Date: 19991116
Docket: A-183-95
OTTAWA, ONTARIO, TUESDAY, NOVEMBER 16, 1999
C O R A M: STRAYER J.A.
LINDEN J.A.
ROTHSTEIN J.A.
B E T W E E N:
SAMUEL J. BESSE
Appellant
" and "
HER MAJESTY THE QUEEN
Respondent
O R D E R
It is hereby ordered that the word "courts" be changed to read "court" at line 1 of the judgment.
(s) "B.L. Strayer"
J.A.
Date: 19991116
Docket: A-183-95
CORAM: STRAYER J.A.
LINDEN J.A.
ROTHSTEIN J.A.
B E T W E E N:
SAMUEL J. BESSE
Appellant
" and "
HER MAJESTY THE QUEEN
Respondent
Motion dealt with in writing at Ottawa, Ontario, on Tuesday, May 11, 1999
ORDER delivered at Ottawa, Ontario, on Tuesday, November 16, 1999
REASONS FOR ORDER BY: STRAYER J.A.
CONCURRED IN BY: LINDEN J.A.
ROTHSTEIN J.A.
Date: 19991116
Docket: A-183-95
C O R A M: STRAYER J.A.
LINDEN J.A.
ROTHSTEIN J.A.
B E T W E E N:
SAMUEL J. BESSE
Appellant
" and "
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
[1] This is an application in writing requesting corrections in the formal judgment and in the reasons in this appeal. The effect of the changes would be to eliminate the award to the successful appellant of costs below in the Tax Court. In our judgment we awarded costs in this Court, in the Federal Court Trial Division, and in the Tax Court.
[2] The respondent contends that the Court erred in awarding costs in the Tax Court since the decision of the Tax Court was not under appeal before us, only the decision of the Federal Court Trial Division. The appellant had simply asked in his memorandum of fact and law that "this appeal be allowed with costs", not specifying in which courts costs were to be granted.
[3] I am of the view that such a motion to amend a judgment, while not tenable under Rule 397(1), can be sustained under Rule 397(2). It cannot be brought under Rule 397(1) for two reasons: first it was not brought within the 10 days following the issue of the judgment; and secondly, it does not fit the criteria of 397(1) because in fact the judgment does accord with the reasons and there was no matter overlooked or omitted. On the contrary, the respondent's complaint is that things were included which should not have been included.
[4] I am satisfied however that the motion to amend the judgment can succeed under Rule 397(2) which provides that:
| 397.(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court. |
397.(2) Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvent être corrigées à tout moment par la Cour. |
I believe this was such an error because there was no appeal before the Court with respect to the Tax Court decision. The only appeal before the Court was with respect to the decision of the Federal Court Trial Division.
[5] This Court has held that when an unsuccessful applicant proceeded from the Tax Court to the Federal Court Trial Division this was not an appeal of the Tax Court decision but rather an appeal of the original assessment.1 Admittedly, the situation is not without difficulty. The proceeding before the Trial Division would have been launched under subsection 172(1) of the Income Tax Act which simply stated that, within 120 days after the issue of a Tax Court decision, "The Minister or the taxpayer may . . . appeal to the Federal Court of Canada". But by section 24 of the Federal Court Act at that time the Trial Division had original jurisdiction to hear all appeals under the Income Tax Act. Rule 800(1) of the Federal Court Rules at that time provided:
| 800.(1) Subject to the provisions of the statutes specially made in relation to an income tax or an 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
(c) the reply were a defence. (2) In appeals under the Income Tax Act or the Estate Tax Act,
shall be treated as part of the Record of this Court for the purpose of the disposition of the appeal in the same way as the notice of appeal and reply filed in the Registry of this Court under sections 98 and 99 respectively of the Income Tax Act as these two sections read on June 1, 1971. (3) For greater certainty, it is declared that nothing in the documents referred to in paragraph (2) constitutes evidence on any issue of fact that either the appellant or the respondent has raised in the appeal unless it is separately tendered during the hearing, and accepted, as evidence. |
800.(1) Sous réserve des dispositions contenues dans les lois et qui concernent spécialement les appels en matière d'impôt sur le revenu et d'impôt sur les biens transmis par décès, et sous réserve des règlements établis en application de ces dispositions, les dispositions des présentes Règles, avec les modifications qui s'imposent, et dans la mesure où elles sont raisonnablement appropriées, sont applicables à un appel de ce genre interjeté devant la Division de première instance.
(2) Dans les appels interjetés en vertu de la Loi de l'impôt sur le revenu ou de la Loi de l'impôt sur les biens transmis par décès,
doivent être traités comme éléments du dossier de la Cour fédérale aux fins du jugement de l'appel, de la même façon que l'avis d'appel et la réponse déposés au greffe de la Cour fédérale en vertu des articles 98 et 99 de la Loi de l'impôt sur le revenu, respectivement tels qu'étaient ces deux articles le 1er juin 1971. (3) Pour plus de certitude, il est précisé que rien de ce qui figure dans les documents mentionnés à l'alinéa (2) ne constitue une preuve d'une question de fait que l'appelant ou l'intimé a soulevé dans l'appel tant que le document en question n'a pas été présenté séparément comme preuve, et accepté à ce titre, pendant l'audition. |
It will be noted that the "appeal" proceeded as an action and that evidence in the record of the Tax Court, although becoming part of the Trial Division record, was not deemed to be evidence in the action in the Trial Division unless so agreed by the parties or otherwise accepted by the Court. All of this led to the well-established conclusion that such an "appeal" in the Trial Division, exercising "original jurisdiction", was really a trial de novo of the issues in which new evidence and issues could readily be introduced.2 Thus success by the "appellant" in the Trial Division would not necessarily support an award of costs to him in the Tax Court where he might have presented his case quite differently.
[6] Consistently with this, the "action" in the Trial Division was framed as an appeal from the Minister's assessment, not an appeal from the Tax Court as such. For example, in the present case, the appellant's statement of claim in the Trial Division commences with the words:
Mr. Samuel J. Besse (the "Plaintiff") hereby appeals an income tax reassessment of the Minister of National Revenue ("the Minister") with respect to his 1979 taxation year.
[7] Therefore this Court did not have an appeal from the Tax Court before it either directly or indirectly as the decision in the Federal Court Trial Division in favour of the Minister, the matter before us, was not itself the disposition of a true appeal from the Tax Court. It should also be noted that by paragraph 400(6)(a) of the Federal Court Rules, 1998 the Court has authority to award costs "in respect of a . . . step in a proceeding". Presumably this refers to a proceeding in the Federal Court, not in some other court. It is otherwise in the case of a true appeal. By subparagraph 52(c)(i) of the Federal Court Act, in an appeal other than an appeal from the Trial Division, this Court can give the decision that the court or tribunal appealed from should have given. This includes ordering the costs which the lower court could have ordered in favour of a successful party.
[8] The reference to the Tax Court in our award of costs below was therefore made in error. It is thus proper that this Court correct its decision by deleting from the judgment erroneous references to matters not before it. As there is no time limit with respect to a motion under Rule 397(2) the amendment to the judgment should be granted as requested. Although the reasons are not subject to amendment under Rule 397(2), when read in association with these reasons they will be understood to have referred erroneously to costs in the Tax Court.
(s) "B.L. Strayer"
J.A.
I agree
A.M. Linden J.A.
I agree
Marshall Rothstein
__________________1 See H.M. v. Apollo 8 Maintenance Services Limited , (1991) 91 D.T.C. 5417 at 5418.
2 Goldman v. Minister of National Revenue (1951) 51 D.T.C. 519 (Ex. Ct.).