Catzman,
Galligan
and
Arbour,
JJ.A.:—
It
is
not
disputed
that
the
liability
for
income
tax,
which
was
ultimately
discharged
by
the
respondent,
was
that
of
the
appellant.
Regardless
of
the
reason
why
the
respondent
failed
to
withhold
that
income
tax
from
the
appellant
and
to
remit
it
on
her
behalf
to
the
tax
authorities,
subsection
215(6)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act"),
provides
that
the
respondent
is
entitled
to
recover
from
the
appellant
the
amounts
of
income
tax
which
it
paid
on
her
behalf.
When
pressed
during
the
argument,
counsel
for
the
appellant
grounded
his
position
upon
the
release
found
in
paragraph
2
of
the
agreement
made
between
the
parties
in
August,
1984.
In
that
agreement,
they
acknowledged
the
completion
of
the
transaction
envisaged
by
their
share
redemption
agreement
in
1981
and
mutually
released
all
claims
arising
out
of
that
agreement.
The
examination
for
discovery
of
the
vice
president
of
the
respondent
on
this
subject
went
no
further
than
the
language
of
the
release
itself.
The
appellant
put
forward
no
evidence
on
the
motion
for
summary
judgment
respecting
the
intended
scope
of
that
release.
On
the
material
before
the
court,
there
was
no
genuine
issue
for
trial
on
that
subject.
The
release
did
not
comprehend
the
release
of
the
respondent's
statutory
right
to
recover
from
the
appellant
the
income
tax
which
it
subsequently
was
called
upon
to
pay
on
her
behalf.
We
therefore
agree
that
this
was
an
appropriate
case
in
which
summary
judgment
should
have
been
granted
against
the
appellant.
At
the
outset
of
the
appeal,
counsel
for
the
appellant
noted
that
the
formal
judgment
of
Boland,
J.,
as
issued
and
entered,
did
not
accurately
reflect
her
endorsement,
in
that
paragraph
2
did
not
indicate
that
judgment
was
granted
for
an
additional
sum
of
$13,000
(said
to
be
costs
incurred
in
opposing
the
income
tax
assessment
made
against
the
respondent),
and
made
no
adjustment
in
the
amount
of
pre-judgment
interest
to
reflect
that
addition.
Counsel
for
the
respondent
acknowledged
that,
on
the
material
before
the
court,
summary
judgment
should
not
have
been
granted
in
respect
of
the
claim
for
$13,000.
We
therefore
do
not
order
that
any
amendment
be
made
to
the
formal
judgment.
For
the
foregoing
reasons,
the
appeal
is
dismissed
with
costs.
Appeal
dismissed.
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