Walsh,
J:—Plaintiff’s
motion
to
substitute
Her
Majesty
the
Queen
as
plaintiff
in
place
of
the
Minister
of
National
Revenue
in
this
case
was
contested
by
defendant.
In
making
this
motion
plaintiff
relies
on
the
judgments
in
the
cases
of
Mastino
Developments
Limited
et
al
v
The
Queen,
[1972]
CTC
249;
72
DTC
6211,
and
Her
Majesty
the
Queen
v
Joseph
M
Weintraub,
[1972]
CTC
331;
72
DTC
6296,
which
latter
judgment
affirmed
the
judgment
of
Noël,
ACJ
in
the
same
case,
reported
at
[1972]
CTC
302;
72
DTC
6262.
These
judgments
definitively
settled
that
income
tax
appeals
should
be
brought
by
or
against
Her
Majesty
the
Queen
rather
than
the
Minister
of
National
Revenue.
There
had
been
some
uncertainty
prior
to
this
time
due
to
the
wording
of
subsection
48(1)
of
the
Federal
Court
Act
when
read
in
conjunction
with
subsection
175(1)
of
the
Income
Tax
Act,
and
this
was
clarified
by
these
judgments.
It
should
be
noted
that
the
first
of
these
judgments
was
that
of
Noel,
ACJ
in
the
Mastino
case
rendered
on
May
12,
1972
which
was
subsequent
to
the
production
of
the
Statement
of
Claim
in
the
present
proceedings
which
took
place
on
April
18,
1972.
Moreover,
the
present
proceedings
are
an
appeal
by
the
Minister
from
a
judgment
of
the
Tax
Appeal
Board
in
which
the
parties
were
designated
in
the
same
manner.
Defendant’s
counsel
argued
that
by
substituting
Her
Majesty
the
Queen
for
the
Minister
of
National
Revenue
as
plaintiff
a
new
party
was
being
introduced
into
the
proceedings
to
replace
the
party
in
whose
name
they
were
brought
and
that
this
would
require
new
proceedings
and
not
merely
an
amendment,
and
since
the
delays
to
appeal
would
have
expired
these
new
proceedings
could
not
now
be
brought.
The
defendant
would
therefore
suffer
prejudice
if
the
present
proceedings
were
allowed
to
continue
against
it
by
an
amendment
Substituting
another
party
as
plaintiff.
In
support
of
his
argument
he
relied
on
the
comment
by
the
Associate
Chief
Justice
in
the
Mastino
case
(which
was
an
application
for
directions
rather
than
an
issue
between
parties)
in
which
he
said
at
page
254
[6214]:
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.
He
also
argued
that
Rule
425
cannot
be
invoked
to
rectify
a
mistake
in
law.
Rule
425
reads
as
follows:
425.
An
amendment
to
correct
the
name
of
a
party
may
be
allowed
under
Rule
424,
notwithstanding
that
it
is
alleged
that
the
effect
of
the
amendment
will
be
to
substitute
a
new
party,
if
the
Court
is
satisfied
that
the
mistake
sought
to
be
corrected
was
a
genuine
mistake
and
was
not
misleading
or
such
as
to
Cause
any
reasonable
doubt
as
to
the
identity
of
the
party
intending
to
sue,
or,
as
the
case
may
be,
intended
to
be
sued.
In
support
of
this
contention
he
referred
to
the
case
of
Bruno
v
International
Coal
and
Coke
Company
(1913),
12
DLR
745.
That
case
held
that
an
employee’s
ignorance
of
the
fact
that
he
was
entitled
to
compensation
for
injuries
is
not
a
mistake
that
will
excuse
his
failure
to
give
notice
thereof
in
the
manner
required
by
the
Alberta
Workmen’s
Compensation
Act,
but
it
also
held
that
the
failure
to
give
notice
within
the
time
prescribed
was
not
fatal
unless
the
omission
was
prejudicial
to
the
employer,
so
I
cannot
find
that
it
supports
his
argument.
If
plaintiff
did,
in
fact,
make
a
mistake
in
law
in
initiating
the
proceedings
as
he
did
this
was
because
the
law
was
so
unsettled
at
the
time
that
an
application
for
directions
was
made
soon
thereafter
to
the
Federal
Court
in
another
case
in
order
to
determine
what
was
the
correct
manner
in
which
the
parties
should
be
designated
in
income
tax
appeals.
In
any
event,
section
62
of
the
Income
Tax
Application
Rules,
1971,
referred
to
in
the
Mastino
case,
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
1
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.
Moreover,
Rule
424
reads
as
follows:
424.
Where
an
application
to
the
Court
for
leave
to
make
an
amendment
mentioned
in
Rules
425,
426
or
427
is
made
after
any
relevant
period
of
limitation
current
at
the
date
of
commencement
of
the
action
has
expired,
the
Court
may,
nevertheless,
grant
such
leave
in
the
circumstances
mentioned
in
that
rule
if
it
seems
just
to
do
so.
and
this
leaves
discretion
to
the
Court.
Rule
425
permits
the
substitution
of
a
new
party:
.
.
.
if
the
Court
is
satisfied
that
the
mistake
sought
to
be
corrected
was
a
genuine
mistake
and
was
not
misleading
or
such
as
to
cause
any
reasonable
doubt
as
to
the
identity
of
the
party
intending
to
sue,
or,
as
the
case
may
be,
intended
to
be
sued.
and
it
is
abundantly
clear
that
there
has
never
been
any
mistake
as
to
the
identity
of
the
plaintiff,
nor
has
defendant
in
any
way
been
prejudiced
whether
the
proceedings
are
brought
in
the
name
of
the
Minister
of
National
Revenue
or
in
the
name
of
Her
Majesty
the
Queen,
as
plaintiff.
The
present
amendment
is
sought
merely
to
bring
the
proceedings
into
line
with
what
is
now
considered
to
be
the
proper
procedure.
I
therefore
permit
the
amendment.
Had
the
motion
not
been
contested
no
costs
would
have
been
allowed
on
it,
but
in
view
of
the
unsuccessful
contestation,
costs
of
the
motion
will
be
in
favour
of
plaintiff.
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