Canadian Marconi Company v. Her Majesty the Queen, [1989] 2 CTC 128, 89 DTC 5370

Joyal, J.: —The plaintiff seeks from this Court a declaratory judgment. The issue involves an interpretation of the Income Tax Act. It requires specifically an interpretation of that statute dealing with the power of the Minister of National Revenue to reassess a taxpayer.

The irony of this case is that whereas the power of the Minister to reassess has traditionally been resisted by the taxpayer, in this case, it is the other way around. It is the taxpayer who prays the Minister to reassess it. It is the Minister who resists it on the grounds that he has no authority to do so.

In order to focus on this abnormal and improbable turn of events, some background information is required. That background information is contained in an agreed statement of facts submitted by the parties at the trial of the action. Herewith a summary of it.

The Facts

The plaintiff is a well-known company involved in the manufacturing and processing of electronic equipment. In each of the taxation years between 1973 and 1976, it derived considerable income from short-term securities. In each of these years, the plaintiff earmarked these revenues as business income. The Minister of National Revenue disagreed. He decided it was income from property. This affected the plaintiff's tax base pursuant to subsection 125.1(1) of the Income Tax Act and made it liable for greater taxes.

The plaintiff filed its notices of objection against these reassessments. The Minister refused to budge. The plaintiff then went to the Federal Court, Trial Division. It too refused to budge. The plaintiff then went to the Federal Court of Appeal. Again the plaintiff was unsuccessful.

Finally, in its ultimate attempt, the plaintiff sought relief from the Supreme Court of Canada. In its unanimous judgment, dated November 6, 1986 and reported at [1986] 2 C.T.C. 465; 86 D.T.C. 6526, the Court allowed the plaintiff’s appeal and declared that the investment income earned by the plaintiff was income from an active business for the purposes of the Income Tax Act and it therefore entered into the computation of "Canadian manufacturing and processing profits".

As the issue was being debated through three successive court levels, however, the plaintiff continued to file its corporation tax returns. It did so for the years 1977 to 1981 inclusive. On July 4, 1983, the Minister reassessed the plaintiff for each of those years in conformity with the position taken for the preceding four years, 1973-1976.

As of the date of this 1983 reassessment, the four-year limitation period pursuant to subsection 152(4) of the Income Tax Act had not yet expired. In the belief that the Minister, in accordance with the policy set out in Information Circular IC 75-7R3, would reassess the plaintiff for the last five years in a manner consistent with the ultimate Court decision with respect to the previous four years, the plaintiff did not file any notice of objection nor did it file waivers with respect to those years.

It is admitted that throughout this period of time, the Minister was aware that the plaintiff was pursuing its appeal from the previous four years and that the plaintiff's policy with respect to all the years 1973-1981 was to seek and obtain a final disposition of the issue one way or the other.

When the plaintiff finally won its case before the Supreme Court of Canada covering the 1973-1976 taxation years, it expected that the Minister would issue a reassessment for the subsequent five years, a reassessment which would be in conformity with the Supreme Court's ruling and consonant with the tax liability position of the plaintiff for the previous years.

It was in October, 1987, that the plaintiff was advised that since no waivers had been filed with respect to those five years, the Minister did not have the authority to issue notices of reassessment for those years. The plaintiff was further advised that the Minister did not have authority to accept a waiver once the four-year limitation period had expired.

The Issue

Simply stated, the issue is whether or not the Crown is correct in its interpretation of the Income Tax Act or whether or not the Minister enjoys a residual right to provide relief to the plaintiff. It is a case where contrary to tradition and practice, the Crown appears quite happy to have its wings clipped, as it were. Again contrary to tradition and practice, it is a case where the plaintiff appears quite happy to renounce its rights under the statute and bestow on the Crown unfettered discretion to reassess at will.

In order to determine the issue, the Court is invited by the parties to scrutinize the relevant provisions of the Income Tax Act, to interpret them in accordance with contemporary rules and to decide which side of the issue is more consistent with the economy of the statute and the intention of Parliament in adopting it.

In going through this process, it must be kept in mind that the plaintiff's action calls for declaratory relief only. The plaintiff concedes that the Court cannot order the Crown to reassess if it should be found that it has the power to do so.

The Statute

The relevant provisions of the Income Tax Act are found in Part I, Division I — Returns, Assessments, Payment and Appeals.

Subsection 150(1) provides that “a return of income for each taxation year . . . shall, without notice or demand therefor, be filed with the Minister in prescribed form and containing prescribed information”. Subsection 152(1) states very clearly that the "Minister shall, with all due dispatch, examine a taxpayer's return of income for a taxation year, assess the tax for the year, the interest and penalties if any . . .".

Subsection 152(2) imposes another duty on the Minister, namely to "send a notice of assessment to the person by whom the return was filed”. This provision is complemented by subsection 152(3) which provides that "liability for tax under this Part is not affected by an incorrect or incomplete assessment or by the fact that no assessment has been made".

More specific provisions relating to assessments and reassessments are found in subsection 152(4). It might be useful to reproduce the whole of this subsection at this time:

152.(4) The Minister may at any time assess tax, interest or penalties under this Part or notify in writing any person by whom a return of income for a taxation year has been filed that no tax is payable for the taxation year, and may

(a) at any time, if the taxpayer or person filing the return

(i) has made any misrepresentation that is attributable to neglect, carelessness or wilful default or has committed any fraud in filing the return or in supplying any information under this Act, or

(ii) has filed with the Minister a waiver in prescribed form within 4 years from the day of mailing of a notice of an original assessment or of a notification that no tax is payable for a taxation year,

(b) within 7 years from the day referred to in subparagraph (a)(ii), if

(i) an assessment or reassessment of the tax of the taxpayer was required pursuant to subsection (6) or would have been required if the taxpayer had claimed an amount by filing the prescribed form referred to in that subsection on or before the day referred to therein, or

(ii) there is reason, as a consequence of the assessment or reassessment of another taxpayer's tax pursuant to this paragraph or subsection (6), to assess or reassess the taxpayer's tax for any relevant taxation year, and

(c) within 4 years from the day referred to in subparagraph (a)(ii), in any other case,

reassess or make additional assessments, or assess tax, interest or penalties under this Part, as the circumstances require, except that a reassessment, an additional assessment or assessment may be made under paragraph (b) after 4 years from the day referred to in subparagraph (a)(ii) only to the extent that it may reasonably be regarded as relating to the assessment or reassessment referred to in that paragraph. [1]

Finally, subsection 152(8) states that "an assessment shall, subject to being varied or vacated on an objection or appeal under this Part and subject to a reassessment, be deemed to be valid and binding notwithstanding any error, defect or omission therein or in any proceeding under this Act relating thereto".

The Case for the Crown

The matter before me involves a request by the plaintiff directed to the Crown that its Minister of National Revenue has the power to issue a reassessment for the taxation years 1977-1981 in conformity with the Supreme Court of Canada judgment in the plaintiff's favour. The Crown takes the position that its Minister does not have the statutory authority to do so.

For purposes of clarity, I should perhaps deal first with the case for the defendant Crown. This is perhaps unusual but after reviewing all the arguments put to the Court by able counsel, the case of each party may be better understood if I should proceed in that fashion.

The basic proposition advanced by the Crown is that the plaintiff is seeking to circumvent the mandatory requirements of the Income Tax Act respecting the filing of a waiver and its failure to file objections or appeals. The plaintiff's filing of a waiver at this time is clearly for this purpose and in any event, the waiver cannot bestow on the Minister more power than he legitimately enjoys under the statute.

Counsel for the Crown suggests that the power of the Minister to assess is clearly limited by the text of subsection 152(4). This provision is unambiguous and clearly precludes the Minister from assessing outside the four- year limit except in the limited circumstances set out in paragraph 152(4)(a) and (b), namely fraud or waiver. A reading of subsection 152(4) clearly indicates that a taxpayer who fails to object to or appeal an assessment under the expressed provisions of the statute cannot otherwise challenge that assessment and the issue is forever closed. This was the view taken by the Federal Court of Appeal in The Queen v. A.W.C. Parsons et al., [1984] C.T.C. 352; 84 D.T.C. 6345, where Pratte, J.A. stated that, as the statute provides certain rights of appeal against an assessment, no other redress or relief procedure is available.

Having failed to follow the prescribed route, says counsel, the plaintiff cannot now retroactively revive its rights which, had they been properly exercised, may have permitted reassessments to be made.

The other approach taken by the Crown is that in the statutory context of subsection 152(4), there are limits to the Minister’s assessing powers. Counsel urges the Court to apply the rule articulated by E.A. Driedger in "Construction of Statutes”, 2 Ed. (1983), p. 84 as endorsed by Estey, J. of the Supreme Court of Canada in Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, [1984] C.T.C. 294; 84 D.T.C. 6305, at page 316 (D.T.C. 6323), as follows:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act . . .

According to counsel, the context of the section 152 and specifically of subsection 152(4) indicates that the Minister cannot reassess outside the statutory limit unless certain requirements are met. Any action taken by him outside the scope of this provision is clearly invalid. Parliament's intention is clearly to impose such limit upon the Minister's otherwise unfettered power to assess at any time. Such limit is a statutory bar to any assessment made outside the four-year rule unless the taxpayer has filed a waiver in the prescribed form within that time. In asking the Court to intervene, the plaintiff is in effect requesting that paragraph 152(4)(a) be read out of the Act.

Counsel for the Crown refers to another rule of interpretation in this respect as found in the Supreme Court of Canada decision in Grand Trunk Pacific Railway v. Dearborn (1919), 58 S.C.R. 315 where the Chief Justice said this at page 320:

I cannot admit the right of the Courts where the language of a statute is plain and unambiguous to practically amend such statute either by eliminating words or inserting limiting words unless the grammatical and ordinary sense of the words as enacted leads to some absurdity or some repugnance or inconsistency with the rest of the enactment, and in those cases only to the extent of avoiding that absurdity, repugnance and inconsistency.

Counsel for the Crown says that it is clear from the language of the statute that any attempt by the Minister to assess or reassess outside the limits imposed would be declared by the Courts to be invalid and illegal. Such was the finding in Lechter v. M.N.R., [1964] C.T.C. 510; 64 D.T.C. 5311 (Ex. Ct.), in Bronze Memorials Limited (No. 2) v. M.N.R., [1969] C.T.C. 620; 69 D.T.C. 5420 and in Galway v. M.N.R., [1974] F.C. 593; [1974] C.T.C. 313; 74 D.T.C. 6247. In the Galway case, the Chief Justice of the Federal Court said at page 315 (D.T.C. 6249):

It seems obvious that the Minister cannot, on a re-assessment, do anything other than assess in accordance with the authority conferred on him by the Income Tax Act.

The Chief Justice [went on] to add at page 316 (D.T.C. 6250):

In those circumstances, we have grave doubt as to whether the Minister is legally entitled to re-assess for a part of the amount of tax in question. If he is not legally entitled to do so, the Court cannot require him to do so.

Pratte, J., in Cohen v. The Queen, [1980] C.T.C. 318; 80 D.T.C. 6250, adopted the reasoning in the Galway case respecting a taxpayer's appeal or a reassessment on the basis of a prior agreement with the Minister. The Trial Division had ruled that "the Minister has a statutory duty to assess the amount of tax payable in accordance with the law as he understands it”. It follows that he cannot assess for some amount designed to implement a compromise settlement. Pratte, J. added this at page 319 (D.T.C. 6251):

The agreement whereby the Minister would agree to assess income tax otherwise than in accordance with the law would, in my view, be an illegal agreement. Therefore, even if the record supported the appellant’s contention that the Minister agreed to treat the profit here in question as a capital gain, that agreement would not bind the Minister and would not prevent him from assessing the tax payable by the appellant in accordance with the requirements of the statute.

The principle to be derived from these cases, according to Crown counsel, is that the Minister cannot knowingly assess in contravention of the provisions of the Act.

Another weapon in the Crown's armoury is that, on a proper construction of the statutory scheme for the establishment of tax liability, it is in the public interest that there be some finality on the fixation of any such liability. That is why there are “limitations in the taxing and appeal provisions", as found by Addy, J. in Thyssen Mining Construction of Canada Ltd. v. The Queen, [1975] F.C. 81 at 89. As a consequence, the declaratory judgment requested by the plaintiff would frustrate and be in contravention of Parliament's intention as reflected in the statute as well as be contrary to jurisprudence dealing with the limits of the Minister's assessing process.

Counsel for the Crown also refers to the waiver filed by the plaintiff out of time. He submits that such a waiver cannot be permitted to extend the powers of the Minister since, to put it into counsel's own words,

(i) the waiver would in effect eliminate clear statutory limits to the assessing powers of the Minister and purport to validate what would be ultra vires acts on the part of the Minister;

(ii) the granting of a waiver outside the 3 year limit would clearly frustrate Parliament's intention which specifically restricted the time within which a waiver could be filed:

(iii) the relevant provision was not enacted for the exclusive benefit of the Plaintiff.

Citing Halsbury's 4 Ed., vol. 1, para. 23 to 25, counsel states that as a general rule, a waiver cannot give a public authority more power than it legitimately possesses under the relevant legislation. It can only be waived by a person where it can be said that the provision is a procedural requirement enacted solely for his benefit. Of assistance to the Court in this respect, says counsel, is the 1947 case of Melahn v. Commissioner of Internal Revenue, 9 T.C. 769 (U.S.T.C.). That Court rejected the notion that limitation provisions were for the benefit of the taxpayer and can be waived by him. The Court stated at page 777:

The very nature of the question in the case at bar, furthermore, shows that the statute of limitations involved herein is not exclusively for the benefit of the taxpayer, as petitioner contends. It is much to the interest of the Commissioner and to the stability of public revenue that the waiver of limitations be done only in the manner set forth by the statute. A principle of statutory construction of ancient lineage provides that, when a statute limits the method of performing an act, it thereby precludes other methods.

In the United Kingdom, the House of Lords in the case of Kammins Ballrooms Co. Ltd. v. Zenith Investment (Torquay) Ltd., [1971] A.C. 850; [1970] 2 All E.R. 871, decided that statutory time limits imposed by the Landlord and Tenant Act, 1954, were merely procedural and could be waived by a party. In another case, however, Bristow, J. of the Queen's Bench Division in Howard v. Secretary of State for the Environment, [1972] 3 All E.R. 310 [reversed, [1974] 1 All E.R. 644], decided that a time limit to file an appeal under the Town and Country Planning Act, 1968 was a mandatory provision and that the Secretary of State had no power to entertain an appeal made out of time.

Counsel for the Crown contends that the waiver provision in the Income Tax Act is not exclusively for the benefit of the taxpayer. It is there as a matter of public policy and the waiver must necessarily comply with the strict conditions which the statute imposes. A waiver filed under any other circumstances than those provided in the statute is of no consequence and cannot have the effect of clothing the Minister with a power which he does not otherwise possess.

The Case for the Plaintiff

Counsel for the plaintiff submits as a general proposition that there is no statutory bar to the Minister issuing a reassessment. This proposition, counsel suggests, is reflected in the Minister's Circular No. 75-7R3 dated July 9, 1984, where paragraph 4 thereof reads as follows:

Reassessment to reduce tax payable

4. A reassessment to create a refund ordinarily will be made upon receipt of a written request by the taxpayer, even if a notice of objection has not been filed within the prescribed time, provided that

(a) the taxpayer has, within the four year filing period required by subsection 164(1), filed the return of income;

(b) the Department is satisfied that the previous assessment or reassessment was wrong;

(c) the reassessment can be made within the four-year period or the seven-year period, as the case may be, referred to in paragraph 1 above or, if that is not possible, the taxpayer has filed a waiver in prescribed form;

(d) the requested decrease in taxable income assessed is not based solely on an increased claim for capital cost allowances or other permissive deductions, where the taxpayer originally claimed less than the maximum allowable; and

(e) the application for a refund is not based solely upon a successful appeal to the Courts by a taxpayer.

Ordinarily a taxpayer must set out specifically what is considered to be wrong in the assessment for the year.

The Crown argues that what must be kept in mind are the realities of the situation. The plaintiff is unjustly out-of-pocket. It has been unjustly charged with taxes which the Supreme Court of Canada has decided are not owing. Throughout the years from 1982 to 1986, when the plaintiff's challenge laboriously worked its way up the Court system, both the Crown as well as the plaintiff were aware that the factual base provoking the conflict in statute interpretation of the plaintiff's investment income was being repeated from year to year. The Crown was a participant in the appeals taken by the plaintiff before the Federal Court of Canada, in both the Trial and the Appeal Divisions as well as before the Supreme Court of Canada. The Crown knew that the final determination, one way or the other, would settle the issue not only for the years under appeal but for the subsequent years as well.

It would therefore be in keeping with the whole scheme of income taxation for the Crown to have at least the legal right to reassess even though it might not have the statutory obligation to do so.

Counsel for the plaintiff suggests further that on a proper reading of the particular limitations found in subsection 152(4), one should conclude that they are there to protect the taxpayer. They are necessary safeguards to the wide and unfettered authority conferred on the Minister, by the opening words of the subsection, namely, to assess "at any time”. Were it not for the prescriptive periods imposed, a taxpayer could be left in permanent limbo as to his tax position over any number of years. Taxes are debts due to the Crown and as a consequence, a taxpayer would never be able to define or certify the true amount of his liabilities.

Counsel urges the Court to find that the safeguards found in subsection 152(4) are there as a shield to protect the taxpayer. Outside of the limits imposed, the Minister must prove either fraud or waiver. In the absence of either, the taxpayer can resist any notice of assessment and have it declared null and of no effect. It does not follow, however, that such notice of assessment would be void ab initio. It would simply be voidable and its voidable character would only be crystallized if the taxpayer decided to avail himself of his statutory defences.

This approach, says counsel, is consistent with other provisions of the Act including, inter alia, subsection 152(8) which declares that "an assessment . . . shall be deemed to be valid and binding . . .”. It is also consistent with the statutory duty imposed on the Minister to fix the tax payable under the Act. No more, no less. As a generic principle, therefore, the protection afforded a taxpayer under subsection 152(4) is not one of public policy but in a nature of a private right which a taxpayer may exercise at will.

In fact, argues plaintiff’s counsel, the situation is analogous to an action taken on a bill of exchange well after the applicable limitations period. The defendant is perfectly free to raise or not to raise this in his defence. If he fails to do so, it is no bar to the action proceeding on the merits. In any event, says counsel, the claim on the outstanding bill subsists. It is only the right of action which might be prescribed.

In support of his proposition that subsection 152(4) is a shield to protect a taxpayer and which a taxpayer may discard, counsel for the plaintiff refers to Robert Charron v. M.N.R., a Tax Review Board decision reported at [1981] C.T.C. 2271; 81 D.T.C. 271 where, at page 2273 (D.T.C. 273), member D.E. Taylor looks upon section 152 of the Act as a “special protection accorded taxpayers" and which cannot lightly be set aside by the Minister.

Counsel also refers to Gunnar Mining Limited v. M.N.R., [1970] Tax A.B.C. 1; 70 D.T.C. 1020, where J.O. Welden, Q.C. of the Tax Appeal Board states at page 1026 that "the waiver provision in section 46(4) of the Act was plainly intended for the sole benefit and protection of taxpayers and was not intended to prevent an assessment sought by a taxpayer . . .”

The Board's decision in that case goes on to say:

. . . since Parliament obviously intended to give the Minister the broadest possible powers of assessment under section 46, the way appears to have been left open thereunder for him to make an assessment at any time at the request and with the consent of the taxpayer involved having regard to the Minister's almost impregnable position under subsection (7) of section 46 which purports to cure any error, defect or omission therein. It has not been possible for me to imagine how an assessment made under those circumstances could run counter to section 46 or the plain overall purpose thereof. [2]

The plaintiff also finds support with respect to the presumed validity of any tax assessment in the case of Morch v. M.N.R., [1949] C.T.C. 250; 49 D.T.C. 649 where the President of the Exchequer Court at page 257 (D.T.C. 652) is quoted as saying that, until a taxpayer can discharge the onus that an assessment is erroneous in fact or in law, it remains a valid assessment, a statement substantially repeated by the Trial Division of the Federal Court in The Queen v. Wellington Taylor, [1984] C.T.C. 436; 84 D.T.C. 6459 at page 439 (D.T.C. 6461).

Counsel further submits that indicative of the judicial approach to the legal character of an assessment and to the nature of the defences available to a taxpayer is the judgment of Reed, J. of this Court in Walter W. Davis v. The Queen, [1984] C.T.C. 564; 84 D.T.C. 6518. The taxpayer in that case had been reassessed in 1966 with respect to his 1950 taxation year and in so doing, the Crown alleged misrepresentation on the part of the taxpayer which removed the taxpayer from the protective limitation of subsection 152(4). The parties settled the issue before trial and, in 1968, minutes of a settlement were filed in Court and confirmed by judgment. In December 1969, a notice of reassessment in conformity with the judgment was issued and the taxpayer appealed against that reassessment on the grounds that the Minister, prior to the filing of the judgment, had not proved misrepresentation on the taxpayer's part and that the reassessment was thereupon statute- barred.

In the face of this, Reed, J. had this to say at page 565 (D.T.C. 6519):

I do not think this claim is well founded. The Minister is not required to prove misrepresentation before he sends out a notice of reassessment which is dated beyond the 4-year time period provided for in the statute. Misrepresentation must be proved only if the matter goes to trial.

Later, at page 566 (D.T.C. 6520), Reed, J. notes that “If, as the plaintiff alleges, the Minister was required to prove misrepresentation before a settlement judgment could be entered, there would be no reason for him to engage in such a settlement. . . . If the taxpayer's claim in this regard were right it could undercut the whole purpose and rationale of settling claims without going to trial”.

Counsel for the plaintiff urges me to conclude from the foregoing that no more than private interests are involved as far as a taxpayer's protection under subsection 152(4) is concerned. A taxpayer may, by consent, agree to respect a reassessment even though issued way out of time with no misrepresentation or fraud having been proven.

This, of course, was the view which had been taken by the Federal Court of Appeal in an earlier case, namely, Smerchanski v. M.N.R., [1974] C.T.C. 241; 74 D.T.C. 6197, where the taxpayer had consented to terms of settlement of outstanding assessments covering some 15 years, had admitted the correctness of the assessments and had waived his rights of appeal.

After ruling that, on the facts, the settlement terms could not be regarded as a thwarting of the statute or of the statutory scheme or as a substitution of taxation by contract for taxation according to statute, Thurlow, J.A., as he then was, said this at page 250 (D.T.C. 6203):

Turning to the second way in which the appellant's submission was put it appears to me, again, as a general proposition, that it is not open to the Minister to stipulate as a condition of making a reassessment that the taxpayer admit liability for the amount to be assessed or that he waive his right of appeal. There is nothing in the statute which expressly or impliedly prohibits the making of such a stipulation by him but on the other hand nothing in the statute appears to me to expressly or impliedly authorize him to exercise his statutory powers in that way. To that extent I am in agreement with the appellant's proposition. However, if this is the correct view it appears to me that the right to object to such a stipulation is one that accrues to the taxpayer concerned and if for some reason of his own, such as the hope of avoiding a public prosecution, the taxpayer consents to such a stipulation or waives his right to object there appears to me to be no principle of public morality or of public policy which would intervene to protect him from the consequences of his own act in so consenting or waiving. I am also of the opinion that the right of a taxpayer under the Act to appeal from an assessment is not a public right or one conferred for the public benefit but is a private right of the taxpayer which he is entitled to forego or to waive if he sees fit to do so.

At page 250-51 (D.T.C. 6204) of the judgment, Thurlow, J.A. added this:

Applying these considerations to the present situation it appears to me that if it can be said, as I think it may, that the Minister stipulated as a condition of his proceeding in the matter by way of reassessment to recover penalties incurred, as well as taxes and interest, that the appellant admit his liability, pay the amounts assessed forthwith and waive his right of appeal, the appellant did not object thereto but, on the contrary, as evidenced both by his execution of the commitment of July 2, 1964 and by his execution of the document of July 10, 1964 and his immediate payment of the amounts assessed, consented to and approved of the stipulation. He did this in each instance with his eyes open and upon the advice of competent counsel and there is, in my view, no principle of public policy or public morality or of the policy of the statute which is offended by the assessments having been made upon such stipulation and consent or which would relieve the appellant from the consequences of his consent or of his formal waiver of his right to appeal from the assessments so made. I therefore agree with the conclusion of the learned trial judge that the appellant is bound by the waiver of appeal contained in the document executed by him and delivered on July 10, 1964.

This unfettered right of a taxpayer to waive his right of appeal, even when the threat of criminal prosecution hangs over him, was endorsed by the Supreme Court of Canada when the Smerchanski case went to appeal. Reported at [1976] C.T.C. 488; 76 D.T.C. 6247, the judgment of the Court was delivered by the Chief Justice who stated at page 494 (D.T.C. 6251):

Since it is not contested that a taxpayer may validly waive his rights of appeal against a tax assessment and that no question of public policy is involved to preclude such a waiver, the only issue of importance in this appeal is whether the tax authorities, seriously contemplating prosecution, and by indictment as in the present case, are entitled to exact a waiver of rights of appeal as a binding term of settling a clear tax liability when overtures for settlement are made by the taxpayer and, in consequence, to abandon their intention to prosecute.

The Chief Justice went on to say at page 495-96 (D.T.C. 6252):

The result to which I would come in this case is encased in broad statutory provisions in both England and the United States. Authorization for pecuniary settlements instead of instituting criminal proceedings has been part of the tax law in England since 1944 and is now found in the Taxes Management Act, 1970 (U.K.),

c. 9, section 105. In the United States, sections 7121 and 7122 of the Internal Revenue Code of 1954 authorize settlements and compromises of tax liability as against civil or criminal proceedings prior to reference to the Department of Justice for prosecution or defence. I do not regard these provisions as necessarily pointing to the common law invalidity of all contractual settlements made in the knowledge of probable prosecution and in order to avoid it. Rather they represent an acknowledgement of practice by seeking to put beyond dispute the power of the tax collector to settle or compromise tax liability, even if there be wilful evasion leaving the taxpayer open to possible or probable prosecution.

I would dismiss the appeals with costs.

Conclusions

I should not wish to flatter counsel unduly but they have both convinced me that there is ambiguity in the statute dealing with the right of the Minister to reassess in the circumstances of the case at bar. To resolve that ambiguity is not without difficulty.

Subsection 152(1) states clearly that the Minister shall examine a taxpayer's return and assess tax for the year. Subsection 152(4), on the other hand, says that a Minister may at any time assess tax.

Similarly, subsection 152(1) speaks of a taxpayer's tax return. So does subsection 152(4) and subsection 152(5) and subsection 152(6). All of them indicate that the Minister’s duty or discretion under subsection 152(1) or subsection 152(4) respectively may only be exercised on the basis of tax returns having been previously filed. It is only in subsection 152(7) that the Minister may assess a tax even though no return has been filed. This might lead one to suggest that there is a duty on the Minister to assess where a return has been filed but he enjoys a statutory discretion when it is otherwise.

Those observations are not necessarily pertinent to the case before me but they nevertheless outline the difficulties one faces in dealing with such dichotomous terms in the context of the same section of the statute. So too with the limitations and waiver provisions found in subsection 152(4).

My initial interpretation of the Crown's argument is that if the Minister may only assess within certain limited periods of time unless misrepresentations or fraud is present or a waiver has been filed, he may not assess at any other time. As of the limitation dates prescribed in that subsection, the Minister's powers are exhausted and whether or not the situation calls for redress in favour of the Receiver General or in favour of the taxpayer, the tax liability is determined once and for all and with a finality that reality and logic will not displace.

In the eyes of the plaintiff, however, the issue is not so black and white. The plaintiff interprets the limitation period provided in subsection 152(4) as expressing the intention of Parliament to protect the taxpayer from the unruly exercise of the Minister's prerogatives to keep assessing or reassessing a taxpayer at will. It is not meant to close the door to an assessment at any time if the taxpayer should waive the protection which the subsection affords him.

As I view the arguments advanced by both sides, the issues may be broken down as follows:

1. In resolving the ambiguity in the text of subsection 152(4), should one read into it the intention of Parliament to write finis to the whole assessment scheme if the limitation periods mentioned therein are not respected? If so, that would be the end of the matter.

2. On the other hand, if it should be found that the limitations imposed are for the benefit of the taxpayer, it would continue to be the Minister's prerogative to assess at any time, leaving it to the taxpayer to avail himself of his defences if he so wishes.

In considering these alternatives, the factual basis on which these proceedings are taken cannot be completely overlooked. It is a fact that the assessments made by the Minister for the years 1973-1976 as well as for the years 1977-1981 are wrong, at least they are wrong in the sense that they are not according to law. It is admitted by the parties, and I have already referred to case law in that respect, that the Minister's powers only extend to fixing the tax liability under the Act. Therefore, whether or not the plaintiff is stuck with the assessments under review, namely for the years 1977-1981, the fact is that when the Supreme Court decision was handed down in 1986, it became evident that the tax liability imposed on the plaintiff was wrong in law and that the assessments had not been made under the Act. The plaintiff, in its returns for each of these years, declared its liability for tax. That declaration was a perfectly proper one. Next followed the assessments of 1983. As stated by Lord Dunedin in the case of Whitney v. Commissioners of Inland Revenue, [1926] A.C. p. 37 at p. 52, 10 T.C. 88 "there is a declaration of liability. . . . Next there is the assessment. Liability does not depend on assessment. That, ex hypothesi, has already been fixed. But assessment particularizes the exact sum which a person liable has to pay". It follows therefore that the tax liability of the plaintiff is in the amount declared by it and not in the amount fixed in the Minister's assessments.

The other element which bemuses me somewhat is the position taken by the Crown when the plaintiff filed its waiver and requested that it be reassessed in conformity with the Supreme Court judgment. It seems to me, at first blush, that the decision of the Crown to accede to or refuse that request was purely discretionary. I have referred earlier to the mandatory and permissive authority of the Minister to assess under section 152. It appears to be mandatory under subsection 152(1) and subsection 152(2) but discretionary under subsection 152(4). The Minister might conceivably have simply refused to exercise his discretion in favour of the plaintiff The grounds would have been persuasive: the plaintiff having failed to file the requisite objections or appeals or waivers, the plaintiff is foreclosed and the Minister, for policy or other reasons, is not prepared to take any initiative which might provide relief.

The Crown, however, did not take that position. It refused to reassess on the grounds that the Minister was bereft of any statutory authority to do so. In essence, the message to the plaintiff was that notwithstanding the obvious error in the 1977-1981 assessments or a wrongly imposed tax liability or an unjust enrichment in his hands, the Minister had these same unjustly enriched hands tied under the statute and had no power to provide relief.

As will be seen from the arguments advanced, the debate on the issue seems to slide some distance away from the narrow field of statute interpretation on which a declaratory judgment may be founded. A waiver of a taxpayer's rights under subsection 152(4) may be a matter of public policy or simply a matter of private choice. That issue does not determine if the Minister has any residual power "to assess at any time”.

Similarly, if the statute which provides an assessment, under subsection 152(8) is deemed to be valid and binding, it does not necessarily follow that an untimely reassessment is, on its face, beyond the Minister's powers.

Finally, a declaration from this court that the Minister is not statute-barred from issuing an assessment does not necessarily imply that he has a duty to do so.

With these observations, nay ruminations, in mind, the Court must now come to terms with the questions. I should perhaps proceed as follows:

(1) I should find that in accordance with the jurisprudence outlined in the plaintiff's case, the protection given to a taxpayer under subsection 152(2) is one which the plaintiff may waive. The cases of Charron v. M.N.R.,

Gunnar Mining Limited v. M.N.R., Walter Davis v. M.N.R., Morch v. M.N.R., Smerchanski v. M.N.R., supra, consistently hold, and express in various ways, that doctrine.

(2) I subscribe to the view expressed by Welden, Q.C. in the Gunnar case that having regard to the Minister’s almost impregnable position under subsection 46(7), now subsection 152(8), the way appears to have been left open to the Minister for him to make an assessment at any time at the request of and with the consent of the taxpayer. I have [emphasized] the foregoing words to indicate that the ruling is not meant to impose on the Minister a duty to do so.

(3) Subsection 152(8) of the Act bears a close analysis. That subsection states that an assessment, which is always subject to a reassessment, is deemed to be valid and binding notwithstanding any error, defect or omission therein or in any proceeding under this Act relating thereto. This particular provision, in my view, expresses the intention of Parliament to confer a prima facie validity on any assessment action taken by the Minister, subject only to its enforceability vis-a-vis the taxpayer. This presumption of validity may only be defeated by a successful objection or appeal or by the taxpayer raising the shield of protection given him by subsection 152(4). This leads me to conclude that any assessment of the Minister is voidable, but would not be void ab initio.

(4) The strong point raised by counsel for the Crown is the one dealing with public policy. The main thrust of this particular argument is that under subsection 152(4), Parliament clearly intended to cut short any protracted suspense over a taxpayer's tax liability, in other words, to bring finality to the creditor-debtor relationship. I must acknowledge that standing alone, such an interpretation of subsection 152(4) is plausible. That provision, however, must be read in the light of its opening words, namely that the “Minister may at any time assess tax" and in the light of the deemed validity of any assessment under subsection 152(8) to which I have earlier referred. Furthermore, on the issue before me, I do not see a clearly defined public policy. The declaration sought by the plaintiff is not such as to impose a duty on the Minister to reassess. It is only to declare that the Minister has the statutory power to assess, if following the dictates of public policy, he should find that it is proper and fitting that he should do so. The Minister can hide just as well behind policy and refuse to exercise his discretion to assess as he can hide behind the statute for the same purpose. In either case, I see no flaw in whatever policy context might be found in the statute in that regard.

(5) On the issue of waiver, counsel for the Crown invited me to consider a New Zealand case. It is Reckitt and Colman (New Zealand) Limited v. Taxation Board of Review, [1966] N.Z.L.R. 1032 (C.A.). This case deals with the authority of the Commissioner of Inland Revenue to waive strict compliance with the 30-day delay under section 29 of the relevant statute within which the taxpayer may appeal from a Board of Review to the Supreme Court. The case cites the Exchequer Court of Canada decision in Fasken v. M.N.R., [1948] C.T.C. 265; [1949] 1 D.L.R. 810 where Thorson, P. stated as follows at page 291 (D.L.R. 834):

An appeal from an income tax assessment is not a private dispute between the appellant taxpayer and the Minister or a /is in the ordinary sense . . .; the public has an interest in the disposition of the appeal and in seeing that taxpayers are held liable for the tax which Parliament has imposed on them. . . .

The New Zealand Court of Appeal finds in the 30-day rule a matter of public policy which the Commissioner of Inland Revenue cannot waive. The Court says at page 1039:

In purporting to waive the time limit the Commissioner is putting the Crown in jeopardy once more, and that, in a general way, may react to the disadvantage of other taxpayers. Accordingly, in my opinion, the Commissioner could not lawfully waive the first requirement of section 29.

This decision might be consistent with our own jurisprudence. The case before me, however, is not whether the Crown can waive a statutory prescriptive period which the taxpayer has not met. It is a case where the shoe is on the other foot. Any waiver by the plaintiff of his rights under section 152(4) of the Act and which has been consistently declared by our courts to be for his own protection, does not finally determine the issue. The issue is only determined if, as and when the Minister, in his discretion, decides to reassess. It is at that stage, in my respectful view, that policy considerations, if any, apply.

(6) The other approach to public policy taken by the Crown is that if it should be found that the Minister may indeed assess at any time, tax liabilities would never be finally settled and the Minister would be deluged with invitations to reassess and, as it might be surmised, on grounds which are not so starkly respectable as the plaintiff's. The quick answer to this apprehension is that the Minister must take the statute as he finds it. If Parliament should bestow upon him unlimited power to assess and reassess, there is implied a burden on the Minister to exercise that power in accordance with the dictates of public policy. If public policy should lead him to conclude that on no account should he reassess outside of the limits imposed by subsection 152(4), no matter the grief to the taxpayer, such would be within his prerogative.

(7) One can easily imagine circumstances where a particular taxpayer who has filed neither a notice of objection nor an appeal, requests the Minister well within the limitation period, to issue a reassessment based on a recently declared judicial interpretation favourable to another taxpayer. It would be my view that the Minister has a discretion to do so. It is part of his residual authority. He may exercise this discretion according to public policy. In this respect, it will be noted that the Minister has already stated policy in his Information Circular IC 75-7R3 where he declares in paragraph 4(3) that he will not issue such reassessment in these circumstances.

(8) Again on the issue of a void as against a voidable assessment, I should refer to subparagraph 152(4)(a)(ii) of this Act wherein the Minister may assess at any time in the case of misrepresentation or fraud. Once an assessment Is made on those grounds, the Minister is required to prove them. Until the issue is decided, however, the assessment remains a valid one and it obliges the taxpayer to come to terms with it. The assessment cannot be attacked as being void ab initio. It is only voidable if the Minister cannot meet the burden of proof. In the same way, therefore, the Minister may assess at any time and that assessment is valid on its face, subject only to the taxpayer availing himself of his statutory defences in which event the assessment cannot stand.

(9) I interpret the waiver provisions under the Act as a signal to the Minister that a taxpayer will not raise limitations as a defence. This enables either party to complete on-going examinations so that a more proper assessment might ultimately be made. In the absence of a waiver, a taxpayer risks having to fight a more peremptory assessment. I do not see, however, where a taxpayer's failure to do so should be a statutory bar to the Minister making what is otherwise an untimely assessment.

One must not confuse the legality of an Act with its questionable effectiveness. In this respect, I should find no distinction between the Civic Hospital

waiver of a right of appeal as in the Smerchanski case or the kind of anticipatory waiver filed by the plaintiff in the case at bar. Both are options available to any taxpayer. The plaintiff, as in the Gunnar Mines case, simply invites the Minister to reassess it in conformity with the law laid down by the Supreme Court of Canada. The Minister's discretion to act on it, however, is not affected and his policy decision is not one in which this or any other Court would deign to intervene.

Judgment

I should therefore declare that in accordance with my interpretation of the Income Tax Act, the Minister of National Revenue is not statute-barred from reassessing the plaintiff for the taxation years 1977-1981, notwithstanding the limitation and waiver provisions of subsection 152(4) of the Act.

It follows from the reasons given that I need make no finding respecting the validity of any waiver filed outside the time limits prescribed in the statute.

Declaration granted.