Qureshi v. MNR, 79 DTC 5161, [1979] CTC 216 (FCTD)

Mahoney, J:—On consent, the style of cause herein was amended at the hearing to that appearing above and the originating notice of motion was amended accordingly. The plaintiffs seek an order in the nature of mandamus requiring the defendant to “lift” third party demands under section 224 of the Income Tax Act to permit payment to Dr Qureshi of a lump sum of $20,000 and further sums of $5,200 per month. The lump sum is required to meet existing and future obligations including $4,000 to furnish apartments for himself in Sydney, Nova Scotia, and for his wife and child in the Netherlands and $11,250 to retain legal counsel in Canada, the United States and Pakistan. The monthly amount is needed to meet business and personal expenses including $1,200 to maintain his wife and child in the Netherlands and $700 to maintain another child in Pakistan. They also seek an order requiring the defendant to provide Dr Qureshi with copies of documents seized under section 231.

Assessments issued on February 2, 1979, establish Dr Qureshi’s personal income tax liability, including penalties and interest, at $76,393.89 for 1975, $36,715.01 for 1976 and $50,727.23 for 1977 with nothing having been paid on account thereof. S Qureshi Limited is a company controlled by Dr Qureshi. Marleen and Rashda Qureshi are, respectively, his wife and first cousin. As a result of the third party demands $16,529.89 has been paid to the defendant and a further $64,500 in accounts and deposits in the names of the plaintiffs are attached but payment by the third party or parties has not been demanded. Dr Qureshi has posted $17,000 bail in connection with his prosecution on a number of charges under section 239 of the Act arising out of his 1975, 1976 and 1977 income tax returns. Between September 19 and December 9, 1978, Dr Qureshi and S Qureshi Limited transferred Canadian and foreign funds aggregating $116,815.75 out of Canada to accounts of Dr Qureshi, Marleen Qureshi and Rashda Qureshi in the Netherlands, Great Britain and Pakistan.

Dr Qureshi, an anaesthetist, practising at Sydney, Nova Scotia, was paid $162,642.57 by the Nova Scotia Medical Services Insurance Plan in 1978. His practice is largely carried on in the hospital and he is able to continue it notwithstanding that he has closed his office. He has, however, discontinued billing the provincial plan since a third party demand was delivered to it.

The plaintiffs want the Court to order the defendant to take a course of action which, the plaintiffs say, will make it possible for Dr Qureshi to meet his tax liability in an orderly fashion. Their counsel referred to it as a form of equitable relief. One might question whether, on the facts, the Court ought to grant equitable relief if it were available. Be that as it may, while the validity of a third party demand may be challenged in this Court, that is not what this application purports to do. Rather it is the purely administrative decision to issue and maintain the demands that is questioned. It is entirely up to the Minister to decide whether that course of action is the one most likely to achieve the optimum result from his point of view. It is not a decision subject to review under section 18 of the Federal Court Act.

As to his records, Dr Qureshi’s right of access is defined by subsection 231(6) of the Act. They are physically located at the District Taxation Office at Sydney. There is no basis, on the material before me, to conclude that he is not being fully afforded the access to them that is provided by law. The privilege alleged in respect of certain of those records, if it exists, is a privilege to be asserted by his patients, not Dr Qureshi.

JUDGMENT

The application is dismissed with costs.