A-470-79
The Queen (Appellant)
v.
Coopers & Lybrand Limited, agent for Mercantile
Bank of Canada and Receiver and Manager of
Venus Electric Limited (Respondent)
Court of Appeal, Urie and Ryan JJ. and Kelly
D.J.—Ottawa, September 9, 1980.
Practice — Motion for Court to reconsider judgment on
grounds that amount that Court held that respondent had
available to it to pay on account of wages was incorrect and
that pronouncement as it relates to costs does not agree with
the reasons — Appellant claimed amounts that respondent
was allegedly obligated to remit for tax deductions on wages
paid — Respondent denied liability and did not plead alterna
tively that liability was restricted to a lesser amount
Appellant established respondent's failure to deduct tax pay
able from wages paid — Motion dismissed — Appeal was a
necessary result of complete denial of liability — It was
unnecessary to combine application to correct error with
application for reconsideration of Court's disposition of costs.
MOTION in writing without appearance of
parties.
COUNSEL:
P. Barnard for appellant.
T. A. Sweeney for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Borden & Elliot, Toronto, for respondent.
The following are the reasons for order ren
dered in English by
URIE J.: The respondent seeks to have this
Court reconsider its judgment [page 169 supra]
herein on two grounds:
(a) that the sum referred to on pages 185 and
186 in respect of the amount which the respond
ent had available to it to pay on account of
wages was $190,270 rather than $196,207.01 as
shown therein; (it has been conceded by the
appellant that the latter figure is incorrect and
the proper figure for inclusion in the reasons is
$190,270 and the reasons for judgment will be
so amended), and
(b) that the pronouncement as it relates to costs
does not agree with the reasons.
With respect to the latter contention it is impor
tant to note that the appellant sought from the
respondent by assessment, amounts it claimed the
respondent was obligated to remit to it for tax
deductions on wages paid. The respondent denied
liability on the basis that it was
(a) an agent of Venus Electric Limited and the
liability, if any, was that of its principal; and
(b) the amount of $190,270 made by it "did not
constitute salary, wages or remuneration under
the Income Tax Act and no income tax need be
withheld from such payments ...".
It was held by this Court that the conduct of the
respondent constituted failure to deduct from wage
payments the requisite tax payable thereon. Its
liability, therefore, was fixed by statute at 10% of
the aggregate amount that it should have
deducted.
The respondent did not, in its statement of
claim, plead alternatively that its liability was
restricted to deducting the lesser amount and in its
action sought to have the Trial Division find that it
was not liable at all for either deducting or remit
ting tax. It did not raise the alternative plea that if
it were found to be liable such liability should
relate in the circumstances only to its failure to
deduct tax so that the liability should be limited to
10%. That defence was not raised until the appeal
was brought by the appellant herein. The result of
the appeal was that the appellant established the
respondent's failure to deduct tax payable from
wages paid and consequently its liability for such
failure.
The respondent thus failed in its action as
framed. By virtue of the judgment of the Court of
Appeal, the appellant successfully defended the
respondent's action, a result which would not have
occurred had the appeal not been taken. Put in
another way, the appeal was a necessary result of
the complete denial of liability by the respondent.
Thus, by virtue of the appeal, the respondent
failed at Trial since the issue put before the Trial
Division ultimately was decided against it. It was
also unsuccessful at the appeal level on that issue.
Therefore, in our view, the disposition of costs by
this Court correctly follows the result of the
appeal.
The application for reconsideration is, therefore,
dismissed. While the applicant, Coopers &
Lybrand Limited, quite properly brought to the
Court's attention the error in the figures shown on
pages 185 and 186, correction of such error could
have been accomplished quite simply by applying
to the Court to effect the necessary correction
without combining that application with the
application for reconsideration of the Court's dis
position of costs. We do not consider, therefore,
that the applicant on the motion, the respondent
on the appeal, has succeeded in any way on its
motion and that the respondent (appellant) in this
application is entitled to her costs in respect
thereto.
* * *
RYAN J.: I agree.
* * *
KELLY D.J.: I concur.
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.