Minister of National Revenue v. Coopers and Lybrand, 78 DTC 6528, [1978] CTC 829, [1979] 1 SCR 495

Dickson, J:—Coopers and Lybrand, chartered accountants, brought a section 28 application to the Federal Court of Appeal for an order reviewing and setting aside the decision or order of the Director- General, Special Investigations Directorate, Department of National Revenue, Taxation, and His Honour Judge Carl Zalev, Judge of the County Court of the County of Essex. The impugned decision or order authorized the entry and search of offices of Coopers and Lybrand and seizure of certain documents in possession of that firm. The authorization was issued pursuant to subsections 231(4) and (5) of the Income Tax Act, SC 1970-71-72, c 63, as amended, which read as follows:

(4) Where the Minister has reasonable and probable grounds to believe that a violation of this Act or a regulation has been committed or is likely to be committed, he may, with the approval of a judge of a superior or county court, which approval the judge is. hereby empowered to give on ex parte application, authorize in writing any officer of the Department of National Revenue, together with such members of the Royal Canadian Mounted Police or other peace officers as he calls on to assist him and such other persons as may be named therein, to enter and search, if necessary by force, any building, receptacle or place for documents, books, records, papers or things that may afford evidence as to the violation of any provision of this Act or a regulation and to seize and take away any such documents, books, records, papers or things and retain them until they are produced in any court proceedings.

(5) An application to a judge under subsection (4) shall be supported by evidence on oath establishing the facts upon which the application is based.

It will be noted that in enacting subsections 231(4) and (5) Parliament prescribed two conditions which must be satisfied prior to authorization of any entry, search or seizure namely: (i) belief by the Minister of National Revenue on reasonable and probable grounds that a violation of the Income Tax Act, or a regulation thereunder, has been committed, or is likely to be committed; and (ii) approval by a judge of a superior or county court upon an application (which may be ex parte), supported by evidence on oath establishing the facts upon which the application is based.

According to the supporting affidavits, Collavino Brothers Construction Company Limited built a private residence for one Dan. Bryan at a cost of $90,397, but charged Bryan, pursuant to a written contract, only $43,000. It is alleged that the shortfall of $47,397 was added to the cost of a plant addition which Collavino was constructing for Kendan Manufacturing Limited, a company of which Mr Bryan was President and substantial shareholder. The position of the Minister is that as a result of the undercharge and overcharge, an undeclared benefit was conferred by Kendan on a shareholder, Bryan, and, at the same time, Kendan was placed in the position of being able to claim capital cost allowance on an amount greater than that to which Kendan would otherwise have been entitled.

Two points should be noted here. Firstly, Coopers and Lybrand is a well-known and reputable firm of chartered accountants, and there is no suggestion that the firm is in any way implicated in a violation of the Income Tax Act if, indeed, there was a violation. Secondly, Coopers and Lybrand do not dispute that, upon the evidence disclosed in the affidavits filed in support of the application to Judge Zalev, there were reasonable and probable grounds for belief on the part of the Minister that a violation of the Income Tax Act had been committed by Bryan and by Kendan. The complaint is that the form of authorization, although conforming precisely to the wording of the latter part of subsection 231(4), was so broad as to authorize seizure of all documents, of whatever nature, in the possession of Coopers and Lybrand, related to the affairs of their client, Collavino. It is urged that the form of authorization should have been limited to seizure of documents which might afford evidence as to the violation which formed the basis of the application for approval of the authorization, viz, documents related to the dealings between Collavino, Dan Bryan, and Kendan concerning the construction of the Bryan residence and the construction of the addition to the plant of Kendan. That contention was accepted by a majority of the Federal Court of Appeal, who set aside the authorization, and referred the matter back to the Director- General and to Judge Zalev for the issuance of a limited authorization.

In this Court argument centred, not upon whether the authorization should have been so limited, but upon the more fundamental question of Federal Court jurisdiction and whether the Federal Court of Appeal was empowered to entertain the section 28 application brought by Coopers and Lybrand.

Section 28 jurisdiction to hear and determine an application to review and set aside extends only to:

. . . a decision or order other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made in the course of proceedings before a federal board, commission or other tribunal.

The convoluted language of section 28 of the Federal Court Act has presented many difficulties, as the cases attest, but it would seem clear that jurisdiction of the Federal Court of Appeal under that section depends upon an affirmative answer to each of four questions:

(1) Is that which is under attack a “decision or order” in the relevant sensé?

(2) If so, does it fit outside the excluded class, ie is it ‘"other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis”?

(3) Was the decision or order made in the course of “proceedings”?

(4) Was the person or body whose decision or order is challenged a “federal board, commission or other tribunal” as broadly defined in paragraph 2(g) of the Federal Court Act?.

In determining jurisdiction in the case at bar, one must consider separately the decision of the Minister and the order of the judge. In respect of the Minister’s decision, the crucial question is question

(2) and, in respect of the judge’s order, question (4).

Traditionally, decisions of a judicial nature and decisions of an administrative nature have been seen as antithetic, judicial decisions being those made by the courts, and administrative decisions being those made by other than courts, such as government departments and officials. Traditionally, the courts have taken the position that decisions were reviewable if they were made by judicial persons or bodies, or by quasi-judicial boards or tribunals, ie, analogous to courts. The growth of certiorari led naturally from control of inferior courts to control of administrative agencies.

Government ministries and agencies carry out a different form of work than that done by the courts. They do not simply take on closely analogous functions. Their primary concern is with policy objectives, rather than adjudication inter partes, in regulating relations between individuals and government in the distribution of benefits. The dichotomy between judicial and administrative is still reasonably easy to discern but the great growth of government at all levels, the proliferation of government agencies, and increased government involvement in social and economic affairs have all tended to render classification more difficult. There is much overlap. Administrative decisions and orders frequently subsume the judicial and quasi-judicial. Section 28 of the Federal Court Act expressly recognizes that some decisions or orders of an administrative nature are required by law to be made on a judicial or quasi-judicial basis; superimposed upon the administrative and institutional decision-making process of an official may be the duty to act judicially.

Accordingly, administrative decisions must be divided between those which are reviewable, by certiorari or by section 28 application. or otherwise, and those which are non-reviewable. The former are conveniently labelled “decisions or orders of an administrative nature required by law to be made on a judicial or quasi-judicial basis’’, the latter “decisions or orders not required by law to be made on a judicial or quasi-judicial basis.” It is not only the decision to which attention must be directed, but also the process by which the decision is reached.

Before considering the criteria which, in my view, serve to identify a judicial or quasi-judicial act, reference may be made to two cases decided in this Court and to one case decided in the English courts. The first is Guay v LaFleur, [1965]SCR 12; [1964] CTC 350; 64 DTC 5218;, in which an officer of the Department of National Revenue was authorized by the Deputy Minister, pursuant to subsection 126(4) of the Income Tax Act, RSC 1952, c 148, to. make an inquiry into the affairs of the respondent and others. The respondent was denied the right to be present and represented by counsel during the examination of persons summoned by the investigator. The refusal was upheld in this Court. The Court, in effect, held that no judicial power was being exercised against those under investigation. Mr Justice Abbott, who delivered the judgment of six members of the Court, held that the investigation was a purely administrative matter which could neither decide nor adjudicate upon anything. He further held that it was not a judicial or quasi-judicial inquiry, but a private investigation at which the respondent was not entitled to be present or represented by counsel. He had this to say, at 16-17:

The power. given to the Minister under subsection 126(4) to authorize an enquiry to be made on his behalf, is only one of a number of similar powers of enquiry granted to the Minister under the Act. These powers are granted to enable the Minister to obtain the facts which he considers necessary to enable him to discharge the duty imposed on him of assessing and collecting -the taxes payable under the Act. The taxpayer’s right is not affected until an assessment is made. Then all the appeal provisions mentioned in the Act are open to him.

Mr Justice Cartwright said, at 17:

The function of the appellant under the terms of his appointment is simply to gather information; his duties are administrative, they are neither judicial nor quasi-judicial.

There are, of course, many administrative bodies which are bound by the maxim “audi alteram partem” but the condition of their being so bound is that they have power to give a decision which affects the rights of, or imposes liabilities upon, others.

Mr Justice Hall, although in dissent, agreed (19) that the investigator was not acting in a judicial capacity, or performing a judicial function.

In Ft v Randolph (1966), 56 DLR (2d) 283, this Court held that the power to suspend mail services, exercisable upon suspicion of criminal activity, pending a final determination, did not attract the rules of natural justice.

In Wiseman v Borneman, [1971] AC 297, it was decided that a tribunal established for the purposes of section 28 of the Finance Act, 1960, was not bound to observe the rules of natural justice, nor to give the taxpayer the right to see and comment upon material adverse to the taxpayer placed before the tribunal by the Commissioners of Inland Revenue. In the course of his speech, Lord Reid had this to say, at 308:

It is, I think, not entirely irrelevant to have in mind that it is very unusual for there to be a judicial determination of the question whether there is a prima facie case. Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case, but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party.

The quoted passage was adopted in the later income tax case of Peariberg v Varty (Inspector of Taxes), [1972] 1 WLR 534. In neither case was the function of the official classed as judicial. It was administrative to the extent that the taxpayer had no right to be present or to be heard.

Whether an administrative decision or order is one required by law to be made on a judicial or non-judicial basis will depend in large measure upon the legislative intention. If Parliament has made it clear that the person or body is required to act judicially, in the sense of being required to afford an opportunity to be heard, the courts must give effect to that intention. But silence in this respect is not conclusive. At common law the courts have supplied the legislative omission—see Byles, J in Cooper v Wandsworth Board of Works (1863), 14 CB (NS) 180, 194—in order to give such procedural protection as will achieve justice and equity without frustrating parliamentary will as reflected in the legislation.

As Tucker, LJ observed in Russell v Duke of Norfolk, [1949] 1 All ER 109 (CA), 118:

There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.

It is possible, I think, to formulate several criteria for determining whether a decision or order is one required by law to be made on a judicial or quasi-judicial basis. The list is not intended to be exhaustive.

(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?

(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?

(3) Is the adversary process involved?

(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?

These are all factors to be weighed and evaluated, no one of which is necessarily determinative. Thus, as to (1), the absence of express language mandating a hearing does not necessarily preclude a duty to afford a hearing at common law. As to (2), the nature and severity of the manner, if any, in which individual rights are affected, and whether or not the decision or order is final, will be important, but the fact that rights are affected does not necessarily carry with it an obligation to act judicially. In Howarth v National Parole Board, [1976] 1 SCR 453, a majority of this Court rejected the notion of a right to natural justice in a parole suspension and revocation situation. See also Martineau and Butters v Matsqui Institution Inmate Disciplinary Board, [1978] 1 SCR 118.

In more general terms, one must have regard to the subject matter of the power, the nature of the issue to be decided, and the importance of the determination upon those directly or indirectly affected thereby: see Durayappah v Fernando, [1967] 2 AC 337. The more important the issue and the more serious the sanctions, the stronger the claim that the power be subject in its exercise to judicial or quasi-judicial process.

The existence of something in the nature of a lis inter partes and the presence of procedures, functions and happenings approximating those of a court add weight to (3). But, again, the absence of procedural rules analogous to those of courts will not be fatal to the presence of a duty to act judicially.

Administrative decision does not lend itself to rigid classification of function. Instead, one finds realistically a continum. As paradigms, at one end of the spectrum are rent tribunals, labour boards and the like, the decisions of which are eligible for judicial review. At the other end are such matters as the appointment of the head of a Crown corporation, or the decision to purchase a battleship, determinations inappropriate to judicial intervention. The examples at either end of the spectrum are easy to resolve, but as one approaches the middle the task becomes less so. One must weigh the factors for and against the conclusion that the decision must be made on a judicial basis. Reasonable men balancing the same factors may differ, but this does not connote uncertainty or ad hoc adjudication; it merely reflects the myriad administrative decision-making situations which may be encountered to which the reasonably well-defined principles must be applied.

Professor D J Mullan expressed the matter in the folowing language in a thoughtful article Fairness: the New Natural Justice? (1975), 25 UTLJ 280, 300:

Why not deal with problems of fairness and natural justice simply on the basis that, the nearer one is to the type of function requiring straight law/fact determinations and resulting in serious consequences to individuals, the greater is the legitimacy of the demand for procedural protection but as one moves through the spectrum of decision-making functions to the broad, policy-oriented decisions exercised typically by a minister of the crown, the content of procedural fairness gradually disappears into nothingness, the emphasis being on a gradual disappearance not one punctuated by the unrealistic impression of clear cut divisions presented by the classification process?

I should like now to evaluate each of the four criteria, which I have outlined, in relation to the decision of the Minister of National Revenue to authorize search and seizure pursuant to subsection 231(4) of the Income Tax Act:

(1) There is nothing in the language in which the Minister’s functions are conferred or in the general context which indicates a duty to notify the. taxpayer or any other person, or to hold a hearing, before seeking approval of authorization to enter, search and seize. On the contrary, Parliament substituted for the rules of natural justice the objective test that the Minister, before acting, have reasonable cause to believe that a violation of the Act or regulation had been committed or was likely to be committed. See Lord Reid in Ridge v Baldwin, [1964] AC 40 (HL), 78.

Recognizing that a right of search is in derogation of the principles of the common law, and open to abuse, Parliament also built into the legislation an immediate review of the ministerial decision by interposing a judge between the revenue and the taxpayer. The judge sits to scrutinize [with utmost care] the intended exercise of ministerial discretion. Lacking judicial approval the ministerial decison is without effect. Indication of parliamentary intention to deny the taxpayer the right to be heard at this stage, is the statement in subsection 231(4) that the judge is empowered to give approval on an ex parte application.

I take it that Parliament concluded, perhaps not unreasonably, that the imposition of procedural steps additional to those spelled out in subsection 231(4) would frustrate the object of the section conferring the power and obstruct the taking of effective investigatory action. It obviously considered the public interest entailed in enforcement and the private interest affected by search and seizure, and concluded that procedural fairness was achieved by the section as drafted. For myself, I do not know what additional procedural protection could be given without frustrating parliamentary intent.

(2) The ministerial decision does effect rights even though such decision requires confirmation. It is wrong in my opinion to say that because a decision requires confirmation, rights therefore are not affected. Rights are affected when premises are entered and documents seized even though the Minister does not make any final determination of rights or duties.

(3) The decision of the Minister does not involve the adversary process. It is not the “triangular” case of A being called upon to resolve a dispute between B and C. There is a dispute but not in an adversarial sense. The analogy of a court is entirely inappropriate. There are no curial procedural rules imposed by the legislation.

(4) The governing legislation is silent as to substantive rules to be observed in individual cases.

When one places in the balance the responses to the four questions, the result is a modified "yes” to question (2) and a "nil” return to each of the other three criteria, leading to the conclusion that the Minister’s administrative and executive decision is not required to be made on a judicial or quasi-judicial basis.

Viewed from the broader perspectives of power, issue, and sanctions, it is difficult to conceive that the conclusion could be otherwise. The Minister is not exercising judicial power. I did not understand counsel for Coopers and Lybrand to argue for more procedural protection than that provided by subsection 231(4), or to urge that the affected taxpayers should have been consulted before the Minister sought judicial approval of the authorization to enter. The argument was made that the ministerial decision, and the judicial approval, were based upon the same material, the latter being a judicial act, so also the former. Superficially, this argument is attractive, but I do not think it can prevail.

The functions and powers of the Minister, and those of the judge, are entirely different. In carrying out the responsibilities with which he is entrusted under the Income Tax Act, the Minister discharges duties which are fundamentally administrative: He is invested with investigatory powers, including the right to audit, to request information and production of documents, and the right to authorize the conduct of an inquiry. Additional to these rights is the right conferred by subsection 231(4) to authorize the entry and search of buildings. The power he exercises under subsection 231(4) is properly characterized as investigatory, rather than adjudicatory. He will collect material and advice from many sources. In deciding whether to exercise the right last mentioned, he will be governed by many considerations, dominant among which is the public interest and his duty as an executive officer of the government to administer the Act to the best of his ability. The decision to seek authority to enter and search will be guided by public policy and expediency, having regard to all the circumstances. The powers which the judge exercises are judicial when in review of ministerial administrative discretion.

It would be unusual to have available a review procedure prior to the application to the judge, because, in the absence of judge’s approval, any decision on the part of the Minister to authorize seizure of documents is manifestly without effect. The judge’s approval is the control on the Minister’s decision, while any further recourse to the courts is to serve as a control on the judge’s decision. This would appear to be a sensible reading of subsection 231(4).

I am satisfied that in giving an authorization under subsection 231(4) of the Income Tax Act, the Minister’s actions are of an administrative nature, and that no obligation rests at law upon the Minister to act on a judicial or quasi-judicial basis. Hence the ministerial decision falls outside section 28 of the Federal Court Act and is not subject to review by that court.

Jurisdiction in respect of the decision of the judge stands on a different footing. Acting pursuant to section 231 of the Income Tax Act, he is discharging his institutional role as an impartial arbiter according to the stylized procedures and restraints of a court. The definition of “federal board, commission or other tribunal” in paragraph 2(g) expressly excludes persons appointed under section 96 of the British North America Act, 1867. Judge Zalev is such a judge. The vexing problem of whether a section 96 judge is acting under the relevant legislation in the capacity of judge, or as persona designate, arose in Herman v Deputy Attorney General of Canada, [1978] CTC 728; 78 DTC 6456. In reasons for judgment in Herman, recently delivered, I sought to canvass the governing authorities, which I will not again attempt. Upon the authorities, I concluded that a judge acts as persona designate only if “exercising a peculiar, and distinct, and exceptional jurisdiction, separate from and unrelated to the tasks which he performs from day-to-day as a judge, and having nothing in common with the Court of which he is a member.” A judge does not become persona designete merely through the exercise of powers conferred by a statute other than the provincial Judicature Act or its counterpart. Given its widest sweep, section 28 could make subject to review by the Federal Court of Appeal, decisions or orders of provincial federally-appointed judges, pursuant to such federal enactments as the Criminal Code, the Divorce Act, or the Bills of Exchange Act. That could not have been intended.

It would seem to have been the will of Parliament, in enacting the concluding words of paragraph 2(g) of the Federal Court Act, that Ordinarily the acts of federally-appointed provincial judges, pursuant to authority given to them by federal statutes, will not be subject to supervision by the Federal Court of Appeal.

In Herman, the order under attack was one made by a section 96 judge, pursuant to section 232 of the Income Tex Act, and related o solicitor-client privilege. The Court concluded that the judge was acting qua judge, and not as persona designate. Although there are obvious points of difference, much of the reasoning in Herman applies with equal force in the present case leading to the conclusion that Judge Zalev was not a “federal board, commission or other tribunal.”

The close functional relation between section 231 and section 232 of the Income Tax Act, and the decision in Herman as to section 232, suggest that the same result should be reached in respect of the judge acting under section 231.

In my opinion, the Federal Court of Appeal did not have a right of review in the case at bar. Whether an appeal lies to the provincial courts from the authorization of the Minister and approval of a judge, pursuant to subsection 231(4) of the Income Tax Act, is a question I would wish to leave open as it does not arise for decision in the present appeal. I would equally wish to leave for another occasion the question whether recourse could be had to replevin, or to one of the prerogative writs.

I would allow the appeal, set aside the judgment of the Federal Court of Appeal, dismiss the respondents’ application with costs and restore the decision or order of the Director-General, Special Investigations Directorate, Department of National Revenue, Taxation, and Judge Carl Zalev. Pursuant to the terms upon which leave to appeal to this Court was granted, the costs of the application for leave to appeal, and of the appeal, should be paid by the appellant to the respondents on a solicitor and client basis.