR, [1972] CTC 556; 72 DTC 6483, since there is only one appeal, no appeal having been brought by Dame Jacqueline Sicotte. It is an appeal by the plaintiff against his reassessment and while an eventual possible reassessment of his wife, Dame Jacqueline Sicotte, may well depend on the outcome of his appeal, her assessment is at present not under appeal nor before the Court.

Paragraph 174(3)(b) of the Income Tax Act which reads as follows

174. (3) Where the Tax Review Board or the Federal Court—Trial Division is satisfied that a determination of the question set forth in an application under this section will affect assessments in respect of two or more taxpayers who have been served with a copy of the application and who are named in an order of the Board or the Court, as the case may be, pursuant to this subsection, it may

(b) if one or more of the taxpayers so named has or have appealed, make such order joining a party or parties to that or those appeals as it considers appropriate.

might have been applicable had this been a reference to the Court by the Minister made pursuant to subsection 174(1), but that is not the case in the present proceedings. Even in such proceedings the intervention of the Court would be necessary to exercise its discretion in deciding that Dame Jacqueline Sicotte should be joined as a party to the proceedings. Heald, J stated in the L & M Wood case (supra) at page 560 [6485]:

. . . The scheme of the statute applies to separate taxation years and to Separate taxpayers. Each assessment in each year is, it seems to me, a separate cause of action. The object of the appeal procedures set out in the Act is to obtain an adjudication of the issues which have arisen between a particular taxpayer and the Minister of National Revenue as to his liabilities under the statute for a particular taxation year.

Defendant’s motion is therefore maintained and Dame Jacqueline Sicotte named as mise en cause is struck from the case and it is directed that the style of cause shall be amended accordingly.

ORDER

Defendant’s motion is maintained with costs, Dame Jacqueline Sicotte is struck from the case as mise en cause and the style of cause amended accordingly so as to reflect this.