ANDERSON,
J.:—This
is
an
appeal
from
the
decision
of
the
Board
of
Revenue
Commissioners
of
the
province
of
Saskatchewan,
dated
January
27,
1939,
whereby
the
said
Board
dismissed
three
appeals
of
the
International
Harvester
Company
of
Canada
Limited
against
the
following
three
income
tax
assessments
of
the
Commissioner
of
Income
Tax,
dated
August
23,
1938:
(1)
An
assessment
of
$4,382.07
for
the
taxation
year
1934:
(2)
An
assessment
of
$11,541.07
for
the
taxation
year
1935;
(3)
An
assessment
of
$10,136.60
for
a
period
of
10
months
ending
October
31,
1936.
The
assessment
for
the
taxation
year
1934
was
made
under
The
Income
Tax
Act,
1932,
ch
.9,
and
amendments
thereto,
while
the
assessments
for
1935
and
1936
were
made
under
The
Income
Tax
Act,
1936,
ch.
15,
substantially
a
consolidation
of
the
1932
Act
with
its
amendments.
Under
sec.
53
of
the
1932
Act
as
amended
by
ch.
5
of
1934,
and
ch.
16
of
1934-35
,coming
into
force
on
February
15,
1935,
before
any
return
was
made
by
the
appellant
company,
an
appeal
lay
from
the
primary
assessment
of
the
Commissioner
of
Income
Tax
to
the
Board
of
Revenue
Commissioners,
which
right
of
appeal
was
carried
forward
in
sec.
57
of
The
Income
Tax
Act,
1936.
By
both
Acts
a
further
appeal
lay
to
a
Judge
of
the
Court
of
King’s
Bench
(sec.
54
of
1932
Act,
sec.
58
of
1936
Act).
Subsequently
by
secs.
5
and
6
of
ch.
8
of
1987,
a
right
of
appeal
to
the
Court
of
Appeal
was
given,
the
empowering
section
being
known
as
o8a
of
the
1936
Act.
On
March
23,
1938,
sees.
58
and
58a
aforesaid
were
repealed
by
sec.
2
of
ch.
91,
1938,
but
on
that
same
day
the
new
Treasury
Department
Act,
1938,
ch.
8,
came
into
force,
containing
sees.
41
and
44,
corresponding
to,
and
taking
the
place
of,
the
repealed
secs.
58
and
o8a.
For
the
purposes
of
these
appeals,
the
provisions
of
the
statutory
enactments
to
be
mainly
considered
are
the
relevant
sections
of
The
Income
Tax
Acts
of
1932
and
1936
(either
verbatim,
or
substantially,
the
same)
and
of
the
Treasury
Department
Act,
1938,
secs.
40,
41
and
42
dealing
with
appeals
in
their
ascending
order
from
the
assessment
of
the
Commissioner
of
Income
Tax
to
the
Board
of
Revenue
Commissioners,
to
a
Judge
of
the
Court
of.
King’s
Bench
and
to
the
Court
of
Appeal.
Of
The
Treasury
Department
Act,
1938,
the
following
parts
may
be
here
noted:
"
40.
(1)
The
Lieutenant
Governor
in
Council
may
appoint
a
Board
of
Revenue
Commissioners
consisting
of
three
members,
one
of
whom
shall
be
so
appointed
as
chairman.
***
^(8)
The
board
shall
have
power
to:
‘“(a)
hear
appeals
respecting
the
payment
of
taxes
or
other
moneys
due
to
the
Crown;
***
“41.
(1)
An
appeal
shall
lie
to
a
judge
of
the
Court
of
King’s
Bench
from
a
decision
of
the
board
on
a
question
of
law
arising
in
an
appeal
to
it
under
clause
(a)
of
subsection
(8)
of
section
40.
The
consent
of
the
Attorney
General
shall
first
be
had
and
obtained
to
an
appeal
by
the
Provincial
Tax
Commission.
11
(6)
At
the
hearing
of
the
appeal
the
judge
shall
hear
and
consider
the
cause
upon
the
material
which
was
before
the
board
at
the
hearing
conducted
before
it
and
upon
such
further
material
or
evidence
as
the
judge
may,
upon
or
without
terms,
permit.
The
judge
may
affirm
the
decision
of
the
board
or
amend
or
reverse
the
same
in
so
far
as
it
was
based
upon
any
error
in
law.
‘
‘
The
returns
of
the
appellant
company
herein
for
the
years
of
1934,
1935
and
1936
were
filed
with
the
commissioner
on
May
28,
1935,
June
2,
1936,
and
May
26,
1937,
respectively.
Some
time
was
taken
up
in
the
conveyance
of,
and
compliance
with,
requests
for
further
information,
with
the
result
that
notice
of
assessment
was
given
to
the
appellant
for
each
of
these
years
on
August
23,
1938.
(Admission
of
facts,
pars.
7,
8
and
9.)
Appeal
was
taken
against
each
assessment
of
the
commissioner
to
the
Board
of
Revenue
Commissioners
on
September
23,
1938.
After
hearing
counsel
for
both
parties
the
Board
dismissed
the
three
appeals
by
their
decision
dated
January
27,
1939.
These
three
appeals
now
come
before
me
as
a
Judge
of
the
Court
of
King’s
Bench
under
sec.
41
aforesaid
of
The
Treasury
Department
Act,
1938,
ch.
8.
Those
framing
these
income
tax
Acts
were
evidently
quite
mindful
of
the
limitation
of
provincial
jurisdiction
to
‘‘
Direct
Taxation
within
the
Province”
as
set
forth
in
clause
(2)
of
sec.
92
of
the
British
North
America
Act,
1867,
as
is
indicated
by
sec.
23
of
the
1936
Act
(verbatim
the
same
as
sec.
21a
of
1932)
:
23.
The
income
liable
to
taxation
under
this
Act
of
every
person
residing
outside
of
Saskatchewan,
who
is
carrying
on
business
in
Saskatchewan,
either
directly
or
through
or
in
the
name
of
any
other
person,
shall
be
the
net
profit
or
gain
arising
from
the
business
of
such
person
in
Saskatchewan.”
The
problem
therefore
is:
Did
the
commissioner
in
making
these
three
assessments
keep
within
the
authorization
and
limitation
laid
down
in
sec.
23
aforesaid
?
Counsel
for
the
commissioner
argues
in
the
affirmative,
counsel
for
the
appellant
company
contends
that
he
contravened
this
section,
assessing
income
of
the
company
outside
the
province.
In
considering
the
grounds
of
appeal
herein,
the
following
provisions
in
the
Act
may
be
noted.
(a)
The
primary
duty
lies
on
the
taxpayer
to
deliver
to
the
commissioner
before
May
31
in
each
year
a
return
of
such
a
nature
as
to
enable
him
to
determine
the
taxable
income
within
the
province
(sec.
32
of
1936
Act,
sec.
29
of
1932
Act)
:
"32.
(1)
Every
person
liable
to
taxation
under
this
Act
shall,
on
or
before
the
thirty-first
day
of
May
in
each
year,
without
any
notice
or
demand,
deliver
to
the
commissioner
a
return,
in
such
form
as
the
commissioner
may
prescribe,
of
his
total
income
during
the
last
preceding
year.
‘
‘
(b)
The
commissioner
may
request,
and
the
taxpayer
should
provide,
any
further
necessary
information
(sec.
39
of
1936
Act,
sec.
37
of
1932
Act)
:
"39.
(1)
If
the
commissioner,
in
order
to
enable
him
to
make
an
assessment
or
for
any
other
purpose,
desires
information
or
additional
information
or
a
return
from
any
person
who
has
not
made
a
return
or
a
complete
return,
he
may
by
registered
letter
demand
from
such
person
the
information,
additional
information
or
return.
‘
‘
(c)
The
commissioner
is
not
bound
by
any
return
or
information
delivered,
but,
despite
the
return
or
information
or
lack
of
such,
may
determine
the
amount
of
the
tax
(see.
54
of
1936
Act,
sec.
43
of
1932
Act)
:
"154.
The
commissioner
shall
not
be
bound
by
any
return
or
information
supplied
by
or
on
behalf
of
a
taxpayer,
and
notwithstanding
such
return
or
information,
of
if
no
return
has
been
made,
the
commissioner
may
determine
the
amount
of
the
tax
*
*
*”
The
commissioner
is
entitled
to
use
his
judgment,
it
would
not
be
practical
to
have
it
otherwise;
he
may
not
believe
in
the
accuracy
or
frankness
of
the
information;
the
information
may
be
inadequate,
perhaps
incapable
of
being
perfectly
supplemented.
(d)
An
omnibus
power
is
given
the
Lieutenant-Governor
in
Council
to
make
regulations
consistent
with
the
spirit
of
the
Act
for
the
purpose
of
administering
the
Act
(see.
66
of
1936
Act,
see.
63
of
the
1932
Act)
:
"‘66.
For
the
purpose
of
carrying
out
the
provisions
of
this
Act
according
to
their
true
intent
and
of
supplying
any
deficiency
therein,
the
Lieutenant-Governor
in
Council
may
make
regulations
not
inconsistent
with
the
spirit
of
the
Act,
which
shall
have
the
same
foree
and
effect
as
if
incorporated
herein.
‘
(e)
A
specific
power
is
granted
the
Lieutenant-Governor
in
Council
to
make
regulations
for
determining
the
income
in
Saskatchewan
when
the
commissioner
is
unable
to
determine
or
obtain
the
information
necessary
to
ascertain
the
taxable
income
with
precision
(sec.
9
[4]
of
1936
Act,
verbatim
the
same
as
sec.
7
[4]
of
1932
Act:
"9.
(4)
Where
the
commissioner
is
unable
to
determine
or
to
obtain
the
information
required
to
ascertain
the
income
within
the
province
of
any
corporation
or
joint
stock
company
or
of
any
class
of
corporations
or
joint
stock
companies,
the
Lieutenant
Governor
in
Council
may,
on
the
recommendation
of
the
commissioner,
make
regulations
for
determining
such
income
within
the
province
or
may
fix
or
determine
the
tax
to
be
paid
by
a
corporation
or
joint
stock
company
liable
to
taxation.
(f)
Under
see.
7
(4),
verbatim
the
same
as
sec.
9
[4]
aforesaid,
the
following
regulations,
Ex.
A3,
were
made
:
“Province
of
Saskatchewan
^Income
Tax
Act,
1932.
“Regulations.
‘“Issued
pursuant
to
subsection
(4)
of
section
7
of
chapter
9
of
the
Statutes
of
Saskatchewan,
1932,
intituled
The
Income
Tax
Act,
1932,
and
approved
under
order
made
in
council
on
the
23rd
day
of
November,
1933.
‘“Covering
such
cases
where
the
Minister
is
unable
to
determine
or
obtain
information
required
to
ascertain
the
income
within
the
Province
of
a
corporation
or
joint
stock
company
carrying
on
a
trade
or
business
within
and
without
the
Province.
“1.
Interest,
dividends,
rents
and
royalties
less
their
proportionate
share
of
deductions
allowed
shall
be
separately
determined
or
ascertained,
and
if
they
are
received
in
connection
with
the
trade
or
business
of
the
taxpayer
in
the
Provinee,
shall
be
income
liable
to
taxation.
“2.
The
income
referred
to
in
regulation
1
having
been
separately
determined
and
ascertained,
the
remainder
of
the
income
of
the
taxpayer
liable
to
taxation
shall
be
taken
to
be
such
percentage
of
the
remainder
of
the
income
as
the
sales
within
the
Province
bear
to
the
total
sales.
‘‘The
sales
of
the
taxpayer
shall
be
measured
by
the
gross
amount
which
the
taxpayer
has
received
during
the
preceding
year
from
sales
and
other
sources
in
connection
with
the
said
business,
excluding,
however,
receipts
from
the
sale
or
exchange
of
capital,
assets
and
property
not
sold
in
the
regular
course
of
business
and
also
receipts
from
interest,
dividends,
rents
and
royalties
the
income
of
which
has
been
separately
determined
or
ascertained
under
the
provisions
of
regulation
1.
"‘3.
If
for
any
reason
the
portion
of
income
attributable
to
business
within
the
Province
cannot
be
determined
under
the
provisions
of
regulation
2,
the
income
referred
to
in
regulation
1
shall
first
be
separately
ascertained
or
determined
and
for
the
purpose
of
ascertaining
or
determining
the
proportion
of
the
remainder
of
the
income
of
the
taxpayer,
such
remainder
of
income
shall
be
specifically
allocated
or
apportioned
within
and
without
the
Province
by
the
Commissioner.
"
‘4.
If
a
taxpayer
believes
that
the
method
of
allocation
and
apportionment
herein
prescribed
or
as
determined
and
as
applied
to
his
business,
has
operated
or
will
so
operate
as
to
subject
him
to
taxation
on
a
greater
portion
of
his
income
than
is
reasonably
attributable
to
business
or
sources
within
the
Province,
he
shall
be
entitled
to
file
with
the
Commissioner
a
statement
of
his
objections
and
of
such
alternative
method
of
allocation
and
apportionment
as
he
believes
to
be
proper
under
the
circumstances,
with
such
details
and
proof
and
within
such
time
as
the
Commissioner
may
reasonably
prescribe,
and
if
the
Commissioner
shall
conclude
that
the
method
of
allocation
and
apportionment
heretofore
employed
is
in
fact
not
applicable
or
equitable,
he
shall
re-determine
the
taxable
income
by
such
other
method
of
allocation
or
apportionment
as
seems
best
calculated
to
assign
to
the
Province
for
taxation
the
portion
of
the
income
reasonably
attributable
to
business
and
sourees
within
the
Province.
(5.
These
regulations
shall
not
be
applied
to
determine
the
income
within
the
Province
of
a
corporation
or
joint
stock
company
carrying
on
a
trade
or
business
within
and
without
the
Province
where
(
(a)
the
method
or
system
of
accounting
used
by
the
taxpayer
enables
the
Commissioner
to
determine
or
to
obtain
the
information
required
to
ascertain
the
income
of
the
taxpayer
liable
to
taxation
;
(b)
the
income
of
the
taxpayer
liable
to
taxation
can
be
determined
or
ascertained
by
allowing
the
exemption
provided
by
paragraph
(m)
of
Section
4
of
The
Income
Tax
Act,
1932.
9f
The
fact
that
The
Income
Tax
Act,
1932,
and
thus
see.
7
(4)
was
repealed
by
sec.
74
of
The
Income
Tax
Act,
1936,
does
not
affect
the
continuance
of
the
regulations
in
A3
made
under
sec.
7
(4),
supra.
See
sec.
40
of
The
Interpretation
Act,
R.S.S.,
1930,
ch.
1
1:
^40.
Whenever
an
Act
is
repealed
wholly
or
in
part
and
other
provisions
are
substituted,
all
by-laws,
orders,
regulations
and
rules
made
under
the
repealed
Act
shall
continue
good
and
valid
in
so
far
as
they
are
not
inconsistent
with
the
substituted
Act,
enactment
or
provision
until
they
are
annulled
or
others
made
in
their
stead.
’
The
grounds
of
appeal
lettered
(a)
to
(i)
in
each
notice
of
appeal
are
the
same.
These
grounds
presented
in
several
different
ways
in
the
notice
and
on
argument,
may,
I
think,
be
fairly
summarized
and
enumerated
as
three
:
(1)
That
it
was
a
condition
precedent
to
the
use
by
the
commissioner
of
the
mode
of
assessment
outlined
in
regulations
1
and
2
of
Ex.
A3,
that
the
commissioner
was
unable
to
determine
or
to
obtain
the
information
required
to
ascertain
the
taxable
income
:
that
the
return
required
by
sec.
32
of
1936
Act
(sec.
29
of
1932
Act)
is
only
the
total
income;
that
the
commissioner
did
not
request,
but
should
have
requested,
from
the
appellant
company
its
income
in
Saskatchewan
to
determine
the
assessment
and
accordingly
each
assessment
was
illegal
as
there
was
no
compliance
with
the
condition
precedent
;
(2)
That
the
method
of
allocation
or
calculation
proceeded
on
a
wrong
basis
in
taxing
income
without
the
province
and
therefore
was
ultra
vires;
(3)
That
the
commissioner
proceeded
on
a
wrong
principle
in
dealing
with
bad
debts,
in
not
making
a
proper
deduction
therefore
and
each
assessment
was
unlawful.
In
regard
to
ground
No.
1
above,
it
seems
to
me
that
the
words
‘‘total
income”
in
sec.
32
of
1936
Act
(sec.
29
of
1932
Act)
should
not
receive
so
restricted
an
interpretation
as
appellant’s
counsel
would
place
on
them,
but
should
be
construed
as
meaning
the
whole
income
or
all
the
income,
including
the
details
or
particulars
which
when
put
or
added
together
constituted
the
whole
or
total
income.
The
taxpayer
knew
or
ought
to
have
known
the
object
of
making
a
return,
namely,
to
give
the
commissioner
-such
data
as
would
enable
him
to
calculate
accurately
the
taxable
income
in
Saskatchewan
:
to
give
just
the
total
income
without
adequate
details
would
make
the
return
useless.
It
was
the
primary
duty
of
the
appellant
company
to
provide
a
full
return
with
details
from
which
the
commissioner
might
be
reasonably
expected
to
calculate
the
taxable
income,
if
such
could
be
done.
The
exhaustive
efforts
made
by
the
commissioner
to
get
the
required
information
(pars.
10,
11,
12
and
13
of
the
admissions
of
facts
together
with
Exs.
DI,
D2,
D8,
D4,
E.
F.
and
G.)
show
that
the
appellant’s
contention,
that
the
income
in
Saskatchewan
was
never
requested
of
the
appellant
company,
is
not
in
accordance
with
the
facts.
There
was
no
failure
on
the
part
of
the
commissioner
to
endeavour
to
get
the
necessary
information;
in
fact,
his
conduct
is
characterized
by
great
perseverance,
industry
and
fairness.
No
doubt
in
order
to
be
authorized
to
use
regulations
1
and
2
of
A3,
it
is
a
condition
precedent
that
he
is
unable
to
determine
or
obtain
the
information
required
to
ascertain
the
income
within
the
province
(sec.
9
[4]
of
1936
Act,
sec.
7
[4]
of
1932
Act,
and
regulation
5
of
A3)
but
the
commissioner
is
the
one
to
decide
his
ability
or
inability
to
determine
or
obtain
the
information
required
to
ascertain
the
taxable
income.
Who
else
could
decide?
No
argument
has
been
or
could
be
reasonably
made
that
the
commissioner
was
able
to
determine
the
exact
amount
of
taxable
income
from
the
information
provided.
Accordingly
the
commissioner
was
entitled
by
sec.
9
(4)
(sec.
7
[4]
of
1932
Act)
to
proceed
under
the
regulations
in
A3.
I
decide
against
this
ground
of
appeal.
The
second
ground
of
appeal
is
that
the
method
of
calculating
or
allotting
the
taxable
income
is
ultra
vires,
as
it
really
taxes
income
without
the
province.
Having
disposed
of
the
first
ground
by
deciding
that
the
condition
precedent
had
been
complied
with,
namely,
that
the
commissioner
was
unable
to
determine,
or
to
obtain
the
information
required
to
ascertain,
the
income
within
the
province,
to
give
the
right
to
apply
the
regulations
of
A3,
we
next
have
to
consider—Do
these
regulations
themselves
contravene
see.
23(21a)?
Obviously
the
commissioner
acted
under
the
percentage
calculation
set
out
in
regulations
1
and
2
of
A3.
They
are
regulations
specially
authorized
by
statute
and
they
carry
a
presumption
that
they
are
"’not
inconsistent
with
the
spirit
of
the
Act,
which
shall
have
the
same
force
and
effect
as
if
incorporated
herein"
(sec.
66
of
1936
Act,
sec.
63
of
1932
Act)
and
that
they
are
"’regulations
for
determining
such
income
within
the
province"
(sec.
9
[4]
of
1936
Act,
sec.
7
[4]
of
1932
Act).
By
reason
of
such
statutory
authority
for
A3
the
onus
probandi
that
these
regulations
are
ultra
vires
rests
on
the
appellant.
This
onus
is
very
important
from
the
very
nature
of
the
facts
relevant
to
these
assessments.
Firstly,
it
may
be
noted
that
the
method
of
allotting
the
income
in
Saskatchewan
as
that
percentage
of
the
total
income
which
the
sales
in
Saskatchewan
bear
to
the
total
sales
(regulations
1
and
2)
is
not
to
be
followed,
if
the
system
of
accounting
used
by
the
taxpayer
will
show
with
accuracy
the
actual
income
in
Saskatchewan
(regulation
5).
The
appellant
had
no
such
system
:
"‘The
appellant
keeps
no
separate
profit
and
loss
account
in
respect
of
the
business
it
carries
on
in
the
Province
of
Saskatchewan,
but
does
keep
at
its
head
office
in
Hamilton,
Ontario,
a
profit
and
loss
account
of
its
entire
business
carried
on
in
the
Dominion
of
Canada
and
elsewhere.
[Admission
of
facts,
par.
6].’’
Regulation
3
evidently
has
its
statutory
counterpart
in
the
last
clause
of
sec.
9
(4)
(sec.
7
[4]
of
1932
Act),
which
it
was
not
deemed
advisable
by
the
commissioner
to
use.
The
percentage
allotment
authorized
by
regulations
1
and
2
is
taken
from
the
Dominion
Income
War
Tax
Act,
R.S.C.,
1927,
ch.
97,
and
regulations,
has
been
utilized
in
various
provincial
Acts
both
before
and
subsequent
to
the
said
Dominion
Act,
has
stood
the
test
of
time
and
litigation
and
is,
in
my
opinion,
as
accurate
and
equitable
a
method
as
can
be
devised
under
the
circumstances.
In
the
1934
return,
Ex.
Al,
the
appellant
indicates
a
net
loss
and
adds
this
note,
‘‘no
allocation
figures
are
given
because
there
is
no
income
to
allocate
to
the
Province
of
Saskatchewan.’’
The
commissioner
did
not
take
this
note
seriously
and
made
his
assessment
at
$4,382.07.
In
the
returns
for
the
year
1935
and
1936,
the
appellant
in
its
memorandum
of
explanation
accompanying
its
return
intimates,
inter
alia,
‘‘
It
is
necessary
therefore
to
ascertain
its
net
income
in
Saskatchewan
by
an
allocation
method.’’
The
appellant
utilizes
a
different
allocation
method
from
the
commissioner,
but
the
point
to
be
stressed
is
that
the
appellant
itself
deems
it
necessary
to
use
an
allocation
method
of
some
kind.
The
problem
then
becomes
which
is
the
best
allocation
method.
The
commissioner,
who
is
the
judge
of
this,
has
exercised
his
discretion
accordingly
and
used
regulations
1
and
2
of
A3.
The
commissioner,
however,
in
regulation
4
inferentially
intimates
that
this
percentage
allocation,
while
perhaps
the
best
that
is
practicable,
is
not
mathematically
perfect,
and,
if
the
taxpayer
can
demonstrate
a
method
more
accurate
and
equitable
in
determining
the
taxable
income
as
applicable
to
its
particular
case,
despite
the
percentage
calculation
already
made,
he
is
prepared
to
reopen
the
matter
and
redetermine
and
reassess
accordingly.
I
do
not
see
how
the
commissioner
could
go
to
any
greater
length
in
endeavouring
to
arrive
at
the
proper
amount.
It
is
to
be
noted
the
appellant
did
not
take
advantage
of
the
offer
contained
in
regulation
4.
Surely
if
the
appellant
knew
of
any
better
method
than
the
said
percentage
allocation
regarding
its
assessment,
that
was
the
time
to
demonstrate
it
at
a
round
table
conference.
Not
having
taken
advantage
of
that
offer
in
regulation
4
to
demonstrate
a
better
method
of
calculation,
he
is
under
the
necessity
on
this
appeal
to
discharge
the
onus
of
showing
the
assessments
tax
some
of
the
company’s
income
outside
Saskatchewan.
There
is
no
proof
of
this.
The
evidence
is
that
the
assessments
are
approximately,
but
not
absolutely,
accurate—an
approximation
to
absolute
accuracy.
With
great
deference
to
the
Board
of
Revenue
Commissioners,
I
am
unable
to
agree
that
the
commissioner
made
use
of
a
legal
fiction.
The
absence
of
scientfic
accuracy
or
mathematical
precision
in
assessment
does
not
predicate
the
presence
of
a
legal
fiction.
These
were
real,
genuine
assessments
of
the
commissioner,
calculated
as
accurately
as
was
possible
under
the
circumstances.
Frequently
in
the
Courts
valid
assessments
must
be
made,
which
are
only
approximately
correct;
the
degree
of
accuracy
attained
in
these
assessments
of
taxable
income
goes
far
beyond
that
of
the
assessment
of
damages
by
a
Judge
in
an
action
for
damages
for
personal
injuries
where
those
injuries
are
very
severe
or
fatal.
Perfect
assessment
of
damages
in
such
cases
is
impossible
from
the
unascertainable
elements
entering
into
the
computation
of
the
damages.
Take
as
an
example
an
engineer
employed
by
a
railway
company,
in
good
health,
40
years
of
age,
earning
$300
per
month,
killed
in
the
course
of
his
duties
by
the
company’s
negligence.
Human
inability
to
foretell
the
future
makes
a
perfect
assessment
of
damages
an
impossibility;
consider
such
indeterminable
data
as
how
long
would
the
engineer
have
lived
if
he
had
not
been
so
injured—one,
ten
or
twenty
years
;
would
he
have
been
in
working
health
had
he
lived;
what
would
the
employment
market
and
the
wages
market
have
been;
would
there
have
been
war
and
he
conscripted.
As
our
Courts
have
held
for
many
years,
the
best
that
can
be
done
in
such
eases
is
to
assess
the
damages
at
such
sum
as
appears
reasonable,
taking
all
these
varying
elements
into
consideration.
In
these
appeals
we
know
the
assessments
are
approximately
correct.
The
farthest
the
appellant
can
go
is
that
(if
the
assessments
are
not
absolutely
correct)
they
may
to
a
very
slight
amount
tax
income
without
Saskatchewan,
but
on
the
other
hand
they
may
to
a
very
slight
amount
fall
short
of
taxing
all
the
income
in
Saskatchewan;
neither
the
appellant
nor
any
one
else
can
prove
which
it
is,
because
on
the
evidence
adduced
or
even
available,
such
is
incapable
of
proof.
On
the
appellant
lies
the
onus
of
proving
the
taxing
of
income
without
Saskatchewan
in
these
assessments
and
the
appellant
cannot
discharge
that
onus.
It
might
be
added
that
if
all
the
appellant’s
income
in
Saskatchewan
and
in
addition
a
small
amount
of
income
without
Saskatchewan
were
taxed,
and
if
the
company
were
convinced
that
the
quantum
in
excess
of
the
lawful
assessment
was
more
than
the
costs
of
the
services
of
an
expert
accountant
to
demonstrate
the
precise
amount
of
assessment,
the
company
would
in
all
probability
have
incurred
that
cost
and
taken
advantage
of
the
offer
contained
in
regulation
No.
4
of
A3.
At
most
the
assessment
favours
or
penalizes
the
appellant
company
in
a
very
small
sum—de
minimis
lex
non
curat.
It
all
seems
to
narrow
down
to
this,
that
the
appellant
company
asks
me
to
find
that
a
possibility
is
an
actuality—and
that
without
any
proof.
I
can
only
decide
on
proof;
the
appellant
has
adduced
no
sufficient
proof
and
has
failed
to
satisfy
the
onus
east
on
it.
The
second
ground
of
appeal
therefore
fails.
In
regard
to
the
third
ground
of
appeal
that
the
commissioner
proceeded
on
a
wrong
principle
in
not
making
a
proper
reduction
for
bad
debts
and
accordingly
the
assessment
is
invalid,
the
extent
of
the
discretion
of
the
commissioner
may
be
noted
(6
[d]
of
1932
and
1936)
:
“6.
In
computing
the
amount
of
the
profits
or
gains
to
be
assessed,
a
deduction
shall
not
be
allowed
in
respect
of
:
*
*
*
66
(d)
amounts
transferred
or
credited
to
a
reserve,
contingent
account
or
sinking
fund,
except
such
an
amount
for
bad
debts
as
the
commissioner
may
allow
and
except
as
otherwise
provided
in
this
Act.’’
The
contention
of
the
appellant’s
counsel
that
the
appellant
should
be
allowed
as
a
reduction
for
bad
debts
for
the
period
in
question
such
an
amount
credited
to
its
reserve
for
bad
debts.
as
sound
business
experience
shows
to
be
reasonable,
this
being
the
amount
which
experience
has
shown
will
be
lost
as
bad
debts
on
the
sales
made
in
the
period
in
question,
is,
generally
speaking,
sound
argument.
Outside
of
growing
crops
the
major
problem
of
Saskatchewan
for
seven
or
eight
years
has
been
the
problem
of
the
adjustment
of
debts.
It
is
a
matter
so
notorious
that
I
can
take
judicial
notice
of
the
fact
that
beginning
with
the
year
1930
under
the
provincial
Debt
Adjustment
Acts
with
amendments
the
provincial
Debt
Adjustment
Commissioner
or
Board
has
been
effecting
a
reduction
of
debts
throughout
the
province
through
its
moratorium
powers,
while
a
first
Board
of
Review
for
several
years,
and
a
second
Board
for
several
months,
have
been
scaling
down
debts
under
The
Farmers’
Creditors
Arrangement
Act,
1934,
ch.
53,
a
Dominion
Statute,
inter
alia,
farmers’
debts
for
machinery
to
such
implement
companies
as
the
appellant.
The
administrators
of
any
income
tax
in
Saskatchewan
who
did
not
allow
a
reasonable
deduction
for
bad
debts
would
be
simply
dead
to
the
most
live
problem
in
Saskatchewan
outside
the
growing
of
crops.
Suppose
for
instance
no
deduction
for
bad
debts
was
allowed
by
the
commissioner
to
a
doctor
who
in
his
return
made
out
his
income
return
at
the
full
amount
charged
on
his
books
but
collected,
as
we
knew
he
would
in
these
hard
times,
only
a
fraction
of
what
he
charged
on
his
books,
I
would
think
the
assessment
was
made
on
a
wrong
principle
and
therefore
invalid.
The
doctor’s
income
would
be
but
a
fraction
of
the
regular
fees
charged
and
deductions
for
bad
debts
should
be
made
accordingly.
In
these
assessments
of
the
appellant,
on
the
other
hand,
100
per
cent
deduction
has
been
allowed
by
the
commissioner
by
virtue
of
the
second
paragraph
of
regulation
2
of
3A.
‘‘The
sales
of
the
taxpayer
shall
be
measured
by
the
gross
amount
*
*
*
received
*
*
*
from
sales.’’
The
sales
are
not
measured
by
the
contract
or
sales
prices
but
by
the
cash
actually
received
on
such
sales—the
gross
sales
with
a
deduction
of
the
full
amount
of
the
bad
debts.
A
hundred
per
cent
deduction
having
been
made
by
the
commissioner
under
the
second
paragraph
of
regulation
2,
he
could
not
and,
properly,
did
not
allow
any
further
reduction.
I
agree
with
the
result
arrived
at
by
the
Board
of
Review
Commissioners
in
their
decision
in
this
matter,
that
the
commissioner
was
right
in
his
disposal
of
the
matter
of
bad
debts,
but
with
deference
I
do
not
agree
with
their
reasoning
as
to
why
he
was
right.
This
ground
of
appeal
fails.
If
I
am
right
in
my
opinion
that
the
commissioner
has
made
a
proper
allowance
for
bad
debts
by
deducting
the
full
amount
of
bad
debts
under
the
second
paragraph
of
regulation
2
of
A3,
the
acceptance
or
rejection
of
further
evidence
on
that
question
becomes
a
matter
of
no
practical
importance.
There
is,
so
far
as
I
can
ascertain,
no
decision
of
the
Court
of
Appeal
of
Saskatchewan
dealing
with
the
points
raised
on
these
appeals,
probably
because
the
right
of
appeal
to
the
Court
of
Appeal
did
not
exist
till
1987
(sees.
5
and
6
of
ch.
8
of
1937).
An
appeal
came
before
Taylor,
J.,
as
a
Judge
of
the
Court
of
King’s
Bench
in
1937
under
see.
58
of
The
Income
Tax
Act,
1936
—
In
re
Income
Tax
Act,
1932,
and
Procter
and
Gamble
Co.
[1937]
3
W.W.R.
680.
The
facts
and
points
of
law
raised
therein
are
quite
similar
to
those
involved
in
these
appeals.
The
said
learned
Judge
dismissed
the
appeal
with
costs.
I
agree
with
the
reasons
for
judgment
given
in
that
appeal.
(See
also
Kerr
v.
Supt.
of
Income
Tax
and
Atty.-Gen.
of
Alta.
[1938]
3
W.W.R.
140
;
Swift
Canadian
Co.
v.
Edmonton
[1921]
3
W.W.R.
196,
17
Alta.
L.R.
135.)
I
dismiss
the
three
appeals
and
affirm
the
decision
of
the
Board
of
Revenue
Commissioners
dated
January
27,
1939,
which
affirmed
the
three
assessments
of
the
commissioner.
As
to
costs,
my
recollection
is
that
both
counsel
argued
costs
should
go
to
the
successful
party
or,
in
case
of
divided
success,
in
accordance
with
success
on
the
different
grounds
of
appeal.
The
case
of
In
re
Procter
and
Gamble
Co.,
supra,
was
cited
as
authority.
That
case
is
not
applicable
as
to
costs
because
at
the
time
of
its
decision,
namely,
October
23,
1937,
subsee.
(5)
of
sec.
08
of
The
Income
Tax
Act,
1936,
then
in
force,
authorized
the
Judge
of
the
Court
of
King’s
Bench
hearing
the
appeal
to
award
costs.
When,
however,
by
The
Statute
Law
Amendment
Act,
1938,
ch.
91,
see.
2,
coming
into
force
March
23,
1938,
secs.
58
and
58a
of
The
Income
Tax
Act,
1936,
were
repealed,
and
on
the
same
March
23
The
Treasury
Department
Act,
1938,
ch.
8,
containing
sees.
41
and
42
corresponding
to
the
said
repealed
secs.
58
and
58a
of
The
Income
Tax
Act,
1936,
became
law,
the
above
quoted
part
of
subsec.
(5)
of
sec.
58
dealing
with
costs
before
a
Judge
of
the
Court
of
King’s
Bench
was
omitted
from
subsec.
(6)
of
sec.
41
of
The
Treasury
Department
Act,
1938.
The
assessments
were
not
made
till
August
28,
1938,
so
see.
41
of
The
Treasury
Department
Act,
1938,
would
govern
:
Butcher
v.
Henderson
(1868)
L.R.
3
Q.B.
335,
37
L.J.Q.B.
133;
Morgan
v.
Thorn
(1841)
7
M.
&
W.
400,
10
L.J.
Ex.
125,
151
E.R.
821;
Wood
v.
Riley
(1867)
L.R.
3
C.P.
26,
37
L.J.C.P.
24;
Levi
v.
Sanderson
(1869)
L.R.
4
Q.B.
330,
38
L.J.Q.B.
185;
Maxwell
on
Interpretation
of
Statutes,
7th
ed.,
p.
343.
If
there
were
no
other
provisions
applicable,
being
persona
designata,
I
would
have
no
jurisdiction
to
award
costs.
See
judgment
of
MacDonald,
J.
in
In
re
Provincial
Apartments
Ltd.;
In
re
The
Companies
Act,
1934
[1936]
3
W.W.R.
327.
On
April
1,
1939,
however,
The
Crown
Suits
(Costs)
Act,
1939,
ch.
20,
came
into
force
of
which
sec.
2
and
sec.
5
(2)
are
as
follows
:
"
"
2.
In
any
action
or
other
civil
proceeding
instituted
before
any
court
in
Saskatchewan
by
His
Majesty
or
by
the
Attorney
General
or
any
person
on
behalf
of
His
Majesty,
or
in
any
other
action
or
civil
proceeding
to
which
His
Majesty
or
the
Attorney
General
or
any
person
on
behalf
of
His
Majesty
is
a
party,
the
costs
of
and
incidental
to
the
action
or
proceed-
ind
shall
be
in
the
discretion
of
the
court,
to
be
exercised
in
the
same
manner
and
on
the
same
principles
as
between
subject
and
subject,
and
the
court
may
order
payment
of
costs
by
or
to
His
Majesty
accordingly.
*
*
*
"15.—(2)
This
Act
shall
apply
to
proceedings
pending
when
this
Act
comes
into
force.”
I
think
it
is
quite
clear
that
these
proceedings
before
me
are
included
in
the
words,
beginning
with
the
fourth
line,
"‘or
in
any
other
*
*
*
civil
proceeding
to
which
His
Majesty
or
the
Attorney
General
or
any
person
on
behalf
of
His
Majesty
is
a
party
:
Both
the
Attorney-General
and
the
Commissioner
of
Income
Tax,
acting
on
behalf
of
His
Majesty
in
the
right
of
the
province,
are
parties
to
this
appeal
or
civil
proceeding
and
were
represented
by
Mr.
Quigg.
Accordingly
I
think
I
have
jurisdiction
and
should
award
costs
"‘in
the
same
manner
and
on
the
same
principles
as
between
subject
and
subject.’’
The
Commissioner
of
Income
Tax
will
have
the
costs
of
the
three
appeals
before
me
upon
taxation.
There
will
be
a
set-off
of
the
costs
of
the
motion
by
way
of
preliminary
objection
to
my
jurisdiction,
in
which
the
appellant
was
successful.
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