CAMERON,
J.:—In
this
matter
the
plaintiff
claims
from
the
defendant
company
the
sum
of
$1,366.70
said
to
be
due
and
owing
for
sales
tax
under
the
provisions
of
section
86
of
The
Excise
Tax
Act,
R.S.C.
1927,
¢.
179,
and
amendments
thereto,
together
with
interest
thereon.
The
evidence
adduced
by
counsel
for
the
plaintiff
consisted
of
(a)
the
examination
for
discovery
of
an
officer
of
the
defendant
corporation;
(b)
the
letter
written
by
the
Assistant
Deputy
Minister
of
National
Revenue
to
the
defendant
dated
August
17,
1948,
in
which
the
defendant
was
notified
that
the
Department
had
under
consideration
a
proposed
assessment
against
the
defendant
for
sales
tax
for
the
period
November
1,
1947,
to
May
31,
1948;
that
full
details
of
the
proposed
assessment
could
be
obtained
at
the
Vancouver
office
of
the
Department;
that
the
defendant
could
make
such
representations
in
regard
thereto
as
it
thought
fit
until
September
8,
1948;
and
that
thereafter
and
following
consideration
of
the
matter
an
assessment
would
be
made
under
section
113(8)
of
the
Act
for
such
amount
of
sales
tax
as
might
be
payable.
Counsel
for
the
plaintiff
also
tendered
Exhibit
1,
consisting
of
an
"‘Assessment’’
made
by
the
Minister
under
the
provisions
of
section
113(8)
of
the
Act
and
dated
September
18,
1948,
and
the
certificate
of
the
Deputy
Minister
made
under
the
provisions
of
section
113(9)
and
dated
August
31,
1950.
Counsel
for
the
defendant
submitted
that
Exhibit
1
was
inadmissible
on
two
grounds.
In
view
of
the
nature
of
these
objections,
I
reserved
my
opinion
as
to
the
admissibility
of
Exhibit
1
until
I
had
had
the
advantage
of
hearing
argument
on
the
case
itself.
The
first
objection
taken
was
that
subsections
(8)
and
(9)
of
section
108
of
the
Act
could
not
apply
to
this
case,
that
they
could
not
be
construed
as
retroactive
in
effect,
and
that
the
liability
of
the
defendant
for
sales
tax,
if
any,
had
arisen
prior
to
the
two
subsections
coming
into
effect.
Subsections
(8)
and
(9)
were
enacted
by
section
8
of
e.
21,
Statutes
of
Canada,
1949,
assented
to
on
December
10
1949,
and
by
virtue
of
section
14(1)
thereof
were
deemed
to
have
come
into
force
on
March
23,
1949.
Section
8
is
as
follows:
^8.
Section
one
hundred
and
eight
of
the
said
Act
is
amended
by
adding
thereto
the
following
subsections
:—
(8)
Where
any
question
arises
in
a
proceeding
under
this
Act
as
to
whether
the
Minister
has
formed
a
judgment
or
opinion
or
made
an
assessment
or
determination,
a
document
signed
by
the
Minister
stating
that
he
has
formed
the
judgment
or
opinion
or
made
the
determination
or
assessment
is
evidence
that
he
has
formed
the
judgment
or
opinion
or
made
the
determination
or
assessment
and
of
the
judgment,
opinion,
determination
or
assessment.
(9)
In
any
proceedings
under
this
Act
a
certificate
purporting
to
be
signed
by
the
Deputy
Minister
that
a
document
annexed
thereto
is
a
document
or
a
true
copy
of
a
document
signed
by
the
Minister
shall
be
received
as
evidence
of
the
document
and
of
the
contents
thereof.’’
The
proceedings
now
before
me
were
commenced
on
March
4,
1950,
almost
one
year
after
the
amendment
was
deemed
to
have
eome
into
effect.
Moreover,
the
amendment
in
my
opinion
is
entirely
one
relating
to
procedure.
Its
purpose
was
to
deal
with
a
matter
of
evidence
and
evidence
has
been
held
to
be
a
procedural
matter,
Rex
v.
Kumps
(1931),
39
M.R.,
445.
In
Craies
on
Statute
Law
(Third
Edition),
at
p.
332
it
is
stated,
‘‘But
there
is
no
vested
right
in
procedure
or
costs.
Knactments
dealing
with
these
subjects
apply
to
pending
actions
unless
a
contrary
intention
is
expressed
or
clearly
implied.”
Reference
may
also
be
made
to
The
King
v.
Allison,
[1950]
C.T.C.
159,
where
Kelly,
J.,
acting
as
Deputy
Judge
of
this
Court,
reached
the
same
conclusion.
The
objection
on
this
ground
must
fail.
The
second
objection
was
that
the
‘‘
Assessment’’
dated
September
18,
1948,
was
not
in
fact
an
assessment
at
all
and
that
the
plaintiff
was
estopped
from
alleging
that
it
was
an
assessment
by
reason
of
the
decision
of
the
Court
of
Appeal
of
the
Provinee
of
British
Columbia.
It
was
submitted
that
such
decision
was
res
judicata
and
binding
on
this
Court.
In
support
of
his
plea,
counsel
for
the
defendant
tendered
in
evidence
certified
copies
of
certain
proceedings
originating
in
the
Police
Court
at
Vancouver
in
which
the
defendant
herein
was
charged
with
‘‘Being
a
person
required
to
pay
sales
tax
pursuant
to
the
Special
War
Revenue
Act
and
amendments
thereto
and
to
the
Excise
Tax
Act
and
amendments
thereto,
unlawfully
did
fail
to
pay
within
the
time
prescribed
by
the
said
Act,
sales
tax
in
the
total
amount
of
$1,388.75
for
the
period
between
November
Ist,
1947,
and
May
31st,
1948,
both
dates
inclusive.
‘
‘
The
evidence
tendered
consisted
of
the
following
records
:
(1)
Exhibit
D,
the
Information
and
Complaint.
(2)
Exhibit
E,
the
Certificate
of
Conviction
of
the
Defendant.
(3)
Exhibit
B,
the
case
stated
by
the
Magistrate.
(4)
Exhibit
A,
copy
of
the
Appeal
Book,
containing
also
the
judgment
of
Manson,
J.,
who
had
affirmed
the
decision
of
the
Magistrate.
(5)
Exhibit
C,
a
certified
copy
of
the
Judgment
of
the
Court
of
Appeal,
which
by
majority
reversed
the
judgment
of
Manson,
J.
Counsel
for
the
plaintiff,
while
not
objecting
to
the
form
in
which
these
records
were
produced,
submitted
that
they
were
irrelevant
and
therefore
inadmissible.
Again
I
felt
it
advisable
to
defer
my
opinion
on
this
point
until
I
had
heard
full
argument
on
the
ease.
I
have
now
reached
the
conclusion
that
in
this
case—where
the
parties
are
the
same
as
in
the
other
proceedings—these
records
constitute
admissible
evidence.
The
defendant
in
his
defence
has
pleaded
res
judicata
and
for
the
purpose
of
ascertain-
ing
the
subject-matter
of
the
decision
relied
upon
as
res
judicata,
it
is
necessary
to
have
recourse
to
the
record
and
the
judgment
and
such
pleadings
and
other
proceedings
as
tend
to
show
what
particular
questions
of
law
or
issues
of
fact
must
necessarily
have
been
determined
by
the
Tribunal
in
adjudicating
as
it
did
Spencer
Bower
on
Res
judicata,
(1924
Ed.)
p.
113.
To
deny
the
defendant
the
right
to
introduce
such
documents
might
be
to
deprive
it
of
the
only
evidence
that
might
be
available
in
proof
of
its
defence
of
res
judicata.
I,
therefore,
find
that
these
exhibits
are
admissible
in
evidence,
Marginson
v.
Blackburn
Borough
Council,
[1939]
1
A.E.R.
p.
273
at
278.
Exhibit
C
is
the
formal
judgment
of
the
Court
of
Appeal.
It
answered
in
the
negative
the
three
questions
set
out
in
the
stated
case
submitted
by
the
Magistrate,
which
questions
were
as
follows
:
(1)
Was
I
right
in
holding
that
the
said
paper
writing
was
admissible
as
evidence?
(2)
Was
I
right
in
holding
that
the
said
paper
writing
was
evidence
of
the
facts
therein
stated?
(3)
Was
I
right
in
holding
that
the
said
paper
writing
was
the
assessment
of
the
Minister
of
National
Revenue
within
the
meaning
of
section
113,
subsection
(8)
of
the
Excise
Tax
Act
(Canada)
?‘‘
Counsel
for
the
defendant
submits
that
the
finding
of
the
Court
of
Appeal
that
the
""paper
writing’’
(which
is
the
identical
assessment
forming
part
of
Exhibit
1
herein)
was
not
the
assessment
of
the
Minister
within
the
meaning
of
section
113(8)
of
the
Act
concludes
the
matter
and
that
Exhibit
1
is
therefore
inadmissible.
I
am
of
the
opinion
that
this
objection
must
also
fail.
In
order
that
a
defence
of
res
judicata
may
succeed
it
is
necessary
to
show
not
only
that
the
cause
of
action
is
the
same,
but
also
that
the
plaintiff
had
an
opportunity
of
recovering,
and
but
for
his
own
fault
might
have
recovered
in
the
first
action
that
which
he
seeks
to
recover
in
the
second.
{Ilalsbury,
2nd
Ed.,
Vol
13,
p.
4111).
The
proceedings
in
the
Police
Court
at
Vancouver
were
for
the
recovery
of
penalties
incurred
for
violation
of
the
Excise
Tax
Act
and
that
Court
had
jurisdiction
to
hear
the
matter
by
reason
of
the
provisions
of
section
108(2)
(b)
of
the
Act.
The
taxes
now
claimed
could
not
have
been
recovered
in
the
proceedings
in
the
Police
Court,
but
only
in
the
Exchequer
Court,
or
in
any
other
Court
of
competent
jurisdiction
(section
108(1))
or
by
proceeding
under
section
108(4).
It
is
the
case
that
in
proceedings
in
the
Police
Court
the
penalties
assessed
for
a
non-payment
of
taxes
could
include
an
amount
equal
to
the
unpaid
taxes,
but
section
109(2)
makes
it
abundantly
clear
that
even
if
the
penalties
assessed
included
an
amount
equal
to
the
unpaid
tax,
the
taxpayer
is
not
absolved
from
liability
to
pay
the
taxes
which
are
properly
due.
Moreover,
there
has
been
no
adjudication
upon
the
merits
of
the
question
now
before
me,
that
is,
is
the
defendant
liable
for
the
sales
tax
now
claimed?
It
is
a
fact
that
the
defendant
in
the
Police
Court
proceedings
could
not
have
been
found
guilty
unless
it
was
established
that
it
had
failed
to
pay
the
tax.
It
is
apparent,
however,
from
the
exhibits
placed
in
evidence
before
me
and
from
the
Reasons
for
Judgment
of
the
Court
of
Appeal
(Rex
v.
Pacific
Bedding
Co.
Ltd.,
[19491
2
W.W.R.,
p.
575)
that
the
only
matter
disputed
before
the
Magistrate
and
in
the
Court
of
Appeal
was
the
admissibility
of
the
"‘Assessment’’
in
evidence,
and
the
proof
of
the
statements
made
therein.
I
think
that
there
can
be
no
doubt
that
the
Court
may
look
at
the
Reasons
for
Judgment,
as
well
as
at
the
formal
judgment
itself.
(Mar-
ginson
V.
Blackburn
Borough
Council,
supra).
In
the
Court
of
Appeal,
Sloan,
C.J.B.C.,
after
considering
the
admissibility
of
the
document,
said
at
p.
581:
"‘Ido
not
think
it
is
required
of
me
to
express
any
view
as
to
the
manner
in
which
the
assessment
under
said
see.
113(8)
of
the
Excise
Tax
Act
might
properly
be
proved.
It
is
sufficient
for
me
to
say
in
this
case
that
in
a
criminal
proceeding
and
in
the
absence
of
any
express
legislative
provision
authorizing
its
use
the
mere
production
of
a
signed
document
of
this
character
cannot,
in
my
view,
be
regarded
as
either
conclusive
or
prima
facie
proof
of
the
facts
contained
therein.
That
being
so
the
document
has
no
evidentiary
value
and
ought
not
to
have
been
admitted
in
evidence.
In
my
opinion
then,
with
deference,
this
appeal
ought
to
be
allowed
and
the
three
questions
answered
in
the
negative.
‘
‘
I
think,
therefore,
that
while
question
3
of
the
stated
case
was
answered
in
the
negative,
the
reasonable
interpretation
to
be
put
upon
the
matter
was
that
it
constituted
a
finding
that
the
evidence
in
the
Police
Court
was
insufficient
to
prove
that
an
assessment
had
been
made.
Reference
may
also
be
made
to
Bureau
v.
The
King,
[1949]
S.C.R.
p.
367,
La
Foncière
Compagnie
D‘
Assurance
de
France
v.
P
erras
et
al.,
[1943]
S.C.R.
165,
Kantyluk
v.
Graham
and
Kostick,
[1948]
3
D.L.R.
p.
464.
There
is
still
another
reason
why
the
defence
of
res
judicata
is
not
now
available
to
the
defendant;
following
the
decision
of
the
Court
of
Appeal
of
British
Columbia
the
Excise
Tax
Act
was
amended
in
1949
by
adding
subsections
(8)
and
(9)
to
section
108
(supra).
As
I
have
pointed
out
above,
Exhibit
1
filed
by
counsel
for
the
plaintiff
consists
of
the
"‘Assessment’’
and
the
certificate
of
the
Deputy
Minister
provided
for
in
subsection
(9).
The
assessment
is
as
follows:
"
"
I,
James
Joseph
McCann,
of
the
City
of
Ottawa,
Minister
of
National
Revenue
for
the
Dominion
of
Canada,
having
considered
an
audit
report
made
by
Excise
Tax
Auditor
C.
Privât
and
no
reply
having
been
received
to
departmental
letter
of
August
17th,
1948,
to
Pacific
Bedding
Co.
Ltd.,
Vancouver,
B.C.,
for
representations
regarding
or
objections
to
a
proposed
assessment
for
sales
tax
in
the
amount
of
$1,388.75
for
the
period
from
November
1st,
1947,
to
May
31st,
1948,
and
after
making
further
enquiries
and
having
given
full
consideration
to
the
matter
and
being
of
the
opinion
that
the
said
Pacific
Bedding
Co.
Ltd.,
while
carrying
on
business
in
the
City
of
Vancouver,
B.C.,
has
in
my
opinion
failed
to
maintain
adequate
records
of
account
for
the
purpose
of
the
Excise
Tax
Act
during
the
period
from
November
1st,
1947,
to
May
31st,
1948,
by
virtue
of
the
powers
vested
in
me
do
hereby
assess
pursuant
to
the
provisions
of
Section
113(8)
of
the
Excise
Tax
Act,
R.S.C.
1927,
Chapter
179
and
amendments
thereto,
the
said
Pacific
Bedding
Co.
Ltd.,
for
the
said
period,
the
sum
of
$1,388.75
for
sales
tax
exigible
under
the
said
Act,
which
sum
shall
be
deemed
to
have
been
payable
as
follows:
|
1947
|
November
|
$
348.78
|
|
December
|
274.74
|
|
1948
|
January
|
172.15
|
|
February
|
119.55
|
|
March
|
131.26
|
|
April
|
213.19
|
|
May
|
129.08
|
|
$1,388.75
|
This
assessment
of
$1,388.75
shall
be
in
addition
to
the
sales
tax
already
paid.
Dated
at
Ottawa,
this
18th
day
of
September,
1948.
(Sgd.)
James
J.
McCann
Minister
of
National
Revenue.’’
The
certificate
of
the
Deputy
Minister
is
as
follows
:
"‘I
hereby
certify
that
the
document
dated
the
18th
day
of
September,
1948,
annexed
hereto,
is
a
document
signed
by
the
Honourable
the
Minister
of
National
Revenue.
(Sgd.)
D.
Sim
Deputy
Minister
of
National
Revenue
for
Customs
and
Excise.’’
Under
the
provisions
of
subsection
(9),
therefore,
the
effect
of
the
Deputy
Minister
‘s
certificate
is
that
the
document
attached
thereto
(which
is
the
Assessment)
is
a
document
signed
by
the
Minister
and
that
it
shall
be
received
as
evidence
of
the
document
and
of
the
contents
thereof.
Moreover,
it
follows
from
the
provisions
of
subsection
(8)
that
the
statements
in
the
Assessment,
that
the
Minister
has
formed
the
opinion
that
the
defendant
has
failed
to
maintain
adequate
records
of
account
for
the
purpose
of
the
Excise
Tax
Act
for
the
period
mentioned,
and
that
he
has
assessed
the
defendant
for
the
sum
now
claimed,
constitute
admissible
evidence
that
he
has
formed
the
opinion
and
made
the
Assessment
and
of
the
opinion
and
Assessment.
It
follows,
therefore,
that
whatever
weight
would
have
had
to
be
given
to
the
judgment
of
the
Court
of
Appeal
that
the
"‘Assessment’’
was
not
an
assessment
of
the
Minister,
before
the
law
was
amended
by
adding
subsections
(8)
and
(9)
to
section
108,
the
result
of
the
amendment
is
that
upon
production
of
the
certificate
of
the
Deputy
Minister
attached
to
the
document
signed
by
the
Minister,
that
certificate
and
document
(Exhibit
1)
are
admissible
in
evidence
and
that
the
assessment
purported
to
have
been
made
by
the
document
is
in
fact
the
assessment.
My
finding
is,
therefore,
that
Exhibit
1
is
to
be
admitted
as
evidence
on
behalf
of
the
plaintiff,
the
objections
of
counsel
for
the
defendant
being
overruled.
The
authority
of
the
Minister
to
make
the
assessment
when
a
person
has
failed
to
keep
the
required
records
or
books
of
account
is
as
follows:
(6
Section
113(8).
Where
a
person
has,
during
any
period,
in
the
opinion
of
the
Minister,
failed
to
keep
records
or
books
of
account
as
required
by
subsection
one
of
this
section,
the
Minister
may
assess
(a)
the
taxes
or
sums
that
he
was
required,
by
or
pursuant
to
this
Act,
to
pay
or
collect
in,
or
in
respect
of,
that
period
;
or
(b)
the
amount
of
stamps
that
he
was
required,
by
or
pursuant
to
this
Act,
to
affix
or
cancel
in,
or
in
respect
of,
that
period,
and
the
taxes,
sums
or
amounts
so
assessed
shall
be
deemed
to
have
been
due
and
payable
by
him
to
His
Majesty
on
the
day
the
taxes
or
sums
should
have
been
paid
or
the
stamps
should
have
been
affixed
or
cancelled/
‘
The
assessment
having
been
admitted
in
evidence,
it
follows
that
the
taxes,
sums
or
amounts
so
assessed
shall
be
deemed
to
have
been
due
and
payable
by
the
defendant
and
payable
to
His
Majesty
on
the
dates
mentioned.
There
is,
therefore,
before
me
prima
facie
evidence
that
the
amount
claimed
by
the
plaintiff
is
payable
by
the
defendant.
The
only
defence
raised
by
the
defendant
was
that
of
res
judicata
and
having
rejected
that
defence
it
follows
that
there
must
be
judgment
for
the
plaintiff
for
the
amount
claimed
in
the
Information
filed,
namely,
$1,366.70,
for
sales
tax,
together
with
interest
thereon,
as
provided
by
section
106(4)
of
the
Excise
Tax
Act,
up
to
the
date
hereof.
The
plaintiff
is
also
entitled
to
be
paid
his
costs,
after
taxation.
Judgment
accordingly.
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