Shairp v. Minister of National Revenue, (1988) 93 N.R. 396 (FCA)

• Judge: Heald, Mahoney and Marceau, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 05, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 93 N.R. 396 (FCA)

Shairp v. MNR (1988), 93 N.R. 396 (FCA)

MLB headnote and full text

John Shairp (appellant/plaintiff) v. Her Majesty the Queen (respondent/defendant)

(Nos. A-355-87; T-2681-84)

Indexed As: Shairp v. Minister of National Revenue

Federal Court of Appeal

Heald, Mahoney and Marceau, JJ.

October 19, 1988.

Summary:

The Tax Court of Canada issued an oral judgment allowing a taxpayer's appeal. Later in the day, after reconsideration, the judge changed his mind and substituted an oral judgment dismissing the appeal. Unexplainedly a formal judgment issued allowed the appeal. This judgment was replaced by one dismissing the appeal. The taxpayer applied under rule 474 for a determination as to whether the judge erred.

The Federal Court of Canada, Trial Division, in a decision reported 11 F.T.R. 107, held that the initial oral judgment was not a formal written judgment under s. 171(4) of the Income Tax Act and until such time as it was, the Tax Court had authority to reconsider and vary the judgment, where there was a slip in drawing it up or to correctly express the manifest intention of the court. The court further held that the formal judgment could be replaced by an amended one where the original formal judgment did not express the manifest intention of the court. The taxpayer appealed.

The Federal Court of Appeal dismissed the appeal.

Practice - Topic 5419

Judgments and orders - Entry of judgments - The Federal Court of Appeal held that "... Until judgment is filed the pronouncement of a judge, even made in open court and in the presence of a registrar, is merely an expression of opinion and a declaration of intention, which in law has no decisive effect and therefore remains subject to reconsideration ... Only in extraordinary circumstances would a judge, who at the end of a hearing publicly announces his opinion and intended disposition of the case, would later present differing reasons and a completely different judgment - But he has an unfettered jurisdiction to do so if he remains seized of the matter, as obviously he does" - See paragraph 7.

Practice - Topic 5454

Judgments and orders - Operation and effect of - Oral judgments - The Federal Court of Appeal refuted any notion that an oral disposition has no effect as a judgment until put in writing - See paragraph 5.

Practice - Topic 5455

Judgments and orders - Operation and effect of - Writing - Requirement of - The Federal Court of Appeal held that in the absence of any specific provision empowering him to deliver judgment orally in open court, such as Federal Court Rule 337(1), a judge of a court of record can only dispose finally, on behalf of the court, of the matter he has been seized of by filing and entering a written decision - See paragraph 7.

Practice - Topic 6105

Judgments and orders - Amendment, rescission and variation of - Before judgment or order perfected or entered - [See Practice - Topic 5419 above].

Cases Noticed:

Fruehauf Trailor Co. v. McCrea, [1955] 3 D.L.R. 543, refd to. [para. 4].

Minister of National Revenue v. Sumar Mining Limited, 70 D.T.C. 6135, refd to. [para. 4].

Paper Machinery Limited and Gustaf Hellstrom v. J.O. Ross Engineering Corporation and Ross Engineering of Canada, Limited, [1934] S.C.R. 186, refd to. [para. 5, footnote 1].

In re Harrison's Share Under A Settlement; In re Williams' Will Trust; In re Ropner's Settlement Trusts, [1955] 1 Ch. 260, refd to. [para. 8].

Pittalis v. Sherefettin, [1986] 2 All E.R. 227, refd to. [para. 8].

Barell Enterprises, Re, [1972] 3 All E.R. 631; [1973] 1 W.L.R. 19 (C.A.), refd to. [para. 8, footnote 3].

Lunenburg, Municipality of the District of v. Public Service Commission of Bridgewater and Director of Assessment (1983), 59 N.S.R.(2d) 23; 125 A.P.R. 23; 34 C.P.C. 235, refd to. [para. 9].

Statutes Noticed:

Federal Court Rules, rule 337(1) [paras. 7-8, footnote 2].

Income Tax Act, S.C. 1970-71-72, c. 63, sect. 171(1), sect. 171(4) [para. 4].

Tax Court of Canada Act, sect. 17 [paras. 4, 7].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 26, para. 555 [para. 8, footnote 3].

Counsel:

James A. Butlin, for the appellant/ plaintiff;

Helen C. Turner, for the respondent/ defendant.

Solicitors of Record:

Butlin, Biggs & Coultry, Calgary, Alberta, for the appellant/plaintiff;

Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent/ defendant.

This appeal was heard before Heald, Mahoney and Marceau, JJ., of the Federal Court of Appeal, at Calgary, Alberta, on October 5, 1988. The decision of the Court of Appeal was delivered at Ottawa, Ontario, on October 19, 1988, by Marceau, J.