Date: 20000726
Docket: 97-3629-IT-G
BETWEEN:
STANLEY TRZOP,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Bowie J.T.C.C.
[1] These appeals are from reassessments of the
Appellant's liability under the Income Tax Act (the
Act) for the taxation years 1977 and 1980. The
reassessments now under appeal were made by the Minister of
National Revenue (the Minister) to implement a judgment of the
Supreme Court of Canada. That judgment was the culmination of
some ten years of litigation, beginning in this Court, as to the
interpretation to be given to paragraph 20(14)(b) of the
Act. The unanimous Reasons for Judgment of the Supreme
Court were delivered by Mr. Justice Iacobucci, and are
reported as Canada v. Antosko, [1994] 2 S.C.R. 312.
the facts
[2] On March 1, 1975, the Appellant and Boris Antosko entered
into a contract with the New Brunswick Industrial Finance Board
(the Board). They were to take over and rescue a manufacturing
company which was on the brink of collapse. The essential terms
of the contract are stated in paragraph 4 of the Reasons of
Iacobucci J.:
4. On March 1, 1975, the board entered into an agreement with
the appellants, Antosko and Trzop, in which the appellants
acquired all of the board's common shares in the company for
a consideration of $1. The board also covenanted to ensure that
the company was debt free, except for the indebtedness to the
board in the amount of $5 million plus accrued interest, and to
postpone the obligation to repay this indebtedness, and interest
thereon, for a period of two years. In return, the appellants
promised to operate the company during this two-year period in a
good and business-like manner. The board agreed that, upon
expiration of the two-year period and if all its conditions were
met, it would then sell to the appellants the $5 million debt
plus accrued interest for the sum of $10.
With a view to ensuring the company's profitability, Mr.
Antosko devoted all his time and energies during the two-year
period to running the manufacturing side of the business, and the
Appellant devoted much, but not all, of his time to the sales
side. Mr. Antosko had no other source of income and therefore
required a salary from the company in order to support his
family. Mr. Trzop, prior to the acquisition of the company, had
several businesses which provided him with income, and so he was
able, by devoting most of his time to the business of the
company, and the remainder of it to one of his other businesses,
to provide for his family without drawing a salary from the
company. They therefore agreed that he would run the sales side
of the company during this two-year period without any
salary.
[3] Subsequent events are described by Iacobucci J. in
paragraphs 5, 6 and 7:
5. Following the execution of the above agreement, the
appellants changed the name of the company to Resort Estates
Limited. In 1976, the obligations of the board passed to the
Province of New Brunswick as represented by the Minister of
Commerce and Development. The agreement, however, remained
unchanged. The appellants satisfied their obligations under the
agreement and thus, on July 6, 1977, the board sold to them the
total indebtedness of the company. The Minister of Commerce and
Development assigned to the appellants the debenture, promissory
notes, realty mortgage and chattel mortgage that had been given
as security for the outstanding indebtedness of the company to
the board.
6. Interest on the debenture issued by the company as security
for the $3.375 million paid by the board to the bank in
fulfilment of its loan guarantee was treated as accruing daily at
a rate of 11.5% per annum from the date the bank was paid.
Interest on the four promissory notes had also accrued daily. In
the 1977 taxation year, the appellants each received $38,335 from
the company in partial payment of interest which had accrued on
the total debt prior to transfer. The appellants included this
interest as income pursuant to s. 12(1)(c) of the
Income Tax Act, and then claimed deductions of these
amounts pursuant to s. 20(14)(b). In the 1980 taxation
year, the appellant Trzop received $283,363 from the company as a
similar partial payment of interest. This amount was also
included as income and then claimed as a deduction.
7. The Minister of National Revenue disallowed the deductions.
The appellants successfully appealed these disallowances to the
Tax Court of Canada. An appeal by the respondent Minister to the
Federal Court, Trial Division was allowed, and a further appeal
by the appellants to the Federal Court of Appeal was dismissed,
with the result that the deductions were disallowed. The
appellants now appeal the decision of the Federal Court of Appeal
to this Court.
[4] The Appellants were successful in their appeals to the
Supreme Court. The Minister's position throughout was that
subsection 20(14)[1] is in the Act to ensure that when a debt
obligation changes hands between interest payment dates, and
subsequently interest accruing both before and after the date of
the transfer is paid to the transferee, the transferee will not
be taxed on the interest accrual prior to the date of transfer,
but the transferor will be taxed on it. This is accomplished by
requiring the transferor to include interest accrued prior to the
transfer date under paragraph 20(14)(a), requiring
the transferee to include all of the interest received pursuant
to paragraph 12(1)(c), but providing the transferee with a
deduction from income for interest accrued prior to the date of
transfer, and equivalent to the inclusion by the transferor
pursuant to paragraph 20(14)(b).
[5] In this case the transferor was Her Majesty the Queen in
Right of New Brunswick, who is exempt from tax. The position
of the Crown was that as the transferor could not be taxed on the
pre-transfer accrual of interest, Mr. Antosko and Mr. Trzop
should not have the offsetting deduction available to them under
paragraph 20(14)(b). Their position, which ultimately
prevailed, was that the plain words of paragraph 20(14)(b)
entitled them to the deduction, regardless of whether there was a
transferor who could be taxed on the equivalent amount. The
Supreme Court's reasons end with the following two
paragraphs:
VI. Conclusion and Disposition
51. The appellants are entitled to a deduction of interest
accruing prior to the transfer and payable thereafter. The
transaction between the appellants and the board meets the
requirements of s. 20(14). The interest which accrued during the
period that repayment of the debt was suspended did not become
payable until after the transfer. However, the parties agree that
this result may have other tax consequences for the appellants,
such as a taxable capital gain pursuant to s. 40(3). In this
connection, these and any other possible consequences can be
taken into account by the respondent in reassessment.
52. Therefore, the appeals are allowed, the judgment of the
Federal Court of Appeal is set aside, and the matters referred
back to the Minister for reassessment in accordance with these
reasons. The appellants shall have their costs here and in the
courts below.
[6] It is the implementation of this judgment which gives rise
to the present appeals. Clearly it was the Minister's duty
following the judgment to reassess the Appellant's "in
accordance with these Reasons".[2] The Minister's position is that
she has done so; the Appellant's position is that she has
not.
the statutory provisions
[7] The following provisions of the Act are relevant to
a consideration of the reassessments under appeal:
20(1) Notwithstanding paragraphs 18(1)(a), (b)
and (h), in computing a taxpayer's income for a
taxation year from a business or property, there may be deducted
such of the following amounts as are wholly applicable to that
source or such part of the following amounts as may reasonably be
regarded as applicable thereto:
...
20(14) Where, by virtue of an assignment or other transfer of
a debt obligation, other than an income bond, an income
debenture, a small business development bond or a small business
bond, the transferee has become entitled to an amount of interest
that accrued on the debt obligation for a period commencing
before the time of transfer and ending at that time that is not
payable until after that time, that amount
(a) shall be included as interest in computing the
transferor's income for the transferor's taxation year in
which the transfer occurred, except to the extent that it was
otherwise included in computing the transferor's income for
the year or a preceding taxation year; and
(b) may be deducted in computing the transferee's
income for a taxation year to the extent that the amount was
included as interest in computing the transferee's income for
the year.
...
40(3) Where
(a) the total of all amounts required by subsection
53(2) (except paragraph 53(2)(c)) to be deducted in computing the
adjusted cost base to a taxpayer of any property at any time in a
taxation year
exceeds
(b) the total of
(i) the cost to the taxpayer of the property determined for
the purpose of computing the adjusted cost base to the taxpayer
of that property at that time, and
(ii) all amounts required by subsection 53(1) to be added to
the cost to the taxpayer of the property in computing the
adjusted cost base to the taxpayer of that property at that
time,
the following rules apply:
(c) [irrelevant], the amount of the excess shall be
deemed to be a gain of the taxpayer for the year from a
disposition at that time of the property,
...
53(2) In computing the adjusted cost base to a taxpayer of
property at any time, there shall be deducted such of the
following amounts in respect of the property as are
applicable:
...
(l) where the property is a debt obligation, any amount
that was deductible by virtue of subsection 20(14) in computing
the taxpayer's income for any taxation year commencing before
that time in respect of interest on that debt obligation;
...
164(4.1)Where the Tax Court of Canada, the Federal Court of
Appeal or the Supreme Court of Canada has, on the disposition of
an appeal in respect of taxes, interest or a penalty payable
under this Act by a taxpayer resident in Canada,
(a) referred an assessment back to the Minister for
reconsideration and reassessment, or
(b) varied or vacated an assessment,
the Minister shall with all due dispatch, whether or not an
appeal from the decision of the Court has been or may be
instituted,
(c) where the assessment has been referred back to the
Minister, reconsider the assessment and make a reassessment in
accordance with the decision of the Court, unless otherwise
directed in writing by the taxpayer, and
(d) refund any overpayment resulting from the
variation, vacation or reassessment,
and the Minister may repay any tax, interest or penalties or
surrender any security accepted therefor by the Minister to that
taxpayer or any other taxpayer who has filed another objection or
instituted another appeal if, having regard to the reasons given
on the disposition of the appeal, the Minister is satisfied that
it would be just and equitable to do so, but for greater
certainty, the Minister may, in accordance with the provisions of
this Act, the Tax Court of Canada Act, the
Federal Court Act or the Supreme Court Act as they
relate to appeals from decisions of the Tax Court of Canada or
the Federal Court, appeal from the decision of the Court
notwithstanding any variation or vacation of any assessment by
the Court or any reassessment made by the Minister under
paragraph (c).
the reassessments under appeal
[8] On November 6, 1996, the Minister issued reassessments to
the Appellant for the 1977 and 1980 taxation years pursuant to
subsection 164(4.1) of the Act to give effect to the
Supreme Court's judgment. In doing so, her thought process,
or more exactly that of her officials, was, first, that the
deduction from income claimed by the Appellant under paragraph
20(14)(b) of the Act should be allowed as the
judgment required; second, that she was required by paragraph
53(2)(l) of the Act to deduct from the
taxpayer's adjusted cost base of the debentures an amount
equal to the amount that the Supreme Court of Canada had held was
deductible from the Appellant's income under paragraph
20(14)(b); third, that when she made the paragraph
20(14)(b) deduction from the adjusted cost base, which she
understood to be the $10 payment, the adjusted cost base became a
negative amount; fourth, that subsection 40(3) of the Act
provides that that negative adjusted cost base is deemed to be a
gain of the taxpayer from a disposition of the property (the
debenture) at that time. The product of this reasoning was an
assessment whereby the Appellant was allowed the deduction under
subsection 20(14) of the Act that he had been seeking
since the outset, but in consequence, was taxed in respect of the
deemed gain arising out of the disposition deemed by subsection
40(3) of the Act to have taken place.
the effect of delay
[9] The Appellant challenges the Minister's right to
consider and apply subsection 40(3) at this stage of the
proceedings, contending that to do so is to raise a new basis for
the assessment long after the normal reassessment period has
elapsed, and after the issues have been determined by the Supreme
Court's judgment. Before dealing with this contention,
however, I shall address an argument made by counsel for the
Appellant that the assessments should be vacated, without regard
to the merits, simply on the basis that an unreasonable amount of
time has passed both since the original assessments were made in
1978 and 1981, and since the judgment of the Supreme Court was
delivered in 1994. In support of this argument, Mr. Mockler
relied on the judgment of Christie A.C.J. of this Court in
Ginsberg v. The Queen,[3] and also on section 7 of the Canadian Charter
of Rights and Freedoms the (Charter).
[10] The Appellant's reliance on Ginsberg is
misplaced. In that case Christie A.C.J. allowed an appeal
and vacated the assessment on the basis that the Minister had not
complied with the statutory directive in subsection 152(1) to
assess the taxpayer with all due dispatch, and had not brought
satisfactory evidence to explain the delay. Counsel for the
Appellant is correct to say that the same principle applies in
this case. However, the judgment of Christie A.C.J. in this Court
was later reversed by the Federal Court of Appeal.[4] That Court did not give
any consideration to the amount of time that elapsed between the
filing of the Appellant's income tax return and the
Minister's initial assessment. Instead, the Court held that
even if the time were unreasonable, the Appellant was not
entitled to have the assessment vacated. Although the Minister
has a statutory duty to assess "with all due dispatch",
his failure in that duty does deprive him of jurisdiction to make
an assessment, and when he does so, that assessment is, by the
provisions of subsection 152(8), valid and binding. Moreover,
liability for tax is not affected even by a failure to assess at
all. Consequently, an assessment could not be invalidated simply
because it was not issued "with all due dispatch". This
ground of appeal has no merit.
[11] Nor does section 7 of the Charter assist the
Appellant. That section reads:
Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
[12] Counsel for the Appellant referred to the judgment of the
British Columbia Court of Appeal in Blencoe v. British
Columbia (Human Rights Commission).[5] In that case the Court held that
section 7 of the Charter entitled the Appellant to the
termination of an investigation into a complaint of sexual
harassment that had been brought against him. Mr. Mockler argued
that the case stands for the proposition that:
... s. 7 protects against a completely open-ended
government pursuit of a citizen. Such an open-ended pursuit
violates the security of the person.[6]
The present case bears no similarity in principle to
Blencoe. The Appellant is not the subject of an inquiry of
any kind. His complaint on this issue is only that the
proceedings at four different levels of appeal from the first
reassessments took some 13 years to resolve the substantive issue
which gave rise to the reassessments. Those reassessments were
not the result of any lengthy factual inquiry; there was only one
issue between the parties, and it was a simple matter of
interpreting one section of the Act. I do not propose to
recount the history of the litigation. It is sufficient to say
that there were procedures available to the Appellant by which
the delays could have been minimized, had he chosen to invoke
them. Similarly, although the Minister was slow to reassess the
Appellant after the Supreme Court had delivered judgment, and
slow as well to confirm the assessments after they were objected
to, at least some of that delay was attributable to an ongoing
correspondence between counsel as to the propriety of the
reassessments. At any stage the Appellant could have insisted on
having his reassessments in order to appeal from them. And after
the Notices of Objection were delivered, he had only to wait 90
days before launching his appeals to this Court. Instead, he
chose to wait until the assessments were confirmed, more than
seven months later. This is far different from the facts in
Blencoe, where the investigation of a very serious
complaint took on a life of its own, and had a deleterious effect
on the life and well-being of Mr. Blencoe and his family. In that
case the chambers judge made a specific finding of fact that the
stigma associated with the complaint contributed greatly to,
among other things, a clinical depression for which the Appellant
required medical care.
[13] However, there is more fundamental reason why section 7
cannot assist the Appellant in this case. The accepted view of
section 7 of the Charter is that it does not extend protection to
interests that are purely economic: see Irwin Toy Ltd. v.
Quebec (Attorney General),[7] per Dickson C.J.C. at 1003. I have no doubt that
the protracted litigation, followed by reassessments which he
considers do not give full effect to his victory in the Supreme
Court, has been a great source of frustration and aggravation to
the Appellant. The interest that he has at stake, however, is
purely monetary, and so not within the purview of section 7. This
ground of appeal also fails.
the substantive issue
[14] I come now to the Appellant's substantive objection
to the reassessments. As I understand the argument, it is that
these reassessments are akin to those cases in which the Minister
has attempted to sustain the assessments by asserting a new basis
for imposing tax, or has issued new assessments under subsection
152(4) of the Act, after the normal reassessment period
has expired. In support of this position counsel relies on The
Queen v. Continental Bank,[8] The Queen v. McLeod,[9] British Columbia Telephone
Co. v. M.N.R.,[10] Waxstein v. M.N.R.,[11] and Reilly Estate v. The
Queen.[12]
[15] The Appellant, relying on the advice of the Privy Council
in M.N.R. v. Wrights' Canadian Ropes Ltd.,[13] also argues that the
effect of the reassessments under appeal, and including therein
tax on the deemed gain on the deemed disposition of the
debentures, is to deprive the Appellant of the fruits of his
victory in the Supreme Court of Canada. This is, I think, another
way of expressing the same objection. The crux of the argument is
that the Appellant claims now to be entitled to have assessments
for the two years in question which permit him the deduction of
the pre-conveyance interest under subsection 20(14) of the
Act, but do not impose tax on the deemed capital gain
which results from that deduction.
[16] For the reasons that follow, I do not agree.
[17] In Continental Bank, counsel for the Minister
attempted in argument before the Supreme Court of Canada to
support the assessments under appeal by a brand new theory which
was inconsistent with the basis on which the assessments had been
made. What was originally assessed as a trading gain on the sale
of a partnership interest, the Minister's counsel sought by
the alternative argument to characterize as a sale of depreciable
assets which would give rise to recapture of capital cost
allowance. This was done after the expiry of the normal
reassessment period, without reissuing the assessment, and in
circumstances where evidence would have certainly have been led
on that issue at trial if the taxpayer had had notice of it. The
principle for which the case stands was expressed by McLachlin J.
at p. 370:
... The Minister should not be allowed to advance a new
basis for a reassessment after the limitation period has
expired.
[18] McLeod and British Columbia Telephone Co.
are simply other examples of the same principle. Waxstein
and Reilly Estate are examples of the well-known statutory
rule that when the Minister reassesses under subsection 152(4) of
the Act after the normal reassessment period has expired,
he assumes the onus of proving that the taxpayer has made a
misrepresentation. This rule has no application here. The
Minister did not reassess of her own volition under
subsection 152(4) of the Act in this case, but under
subsection 164(4.1), at the direction of the Supreme Court, to
implement its judgment. Once the Appellant succeeded on the issue
in dispute, it became the Minister's duty under subsection
164(4.1) of the Act to issue reassessments to give effect
to the Supreme Court's judgment. That is done by making the
assessments that the Minister would have made at the time of the
original reassessments that were appealed from, if he had
interpreted subsection 20(14) of the Act correctly at that
time. The Minister has not now sought either to support the
original reassessments, or to raise a new issue. She has simply
computed the tax payable for the years in question, applying what
the Supreme Court has now determined to be the correct
interpretation of subsection 20(14) of the Act. The
deeming of a disposition, and a gain on that disposition, are the
logical and inevitable consequences of the Appellant being
entitled to the deductions he sought.
[19] That this is so was recognized by counsel for the
Appellant as early as May 1991, in paragraph 3.13 of his
Memorandum of Fact and Law filed in the Federal Court of
Appeal.
3.13 To permit the deduction in question, however, does not
mean that there will be no tax consequence for the Appellant. If
the securities in question are capital property of Mr. Trzop and
the Appellant [sic], any deduction under section 20(14) of the
Income Tax Act would reduce their adjusted cost base of
the property by an equivalent amount under section 53(2)(1).
This could result in a capital gain.
(emphasis added)
It was also acknowledged by the Supreme Court of Canada in its
Reasons for Judgment. For convenience, I repeat paragraph 51,
where Iacobucci J. specifically refers to the prospect that the
result of the Court's judgment may include the emergence of
"... a taxable capital gain pursuant to s.
40(3)".
51. The appellants are entitled to a deduction of interest
accruing prior to the transfer and payable thereafter. The
transaction between the appellants and the board meets the
requirements of s. 20(14). The interest which accrued during the
period that repayment of the debt was suspended did not become
payable until after the transfer. However, the parties agree
thatthis result may have other tax consequences for the
appellants, such as a taxable capital gain pursuant to s.
40(3). In this connection, these and any other possible
consequences can be taken into account by the respondent in
reassessment. (emphasis added)
[20] Counsel for the Appellant, as I understood him, disputes
that this was a matter of agreement before that Court, but it
certainly was the view that he expressed to the Federal Court of
Appeal. In my opinion it was the correct view. I doubt that the
Supreme Court would have included the words that I have
emphasized in its disposition of the appeals simply on the basis
of the agreement referred to, if the judges of that Court had not
been of the opinion that it was a correct statement of the effect
of their judgment.
[21] In Wrights' Ropes, the Minister had assessed
the Appellant for three taxation years to disallow a substantial
part of certain commissions that it had paid, and had claimed to
deduct as expenses, on the basis that they were not reasonable
expenses. The Supreme Court of Canada held that the expenses were
reasonable, allowed the appeals, and referred the assessments
back to the Minister for "further consideration" under
subsection 65(2) of the Income War Tax Act. On further
appeal, the Privy Council affirmed the Appellant's
entitlement to the deductions it had claimed, but held that the
Supreme Court's judgment should not have referred the
assessments back to the Minister to be dealt with under
subsection 65(2), as that would simply permit the Minister to
exercise his discretion as to reasonableness of the expenses once
again, with the prospect that he would again disallow the same or
some other amounts. Instead, the Judicial Committee's opinion
was that the Supreme Court should have referred the assessments
back with directions to the Minister "to adjust the
assessments in accordance with this decision". It is notable
that Lord Greene, in giving the opinion, referred to the inherent
power of the Court to make this direction. Subsection 65(2) of
the Income War Tax Act lacked the particularity of the
present subsection 164(4.1), which requires the Minister to
reassess "in accordance with the decision of the
Court". The disposition of the appeal to the Privy Council
is contained in the last two paragraphs of the opinion:[14]
The formal order of the Supreme Court should, in their
Lordships' opinion, be varied by directing that the
assessments be referred back to the Minister (without any
reference to section 65(2) for an adjustment of the figures
consequential on the allowance of the Respondents' appeal to
the Supreme Court.
For these reasons their Lordships will humbly advise His
Majesty that the appeal should be dismissed but that the order of
the Supreme Court should be modified in the manner above
indicated. The Appellant must pay the costs of this appeal.
(emphasis added)
[22] Lord Greene's words which I have emphasized are
similar to those used by Iacobucci J., and the inherent power to
which he had earlier referred was to direct the manner of the
reassessments, in the same way that subsection 164(4.1) operates
in the present Act. These assessments do not deprive the
Appellant of the fruits of victory; they are simply the
assessments to which the Appellant was entitled when he was first
assessed for the years in question.
[23] Before leaving this issue I should comment on the
documentary evidence. Two large binders containing a total of 38
documents were tendered by counsel for the Appellant at the
beginning of the hearing, and were entered as exhibits by consent
of counsel for the Respondent. Among these were the transcript of
argument at the hearing before the Supreme Court of Canada, and a
letter of opinion obtained by counsel for the Appellant from a
former judge of the Supreme Court of Canada who is now in the
private practice of law. Mr. Mockler invited me to draw
inferences favourable to his client from the questions that were
asked and comments made by the judges of the Supreme Court during
argument. In my view, it would be quite wrong to attribute any
opinion to either the Court itself or to individual judges on any
such basis. The purpose of the questions asked by judges in the
course of argument is not to express their views on the points at
issue, but to test the submissions of counsel. Nothing said by a
judge of any court during the course of argument should be taken
as an expression of that judge's opinion on the matter before
the court. I have disregarded the transcript. I have also ignored
the letter of opinion. However distinguished its author, it is
simply the opinion of a lawyer as to the point of law before me,
and it cannot be elevated beyond that. It is inadmissible.
Appellant's alternative argument
[24] Counsel for the Appellant argued, in the alternative,
that if Mr. Trzop is to be taxed on a gain under section 40 of
the Act arising out of the disposition of the debentures,
then their adjusted cost base (ACB) should be increased by the
value of the two years of unpaid labour that he put into the
company. This argument does not appear in the Appellant's
written brief and it was, I think, something of an afterthought.
The argument has its genesis in this sentence of the Supreme
Court's Reasons:[15]
Moreover the consideration for the transfer at issue in this
appeal included not only the nominal $10, but also the
undertaking to operate company in a good and business-like
manner.
This sentence was in response to an argument of counsel for
the Minister that the transfer of the debentures had taken place
for no substantial consideration. The undertaking to operate the
company in a good and business-like manner was part of the
consideration, but that cannot be equated to an obligation on the
part of the Appellant to work for two years without pay. He did
that of his own volition, and the success of the enterprise was
his reward for doing so. The computation of the ACB of a security
is governed principally by section 53 of the Act, the
operative words of which, so far as this case is concerned, are
"... there shall be added to the cost to the taxpayer
of the property ...". Nothing that follows assists the
Appellant's case, so for this argument to succeed he would
have to bring the value of his labours within "...the
cost to [him] of the property...". As there was no term
in the agreement with the board that required him to work without
pay, he cannot satisfy that requirement.
[25] Although it is not necessary in view of the foregoing, I
should add that I cannot subscribe to the Appellant's
valuation of his labours. In his evidence, he put it somewhere
between $320,000 and $416,000, on the basis of his estimate of
6,400 hours worked during the two-year period at a rate of $50 to
$65 per hour. A more realistic valuation, in my view, would be
the $50,000 per year that the company paid to Mr. Antosko, net of
income tax, which yields a total in the order of $65,000 for the
two years.
[26] The appeals are dismissed, with costs.
Signed at Ottawa, Ontario this 26th day of July, 2000.
"E.A. Bowie"
J.T.C.C.