Arnold H. Bornstein

The moving party, Ford, sought summary judgment on its appeal of a tax reassessment by the Minister of Finance.

The Minister had issued a Notice of Assessment in 2017 seeking repayment of an excess refund of over $6.2 million from the 1999 taxation year.

Ford argued the reassessment was statute-barred under subsection 82(11) of the Corporations Tax Act.

The court agreed, finding that unlike other provisions, subsection 82(11) did not include the phrase 'at any time,' meaning the normal assessment period applied.

The court granted summary judgment in favour of Ford, declaring the reassessment statute-barred.

The appellant corporation claimed a tax refund resulting from carrying back non-capital losses to a previous taxation year.

After a successful objection to a reassessment, the appellant received the refund but was denied the enhanced rate of interest under s. 82(5) of the Corporations Tax Act.

The appellant brought a Rule 21 motion to determine whether 'tax payable' under s. 82(5) must take into account a deduction from a loss carried back.

The court answered the question in the negative, finding that the specific deeming provision in s. 79(7) applies to the calculation of interest under s. 82(5), meaning tax payable is calculated without regard to subsequent year tax losses.

The appeal was effectively dismissed in favour of the respondent Crown.