The
Chief
Justice
(concurred
in
by
Sheppard,
DJ,
judgment
delivered
from
the
Bench):—This
is
an
appeal
from
a
decision
of
the
Trial
Division
dated
June
13,
1972
dismissing
an
application
for
an
order
dismissing
this
appeal,
which
was
brought
by
way
of
a
statement
of
claim
or
a
declaration
under
section
48
of
the
Federal
Court
Act
on
the
ground
“that
no
relief
can
be
sought
or
obtained
from
Her
Majesty
.
.
.
in
respect
of
the
exrcise
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”.
I
am
of
opinion
that
this
appeal
should
be
dismissed
with
costs
for
the
reasons
given
by
the
Associate
Chief
Justice
in
dismissing
the
motion.
However,
out
of
deference
to
the
argument
of
counsel,
I
shall
endeavour
to
summarize
briefly
the
reasons
as
I
see
them
why
the
appeal
must
fail.
The
Income
Tax
Act
imposes
taxes
payable
to
Her
Majesty.
(See
section
118
of
the
“former
Act”
and
section
222
of
the
“amended
Act”.*)
The
Minister
of
National
Revenue,
who
is
head
of
a
government
department
(see
the
Department
of
National
Revenue
Act,
RSC
1970,
c
N-15),
is
charged
with
the
administration
and
enforcement
of
the
Income
Tax
Act.
(See
section
220
of
the
amended
Act.)
He
has
no
rights
or
obligations
personally
in
respect
of
the
taxes
imposed.
What
he
does,
through
his
department,
is
carry
on,
on
behalf
of
Her
Majesty,
all
the
operations
that
are
required
to
collect
the
amounts
payable
under
the
Act
and
to
repay,
on
behalf
of
Her
Majesty
out
of
Her
Majesty’s
funds,
any
amounts
that
have
to
be
repaid
under
the
Act.
One
of
the
things
that
must
be
done
by
any
Minister
who
has
to
collect
amounts
payable
to
the
Crown
is
to
make
a
determination,
as
best
he
can,
of
the
amounts
that
are
payable,
so
that
he
can
claim
them.
The
device
adopted
in
the
Income
Tax
Act
to
get
a
final
determination
of
such
amounts
is
to
make
the
Minister’s
determination,
or
assessment,
of
any
such
amount
final,
subject
to
appeal
to
the
Courts.
In
my
view,
however,
such
a
determination
or
assessment
is
nevertheless
merely
a
part
of
the
Minister’s
administration
of
the
Act.
It
is
done
in
the
carrying
out
of
his
duties
as
a
Minister
of
the
Crown
charged
with
the
collection
of
the
revenues.
On
an
appeal
to
the
Courts
from
such
an
assessment,
the
issue
is
an
issue
as
to
the
amount
of
tax
payable
to
Her
Majesty
and
is,
therefore,
an
issue
between
the
taxpayer
and
Her
Majesty.
When,
heretofore,
such
an
appeal
has
been
carried
on
by
way
of
a
proceeding
set
up
as
a
proceeding
between
the
taxpayer
and
the
Minister,
the
Minister
has
been
a
nominated
party
carrying
on
litigation
on
behalf
of
Her
Majesty
just
as
the
Attorney
General
is
conducting
litigation
on
behalf
of
Her
Majesty
when
he
brings
an
action,
as
Attorney
General,
in
one
of
the
other
courts
of
the
land
for
a
debt
owing
to
Her
Majesty.
Until
recently,
it
has
been
the
custom
to
carry
on
litigation
concerning
rights
or
obligations
of
the
Crown
by
way
of
special
proceedings,
e.g.
petitions
of
right
and
informations.
The
current
tendency
is
however
to
eliminate
such
special
proceedings,
with
a
view
to
obtaining
a
uniform
proceeding
for
all
law
suits
whether
the
Crown
is
a
party
or
not.
So,
section
48
of
the
Federal
Court
Act
provides
for
actions
against
the
Crown
being
launched
by
a
statement
of
claim
or
declaration
as
are
actions
in
this
Court
between
subject
and
subject
and
Rule
600
of
the
Rules
of
this
Court
provides
for
actions
by
the
Crown
being
launched
in
the
same
way.
Section
175
of
the
amended
Income
Tax
Act
is
another
step
in
the
same
direction.
In
my
view,
section
175
of
the
amended
Income
Tax
Act
is
clear
and
unambiguous.
It
provides
for
appeals
being
instituted
“in
the
manner
set
forth
in
section
48
of
the
Federal
Court
Act”,
which
provision
authorizes
the
institution
of
a
proceeding
against
the
Crown
by
a
document
in
the
form
set
out
in
Schedule
A
of
that
Act,
and
that
Schedule
provides
for
a
statement
of
claim
or
declaration
entitled
between
the
person
launching
the
proceeding,
called
“Plaintiff”,
and
“Her
Majesty
the
Queen”,
called
“Defendant”.
I
have
difficulty
in
understanding
how
it
could
be
thought
that
section
175
of
the
amended
Income
Tax
Act
could
mean
anything
except
that
an
appeal
may
be
brought
by
a
statement
of
claim
or
declaration
in
which
the
taxpayer
is
called
“Plaintiff”
and
the
other
party
is
“Her
Majesty
the
Queen”
and
is
called
“Defendant”.
With
regard
to
the
argument
that
an
assessment
cannot
be
referred
back
to
the
Minister
if
he
is
not
named
as
a
party,
I
find
it
difficult
to
understand
the
force
of
the
logic
involved.
A
Court
of
Appeal,
if
so
authorized,
refers
an
ordinary
matter
back
to
a
trial
court
although
that
court
is
not
named
as
a
party
to
the
appeal.
So,
also,
I
find
no
difficulty
in
applying
a
provision
that
authorizes
the
referring
back
of
an
assessment
to
the
Minister
for
reassessment
although
he
is
not
named
as
a
party
to
the
proceeding.
The
same
answer
may
be
made
to
any
difficulty
that
may
be
raised
concerning
any
other
order
that
may
be
made
in
disposing
of
an
income
tax
appeal.
What
the
Minister
does
under
the
Act,
he
does
on
behalf
of
Her
Majesty
and,
if
the
Court
has
authority
to
give
a
direction
that
involves
him
exercising
his
functions
under
the
Act,
as,
for
example,
an
order
that
he
make
a
refund,
all
that
is
necessary
is
that
Her
Majesty,
whose
rights
and
moneys
are
those
involved,
be
a
party.
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