Peter
A.K.
Giles,
A.S.P.:—The
motion
before
me
on
behalf
of
the
defendant
was
pursuant
to
Rule
419(1)(a)
for
an
order
striking
out
the
statement
of
claim
as
revealing
no
reasonable
cause
of
action.
This
case
arises
from
a
reassessment
of
the
plaintiff's
income
tax
liability
made
in
purported
pursuance
of
a
judgment
of
the
Tax
Court
of
Canada.
The
decision
of
the
Tax
Court
involved
legal
fees
incurred
by
the
taxpayer
and
her
employer
all
of
which
had
been
added
to
the
taxpayer's
income.
The
taxpayer
contested
these
additions.
The
contest
resulted
in
a
judgment
of
the
Tax
Court
which
was
referred
to
in
the
statement
of
claim
and
a
copy
of
that
judgment
together
with
the
reasons
for
the
decision
were
filed
with
the
statement
of
claim.
The
taxpayer
contends
that
the
reasons
indicate
that
none
of
the
legal
fees
should
have
been
included
in
her
income.
The
reassessment
was
carried
out
on
the
basis
that
one
half
of
the
legal
fees
should
be
included
in
the
taxpayer's
income.
The
taxpayer
within
90
days
of
receiving
the
notice
of
reassessment
filed
a
statement
of
claim
in
this
Court
contesting
the
reassessment
on
the
grounds
that
the
Tax
Court
of
Canada
had
indicated
that
none
of
the
legal
fées
should
have
been
added
to
her
income.
The
taxpayer
is
representing
herself.
The
statement
of
claim
was
apparently
confusing
to
counsel
for
the
defendant
who
was
unable
to
determine
whether
the
proceedings
in
this
Court
were
in
the
nature
of
an
appeal
from
the
decision
of
the
Tax
Court
or
in
the
nature
of
an
appeal
of
the
assessment.
The
notice
of
motion
contains
grounds
for
striking
the
statement
of
claim
whatever
the
intent
of
the
taxpayer.
Counsel
for
the
defendant
correctly,
in
my
view,
argued
that
should
the
intent
of
the
proceedings
be
to
appeal
the
judgment
of
the
Tax
Court,
the
statement
of
claim
was
filed
too
late
and
the
only
course
which
was
open
to
the
plaintiff
at
that
time
would
have
been
to
seek
leave
to
appeal.
Counsel
further
argued
that
if
the
intent
of
the
taxpayer
was
to
appeal
the
assessment,
the
proper
procedure
would
have
been
to
file
a
notice
of
objection.
It
is
apparent
from
the
dicta
of
Mahoney,
J.
in
Doyle
v.
The
Queen,
[1980]
C.T.C.
330;
1980
D.T.C.
6260
that
the
plaintiff
could
have
commenced
to
contest
the
reassessment
by
filing
a
notice
of
objection.
However,
subsection
165(7)
of
the
Income
Tax
Act
provides
that
in
certain
circumstances
the
taxpayer
may
without
serving
a
notice
of
objection
appeal
a
reassessment
to
this
Court.
I
conclude
that
the
taxpayer
was
correct
in
filing
a
statement
of
claim
in
this
court
and
did
so
within
the
time
limit
prescribed
by
subsection
172(2)
of
the
Income
Tax
Act.
While
there
is
in
my
view
some
ambiguity
in
the
statement
of
claim
the
taxpayer
made
it
quite
clear
what
she
intended
by
her
claim.
It
is
a
simple
one,
namely
that
the
judgment
of
the
Tax
Court
required
a
reassessment
on
the
basis
that
none
of
the
legal
fees
were
to
be
added
to
her
income.
The
judgment
and
reasons
of
the
Tax
Court
were
referred
to
in
the
statement
of
claim
and
filed
with
it.
At
the
conclusion
of
the
hearing
of
the
motion,
I
reserved
my
decision
to
enable
me
to
study
those
reasons.
In
my
respectful
view,
the
reasons
indicate
unambiguously
that
one
half
of
the
legal
fees
should
be
added
to
the
taxpayer's
income.
I
do
not
consider
it
arguable
that
the
reasons
could
have
any
other
meaning.
The
statement
of
claim
will
therefore
be
struck
out.
Order:
The
statement
of
claim
is
struck
out
as
disclosing
no
reasonable
cause
of
action.
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