Date: 20000406
Docket: A-665-97
CORAM: ISAAC J.A.
ROBERTSON J.A.
SEXTON J.A.
BETWEEN:
ALBERT D. FRIEDBERG
Appellant (Plaintiff)
- and -
HER MAJESTY THE QUEEN
Respondent (Defendant)
Heard at Toronto, Ontario, on Thursday, April 6, 2000
JUDGMENT delivered from the bench at Toronto, Ontario, on Thursday, April 6, 2000
REASONS FOR JUDGMENT BY: ROBERTSON J.A.
Date: 20000406
Docket: A-665-97
CORAM: ISAAC J.A.
ROBERTSON J.A.
SEXTON J.A.
BETWEEN:
ALBERT D. FRIEDBERG
Appellant (Plaintiff)
- and -
HER MAJESTY THE QUEEN
Respondent (Defendant)
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on Thursday, April 6, 2000)
ROBERTSON J.A.
We are all of the view that the learned Motions Judge did not err in granting summary judgment against the appellant/plaintiff. In his statement of claim, the appellant sought to recover the amount of $1.9 million, paid to the Receiver General of Canada. That amount is comprised of $1.3 million identified in a Notice of Reassessment issued for the appellant"s 1987 taxation year, together with interest thereon in the amount of $742,000. In that notice of reassessment dated March 3, 1989, it is clearly stated at two separate locations that the appellant owed $1.3 million in taxes. Unfortunately, that amount was placed in the "Refund" box of the reassessment form rather than the "Balance Unpaid" box. As well, the reassessment notice indicates a credit of $1.3 million. However, the error is apparent on the face of the document. On March 18, 1989, the respondent provided the appellant with another document clearly indicating that the amount in question was owing and not subject to a refund. Equally relevant is the fact, that on May 28, 1989 the appellant filed a Notice of Objection to the reassessment, not on the basis of any refund that might be owing, but with respect to the way in which certain tax calculations were made. The appellant then initiated an appeal to the Tax Court which was subsequently abandoned in 1992. The appellant then filed a statement of claim in the Trial Division of this Court seeking to recover with interest the amount designated as a refund on the March 3, 1989, Notice of Reassessment.
In these circumstances, the appellant can take no refuge in s. 152(8) of the Income Tax Act. That provision provides that an assessment is to be deemed valid and binding notwithstanding any error in the assessment. In the present case, the error is not in the assessment, but rather in the Notice of Assessment; an error which in our view is apparent on the face of the document and one which could not reasonably be said to mislead the appellant into believing that he was owed the amount in question. If he was in any doubt it must have been removed by the document sent to the appellant by the respondent apparently two weeks after the Notice of Reassessment issued.
We agree with the learned Motions Judge that in the circumstances there is no genuine issue for trial. Accordingly, the appeal will be dismissed with costs.
"J.T. Robertson"
J.A.