Okalta Oils Ltd. v. Minister of National Revenue

At the end of the hearing, the Court, indicating that reasons would be later delivered, dismissed the appeal with costs.

The substantial question considered below was whether, in computing its tax, the appellant had the right to apply the provisions of section 8(6) of the Income War Tax Act relating to certain deductions from taxes and applicable in certain circumstances with respect to drilling and exploration costs incurred on oil wells ultimately found unproductive and abandoned. Upon the consideration of this or any other question related to the merit of this case, we are precluded to enter, for there was no right of appeal from the J. decision of the Minister to the Board nor, therefore, to the

Exchequer Court; the objection taken in this respect, by the respondent, before the Board and again in the Exchequer

Court, should have been decided and maintained.

A right of appeal is a right of exception which exists only when given by statute. Under section 69c(1) of the Income

War Tax Act, a right of appeal to the Exchequer Court is given from the decision of the Income Tax Appeal Board;

and under section 69b(l), a taxpayer who has served a notice of objection to an assessment under s. 69a may, after

"the Minister has confirmed the assessment or re-assessed", appeal to the Income Tax Appeal Board "to have such assessment vacated or varied."

It is the contention of the respondent that, construed as it should be, the word "assessment", in sections 69a and 69b, means the actual amount of tax which the taxpayer is called upon to pay by the decision of the Minister, and not the method by which the assessed tax is arrived at; with the result that if no amount of tax is claimed, there being no assessment within the meaning of the sections, there is therefore no right of appeal from the decision of the Minister to the Income Tax Appeal Board.

In Commissioners for General Purposes of Income Tax for City of London and Gibbs and Others (1), Viscount

Simon L.C., in reference to the word "assessment" said, at page 406:- That the latter meaning attached to the word "assessment", under the Act as it stood before the establishment of the

Income Tax Appeal Board and the enactment of Part VIIIA

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-wherein the above sections are to be found-in substitution to Part VIII, is made clear by the wording of section 58(1) of the latter Part, reading:- Under these provisions, there was no assessment if there was no tax claimed. Any other objection but one ultimately related to an amount claimed was lacking the object giving rise to the right of appeal from the decision of the Minister to the Board. Under section 69a(1), there is a difference in the wording, as it was in prior section 58(1), but not one indicative of a change of view as to the substance in the matter.

In Part VII, which deals with "assessment", a similar meaning is implied in section 54(1) providing that "the Minister shall send a notice of assessment to the taxpayer verifying or altering the amount of the tax . . ." and in section 55, providing that notwithstanding any "prior assessment, or if no assessment has been made, the taxpayer shall continue to be liable for any tax and to be assessed therefore, and the Minister may, at any time, assess any person for tax, interest and penalties . . ." In Case No. and Minister of National Revenue (1), a similar objection was made and maintained. No argument was advanced by the appellant herein to justify the adoption of a contrary view in this case.

LARRY McNEA AND VIVIAN McNEA . .APPLICANTS; *Oct. *Nov. 15 AND

THE CORPORATION OF THE TOWN- SHIP OF SALTFLEET OTHERS

MOTION FOR TO APPEAL AND MOTION QUASH FOR WANT OF JURISDICTION

Appeal-leave-Amount in controversy-The Supreme

Court Act, R.S.C. 1927, c. 35, s. 36.

Whether the amount or value of the matter in controversy in an appeal exceeds within the meaning of of the Supreme Court Act is very often shown sufficiently in the allegations of fact in the statement of claim and in the amount claimed.

In the circumstances the present case, where the trial judge, had he considered the plaintiff entitled to succeed, would have fixed the damages at the extravagant amounts inserted in the statement of claim are no criterion of such amount or value.

It was not a case where leave to appeal should be granted.

MOTION by the applicants for leave to appeal to this Court from the judgment of the Court of Appeal for Ontario and MOTION to quash for want of jurisdiction made by the respondents.

C. Dubin, Q.C. for the applicants.

THE CouRT:-This is not a case where leave to appeal should be granted.

However, at the suggestion of the Court and with the consent of Counsel, the matter was treated as if the appellant had given notice of appeal de plano and the respondent had moved to quash. Very often the allegations of fact set forth in a statement of claim and the amount claimed may be sufficient to show that the amount or value of the matter in controversy in an appeal exceeds $2,000 within the meaning of s. 36 of The Supreme Court Act. This has been Kerwin C.J., Taschereau, Rand, Kellock, Estey, Locke and Abbott JJ.

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adopted by the Court as a general rule and is exemplified in Beaver Dam v. Stone (1).

Although there are exceptions as appears from the decision in Kinkel v. Hyman (2), it cannot be said, in the circumstances of the present case as they were explained, that the amount of damages asked for in the statement of claim is any indication that the amount or value of the matter in controversy exceeds the stated sum. It appears that the plaintiffs purchased three acres of vacant land in the Township of Saltfleet and moved on it a building for which they had paid $75. They were using this building partly as a residence, but also for storing scrap metal, etc., the male plaintiff being a junk dealer. Upon complaint being made by neighbours, it was found by officials of the municipality that in many respects the building contravened the provisions of the Township Building By-law. The endeavours of the officials to co-operate with the plaintiffs by suggesting modifications of the building were unsuccessful, due to the attitude of the plaintiffs. Thereupon the Council instructed the Building Inspector and Chief of Police to carry out the provisions of s. 16 of the By-law and a notice was accordingly given, failure to comply with which was followed by the building being torn down. If the trial judge had considered that the plaintiffs were entitled to succeed, he would have fixed the total damages at $500.

Under these circumstances the extravagant amounts inserted in the statement of claim are no criterion of the amount or value of the matter in controversy.

The motion to quash is granted and the application for leave to appeal is dismissed. There will be costs only as of one motion.

Leave to appeal refused.