Noël,
ACJ:—The
Attorney
General
of
Canada
moves
for
an
order
dismissing
the
appeal
herein
on
the
ground
that
no
relief
can
be
sought
or
obtained
from
Her
Majesty
the
Queen
in
respect
of
the
exercise
by
the
Minister
of
National
Revenue
of
the
administrative
duty
conferred
on
him
as
a
persona
designate
under
the
provisions
of
the
Income
Tax
Act
to
assess
the
tax
payable
by
the
plaintiff.
The
Attorney
General
submits
that
the
Minister
of
National
Revenue
is
the
proper
person
to
be
made
a
party
in
proceedings
where
the
relief
sought
is
a
review,
by
way
of
a
trial
of
the
assessment
of
tax,
interest
and
penalties,
if
any,
under
the
provisions
of
the
Income
Tax
Act,
RSC
1952,
chapter
148,
or
from
decisions
rendered
by
the
Tax
Review
Board
which
have
reviewed,
by
way
of
a
trial,
the
assessment
made
by
the
Minister.
Since
the
amendment
to
the
Income
Tax
Act,
RSC
1952,
chapter
148
by
chapter
63,
SC
1970-71-72,
subsection
175(1)
of
the
Income
Tax
Act
provides
as
follows:
175.
(1)
An
appeal
to
the
Federal
Court
under
this
Act,
other
than
an
appeal
to
which
section
180
applies,
shall
be
instituted,
(a)
in
the
case
of
an
appeal
by
a
taxpayer
(i)
in
the
manner
set
forth
in
section
48
of
the
Federal
Court
Act,
or
(ii)
by
the
filing
by
the
Minister
in
the
Registry
of
the
Federal
Court
of
a
copy
of
a
notice
of
objection
pursuant
to
paragraph
165(3)(b);
and
(b)
in
the
case
of
an
appeal
by
the
Minister,
in
the
manner
provided
by
the
Federal
Court
Rules
for
the
commencement
of
an
action.
Section
48
of
the
Federal
Court
Act,
SC
1970-71-72,
chapter
1,
a
section
applicable
to
appeals
instituted
by
taxpayers,
provides
that
the
proceedings
are
to
be
instituted
by
filing
in
the
Registry
of
the
Court
a
document
in
the
form
set
forth
in
Schedule
“A”
to
the
Act.
This
schedule
contains
a
skeleton
statement
of
claim
wherein
the
defendant
is
shown
as
Her
Majesty
the
Queen
and
counsel
for
the
Attorney
General
says
that
Rule
400
and
not
Rule
600
of
the
Rules
of
this
Court
is
the
rule
which
applies
to
appeals
instituted
by
the
Minister
of
National
Revenue.
The
Attorney
General
submits
that
the
proper
party
to
the
proceedings
in
respect
of
appeals
from
assessments
must
be
the
Minister
of
National
Revenue.
The
appeal
provided
for
under
the
Income
Tax
Act
is,
he
says,
an
appeal
from
the
exercise
by
the
Minister
of
a
statutory
duty
conferred
on
him
under
section
152
of
the
Income
Tax
Act,
as
amended
by
chapter
63,
SC
1970-71-72,
which
provides
that
the
Minister
of
National
Revenue
is
required
to
examine
returns
of
income
filed
under
the
Act,
and
assess
tax,
interest
and
penalties,
if
any.
The
appeal
is,
he
adds,
from
the
exercise
by
the
Minister
of
the
statutory
duty
which
duty
the
Minister
exercises,
performs,
not
as
an
agent
or
servant
of
Her
Majesty,
but
rather
by
virtue
of
the
powers
given
to
him
by
the
statute.
In
order
that
justice
may
not
only
be
done,
but
seem
to
be
done,
it
is
essential,
he
says,
that
the
person
who
exercised
the
statutory
duty,
which
is
being
reviewed
on
the
trial
should
in
fact
be
before
the
Court.
The
provisions
of
the
Income
Tax
Act,
according
to
the
Attorney
General,
draw
a
distinction
between
the
duty
to
assess,
which
is
imposed
upon
the
Minister
of
National
Revenue,
and
the
taxes
payable
which
by
section
222
of
the
Act,
are
payable
to
Her
Majesty
the
Queen
with
the
consequence
that
Her
Majesty
is
not
an
interested
party
when
the
Court
is
exercising
its
jurisdiction
to
review
by
way
of
a
trial
assessments
made
by
the
Minister.
The
Attorney
General
also
submits
that
Parliament,
in
providing
by
subsection
(3)
of
section
175
of
the
Act,
that
an
appeal
under
the
Act
was
to
be
treated
as
an
ordinary
action
to
which
the
Rules
of
the
Court
would
apply,
clearly
had
in
mind,
he
says,
the
provisions
of
Rule
800(a)
of
the
Rules
of
this
Court
which
provides:
800.
(1)
Subject
to
the
provisions
of
the
statutes
specially
made
in
relation
to
an
income
tax
or
estate
tax
appeal,
and
regulations
made
pursuant
thereto,
the
provisions
of
these
Rules,
with
necessary
modifications
and
in
so
far
as
they
are
reasonably
appropriate,
are
applicable
to
any
such
appeal
to
the
Trial
Division
as
if
(a)
the
appeal
were
an
action
and
the
taxpayer
and
the
Minister
of
National
Revenue
were
the
parties
thereto,
The
defendant
also
says
that
the
clear-cut
intention
of
Parliament,
as
evidenced
by
paragraph
(b)
of
subsection
(1)
of
section
175
and
subsection
(1)
of
section
172
of
the
Act
is
that
in
those
cases
where
the
Minister
is
dissatisfied
with
a
decision
of
the
Board,
he
is
entitled
to
appeal
that
decision.
There
is,
according
to
the
defendant,
nothing
in
the
statutory
scheme
of
the
Income
Tax
Act
from
which
it
can
be
inferred
that,
in
those
cases
where
the
appeal
is
by
the
taxpayer,
the
defendant
must,
should,
could
or
ought
to
be
Her
Majesty
the
Queen.
The
Attorney
General
says
that
paragraph
(b)
of
subsection
(1)
of
section
175
of
the
Act
contemplates
and
provides
for
an
appeal
by
the
Minister
in
certain
specified
circumstances
with
the
consequence
that
(1)
the
appeal
by
the
Minister
is
to
be
brought
in
his
name
and
not
in
the
name
of
the
Attorney
General
of
Canada;
(2)
the
provisions
of
Rule
600
of
the
Rules
of
this
Court
are
inapplicable;
(3)
Form
31
of
the
Rules
is
inapplicable,
and
(4)
Rule
400
and
Form
11
are
applicable
in
those
cases
where
an
appeal
is
instituted
by
the
Minister.
The
Attorney
General
also
submits
that
unless
the
Minister
of
National
Revenue
is
in
fact
made
a
party
to
the
proceedings,
the
Court
would
be
powerless
to
exercise
the
jurisdiction
conferred
on
it
by
sections
177,
246(5)(c)
and
247(3)
of
the
Income
Tax
Act,
as
amended
by
chapter
63,
SC
1970-71-72
to
refer
an
assessment
back
to
the
Minister
for
reconsideration
and
assessment.
He
also
submits
that
in
those
cases
where
Her
Majesty
is
the
unsuccessful
party
in
the
litigation,
the
Court
would
not
have
any
jurisdiction
under
section
178
of
the
Act
to
order
Her
Majesty
to
pay
the
costs
or
repay
the
tax
since
the
Court’s
jurisdiction
is
limited
to
making
orders
against
the
Minister
and
if
he
was
not
a
party
to
the
proceedings,
such
an
order
could
not,
he
says,
be
made
against
him.
I
should
first
deal
with
the
submission
that
the
Minister
of
National
Revenue
is
acting
as
a
persona
designate
when
assessing
the
tax
payable
by
the
plaintiff
or
when
acting
under
the
provisions
of
the
Income
Tax
Act.
A
reference
to
chapter
N-15,
RSC
1970,
the
Department
of
National
Revenue
Act,
section
4,
and
the
schedule,
indicates
clearly,
in
my
view,
that
when
the
Minister
of
National
Revenue
exercises
the
duties
described
in
the
Income
Tax
Act
he
is
merely
exercising
the
functions
that
he
must
exercise
under
the
statute
as
every
other
Minister
of
Her
Majesty
and
it
follows
that
he
cannot,
therefore,
be
acting
as
a
persona
designate
in
so
doing.
Subsections
4(1)
and
(2)
of
the
above
statute
indeed
read
as
follows:
4.
(1)
The
duties,
powers
and
functions
of
the
Minister
extend
and
apply
to
the
subjects
and
services
enumerated
in
the
schedule,
over
which
the
Minister
has
the
control,
regulation,
management
and
supervision,
subject
always
to
the
provisions
of
the
Acts
relating
to
the
said
subjects
and
matters
connected
therewith.
(2)
The
Governor
in
Council
may
at
any
time
assign
any
of
the
duties
and
powers
hereby
vested
in
the
Minister
to
the
head
of
any
other
department,
and
from
the
time
appointed
for
that
purpose
by
order
in
council
such
duties
and
powers
shall
be
vested
in
the
head
of
such
other
department.
The
schedule
at
the
bottom
of
page
2
of
chapter
N-15
describes
the
subjects
and
services
to
which
such
duties,
powers
and
functions
refer
and
comprises
inter
alia
4.
Internal
taxes,
unless
otherwise
provided,
including
income
taxes.
Section
48
of
the
Federal
Court
Act,
with
subsection
175(1)
of
the
Income
Tax
Act,
RSC
1952,
chapter
148
as
amended
by
chapter
63
of
SC
1970-71-72,
refers
to
the
manner
in
which
a
taxpayer
must
appeal
from
an
assessment
by
the
Minister
or
from
a
decision
of
the
Tax
Review
Board
and
section
48
refers
in
turn
to
Schedule
A
which
is
described
as
a
statement
of
claim
or
declaration,
where
the
parties
are
described
as
plaintiff
and
defendant
and
where
Her
Majesty
the
Queen
is
shown
as
the
defendant.
Section
48,
as
I
had
occasion
to
say
in
the
matter
of
the
appeal
in
Mastino
Developments
Limited
v
Her
Majesty
the
Queen
and
others,
[1972]
CTC
249;
72
DTC
6211,
is
clearly
“an
indication
of
a
trend
in
Canada
towards
eliminating
nominated
parties
and
towards
leaving
Her
Majesty
as
the
party
where
She
is
the
person
whole
legal
rights
or
obligations
are
involved.
This
is
preferable
as
a
person
litigating
against
the
Crown
does
not
have
to
decide
which
department
or
departments
is
or
are
responsible
for
the
situation
of
which
he
complains”.
The
Department
of
National
Revenue
is
created
by
statute
and
placed
under
the
management
and
control
of
a
particular
minister
and,
as
already
mentioned
above,
he,
as
such,
exercises
the
duties,
powers
and
functions
set
out
in
the
statute
in
the
same
manner
as
the
other
ministers
of
the
various
government
departments
fulfil
their
duties
under
the
statute
which
constitutes
their
respective
departments.
I
should
reiterate
here
what
was
stated
in
the
Mastino
Development
appeal
(supra),
at
page
252[6213]
of
the
reasons
for
judgment,
as
it
does
explain
the
manner
in
which
the
exercise
of
duties,
functions
and
powers
of
the
Minister
of
National
Revenue
fit
in
to
the
overall
scheme
of
government
administration:
Each
of
the
Government
departments
is
constituted
by
statute
and
placed
under
the
management
and
control
of
their
particular
Ministers
(cf
Public
Works
Act,
RSC
1970,
c
38).
The
Department
of
Justice
Act
(RSC
1970,
c
J-2)
is
subject
to
the
management
and
direction
of
the
Minister
of
Justice
who
is
ex
Officio
Attorney
General
of
Canada
and
as
Attorney
General
of
Canada,
has
the
regulation
and
conduct
“of
all
litigation
for
or
against
the
Crown
or
any
public
department”
(par
5(d)).
The
Deputy
Attorney
General
has,
by
virtue
of
the
Interpretation
Act,
the
powers
of
the
Attorney
General.
The
Minister
of
National
Revenue
has
a
special
statutory
function
to
do
certain
things
which
have
legal
effects
under
the
Income
Tax
Act.
He
has,
indeed,
the
duty
and
authority
to
“assess”
the
tax
payable
for
each
taxation
year
of
each
taxpayer
(section
152)
and,
when
he
has
done
so
his
assessment
is
deemed
to
be
“valid
and
binding”
subject
to
being
varied
or
vacated
on
an
objection
or
appeal
and
subject
to
a
reassessment.
May
I
inject
here
that
the
matter
of
the
style
of
an
appeal
is
not
too
important
if
we
consider
that
under
the
Income
War
Tax
Act,
where
the
Minister
of
Revenue
performed
the
same
functions,
duties
or
powers
as
under
the
Income
Tax
Act,
a
notice
of
appeal
was
a
very
simplified
document
as
it
had
no
style
and
no
title.
Subsection
58(3)
of
the
Income
War
Tax
Act,
which
deals
with
the
form
of
a
notice
of
appeal,
says
that
“such
notice
shall,
as
closely
as
may
be,
follow
the
form
contained
in
the
second
schedule
of
this
Act
and
shall
set
out
clearly
the
reasons
for
appeal
and
all
facts
relative
thereto”.
The
second
schedule
referred
to
above
merely
provides
for
the
setting
down
of
the
name
of
the
taxpayer
and
the
Minister
is
not
even
mentioned
nor
is
his
name
mentioned
when
referring
to
the
assessment
appealed
from.
There
is
no
question
that
generally
speaking,
when
there
is
an
“appeal”
of
a
judicial
character,
the
tribunal
or
authority
appealed
from
is
not
a
party
except
where
it
has
an
administrative
role
in
connection
with
the
matter
in
addition
to
its
statutory
power
to
make
decisions.
Courts
are
not
ordinarily
parties
to
appeals
against
their
decisions.
Nevertheless,
the
Court
of
Appeal
may
return
matters
to
them
in
appropriate
cases
for
rehearing,
etc.
It
appears
to
me
that
the
Minister,
when
assessing
or
performing
his
functions
is
acting
as
a
decision-rendering
authority
(somewhat
like
a
court)
although
he
is
still
merely
performing
the
functions
given
him
by
the
statute
and,
as
such
an
authority,
should
not
be
party
to
an
appeal
from
his
decision.
When
a
minister
of
any
other
department
decides
to
institute
legal
proceedings,
he
instructs
the
Department
of
Justice
and
the
proceedings
are
instituted
in
the
name
of
Her
Majesty
or
such
substitute
name
as
may
be
required
by
statute.
Here
the
statute
says
that
an
appeal
to
this
Court
(subsection
175(1)
of
the
Income
Tax
Act)
shall
be
instituted
in
the
case
of
an
appeal
by
a
taxpayer
in
the
manner
set
forth
in
section
48
of
the
Federal
Court
Act
and
this,
as
we
have
seen,
means
that
the
appeal
shall
be
launched
against
Her
Majesty
the
Queen.
It
is,
as
I
pointed
out
in
the
Mastino
appeal,
at
page
253
[6214]
of
the
reasons
for
judgment:
.
.
.
common
form
for
statutes
to
impose
obligations
and
confer
rights
on
Her
Majesty
by
requiring
the
Minister
who
is
in
charge
of
the
particular
part
of
Her
Majesty’s
affairs
to
make
a
payment
or
do
something.
Obviously,
such
a
statute
does
not
impose
an
obligation
or
confer
a
right
on
the
person
who
happens
to
be
a
minister
in
his
private
capacity.
All
such
statutes
are
merely
using
a
device
to
impose
duties
or
confer
rights
on
Her
Majesty
in
what
is
regarded
as
a
more
dignified
way.
The
obligation
to
pay
is
an
obligation
on
the
Minister,
whoever
he
may
be,
in
the
course
of
performing
his
duties
as
an
officer
of
the
Crown
to
make
a
payment
out
of
Her
Majesty’s
monies.
Finally,
the
provisions
authorizing
the
Court
to
dispose
of
an
appeal
by
referring
the
assessment
back
to
the
Minister
for
reassessment,
appear
to
be
quite
consistent
with
Her
Majesty
being
the
party
who
opposes
the
appeal.
There
is,
indeed,
no
need
for
the
person
who
exercises
a
power
under
a
statute
to
be
a
party
to
a
proceeding
attacking
his
decision.
He
is
in
the
position
of
a
tribunal
or
an
authority
whose
decision
is
under
appeal.
The
person
interested
in
maintaining
his
decision
in
this
case
is
Her
Majesty
and
as
long
as
She
or
somebody
acting
for
Her
is
a
party
to
protect
Her
interests,
that
is
all
that
should
be
required.
I
am
therefore
of
the
view
that
litigants
must
comply
with
the
directions
set
down
in
section
48
of
the
Federal
Court
Act
and
its
Schedule
A,
that
the
form
so
indicated
shall
be
used,
that
the
documents
shall
be
called
statement
of
claim
or
declaration,
that
the
parties
shall
be
described
as
plaintiffs
and
defendants
and
that
the
party
should
be
Her
Majesty
Herself
as
She
is
mentioned
in
Schedule
A.
This
is
a
literal
compliance
with
the
Act
and
it
appears
to
me
that,
as
the
powers
given
the
Minister
under
the
statute
are
not
conferred
on
him
in
his
private
capacity
or
even
as
a
persona
designate
but
merely
as
an
officer
of
the
Crown
acting
on
behalf
of
Her
Majesty,
the
reference
to
the
Minister
in
sections
175
et
seq
of
the
Income
Tax
Act
should
not
be
an
obstacle
to
proceeding
in
the
above
manner,
and
if
this
is
done,
the
Court
will
still
have
the
power
to
refer
an
assessment
back
for
reconsideration
and
assessment
or
to
order
the
payment
of
costs
or
the
repayment
of
the
tax.
The
Attorney
General’s
motion
is
dismissed
with
costs
to
the
plaintiff
in
any
event
of
the
cause.
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