McNair,
J.:
—This
is
an
interlocutory
application
by
the
defendant
to
strike
the
plaintiff's
statement
of
claim
on
the
following
stated
grounds,
viz:
1.
The
Plaintiff's
Statement
of
Claim
be
struck
out
pursuant
to
Rule
419
of
the
Federal
Court
Rules
by
reason
of
the
fact
that
the
said
pleading
constitutes
a
departure
from
the
same
party's
pleading
in
another
action
before
this
Honourable
Court
and
constitutes
an
abuse
of
the
process
of
this
Honourable
Court.
The
defendant
carried
on
business
as
a
Ford
automobile
dealership
in
the
town
of
Grand
Falls,
New
Brunswick.
The
defendant
and
the
subsequent
dealership,
Violette
Motors
Limited,
had
a
contractual
relationship
with
their
supplier,
Ford
Motor
Company
of
Canada
Limited
(hereinafter
referred
to
as
"Ford").
By
the
terms
of
their
contractual
relationship,
the
defendant
and
Violette
Motors
Limited
had
the
right
to
pick
up
new
automobiles
directly
from
the
Ford
assembly
plant
in
Oakville,
Ontario.
In
1968
Ford
unilaterally
purported
to
alter
the
contractual
relationship
with
the
defendant
whereby
Ford
began
to
charge
the
defendant
for
pick-up
and
delivery
even
though
no
pick-up
and
delivery
services
were
ever
performed.
The
defendant
protested
this
unilateral
action
by
Ford
but
the
charges
were
paid
by
Ford
Motor
Credit
Corporation
pursuant
to
the
wholesale
financing
plan
in
existence
at
the
time.
These
extra
costs
were
included
in
the
defendant's
accounting
records
as
operating
expenses.
On
March
29,
1977
the
defendant
commenced
legal
proceedings
against
Ford
in
the
Court
of
Queen's
Bench
of
New
Brunswick
Trial
Division
for
declaration
of
the
plaintiff's
rights
and
recovery
of
the
pick-up
and
delivery
charges
and
interest
thereon.
On
September
16,
1980
the
Court
issued
a
judgment
granting
the
relief
sought
and
awarding
damages
to
the
defendant
and
Violette
Motors
Limited
in
the
sum
of
$310,442.50
for
the
period
from
January
1,
1972
to
December
15,
1978,
plus
interest
thereon.
The
New
Brunswick
Court
of
Appeal
upheld
the
decision
at
trial
in
a
judgment
pronounced
on
April
16,
1981.
An
application
by
Ford
for
leave
to
appeal
to
the
Supreme
Court
of
Canada
was
dismissed
on
October
19,
1981.
On
July
16,
1981,
the
defendant
commenced
a
second
action
against
Ford
for
damages
and
interest
arising
from
continuing
breach
of
contract
in
respect
of
pick-up
and
delivery
charges
from
December
15,
1978
to
March
21,
1980.
This
second
action
was
ultimately
settled
by
the
parties
and
discon-
tinued
upon
the
execution
of
a
release.
The
release
is
formally
dated
“this
day
of
February
A.D.
1982”.
The
plaintiff
maintains
that
the
defendant
received
the
amounts
of
$51,182.44
income
and
interest
of
$27,579.16
as
its
share
of
the
second
action.
On
September
16,
1983
the
Minister
of
National
Revenue
reassessed
the
defendant
in
respect
of
the
1981
taxation
year
and
added
$404,086.50
to
the
active
business
income
and
$217,738.67
to
the
income
of
the
defendant
for
that
year.
By
notice
of
objection
dated
December
12,
1983
the
defendant
disputed
the
aforementioned
assessment
for
the
1981
taxation
year.
On
January
8,
1985
the
Minister
rejected
the
notice
of
objection
aforesaid.
The
assessment
was
revised,
however,
to
add
a
total
of
$436,759.44
to
the
defendant's
income
for
the
1981
taxation
year.
The
defendant
filed
a
notice
of
appeal
for
the
1981
taxation
year
with
the
Tax
Court
of
Canada
on
February
26,
1985.
This
appeal
was
identified
as
Appeal
Number
85-362.
By
letter
dated
May
14,
1985
Revenue
Canada
indicated
that
the
above
mentioned
sum
of
$436,759.44
would
be
removed
from
the
1981
taxation
year
and
assessed
in
1980
and
1982.
On
June
19,
1985
the
Minister
of
National
Revenue
reassessed
the
defendants
in
respect
of
the
1980
taxation
year
by
adding
$357,997.84
to
the
taxpayer's
income.
The
1982
taxation
year
was
also
reassessed
on
that
date
to
add
a
further
$78,761.60
to
the
taxpayer's
income
for
that
year.
These
assessments
were
duly
appealed
to
the
Tax
Court
of
Canada
and
identified
as
Appeal
Numbers
86-8
and
86-9.
On
February
3,
1987
the
Tax
Court
dismissed
these
appeals
and
upheld
the
Minister's
assessment
on
the
ground
that
the
amount
of
$435,516.59
was
received
by
the
taxpayer
as
business
income
and
was
therefore
on
income
account
and
not
on
capital
account.
The
present
defendant's
appeal
in
the
action
known
as
Appeal
Number
85-362
was
allowed
by
the
Tax
Court
of
Canada
on
July
8,
1987
and
the
matter
was
referred
to
the
Minister
for
reconsideration
and
reassessment.
The
plaintiff's
present
action
(T-1276-87)
is
an
appeal
from
that
decision
to
the
Federal
Court
of
Canada.
The
plaintiff
alleges
in
paragraphs
11(g),
11(i),
13,
and
14
of
its
statement
of
claim
herein
that
the
amounts
of
$51,182.44
and
$27,579.16
must
be
included
as
income
from
business
in
the
defendant's
1981
taxation
year.
On
June
17,
1987
W.H.
Violette
Limited
appealed
the
decision
of
the
Tax
Court
of
Canada
rendered
on
February
3,
1987
with
respect
to
the
reassessments
for
its
1980
and
1982
taxation
years
(T-1329-87).
In
this
other
action
in
which
Her
Majesty
the
Queen
is
defendant,
the
plaintiff,
W.H.
Violette
Limited,
makes
the
following
alternative
plea
in
paragraph
25
of
its
statement
of
claim:
25.
The
Plaintiff
says
further
the
Minister
issued
an
assessment
for
the
said
amount
for
the
1981
taxation
year
on
or
about
the
16th
day
of
September,
1983,
and
after
filing
of
the
Notice
of
Objection
by
the
Plaintiff,
the
Minister
re-assessed
the
said
amount
in
the
years
1980
and
1982
and
the
Plaintiff
says
the
said
re-assess-
ments
were
contradictory
and
inconsistent
and
the
same
should
be
set
aside
as
being
contrary
to
law
and
to
the
Charter
of
Rights
and
in
particular
S.1
and
7
thereof.
The
defendant
makes
the
following
response
in
paragraph
13
of
the
defence:
13.
With
respect
to
paragraph
25
of
the
Statement
of
Claim,
he
admits
that
the
Minister
of
National
Revenue
issued
an
assessment
for
the
Plaintiff’s
1981
taxation
year
on
September
16,
1983,
inter
alia,
in
respect
of
amounts
received
or
receivable
from
Ford
Motor
Company
of
Canada
arising
from
the
two
actions.
He
admits
further
that,
after
the
Plaintiff
had
instituted
an
appeal
to
the
Tax
Court
of
Canada
in
respect
of
its
1981
taxation
year,
the
Minister
of
National
Revenue
reassessed
the
Plaintiff
for
its
1980
and
1982
taxation
year
so
as
to
include
in
the
computation
of
the
Plaintiff's
income
amounts
received
or
receivable
from
Ford
Motor
Company
of
Canada
arising
from
the
two
actions.
He
otherwise
denies
the
said
paragraph
and
states
further
that
the
assessments
were
based
on
information
provided
by
the
Plaintiff
and
the
allegations
of
fact
contained
in
the
Plaintiff's
Notice
of
Appeal
to
the
Tax
Court
of
Canada
in
respect
of
its
1981
taxation
year,
that
Counsel
for
the
Defendant
submitted
to
the
Tax
Court
of
Canada
that
the
Plaintiff's
appeal
of
the
assessment
of
its
1981
taxation
year
ought
to
be
allowed,
and
that
such
appeal
was
allowed
by
the
Tax
Court
of
Canada
by
judgment
dated
February
5,
1987.
The
defendant
pleads,
inter
alia,
in
the
assumptions
of
fact
set
out
in
paragraph
14
of
the
defence
that
the
amounts
of
$51,182.44
and
$27,579.16
were
received
or
receivable
by
the
plaintiff
as
income
in
its
1982
taxation
year.
Essentially,
the
crux
of
the
defendant's
case
on
the
motion
to
strike
is
simply
this:
the
statement
of
claim
in
the
present
action
constitutes
an
abuse
of
process
by
reason
that
the
pleading
therein
regarding
the
basis
of
assessment
for
the
defendant's
1981
taxation
year
contradicts
the
factual
basis
of
the
assessment
made
and
defended
by
the
Minister
in
the
other
action
with
respect
to
the
same
amounts
said
to
be
income
to
the
plaintiff
in
the
1982
taxation
year.
The
defendant
primarily
relies
on
Rules
419
and
411
of
the
Federal
Court
Rules,
which
state
as
follows:
Rule
419
Striking
Out
Pleadings
419.(1)
The
Court
may
at
any
stage
of
an
action
order
any
pleading
or
anything
in
any
pleading
to
be
struck
out,
with
or
without
leave
to
amend,
on
the
ground
that
(a)
it
discloses
no
reasonable
cause
of
action
or
defence,
as
the
case
may
be,
(b)
it
is
immaterial
or
redundant,
(c)
it
is
scandalous,
frivolous
or
vexatious,
(d)
it
may
prejudice,
embarrass
or
delay
the
fair
trial
of
the
action,
(e)
it
constitutes
a
departure
from
a
previous
pleading,
or
(f)
it
is
otherwise
an
abuse
of
the
process
of
the
Court,
and
may
order
the
action
to
be
stayed
or
dismissed
or
judgment
to
be
entered
accordingly.
(2)
No
evidence
shall
be
admissible
on
an
application
under
paragraph
(1)(a).
(3)
In
this
Rule,
"departure"
means
that
which
is
prohibited
by
Rule
411.
Rule
411
411.(1)
A
party
shall
not
in
any
pleading
make
any
allegation
of
fact
inconsistent
with
a
previous
pleading
of
his
or
raise
any
new
ground
or
claim
as
an
alternative
to,
or
a
substitute
for,
a
ground
or
claim
in
a
previous
pleading.
(2)
Paragraph
(1)
shall
not
be
taken
as
prejudicing
the
right
of
a
party
to
amend,
or
apply
for
leave
to
amend,
his
previous
pleading
so
as
to
plead
the
allegations
or
claims
in
the
alternative.
Counsel
for
the
defendant
submits
that
a
party
may
plead
in
the
alternative
but
not
inconsistently.
It
therefore
follows
that
the
Minister
cannot
be
permitted
to
plead
in
one
case
that
certain
amounts
are
assessable
to
the
taxpayer's
1981
taxation
year,
while
maintaining
at
the
same
time
in
another
case
in
which
he
plays
the
role
of
defendant
that
the
identical
amounts
are
assessable
to
the
1982
taxation
year.
Counsel
contends
that
such
contradic-
tory
pleading
places
the
defendant
in
the
present
action
in
a
position
of
double
jeopardy,
thereby
making
it
impossible
for
the
defendant
to
demolish
the
findings
of
fact
upon
which
the
Minister
bases
his
assessment.
Furthermore,
it
is
submitted
that
such
double
jeopardy
contradicts
section
7
of
The
Canadian
Charter
of
Rights
and
Freedoms
in
that
it
violates
the
principles
of
fundamental
justice
by
thrusting
on
the
defendant
the
unfair
onus
of
having
to
disprove
inconsistent
and
contradictory
assessments.
Finally,
counsel
for
the
defendant
submits
that
the
reassessments
for
the
1980
and
1982
taxation
years
had
the
legal
effect
of
nullifying
any
previous
assessment
for
the
1981
taxation
year,
and
he
cites
in
support
thereof
Walkem
v.
M.N.R.,
[1971]
C.T.C.
513;
71
D.T.C.
5288
(F.C.T.D.).
Counsel
for
the
plaintiff
asserts,
on
the
other
hand,
that
Rule
419
does
not
avail
to
the
defendant
inasmuch
that
the
statement
of
claim
discloses
a
reasonable
cause
of
action
and
from
the
further
fact
that
the
defendant
has
pleaded
over
to
the
same.
As
for
Rule
411,
the
Rule
against
departure
therein
enunciated
only
applies
to
pleadings
in
the
same
action.
He
maintains
that
the
statement
of
claim
is
only
pleading
allegations
of
fact
in
support
of
a
cause
of
action
that
is
separate
and
distinct
from
those
pleaded
in
defence
to
another
action.
He
argues
that
this
is
particularly
necessary
in
a
case
where,
as
here,
the
facts
in
dispute
are
within
the
sole
knowledge
of
the
opposite
party.
While
conceding
that
inconsistent
and
contradictory
assessments
are
generally
undesirable,
he
argues
that
the
circumstances
here
are
such
as
to
leave
the
Minister
with
no
other
choice,
relying
on
Quemet
Corp.
v.
The
Queen,
[1979]
C.T.C.
414
at
419-20;
79
D.T.C.
5330
at
5334
(F.C.T.D.).
Counsel
for
the
plaintiff
submits
that
the
defendant
in
the
case
has
raised
factual
allegations
subsequent
to
the
reassessments
for
1980
and
1982
which
cast
much
doubt
on
the
actual
date
of
settlement
of
the
second
action,
that
is,
whether
occurring
in
1981
or
1982.
In
addition,
the
defendant
has
declined
to
provide
waivers
to
the
Minister
with
respect
to
its
1981
taxation
year.
The
result
therefore
is
that
in
order
to
ensure
that
the
income
received
from
the
settlement
of
the
second
action
is
taxed
at
all,
it
is
absolutely
necessary
that
the
appeal
involving
the
1981
assessment
be
maintained
and
permitted
to
proceed.
I
will
deal
first
with
the
procedural
points.
The
English
rule
against
departure
is
similar
in
wording
to
our
own
Rule
411.
Odgers’
Principles
of
Pleading
and
Practice,
21st
ed.
gives
this
explanation
of
the
rule
at
page
212:
It is at the stage of reply that the rule against what is called "a departure in pleading” applies for the first time. “A party shall not in any pleading make any allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his." 1
A departure takes place when in any pleading the party deserts the ground that he took up in his preceding pleading, and resorts to another and a different ground; or, to give Sir Edward Coke's definition, "A departure in pleading is said to be when the second plea containeth matter not pursuant to his former, and which fortifieth not the same; and therefore it is called decessus, because he departeth from his former plea" (Co. Litt. 304a). This is clearly embarrassing; a reply is not the proper place in which to raise new claims; to permit this would tend to spin out the pleadings to an intolerable length. The plaintiff must amend his statement of claim by adding the new matter as a further or alternative allegation.
. . . A departure in pleading exists where a party quits or departs from the case or defence which he has first made, and has recourse to another. This rule against departure only applies to pleadings in the same action.
1 See Ord. 18, r. 10;
Williston
and
Rolls,
The
Law
of
Civil
Procedure,
has
this
to
say
about
the
comparable
Ontario
rule,
at
page
666:
.
.
.
A
departure
in
pleading
exists
where
a
party
quits
or
departs
from
the
case
or
defence
which
he
has
first
made,
and
has
recourse
to
another.
This
rule
against
departure
only
applies
to
pleadings
in
the
same
action.
Applying
the
foregoing
principles
to
the
case
at
bar,
I
am
bound
to
conclude
that
Rule
411
is
of
no
assistance
to
the
defendant.
What
of
the
point
made
regarding
inconsistency
in
pleading?
Williston
and
Rolls,
op
cit,
says
at
page
664:
Either
party
may
include
in
his
pleading
alternative
allegations
even
though
they
be
inconsistent:
a
plaintiff
may
plead
inconsistent
sets
of
material
facts
and
claim
relief
thereunder
in
the
alternative,
and
a
defendant
may
raise
in
his
defence
as
many
inconsistent
defences
as
he
may
think
proper.
In
re
Morgan;
Owen
v.
Morgan
(1887),
35
Ch.D.
492
(C.A.),
Lindley,
L.J.,
said
at
page
499:
I
think
that
in
this
case
the
learned
judge
in
the
Court
has
taken
too
strict
a
view
of
the
Order
as
to
pleadings.
He
has
evidently
proceeded
on
the
principle
that
inconsistent
defences
are
embarrassing
and
ought
not
to
be
allowed.
That
view
appears
to
me
not
to
be
warranted
by
the
Orders
when
properly
construed.
The
learned
Judge
has
relied
in
particular
upon
Order
XIX.,
rule
4,
the
important
part
of
which
runs
thus:
"Every
pleading
shall
contain,
and
contain
only,
a
statement
in
a
summary
form
of
the
material
facts
on
which
the
party
pleading
relies
for
his
claim
or
defence,
as
the
case
may
be,
but
not
the
evidence
by
which
they
are
to
be
proved."
Now
I
cannot
myself
construe
that
Order
as
prohibiting
inconsistent
pleadings.
One
sees
perfectly
well
what
is
meant
by
it,
viz.,
that
each
party
is
to
state
succinctly
and
concisely
in
a
summary
form
the
material
facts
on
which
he
relies.
Now
a
person
may
rely
upon
one
set
of
facts,
if
he
can
succeed
in
proving
them,
and
he
may
rely
upon
another
set
of
facts,
if
he
can
succeed
in
proving
them;
and
it
appears
to
me
to
be
far
too
strict
a
construction
of
this
Order
to
say
that
he
must
make
up
his
mind
on
which
particular
line
he
will
put
his
case,
when
perhaps
he
is
very
much
in
the
dark.
.
.
.
I
therefore
disagree
with
the
defendant's
blanket
contention
that
the
plaintiff
may
not
plead
in
this
action
allegations
of
fact
inconsistent
with
those
pleaded
in
another
action
in
which
the
plaintiff
is
defendant.
Nonetheless,
the
defendant
still
maintains
that
the
present
action
represents
an
abuse
of
process,
arguing
that
the
inconsistency
of
pleading
has
the
effect
of
placing
on
the
taxpayer
the
unfair
onus
of
having
to
reassess
its
own
income.
In
support
of
this
contention,
the
defendant
cites
the
following
statement
of
Mr.
Justice
Rand
in
Johnston
v.
M.N.R.,
[1948]
C.T.C.
195
at
203;
3
D.T.C.
1182
at
1183.
.
.
.
It
must,
of
course,
be
assumed
that
the
Crown,
as
is
its
duty,
has
fully
disclosed
to
the
taxpayer
the
precise
findings
of
facts
and
rulings
of
law
which
have
given
rise
to
the
controversy.
Here
there
are
two
controversies
by
way
of
appeal
in
which
inconsistent
allegations
of
fact
are
pleaded.
I
fail
to
see
any
nexus
between
this
type
of
situation
where
there
are
different
issues
to
be
tried
in
separate
actions
and
the
proposition
stated
by
Rand,
J.,
in
Johnston,
supra.
Moreover,
it
is
my
view
that
the
Crown
cannot
reasonably
be
expected
to
disclose
precise
findings
of
fact
with
respect
to
the
actual
date
of
settlement
of
the
second
action
when
these
facts
are
solely
within
the
knowledge
of
the
defendant
taxpayer.
The
present
case,
as
it
seems
to
me,
is
not
one
where
the
Minister
is
seeking
in
the
same
action
to
have
the
court
confirm
two
contradictory
assessments
in
the
same
taxation
year,
unlike
Crown
Trust,
infra,
which
held
that
this
was
"no
legal
bar
to
the
Minister
assessing
two
different
amounts
for
the
same
asset
in
the
same
taxation
year
when
the
value
to
be
determined
arises
out
of
the
same
transaction”,
despite
the
unfairness
of
such
practice:
see
Crown
Trust
Company
v.
The
Queen,
[1977]
C.T.C.
320;
77
D.T.C.
5173
(F.C.T.D.),
per
Addy,
J.,
at
page
324
(D.T.C.
5175).
Rather,
it
is
more
analogous,
in
my
view,
to
a
situation
where
the
Minister
had
little
choice
in
making
inconsistent
and
seemingly
contradictory
assessments
in
separate
actions
for
different
taxation
years,
but
arising
out
of
the
same
transaction,
in
order
to
ensure
that
there
will
at
least
be
some
taxation.
See
in
this
regard
Quemet
Corp.
v.
The
Queen,
supra,
per
Walsh,
J.,
at
page
419-20
(D.T.C.
5335).
Viewed
in
this
light,
the
present
action
seems
to
me
to
be
one
that
is
necessary
to
preserve
the
right
to
reassess
amounts
in
the
1981
taxation
year,
where
such
amounts
might
otherwise
become
statute
barred
by
virtue
of
subsection
152(4)
of
the
Income
Tax
Act
in
the
absence
of
any
waiver
on
the
part
of
the
taxpayer.
Counsel
for
the
defendant
relies
on
Walkem
v.
M.N.R.,
[1971]
C.T.C.
513;
71
D.T.C.
5288
(F.C.T.D.)
as
authority
for
the
proposition
that
a
reassessment
supersedes
an
assessment
under
appeal.
In
that
case,
the
Crown
was
successful
on
a
motion
to
quash
the
taxpayer's
appeal
from
an
original
reassessment
that
had
been
cancelled
and
superseded
by
a
subsequent
reassessment.
Counsel
argues
that
the
present
appeal
with
respect
to
the
1981
taxation
year
is
invalid
because
the
original
reassessment
has
been
replaced
by
the
reassessments
for
the
1980
and
1982
taxation
years.
Counsel
for
the
plaintiff
distinguishes
the
Walkem
case
as
being
applicable
only
to
reassessments
in
a
single
taxation
year
and
not
as
between
different
taxation
years
in
respect
of
different
issues.
I
agree
with
this
submission.
Moreover,
it
is
clear
from
the
statutory
language
of
section
152
of
the
Act
that
assessments
and
reassessments
are
made
for
a
particular
taxation
year
with
a
view
to
determining
the
amount
of
income
tax
payable
for
that
particular
year.
Each
taxation
year
must
be
considered
independently.
Hence,
it
is
difficult,
if
not
impossible,
to
conceive
how
a
reassessment
for
one
taxation
year
can
be
taken
to
be
superseded
by
a
reassessment
in
respect
of
another
taxation
year.
Consequently,
I
find
that
the
Walkem
case
is
of
no
assistance
to
the
defendant.
I
turn
now
to
the
defendant's
final
submission
to
the
effect
that
the
continuance
of
the
present
action
places
the
taxpayer
in
a
position
of
double
jeopardy
and
thus
violates
the
principles
of
fundamental
justice
espoused
by
section
7
of
the
Canadian
Charter
of
Rights
and
Freedoms.
This
is
said
to
arise
from
the
fact
that
the
defendant
has
been
thrust
into
the
invidious
position
of
having
to
disprove
inconsistent
and
contradictory
reassessments.
I
disagree.
The
central
issue
in
the
taxpayer's
appeal
in
the
other
action
is
whether
the
reassessments
for
the
taxation
years
1980
and
1982
were
wrong
by
reason
that
amounts
added
to
income
for
those
years
were
not
income
but
rather
capital.
The
taxpayer
pleaded
alternatively
in
the
same
action
that
if
the
said
amounts
were
taken
to
constitute
income
to
the
plaintiff
then
they
were
received
or
receivable
in
the
1981
taxation
year
and
were
not
assessable
for
the
1980
or
1982
taxation
years.
In
the
present
action,
the
plaintiff
is
appealing
the
Tax
Court's
decision
allowing
the
defendant's
appeal
on
the
basis
that
its
other
appeal
with
respect
to
similar
amounts
for
different
years
had
been
dismissed.
In
my
view,
this
is
entirely
consistent
with
the
Minister's
position
that
he
wishes
only
to
ensure
that
the
amounts
involved
do
not
escape
any
taxation.
While
both
actions
by
way
of
appeal
possess
many
common
features
out
of
the
same
general
set
of
circumstances,
they
nevertheless
in
fact
raise
the
very
real
and
substantially
different
issue
of
whether
the
amounts
of
$51,182.44
and
$27,579.16
were
taxable
as
business
income
to
the
plaintiff
in
either
of
the
1981
or
1982
taxation
years.
As
I
see
it,
the
resolution
of
this
issue
turns
on
whether
the
taxpayer's
second
action
against
Ford
was
settled
in
February
1982
or
before
the
end
of
the
1981
calendar
year
in
terms
of
when
the
settlement
proceeds
were
actually
received.
In
my
view,
the
answer
to
this
is
a
matter
within
the
taxpayer's
peculiar
knowledge
whereby
he
can
hardly
be
heard
to
complain
of
double
jeopardy
and
violation
of
the
principles
of
fundamental
justice
if
he
choses
not
to
reveal
the
actual
date
of
settlement.
Rather
than
constituting
a
threat
of
double
jeopardy,
I
consider
that
the
present
action
is
a
necessary
safeguard
against
the
possibility
of
the
taxpayer
avoiding
any
taxation
by
successfully
proving
in
the
other
action
that
the
amounts
were
actually
received
in
1981.
In
my
opinion,
each
action
has
its
own
raison
d'être
and
individual
points
of
merit
requiring
a
full
adjudication
at
trial.
I
find
therefore
that
the
plaintiff's
statement
of
claim
discloses
a
reasonable
cause
of
action
in
the
circumstances
and
that
it
does
not
constitute
an
abuse
of
the
process
of
the
court.
In
the
result,
the
defendant's
motion
is
dismissed
with
costs
and
an
order
will
go
accordingly.
Motion
dismissed.
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