Devor v. Minister of National Revenue, (1993) 151 N.R. 188 (FCA)

• Judge: Mahoney and Robertson, JJ.A., and Gray, D.J.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 28, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 151 N.R. 188 (FCA)

Devor v. MNR (1993), 151 N.R. 188 (FCA)

MLB headnote and full text

The Minister of National Revenue (appellant/defendant) v. Louis J. Devor (respondent/plaintiff)

(A-798-88)

Indexed As: Devor v. Minister of National Revenue

Federal Court of Appeal

Mahoney and Robertson, JJ.A.,

and Gray, D.J.

January 28, 1993.

Summary:

The plaintiff filed income tax returns for the years 1981, 1982 and 1983, and received notices of assessment approximately three months after filing in each case. In 1987 the Minister of National Revenue considered reassessing the plaintiff and had the plaintiff sign waivers of the limitation date by which the Minister could issue notices of reassessment (Income Tax Act, s. 152). The plaintiff commenced an action by way of statement of claim for declaratory relief respecting the waivers. The Minister applied to strike out the statement of claim on the ground that the Federal Court lacked juris­diction (i.e., s. 29 of the Federal Court Act precluded commencement of the action).

The Associate Senior Prothonotary of the Federal Court of Canada, Trial Division, dismissed the application to strike. The Minister appealed.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 21 F.T.R. 146, dismissed the appeal. The Minister appealed again.

The Federal Court of Appeal allowed the appeal, struck out the statement of claim and dismissed the plaintiff's action for declara­tory relief because the action was beyond the jurisdiction of the court where there was a right to appeal against the reassessments given by the Income Tax Act.

Courts - Topic 4046

Federal Court of Canada - Jurisdiction - Trial Division - Requirement of lack of other appeals - A taxpayer sued for decla­ratory relief respecting certain waivers signed by the taxpayer regarding the limi­tation date for notices of reassessment - He did not pursue the procedures available under the Income Tax Act - The Federal Court of Canada, Trial Division, held that s. 29 of the Federal Court Act did not preclude the taxpayer's action - The Fed­eral Court of Appeal held that the court lacked jurisdiction to consider the tax­payer's action, struck the statement of claim and dismissed the taxpayer's action where there was a right to appeal under the Income Tax Act respecting the reassessments.

Practice - Topic 5666

Judgments and orders - Declaratory judg­ments - Bars - Adequate alternate remedy - [See Courts - Topic 4046 ].

Cases Noticed:

Optical Recording Corp. v. Minister of National Revenue (No. 1), [1987] 1 F.C. 339; 6 F.T.R. 294; 86 D.T.C. 6465 (T.D.), revd. (1990) 116 N.R. 200; 90 D.T.C. 5372 (F.C.A.), refd to. [para. 1].

Brydges et al. v. Kinsman et al. (1990), 36 F.T.R. 216; 90 D.T.C. 6463 (F.C.T.D.), refd to. [para. 2].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 52(b)(i) [para. 3].

Income Tax Act, S.C. 1970-71-72, c. 63, sect. 152(4) [para. 1].

Counsel:

Marie-Therese Boris and David Spiro, for the appellant/defendant;

Thomas A. Kelly, for the respon­dent/plaintiff.

Solicitors of Record:

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellant/defendant;

Thomas A. Kelly, North York, Ontario, for the respondent/plaintiff.

This matter was heard on January 28, 1993, in Toronto, Ontario, before Mahoney and Robertson, JJ.A., and Gray, D.J., of the Federal Court of Appeal. The judgment of the court was delivered orally from the bench by Mahoney, J.A., on January 28, 1993.