Noël,
A
C
J:—A
request
is
here
made
for
directions
pursuant
to
Rule
473
of
the
Rules
of
this
Court
as
to:
(1)
the
proper
party
in
proceedings
instituted
from
assessments
by
the
Minister
of
National
Revenue
and
from
appeals
from
decisions
of
the
Tax
Review
Board;
(2)
the
proper
description
of
the
pleadings
in
any
such
proceedings;
(3)
the
proper
description
of
the
parties,
and
(3)
the
pleading
of
statutory
provisions
and
reasons
which
the
party
pleading
intends
to
submit.
The
request
is
made
in
four
different
proceedings:
(1)
Mastino
Developments
Ltd
and
the
Queen,
where
the
taxpayer
is
described
as
plaintiff
(appellant)
and
the
other
party
as
the
Queen,
defendant
(respondent)
and
where
the
proceedings
are
described
as
a
statement
of
claim
and
contain
a
number
of
allegations;
(2)
Welland
Chemical
of
Canada
Ltd
and
the
Minister
of
National
Revenue
where
the
taxpayer
is
described
as
the
appellant
and
the
Minister
of
National
Revenue
is
described
as
representing
Her
Majesty
the
Queen
as
respondent
and
where
the
document
contains
the
following
words:
“Notice
of
appeal
is
hereby
given
from
the
income
tax
assessments
.
.
.
”
and
the
grounds
for
appeal
are
dealt
with
under
the
following
separate
headings:
(A)
Statement
of
facts
and
summary
reassessments;
(B)
Statutory
provisions
and
reasons
which
the
appellant
intends
to
submit
to
show
that
the
respondent’s
reassessments
are
in
error.
A
“Notice
to
the
Respondent”
then
follows:
“You
are
required
to
take
cognizance
of
the
within
notice
of
appeal
and
make
opposition
thereto
in
accordance
with
its
terms
and
the
appropriate
provisions
of
the
Rules
of
this
Court.
If
you
fail
to
do
so,
you
will
be
subject
to
have
such
judgment
as
the
Court
may
think
just”.
and
then
a
number
of
allegations
follow.
(3)
Nouvelle
lie
Inc
and
the
Minister
of
National
Revenue
where
the
taxpayer
is
described
as
“appellant”
and
the
Minister
of
National
Revenue
is
described
as
the
“respondent”
and
the
proceedings
are
entitled
“Notice
of
appeal”
followed
by
two
headings:
(A)
Statement
of
facts,
and
(B)
Statement
of
reasons
and
a
number
of
allegations
under
each
heading
and
finally
(4)
The
matter
of
a
proposed
appeal
by
the
Minister
of
National
Revenue
from
the
decision
of
the
Tax
Review
Board
allowing
the
appeal
of
one
Lewie
Leon
from
the
assessments
made
under
the
Income
Tax
Act
for
his
1965,
1966,
1967
and
1968
taxation
years.
Because
of
the
various
designations
and
forms
of
proceedings
adopted
in
the
above
cases,
the
Attorney
General
of
Canada,
on
behalf
of
the
Minister
of
National
Revenue,
applies
for
directions
in
order
to
determine:
(a)
the
proper
party
in
proceedings
from
assessments
made
under
the
provisions
of
the
Income
Tax
Act,
RSC
1952,
c
148;
(b)
the
appropriate
name
for
the
pleadings
and
the
parties
thereto.
it
indeed
appears
from
the
above
that
since
the
amendment
to
the
Income
Tax
Act,
RSC
1952,
c
148,
by
c
63,
SC
1970-71-72,
appeals
to
this
Court
from
assessments
made
under
the
Income
Tax
Act
have
been
instituted
in
some
cases
(a)
where
Her
Majesty
the
Queen
has
been
shown
as
a
party;
(b)
in
other
cases
where
the
Minister
of
National
Revenue
representing
Her
Majesty
the
Queen
is
described
as
a
party,
and
(c)
in
other
cases
the
Minister
of
National
Revenue.
It
also
appears
that
in
appeals
instituted
subsequent
to
June
1,
1971
and
to
the
amendments
made
to
the
Income
Tax
Act
the
originating
document
has
been
variously
described
as
(1)
a
notice
of
appeal,
or
(2)
a
statement
of
claim.
Furthermore,
the
parties
to
the
proceedings
have
been
variously
described
as
either
(1)
appellant
and
respondent,
or
(2)
plaintiff
and
defendant,
or
(3)
plaintiff
(appellant)
and
defendant
(respondent).
Subsection
62(5)
of
Part
II
of
chapter
63
of
SC
1970-71-72
[Income
Tax
Application
Rules,
1971]
provides
that
the
amended
provisions
of
the
Income
Tax
Act
in
respect
to
the
institution
of
appeals
to
the
Federal
Court
are:
.
.
applicable
in
respect
of
any
appeal
or
application
instituted
or
made,
as
the
case
may
be,
after
the
coming
into
force
of
this
Act”.
Subsection
175(1)
of
the
Income
Tax
Act,
RSC
1952,
c
148,
as
amended
by
c
63
SC
1970-71-72,
provides
that:
175.
(1)
An
appeal
to
the
Federal
Court
under
this
Act,
other
than
an
appeal
to
which
section
180
applies,
shall
be
instituted,
(a)
in
the
case
of
an
appeal
by
a
taxpayer,
(i)
in
the
manner
set
forth
in
section
48
of
the
Federal
Court
Act,
or
(ii)
by
the
filing
by
the
Minister
in
the
Registry
of
the
Federal
Court
of
a
copy
of
a
notice
of
objection
pursuant
to
paragraph
165(3)(b);
and
(b)
in
the
case
of
an
appeal
by
the
Minister,
in
the
manner
provided
by
the
Federal
Court
Rules
for
the
commencement
of
an
action.
Subsection
48(1)
(to
which
subparagraph
175(1)(a)(i)
refers)
of
the
Federal
Court
Act,
SC
1970-71-72,
c
1,
provides
that
a
proceeding
against
the
Crown
may
be
instituted
by
the
filing
in
the
Registry
of
the
Court
of
a
document
in
the
form
set
out
in
Schedule
A
to
the
Act.
Schedule
A
sets
forth
a
document
described
as
a
statement
of
claim
or
declaration
and
the
parties
therein
are
described
as
plaintiff
and
defendant
and
in
the
schedule
Her
Majesty
the
Queen
is
in
fact
shown
as
the
defendant.
The
confusion
involved
in
the
designation
of
the
parties
and
of
the
description
of
the
proceedings
is
evidently
due
to
the
reference
in
subparagraph
175(1)(a)(i)
of
the
Income
Tax
Act
to
section
48
of
the
Federal
Court
Act
and
the
above
schedule
and
some
clarification
is
required
in
order
to
ensure
uniformity
in
the
designation
of
the
parties
and
the
description
of
the
proceedings
taken
under
the
Income
Tax
Act.
Section
48
of
the
Federal
Court
Act
is
an
indication
of
a
trend
in
Canada
towards
eliminating
nominated
parties
and
towards
having
Her
Majesty
as
the
party
where
She
is
the
person
whose
legal
rights
or
obligations
are
involved.
This
is
preferable
as
a
person
litigating
against
the
Crown
does
not
have
to
decide
which
department
or
departments
are
responsible
for
the
situation
of
which
he
complains.
Each
of
the
government
departments
is
constituted
by
statute
and
placed
under
the
management
and
control
of
its
particular
Minister
(cf
Public
Works
Act,
RSC
1970,
c
38).
The
Department
of
Justice
(RSC
1970,
c
J-2)
is
subject
to
the
management
and
direction
of
the
Minister
of
Justice
who
is
ex
officio
Attorney
General
of
Canada
and
as
Attorney
General
of
Canada,
has
the
regulation
and
conduct
“of
ali
litigation
for
or
against
the
Crown
or
any
public
department”
(para
5(d)).
The
Deputy
Attorney
General
has,
by
virtue
of
the
Interpretation
Act,
the
powers
of
the
Attorney
General.
The
Minister
of
National
Revenue
has
a
special
statutory
function
to
do
certain
things
which
have
legal
effects
under
the
Income
Tax
Act.
He
has,
indeed,
the
duty
and
authority
to
“assess”
the
tax
payable
for
each
taxation
year
of
each
taxpayer
(section
152)
and,
when
he
has
done
so
his
assessment
is
deemed
to
be
“valid
and
binding”
subject
to
being
varied
or
vacated
on
an
objection
or
appeal
and
subject
to
a
reassessment.
Under
the
[former]
Income
Tax
Act,
a
notice
of
appeal
had
no
style
and
no
title
(see
subsection
58(3)
and
the
second
schedule).
Generally
speaking,
when
there
is
an
“appeal”
of
a
judicial
character,
the
tribunal
or
authority
appealed
from
is
not
a
party
except
where
it
has
an
administrative
role
in
connection
with
the
matter
in
addition
to
its
statutory
power
to
make
decisions.
Courts
are
not
ordinarily
parties
to
appeals
against
their
decisions.
Nevertheless,
the
Appeal
Court
may
return
matters
to
them
in
appropriate
cases
for
re-hearing,
etc.
I
now
turn
to
subsection
175(1)
of
the
Income
Tax
Act
to
see
what
is
meant
by
this
section.
It
would
seem
from
the
language
used:
“an
appeal
by
the
Minister”
and
to
an
order
for
“payment
or
repayment
.
.
.
by
the
Minister”,
that
it
is
intended
that
those
proceedings
are
to
be
called
appeals,
that
they
are
to
be
carried
on
in
the
name
of
the
Minister
in
his
capacity
as
the
officer
in
charge
of
Revenue
collection
for
Her
Majesty
and
that
being
appeals,
the
parties
should
be
described
as
appellants
or
respondents.
However,
if
that
view
is
adopted
the
result
will
be
that
the
changes
in
the
form
in
Schedule
“A”
to
the
Federal
Court
Act
and
to
the
corresponding
form
in
the
Rules
will
be
so
substantial
that
they
will
no
longer
be
the
forms
prescribed
by
subsection
175(1)
at
all.
We
cannot
escape
from
the
direction
that
the
forms
indicated
shall
be
used,
that
the
documents
shall
be
called
statements
of
claim
or
declarations
(which
is
the
equivalent
of
a
statement
of
claim
in
the
Province
of
Quebec),
and
that
the
parties
shall
be
described
as
plaintiffs
and
defendants.
Anything
less
than
that
would
mean
that
the
forms
prescribed
are
not
being
used
at
all.
I
am,
however,
also
inclined
to
the
view,
but
with
less
certainty,
that
the
party
should
be
Her
Majesty
herself,
as
She
is
in
Schedule
“A”.
That
would
be
a
literal
compliance
with
the
Act
and
the
references
to
the
Minister
in
sections
175
et
seq
of
the
Act
should
not
be
an
obstacle
to
proceeding
in
this
manner.
When
the
Minister
of
Public
Works
decides
to
institute
legal
proceedings,
he
instructs
the
Department
of
Justice
and
the
proceedings
are
instituted
in
the
name
of
Her
Majesty
or
such
substitute
name
as
may
be
required
by
statute.
There
should
be
no
greater
difficulty
in
the
statute
contemplating
that
a
proceeding
by
the
Minister
of
National
Revenue
to
attack
a
decision
of
the
Tax
Appeal
Board
be
launched
in
the
name
of
Her
Majesty.
A
person
who
is
discontented
with
a
decision
of
a
Board
may
“appeal”
from
it,
depending
on
the
practice
that
is
current,
by
an
action
or
motion
or
an
appeal.
It
is
not
too
great
an
incompatability
of
words,
therefore,
to
require
an
appeal
to
be
instituted
by
an
originating
document
called
a
statement
of
claim
or
declaration.
Finally
it
is
common
form
for
statutes
to
impose
obligations
and
confer
rights
on
Her
Majesty
by
requiring
the
Minister
who
is
in
charge
of
the
particular
part
of
Her
Majesty’s
affairs
to
make
a
payment
or
do
something,
or
by
authorizing
such
Minister
to
do
something.
Obviously
such
a
statute
does
not
impose
an
obligation
or
confer
a
right
on
the
person
who
happens
to
be
a
Minister
in
his
private
capacity.
All
such
statutes
are
merely
using
a
device
to
impose
duties
or
confer
rights
on
Her
Majesty
in
what
is
regarded
as
a
more
dignified
way.
The
obligation
to
pay
is
an
obligation
on
the
Minister,
whoever
he
may
be,
in
the
course
of
performing
his
duties
as
an
officer
of
the
Crown
to
make
a
payment
out
of
Her
Majesty’s
monies.
Finally,
the
provisions
authorizing
the
Court
to
dispose
of
an
appeal
by
referring
the
assessment
back
to
the
Minister
for
reassessment,
appears
to
be
quite
consistent
with
Her
Majesty
being
the
party
who
opposes
the
appeal.
There
is,
indeed,
no
need
for
the
person
who
exercises
a
power
under
a
statute
to
be
a
party
to
a
proceeding
attacking
his
decision.
He
is
in
the
position
of
a
tribunal
or
an
authority
whose
decision
is
under
appeal.
The
person
interested
in
maintaining
his
decision
in
this
case
is
Her
Majesty
and
as
long
as
She
or
somebody
acting
for
Her
is
a
party
to
protect
Her
interests,
that
is
all
that
should
be
required.
I
have
no
hesitation
in
concluding
that
the
forms
as
indicated
in
subsection
175(1)
should
be
used,
that
the
documents
should
be
called
statements
of
claim
or
declarations
and
that
the
parties
should
be
described
as
plaintiffs
and
defendants.
Although
as
mentioned
above
my
inclination
would
be
to
the
view
that
the
party
should
be
Her
Majesty
herself
as
She
is
in
Schedule
“A”,
I
do
so
with
some
hesitation
in
view
of
the
clear
language
of
the
Income
Tax
Act
which
refers
only
to
the
“Minister
of
National
Revenue”
upon
whom
certain
statutory
duties
are
imposed
and
the
possibility
of
raising
the
arguable
submission
that
unless
the
Minister
of
National
Revenue
is
in
fact
made
a
party
to
the
proceedings,
the
Court
may
be
powerless
to
exercise
the
jurisdiction
conferred
on
it
by
section
177
of
the
Income
Tax
Act,
RSC
1952,
c
148,
as
amended
by
c
63,
SC
1970-71-72,
to
refer
an
assessment
back
to
the
Minister
for
reconsideration
and
reassessment.
There
is
also
the
possibility
of
an
arguable
submission
being
made
that
in
those
cases,
where
Her
Majesty
is
the
unsuccessful
party
in
the
litigation,
the
Court
would
not
have
jurisdiction
under
section
178
of
the
Income
Tax
Act,
RSC
1952,
c
148,
as
amended
by
c
63,
SC
1970-71-72,
to
order
Her
Majesty
to
pay
the
costs
or
repay
the
tax
on
the
submission
that
the
Court’s
jurisdiction
is
limited
to
making
orders
against
the
Minister
and
that
if
he
is
not
a
party
to
the
proceedings,
such
an
order
could
not
be
made
against
him.
Should
the
present
motion
be
one
to
strike,
or
should
I
be
faced
with
such
a
submission
on
appeal,
I
would
have
to
come
to
a
conclusion
on
the
matter.
The
problem
is
here
not
only
a
question
of
procedure
but
one
of
interpretation
of
a
number
of
sections
of
a
statute
dealing
with
the
manner
in
which
appeals
should
be
taken
before
this
Court
and
which,
if
improperly
taken,
may
possibly
result
in
the
dismissal
of
the
proceedings.
Rule
473
of
the
Rules
of
this
Court
under
which
the
present
motion
was
presented,
allows
the
Court
to
give
directions
only
as
to
the
procedure
to
govern
the
course
of
the
matter
and
does
not
permit
the
Court
to
issue
directions
on
the
interpretation
to
be
given
to
a
statute
which
deals
with
the
manner
in
which
proceedings
should
be
launched.
Obviously,
no
decision
on
the
above
matter
can
be
given
until
the
matter
is
raised
during
an
appeal
or
comes
up
on
a
motion
to
strike
out,
and
the
present
motion
is
not
such
a
motion.
I
should
point
out
that
section
62
of
the
Income
Tax
Application
Rules,
1971
provides
for
proceedings
to
be
instituted
in
accordance
with
the
old
Act,
for
a
period
of
two
years
after
the
coming
into
force
of
the
1971
Income
Tax
Act.
This
section
reads
as
follows:
62.
(6)
An
appeal
to
the
Federal
Court
instituted
within
2
years
after
the
coming
into
force
of
this
Act,
that
is
instituted
in
accordance
with
Division
J
of
Part
I
of
the
former
Act
and
any
rules
made
thereunder
as
those
rules
read
immediately
before
the
coming
into
force
of
this
Act,
shall
be
deemed
to
have
been
instituted
in
the
manner
provided
by
the
amended
Act;
and
any
document
that
is
served
on
the
Minister
or
a
taxpayer
in
connection
with
an
appeal
so
instituted
in
the
manner
provided
in
that
Division
and
those
rules
shall
be
deemed
to
have
been
served
in
the
manner
provided
by
the
amended
Act.
The
above
must,
therefore,
necessarily
be
more
in
the
nature
of
comments
than
directives
but
it
is
put
forward
in
the
hope
that
it
will
be
persuasive
in
indicating
to
the
parties
the
most
desirable
manner
in
which
proceedings
in
appeal
should
be
dealt
with
before
this
Court.
I
shall
now
deal
with
the
pleading
of
statutory
provisions
and
reasons.
I
am
of
the
view
that
although
because
of
the
repeal
of
the
provisions
of
subsection
(3)
of
section
98
and
subsection
(1)
of
section
99
of
the
Income
Tax
Act,
RSC
1952,
c
148
by
section
1
of
c
63
of
SC
1970-71-72,
there
is
no
longer
any
statutory
obligation
for
a
party
to
plead
either
statutory
provisions
or
reasons,
I
am
inclined
to
encourage
such
pleadings
in
view
of
their
usefulness
in
allowing
the
parties
and
particularly
the
taxpayer,
to
be
informed
on
precisely
what
basis
the
proceedings
are
taken,
having
regard
to
the
assumptions
which
the
Minister,
in
some
cases,
is
entitled
to
adopt
with
regard
to
the
basis
of
the
assessments.
Although
the
provisions
for
providing
for
such
pleadings
have
been
repealed,
this
does
not
mean
that
they
cannot
be
pleaded
or
even
ordered
for
that
matter,
if
by
not
pleading
them
they
may
take
the
other
party
by
surprise.
Rule
409
of
the
General
Rules
of
the
Court
indeed
provides,
inter
alia
that
A
party
shall
plead
specifically
any
matter
(b)
that,
if
not
specifically
pleaded,
might
take
the
opposite
party
by
surprise
.
.
.
and
Rule
412
says
“A
party
may
by
his
pleading
raise
any
point
of
law”.
The
parties
are
hereby
authorized
to
amend
their
pleadings
in
order
to
conform
to
the
preferred
forms
of
pleading
as
hereinbefore
indicated.
There
shall
be
no
costs.
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