SHEPPARD, D.J.:—Dealing with the motion to strike out paragraphs 14, 15 and 19 of the Minister’s reply the ground is raised that the Minister has no right or jurisdiction to appeal against assessment by the Minister. I observe that Section 98, which is the initial section under Division J, or 98(1) in particular, deals with appeals to the Exchequer Court by either the taxpayer or the Minister and the latter part of the section reads :
‘‘And if the appeal is from the Tax Appeal Board.”
The use there of the conjunctive necessarily implies that the first part of the section deals with something other than an appeal from the Tax Appeal Board and that that right of appeal is given both to the taxpayer and to the Minister.
Now, what is the other matter which falls within the first part of Section 98(1)? I think that necessarily includes an assessment by the Minister and therefore the section provides for an appeal by the Minister or by the taxpayer from an assessment by the Minister. It has this result, that the Minister would appear to have various remedies in respect of his own assessment.
(1) He can re-assess, (2) he can appeal to the Exchequer Court under Section 98(1), or (3) he can appeal to the Tax Appeal Board under the second part of Section 98(1), and that that appeal is given by the second part of Section 98(1) is shown by, or shown and affirmed by 99(la) which reads:
“Instead of filing a notice of appeal under Section 98”—
Hence it definitely speaks of Section 98 as having given the Minister a right of appeal and, therefore, a right of appeal from his own assessment. Now, it follows that 99(la) which provides for a cross-appeal in the event of an appeal from a decision of the Tax Appeal Board, should therefore be regarded as procedural, otherwise, if it is construed as conferring a right of appeal or jurisdiction, it would be mere surplusage having regard to the effect of Section 98(1).
I think that the only importance of Section 99(la) in this particular motion depends upon the application of the principle expressio unius est exclusio alterius, and that expressly providing for a cross-appeal on appeal from the Tax Appeal Board impliedly excludes a cross-appeal under other occasions.
I do not think that principle can here apply for several reasons. In the first place 99 (la), being regarded as procedural, must be read as subordinate to Section 98. Secondly, Section 99(la) is expressly made subordinate to Section 98, that is, by reason of the words ‘instead of filing a notice of appeal under Section 98” and also, thirdly, the use of the word “may”, the verb used in Section 99(la), is permissive. I think, therefore, that 99(la) should be read, not only as procedural, but also as subordinate to Section 98, and, being procedural, the provision for a cross-appeal can be regarded as merely provided ex abundanti cautela, not as indicating it is the only method, but providing that, in that particular instance, there may be that provision and leaving to stand the question of whether there is a cross-appeal under other occasions.
As there is a right of appeal and jurisdiction in the Minister from his own assessment, the question is whether or not this cross-appeal complies with the rules. It is not a matter of right or jurisdiction; and complying with the rules is not the point of this motion. I find nothing in the cases, either in the Harris case, [1964] C.T.C. 562; [1966] C.T.C. 226, nor in the Farris case, [1963] C.T.C. 345, which assists. Neither does the Distillers Corporation Seagram case, [1958] C.T.C. 305, help me. There the reference, as pointed out by Mr. Brown, was in respect of items raised by the taxpayer’s own appeal. It seems not to be this case. And in any event that case seems to fall within Section 99 (la) as a procedural section. However, for the reasons which I have given, I think that the Minister has jurisdiction to appeal from his own assessment. That is conferred by Section 98(1). For that reason the motion is refused.
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