Kerr,
J
(orally):—This
is
a
motion
for
judgment
in
favour
of
the
plaintiff
on
the
basis
of
allegations
made
and
admitted
in
the
pleadings.
The
allegations
relate
principally
to
so-called
notices
of
“nil”
assessments
in
respect
of
the
defendant’s
1967,
1968
and
1969
taxation
years,
copies
of
which
are
attached
to
the
plaintiff’s
statement
of
claim
as
Schedules
2,
3
and
4.
The
defendant
filed
notices
of
objection,
copies
of
which
are
attached
to
the
statement
of
claim
as
Schedules
5,
6
and
7.
The
defendant
subsequently
appealed
to
the
Tax
Appeal
Board
(now
the
Tax
Review
Board).
The
Minister
of
National
Revenue
applied
to
the
Tax
Review
Board
for
an
order
to
quash
the
defendant’s
appeal
on
the
ground
that
no
appeal
lies
from
a
“nil”
assessment.
The
Tax
Review
Board
dismissed
the
application,
heard
the
appeal
on
its
merits
and
allowed
it.
Her
Majesty,
as
plaintiff,
then
brought
this
appeal
action
by
a
statement
of
claim
asking,
inter
alia,
that
the
Crown’s
appeal
be
allowed
and
that
the
decision
of
the
Tax
Review
Board
be
quashed
on
the
grounds
that
the
notices
that
no
tax
was
payable
by
the
defendant
for
its
1967,
1968
and
1969
years
were
not
“assessments”
within
the
meaning
of
subsection
(4)
of
section
46
of
the
Income
Tax
Act,
RSC
1952,
c
148
(prior
to
the
amendment
effected
by
section
1
of
SC
1970-71-72,
c
63)
but
were
only
notifications
that
no
tax
was
payable
for
those
years,
with
the
consequence
that
(a)
the
documents
entitled
notices
of
objection
set
forth
in
Schedules
5,
6
and
7
did
not
at
law
constitute,
within
the
meaning
of
section
58
of
the
Act,
objections
to
assessments
made
under
Part
I
of
the
Income
Tax
Act;
and
(b)
the
Tax
Review
Board
under
the
provisions
of
subsection
59(1)
of
the
Act
had
no
jurisdiction
to
issue
the
decision
under
appeal
since
the
defendant
had
never
served
a
notice
of
objection
to
an
assessment
under
section
58
of
the
Act,
and
since
it
was
not
and
could
not
appeal
to
have
any
assessments
vacated
or
varied.
The
statement
of
claim
also
submitted
that
the
sums
involved
were
income
from
a
business.
The
defendant
filed
a
statement
of
defence,
saying,
inter
alia,
that
the
notices
of
“nil”
tax
payable
(the
aforesaid
Schedules
2,
3
and
4)
are
“assessments”,
with
the
consequence
that
the
defendant’s
notices
of
objection
(the
said
Schedules
5,
6
and
7)
were
in
law
notices
of
objection
within
the
meaning
of
section
58
of
the
Income
Tax
Act,
that
the
notice
of
appeal
filed
by
the
defendant
was
a
proper
notice
of
appeal
and
that
the
Tax
Review
Board
had
jurisdiction
to
try
the
case
and
make
a
decision
on
the
merits.
The
defendant
also
said
that
the
plaintiff
is
estopped
from
denying
that
the
said
Schedules
2,
3
and
4
are
assessments
or
the
validity
of
any
of
the
documents
filed
by
the
defendant.
The
present
motion
for
judgment
is
made
under
this
Court’s
Rule
341,
which
is
a
successor
to
the
Exchequer
Court’s
Rule
256B(2).
The
similarity
between
the
rules
is
obvious.
In
Libbey-Owens-Ford
Glass
Company
v
Ford
Motor
Company
of
Canada
et
al,
[1969]
1
Ex
CR
440,
Jackett,
P,
as
he
then
was,
said
in
respect
of
Rule
256B(2)
as
follows
at
page
444:
In
my
view,
Rule
256B(2)
is
intended
for
the
cases
where
more
than
one
cause
of
action
or
claim
arises
in
the
same
legal
proceeding
and,
having
regard
to
admissions
that
have
been
made,
a
particular
cause
of
action
or
other
claim
can
be
wholly
and
finally
disposed
of
without
waiting
for
the
disposition
of
the
other
causes
of
action
or
claims
in
the
proceeding.
The
issue
here
involves
a
question
or
questions
of
law,
and
the
application
is
for
a
judgment
disposing
of
the
whole
matter.
I
do
not
think
that
Rule
341
is
intended
for
a
motion
such
as
this
one,
or
appropriate
for
it.
Moreover,
there
is
Rule
474,
which
provides
for
preliminary
determination
of
questions
of
law,
but
only
upon
application
and
where
the
Court
deems
it
expedient
so
to
do,
and
for
directions
by
the
Court,
also
upon
application,
as
to
the
case
upon
which
the
question
shall
be
argued.
I
think
that
it
would
be
more
appropriate
to
have
the
matter
dealt
with
by
an
application
under
Rule
474,
in
which
a
definite
statement
of
the
question
or
questions
would
be
set
forth
and
appropriate
directions
sought.
Consequently,
the
present
motion
for
judgment
will
be
dismissed,
with
costs
to
the
defendant,
but
without
prejudice
to
any
right
of
the
plaintiff
to
apply
under
Rule
474.
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