Imperial Cabinet (1980) Co. v. Canada, (1994) 83 F.T.R. 205 (TD)

• Court: Federal Court (Canada)
• Case Date: July 13, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 83 F.T.R. 205 (TD)

Imperial Cabinet Co. v. Can. (1994), 83 F.T.R. 205 (TD)

MLB headnote and full text

Imperial Cabinet (1980) Co. Ltd. (plaintiff) v. Her Majesty The Queen in Right of Canada (defendant)

(T-1557-92)

Elgin Cabinet Incorporated (applicant) v. Her Majesty the Queen in Right of Canada, The Former Minister of National Revenue, Otto Jelinek, The Former Minister of National Revenue, Garth Turner, The Minister of National Revenue, David Anderson, John Allen Sitka, Merv Sitka, Augie Haugen, and John Doe (respondents)

(94-T-30)

Indexed As: Imperial Cabinet (1980) Co. v. Canada

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

August 3, 1994.

Summary:

In November 1986, Revenue Canada regional directors were advised via an internal network computer system (INET) that cabinet makers could use a particular method for calculating federal sales tax resulting in a one-third reduction in tax. Cabinet makers in Manitoba did not receive word of Revenue Canada's decision because the INET message was apparently destroyed immediately upon being read. The result was lost tax savings for cabinet makers in Manitoba. Imperial Cabinet Co. et al., Manitoba cabinet makers, applied to amend existing statements of claim issued against the Crown, to add parties and causes of action. Elgin Cabinet Inc. et al., also Manitoba cabinet makers, applied for leave to extend a limitation period to enable them to file statements of claim commencing new actions.

A Prothonotary of the Federal Court of Canada, Trial Division, held that s. 81 of the Excise Tax Act was a complete bar to the amendments sought by Imperial Cabinet Co. et al. The court, however, granted the extension of time sought by Elgin Cabinet Inc. et al. to commence new actions against the Crown.

Courts - Topic 4039

Federal Court of Canada - Jurisdiction - Trial Division - Civil actions - Elgin Cabinet Inc. et al. sought an extension of time to file statements of claim, alleging negligent misrepresentation on the part of individual Crown employees - A Prothonotary of the Federal Court of Canada, Trial Division, held that the court had no jurisdiction over the individual employees because the proposed causes of action were based on provincial law - See paragraphs 25, 26.

Courts - Topic 4041

Federal Court of Canada - Jurisdiction - Trial Division - Actions against Cabinet ministers - Elgin Cabinet Inc. et al. sought an extension of time to file statements of claim, alleging that two former Ministers of National Revenue and the present Minister of National Revenue were vicariously liable for the negligence of various individuals employed by Revenue Canada - A Prothonotary of the Federal Court of Canada, Trial Division, stated that a Cabinet Minister, or former Cabinet Minister, as a servant of the Crown, is not vicariously liable for the tort of a subordinate - Further, the court lacked jurisdiction respecting the two former Ministers of National Revenue - See paragraphs 23 and 24, 26.

Limitation of Actions - Topic 3010

Actions in tort - When time begins to run - [See Limitation of Actions - Topic 9612 ].

Limitation of Actions - Topic 9612

Enlargement of time period - Application for - When available - In November 1986, Revenue Canada regional directors were advised via an internal network computer system (INET) that cabinet makers could calculate sales tax using an advantageous method - Manitoba cabinet makers were not notified because the INET message was destroyed - In 1994, eight Manitoba cabinet making concerns, including Elgin Cabinet Inc. (the applicants) sought to extend the limitation period under the Manitoba Limitation Act to file statements of claim against the Crown, alleging neglect and negligent misrepresentation - A Prothonotary of the Federal Court of Canada, Trial Division, granted the extension, holding that the time ran from when the applicants learned that the INET message was destroyed (1993-94) and the cause of action had a reasonable and realistic prospect of success - See paragraphs 27 to 77.

Practice - Topic 603

Parties - Adding or substituting parties - Bars - Revenue Canada regional directors were advised via an internal network computer system (INET) that cabinet makers could use an advantageous method to calculate sales tax - Manitoba cabinet makers were not notified because the INET message was destroyed - Imperial Cabinet and three other Manitoba cabinet making concerns, sued the Crown and sought to amend their statements of claim to add new parties and causes of action - A Prothonotary of the Federal Court of Canada, Trial Division, held that the actions began as appeals from a Canadian International Trade Tribunal decision and, therefore, s. 81.28(3)(a) of the Excise Tax Act barred adding new parties and new causes of action - Section 81.28(3)(a) provided that for appeals under that part of the Act, the ordinary joinder rules were inapplicable - See paragraphs 16 to 18.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action - [See Practice - Topic 603 ].

Torts - Topic 2647

Vicarious liability - Cabinet ministers - [See Courts - Topic 4041 ].

Cases Noticed:

Einarsson et al. v. Adi's Video Shop et al. (1992), 76 Man.R.(2d) 218 (C.A.), refd to. [para. 20].

National Harbour's Board v. Langelier et al. (1968), 2 D.L.R.(3d) 81 (S.C.C.), refd to. [para. 24].

Kealey v. Canada et al. (1992), 46 F.T.R. 107 (T.D.), refd to. [para. 24].

Hanson v. Smith and Canada (1991), 38 F.T.R. 34 (T.D.), refd to. [para. 25].

Stephens' Estate v. Minister of National Revenue (1982), 40 N.R. 620 (F.C.A.), refd to. [para. 25].

Pacific Western Airlines Ltd. v. R., [1979] 2 F.C. 476 (F.C.T.D.), refd to. [para. 25].

Tribro Investments Ltd. v. Embassy Suites Inc. (1992), 51 F.T.R. 241; 40 C.P.R.(3d) 193 (T.D.), refd to. [para. 28].

Manning v. Nassar (1990), 70 Man.R.(2d) 310 (C.A.), refd to. [para. 28].

Heaman v. Isaac and The Eden Mental Health Centre (1994), 95 Man.R.(2d) 59; 70 W.A.C. 59 (C.A.), refd to. [para. 28].

Weselak v. Beausejour District Hospital No. 29 (1987), 49 Man.R.(2d) 86 (C.A.), refd to. [para. 35].

Hoeppner v. Horstman Contracting Ltd. (1993), 79 Man.R.(2d) 257 (Q.B.), refd to. [para. 36].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117; 31 D.L.R.(4th) 481, refd to. [para. 36].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; 29 C.C.L.T. 97, refd to. [para. 36].

Kozak v. Dominion Insurance Corp., [1972] 6 W.W.R. 741, refd to. [para. 44].

Justice v. Cairnie Estate et al., [1993] 6 W.W.R. 305; 88 Man.R.(2d) 43 (C.A.), refd to. [para. 46].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 15(2) [para. 43].

Evidence Act - see Canada Evidence Act.

Excise Tax Act, R.S.C. 1985, c. E-15, sect. 50(1) [para. 4]; sect. 81 [para. 15]; sect. 81.24 [para. 16]; sect. 81.28(3)(a) [para. 17].

Limitation of Actions Act, R.S.M. 1987, c. L-150; C.C.S.M., c. L-150, sect. 14 [para. 19]; sect. 14(1) [para. 29]; sect. 15(2) [paras. 19, 29]; sect. 20(1), sect. 20(2), sect. 20(3), sect. 20(4) [para. 29].

Authors and Works Noticed:

Black's Law Dictionary (6th Ed. 1990) [para. 48].

Klar, Lewis, Tort Law (1991), p. 198 [para. 51].

Counsel:

Martin Pollock, for the plaintiff/applicant;

Rick Woyiwada and Ted Glass, for the defendant/respondents.

Solicitors of Record:

Pollock and Company, Winnipeg, Manitoba, for the plaintiff/applicant;

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

These motions were heard on July 13, 1994, in Winnipeg, Manitoba, before Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following decision on August 3, 1994.