RAND,
J.
(delivering
the
judgment
of
the
Chief
Justice,
Kerwin
and
Rand,
JJ.)
:—This
appeal
raises
a
question
in
the
interpretation
of
Rules
1
and
2
of
Section
1
of
the
First
Schedule
to
the
Income
War
Tax
Act.
These
rules,
applicable
for
the
year
1944,
so
far
as
material,
are
as
follows
:—
"
"
Rule
1
:—A
normal
tax
equal
to
seven
per
centum
of
the
income
shall
be
paid
by
every
person
whose
income
during
the
taxation
year
exceeded
$1,200
and
who
was
during
that
year:
(a)
a
married
person
who
supported
his
spouse
and
whose
spouse
was
resident
in
any
part
of
His
Majesty’s
dominions;
(b)
a
person
with
a
son
or
daughter
wholly
dependent
upon
him
for
support
;
(ce)
an
unmarried
person
or
a
married
person
separated
from
his
spouse
who
maintained
a
self-contained
domestic
establishment
;
(d)
an
unmarried
minister
or
clergyman
in
charge
of
a
diocese,
parish
or
congregation
who
maintained
a
self-contained
domestic
establishment.
Rule
2.—If,
during
a
taxation
year,
a
married
person
described
by
subparagraph
(a)
of
Rule
1
of
this
section
and
his
spouse
each
had
a
separate
income
in
excess
of
$660.00,
each
shall
be
taxed
under
Rule
3
of
this
section:
Provided
that
a
husband
does
not
lose
his
right
to
be
taxed
under
Rule
1
of
this
section
by
reason
of
his
wife
being
employed
and
receiving
any
earned
income.”
The
Exchequer
Court
confirmed
the
assessment
under
which
the
appellant
was
held
to
be
liable
to
the
normal
tax
under
Rule
3
at
the
rate
of
nine
per
centum
per
annum
instead
of
under
Rule
1
at
seven
per
centum,
and
from
that
decision
the
matter
is
brought
here.
In
view
of
the
course
of
the
proceedings
anterior
to
the
matter
becoming
an
action
in
the
Exchequer
Court
under
sec.
63(2)
of
the
Act
and
that
no
issue
of
fact
in
respect
of
maintenance
has
been
properly
raised
by
the
pleadings,
Mr.
Johnston
must
be
taken
to
be
a
married
person
within
the
description
of
paragraph
(a)
;
but
even
if
we
are
to
take
such
an
issue
as
raised,
on
the
facts
before
us
there
is
nothing
to
justify
a
reversal
of
the
finding
of
the
Minister
or
the
basis
in
fact
of
the
assessment
that
the
appellant
maintained
his
wife.
At
the
same
time,
having
three
children,
he
is
also
within
the
general
language
of
paragraph
(&).
His
contention
is
that
Rule
2
applies
only
to
a
person
who
is
taxable
only
under
(a),
and
that
since
he
can
claim
under
(b)
the
Rule
has
no
application.
I
think
this
results
from
a
misconception
of
the
effect
of
Rule
2.
If
its
language
is
carefully
examined,
it
is
seen
to
declare
that,
as
a
qualification
of
Rule
1,
a
person
coming
within
a
certain
description
shall,
in
a
certain
contingency,
be
taxed
under
Rule
3:
it
has
no
relation
to
a
particular
subparagraph
of
Rule
1
under
which
a
person
becomes
taxable.
Rule
1
provides
for
a
certain
rate
of
taxation
for
persons
coming
within
a
number
of
classes
;
if,
among
those
taxpayers
we
find
one
meeting
the
description
of
Rule
2,
then
the
rate
is
to
be
as
prescribed
by
that
Rule.
It
is
admitted
that
liability
for
graduated
tax
rests
upon
a
similar
basis.
The
appeal
raises
also
the
question
on
onus.
By
section
58
any
person
objecting
to
the
amount
at
which
he
is
assessed
may
appeal
to
the
Minister.
If
the
Minister
rejects
the
appeal,
under
section
60(1)
a
Notice
of
Dissatisfaction
may
be
served
on
the
Minister
and
the
taxpayer
shall
in
it
state
that
he
desires
his
appeal
to
be
set
down
for
trial.
By
subsection
(2),
“The
appellant
shall
forward
therewith
a
final
statement
of
such
further
facts,
statutory
provisions
and
reasons
which
he
intends
to
submit
to
the
Court
in
support
of
the
appeal
as
were
not
included
in
the
aforesaid
Notice
of
Appeal,
or
in
the
alternative,
a
recapitulation
of
all
facts,
statutory
provisions
and
persons
included
in
the
aforesaid
Notice
of
Appeal,
together
with
such
further
facts,
provisions
and
reasons
as
the
appellant
intends
to
submit
to
the
Court
in
support
of
the
appeal.
‘‘
Section
61
provides
for
security
for
costs
by
the
‘‘
party
appealing.”
Section
62
calls
for
a
reply
by
the
Minister
to
the
Notice
of
Dissatisfaction.
Section
63(1)
requires
the
Minister
within
two
months
from
the
making
of
the
reply
to
cause
to
be
transmitted
to
the
Exchequer
Court
(a)
the
income
tax
return,
(b)
the
Notice
of
Assessment,
(ce)
the
Notice
of
Appeal,
(d)
the
decision
of
the
Minister,
(e)
the
Notice
of
Dissatisfaction,
(f)
the
reply
of
the
Minister,
and
(g)
all
other
documents
and
papers
relative
to
the
assessment
under
appeal.
Subsection
(2)
declares
‘‘the
matter
shall
thereupon
be
deemed
to
be
an
action
in
the
said
Court
ready
for
trial
or
hearing:
provided,
however,
that
should
it
be
deemed
advisable
by
the
Court
or
a
Judge
thereof
that
pleadings
be
filed,
an
order
may
issue
directing
the
parties
to
file
pleadings/
‘
By
section
64
the
proceeding
is
to
be
entitled
‘“In
Re
the
Income
War
Tax
Act,
and
the
appeal
of
of
of
in
the
Province
of
Under
section
65(1)
‘‘any
fact
or
statutory
provision
not
set
out
in
the
said
Notice
of
Appeal
or
Notice
of
Dissatisfaction
may
be
pleaded
or
referred
to
in
such
manner
and
upon
such
terms
as
the
Court
or
a
judge
thereof
may
direct;”
and
by
subsection
(2)
‘‘the
Court
may
refer
the
matter
back
to
the
Minister
for
further
consideration.
‘
‘
Notwithstanding
that
it
is
spoken
of
in
section
63(2)
as
an
action
ready
for
trial
or
hearing,
the
proceeding
is
an
appeal
from
the
taxation;
and
since
the
taxation
is
on
the
basis
of
certain
facts
and
certain
provisions
of
law
either
those
facts
or
the
application
of
the
law
is
challenged.
Every
such
fact
found
or
assumed
by
the
assessor
or
the
Minister
must
then
be
accepted
as
it
was
dealt
with
by
these
persons
unless
questioned
by
the
appellant.
If
the
taxpayer
here
intended
to
contest
the
fact
that
he
supported
his
wife
within
the
meaning
of
the
Rules
mentioned
he
should
have
raised
that
issue
in
his
pleading,
and
the
burden
would
have
rested
on
him
as
on
any
appellant
to
show
that
the
conclusion
below
was
not
warranted.
For
that
purpose
he
might
bring
evidence
before
the
Court
notwithstanding
that
it
had
not
been
placed
before
the
assessor
or
the
Minister,
but
the
onus
was
his
to
demolish
the
basic
fact
on
which
the
taxation
rested.
Instead,
the
taxpayer
abstained
from
making
that
allegation.
As
fact
it
was
not
raised
by
the
defence
although
involved
in
the
reference
to
the
rule
of
the
schedule
applied
by
the
assessor,
but
in
the
reply
it
was
denied
as
fact.
There,
then,
appeared
the
first
reference
to
an
allegation
that
should
have
been
in
the
claim;
and
on
principle
I
should
call
it
an
indulgence
to
the
taxpayer,
assuming
that
he
desired
to
raise
that
point
in
appeal,
to
be
permitted
so
to
cure
a
defective
declaration.
The
language
of
the
statute
is
somewhat
inapt
to
these
technical
considerations
but
its
purpose
is
clear:
and
it
is
incumbent
on
the
Court
to
see
that
the
substance
of
a
dispute
is
regarded
and
not
its
form.
I
am
consequently
unable
to
accede
to
the
view
that
‘the
proceeding
takes
on
a
basic
change
where
pleadings
are
directed.
The
allegations
necessary
to
the
appeal
depend
upon
the
construction
of
the
statute
and
its
application
to
the
facts
and
the
pleadings
are
to
facilitate
the
determination
of
the
issues.
It
must,
of
course,
be
assumed
that
the
Crown,
as
is
its
duty,
has
fully
disclosed
to
the
taxpayer
the
precise
findings
of
fact
and
rulings
of
law
which
have
given
rise
to
the
controversy.
But
unless
the
Crown
is
be
placed
in
the
position
of
a
plaintiff
or
appellant,
I
cannot
see
how
pleadings
shift
the
burden
from
what
it
would
be
without
them.
Since
the
taxpayer
in
this
case
must
establish
something,
it
seems
to
me
that
that
something
is
the
existence
of
facts
or
law
showing
an
error
in
relation
to
the
taxation
imposed
on
him.
The
assessment
was
therefore
in
order
and
the
appeal
must
be
dismissed
with
costs.
KELLOCK,
J.:—There
are
two
questions
arising
for
decision
on
this
appeal.
In
the
first
place
it
is
contended
by
the
appellant
that
as
he
admittedly
falls
within
clause
(b)of
Rule
1
of
section
1
of
paragraph
A
of
the
First
Schedule
to
the
Income
War
Tax
Act,
he
is
liable
to
be
taxed
under
Rule
1
and
not
under
Rules
2
and
3
and
cannot
be
taken
out
of
the
provisions
of
Rule
1
because
he
may
also
be
within
clause
(a).
In
my
view
this
argument
is
unsound.
I
think
the
proper
construction
of
the
statute
is
that
a
person
like
the
appellant,
who
may
fall
within
the
language
of
clause
(b)
but
also
falls
within
clause
(a)
is,
by
the
express
provision
of
Rule
2,
taken
out
of
the
first
rule
and
becomes
liable
to
tax
under
the
second
and
third
rules.
Even
though
the
appellant
be
within
clause
(b)
he
is
"‘a
married
person
described
by
subparagraph
(a)
of
Rule
1‘‘
and
therefore
subject
to
the
provisions
of
Rule
2.
The
second
contention
is
that
the
appellant
does
not,
in
any
event,
fall
within
clause
(a)
of
Rule
1
as
he
is
not
a
person
who
in
fact
‘‘supported
his
spouse’’
and
that
therefore,
as
he
comes
within
class
(b)
he
remains
for
taxation
purposes
within
Rule
1.
The
learned
trial
judge
held
that
the
onus
was
upon
the
appellant
to
establish
the
facts
in
support
of
this
contention
and
that
he
had
failed
to
do
so.
In
his
return
the
appellant
claimed
to
be
taxable
for
normal
tax
at
the
rate
of
7%
and
claimed
‘‘married
or
equivalent
status’’
with
respect
to
liability
for
graduated
tax.
Item
29
of
the
return
to.
which
the
taxpayer
is
referred
on
the
face
of
the
return
7
reads
as
follows:
29.
NORMAL
TAX
The
rates
are
to
be
applied
to
Item
9C.
MARRIED
STATUS
(1)
A
married
person
who
supported
his
(her)
spouse
(other
than
by
payment
of
alimony
or
other
similar
allowance)
—except
when
within
(5),
(6)
or
(7)
below.
(2)
A
person
who
supported
(other
than
by
means
of
the
payment
of
alimony
or
other
similar
allowance)
a
wholly
dependent
son,
daughter,
son-in-law
or
daughter-in-law
(See
Item
37)
except
when
within
(3),
(5)
or
(6)
below.
(3)
An
unmarried
person,
widow
(er)
or
a
married
person
separated
from
his
(her)
spouse
who
maintained
in
1944
a
‘self-contained
domestic
establishment’
with
a
dependent
relative
therein
(complete
Item
49).
SINGLE
STATUS
(4)
A
single
person—except
when
within
(2)
or
(3)
above.
(5)
A
married
man
whose
wife
had
an
income
in
excess
of
$660
from
sources
other
than
wages
or
salary.
(6)
A
married
woman
whose
husband
had
an
income
in
excess
of
$660
from
any
source.
(7)
A
married
person
whose
spouse
was
not
resident
in
Canada,
in
the
British
Empire
or
in
an
Allied
country
(See
Item
38).
(8)
A
married
person
who
did
not
support
his
(her)
spouse,
or
a
married
person
who
paid
alimony
or
other
similar
allowance
to
his
(her)
spouse
when
living
apart—except
when
within
(2)
or
(3)
above.”
The
Minister
rejected
the
appellant’s
claim
and
assessed
him
in
fact
under
the
provisions
of
Rules
2
and
3.
The
Notice
of
Assessment
gave
as
the
basis
for
this
assessment
the
following
:
“You
have
been
assessed
as
a
single
person
with
three
dependents,
your
wife
having
income
from
sources
other
than
wages
or
salary
in
excess
of
$660.00,”
thus
indicating
that
in
the
decision
of
the
Minister
the
appellant
fell
within
Item
29(5),
namely,
a
married
person
who,
although
supporting
his
spouse,
had
an
income
in
excess
of
$660.00
from
unearned
sources.
The
appellant
appealed
to
the
Minister
in
pursuance
of
section
58
of
the
Act,
which
by
sub-section
3
required
him
to
follow
the
statutory
form
of
Notice
of
Appeal
and
to
‘‘set
out
clearly
the
reasons
for
appeal
and
all
facts
relevant
thereto.
’
’
In
his
Notice
of
Appeal,
dated
24th
April,
1946,
the
appellant
nowhere
con-
tended
that
he
was
not
a
person
falling
within
clause
(a)
of
Rule
1,
nor
did
he
set
forth
any
facts
with
respect
to
the
question
of
support
or
non-support.
In
his
factum
the
appellant
is
frank
in
stating
that
this
issue
which
he
described
as
the
“secondary
issue’’
was
only
raised
in
reply,
that
is,
he
did
not
raise
the
issue
until
his
appeal
to
the
Minister
had
been
disposed
of
by
the
Minister
and
the
appellant
had
taken
the
proceedings
under
sections
60
and
63
by
which
the
appeal
found
its
way
into
the
Exchequer
Court
and
an
order
for
pleadings
had
been
made.
In
the
Exchequer
Court
no
evidence
was
called
by
either
party
but
the
following
admission
of
facts
was
filed
:
4
For
the
purpose
of
this
Matter,
and
without
prejudice
to
the
admission
of
the
fact
contained
in
paragraphs
numbered
1,
2,
3,
4
and
6
of
the
Statement
of
Claim,
it
is
further
admitted
that
in
the
year
1944:
(1)
The
Appellant
and
his
spouse
occupied
the
same
dwelling.
(2)
The
Appellant’s
income
exceeded
the
income
of
his
spouse.
(3)
The
Appellant
and
his
spouse
both
contributed
to
the
maintenance
of
a
common
household
in
such
dwelling,
the
operation
of
which
was
managed
by
the
Appellant’s
spouse.
(4)
The
whole
income
of
the
Appellant’s
spouse
was
expended
for
her
personal
expenses
and
as
a
contribution
to
the
expenses
of
such
common
household.’’
As
I
read
the
provisions
of
the
statute
commencing
with
section
58,
a
person
who
objects
to
an
assessment
is
obliged
to
place
before
the
Minister
on
his
appeal
the
evidence
and
the
reasons
which
support
his
objection.
It
is
for
him
to
substantiate
the
objection.
It
he
does
not
do
so
he
would,
in
my
opinion,
fail
in
his
appeal.
That
is
not
to
say,
of
course,
that
if
he
places
before
the
Minister
facts
which
entitle
him
to
succeed,
the
Minister
may
arbitrarily
dismiss
the
appeal.
No
question
of
that
sort
arises
here,
and
I
am
deciding
nothing
with
respect
to
it.
I
further
think
that
that
situation
persists
right
down
to
the
time
when
the
matter
is
in
the
Exchequer
Court
under
the
provisions
of
section
63.
I
regard
the
pleadings,
which
may
be
directed
to
be
filed
under
sub-section
2
of
that
section,
as
merely
defining
the
issues
which
arise
on
the
documents
required
to
be
filed
in
the
court
without
changing
the
onus
existing
before
any
such
order
is
made.
In
my
opinion,
therefore,
the
learned
Judge
below
was
right
in
his
view
that
the
onus
lay
upon
the
appellant.
I
further
do
not
think
that
the
admitted
facts
establish
that
which
it
lay
upon
the
appellant
to
show.
It
was
admitted
that
both
the
appellant
and
his
wife
contributed
to
the
maintenance
of
the
common
household
and
that
the
whole
income
of
the
appellant’s
spouse
was
expended
for
her
personal
expenses
and
as
a
^contribution”
to
the
expenses
of
the
common
household.
Nothing
was
shown
as
to
the
size
of
this
contribution
nor
the
relationship
of
that
contribution
to
the
amount
actually
required
for
her
support.
I
think
a
husband
may
continue
to
support
his
wife
within
the
meaning
of
the
statute
although
his
wife
may
supply
some
money
toward
meeting
the
cost
of
maintenance
of
the
household.
It
is
in
each
case
a
question
of
fact
as
to
whether
the
wife
supported
herself
or
not.
Whether
this
matter
were
made
the
subject
of
allegation
in
the
Statement
of
Claim,
as
I
think
it
more
properly
should
have
been,
or
in
the
Reply,
it
was
for
the
appellant
to
support
it
by
evidence.
He
failed
to
do
so
and
in
my
opinion
therefore
the
appeal
should
be
dismissed
with
costs.
Locke,
J.:—The
appellant
was
during
the
taxation
year
1944
a
married
man
resident
in
Canada,
having
three
children
all
under
the
age
of
eighteen
years
wholly
dependent
upon
him
for
support.
During
the
period
in
question
his
wife
had
a
separate
income
in
excess
of
$660.00,
none
of
which
was
earned
income,
and
written
admissions
were
filed
at
the
hearing
in
the
Exchequer
Court
proving
that
during
the
period
in
question
the
appellant
and
his
wife
occupied
the
same
dwelling,
both
contributed
to
the
maintenance
of
the
common
household,
the
operation
of
which
was
managed
by
the
wife,
whose
entire
income
was
expended
for
her
personal
expenses
and
as
a
contribution
to
the
expenses
of
the
household,
and
that
the
appellant’s
income
exceeded
that
of
his
wife.
Upon
this
state
of
facts
the
appellant
claimed
that
under
the
terms
of
Rule
1(b)
of
the
First
Schedule
to
the
/ncome
War
Tax
Act
he
was
liable
for
normal
tax
at
the
rate
of
seven
per
centum
of
his
income:
in
addition
the
appellant
claimed
other
deductions
which
will
be
later
referred
to.
The
assessment
disallowed
these
claims
and
assessed
the
appellant
as
a
single
person
with
three
dependents
upon
the
stated
ground
that
his
wife
had
an
income
from
sources
other
than
wages
and
salary
in
excess
of
$660.00
and
on
appeal
to
the
Minister
the
assessment
was
confirmed.
Upon
the
appellant
serving
a
Notice
of
Dissatisfaction,
as
required
by
see.
50
of
the
Act,
the
Minister
delivered
a
Reply
denying
the
allegations
in
the
Notice
of
Appeal
and
Notice
of
Dissatisfaction,
in
so
far
as
they
were
incompatible
with
the
statements
contained
in
his
decision
and
affirmed
the
assessment
as
levied.
Upon
the
Minister
complying
with
sec.
63
of
the
Act
and
transmitting
the
specified
documents
to
the
Registrar
of
the
Exchequer
Court,
an
order
was
issued
directing
the
parties
to
file
pleadings
and
the
appellant
filed
a
Statement
of
Claim
alleging
the
facts
above
recited
and
claiming
a
declaration
that
he
was
liable
to
be
assessed
for
normal
tax
at
the
rate
of
seven
per
centum
for
the
taxation
period
in
question
and
to
the
other
deductions
claimed.
By
the
Statement
of
Defence
the
Minister
admitted
the
allegations
made
in
so
far
as
they
were
allegations
of
fact
and
not
conclusions
of
law:
as
to
the
claim
that
the
normal
tax
should
be
limited
to
seven
per
centum
the
defence
alleged
:—
"That
the
appellant
was
subject
to
normal
tax
at
the
rate
of
nine
per
centum
as
provided
by
Rules
2
and
3
of
section
1,
of
paragraph
A
of
the
First
Schedule
to
the
Income
War
Tax
Act.
"
As
to
the
other
deductions
claimed
the
appellant’s
right
was
expressly
denied.
Rule
2
of
sec.
1
of
the
First
Schedule
to
the
Act
says
that
if
during
the
taxation
year
a
married
person
described
by
subpara.
(a)
of
Rule
1
and
his
spouse
each
had
a
separate
income
in
excess
of
$660.00
each
shall
be
taxed
under
Rule
3.
The
married
person
described
by
subpara.
(a)
of
Rule
1
is
one
who
supported
his
spouse
and
whose
spouse
complied
with
the
requirements
of
the
subparagraph
as
to
residence.
Rule
3
provides
that
the
normal
tax
imposed
should
be
at
the
rate
of
nine
per
centum
in
respect
of
an
income
such
as
that
of
the
appellant.
While
the
Minister
had
not,
as
required
by
Rule
88
of
the
Exchequer
Court,
stated
the
material
facts
upon
which
he
relied
to
bring
the
appellant
within
the
purview
of
Rules
2
and
3
but
merely
stated
as
a
conclusion
of
law
that
the
appellant
was
subject
to
taxation
as
provided
by
Rules
2
and
3,
the
appellant
filed
a
Reply
and
Joinder
of
Issue
in
which
he
denied
that
he
was
a
married
person
described
by
subpara.
(a)
of
Rule
1
of
sec.
1,
or
by
subpara.
(a)
of
Rule
3
of
sec.
2,
and
Joined
issue.
See.
63,
ss.
1,
of
the
Income
War
Tax
Act
specifies
the
documents
to
be
transmitted
to
the
Court
by
the
Minister.
Ss.
2
is
as
follows
:
"‘The
matter
shall
thereupon
be
deemed
to
be
an
action
in
the
said
Court
ready
for
trial
or
hearing:
provided,
however,
that
should
it
be
deemed
advisable
by
the
Court
or
a
Judge
thereof
that
pleadings
be
filed,
an
order
may
issue
directing
the
parties
to
file
pleadings.”
Sec.
36
of
the
Exchequer
Court
Act,
as
enacted
by
cap.
23,
Statutes
of
1928,
provides
that
the
practice
and
procedure
in
suits,
actions
and
matters
in
the
Court
shall,
so
far
as
they
are
applicable
and
unless
it
is
otherwise
provided
for
by
the
Act
or
by
general
rules
made
in
pursuance
of
the
Act,
be
regulated
by
the
practice
and
procedure
in
similar
matters
in
His
Majesty’s
High
Court
of
Justice
in
England
on
the
first
day
of
January,
1928.
At
the
hearing
of
what
is
designated
an
appeal
but
which
is
clearly
to
be
treated
in
the
terms
of
sec.
63,
ss.
2,
of
the
Income
War
Tax
Act,
as
the
trial
of
an
action,
the
learned
trial.
Judge
considering
that
the
onus
was
upon
the
taxpayer
to
establish
that
the
appellant
supported
his
wife
or
that
he
did
not
do
so
and
that
the
burden
was
upon
him
to
establish
from
the
"
facts,
statutory
provisions
and
reasons
which
he
intends
to
submit
to
the
Crown
in
support
of
the
appeal”
that
the
assessment
was
incorrect,
and
finding
that
this
had
not
been
done
dismissed
the
appeal.
Upon
the
appeal
to
this
Court
we
were
referred
to
a
decision
of
the
learned
President
of
the
Exchequer
Court,
Dezura
v.
Minister
of
National
Revenue
[1948]
C.T.C.
375,
wherein
it
was
said
that
the
onus
of
proof
of
error
in
the
amount
of
the
determination
rests
on
the
appellant.
With
respect,
I
am
unable
to
agree
that
this
is
so
in
any
case
where
pleadings
have
been
delivered.
The
decision
of
the
learned
trial
Judge
appears
to
me
to
overlook
the
fact
that
pleadings
defining
the
issue
were
delivered
and
that,
in
accordance
with
the
practice
in
the
High
Court
of
Justice
in
England
referred
to
in
sec.
36
of
the
Act,
the
question
of
onus
on
the
various
issues
to
be
determined
must
be
decided
upon
the
state
of
these
pleadings.
It
is
true
that
sec.
60,
ss.
2,
of
the
Income
War
Tax
Act
says
that
the
appellant
with
his
Notice
of
Dissatisfaction
shall
forward
to
the
Minister
a
final
statement
of
such
further
facts,
statutory
provisions
and
reasons
which
he
intends
to
submit
to
the
Court
in
support
of
the
appeal,
or
in
the
alternative
a
recapitulation
of
all
facts,
statutory
provisions
and
reasons
included
in
the
Notice
of
Appeal,
together
with
such
further
facts,
provisions
and
reasons
as
the
appellant
intends
to
submit
to
the
Court
in
support
of
the
appeal,
but
when,
as
provided
by
sec.
63,
ss.
2,
the
matter
is
to
be
deemed
an
action
in
the
Court
ready
for
trial
or
hearing
and
pleadings
have
been
delivered,
the
matter
is,
in
my
opinion,
to
be
proceeded
with
in
the
same
manner
as
any
other
trial.
It
cannot
be
treated
both
as
an
appeal
to
be
determined
upon
the
material
submitted
to
the
Minister
and
as
a
trial
upon
pleadings
where
either
party
may
adduce
whatever
evidence
they
see
fit
to
call.
In
my
view
the
statement
referred
to
in
sec.
60,
ss.
2,
is
not
to
be
considered
otherwise
than
as
an
argument
:
it
is
clearly
not
evidence.
Whatever
may
be
said
for
a
contrary
view,
the
nature
of
the
proceeding
appears
to
me
to
be
made
clear
when,
as
permitted
by
sec.
63,
ss.
2,
pleadings
are
ordered
and
filed.
The
parties
are
then
in
the
same
position
as
other
litigants
in
the
Court
and
the
position
of
the
Crown,
at
least
in
respect
to
the
burden
of
proving
its
case,
is
the
same
as
that
of
any
other
litigant.
In
this
situation
the
statute
has
said
that
the
practice
of
the
High
Court
of
Justice
governs:
what
that
practice
is
does
not
admit
of
doubt.
In
Daniell’s
Chancery
Practice,
8th
Ed.,
498,
it
is
said
that
it
may
be
laid
down
as
a
general
proposition
that
the
point
in
issue
is
to
be
proved
by
the
party
who
asserts
the
affirmative,
according
to
the
maxim
of
the
civil
law:
et
incumbit
probatio
qui
dicit,
non
qui
neg
at.
In
Taylor
on
Evidence
(Vol.
1,
p.
202),
it
is
said:
"‘The
burden
of
proof
lies
on
the
party
who
substantially
asserts
the
affirmative
of
the
issue.
The
best
tests
for
ascertaining
on
whom
the
burden
of
proof
lies
are
to
consider
first
which
party
would
succeed
if
no
evidence
were
given
on
either
side.
‘
‘
In
Odger’s
Pleading
and
Practice,
12th
Ed.,
p.
129,
it
is
said
that
as
a
general
rule
the
burden
will
lie
on
your
opponent
to
prove
at
the
trial
the
facts
which
you
have
traversed,
but
the
burden
will
lie
on
you
to
prove
the
facts
which
you
have
alleged
by
way
of
confession
or
avoidance
and
you
will
not
be
allowed
to
shift
the
onus
of
proof
by
traversing
when
you
should
confess
and
avoid,
even
where
your
opponent
has
given
you
the
opportunity
by
introducing
an
unnecessary
averment
into
the
preceding
pleading.
The
same
author
(p.
287)
says
further:
"‘What
the
issues
are
appears,
or
ought
to
appear,
clearly
from
the
pleadings.
From
the
pleadings
also
it
can
at
once
be
ascertained
on
which
party
lies
the
initial
burden
of
proof
on
each
issue—though
it
may
soon
be
shifted
to
the
other
party.
The
burden
of
proof
is
the
duty
which
lies
on
a
party
to
establish
his
case.
It
will
lie
on
A,
whenever
A
must
either
call
some
evidence
or
have
judgment
given
against
him.
As
a
rule
it
lies
upon
the
party
who
has
in
his
pleading
maintained
the
affirmative
of
the
issue
;
for
a
negative
is
in
general
incapable
of
proof.
Hi
incumbit
probatio
qui
dicit,
non
qui
negat.
The
affirmative
is
generally,
but
not
necessarily,
maintained
by
the
party
who
first
raises
the
issue.
Thus,
the
onus
lies,
as
a
rule,
on
the
plaintiff
to
establish
every
fact
which
he
has
asserted
in
the
Statement
of
Claim,
and
on
the
defendant
to
prove
all
facts,
which
he
has
pleaded
by
way
of
confession
and
avoidance,
such
as
fraud,
performance,
release,
rescission,
etc.”
Dealing
with
the
question
as
to
which
side
has
the
right
to
begin,
Odger
says
that
this
depends
entirely
on
the
pleadings
(p.
302).
There
is
nothing
in
the
Rules
of
the
Exchequer
Court
which
in
any
way
render
these
principles
inapplicable
to
proceedings
such
as
those
under
consideration
here
and,
in
my
view,
they
apply.
The
decisions
under
the
English
Act
to
which
we
were
referred,
to
the
effect
that
the
onus
is
on
the
appellant
to
show
that
the
assessment
is
wrong,
do
not
assist,
since
there
is
there
no
statutory
provision
corresponding
to
sec.
60,
ss.
2,
of
the
Income
War
Tax
Act
and
pleadings
are
not
delivered.
Here
the
defence
admitted
the
allegations
of
fact
made
by
the
appellant
upon
which
he
relied
in
support
of
his
contention
that
he
was
liable
to
the
normal
tax
at
the
lower
rate.
While
admitting
these
allegations
the
defence
set
up
certain
matters
by
way
of
confession
and
avoidance:
:
the
allegations
in
paragraph
4
of
this
pleading,
in
so
far
as
they
dealt
with
the
question
of
normal
tax,
consisted
of
an
allegation
that
the
income
of
the
appellant’s
spouse
had
exceeded
$660.00
and
was
not
earned
income,
and
the
statement
that
the
appellant
was
subject
to
normal
tax
at
the
rate
of
nine
per
centum,
as
provided
by
Rules
2
and
3
of
sec.
1
of
paragraph
A
of
the
First
Schedule
to
the
Income
War
Tax
Act.
This
plea
did
not
comply
with
Rule
88
of
the
Exchequer
Court
which
requires
(as
does
its
counterpart,
O.
19,
R.
4
of
the
Supreme
Court
of
Judicature)
that
every
pleading
shall
contain
as
concisely
as
may
be
a
statement
of
the
material
facts
on
which
the
party
pleading
relies.
Whenever
the
right
claimed
or
the
defence
raised
is
the
creature
of
statute,
being
unknown
to
common
law,
every
fact
must
be
alleged
necessary
to
bring
the
case
within
the
statute
(Odger,
12th
Ed.,
p.
86).
Here,
instead
of
alleging
the
facts
relied
upon
to
make
applicable
the
provisions
of
subpara.
(a)
of
Rule
1,
the
defence
pleaded
a
conclusion
of
law.
Allegations
of
this
nature
need
not
be
traversed
(Bullen
f;
Leake,
9th
Ed.,
p.
541)
:
the
appellant,
however,
in
his
reply
denied
that
he
was
a
married
person
described
in
the
subparagraph
and
in
this
form
the
pleadings
must
be
taken
to
raise
the
issue
(Lush
v.
Russell
(1850),
5
Exch.
203).
In
this
state
of
the
pleadings
the
appellant,
whose
position
was
that
of
the
plaintiff
in
the
trial
referred
to
in
see.
60,
ss.
2,
was
entitled
to
rest
his
case,
that
he
was
subject
only
to
the
lower
rate
of
normal
tax
imposed
by
subpara.
(ft)
of
Rule
1,
upon
the
admissions
made
in
the
Statement
of
Defence
and
the
further
written
admissions
made
on
behalf
of
the
defendant.
The
effect
of
the
defendant
‘s
plea
in
the
circumstances
was
to
allege
affirmatively
that
the
appellant
was
a
married
person
who
supported
his
spouse
within
subpara.
(a)
and,
therefore,
liable
to
taxation
at
the
higher
rate.
The
onus
was
upon
the
defendant
to
prove
that
this
was
a
fact
but
he
tendered
no
evidence.
The
matter
was,
therefore,
left
in
this
state
that
it
was
admitted
by
the
parties
that
the
appellant’s
spouse
was
in
receipt
of
a
private
income
in
excess
of
$660.00
and
less
than
$16,420.00,
that
the
husband
and
wife
occupied
the
same
dwelling,
both
contributing
to
the
maintenance
there
of
a
common
household,
and
that
the
whole
of
the
wife’s
income
was
expended
for
her
personal
expenses
and
as
a
contribution
to
the
expenses
of
the
household.
The
meaning
to
be
assigned
to
the
written
admission
is,
in
my
opinion,
that
the
wife
clothed
herself
and
provided
the
money
for
her
personal
incidental
expenses,
that
this
did
not
exhaust
her
income
and
that
she
contributed
the
balance
to
the
upkeep
of
the
family
home.
The
learned
trial
Judge
found
that
the
evidence
did
not
establish
whether
or
not
the
appellant
supported
his
wife
and
considering
the
onus
of
proving
the
facts
to
be
on
the
appellant
held
that
the
appeal
failed.
As,
in
my
opinion,
the
onus
was
upon
the
defendant
to
prove
affirmatively
that
the
appellant
did
support
his
spouse
during
the
taxation
year
and
as
this
was
not
done
the
claim
of
the
Minister
fails
and
the
appellant
was
entitled
to
a
declaration
that
he
was
taxable
under
subpara.
(b)
of
Rule
1.
It
was
argued
before
us
that
there
was
a
presumption
of
fact
that
the
appellant
‘‘supported
his
spouse’’
within
the
meaning
of
subpara.
(a)
upon
the
ground
that
at
law
it
is
the
duty
of
the
husband
to
maintain
his
wife
according
to
his
condition
or
estate
in
life
or
according
to
his
means
of
supporting
her,
and
it
should
be
inferred
that
he
discharged
this
legal
duty.
I
am
not
of
the
opinion
that
any
such
presumption
of
fact
should
be
made
in
a
matter
of
this
nature.
If
there
was
such
a
presumption
of
fact
in
the
present
case
it
appears
to
me
to
be
rebutted
by
the
written
admission
made
on
behalf
of
the
Minister
that
the
wife
clothed
herself
and
contributed
to
the
upkeep
of
the
family
home.
The
word
used
in
subpara.
(a)
of
Rule
1
is
‘‘support’’
and
the
word
is
to
be
assigned
its
ordinary
meaning:
this
is
a
taxing
statute
and
in
accordance
with
long-recognized
principles
is
to
be
construed
strictly
:
the
subject
is
not
to
be
taxed
unless
the
language
of
the
statute
clearly
imposes
the
obligation
{Maxwell,
9th
Ed.,
p.
291).
Here
is
is
established
by
the
admission
that
the
spouse,
at
least
partially,
supports
herself
and
assists
in
the
maintenance
of
the
family
home.
I
do
not
think
that
sub-
para.
(a)
of
Rule
1
is
to
be
interpreted
as
if
it
read:
‘‘a
married
person
who
supported
his
spouse
or
contributed
to
her
support”
:
and
upon
the
admitted
facts
it
must
be
given
this
interpretation
if
liability
under
this
subparagraph
is
to
be
found.
The
appellant
argued
before
us
that
even
if
there
had
been
evidence
that
he
was
a
married
person
who
supported
his
spouse
within
the
meaning
of
that
expression
as
used
in
subpara.
(a)
that
he
was
also
clearly
within
subpara.
(b)
of
Rule
1,
and
entitled
to
the
lower
rate.
In
the
state
of
the
record
I
consider
it
unnecessary
to
deal
with
this
question.
The
appellant
further
claimed
to
be
entitled
to
a
declaration
that
he
was
entitled
to
deduct
$150.00
from
the
graduated
tax
under
the
terms
of
subpara
(b)
of
Rule
3
of
sec.
1
of
the
First
Schedule
to
the
Act.
The
Minister
has
disputed
this
on
the
ground
that
the
appellant
was
a
married
person
described
by
subpara.
(a)
of
Rule
3,
the
terms
of
which
are
identical
with
those
of
subpara.
(a)
of
Rule
1.
This
contention
was
not
supported
by
any
evidence
while
the
fact
that
the
appellant
was
a
person
with
three
children
under
eighteen
years
of
age
wholly
dependent
upon
him
for
support
was
admitted.
It
follows,
in
my
opinion,
that
the
appellant
was
entitled
to
this
deduction
from
the
graduated
tax.
The
appellant
further
claims
to
be
entitled
to
deduct
from
the
taxes
otherwise
payable
by
him
the
sum
of
$1,000.00
under
the
terms
of
subpara.
(i)
of
para.
(d)
of
sec.
7A
of
the
Act:
the
defendant
contends
that
as
the
appellant
is
a
person
subject
to
tax
under
Rule
3
of
sec.
1
of
para.
A
of
the
First
Schedule
this
deduction
should
be
$800.00
only.
As
the
appellant
was,
in
my
opinion,
a
person
subject
to
tax
under
subpara.
(b)
of
Rule
1
of
sec.
1
and
as
$1,000.00
is
less
than
ten
per
centum
of
his
taxable
income
he
is
entitled
to
deduct
that
amount.
The
appeal
should
be
allowed,
with
costs
in
this
Court
and
in
the
Exchequer
Court,
and
the
appellant
assessed
for
the
taxation
year
1944
in
accordance
with
the
above
findings.
Appeal
dismissed.
Email this Content