NOEL,
J.:—This
is
an
application
made
by
the
appellant
to
amend
his
Notice
of
Appeal
by
deleting
paragraph
9
of
Part
A
and
paragraph
6
of
Part
B
of
the
said
Notice
and
substituting
a
new
paragraph
9
and
6
as
follows:
“The
loss
of
this
area
necessitated
complete
redesign
of
the
subdivision
and
after
review
by
the
Crown
and
Bel-Air
Builders
Company,
this
proved
to
be
impossible.
Consequently
negotiations
were
entered
into
between
Bel-Air
Builders
Company
and
the
Crown
in
1954
and
in
the
early
part
of
1955
which
resulted
in
the
Crown
agreeing
to
pay
seven
hundred
and
twenty-five
thousand
dollars
($725,000)
for
the
purchase
of
the
lands
owned
by
Bel-Air
Builders
Company.
The
Purchase
Agreement
was
made
in
March
of
1955
and
the
formal
document
giving
effect
thereto
which
was
prepared
by
the
Crown
was
signed
by
the
parties
at
a
subsequent
date.
This
purchase
by
the
Crown
effectively
terminated
the
business
of
Bel-Air
Builders
Company.
That
in
the
alternative
if
the
said
gain
is
found
to
have
arisen
from
the
sale
of
inventory
in
the
form
of
land
belonging
to
Bel-Air
Builders
Company,
then
no
part
of
such
gain
could
have
constituted
taxable
income
in
the
hands
of
the
Appellant,
because
it
resulted
from
a
slump
transaction.
’
’
and
by
adding
a
new
paragraph
7
to
Part
B
of
the
said
Notice
of
Appeal
which
reads
as
follows:
“That
the
sale
of
the
residue
of
the
land
belonging
to
Bel-Air
Builders
Company
to
the
Crown
took
place
before
Section
85E
of
the
Income
Tax
Act
came
into
effect.’’
In
support
of
this
application
an
affidavit
was
filed
by
James
Andrews
Grant,
a
member
of
the
firm
of
Stikeman
&
Elliott,
counsel
for
the
appellant,
stating
in
substance
that
subsequent
to
the
service
and
filing
of
the
Notice
of
Appeal
and
the
reply,
correspondence
bearing
upon
the
matters
in
issue
came
to
the
knowledge
of
counsel
for
the
appellant
and
that
the
amendments
here
sought
are
for
the
purpose
of
raising
an
alternative
argument
in
support
of
the
appellant’s
position
herein
and
are
based
upon
the
above
documents.
These
amendments,
if
permitted,
will
allegedly
allow
the
appellant
to
introduce
proof
in
the
form
of
the
recently
discovered
correspondence
establishing
that
the
transaction
giving
rise
to
the
profits
upon
which
the
tax
in
dispute
has
been
assessed
is
a
“slump
transaction’?
i.e.
one
where
all
the
assets
of
the
appellant’s
distinct
business
were
sold
‘and
that
all
the
proceeds
of
such
sale
were
capital
in
his
hands,
which
transaction
did
not
take
place
in
July
of
1955
as
formerly
alleged
in
paragraph
9
of
the
Notice
of
Appeal,
but
took
place
prior
to
April
5,
1955,
date
upon
which
Section
85E
of
the
Income
Tax
Act
was
made
applicable
in
respect
of
sales
made
after
April
5,
1955,
and
from
which
date
slump
sales
were
no
longer
exempt
from
taxation.
The
appellant
for
these
amendments
relies
on
Rules
115
and
119
of
the
General
Rules
and
Orders
of
the
Exchequer
Court
of
Canada
which
read
as
follows
:
“The
Court
or
a
Judge
may
at
any
state
of
the
proceedings
allow
either
party
to
amend
his
pleadings,
and
all
such
amendments
shall
be
made
as
may
be
necessary
for
the
purpose
of
determining
the
real
question
or
questions
in
controversy
between
the
parties.
In
addition
to
the
foregoing
powers
of
amendment,
at
any
time
during
the
progress
of
any
action,
suit
or
other
proceeding,
the
Court
or
a
Judge
may,
upon
the
application
of
any
of
the
parties,
and
whether
the
necessity
of
the
required
amendment
shall
or
shall
not
be
occasioned
by
the
error,
act,
default,
or
neglect
of
the
party
applying
to
amend,
or
without
any
such
application,
make
all
such
amendments
as
may
be
deemed
necessary.”
The
appellant
urges
that
although
the
beginning
of
Rule
115
appears
to
be
permissive,
the
latter
part
seems
to
be
mandatory,
as
it
would
appear
that
any
amendment‘
‘
necessary
for
the
purpose
of
determining
the
real
question
or
questions
in
controversy
between
the
parties’’,
should
be
allowed.
Counsel
for
the
respondent
on
the
other
hand
objects
to
the
present
application
for
several
reasons.
Firstly
on
the
basis
that
if
the
amendments
sought
for
are
permitted,
it
may
be
open
to
the
appellant
to
argue
that
the
Minister
has
assessed
the
profits
arising
from
this
transaction
in
the
wrong
year
and
that
the
assessment
there
should
be
for
the
year
1955
and
not
for
the
taxation
year
1956;
consequently,
it
would
be
statute-barred
by
the
four
year
limitation
provisions
of
Section
46
of
the
Income
Tax
Act
from
‘assessing
the
profit
in
the
earlier
year,
the
original
assessment
of
the
appellant’s
income
for
1955
having
been
mailed
on
May
9,
1958.
He
further
urges
that
we
are
not
only
concerned
with
an
amendment
but
also
with
the
withdrawal
of
an
admission
which
was
contained
in
paragraph
9
of
Part
A
of
the
Notice
of
Appeal
consisting
in
the
statement
that
negotiations
between
Bel-Air
Builders
and
the
Crown
were
entered
into
July
8,
1955,
which
date
the
appellant
would
like
to
replace
by
1954
and
the
early
part
of
1955
as
contained
in
the
new
proposed
paragraph
9
of
Part
A.
According
to
the
respondent,
the
withdrawal
of
such
an
admission
of
fact
cannot
now
be
done
on
the
basis
that
before
an
admission
of
fact
in
a
pleading
can
be
withdrawn,
the
party
seeking
to
withdraw
it
must
satisfy
the
Court
that
the
admission
was
inadvertently
made
and
was
not
correct.
He
referred
to
the
case
of
Chechik
v.
Bronfman,
18
Sask.
L.R.
512
where,
at
p.
517,
Martin,
J.A.
stated:
“That
the
appellant
here
had
not
satisfied
the
onus
which
is
upon
him
of
showing
that
the
admission
in
the
Notice
of
Appeal
was
inadvertently
made
and
was
not
correct.
That
the
affidavit
supporting
the
application
is
not
sufficient
evidence
to
establish
that
the
original
admission
was
not
correct.’’
Before
dealing
with
the
two
main
grounds
raised
by
the
respondent
herein,
I
would
like
to
say
that
under
Rule
2
of
the
Exchequer
Court
Rules,
reference
must
be
made
to
the
practice
and
procedure
in
force
in
similar
suits,
actions
and
matters
in
Her
Majesty’s
Supreme
Court
of
Judicature
in
England.
The
practice
in
England
with
respect
to
amendments
would
appear
to
be
very
similar
to
the
practice
before
this
Court.
Indeed,
the
principle
with
regard
to
amendments
has
been
settled
in
England
as
well
as
in
this
country
for
many
years
and
can
be
found
in
the
following
decisions:
Stewart
v.
Metropolitan
Tramways
(1886),
16
Q.B.D.
178;
Williams
v.
Leonard
et
al.
(1895),
16
P.R.
544;
26
S.C.R.
406
as
follows:
“The
rule
of
conduct
of
the
Court
in
such
a
case
is
that,
however
negligent
or
careless
may
have
been
the
first
omission,
and
however
late
the
proposed
amendment,
the
amendment
should
be
allowed,
if
it
can
be
made
without
injustice
to
the
other
side.
There
is
no
injustice
if
the
other
side
can
be
compensated
by
costs;
but
if
the
amendment
will
put
them
into
such
a
position
that
they
must
be
injured,
it
ought
not
to
be
made.
’
’
In
the
case
of
Stewart
v.
Metropolitan
Tramways
referred
to
above,
Pollock,
J.
stated
at
p.
180:
“The
test
as
to
whether
the
amendment
should
be
allowed,
is
whether
or
not
the
defendant
can
amend,
without
placing
the
plaintiff
in
such
a
position
that
he
cannot
be
recouped
as
it
were,
by
any
allowance
of
costs
or
otherwise.
Here
the
action
would
be
wholly
displaced
by
the
proposed
amendment
and
I
think
it
ought
not
to
be
allowed.’’
In
Halsbury’s
Laws
of
England,
Vol.
25,
2nd
ed.,
1937,
at
pp.
256
et
seq.,
s.
425
reads
as
follows:
“If
the
amendment
for
which
leave
is
asked
seeks
to
repair
an
omission
due
to
negligence
or
carelessness,
leave
to
amend
is
granted
if
the
amendment
can
be
made
without
injustice
to
the
other
side.
There
is
no
injustice
if
the
other
side
can
be
compensated
by
an
order
as
to
costs;
but
if
owing
to
the
way
in
which
the
pleading
has
been
framed
the
other
party
has
been
put
into
such
a
position
that
an
injury
would
be
done
to
him
by
an
amendment,
the
Court
will
not
give
leave.”
It
therefore
appears
that
under
the
rules
governing
this
Court,
and
bearing
in
mind
the
accepted
practice
with
respect
to
amendments,
the
latter
should
be
allowed
if
they
are
necessary
for
the
purpose
of
determining
the
real
question
or
questions
in
controversy
between
the
parties
and
do
not
cause
an
irremediable
injustice
to
the
other
party
although
it
may
cause
to
latter
considerable
inconvenience
which,
of
course,
can
be
compensated
by
costs.
I
might
also
add
that
the
proposed
amendments
must
not
enable
a
litigant
to
obtain
a
dishonest
advantage.
Although
the
original
assessment
of
the
appellant’s
income
for
the
year
1955
was
made
on
May
9,
1958,
and
consequently
the
four
year
limitation
provisions
of
Section
46
of
the
said
Act
have
elapsed,
I
believe
the
Minister
could
still
re-assess
the
appellant
even
at
this
late
date
on
the
basis
that
the
appellant
has
made
a
misrepresentation
with
respect
to
the
date
of
the
transaction
which,
under
Section
46(4)
(a)
(i)
would
prevent
the
four
year
limitation
provisions
from
operating.
This
misrepresentation
appears
to
be
particularly
so
in
view
of
counsel
for
the
appellant’s
statement
in
his
memorandum
dated
September
9,
1963,
where
he
admits
on
behalf
of
his
client
that
there
was
such
a
misrepresentation.
The
respondent
would,
therefore,
suffer
no
permanent
injury
and
could
be
adequately
compensated
by
an
award
of
costs.
I
am
also
satisfied
that
the
proposed
amendments
do
not
result
from
an
attempt
to
obtain
a
dishonest
advantage.
With
respect
to
respondent’s
second
point,
i.e.
the
inadequacy
of
evidence
that
the
admissions
were
inadvertently
made
and
not
correct,
the
affidavit
produced
by
the
appellant
herein
appears
to
be
sufficient
in
this
regard,
the
deponent
of
the
affidavit
not
having
been
cross-examined
as
he
could
have
been
under
Section
165
of
the
Rules
of
this
Court.
May
I
also
add
that
his
argument
in
this
regard
is
considerably
weakened
by
the
fact
that
in
paragraph
9
of
his
reply,
by
a
general
denegation
he
denies
the
very
admission
that
the
appellant
wishes
now
to
withdraw.
I
therefore
consider
that
this
is
a
case
where
the
amended
pleadings
should
be
allowed
and
the
application
is
therefore
granted
with
costs
in
the
cause
to
the
respondent
in
any
event
of
the
cause.