T-132-76
Jacques Beique (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Montreal, September
12; Ottawa, September 15, 1977.
Practice — Income tax action — Motion to strike mis -en-
cause — No remedy sought against mis -en-cause — Joinder
under Federal Court Rules 1715 and 1716 inoperative due to s.
175(3)(a) of Income Tax Act — Income Tax Act, R.S.C. 1952,
c. 148, as amended by S.C. 1970-71-72, c. 63, s. 175(3)(a) —
Federal Court Rules, 1715 and 1716.
This motion seeks to strike the mis -en-cause because the
plaintiff made her a party to the action and no remedy was
sought against her. The action involves a re-assessment due to
the plaintiff's dividing his income with his wife, the mis -en-
cause, because of their allegedly being in community of prop
erty. The plaintiff appealed. Although the wife was re-assessed,
she did not appeal.
Held, the defendant's motion is granted. There is nothing in
law which authorizes plaintiff, without permission of the Court,
to make his wife a party to his appeal against defendant.
Although Federal Court Rules 1715 and 1716 permit joinder
by leave or order of the Court when a common question of law
arises affecting the rights or interests of persons party to the
action, these Rules are inapplicable by operation of section
175(3)(a) of the Income Tax Act. There is no question of
joinder of appeal because there is only one appeal.
APPLICATION to strike mis -en-cause.
COUNSEL:
Jacques Beique for plaintiff.
Jean Delage for defendant.
SOLICITORS:
Jacques Beique, Montreal, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is a motion seeking an order to
strike the mis -en-cause, Jacqueline Sicotte, from
the case on the grounds that plaintiff illegally
made her a party to it unnecessarily since no
remedy is sought against her. The action is based
on plaintiff's tax re-assessment for the year 1971
in which he divided his income between himself
and his wife the said Jacqueline Sicotte on the
basis of their allegedly being in community of
property. This division of income was refused by
the Minister who re-assessed her on the basis of
her own income earned during the year in question
and re-assessed plaintiff on the basis of his own
personal income for that year. He appealed from
this and his appeal was dismissed by the Tax
Review Board. He then brought the present pro
ceedings. No appeal was made by his wife, the
mis -en-cause, although she is quite evidently an
interested party. Should plaintiff succeed in his
present appeal she would undoubtedly then be
re-assessed so as to reflect the additional income
which would thereby be deemed to have bccn
taxable in her hands. However, it would appear
that there is nothing in the law which authorizes
plaintiff, without the permission of the Court, to
make his wife a party to his appeal against defend
ant. Section 175(3)(a) of the Income Tax Act
reads as follows:
175....
(3) An appeal instituted under this section shall be deemed
to be an action in the Federal Court to which the Federal Court
Act and the Federal Court Rules applicable to an ordinary
action apply, except as varied by special rules made in respect
of such appeals, and except that
(a) the Rules concerning joinder of parties and causes of
action do not apply except to permit the joinder of appeals
instituted under this section.
It is clear, therefore, that Rules 1715 and 1716 of
the Federal Court permitting the joinder of parties
by leave of, or order by, the Court when a common
question of law arises which affects the rights and
interests of the persons who are parties to the
action, are not applicable and there can be no
question of joinder of appeals such as was referred
to by Mr. Justice Heald in the case of L. & M.
Wood Products Ltd., North Battleford Lumber
and Post Sales Ltd. and Glaslyn Forest Products
Ltd. v. M.N.R.', since there is only one appeal, no
1 [1972] 2 F.C. 1251.
appeal having been brought by Dame Jacqueline
Sicotte. It is an appeal by the plaintiff against his
re-assessment and while an eventual possible re
assessment of his wife, Dame Jacqueline Sicotte,
may well depend on the outcome of his appeal, her
re-assessment is at present not under appeal nor
before the Court.
Section 174(3)(b) of the Income Tax Act which
reads as follows:
174. ...
(3) Where the Tax Review Board or the Federal Court—
Trial Division is satisfied that a determination of the question
set forth in an application under this section will affect assess
ments in respect of two or more taxpayers who have been
served with a copy of the application and who are named in an
order of the Board or the Court, as the case may be, pursuant
to this subsection, it may
(b) if one or more of the taxpayers so named has or have
appealed, make such order joining a party or parties to that
or those appeals as it considers appropriate.
might have been applicable had this been a refer
ence to the Court by the Minister made pursuant
to section 174(1), but that is not the case in the
present proceedings. Even in such proceedings the
intervention of the Court would be necessary to
exercise its discretion in deciding that Dame
Jacqueline Sicotte should be joined as a party to
the proceedings. Heald J. stated in the L. & M.
Wood case (supra) at page 1255:
The scheme of the statute applies to ... separate taxpayers.
Each assessment in each year is, it seems to me, a separate
cause of action. The object of the appeal procedures set out in
the Act is to obtain an adjudication of the issues which have
arisen between a particular taxpayer and the Minister of
National Revenue as to his liabilities under the statute for a
particular taxation year.
Defendant's motion is therefore maintained and
Dame Jacqueline Sicotte named as mis -en-cause is
struck from the case and it is directed that the
style of cause shall be amended accordingly.
ORDER
Defendant's motion is maintained with costs,
Dame Jacqueline Sicotte is struck from the case as
mis -en-cause and the style of cause amended
accordingly so as to reflect this.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.