Urie,
J:—The
respondent
seeks
to
have
this
Court
reconsider
its
judgment
herein
on
two
grounds:
(a)
that
the
sum
referred
to
on
pages
15
and
16
of
the
reasons
for
judgment
in
respect
of
the
amount
which
the
respondent
had
available
to
it
to
pay
on
account
of
wages
was
$190,270
rather
than
$196,207.01
as
shown
therein;
(it
has
been
conceded
by
the
appellant
that
the
latter
figure
is
incorrect
and
the
proper
figure
for
inclusion
in
the
reasons
is
$190,270
and
the
reasons
for
judgment
will
be
so
amended),
and
(b)
that
the
pronouncement
as
it
relates
to
costs
does
not
agree
with
the
reasons.
With
respect
to
the
latter
contention
it
is
important
to
note
that
the
appellant
sought
from
the
respondent
by
assessment,
amounts
it
claimed
the
respondent
was
obligated
to
remit
to
it
for
tax
deductions
on
wages
paid.
The
respondent
denied
liability
on
the
basis
that
it
was
(a)
an
agent
of
Venus
Electric
Limited
and
the
liability,
if
any,
was
that
of
its
principal;
and
(b)
the
amount
of
$190,270
made
by
it
‘‘did
not
constitute
salary,
wages
or
remuneration
under
the
Income
Tax
Act
and
no
income
tax
need
be
withheld
from
such
payments
.
.
It
was
held
by
this
Court
that
the
conduct
of
the
respondent
constituted
failure
to
deduct
from
wage
payments
the
requisite
tax
payable
thereon.
Its
liability,
therefore,
was
fixed
by
statute
at
10%
of
the
aggregate
amount
that
it
should
have
deducted.
The
respondent
did
not,
in
its
statement
of
claim,
plead
alternatively
that
its
liability
was
restricted
to
deducting
the
lesser
amount
and
in
its
action
sought
to
have
the
Trial
Division
find
that
it
was
not
liable
at
all
for
either
deducting
or
remitting
tax.
It
did
not
raise
the
alternative
plea
that
if
it
were
found
to
be
liable
such
liability
should
relate
in
the
circumstances
only
to
its
failure
to
deduct
tax
so
that
the
liability
should
be
limited
to
10%.
That
defence
was
not
raised
until
the
appeal
was
brought
by
the
appellant
herein.
The
result
of
the
appeal
was
that
the
appellant
established
the
respondent’s
failure
to
deduct
tax
payable
from
wages
paid
and
consequently
its
liability
for
such
failure.
The
respondent
thus
failed
in
its
action
as
framed.
By
virtue
of
the
judgment
of
the
Court
of
Appeal,
the
appellant
successfully
defended
the
respondent’s
action,
a
result
which
would
not
have
occurred
had
the
appeal
not
been
taken.
Put
in
another
way,
the
appeal
was
a
necessary
result
of
the
complete
denial
of
liability
by
the
respondent.
Thus,
by
virtue
of
the
appeal,
the
respondent
failed
at
trial
since
the
issue
put
before
the
Trial
Division
ultimately
was
decided
against
it.
It
was
also
unsuccessful
at
the
appeal
level
on
that
issue.
Therefore,
in
our
view,
the
disposition
of
costs
by
this
Court
correctly
follows
the
result
of
the
appeal.
The
application
for
reconsideration
is,
therefore,
dismissed.
While
the
applicant,
Coopers
&
Lybrand
Limited,
quite
properly
brought
to
the
Court’s
attention
the
error
in
the
figures
shown
on
pages
15
and
16
of
the
reasons,
correction
of
such
error
could
have
been
accomplished
quite
simply
by
applying
to
the
Court
to
effect
the
necessary
correction
without
combining
that
application
with
the
application
for
reconsideration
of
the
Court’s
disposition
of
costs.
We
do
not
consider,
therefore,
that
the
applicant
on
the
motion,
the
respondent
on
the
appeal,
has
succeeded
in
any
way
on
its
motion
and
that
the
respondent
(appellant)
in
this
application
is
entitled
to
her
costs
in
respect
thereto.
Email this Content