Federal Appeal


Taxation

Income tax

Subsection 242(1) of Business Corporations Act (Ont.) does not authorize dissolved corporation to initiate civil proceeding.

Appellant was incorporated in 2000 pursuant to Business Corporations Act (Ont.) and dissolved in 2007. In 2010, Minister of National Revenue issued notice of assessment against appellant in respect of tax indebtedness of related corporation. Minister confirmed assessment when appellant objected. Appellant filed notice of appeal in Tax Court. Tax Court held that appellant lacked capacity to initiate appeal and adjourned appellant’s pending appeal to allow appellant to revive its corporate status. Appellant instead appealed Tax Court’s order. Section 242(1) of Act provides that civil, criminal or administrative actions or proceedings may be brought against corporation as if corporation had not been dissolved. Tax Court distinguished previous decisions on basis that Act was subsequently amended. Appeal dismissed. No distinction of substance between words “in the same manner and to the same extent as if it had not been dissolved” and “shall be deemed for all purposes to have never been dissolved”. Previous decisions, however, were no longer good law. Procedure differed significantly from that now in place and in place at time of decisions. It was no longer correct to say that filing of notice of appeal in Tax Court does not constitute initiation of legal proceeding. Fact that legal proceeding is directed against Minister’s assessment does not detract from conclusion that by filing notice of appeal in Tax Court, one institutes legal proceeding. Subsection 242(1) of Act does not authorize dissolved corporation to initiate civil proceeding. Tax Court did not err by adjourning appeal and requiring appellant to revive its corporate status so it could continue the appeal.

1455257 Ontario Inc. v. R. (Mar. 30, 2016, F.C.A., Eleanor R. Dawson J.A., D.G. Near J.A., and Richard Boivin J.A., A-319-15) Decision at 254 A.C.W.S. (3d) 975 was affirmed. 264 A.C.W.S. (3d) 255.

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