Heald,
J:—This
is
an
application
by
Notice
of
Motion
for
an
order
striking
out
the
Statement
of
Claim
herein.
The
three
plaintiffs
in
this
action
are
all
corporations
duly
incorporated
under
the
laws
of
the
Province
of
Saskatchewan.
The
plaintiffs
L
&
M
Wood
Products
Ltd
and
North
Battleford
Lumber
and
Post
Sales
Ltd
are
appealing
their
income
tax
assessments
by
the
defendant
for
the
taxation
years
1968
and
1969.
The
plaintiff,
Glaslyn
Forest
Products
Lid,
is
appealing
its
income
tax
assessment
by
the
defendant
for
the
taxation
year
1969.
However,
the
problem
is
that
the
said
income
tax
assessments
are
attacked
in
one
single
proceeding
in
the
Federal
Court.
The
Statement
of
Claim
asserts
that
the
defendant
has
deemed
the
three
plaintiff
taxpayers
to
be
associated
with
each
other
for
the
purpose
of
section
39
of
the
Income
Tax
Act
under
the
provisions
of
subsection
138A(2)
of
said
Act
and
all
three
plaintiffs
challenge
that
decision
in
this
single
proceeding.
The
impugned
Statement
of
Claim
is
dated
August
17,
1972
and
was
filed
in
the
Court
on
August
18,
1972.
These
proceedings
are
accordingly
governed
by
the
provisions
of
the
Statutes
of
Canada
1970-71-72,
c
63,
which
came
into
force
on
January
1,
1972.
The
procedures
for
appeals
under
this
Act
are
contained
in
Part
I,
Division
J
as
set
out
in
sections
169
to
180
inclusive.
The
Statement
of
Claim
alleges
that
all
three
taxpayers
objected
to
the
subject
assessments
which
objections
were
rejected
by
the
defendant
on
July
7,
1972
and
this
action
is
an
appeal
to
this
Court
from
said
decision
by
the
defendant.
The
following
sections
of
SC
1970-71-72,
c
63,
are
pertinent
to
a
proper
consideration
of
this
motion:
165.
(1)
A
taxpayer
who
objects
to
an
assessment
under
this
Part
may,
within
90
days
from
the
day
of
mailing
of
the
notice
of
assessment,
serve
on
the
Minister
a
notice
of
objection
in
duplicate
in
prescribed
form
setting
out
the
reasons
for
the
objection
and
all
relevant
facts.
(2)
A
notice
of
objection
under
this
section
shall
be
served
by
being
sent
by
registered
mail
addressed
to
the
Deputy
Minister
of
National
Revenue
for
Taxation
at
Ottawa.
(3)
Upon
receipt
of
a
notice
of
objection
under
this
section,
the
Minister
shall,
(a)
with
all
due
dispatch
reconsider
the
assessment
and
vacate,
confirm
or
vary
the
assessment
or
reassess,
or
(b)
where
the
taxpayer
indicates
in
the
notice
of
objection
that
he
wishes
to
appeal
immediately
either
to
the
Tax
Review
Board
or
to
the
Federal
Court
and
that
he
waives
reconsideration
of
the
assessment
and
the
Min-
itser
consents,
file
a
copy
of
the
notice
of
objection
with
the
Registrar
of
the
Tax
Review
Board
or
in
the
Registry
of
the
Federal
Court,
as
the
case
may
be,
and
he
shall
thereupon
notify
the
taxpayer
of
his
action
by
registered
mail.
169.
Where
a
taxpayer
has
served
notice
of
objection
to
an
assessment
under
section
165,
he
may
appeal
to
the
Tax
Review
Board
to
have
the
assessment
vacated
or
varied
after
either
(a)
the
Minister
has
confirmed
the
assessment
or
reassessed,
or
(b)
180
days
have
elapsed
after
service
of
the
notice
of
objection
and
the
Minister
has
not
notified
the
taxpayer
that
he
has
vacated
or
confirmed
the
assessment
or
reassessed;
but
no
appeal
under
this
section
may
be
instituted
after
the
expiration
of
90
days
from
the
day
notice
has
been
mailed
to
the
taxpayer
under
section
165
that
the
Minister
has
confirmed
the
assessment
or
reassessed.
172.
(1)
The
Minister
or
the
taxpayer
may,
within
120
days
from
the
day
on
which
the
Registrar
of
the
Tax
Review
Board
mails
the
decision
on
an
appeal
under
section
169
to
the
Minister
and
the
taxpayer,
appeal
to
the
Federal
Court
of
Canada.
(2)
Where
a
taxpayer
has
served
a
notice
of
objection
to
an
assessment
under
section
165,
he
may,
in
place
of
appealing
to
the
Tax
Review
Board
under
section
169,
appeal
to
the
Federal
Court
of
Canada
at
a
time
when,
under
section
169,
he
could
have
appealed
to
the
Tax
Review
Board.
In
this
case,
the
three
plaintiff
taxpayers
have
purported
to
appeal
direct
to
this
Court
under
subsection
172(2).
They
have,
according
to
the
pleadings,
complied
with
the
90-day
period
stipulated
in
section
169
inasmuch
as
the
subject
assessments
were
apparently
confirmed
by
the
defendant
as
contemplated
by
subsection
165(3)
on
July
7,
1972.
The
matter
of
institution
of
appeals
is
covered
by
section
175
of
the
Act,
the
relevant
portions
of
which
are
as
follows:
175.
(1)
An
appeal
to
the
Federal
Court
under
this
Act
.
.
.
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,
.
.
.
(3)
An
appeal
instituted
under
this
section
shall
be
deemed
to
be
an
action
in
the
Federal
Court
to
which
the
Federal
Court
Act
and
the
Federal
Court
Rules
applicable
to
an
ordinary
action
apply,
except
as
varied
by
special
rules
made
in
respect
of
such
appeals,
and
except
that
(a)
the
Rules
concerning
joinder
of
parties
and
causes
of
action
do
not
apply
except
to
permit
the
joinder
of
appeals
instituted
under
this
section;
Subsection
175(1)
provides
for
appeals
being
instituted
“in
the
manner
set
forth
in
section
48
of
the
Federal
Court
Act’’,
which
provision
authorizes
the
institution
of
a
proceeding
against
the
Crown
by
a
document
in
the
form
set
out
in
Schedule
A
to
that
Act,
and
that
Schedule
provides
for
a
Statement
of
Claim
or
declaration
with
the
person
launching
the
proceeding
described
as
“plaintiff”
and
“Her
Majesty
the
Queen”
described
as
“defendant”.
This
Court
has
decided
that
the
preferable
procedure
in
income
tax
appeals
under
section
175
is
to
join
“Her
Majesty
the
Queen”
as
defendant
rather
than
“The
Minister
of
National
Revenue”.*
In
the
case
at
bar,
the
Minister
of
National
Revenue
is
the
defendant.
This
is
not
fatal
to
the
sufficiency
of
subject
Statement
of
Claim
but
I
refer
to
it
because
it
!s
at
variance
with
the
now
established
procedure
in
this
Court.
However,
this
Statement
of
Claim
is,
in
my
view,
fatally
defective
because
it
does
not
comply
with
subsection
175(3)
of
the
Act.
Subsection
175(3)
makes
applicable
to
this
procedure
the
Federal
Court
Rules
excepting
that
said
Rules
concerning
joinder
of
parties
and
causes
of
action
do
not
apply
except
to
permit
the
joinder
of
appeals
instituted
under
section
175.
The
applicable
Federal
Court
Rules
are
Rules
1714
and
1715
which
read
as
follows:
1714.
(1)
A
plaintiff
may
in
one
action
claim
relief
against
the
same
defendant
in
respect
of
more
than
one
cause
of
action
(a)
if
the
plaintiff
claims,
and
the
defendant
is
alleged
to
be
liable,
in
the
same
capacity
in
respect
of
all
the
causes
of
action,
or
(b)
with
the
leave
of
the
Court.
(2)
An
application
for
leave
under
paragraph
(1)
may
be
made
ex
parte
before
commencement
of
the
action.
1715.
(1)
Two
or
more
persons
may
be
joined
together
in
one
action
as
plaintiffs
or
as
defendants
with
the
leave
of
the
Court
or
where
(a)
if
separate
actions
were
brought
by
or
against
each
of
them,
as
the
case
may
be,
some
common
question
of
law
or
fact
would
arise
in
all
the
actions,
or
(b)
all
rights
to
relief
claimed
in
the
action
(whether
they
are
joint,
several
or
alternative)
are
in
respect
of
or
arise
out
of
the
same
fact,
matter
or
thing.
(2)
Where
the
plaintiff
in
any
action
claims
any
relief
to
which
any
other
person
is
entitled
jointly
with
him,
all
persons
so
entitled
shall,
subject
to
the
provisions
of
any
Act
and,
unless
the
Court
gives
leave
to
the
contrary,
be
made
parties
to
the
action
and
any
of
them
who
does
not
consent
to
being
joined
as
a
plaintiff
shall,
subject
to
any
order
made
by
the
Court
on
an
application
for
leave
under
paragraph
(1),
be
made
a
defendant.
Were
it
not
for
the
specific
prohibition
contained
in
subsection
175(3)
of
the
Income
Tax
Act,
it
may
well
be
that
the
plaintiffs
here
could
bring
themselves
within
the
provisions
of
said
Rules
so
as
to
permit
several
taxpayers
to
appeal
their
income
tax
assessments
in
one
proceeding.
However,
reading
subsection
175(3)
with
Rules
1714
and
1715
and
taking
said
section
in
the
context
of
the
income
tax
statute
as
a
whole,
I
have
the
view
that
each
taxpayer
must
“institute”
his
appeal
separate
and
apart
from
any
other
taxpayer.
The
scheme
of
the
statute
applies
to
separate
taxation
years
and
to
separate
taxpayers.
Each
assessment
in
each
year
is,
it
seems
to
me,
a
separate
cause
of
action.
The
object
of
the
appeal
procedures
set
out
in
the
Act
is
to
obtain
an
adjudication
of
the
issues
which
have
arisen
between
a
particular
taxpayer
and
the
Minister
of
National
Revenue
as
to
his
liabilities
under
the
statute
for
a
particular
taxation
year.
I
am
therefore
of
the
opinion
that
the
three
separate
taxpayers
in
this
case
should
have
commenced
separate
appeals
against
the
income
tax
assessments
complained
of.
Once
this
were
done
and
the
Minister
had
pleaded
thereto,
and
the
pleadings
were
closed,
I
believe
that
paragraph
175(3)(a)
would
permit
the
appeals
to
be
joined
for
the
purposes
of
trial,
if,
as
submitted
by
plaintiffs’
counsel,
the
three
appeals
depend
on
common
facts
and
on
the
same
legal
issues.
I
have
therefore
concluded
that
the
present
Statement
of
Claim
cannot
be
allowed
to
stand
and
must
be
struck
out.
I
reach
this
conclusion
with
some
reluctance
because
the
plaintiffs
have
very
definitely
indicated
their
intention
to
appeal
the
Minister’s
assessments
to
this
Court
within
the
time
limit
prescribed
by
the
Act
and
they
should
be
given
every
opportunity
to
do
so.
However,
their
right
to
appeal
is
statutory
and
is
contingent
upon
compliance
with
the
conditions
set
out
in
that
part
of
the
statute
conferring
on
them
the
right
to
appeal.
My
decision
to
strike
out
this
Statement
of
Claim
would
leave
the
plaintiffs
in
a
difficult
position
because
of
the
expiration
of
the
90-day
appeal
time
limit
under
section
169
were
it
not
for
the
relieving
provisions
of
subsection
167(4)
which
read
as
follows:
167.
(4)
Where
no
appeal
to
the
Federal
Court
of
Canada
under
section
172
has
been
instituted
within
the
time
limited
by
that
section,
an
application
may
be
made
to
the
Federal
Court
of
Canada
by
notice
filed
in
the
Court
and
served
on
the
Deputy
Attorney
General
of
Canada
at
least
14
days
before
the
application
is
returnable
for
an
order
extending
the
time
within
which
such
appeal
may
be
instituted
and
the
Court
may,
if
in
its
opinion
the
circumstances
of
the
case
are
such
that
it
would
be
just
and
equitable
to
do
so,
make
an
order
extending
the
time
for
appealing
and
may
impose
such
terms
as
it
deems
just.
This
subsection
enables
the
plaintiffs
to
make
the
application
for
extension
of
time
contemplated
thereunder
provided
the
conditions
set
out
in
subsection
167(5)
are
complied
with.
The
Statement
of
Claim
herein
is
therefore
ordered
to
be
struck
out.
No
costs
were
asked
for
and,
in
the
circumstances,
I
will
make
no
order
as
to
costs.
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