T-2862-75
Royal American Shows, Inc. (Applicant)
v.
Minister of National Revenue (Respondent)
Trial Division, Gibson J.—Vancouver, September
15, 1975.
Income tax—Prerogative writs—Seizure—Jurisdiction of
Trial Court—Income Tax Act, S.C. 1970-71-72, c. 63, s.
231(1)(d)—Federal Court Act, s. 18.
A seizure under section 231(1) (d) of the Income Tax Act has
some judicial element, though no duty to afford a hearing is
imported, in that the official is obliged to decide questions of
law or fact affecting an individual's rights. Such an official is
therefore under a duty to act fairly; consequently, an act
purportedly done under such section is subject to Trial Division
jurisdiction to review. Respondent is a proper party; for pur
poses of these proceedings, it is a federal board, commission or
other tribunal within the meaning of section 18. The Court of
Appeal has no jurisdiction in first instance under section 28.
Attorney General of Canada v. Cylien [1973] F.C. 1166,
Howarth v. National Parole Board [1973] F.C. 1018,
aff d (1975) 18 C.C.C. (2nd) 385, applied.
APPLICATION.
COUNSEL:
I. Pitfield for applicant.
G. O. Eggertson for respondent.
SOLICITORS:
Thorsteinsson, Mitchell, Little, O'Keefe &
Davidson, Vancouver, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
GIBSON J.: This is an application by the
respondent for an order dismissing the application
of the applicant herein dated the 16th of August
1975, on the five grounds set out in the notice,
namely:
1. That the seizure of the subject matter of the
application is the result of an administrative act
of Edmund Michael Swartzack and is not sub
ject to the jurisdiction of this Honourable Court
under section 18 of the Federal Court Act,
R.S.C. 1970, (2nd Supp.) c. 10 or any other
provision of the said Act.
2. That neither the respondent nor the person
effecting the seizure in question, namely
Edmund Michael Swartzack, are for the pur
poses of these proceedings a federal board, com
mission or other tribunal within the meaning of
section 18 of the Federal Court Act, and accord
ingly this Honourable Court has no jurisdiction
in these proceedings.
3. That if Edmund Michael Swartzack in
making the said seizure was acting as a federal
board, commission or other tribunal within the
meaning of section 18 of the Federal Court Act,
this Honourable Court has no jurisdiction to
hear these proceedings by reason of section 28 of
the Federal Court Act.
4. The proceedings herein are against the wrong
party in that the respondent was not the person
who made the seizure in question and no order
of prohibition, certiorari, or any declaratory,
judgment can be made against the respondent in
these proceedings arising out of the seizure in
question.
5. That any proceedings against the respondent
in this Honourable Court must be by action,
section 18 of the Federal Court Act not applying
to the respondent as he was not in these proceed
ings acting in other than an administrative
capacity in delegating powers to the person
effecting the seizure in question, and that party
is not a party to these proceedings.
The applicant by its motion dated the 16th of
August 1975, asked for an order of prohibition
against the respondent, for an order of certiorari in
respect of certain seizure or seizures made by the
respondent and for an order directing the respond
ent to deliver up to the applicant all the property
seized.
The respondent seized certain business docu
ments of the applicant at the Edmonton Police
Station on the 29th of July 1975, purportedly
under the authority of section 231(1)(d) of the
Income Tax Act. The investigator of the respond
ent was Edmund M. Swartzack.
As noted, firstly, this act of seizure, purportedly
under section 231(1) (d) of the Income Tax Act,
counsel for the respondent says was an administra
tive act done by an agent of the respondent pursu
ant to such statutory authority, and that such act
is not reviewable by this Court.
Speaking generally, the exercise of the power of
"search and seizure" has been traditionally subject
to review by a court. The act of taking away a
person's property has always been subject to such
a salutary restriction so that such an act done by
any person will be done fairly.
The relevant jurisprudence in the consideration
of whether or not a seizure under section
231(1) (d) of the Income Tax Act is an act with
some "judicial" element, and not a pure adminis
trative act, is difficult. But, after careful consider
ation of the authorities in relation to the subject
proceedings, and in the light of the said traditional
attitude toward seizures and searches, I am of the
opinion that the act of seizure under the authority
of that subsection has some judicial element, and
that this is so even though the subsection does not
expressly or impliedly import a duty to afford a
hearing, it being sufficient that the official decid
ing and effecting such a seizure is obliged in doing
so to decide questions of law or fact affecting an
individual's "rights" and thereby exercises a "judi-
cial" discretion; and that a person purporting to
exercise such a power of seizure is therefore under
a duty to act fairly ("judicially") solely within the
ambit of authority of that subsection; and that as a
consequence any act done by a person purportedly
under such authority is subject to review by the
Trial Division of this Court at least on the issue of
want or excess of jurisdiction (which is the rele
vant issue in these proceedings). (Cf S. A. de
Smith, 3rd edition, Judicial Review of Adminis
trative Action, pages 346-7.)
Secondly, I am also of the opinion that the
respondent is a proper party, and for the purpose
of these proceedings is a federal Board, commis
sion or other tribunal within the meaning of sec
tion 18 of the Federal Court Act. (See definition
in section 2(g) of the Act.)
Thirdly, I am also of the opinion that the Court
of Appeal of the Federal Court has no jurisdiction
in the first instance under section 28 of the Feder
al Court Act in relation to the subject proceedings.
(Cf. The Attorney General of Canada v. Cylien
[1973] F.C. 1166 and Howarth v. The National
Parole Board [1973] F.C. 1018.)
Finally, I am also of the opinion that Edmund
Swartzack is an agent of the respondent and the
respondent therefore is a proper party as his prin
cipal, and these proceedings against the respondent
are by action as that word is defined in section
2(b) of the Rules of this Court.
The motion is therefore dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.