Rouleau,
J.:—This
is
an
action
brought
by
way
of
statement
of
claim.
The
plaintiff
is
seeking
to
have
a
business
investment
tax
credit
which
accrued
in
his
1985
taxation
year
applied
to
the
federal
tax
payable
in
his
1982
taxation
year.
The
plaintiff
filed
an
individual
income
tax
return
for
the
year
1985
wherein
he
claimed
a
loss
against
his
business
income
in
the
amount
of
$21,946.72
resulting
in
total
income
of
$33,515.28.
In
addition,
the
plaintiff
claimed
a
business
investment
tax
credit
on
scientific
research
attributable
to
current
expenditures
in
the
amount
of
$4,389.34
which
was
applied
to
reduce
his
federal
tax
payable
in
1985
to
zero
and
left
him
with
a
credit
of
approximately
$1,000
available
for
carry-back
to
any
of
the
three
immediately
preceding
taxation
years.
The
plaintiff
completed
an
Investment
Tax
Credit
Carry-Back
Request
form
which
he
submitted
with
his
1985
income
tax
return
and
wherein
he
requested
that
the
unused
portion
of
the
investment
tax
credit
be
carried
back
and
applied
against
the
federal
tax
payable
in
his
1982
taxation
year.
On
April
23,
1986
Revenue
Canada
issued
a
notice
of
assessment
to
the
plaintiff.
The
plaintiff
was
advised,
inter
alia,
that
his
claim
for
an
investment
tax
credit
had
been
adjusted
to
$3,385.29.
The
notice
went
on
to
state
(page
2
of
Exhibit
2):
We
hereby
acknowledge
your
request
to
apply
an
investment
tax
credit
to
your
prior
year
return.
Once
the
review
of
this
return
has
been
completed,
you
will
be
notified
further.
After
any
required
amounts
of
investment
tax
credit
were
used
in
the
calculation
of
your
tax
payable,
you
have
a
balance
of
$1,003.91
available
to
be
applied
to
other
years.
As
far
as
I
can
determine
from
the
material
filed
and
the
evidence
submitted
during
the
hearing
before
me,
this
is
where
the
matter
now
stands.
No
action
appears
to
have
been
taken
by
Revenue
Canada
to
apply
the
tax
credit
of
$1,003.91
to
federal
tax
payable
by
the
plaintiff
in
his
1982
taxation
year.
The
defendant's
reason
for
failure
to
act
in
accordance
with
the
plaintiff's
request
for
a
carry-back
of
his
tax
credit
is
that
the
plaintiff's
1982
income
tax
return
is
presently
under
appeal,
although
for
reasons
entirely
unrelated
to
this
matter.
The
defendant
further
argues
in
its
statement
of
defence
that
the
plaintiff
has
not
objected
to
Revenue
Canada’s
assessment
of
his
1985
income
tax
return
as
provided
for
in
subsection
165(1)
of
the
Income
Tax
Act
and
therefore
any
appeal
filed
pursuant
to
section
169
and
subsection
172(2)
of
the
Act
is
invalid.
The
defendant
maintains
that
the
appeal
contained
within
the
plaintiff’s
statement
of
claim
has
not
been
properly
instituted
and
accordingly
this
Court
lacks
the
jurisdiction
to
deal
with
the
appeal.
Although
I
do
not
wish
to
be
seen
as
making
any
decisions
as
to
the
merits
of
the
plaintiffs
case
nor
the
facts
which
are
presently
before
me,
I
do
feel
the
following
comments
to
be
appropriate
in
the
circumstances.
To
begin
with,
there
does
not
appear
to
be
any
dispute
between
the
parties
that
the
plaintiff
is
entitled
to
a
tax
credit
and
that
he
wishes
to
have
this
tax
credit
applied
to
his
1982
taxation
year.
The
defendant
has
recognized
and
ackowledged
this
as
evidenced
by
the
notice
of
assessment
which
it
issued
to
the
plaintiff
on
April
23,
1986
(Exhibit
2).
However,
it
is
equally
clear
that
the
defendant
has
either
refused
or
failed
to
take
any
action
in
this
regard
for
the
purported
reason
that
the
plaintiff's
1982
income
tax
return
is
currently
under
appeal.
Frankly,
I
am
at
a
complete
loss
to
see
what
relevance
that
argument
holds
in
relation
to
the
facts
of
this
particular
case.
The
current
appeal
relating
to
the
plaintiff's
1982
income
tax
return
does
not,
in
my
opinion,
constitute
a
valid
reason
for
the
defendant
to
refuse
to
apply
the
$1,003.91
investment
tax
credit
in
question
to
the
plaintiff's
1982
taxation
year.
Having
said
that
however,
I
am
also
bound
to
conclude
that
the
plaintiff
has
incorrectly
commenced
his
action.
Before
the
claimant
may
come
to
this
court
seeking
relief
against
a
decision
of
the
Minister,
there
must
in
fact
be
evidence
that
a
decision
has
been
made.
Since
there
has
been
no
decision
by
the
defendant
in
this
case,
it
appears
to
me
that
what
the
plaintiff
should
be
seeking
is
an
order
in
the
nature
of
mandamus
compelling
the
defendant
to
perform
the
statutory
duty
imposed
upon
it
by
the
Income
Tax
Act;
that
is
an
order
requiring
the
Minister
to
apply
the
tax
credit
to
the
plaintiff's
1982
taxation
year.
That
is
the
relief
which
the
plaintiff
is
seeking
in
his
statement
of
claim
and
that
type
of
relief
is
appropriately
sought
by
way
of
an
application
pursuant
to
section
18
of
the
Federal
Court
Act.
Accordingly,
I
find
the
plaintiff's
action
to
be
premature
and
it
is
dismissed
for
the
reasons
set
out
above.
Action
dismissed.
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