Fredericton Housing Limited (Appellant)
v.
The Queen (Respondent)
Court of Appeal, Jackett C.J., Choquette and
St.-Germain D.JJ.—Ottawa, June 20, 1973.
Practice—Income tax—Statement of claim not signed by
authorized person—Motion to strike out—No prejudice—
Rule 302(b).
The statement of claim in an appeal by the Crown from a
decision of the Tax Appeal Board was, at the request of the
legal officer in the Department of Justice authorized to sign
it, signed in his name by another lawyer.
Held (Choquette DJ., dissenting), affirming the Trial Divi
sion, an application to strike out the statement of claim must
be dismissed.
Per Jackett C.J. and St.-Germain D.J.: The failure to sign
the statement of claim in the manner authorized by Rule
600(1) was a mere irregularity which caused no prejudice to
the taxpayer.
Per Choquette DJ., dissenting: The statement of claim
should be struck out under Rule 302 in that the effect of the
failure to have the statement of claim signed as authorized is
that no statement of claim was filed in law.
APPEAL.
COUNSEL:
B. A. Crane for appellant.
G. W. Ainslie, Q.C., and J. Power for
respondent.
SOLICITORS:
Gowling and Henderson, Ottawa, for
appellant.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J. (orally)—This is an appeal from
a judgment of the Trial Division dismissing,
with costs in the cause, an application that, in its
inception, was a motion for leave to file a condi
tional appearance and a stay under Rule 401,
but which, by arrangement between the parties,
was treated as an application to strike out the
Statement of Claim on certain stated grounds.
On July 20, 1972, the Tax Review Board
allowed an appeal by the appellant herein from
its assessment under Part I of the Income Tax
Act for its 1970 taxation year by a judgment
that referred the assessment back to the
respondent for re-assessment "deducting the
profit" made on the sale of a parcel of land
"which the appellant had treated as capital gain
and which the Minister had treated as income".
The Income Tax Act, as amended by the
statute that came into force on January 1, 1972
(chapter 63 of 1970-71-72) contained the fol
lowing provisions with reference to appeal from
such a judgment:
172. (1) The Minister or the taxpayer may, within 120
days from the day on which the Registrar of the Tax Review
Board mails the decision on an appeal under section 169 to
the Minister and the taxpayer, appeal to the Federal Court
of Canada.
175. (1) An appeal to the Federal Court under this Act,
other than an appeal to which section 180 applies, shall be
instituted,
(a) in the case of an appeal by a taxpayer,
(i) in the manner set forth in section 48 of the Federal
Court Act, or
(ii) by the filing by the Minister in the Registry of the
Federal Court of a copy of a notice of objection pursu
ant to paragraph 165(3)(b); and
(b) in the case of an appeal by the Minister, in the manner
provided by the Federal Court Rules for the commence
ment of an action.
The proceeding in the Trial Division was
instituted by a Statement of Claim the body of
which, as amended shortly after it was filed on
November 27, 1972, read as follows:
Her Majesty's Deputy Attorney General of Canada, on
behalf of Her Majesty, sheweth as follows:
A. STATEMENT OF FACTS
1. The Tax Review Board by a judgment dated the 31st day
of July 1972 and mailed on the 1st day of August 1972
allowed the Defendant's appeal from the assessment made
by the Minister of National Revenue, in respect of the
Defendant's 1970 taxation year, notice of which was mailed
to the Defendant on the 12th day of May 1971.
2. The Minister of National Revenue in assessing the
Defendant for its 1970 taxation year, included in the compu
tation of its income the gain of $168,018.00 arising from the
sale of an 80 acre parcel of land being a portion of an 132
acre parcel of land which the Defendant had purchased in
1965 at a cost of about $500.00 per acre which 80 acre
parcel of land was resold in 1970 for the sum of
$200,000.00.
3. The Minister of National Revenue in assessing the
Defendant for its 1970 taxation year and including in its
income the gain of $168,018.00, did so on the assumption
that the gain arising therefrom was income from a business
or venture in the nature of a trade.
B. STATUTORY PROVISIONS UPON WHICH THE PLAINTIFF RELIES
AND THE REASONS WHICH HE INTENDS TO SUBMIT
4. The Plaintiff relies upon sections 3, 4 and 139(1)(e) of the
Income Tax Act, R.S.C. 1952, c. 148.
Claim
The Deputy Attorney General of Canada, on behalf of
Her Majesty the Queen, claims that the appeal from the
decision of the Tax Review Board be allowed with costs and
the assessment be restored.
DATED at Ottawa this 27th day of November 1972.
This was followed by a "signature" made up
as follows:
D. S. Maxwell,
Deputy Attorney General of Canada
per "F. J. Dubrule"
F. J. Dubrule
The facts, in so far as relevant to the "signa-
ture", are as follows: Mr. F. J. Dubrule, a
member of the bar who is a senior legal officer
of the Department of Justice, prepared a draft
statement of claim which was substantially the
same as the typed part of the body of the
Statement of Claim as filed including the typed
part of the "signature". On November 24, 1972,
when he was on the point of going on a trip, Mr.
Dubrule instructed a secretary in the Depart
ment to have the Statement of Claim "signed by
one of the lawyers in the ... Section and filed
with the Registry of the Federal Court." That
secretary thereupon asked another lawyer in the
Section in question to sign the Statement of
Claim and that lawyer, pursuant to the request,
wrote Mr. Dubrule's name after the word "per"
in the typed document and the document was
then filed on November 27, 1972.
The objections by the appellant to the judg
ment appealed against are stated in its memo
randum in this Court as follows:
PART II
OBJECTIONS BY APPELLANT
1. It is submitted that the learned trial judge erred in failing
to strike out the Statement of Claim on the basis that it does
not contain a precise statement of the material facts as
required by Rule 408 or to make such other order as might
be appropriate.
2. It is submitted that the learned trial judge erred in finding
that Mr. Storrow had authority to sign Mr. Dubrule's name
at the foot of the Statement of Claim.
3. It is submitted the learned trial judge erred in holding that
the Statement of Claim was not required to be signed
personally by Mr. Dubrule or another person duly author
ized to so sign.
The first ground for the appeal is that the
allegations in the body of the Statement of
Claim do not comply with Rule 408(1), which
reads as follows:
Rule 408. (1) Every pleading must contain a precise state
ment of the material facts on which the party pleading relies.
The part of the memorandum that indicates the
precise ground on this aspect of the matter
reads as follows:
In the Statement of Claim there is a single allegation that the
defendant sold "an 80 acre parcel of land" and that the
profit from such sale was income from a business or venture
in nature of trade. The material facts on which this allega
tion is based are not set out.
On this point, we did not find it necessary to
call on the respondent. At most, as I read this
complaint, it is a ground for demanding particu
lars. I cannot see any ground for striking out the
Statement of Claim in the complaint as so
formulated.
The other grounds for the appeal are based on
Rule 600(1), which reads as follows:
Rule 600. (1) Except in a case where some other procedure
is required by statute, Rule 400 applies to an action by the
Crown, which shall be brought by the Attorney General of
Canada or the Deputy Attorney General of Canada on
behalf of the Crown. (Form 31) A statement of claim or
declaration in an action by the Crown may be signed by the
Attorney General of Canada, the Deputy Attorney General
of Canada, or by some person duly authorized to affix the
signature of one of them thereto.
In my view, this authorizes a statement of claim
in an action by the Crown (and, therefore, by
virtue of section 175 of the Income Tax Act, in
an appeal by the Minister under that Act) to be
signed
(a) by the Attorney General of Canada,
(b) by the Deputy Attorney General of
Canada, or
(c) by some person duly authorized to affix
the signature of the Attorney General or the
Deputy Attorney General thereto.
Having regard particularly to the third alterna
tive, I cannot escape the conclusion that the rule
authorizes
(a) the Attorney General to write or other
wise put his own name at an appropriate place
on the document,
(b) the Deputy Attorney General to write or
otherwise put his own name at an appropriate
place on the document, and
(c) some other person, duly authorized, to
affix, at an appropriate place on the docu
ment, the signature of the Attorney General
or the Deputy Attorney General and to certify
to his having done so by adding, after appro
priate certifying phraseology, in his own writ
ing or by some other method, his own name.
I come to this conclusion, after reading the
jurisprudence referred to by both parties, which
merely establishes in my view that the question
as to what is required by a provision such as
Rule 600(1) must be decided on the wording of
the particular provision in the context in which
it is found.
If I am right in my conclusion as to what is
meant by Rule 600(1), the Statement of Claim in
this appeal was not signed in the manner there
by authorized. Mr. Dubrule did not sign his own
name either personally or by an amanuensis'
and the other lawyer did not sign his own name.
However, in my view, the fact that the State
ment of Claim was not signed in the manner
authorized by Rule 600(1) does not make the
Statement of Claim a nullity. In fact, the State
ment of Claim was prepared, and filed in the
Court, by officers of the Department of Justice
functioning as part of the group of legal officers
who, under the Attorney General of Canada,
perform his task of regulating and conducting
litigation for or against the Crown or any public
department? If a document is filed in the Court
without a signature to certify by whom it is
filed, there is, in my view, an irregularity but the
document is not a nullity, so long as it is, in fact,
filed by or on behalf of the party from whom it
purports to emanate. I am of this view even
though Rule 300(4) requires expressly that "All
documents filed in the Registry or with the
Court in an action on behalf of a party shall be
signed by the attorney or solicitor on the record
if the party has such an attorney or solicitor". In
my view, lack of a signature of the party or of
somebody acting for him is not such an omis
sion as makes the document a nullity but is an
irregularity that may be corrected providing the
document is, otherwise, what it appears to be.
In my view, all such irregularities, in this
Court, fail to be regulated by Rule 302, which
reads as follows:
Rule 302. The following provisions apply with reference to
formal objections and failures to comply with the require
ments of these Rules:
(a) no proceeding in the Court shall be defeated by any
merely formal objection;
(b) non-compliance with any of these Rules or with any
rule of practice for the time being in force, shall not
render any proceedings void unless the Court shall so
direct, but such proceedings may be set aside either
wholly or in part as irregular, or amended, or otherwise
dealt with in such manner and upon such terms as the
Court shall think fit;
(c) no application to set aside any proceeding for
irregularity shall be allowed unless made within a reason
able time, nor if the party applying has taken any fresh
step after knowledge of the irregularity;
(d) where an application is made to set aside a proceeding
for irregularity, the several objections intended to be
insisted upon shall be stated in the notice of motion.
The relevant part of Rule 302 here is the part
that provides that "... non-compliance with
any of these Rules ... shall not render any
proceeding void unless the Court shall so direct,
but such proceedings may be set aside either
wholly or in part as irregular, or amended, or
otherwise dealt with in such manner and upon
such terms as the Court shall think fit".
In considering what action, if any, should
have been taken by the Trial Division on this
application under Rule 302, I am of opinion that
we must have regard to Rule 2(2), which reads
as follows:
(2) These Rules are intended to render effective the sub
stantive law and to ensure that it is carried out; and they are
to be so interpreted and applied as to facilitate rather than to
delay or to end prematurely the normal advancement of
cases.
In my view, the irregularity in the. signature
here has not caused any prejudice whatsoever
to the appellant and does not justify either a
direction that the Statement of Claim is void or
any remedial action.
The appeal should, in my view, be dismissed
with costs.
* * *
ST. -GERMAIN D.J. concurred.
* * *
CHOQUETTE D.J. (dissenting)—I agree with
the Chief Justice that the Statement of Claim
was not signed as authorized by Rule 600.
In my view, however, the effect of the failure
to have the Statement of Claim signed as
authorized is that no statement of claim was
filed in law.
I am, therefore, of opinion that we should
direct, under Rule 302, that the Statement of
Claim is void and that there should be judgment
striking it out.
1 Clearly Mr. Dubrule was not asking that his name be
affixed by an amanuensis even if that concept is otherwise
applicable. The secretary would have served equally well for
that purpose. He, presumably, specified a lawyer because a
lawyer in the Section would have authority to sign in his
own right.
2 See section 5(d) of the Department of Justice Act, R.S.C.
1970, c. J-2.
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.