Hill v. The Queen, docket 94-1470-IT-G

Date: 20000216

Docket: 94-1470-IT-G

BETWEEN:

NIGEL T. HILL,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Order

Beaubier, J.T.C.C.

[1]            At the opening of the motion hearing, Respondent's counsel waived the time limit set forth in subrule 147(7) in order that this motion proceed and an Order allowing short service was granted.

[2]            This is a motion pursuant to section 147 of the Rules of General Procedure for an Order declaring that the Notice of Discontinuance filed in the Federal Court of Appeal on December 12, 1997 disposed of the matter of costs awarded to the Respondent by this Court as part of a Judgment dated December 24, 1995, which was appealed to the Federal Court of Appeal and then discontinued as stated.

[2]            The Notice of Discontinuance, signed by counsel for both parties in December, 1997 reads:

NOTICE OF DISCONTINUANCE

                TAKE NOTICE that the Appellant herein, NIGEL T. HILL, wholly discontinues the within action with each party bearing its own costs.

                DATED the 9^th day of December, 1997.

                                                                                GAULEY & CO.

                                                                                Per:"Peter Foley"

                                                                                Peter Foley, Q.C.

                                                                                Solicitors for the Appellant

                                                                                Nigel T. Hill

This Notice of Discontinuance is consented to this 11 day of December, 1997.

                                                                                "Max Weder"                       

                                                                                Max Weder

                                                                                Solicitor for the Respondent

                                                                                Department of Justice

                                                                                Tax Litigation Section

[3]            Two things are noteworthy respecting the Notice of Discontinuance:

1.              It is executed by both counsel, and not just the Appellant's counsel. By "consent" the document became an agreement.

2.              It refers to "action", and not "appeal".

Normally the discontinuance executed by the Appellant's counsel alone is all that was required, and normally, one would expect the word "appeal", rather than "action" to be used in the document.

[4]            "Action" is a much broader and all-encompassing word than "appeal" in the context of a court case. This is confirmed by two definitions submitted by the Appellant's counsel which read:

Black's Law Dictionary (6^th edition) states that an action:

"... includes all the formal proceedings in a court of justice attendant upon the demand of a right made by one person of another in such court, including an adjudication upon the right and its enforcement or denial by the court."

In Johnson v. Refuge Assurance Company Limited, [1913] 1 K.B. 257, Lord Justice Kennedy says that the word 'action' when used in its natural meaning:

"... refers to any proceeding in the nature of a litigation between a plaintiff and a defendant..."

[5]            The operative word for an appeal in section 21 of this Court's Rules of General Procedure is "proceeding". Both section 12 of the Tax Court of Canada Act and section 169 of the Income Tax Act refer to an "appeal", as does subsection 27(1.1) of the Federal Court Act respecting an appeal from a judgment of the Tax Court of Canada. The Federal Court Rules applicable both before and after April 25, 1998 refer to appeals from the Tax Court of Canada under the General Procedure as "appeals". Thus the word action is not used in any of the governing statutes or rules. Whether in this Court or the Federal Court of Appeal, a reference to a single proceeding in a single court would be to an "appeal", and not to an "action".

[6]            The word "action" is inclusive when used in respect to court proceedings and includes any proceeding, whether a suit, a trial, an appeal or all of them. It includes any proceeding in the Courts to enforce a right, although it is generally used in civil matters. One of The Oxford English Dictionary, 2^nd Edition, definitions of "action" is:

The taking of legal steps to establish a claim or obtain judicial remedy; legal process; the right to raise such process.

The reference is to "steps" in the plural.

[7]            For these reasons, the Court orders pursuant to Rule 147 that the Notice of Discontinuance filed on December 12, 1997 completely disposes of all matters between the parties including costs at the Federal Court of Canada and at the Tax Court of Canada. Pursuant to it, each party is to bear its own costs.

Signed at Ottawa, Canada this 16^th day of February, 2001.

J.T.C.C.

COURT FILE NO.:                                                 94-1470(IT)G

STYLE OF CAUSE:                                               Nigel T. Hill v. Her Majesty the Queen

PLACE OF HEARING:                                         Ottawa Motions Room, by telephone                                                                                                                              conference call

DATE OF HEARING:                                           February 15, 2001

REASONS FOR ORDER BY:                               The Honourable Judge D.W. Beaubier

DATE OF ORDER:                                                February 16, 2001

PARTICIPANTS:

Counsel for the Appellant: Clint Weiland

Counsel for the Respondent:              Elizabeth Junkin

COUNSEL OF RECORD:

For the Appellant:                

Name:                      Clint Weiland

Firm:                        McDougall Gauley

                                                                                                Barristers & Solicitors

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

94-1470(IT)G

BETWEEN:

NIGEL T. HILL,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Motion heard by telephone conference call on February 15, 2001 by

the Honourable Judge D.W. Beaubier

Participants

Counsel for the Appellant:                                       Clint Weiland

Counsel for the Respondent:                                   Elizabeth Junkin

ORDER

          Upon hearing Clint Wieland, counsel for the Appellant, and Elizabeth Junkin, Counsel for the Respondent, and upon reading the Affidavits of Nigel T. Hill, the Honourable Peter Foley and Max Weder, and upon reviewing the file;

          It is ordered that pursuant to Rule 147, the Notice of Discontinuance filed on December 12, 1997 completely disposes of all matters between the parties including costs at the Federal Court of Canada and at the Tax Court of Canada.

          Each party is to bear its own costs.

Signed at Ottawa, Canada this 16^th day of February, 2001.

J.T.C.C.