Galway v. MNR, (1974) 2 N.R. 317 (FCA)

JudgeJackett, C.J., Thurlow and Pratte, JJ.
CourtFederal Court of Appeal (Canada)
Case DateApril 22, 1974
JurisdictionCanada (Federal)
Citations(1974), 2 N.R. 317 (FCA)

Galway v. MNR (1974), 2 N.R. 317 (FCA)

MLB headnote and full text

Galway v. Minister of National Revenue

Indexed As: Galway v. Minister of National Revenue

Federal Court of Appeal

Jackett, C.J., Thurlow and Pratte, JJ.

April 22, 1974 and June 6, 1974.

Summary:

This case arose out of an application for a consent judgment by a taxpayer and the Minister of National Revenue after a trial in the Trial Division of the Federal Court of Canada. The trial concerned the validity of an assessment by the Minister against the taxpayer for taxes of $149,559.00 for the 1961 taxation year. The taxpayer and the Minister entered into a settlement agreement and requested the Federal Court of Appeal to enter a judgment whereby the taxpayer's assessment would be referred back to the Minister "to re-assess the appellant's tax and interest in the amount of $100,000 ...". In two judgments dated April 22, 1974 and June 6, 1974, the Federal Court of Appeal dismissed the application for a consent judgment.

The Federal Court of Appeal stated that it did not have jurisdiction to grant such a consent judgment based on a compromise settlement - see paragraphs 20 to 22. The Federal Court of Appeal stated that it was doubtful that it could require the Minister of National Revenue to do anything except what the statute requires him to do - See paragraphs 7 and 21.

The Federal Court of Appeal stated that the Income Tax Act did not authorize an assessment of a fixed sum for interest before the tax has all been paid - See paragraph 10.

The Federal Court of Appeal stated that a court cannot grant a judgment on consent which it could not grant after the trial of an action or the hearing of an appeal - See paragraph 22.

The Federal Court of Appeal stated that it was doubtful whether a trial court judgment could be set aside on appeal on the consent of the parties unless the appeal court has dealt with the matter on the merits - See paragraphs 5 and 18.

Income Tax - Topic 8004

Appeals to courts - Power of the courts to dispose of appeals - Consent judgment - Settlement agreement - Income Tax Act, section 100(4) - The Minister and the taxpayer requested a judgment from the Federal Court of Appeal whereby the taxpayer's assessment would be referred back to the Minister to re-assess the taxpayer's tax and interest at $100,000 - The Federal Court of Appeal stated that it was doubtful that a court could require the Minister to do anything except what the statute required the Minister to do - See paragraphs 7 and 21 - The Federal Court of Appeal dismissed the application for a consent judgment and stated that it did not have jurisdiction to grant such a consent judgment based on a compromise settlement - See paragraphs 20 to 22.

Income Tax - Topic 7802

Assessment of interest for a fixed amount before the tax has all been paid - Income Tax Act, section 54(1) - The Federal Court of Appeal stated that section 54(1) did not authorize an assessment of a fixed sum for interest before the tax has all been paid - See paragraph 10.

Practice - Topic 5500

Judgments and orders - Consent judgments - The Federal Court of Appeal stated that a court cannot grant a consent judgment which it could not grant after the trial of an action or the hearing of an appeal - See paragraph 22.

Practice - Topic 9254

Appeals - Consent judgments by an appeal court - The Federal Court of Appeal stated that there was a doubt as to whether a judgment of a lower court could be set aside on appeal on the consent of the parties unless the Appeal Court has dealt with the matter on the merits - See paragraphs 5 and 18.

Cases Noticed:

Slaney v. Kean, [1970] 1 All E.R. 434, folld. [para. 5].

Statutes Noticed:

Federal Court Rules, rule 1212 [para. 6].

Federal Court Act, S.C. 1970-71-72, c. 1, sect. 52(b) [para. 6].

Income Tax Act, R.S.C. 1952, c. 148, sect. 54(1) [para. 10]; sect. 100(4) [para. 7].

Financial Administration Act, R.S.C. 1970, c. F-10, sect. 17(1) [fn. 2 following para. 14].

Counsel:

Richard R. Walker, for the appellant;

W.J. Hobson, for the respondent.

The Federal Court of Appeal filed two separate reasons for judgment with respect to this application - the first, dated April 22, 1974 [see paras. 1-14] and the second, dated June 6, 1974 [see paras. 15-24] - both reasons for judgment are set out below.

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