Tremblay-Lamer J.:-This is a motion to certify a class for a class action suit. The action itself is based on the ruling of the Federal Court of Appeal in Thibaudeau v. Canada. [1994] 2 C.T.C. 4, 94 D.T.C. 6230 (since reversed by the Supreme Court: [1995] 1 C.T.C. 382, 95 D.T.C. 5273). In that decision, the Court of Appeal found that a provision of the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1 (the "Act”) taxing income, payed to separated or divorced custodial parents or spouses as maintenance or other allowance, was unconstitutional. This action was commenced to recover taxes payed based on that maligned provision. This motion was made to define a class of people who could use the class action rules of the Federal Court to pursue their claim against the Crown.
On May 25, 1995 the Supreme Court of Canada allowed an appeal from the decision of the Federal Court of Appeal in Thibaudeau. supra. In my view, that judgement effectively ends the litigation between the parties. I will not certify a class because the action has lost its foundation. Moreover, the alleged class no longer has the commonalities alleged because of the decision of the Supreme Court.
The motion is dismissed.
Motion dismissed.
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