T-1780-89
Robert Austin Doyle (Plaintiff)
v.
Minister of National Revenue (Defendant)
INDEXED AS: DOYLE V. M.N.R. (T.D.)
Trial Division, Reed J.—Vancouver, September
14; Ottawa, September 21, 1989.
Income tax — Practice — Act s. 225.1(5) not requiring
abeyance letter be signed personally by taxpayer — Letter can
be signed by taxpayer's duly authorized agent — M.N.R. can
delegate s. 225.1(5) powers to Department official pursuant to
principles of implied delegation.
Agency — Practice in income tax matter — Abeyance letter
signed for taxpayer by agent — Sufficient authority granted
— Letter not excluded from agency agreement as not binding
settlement of dispute — Signing letter not acting as legal
counsel — Unnecessary to discuss cases cited as to apparent or
ostensible authority.
In February 1987, a Revenue Canada appeals officer wrote
the taxpayer's agent, H.N. Thill & Associates (Thill), seeking
the taxpayer's consent to have proceedings with respect to his
1984 tax return held in abeyance pending the outcome of
similar cases already before the Court. Consent was given in a
letter signed by an officer of Thill. Judgment in the other cases,
dismissing the taxpayers' actions, was rendered in January
1989. The Minister thereupon became entitled, pursuant to
subsection 225.1(5), to collect the taxes claimed to be owing.
The situation would have been otherwise had there been no
letter of abeyance.
In an effort to prevent the immediate collection of the
amounts assessed, the taxpayer argued that his agent did not
have authority to sign the abeyance agreement and that even if
authority had been granted, it was ineffective because the
statute provides that the abeyance agreement is between the
taxpayer and the Minister, neither of whom signed the relevant
documents.
Held, order to issue in accordance with reasons.
Upon examination of the circumstances of the case and of
the agency agreement between Thill and the taxpayer, there
was no doubt that Thill was the taxpayer's agent and had been
granted sufficient authority to sign the abeyance letter in
question. The letter did not constitute a binding settlement of a
dispute excluded from the authorization agreement. Nor can it
be said that the signing of a letter of abeyance by Thill was an
unauthorized act reserved to legal counsel.
The taxpayer was not personally required to sign. Subsection
225.1(5), invoked by the plaintiff, does not expressly or
impliedly exclude the possibility of agents signing on behalf of
taxpayers. And while the Department's practice was to require
that letters of abeyance be personally signed by the taxpayer,
this could not constitute estoppel nor could it dictate what the
interpretation of the applicable statutory provisions should be.
Neither the Minister nor an assistant deputy minister is
personally required to sign. It is clear that the Minister's
authority to enter into abeyance agreements pursuant to sub
section 225.1(5) is such as to be subject to an implied delega
tion rule. It is not a case requiring the personal attention of the
Minister. Indeed it would be unreasonable to require the Minis
ter to personally agree in writing with, on this issue alone, some
1,700 taxpayers. The agreements are not ones of sensitive
public policy.
Subsection 225.1(5) is not referred to in the "legislative
code" of delegation of section 900 of the Income Tax Regula
tions. This does not mean, however, that an assistant deputy
minister can be the only delegate of the Minister with respect
to that subsection: the common law principle of implied delega
tion still applies. The general authority conferred on assistant
deputy ministers does not detract from the ability to delegate
the Minister's powers under subsection 225.1(5) to officials of
the department of lower rank than A.D.M. The principles
allowing implied delegation to operate apply and that authority
has not been exceeded by allowing an appeals officer to sign the
letters seeking consent to abeyance.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Income Tax Act, S.C. 1970-71-72, c. 63, ss. 150(1)(d)
(as am. by S.C. 1985, c. 45, s. 85; 1986, c. 44, s. 2),
221(1)(/), 225.1(5) (as enacted by S.C. 1985, c. 45, s.
116), 225.2 (as enacted idem).
Income Tax Regulations, C.R.C., c. 945, s. 900(1),(2)(a)
(as am. by SOR/83-797, s. 1(1)), (b) (as am. by
SOR/88-219, s. 1(1)), (3) (as am. by SOR/87-470, s.
1(4)), (a),(b), (4) (as am. by SOR/82-7l1, s. 1),
(a),(b).
CASES JUDICIALLY CONSIDERED
APPLIED:
PS & E Contractors Ltd. v. R. (1989), 89 DTC 5067
(Sask. C.A.); Pica (F) et al v The Queen, [1985] 1 CTC
73 (Ont. S.C.); Woon, Bert W. v. Minister of National
Revenue, [ 1951] Ex.C.R. 18; (1950), 50 DTC 871.
DISTINGUISHED:
Fortier v. Minister of National Revenue, [1969] 2
Ex.C.R. 400; 69 DTC 5354; Moloney v. R. (1989), 89
DTC 5099 (F.C.T.D.).
REFERRED TO:
Freeman and Lockyer (a firm) v. Buckhurst Park Prop
erties (Mangal), Ltd., [1964] 1 All E.R. 630 (C.A.);
European Asian Bank A.G. v. Punjab & Sind Bank (No.
2), [1983] 1 W.L.R. 642 (C.A.); Woodhouse AC Israel
Cocoa Ltd SA y Nigerian Produce Marketing Co Ltd,
[1972] 2 All ER 271 (H.L.); Jensen v. South Trail
Mobile Ltd., [1972] 5 W.W.R. 7 (Alta. C.A.); Cypress
Disposal Ltd. v. Inland Kenworth Sales (Nanaimo) Ltd.,
[1975] 3 W.W.R. 289 (B.C.C.A.); Cumberland Proper
ties Ltd. v. Canada, [1989] 3 F.C. 390; 89 DTC 5333
(C.A.); Hawitt v. Campbell (1983), 46 B.C.L.R. 260
(C.A.).
COUNSEL:
S. K. Hansen for plaintiff.
J. Van Iperen, Q.C. for defendant.
SOLICITORS:
Thorsteinson, Mitchell, Little, O'Keefe &
Davidson, Vancouver, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
REED J.: There are two main issues in this case.
The first is whether subsection 225.1(5) [as enact
ed by S.C. 1985, c. 45, s. 116] of the Income Tax
Act, (R.S.C. 1952, c. 148 as amended [by S.C.
1970-71-72, c. 63, s. 1] to February 25, 1987)
requires that a taxpayer personally sign a letter of
abeyance or whether such can be signed by an
agent on the taxpayer's behalf. The second is
whether the Minister of National Revenue can
delegate his powers under that subsection to an
official of his Department. The decision in this
case is potentially applicable to a large number of
taxpayers.
Subsection 225.1(5) provides:
225.1.. .
(5) Notwithstanding any other provision in this section,
where a taxpayer has served a notice of objection under this
Act to an assessment or has appealed to the Tax Court of
Canada or the Federal Court — Trial Division from the
assessment and agrees in writing with the Minister to delay
proceedings on the objection or appeal, as the case may be,
until judgment has been given in another action before the Tax
Court of Canada, the Federal Court of Canada or the Supreme
Court of Canada in which the issue is the same or substantially
the same as that raised in the objection or appeal of the
taxpayer, the Minister may take any of the actions described in
paragraphs (1)(a) to (g) for the purpose of collecting the
amount assessed, or a part thereof, determined in a manner
consistent with the decision or judgment of the Court in the
other action at any time after the Minister notifies the taxpayer
in writing that
(a) the decision of the Tax Court of Canada in that action
has been mailed to the Minister,
(b) judgment has been pronounced by the Federal Court of
Canada in that action, or
(c) judgment has been delivered by the Supreme Court of
Canada in that action,
as the case may be. [Underlining added.]
The relevant facts are as follows. A letter (an
"abeyance letter") was sent, by Revenue Canada
on February 25, 1987, to H.N. Thill & Associates
("Thill"), Re: Robert A. Doyle. The letter sought
the taxpayer Doyle's consent to have proceedings
with respect to his 1984 tax return delayed. It was
proposed that proceedings be held in abeyance
pending the outcome of other cases which were
already before the Court. These other cases raised
the same issue as that which was the subject of the
dispute between the taxpayer and Revenue
Canada, i.e., deductions on account of advance
royalty payments for licences to use certain speed
reading materials. The letter seeking the taxpayer
Doyle's consent was returned to Revenue Canada
signifying consent that the proceedings with
respect to his return be held in abeyance. The
letter was signed on behalf of Mr. Doyle by Mr.
Sinclair, a director of Thill.
On January 20, 1989 a. judgment in the other
cases was rendered by Mr. Justice Joyal: Moloney
v. R. (1989), 89 DTC 5099 (F.C.T.D.). The judg
ment was not in the taxpayers' favour. An appeal
has been filed.
The Minister is now entitled, pursuant to sub
section 225.1(5), to collect the taxes which it is
claimed are owing by Mr. Doyle for his 1984
taxation year. Had there been no letter of abey
ance signed and had Mr. Doyle himself pursued
litigation, as a plaintiff, through the courts the
Minister would have been precluded from taking
collection action until the litigation was finally
disposed of at the appeal level.
Counsel for Mr. Doyle argues, with respect to
his client's situation, that: (1) there was never any
authority granted to Thill by the taxpayer to sign
an abeyance agreement on his behalf; (2) even if
such authority was granted it is ineffective because
the statute (subsection 225.1(5)) requires that an
abeyance agreement be with the taxpayer; (3) in
addition, subsection 225.1(5) requires that an
abeyance agreement be with the Minister and in
this case the relevant letter was not signed by the
Minister; it was signed by an officer of the
Appeals Division of Revenue Canada (Mr. Gunn).
Scope of Agency Agreement
With respect to counsel's first argument, I have
no doubt that Thill was the taxpayer's agent and
had been granted sufficient authority by Doyle to
sign the abeyance letter in question. The reason for
that conclusion will appear clear from the follow
ing facts, which facts set out the framework for all
three of counsel's arguments.
Thill prepared the taxpayer's 1983 tax return.
While Doyle signed that return personally the
address listed thereon as his own was Thill's. Thill
prepared Doyle's 1984 tax return and again the
address given as Doyle's was Thill's. These are not
crucial facts. They merely set the background and
demonstrate that Doyle was looking to Thill for
considerable guidance in the preparation and filing
of his tax returns.
On February 15, 1985, when Doyle signed his
1984 tax return, he also signed the following
authorization:
TO: H. N. Thill & Associates Inc.
22-1818 Cornwall Avenue
Vancouver, B. C.
The undersigned, in consideration of your acting herein,
hereby empowers you and your authorized representatives to
represent me as agent (any not by way of legal counsel or in
any other professional capacity) with Revenue Canada in
respect of any and all disputes arising from the filing of any
income tax returns on my behalf and any assessments or
reassessments resulting therefrom, and in each case including
the power to conclude a binding settlement of such disputes or
appeals based on oral or written instructions.
Revenue Canada wrote to Doyle personally
sometime prior to the end of April 1985 notifying
him that the Minister was disallowing the deduc
tions he had claimed in his 1984 tax return with
respect to the advance royalty payments for the
licensing of the speed reading materials. That
letter also stated that the Minister would be
assessing accordingly. Mr. Doyle responded, by
letter dated April 30, 1985:
Dear Sir,
I suggest, that you submit all further correspondence regard
ing my 1984/83 Tax Return to H. N. Till [sic] & Assoc. who
have assured me that they are filing a formal objection, but
were mystifyed [sic] by your thirty day requirement.
Yours
Robert A. Doyle
Thill wrote to Revenue Canada on May 3, 1985
sending a copy of the agency authorization which
Mr. Doyle had signed on February 15, 1985 and
informing the Department that no further
representations or submissions would be made at
that time, on behalf of Mr. Doyle. The letter also
asked that the Department please proceed with
assessment of Mr. Doyle's return "at the earliest
possible instant". An assessment was subsequently
made and a notice of objection with respect thereto
was filed on May 31, 1985. The notice of objection
was signed by the taxpayer personally. The
address given on that notice as the taxpayer's was
that of Thill. Thill was also described as the
taxpayer's "authorized agent".
The issue in dispute respecting the taxpayer's
1984 tax return was also a matter of dispute in
1 736 other tax returns. Negotiations took place
between Thill and Revenue Canada and it was
agreed that four test cases would be proceeded
with through the Federal Court. The fact that
some assessments were confirmed and others were
held in abeyance at the notice of objection stage is
not important for the purposes of this case.
A dispute then arose between Revenue Canada
and Thill concerning the appropriate signatory to
the abeyance letters. Revenue Canada took the
position that the letters of abeyance had to be
signed by the taxpayer personally. Thill took the
position that the agency authorizations which it
held from its clients were sufficient to allow Thill
to sign on the client's behalf. Mr. Gunn of Reve
nue Canada, attests as follows:
4. At all relevant times Thill took the position that Revenue
Canada was wrong in its position that the "abeyance letters"
had to be signed by the taxpayers and acted on the basis that
the abeyance letters were properly executed.
5. In the course of the next month I prepared abeyance letters
with respect to all the Notices of Objection held in abeyance
and send them to Thill. I had indicated to Thill and Mr. Bruce
Benzel in particular that the letter should be signed by the
taxpayers and not the representatives.
6. At no time did Thill or its employees agree with my position.
All abeyance letters were returned to me, including the letter
relating to Robert A. Doyle, a copy of which is attached to this
my Affidavit as Exhibit "A", signed by Thill.
7. At no time did I question the authority of Thill to act as
agent for Robert A. Doyle.
Mr. Doyle states that he was never informed
about the letter of abeyance, was never consulted
about it and did not know of its existence until a
few months ago. The evidence from Thill is that
they did not consult their clients before signing the
letters.
Counsel for the taxpayer argues that the author
ization of February 15, 1985 did not authorize
Thill to sign the letter of abeyance because the
abeyance letter constitutes a binding settlement of
a dispute which type of agreement is expressly
exempted from the authorization agreement.
Alternately, it is argued that the signing of the
letter of abeyance is acting "by way of legal
counsel" and as such is outside the scope of Thill's
authority as being expressly exempted from the
authorization agreement. Thirdly, it is argued that
even if the action taken by Thill does not fall
within the specific exemption clauses of the
authorization the signing of the letter can not be
held to have been authorized because that action
does not fall within the principal grant of authority
given by the agreement.
None of these arguments is convincing. A letter
of abeyance is not a "binding settlement of the
dispute". It merely holds matters in abeyance
pending the outcome of other litigation which
outcome may lead to the settlement of the taxpay
er's claim. But neither the letter of abeyance nor
the outcome of the other litigation determines the
specific rights or liabilities of the taxpayer who has
agreed to have the resolution of his or her dispute
delayed pending outcome of the other litigation.
Nor do I think that the signing a letter of abey
ance by Thill was acting "by way of legal coun
sel". It was acting on Doyle's behalf but not in a
capacity which required that only legal counsel
could act. With respect to counsel's third argu
ment, reference was made to Information Circular
IC 86-2R2, Guidelines for Tl Tax Return Pre-
parers, paragraphs 29 and 31. That guideline
states that Revenue Canada requires the filing of
an authorization before it will discuss a taxpayer's
return with anyone other than the taxpayer. That
requirement however is not a governing factor with
respect to the proper interpretation of the authori
zation agreement of February 15, 1985. The words
of the authorization govern. The authority granted
by those words is very broad: "to represent me as
agent ... with Revenue Canada in respect of any
and all disputes arising from the filing of any
income tax returns on my behalf and any assess
ments or reassessments resulting therefrom".
[Underlining added.] In my view there is no doubt
that these words encompassed the signing of a
letter of abeyance on Doyle's behalf.
Having come to the conclusion set out above it is
not necessary for me to discuss the various cases
on apparent or ostensible authority which were
cited to me: Freeman and Lockyer (a firm) v.
Buckhurst Park Properties (Mangal), Ltd., [1964]
1 All E.R. 630 (C.A.); European Asian Bank A.G.
v. Punjab & Sind Bank (No. 2), [1983] 1 W.L.R.
642 (C.A.); Woodhouse AC Israel Cocoa Ltd SA
v Nigerian Produce Marketing Co Ltd, [1972] 2
All ER 271 (H.L.); Jensen v. South Trail Mobile
Ltd., [1972] 5 W.W.R. 7 (Alta. C.A.); Cypress
Disposal Ltd. v. Inland Kenworth Sales (Nanai-
mo) Ltd., [1975] 3 W.W.R. 289 (B.C.C.A.);
Cumberland Properties Ltd. v. Canada, [1989] 3
F.C. 390; 89 DTC 5333 (C.A.); Hawitt v. Camp-
bell (1983), 46 B.C.L.R. 260 (C.A.).
Taxpayer Personally Required to Sign?
More difficult is the issue as to whether subsec
tion 225.1(5) requires the taxpayer to personally
sign the letter of abeyance. The argument is that
subsection 225.1(5) states that it must be the
"taxpayer" which agrees in writing with the Min
ister to delay proceedings and that that does not
authorize agreement being given by an agent on
the taxpayer's behalf. Counsel for the defendant
referred me to Fortier v. Minister of National
Revenue, [1969] 2 Ex.C.R. 400; 69 DTC 5354; a
decision not in his favour. In that case the Court
seemed to hold that a provision which required
that a copy of a Tax Appeal Board decision be sent
to the taxpayer was not satisfied when the decision
was sent to an agent of the taxpayer. In addition,
reference was made to the fact that the Depart
ment's position had always been that taxpayers
must personally sign such letters and that notices
of objection are always signed, as they were in this
case, by taxpayers personally.
Firstly, I note that subsection 225.1(5) does not
expressly state that agreements in writing to delay
proceedings cannot be signed by an agent of the
taxpayer. That subsection is not framed, for exam
ple, in a manner analogous to paragraph 150(1)(d)
[as am. by S.C. 1985, c. 45, s. 85; 1986, c. 44. s. 2]
where it is made clear that when the taxpayer is an
individual, tax returns must be signed by that
individual. Nor is it similar to a provision such as
225.2(1) [as enacted by S.C. 1985, c. 45, s. 116]
which specifies that it must be the taxpayer per
sonally who is dealt with except to the extent that
a specific alternative is expressly allowed.
Secondly, with respect to the Fortier case, it is
clear that the "agent" in that case was not in fact
an agent at the time the decision of the Tax
Appeal Board was sent — his mandate had
expired. The case therefore cannot be taken, on its
facts, for a decision dealing with a situation in
which an agent was acting for the taxpayer. Also,
Noël J. seemed to be saying at pages 407 Ex.C.R.;
5356 DTC of his decision that the statutory provi
sions (which required mailing of the decision to the
taxpayer) could be departed from if this was done
with the express consent of the parties.
Thirdly, with respect to the Department's prac
tice of requiring that taxpayers personally sign
letters of abeyance, it is clear, and was agreed by
both counsel, that such action cannot constitute
estoppel: Woon, Bert W. v. Minister of National
Revenue, [1951] Ex.C.R. 18; (1950), 50 DTC 871.
It may very well be that the Department's position
in this regard is taken for a great variety of
administrative reasons: the overriding one might
be the difficulties which arise in proving agency,
scope of authority, ostensible and apparent. What
ever the administrative imperatives might be
which dictate the conduct of departmental offi
cials, they do not dictate the interpretation of the
applicable statutory provisions. In summary, I
have been directed to no authority, either express
or implied, which requires that the use of the term
"taxpayer" in subsection 225.1(5) of the Income
Tax Act be interpreted so as to preclude a taxpay
er designating an agent to act on his or her behalf
for the purposes of that subsection. I do not think
the use of the term "taxpayer" in subsection
225.1(5) has the rigidity which counsel for the
plaintiff argues. In my view it should be interpret
ed as allowing an agent to sign on behalf of a
taxpayer providing the agency is well and truly
established.
Minister or Assistant Deputy Minister Personally
Required to Sign?
With respect to the third argument raised by
counsel, there is no disagreement that at common
law the powers accorded to a Minister under a
statute are frequently such that the authority to
delegate those powers is easily implied: PS & E
Contractors Ltd. v. R. (1989), 89 DTC 5067
(Sask. C.A.) esp. at page 5070 (2nd column); Pica
(F) et al y The Queen, [1985] 1 CTC 73 (Ont.
S.C.). Absent any statutory provisions I have no
doubt that the kind of authority described in sub
section 225.1(5) is such that it would be reason
able, indeed almost mandatory, to find that there
was an implied intention in the legislation to allow
the Minister to delegate that authority to the
officials of his or her department. The authority is
not such as requires personal attention or agree
ment of the Minister. Indeed, the thought that the
Minister should personally be required to agree in
writing with some 1 700 taxpayers (who are con
cerned about the issue to which this litigation
alone relates) seems clearly unreasonable. The
agreements contemplated by subsection 225.1(5)
are not ones of sensitive public policy; they merely
have for their purpose the efficient channelling of
legal disputes through the appeals division of the
Department of National Revenue and through the
courts. There is no good reason why abeyance
agreements have to be signed by the Minister
personally.
Applying the principles set out in the jurispru
dence it is clear that the Minister's authority to
enter into abeyance agreements pursuant to sub
section 225.1(5) is such as to be subject to an
implied delegation rule. However, paragraph
221(1) (f) of the Income Tax Act specifically
authorizes the making, by regulation, of delega
tions for the purposes of the Income Tax Act:
221. (1) The Governor in Council may make regulations
(I) authorizing a designated officer or class of officers to
exercise powers or perform duties of the Minister under this
Act,
Regulations have been enacted for this purpose.
I quote part of them [Income Tax Regulations,
C.R.C., c. 945, s. 900(1), (2)(a) (as am. by SOR/
83-797, s. 1(1)), (b) (as am. by SOR/88-219, s.
1(1)),(3) (as am. by SOR/87-470, s. 1(4)),
(a),(b),(4) (as am. by SOR/82-711, s. 1),(a),(b)]:
900. (1) An official holding a position of Assistant Deputy
Minister of National Revenue for Taxation may exercise all the
powers and perform all the duties of the Minister under the
Act.
(2) An official holding a position of Director-Taxation in a
District Office of the Department of National Revenue, Taxa
tion, may exercise the powers and perform the duties of the
Minister under
(a) sections 48, 224, 224.1, 224.3 and 233 of the Act;
(b) subsections 10(3) and (7), 13(6), 28(3), 45(3), 58(5),
65(3), 66(12.72), (12.73) and (14.4), 70(6), (9), (9.2), and
(9.4), 74(5), 83(3.1), 85(7.1), 91(2), 93(5.1), 96(5.1),
104(2), 109(5), 110(7), 116(2), (4) and (5.2), 125(4),
126(5.1), 127(10), (10.4) and (10.5), 127.53(3), 131(1.2),
149.1(15), 150(2), 153(1.1), 159(2),(4) and (5), 162(3),
164(1.2), 190.17(3), 220(4), (4.1), (4.2), and (5), 223(1),
225.2(1), 226(1), 227(10.5), 230(1), (1.1), (3), (7) and (8),
230.1(3) (with respect to the application of subsections
230(3), (7) and (8) of the Act), 231.2(1), 244(4) and 248(9)
of the Act;
(3) The Director General, Appeals Branch, the Director,
Appeals and Referrals Division, or the Directory, Policy and
Programs Division, of the Department of National Revenue,
Taxation, may exercise the powers and perform the duties of
the Minister under
(a) sections 174 and 179.1 of the Act; and
(b) subsections 164(4.1), 165(3) and (6) and 239(4) of the
Act.
(4) An official holding a position of Chief of Appeals in a
District Office or in a Taxation Centre of the Department of
National Revenue, Taxation, may exercise the powers and
perform the duties of the Minister under
(a) subsection 165(3) of the Act other than in respect of
appeals to the Federal Court; and
(b) subsections 165(6) and 239(4) of the Act.
Nowhere in these provisions is reference made
to subsection 225.1(5) of the Act.
The question in issue therefore is whether, in the
face of this "legislative code" of delegations the
common law principle of implied delegation has
any role left to play. The question is whether it
should be assumed that since Parliament has
accorded the Governor in Council authority to
delegate the Minister's powers and because the
Governor in Council has exercised that authority
that Parliament intended to remove the implied
authority to delegate which the Minister would
otherwise possess.
I note first of all that the regulation making
authority in subsection 221(1) is permissive:
221. (1) The Governor in Council may make regulations
(f) authorizing a designated officer .... [Underlining
added.]
Also, while assistant deputy ministers are
authorized by section 900 of the Regulation to
exercise all the powers of the Minister under the
Act, various directors general of the Department
are also empowered to exercise some of these same
powers. The specific empowering of officials below
the rank of assistant deputy minister to exercise
authority with respect to certain sections of the
Act does not detract from the general authority of
the assistant deputies to also exercise that power.
Nor would it detract from the authority of the
Minister to personally exercise the powers in ques
tion should he or she decide to do so. The whole
scheme is permissive.
As has already been noted, subsection 225.1(5)
is nowhere specifically dealt with in section 900 of
the Regulation. I have no doubt that the Minister's
power under that section can be exercised by an
assistant deputy minister pursuant to subsection
900(1) of the Regulation. The question remains
whether the failure to specifically deal with sub
section 225.1(5) in the regulations which follow
subsection 900(1) should be interpreted as mean
ing that an assistant deputy can be the only dele
gate of the Minister with respect to that subsec
tion. I am not persuaded that it does. I am not
persuaded that the general authority conferred on
the assistant deputy ministers detracts from the
ability to delegate the Minister's powers under
subsection 225.1(5) to officials of the department
of a lower rank than assistant deputy minister. It
may very well be, with respect to the specifically
enumerated sections in section 900 of the Regula
tion, that a scheme of delegation which accorded
directors general other than those specifically iden-
tified in the Regulation authority to exercise the
Minister's powers pursuant to a specific section
would be invalid as in conflict with the regulation.
But this issue does not have to be decided. With
respect to subsection 225.1(5) of the Act, it is my
view that the principles allowing implied delega
tion to operate apply and that that authority has
not been exceeded by allowing Mr. Gunn, an
appeals officer, to sign the letters seeking consent
to abeyance pursuant to subsection 225.1(5) of the
Income Tax Act.
An order will issue in accordance with these
reasons.
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.