PRACTICE
Judgments and Orders
Reversal or Variation
Tax Court of Canada dismissing with costs appeal of Dupont Canada Inc. from income tax assessment relating to 1988 taxation year—Dupont’s appeal to F.C.A. allowed with costs—Notice of appeal filed by Dupont for order amending April 22, 2001 order to include costs in Tax Court—Crown filing no response to notice of motion, time for doing so expired—In appeal from Tax Court judgment, F.C.A. may make any order Tax Court could have made, including, if Tax Court judgment reversed, order for costs in relation to Tax Court proceedings—Dupont’s notice of appeal against Tax Court decision stating Tax Court costs would be sought—No evidence Tax Court costs were sought at hearing—Present situation neither governed by Federal Court Rules, 1998, r. 399 or case of clerical mistake, error, omission within scope of r. 397(2)—Therefore, motion could be based only on r. 397(1)—In order to justify amendment under r. 397(1), Court must be satisfied matter of Tax Court costs should have been dealt with but overlooked, accidentally omitted—R. 397(1) permitting correction of mistakes made by Court but not intended to relieve against mistake by counsel in failing to bring matter to Court’s attention—April 12, 2001 order granted precisely relief sought by Dupont as successful party—Tax Court costs not granted herein as not requested—R. 397(1) could not justify amending order—Motion dismissed—Federal Court Rules, 1998, SOR/98-106, rr. 397, 399.
Dupont Canada Inc. v. Canada (A-527-99, 2002 FCA 307, Sharlow J.A., order dated 30/8/02, 6 pp.)