Cattanach,
J:—This
is
an
ex
parte
notice
of
motion
by
the
Minister
of
National
Revenue
for
directions
as
to
the
registration
of
the
certificate
mentioned
in
the
above
style
which
had
been
refused
when
tendered
for
registration
by
the
Administrator
of
the
Court,
no
doubt
as
the
consequence
of
a
decision
by
myself
in
R
v
Star
Treck
Holdings
Ltd
et
al,
[1977]
CTC
621.
In
the
Star
Treck
matter
an
application
was
made
to
correct
an
error
in
a
certificate
by
the
Minister
produced
under
section
223
of
the
Income
Tax
Act
which
had
been
registered.
This
I
refused
to
do
for
the
reason
that
the
certificate
is
not
a
judgment
nor
does
it
become
a
judgment
of
this
Court
when
registered
but
rather
it
remains
what
it
always
has
been
and
that
is
merely
a
certificate
of
the
Minister
even
though
section
223
of
the
Income
Tax
Act
provides
that
when
such
a
certificate
is
registered
it
has
the
same
force
and
effect.
and
all
proceedings
may
be
taken
thereon
as
if
the
certificate
were
a
judgment
obtained
in
this
Court.
That
being
so
there
was
no
Rule
of
the
Federal
Court
nor
any
provision
in
the
Income
Tax
Act
which
authorizes
a
judge
of
this
Court
to
direct
the
correction
of
an
error
in
a
certificate
which
had
been
registered.
That
was
the
ratio
decidendi.
However,
I
did
continue
to
say
that
when
the
Minister,
and
the
officers
of
his
Department
to
whom
he
is
authorized
to
delegate
his
responsibility
in
these
respects,
are
armed
with
such
extraordinary
powers
it
IS
incumbent
upon
them
to
be
cautious
and
accurate
in
exercising
the
powers
so
bestowed
upon
them.
I
continued
to
further
say
that
the
form
of
certificate
in
use,
and
the
Same
applies
to
the
certificate
now
under
consideration,
is
fraught
with
inaccuracies.
Without
attempting
to
be
all-inclusive
I
pointed
out
that
the
certificates
recite
a
style
of
cause
as
between
Her
Majesty
the
Queen,
as
plaintiff.
and
a
named
person
or
persons,
as
defendant
or
defendants.
In
the
certificate
presently
under
consideration
the
same
inaccuracy
occurs.
The
Queen
is
named
as
plaintiff
and
Taehoon
Jung,
26
Court-
wright
Road,
of
the
Borough
of
Etobicoke,
Ontario,
is
named
as
defendant.
In
the
printed
form
used
the
words
“Her
Majesty
the
Queen”
are
printed
as
part
of
the
form
indicative
of
the
degree
of
permanency
in
the
practice
adopted
by
the
Department
with
a
blank
space
provided
to
permit
the
typing
in
of
the
name
of
the
person
selected
to
be
a
defendant.
As
I
pointed
out
in
the
Star
Treck
matter,
there
is
no
authority
in
the
Income
Tax
Act,
the
Federal
Court
Act,
the
Rules
of
Court
or
elsewhere
for
converting
what
is
not
an
action
into
an
action
nor
is
deemed
to
be
an
action
between
the
parties
so
named.
There
is,
in
fact,
no
action
within
the
meaning
of
that
word
in
that
there
is
no
proceeding
in
the
Trial
Division
between
the
parties
named
and
accordingly
to
use
the
form
prescribed
by
the
Rules
of
the
Court
for
use
in
the
style
of
cause
of
an
action
in
the
Court
between
parties
is
grossly
misleading.
It
confuses
the
certificate
with
a
proceeding
by
action
and
thus
represents
it
to
be
what
in
fact
it
is
not.
Furthermore
the
form
of
certificate
contains
in
prominent
printed
block
capital
letters
at
its
very
beginning
the
words,
“IN
THE
FEDERAL
COURT
OF
CANADA’’
followed
by
the
words,
“TRIAL
DIVISION”
in
smaller
type
capital
letters
and
are
preceded
by
the
words,
“COURT
NO”
with
space
for
an
assigned
Court
number
for
an
action.
This
is
not
a
document
issued
by
the
Court.
It
is
a
certificate
prepared
by
the
Minister
or
his
officers
to
whom
authority
is
delegated
to
do
so.
On
registration
the
certificate
becomes
available
to
public
inspection.
The
manner
in
which
the
document
is
printed
gives
the
appearance
that
it
was
deliberately
designed
to
convey
to
the
unwary
or
uninitiated
to
whose
attention
it
might
come,
the
impression
that
it
is
a
document
which
emanates
from
the
Court.
This
is
wrong.
There
is
no
Statute
or
rule
which
authorizes
the
Minister
or
any
officer
of
his
Department
to
issue
documents
in
the
name
of
the
Court.
Furthermore
the
certificate
is
prepared
to
be
manually
signed
over
the
printed
title,
“Director,
Collection
Division,
Department
of
National
Revenue,
Taxation”.
The
holder
of
that
office
is
obviously
an
officer
of
the
Department
and
is
not
an
officer
of
this
Court
authorized
to
sign
such
a
document
in
such
capacity.
As
I
said
in
the
Star
Treck
matter
the
use
of
the
words,
“IN
THE
FEDERAL
COURT
OF
CANADA”,
displayed
with
such
prominence,
should
be
discontinued.
I
also
said
that
the
certificate
by
the
Minister
should
be
directed,
“TO
THE
FEDERAL
COURT
OF
CANADA”
and
the
appropriate
Division
of
the
Court.
On
reflection
I
do
not
think
it
needs
to
be
directed
to
anyone,
but
if
it
is
to
be
directed
to
anyone
it
Should
be
to
the
Court.
It
is
quite
obvious
what
the
draftsman
of
the
form
of
the
certificate
did.
He
adapted
the
styles
appearing
in
Forms
1
and
2
in
the
Appendix
to
the
Rules
of
Court.
These
forms
prescribe
the
appropriate
court
title
by
division
and
the
style
of
cause
to
appear
upon
a
statement
of
claim.
Because
there
is
no
cause
of
action
and
no
statement
of
claim
in
these
matters
the
adoption
of
those
forms
is
not
analogous
and
IS
most
inept.
Counsel
for
the
Minister
agreed
that
the
criticisms
I
have
made
of
the
form
of
the
certificate
in
use,
in
these
two
particulars,
are
well-
founded.
I
did
not
decide
in
the
Star
Treck
matter
that
the
registration
of
a
certificate
prepared
in
such
form
was
rendered
invalid
thereby.
However.
I
did
say
that
the
form
of
the
certificate
was
inappropriate,
grossly
misleading
and
inaccurate.
In
the
Star
Treck
matter
I
made
suggestions
as
to
the
proper
form
to
be
adopted
in
respect
of
the
two
particulars
above-mentioned
with
which
counsel
tor
the
Minister
also
agreed.
It
follows
that
these
factors.
standing
alone,
are
sufficient
justification
for
refusing
to
direct
the
Administrator
to
accept
the
certificate
produced
for
registration
in
its
present
form.
While
this
conclusion
disposes
of
the
present
application
so
long
as
the
certificate
is
produced
for
registration
without
amendment,
as
indicated
above,
there
still
remains
for
determination
a
far
more
crucial
issue
and
that
is,
when
the
certificate,
amended
as
I
have
indicated,
iS
produced
for
registration,
whether
it
is
mandatory
that
the
certificate
be
registered
and
the
consequences
thereby
follow
automatically
or
whether
the
person
adversely
affected
thereby
must
first
be
afforded
the
opportunity
of
opposing
the
registration
at
this
point
in
time.
The
Rules
of
Court
are
silent
upon
the
matter.
If
the
person
adversely
affected
has
the
right
to
oppose
the
registration
it
follows
that
under
the
Rules
as
they
presently
read
the
application
for
registration
must
be
by
way
of
a
notice
of
motion
supported
by
an
appropriate
affidavit
establishing
that
all
conditions
precedent
to
registration
have
been
complied
with
and
the
opposite
party
may
cross-examine
on
the
affidavit
filed
in
support
of
the
motion
and
file
an
affidavit
in
reply.
It
would
appear
that
with
respect
to
the
registration
of
the
Minister’s
certificates
under
section
223
of
the
Income
Tax
Act,
assuming
always
that
there
must
be
a
notice
of
motion
as
a
condition
to
registration,
the
appropriate
procedure
would
be
by
way
of
an
originating
notice
of
motion
under
Rule
304(1)
which
by
virtue
of
that
Rule
must
be
served
personally
on
the
interested
person
and
in
that
event
I
entertain
doubt
if
resort
might
be
had
to
Rule
324
to
dispose
of
the
matter
without
personal
appearance
on
the
basis
of
written
representations.
Section
223
reads:
223.
(1)
An
amount
payable
under
this
Act
that
has
not
been
paid
or
such
part
of
an
amount
payable
under
this
Act
as
has
not
been
paid
may
be
certified
by
the
Minister
(a)
where
there
has
been
a
direction
by
the
Minister
under
subsection
158(2),
forthwith
after
such
direction,
and
(b)
otherwise,
upon
the
expiration
of
30
days
after
the
default.
(2)
On
production
to
the
Federal
Court
of
Canada,
a
certificate
made
under
this
section
shall
be
registered
in
the
Court
and
when
registered
has
the
same
force
and
effect,
and
all
proceedings
may
be
taken
thereon,
as
if
the
certificate
were
a
judgment
obtained
in
the
said
Court
for
a
debt
of
the
amount
specified
in
the
certificate
plus
interest
to
the
day
of
payment
as
provided
for
in
this
Act.
(3)
All
reasonable
costs
and
charges
attendant
upon
the
registration
of
the
certificate
are
recoverable
in
like
manner
as
if
they
had
been
certified
and
the
certificate
had
been
registered
under
this
section.
By
virtue
of
subsection
(1)
what
the
Minister
is
to
certify
is
the
amount
expressed
in
terms
of
money
that
is
payable
under
the
Income
Tax
Act
which
would
be
inclusive
of
all
taxes
assessed,
interest
accumulated
thereon
in
accordance
with
the
Act,
penalties
imposed,
costs
and
other
like
amounts
or
such
part
of
the
total
amount
which
has
not
been
paid.
This
:s
the
certification
required
to
be
made
by
the
Minister.
It
would
follow
therefrom
that
other
language
included
in
the
certificate
such
as
a
style
of
cause
and
the
title
of
the
Court
to
which
the
certificate
is
to
be
produced
is
a
mere
surplusage
of
verbiage
and
would
not
affect
the
validity
of
the
certificate
if
the
essential
ingredient
thereof,
that
is
the
amount
payable
and
not
paid,
is
certified.
This
does
not
detract
from
any
conclusion
that
the
inclusion
of
a
style
of
cause
appropriate
to
a
style
of
cause
in
a
statement
of
claim
and
language
implying
that
the
document
is
one
issued
by
the
Court
rather
than
merely
a
certificate
made
by
the
Minister
or
an
officer
of
the
Department
authorized
to
do
so,
is
inaccurate
and
misleading
so
as
to
constitute
justification
for
the
rejection
of
a
certificate
in
such
form
when
produced
for
registration.
However,
a
much
more
substantive
question
arises
for
consideration
and
that
is,
when
a
proper
certificate
is
produced
for
registration,
must
that
certificate
be
accompanied
by
proof
that
the
conditions
precedent
in
paragraph
223(1
)(a)
or
(b)
to
the
Minister’s
authority
to
make
the
certificate
exist?
If
that
be
so,
then
I
should
think
that
a
mere
statement
contained
in
the
certificate
that
a
notice
of
assessment
was
mailed
to
the
taxpayer
on
a
certain
day,
that
30
days
have
elapsed
from
the
day
of
mailing
of
the
notice
of
assessment
and
that
the
whole
has
not
been
paid
or
a
part
remains
unpaid
or
that
the
Minister
was
of
the
opinion
that
the
taxpayer
was
attempting
to
avoid
payment
of
taxes
and
directed
that
all
taxes,
penalties
and
interest
assessed
shall
be
paid
forthwith
upon
assessment
without
the
grace
of
30
days
from
the
mailing
of
the
notice
of
assessment,
which
are
the
conditions
precedent
to
the
Minister
making
the
certificate,
would
not
be
enough.
The
proof,
if
such
is
requisite
to
registration,
should
be
by
means
of
an
affidavit.
My
brother
Walsh
had
occasion
to
consider
a
similar
problem
which
arose
following
the
filing
and
registration
of
an
order
of
an
arbitration
board
pursuant
to
section
159
of
the
Canada
Labour
Code
(RSC
1970,
c
L-1,
as
amended
by
SC
1972,
c
18)
in
the
Public
Service
Alliance
of
Canada,
Local
660
et
al
and
The
Canadian
Broadcasting
Corporation,
[1976]
2
FC
151.
Section
159
reads:
159.
(1)
Where
any
person
or
organization
has
failed
to
comply
with
any
order
or
decision
of
an
arbitrator
or
arbitration
board,
any
person
or
organization
affected
by
the
order
or
decision
may,
after
fourteen
days
from
the
date
on
which
the
order
or
decision
is
made,
or
the
date
provided
in
it
for
compliance,
whichever
is
the
later
date,
file
in
the
Federal
Court
of
Canada
a
copy
of
the
order
or
decision,
exclusive
of
the
reasons
therefor.
(2)
On
filing
in
the
Federal
Court
of
Canada
under
subsection
(1),
an
order
or
decision
of
an
arbitrator
or
arbitration
board
shall
be
registered
in
the
Court
and,
when
registered,
has
the
same
force
and
effect,
and
all
proceedings
may
be
taken
thereon,
as
if
the
order
or
decision
were
a
judgment
obtained
in
the
Court.
Mr
Justice
Walsh
had
before
him
the
question
of
the
validity
of
the
registration
of
an
arbitration
award
purporting
to
be
registered
with
this
Court
under
section
159.
On
behalf
of
the
petitioner
it
was
contended
that
under
subsection
159(2)
no
prior
notice
to
the
party
adverse
in
interest
was
necessary
for
registration.
Mr
Justice
Walsh
held
otherwise.
He
said
that
subsection
159(2)
must
be
read
with
subsection
159(1)
which
provides
when
14
days
have
elapsed
from
the
date
of
the
Board’s
decision
and
the
person
required
to
comply
with
the
Board’s
order
has
not
done
so
then
the
person
in
whose
favour
the
order
was
given
may
file
in
the
Federal
Court
a
copy
of
the
Board’s
order
for
registration.
He
continued
to
say
that
the
failure
to
comply
with
the
Board’s
order
was
a
condition
precedent
to
filing
for
registration.
Walsh,
J
pointed
out
that:
Rule
321
of
the
Federal
Court
rules
clearly
provides
that
unless
otherwise
authorized
to
be
made
ex
parte
motions
must
be
served
on
the
opposite
parties
at
least
2
clear
days
before
the
hearing,
unless
this
is
dispensed
with.
Rule
319
requires
that
the
motion
shall
be
supported
by
an
affidavit
setting
out
all
the
facts
on
which
the
motion
is
based
that
do
not
appear
from
the
record,
and
that
the
adverse
party
may
file
an
affidavit
in
reply,
and
that
by
leave
of
the
Court
a
witness
may
be
called
to
testify
in
relation
to
an
issue
of
fact
raised
by
an
application.
He
went
on
to
say:
While
petitioner’s
motion
for
inter
alia,
the
registration
of
the
arbitration
award
was
accompanied
by
an
affidavit
setting
out
that
respondent
has
not
complied
entirely
with
the
arbitration
award,
no
details
were
given
as
to
which
conditions
were
not
complied
with,
and
more
important
it
was
not
served
on
the
opposite
party
before
the
registration
was
effected
so
as
to
give
the
respondent
the
opportunity
to
deny,
as
it
does,
that
the
award
was
not
complied
with.
This
is
contrary
to
Federal
Court
Rule
321
and
to
the
basic
principle
of
equity
“Audi
alteram
partem”.
The
establishment
that
the
arbitration
award
has
not
been
complied
with
is
a
condition
“sine
qua
non”
of
its
registration
in
this
Court.
After
having
annulled
and
struck
out
the
registration
of
the
Arbitration
Board’s
order,
he
concluded
by
saying:
It
will
however
be
up
to
the
judge
hearing
the
motion
if
same
is
presented
again,
after
due
service,
to
decide
whether
his
decision
as
to
whether
the
award
has
not
been
complied
with,
and
hence
can
be
registered
should
be
made
on
the
basis
of
affidavits
alone,
or
after
hearing
evidence.
In
International
Brotherhood
of
Electrical
Workers,
Local
Union
529
and
Central
Broadcasting
Company
Limited,
[1977]
2
FC
78,
an
application
was
made
before
me
to
have
an
order
of
the
Labour
Relations
Board,
which
had
been
filed
unilaterally
and
subsequently
registered
on
March
12,
1975
under
section
123
of
the
Canada
Labour
Code
without
notice
having
been
served
on
the
party
affected
thereby,
to
register
pursuant
to
the
motion
currently
made,
service
of
which
notice
of
motion
to
this
and
other
ends
having
been
served,
with
retroactive
effect
to
March
12,
1975
if
such
re-registration
should
be
required
together
with
many
other
requests
for
relief.
The
relief
sought
in
the
notice
of
motion
for
registration
of
the
order
of
the
Board
with
retrospective
effect
was
inspired
by
the
decision
of
Walsh,
J
in
Public
Service
Alliance
of
Canada
Local
660
and
The
Canadian
Broadcasting
Corporation
(Supra).
section
123
and
section
159
of
the
Canada
Labour
Code
are
identical
in
language
except
for
minor
differences
dictated
by
the
necessity
of
the
subject
matters
and
the
decision
of
Walsh,
J
is
an
equally
authoritative
interpretation
of
section
123
as
it
is
of
section
159.
The
issue
as
to
the
validity
of
the
filing
and
registration
of
the
order
of
the
Board
was
before
me
and
on
the
basis
of
the
decision
of
my
brother
Walsh
I
held
the
filing
of
the
order
and
its
subsequent
registration
to
be
a
nullity.
I
also
refused
to
amend
the
order
of
the
Board
to
fix
a
time
for
compliance,
to
direct
the
registration
of
the
order
pursuant
to
the
request
to
do
so
because
the
order
of
the
Board
was
conditional
and
not
a
final
order
and,
because
the
order
was
so
inexplicit
in
other
respects
that
it
could
not
be
determined
what
was
ordered
to
be
done,
I
denied
an
order
for
committal
and
leave
to
issue
a
writ
of
sequestration.
but
in
addition
to
these
reasons
I
refused
the
relief
sought
for
the
overriding
reason
that
no
order
of
the
Board
had
been
filed
and
registered
as
an
order
of
this
Court
to
enforce.
There
are
remarkable
areas
of
similarity
and
dissimilarity
in
the
purposes
and
language
of
sections
123
and
159
of
the
Canada
Labour
Code
and
section
223
of
the
Income
Tax
Act.
Under
sections
123
and
159
of
the
Canada
Labour
Code
the
conditions
precedent
are
a
failure
to
comply
with
the
order
of
the
Board
within
fourteen
days.
When
these
conditions
exist
any
person
affected
by
the
Board’s
order
may
file
a
copy
in
the
Federal
Court
of
Canada.
Under
subsection
(1)
of
section
223
of
the
Income
Tax
Act
the
Minister
may
certify
that
an
amount
payable
under
the
Act
has
not
been
paid,
when
there
has
been
a
direction
by
the
Minister
under
subsection
158(2)
or
otherwise
upon
the
expiration
of
thirty
days
after
the
default.
Counsel
for
the
applicant
referred
me
to
the
decision
of
my
brother
Mahoney
In
the
Matter
of
an
Application
by
Anishenineo
Piminagan
Inc
(dated
September
19,
1977,
Court
file
No
T-3339-77,
as
yet
unreported)
presumably
as
authority
for
the
proposition
that,
by
analogy,
section
123
of
the
Income
Tax
Act
provides
a
procedure
for
the
registration
of
the
Minister’s
certificate
in
the
Federal
Court.
If
that
was
the
purpose
for
the
decision
of
Mahoney,
J
being
cited,
as
I
understood
it
to
be,
I
do
not
agree
that
it
is
authority
for
the
proposition
for
which
it
was
cited.
Mr
Justice
Mahoney
had
for
consideration
before
him
the
rescission
or
stay
of
execution
of
an
order
made
by
the
Canadian
Transportation
Commission,
a
copy
of
which
order
had
been
entered
of
record
in
this
Court
pursuant
to
and
with
the
effect
prescribed
by
subsections
(1),
(2)
and
(3)
of
section
61
of
the
National
Transportation
Act.
Under
subsection
61(1)
any
order
made
by
the
Commission
may
be
made
an
order
of
the
Federal
Court
of
Canada
or
of
any
superior
court
of
any
province
of
Canada
and
shall
be
enforced
in
like
manner
as
any
order
of
the
Court.
Subsection
(2)
of
section
61
provides
the
procedure
to
make
the
order
of
the
Commission
an
order
of
the
Court
and
that
procedure
is
twofold:
(1)
the
usual
practice
and
procedure
of
the
Court
in
such
matters
may
be
followed,
or
(2)
in
lieu
thereof
a
certified
copy
of
the
Commission’s
order
may
be
made
by
the
Secretary
which
copy
shall
have
an
endorsement
thereon
signed
by
the
President
with
the
seal
of
the
Commission
affixed
moving
to
make
the
order
of
the
Commission
an
order
of
the
Federal
Court.
Under
subsection
(3),
in
this
latter
event,
the
Secretary
forwards
such
certified
copy
so
endorsed
to
the
proper
officer
of
this
Court
and
thereupon
the
Commission’s
order
becomes
an
order
of
this
Court.
It
was
the
second
of
these
two
procedures
that
the
Commission
adopted
and
the
persons
responsible
for
so
electing
the
second
procedure
available
to
the
Commission
were
astute
in
doing
so.
First,
because
there
is
no
rule
in
the
Rules
of
the
Court
which
specifically
deals
with
such
matters
and
there
may
well
be
no
“usual
practice
and
procedure
of
the
Court”
or
if
there
is
a
usual
practice
and
procedure
it
would
be
that
concluded
by
Mr
Justice
Walsh
to
be
applicable
to
the
filing
and
registration
of
an
order
of
a
Board
under
section
159
of
tne
Canada
Labour
Code,
that
is
by
way
of
notice
of
motion
under
Rules
319
and
321.
section
61
of
the
National
Transportation
Act
differs
dramatically
from
section
223
of
the
Income
Tax
Act.
While
Mahoney,
J
did
not
base
his
decision
on
this
point,
under
section
61
the
order
of
the
Canadian
Transportation
Commission
becomes
an
order
of
this
Court
whereas
an
order
filed
and
registered
under
sections
123
and
159
of
the
Canada
Labour
Code
and
a
certificate
under
section
223
of
the
Income
Tax
Act
does
not.
This
was
made
abundantly
clear
by
Thurlow,
J
(as
he
then
was)
in
MNR
v
Bolduc,
[1961]
Ex
CR
115;
[1961]
CTC
265;
61
DTC
1148,
where
he
said,
in
effect,
that
a
certificate
is
not
a
judgment
nor
does
it
become
a
judgment
of
the
Court
when
registered
but
it
remains
merely
a
certificate,
albeit
one
of
a
unique
nature,
upon
which
the
proceedings
authorized
by
the
Income
Tax
Act
may
be
taken.
Mr
Justice
Mahoney
said:
Parliament’s
prescription
for
the
making
of
an
order
of
the
CTC
an
order
of
this
Court
under
section
61
of
the
National
Transportation
Act
is
quite
different
from
its
prescription
for
giving
similar
effect
to
orders
under
sections
123
and
159
of
the
Canada
Labour
Code.
It
is
unnecessary
here
to
consider
the
significance,
if
any,
of
the
distinction
that,
by
subsection
61(3),
a
CTC
order,
upon
entry
of
record
in
the
Court,
‘‘shall
thereupon
become
and
be
the
order
of
the
Court
while
under
the
particular
provisions
of
the
Canada
Labour
Code,
an
order,
upon
registration,
‘‘has
the
same
force
and
effect
.
.
.
as
if
(it)
were
a
judgment
obtained"
in
the
Court.
The
sections
of
the
Labour
Code
prescribe
no
procedure
for
effecting
registration.
In
the
absence
of
such
prescription,
the
procedures
of
the
Court
govern
with
the
result
indicated
in
the
decisions
cited.
Section
61
of
the
National
Transportation
Act
does,
however,
prescribe
procedure.
The
CTC
has
the
choice
of
following
the
“usual
practice
and
procedure"
of
the
Court
or
it
may
follow
the
procedure
it
did
in
this
instance.
Where
Parliament
has
given
the
CTC
that
clear
option,
it
would
‘be
unreasonable
to
hold
that
if
it
chooses
the
second,
it
is
bound
by
requirements
that
pertain
only
to
the
first.
Parliament
has,
in
unambiguous
terms,
prescribed
a
procedure
for
the
making
of
orders
of
the
CTC
orders
of
this
Court
which,
unlike
the
Court
s
own
procedures,
excludes
compliance
with
the
principle
audi
alteram
partem.
That
procedure
has
been
scrupulously
followed
here
and,
accordingly,
the
Order
is
no
more
subject
to
rescission
than
had
it
been
registered
after
due
compliance
with
the
“usual
practice
and
procedure’
of
the
Court.
The
motion
to
rescind
the
Order
will
be
dismissed.
Having
so
disposed
of
the
question
as
to
the
rescission
of
the
order
he
then
turned
his
attention
to
the
alternative
motion
to
stay
the
execution
of
the
order
and
his
reasoning
in
this
respect
has
no
application
to
the
present
motion.
Accordingly,
I
revert
to
a
consideration
of
the
areas
of
similarity
and
dissimilarity
between
section
159
of
the
Canada
Labour
Code
which
was
the
subject
of
Mr
Justice
Walsh's
decision
in
Public
Service
Alliance
of
Canada,
Local
660
et
al
and
The
Canadian
Broadcasting
Corporation
(Supra)
and
section
123
of
the
Canada
Labour
Code
which
was
the
subject
of
the
decision
in
International
Brotherhood
of
Electrical
Workers,
Local
Union
529
and
Central
Broadcasting
Limited
(Supra)
on
the
one
hand
and
section
223
of
the
Income
Tax
Act
on
the
other,
to
ascertain
if
these
decisions
are
applicable
to
the
production
and
registration
of
a
Minister’s
certificate
under
section
223
of
the
Income
Tax
Act.
All
statutes
are
to
be
construed
so
as
to
give
effect
to
the
intention
which
is
expressed
by
the
words
used
in
the
statute.
But
that
is
not
to
be
discovered
by
considering
those
words
in
the
abstract
but
by
inquiring
what
is
the
intention
expressed
by
those
words
used
in
a
Statute
with
reference
to
the
subject
matter
and
the
object
with
which
the
statute
was
enacted.
Under
subsections
(2)
of
sections
123
and
159
of
the
Canada
Labour
Code
it
is
provided
that
on
the
“filing”
of
a
copy
of
an
order
of
the
Board
under
subsection
(1)
then
the
order
of
the
Board
shall
be
registered
and
upon
registration
the
order
of
the
Board
has
the
Same
force
and
effect
and
all
proceedings
may
be
taken
therein
as
if
the
order
were
a
judgment
of
the
Court.
Under
subsection
(2)
of
section
223
of
the
Income
Tax
Act
it
is
provided
that
“on
production’
to
the
Federal
Court
the
Minister’s
certificate
shall
be
registered
and
when
registered
it
shall
have
the
Same
force
and
effect.
and
all
proceedings
may
be
taken
thereon,
as
if
the
certificate
were
a
judgment
obtained
in
the
Court
for
a
debt
in
the
amount
certified
by
the
Minister
plus
interest
as
provided
in
the
Income
Tax
Act
until
payment.
In
the
section
of
the
Canada
Labour
Code
the
phrase
used
is
“on
filing"
whereas
in
the
section
of
the
Income
Tax
Act
the
phrase
is
“on
production".
As
I
appreciate
the
meaning
of
‘‘to
file"
it
is
to
place
a
document
in
the
Court
records
and
“to
produce"
is
to
offer
for
inspection
or
consideration.
For
practical
purposes
it
would
appear
that
the
phrases
“on
filing"
and
“on
production
basically
and
substantially
have
the
same
meaning
with
the
exception
that
the
phrase
“on
production"
has
the
implication
of
inspection
and
if.
on
inspection,
the
certificate
so
produced,
apart
from
the
substance
in
the
body
thereof.
patently
displays
inaccuracies
such
as
that
it
is
susceptible
of
being
interpreted
as
a
document
issued
by
the
Court
when
it
is
not
and
refers
to
a
cause
of
action
where
none
exists.
it
is
then
that
such
patent
irregularities
constitute
justification
for
the
rejection
of
a
certificate
in
such
form
on
production
as
I
have
concluded
to
be
the
case.
The
object
of
the
Canada
Labour
Code
can
be
gleaned,
in
general
terms,
from
the
preamble
which
is
support
for
freedom
of
association
among
employees
on
the
one
hand
and
employers
on
the
other
and
the
principle
of
free
collective
bargaining
as
the
bases
of
effective
industrial
relations
for
good
working
conditions
and
sound
labourmanagement
relations.
The
Canada
Labour
Code,
being
a
code,
then
enacts
specific
provisions
designed
to
accomplish
that
general
objective
as
expressed
in
the
preamble
such
as
the
determination
of
appropriate
collective
bargaining
units.
certification
of
bargaining
units
and
the
hearing
and
determination
of
complaints.
disputes
and
allegations
of
unfair
practices.
To
do
so.
provision
is
made
for
the
establishment
of
a
board
for
these
purposes.
Every
order
of
such
a
board
is
final,
in
the
sense
that
it
shall
not
be
questioned
or
reviewed
in
any
court
except
in
accordance
with
section
28
of
the
Federal
Court
Act.
From
the
very
nature
of
the
powers,
duties
and
functions
of
the
Board
the
orders
and
decisions
given
by
it
necessarily
will
direct
compliance
with
a
provision
of
the
Code
by
a
party.
Therefore
it
is
almost
invariably
an
order
directing
some
person
to
do
some
specific
act
or
refrain
from
doing
some
specific
act.
The
order
is
positive
in
the
sense
that
it
directs
some
person
to
do
something
such
as
directing
an
employer
to
reinstate
a
discharged
employee
and
the
like.
In
International
Brotherhood
of
Electrical
Workers,
Local
529
v
Central
Broadcasting
Company
Ltd
(supra)
these
considerations
led
me
to
say
at
page
81:
The
legislative
intent
is
abundantly
clear
in
subsection
(2)
of
section
123.
It
is
that
when
an
order
of
the
Board
has
been
registered
it
shall
have
the
same
force
and
effect
as
if
the
order
of
the
Board
had
been
an
order
of
this
Court
for
purposes
of
enforcement
and
that
all
processes
available
for
the
enforcement
of
an
order
of
this
Court
are
equally
available
for
the
enforcement
of
an
order
of
the
Board
when
it
has
been
registered
as
contemplated
by
the
section.
section
123
is
ranged
with
section
122
under
the
heading
‘‘Review
and
Enforcement
of
Orders”.
In
my
view
a
heading
such
as
this
is
not
to
be
treated
as
if
it
were
a
marginal
note
or
merely
for
the
purpose
of
classifying
the
enactments.
In
my
opinion
it
constitutes
an
important
part
of
the
statute
itself
and
may
be
read,
not
only
as
explaining
the
sections
which
follow,
as
a
preamble
may
be
read,
but
as
a
better
key
to
the
construction
of
the
sections
which
follow
than
might
be
afforded
by
a
mere
preamble.
It
is
for
this
reason
added
to
the
language
of
the
section
that
I
conclude
that
subsection
123(2)
was
inserted
in
the
statute
for
the
purpose
of
providing
for
the
enforcing
of
orders
of
the
Board
by
the
processes
of
this
Court,
no
similar
means
being
provided
in
the
Canada
Labour
Code
for
the
Board
to
enforce
its
orders.
That
is
the
obligation
thrust
upon
this
Court
by
Subsection
123(2).
That
being
so,
the
orders
of
the
Board
must
be
cast
in
the
precise
language
as
are
orders
of
the
judges
of
this
Court
and
must
be
so
framed
as
to
be
capable
of
enforcement
by
the
normal
processes
of
this
Court.
The
normal
processes
of
this
Court
usually
sought
to
enforce
an
order
or
decision
of
the
Court
are
orders
of
committal
for
contempt
of
the
Court’s
order
and
sequestration
of
property.
However,
before
the
Board
makes
its
finding
and
consequent
order
or
decision
there
has
been
a
hearing
before
that
tribunal.
There
has
been
a
quasi-lis
between
quasi-parties
and
the
principles
of
natural
justice
will
have
been
complied
with,
and
if
not
resort
may
be
had
to
section
28
of
the
Federal
Court
Act,
particularly
notice
and
the
opportunity
to
be
heard.
Because
there
is
no
provision
in
the
Code
for
the
Board
to
enforce
its
orders,
sections
123
and
159
make
provision
for
the
registration
of
the
order
of
the
Board
in
this
Court
whereupon
that
order
becomes
enforceable
as
an
order
of
this
Court.
The
conditions
for
doing
so
under
sections
123
and
159
are,
as
Stated
before,
that
the
order
or
decision
of
the
Board
has
not
been
complied
with
by
the
party
ordered
to
do
some
act
within
a
period
of
fourteen
days
from
which
the
order
of
the
Board
was
made
or
a
date
provided
therein
for
compliance.
These
conditions
prevailing,
then
the
other
party
may
file
a
copy
of
the
order
or
decision
of
the
Board
and
upon
registration
the
consequences
provided
for
in
subsection
(2)
follow.
The
gist
of
the
decision
of
Walsh,
J
in
Public
Service
Alliance
of
Canada,
Local
660
v
Canadian
Broadcasting
Corporation
(Supra),
as
I
appreciate
it,
is
that
whether
there
has
been
failure
to
comply
with
the
Board’s
order
within
the
prescribed
time
is
a
justiciable
issue.
That
being
so
the
principles
of
natural
justice
apply,
particularly
the
requirement
of
notice
and
the
opportunity
to
be
heard.
The
only
procedure
available
to
so
ensure
under
the
Rules
of
Court,
and
which
would
be
the
“usual
practice
and
procedure
of
the
Court”,
would
be
by
way
of
notice
of
motion
under
Rule
321
and
Rule
319.
That
this
was
the
proper
procedure
to
be
followed
was
held
by
Walsh,
J
and
failure
to
follow
that
procedure
vitiated
the
registration
of
the
order.
In
International
Brotherhood
of
Electrical
Workers
v
Central
Broadcasting
Company
Ltd
(supra)
at
page
89,
I
adopted
and
applied
the
decision
of
my
brother
Walsh
by
saying:
I
think
I
am
bound
to
approach
this
matter
in
the
same
way
as
the
similar
problem
was
approached
by
Mr
Justice
Walsh
until
such
time,
if
any,
as
a
different
course
is
indicated
by
a
higher
court.
When
I
say
bound,
I
do
not
mean
that
I
am
bound
by
any
strict
rule
of
stare
decisis
but
by
my
own
view
as
to
the
desirability
of
having
this
Court
follow
a
consistent
course
as
far
as
possible.
That
being
so,
the
original
filing
and
registration
of
the
Board’s
order
in
the
Registry
of
this
Court
on
March
12,
1975,
was
a
nullity.
In
addition
to
the
reasons
outlined
by
my
brother
Walsh,
I
added
further
comment
at
page
99:
The
decision
of
Mr
Justice
Walsh
in
Public
Service
Alliance
of
Canada
v
Canadian
Broadcasting
Corporation
(Supra)
makes
eminent
Common
sense.
If
this
Court
is
to
enforce
an
order
of
the
Canada
Labour
Relations
Board
as
its
own
order
then
the
Court
must
have
control
over
the
order
of
the
Board
which
is
to
be
filed
and
consequently
registered.
That
control
is
present
in
a
limited
extent
in
subsection
(1)
of
section
123
of
the
Canada
Labour
Code
which
provides
that
failure
to
comply
with
an
order
of
the
Board
must
be
established
before
the
order
is
filed.
If
the
Board’s
order
is
imprecise,
as
this
order
is,
then
it
is
impossible
to
establish
non-compliance
therewith
and
the
order
must
be
rejected
for
filing.
Upon
examination
of
the
Board’s
order,
which
examination
would
have
been
denied
me
if
registration
followed
ex
debito
justitiae
on
filing,
it
was
evident
that
the
Board’s
order
was
not
intended
to
be
final
in
that
the
Board
reserved
unto
itself
the
right
to
fix
the
“quantum”
of
salaries
to
discharged
employees
failing
agreement
between
the
parties
(there
was
no
agreement
between
the
parties
and
no
reference
made
to
the
Board
to
fix
the
quantum)
and
even
if
the
Board’s
order
was
final,
in
the
sense
that
it
was
to
be
enforced
by
the
processes
of
this
Court,
the
order
was
so
vague,
imprecise,
ambiguous
and
inexplicit
as
not
to
be
capable
of
enforcement.
Furthermore,
I
was
not
satisfied
on
the
evidence
before
me
that
the
order
of
the
Board
had
not
been
complied
with
and
I
declined
the
request
that
I
should
amend
the
Board’s
order
to
fix
a
time
for
compliance
with
its
order,
first
because
this
was
not
an
appeal
proper
from
the
Board’s
order
so
that
I
might
give
the
order
the
Board
ought
to
have
given,
and
second
because
the
Board’s
order
remains
what
it
always
has
been,
and
that
is
the
order
of
the
Board,
even
though
enforceable
as
an
order
of
this
Court
and
the
only
proper
authority
to
amend
that
order,
if
it
can
be
amended,
is
the
Board.
This
was
the
reason
for
which
the
request
to
amend
a
certificate
made
by
the
Minister
under
section
223
of
the
Income
Tax
Act
was
refused
in
the
Star
Treck
matter.
I
turn
now
to
a
consideration
of
section
223
of
the
Income
Tax
Act
in
the
light
of
the
legislative
intent
of
the
Income
Tax
Act
with
respect
thereto.
It
is
axiomatic
that
there
is
no
equity
in
a
taxing
statute
and
the
Income
Tax
Act
is
no
exception
to
that
axiom.
On
the
contrary,
the
Act
is
stacked
against
the
taxpayer
and
in
favour
of
the
tax
collector
designed,
no
doubt,
as
a
matter
of
public
policy
to
strengthen
the
hand
of
the
tax
collector
and
to
ensure
that
the
taxpayer
and
his
assets
fall
within
the
net
cast
by
the
collector
even
though
the
taxpayer
may
contest
his
liability
to
tax.
Under
subsection
158(1)
of
the
Act
the
taxpayer
shall,
within
30
days
from
the
mailing
of
the
notice
of
assessment
(not
from
the
date
of
the
receipt
of
the
notice.
there
having
been
instances
where
the
entire
30
days
from
mailing
the
notice
was
consumed
in
delivery).
the
taxpayer
shall
pay
the
tax
assessed
whether
or
not
an
objection
to
or
appeal
from
the
assessment
is
outstanding.
Clearly,
from
section
158,
the
tax
assessed
is
payable
30
days
from
the
mailing
of
the
notice
of
assessment
even
if
it
is
subsequently
established
that
the
taxpayer
is
not
liable
therefor
and
if
the
Minister
so
orders
under
subsection
158(2)
the
tax
may
become
payable
forthwith
upon
assessment.
If
the
taxpayer
does
not
pay
the
assessed
tax
on
the
date
fixed
for
payment
he
is
assessed
for
interest
at
a
rate
of
6%
on
the
amount
unpaid
so
long
as
it
remains
unpaid.
either
in
whole
or
in
part.
However.
if
there
has
been
an
overpayment
of
tax
or
if
it
has
been
found
by
a
court
of
competent
jurisdiction
that
no
tax
is
payable
as
assessed.
a
refund
shall
be
made
to
the
taxpayer
with
interest
from
the
day
the
overpayment
arose
but
with
interest
at
a
prescribed
rate
of
3%
and
the
interest
so
paid
is
assessed
as
income
to
the
taxpayer
in
the
year
in
which
the
payment
was
made.
Of
course
there
is
no
equity
in
the
Income
Tax
Act
but
the
cold
fact
remains
that
tax
is
payable
upon
assessment
as
indicated
above.
Therefore,
under
subsection
223(1).
the
amount
payable
under
the
Act
is
all
taxes
assessed,
interest
accumulated
thereon,
penalties
imposed
and
the
like
which
have
not
been
paid.
That
is
the
amount
to
be
certified
by
the
Minister.
The
conditions
to
that
certification
are
either
one
of
those
recited
in
paragraphs
(a)
or
(b)
of
subsection
223(1).
After
careful
reflection,
I
have
reached
the
conclusion
that
the
requirements
of
subsection
223(1)
that
an
amount
has
been
assessed
and
remains
unpaid
and
that
thirty
days
have
elapsed
from
the
mailing
of
the
notice
of
assessment
or
a
direction
has
been
made
by
the
Minister
under
subsection
158(2)
waiving
the
thirty-day
period,
are
conditions
precedent
to
the
making
of
the
certificate
by
the
Minister
as
opposed
to
conditions
precedent
to
the
registration
of
the
certificate
under
subsection
223(2)
on
production.
In
the
Star
Treck
matter
I
pointed
out
that
a
person
affected
by
such
a
certificate
can
impugn
the
making
thereof
and
its
registration
in
an
original
proceeding
in
this
Court
but
I
made
the
tentative
suggestion
by
way
of
obiter
that
for
the
Minister
not
to
establish
the
conditions
precedent
to
him
making
the
certificate
was
an
open
invitation
to
attack
its
validity.
To
do
so
is
still
open
to
the
person
adversely
affected
by
the
certificate
but,
in
view
of
the
conclusion
I
have
reached
that
the
conditions
in
subsection
223(1)
are
prerequisites
to
the
Minister
making
the
certificate
as
opposed
to
registration
itself,
that
gratuitous
suggestion
was
not
well-founded.
On
the
other
hand,
since
I
have
concluded
that
the
material
content
of
the
certificate
dictated
by
subsection
223(1)
is
the
amount
payable
that
has
not
been
paid,
then
other
recitals
are
surplus
and
it
may
well
be
advantageous
to
state
by
recital
or
otherwise
that
the
conditions
precedent
to
the
making
of
the
certificate
exist,
ex
abundanti
cautela.
As
a
result
of
the
foregoing
conclusion
it
follows
that
on
production
under
subsection
223(2)
of
a
certificate
in
proper
form
registration
thereof
is
mandatory,
particularly
from
the
use
of
the
word
“shall”.
By
virtue
of
subsection
244(13)
of
the
Income
Tax
Act,
every
document
purporting
to
be
a
certificate.
amongst
other
specified
instruments.
over
the
name
of
the
Minister,
the
Deputy
Minister
or
officer
authorized
by
regulation,
shall
be
deemed
to
be
a
document
signed,
made
and
issued
by
the
Minister,
his
deputy
or
authorized
official
and
can
be
called
into
question
only
by
the
Minister
or
some
person
acting
for
him
or
Her
Majesty.
That
means
that
the
document
must
be
accepted
by
other
persons
for
what
it
purports
to
be
and
the
authority
of
the
signator
cannot
be
questioned.
That
does
not
mean
that
the
conditions
precedent
to
making
the
certificate
and
the
accuracy
of
the
content
of
the
certificate
cannot
be
attacked
by
the
person
adversely
affected
by
it.
The
maxim
omnia
praesumuntur
rite
et
solemniter
esse
acta
donec
probetur
in
contrarium
would
be
applicable,
which
is
simply
that
everything
is
presumed
to
be
rightly
done
and
duly
performed
until
the
contrary
is
shown,
that
is
until
the
contrary
is
shown
by
the
person
attacking
the
registration.
Therefore,
it
is
to
be
presumed
that
the
prerequisites
to
the
making
of
the
certificate
by
the
Minister
have
been
complied
with
and
on
its
face
such
certificate
is
to
be
taken
as
rightly
made
and
accordingly
shall
be
accepted
for
registration
on
production
under
subsection
223(2),
subject
always
to
that
presumption
being
rebutted
by
the
person
adversely
affected
in
a
subsequent
proceeding.
I
am
confirmed
in
this
conclusion
by
the
comments
made
by
my
brother
Addy
in
Oneil
Lambert
v
The
Queen,
[1975]
FC
548;
[1975]
CTC
120;
75
DTC
5065,
in
which
the
plaintiff
sought
a
declaration
that
section
223
of
the
Income
Tax
Act
is
unconstitutional
and
ultra
vires
of
the
Parliament
of
Canada
as
being
contrary
to
the
principles
of
natural
justice
and
the
Canadian
Bill
of
Rights.
Mr
Justice
Addy
dismissed
the
action.
He
pointed
out
that
under
the
Income
Tax
Act
procedure
is
provided
for
a
taxpayer
to
contest
an
assessment
against
him,
that
the
obligation
of
a
taxpayer
to
pay
the
tax
assessed,
pending
final
determination
of
the
liability,
is
not
a
final
determination
of
the
taxpayer’s
liability,
since
it
is
still
open
to
him
to
contest
the
assessment
and
if
successful
to
claim
a
refund
for
any
overpayment.
He
also
stated
that
the
powers
given
the
Minister
by
section
223
to
ensure
speedy
and
effective
tax
collection
do
not
infringe
the
principle
of
audi
alteram
partem
and
paragraph
2(a)
of
the
Bill
of
Rights.
On
appeal
to
the
Appeal
Division
of
the
Federal
Court
the
appeal
from
the
decision
of
Addy,
J
was
dismissed
(Lambert
v
The
Queen;
[1976]
CTC
511;
76
DTC
6373)
but
the
issue
on
appeal
was
decided
on
the
question
whether
a
subsequent
assessment
to
the
assessment
on
which
the
Minister’s
certificate
under
subsection
223(1)
was
based
nullified
the
liability
to
pay
tax
under
ihe
prior
assessment.
The
Court
of
Appeal
held
that
this
did
not
render
the
Minister’s
certificate
void
so
that
in
all
other
respects
the
decision
of
Addy,
J
stands
inviolate.
Accordingly
many
of
Mr
Justice
Addy’s
comments
warrant
repetition
in
the
context
of
the
present
motion.
He
said
at
page
551
[123,
5067]:
Generally
speaking,
even
an
administrative
act
or
procedure,
where
it
involves
a
decision,
which
results
in
a
final
determination
of
rights,
Is
Subject
to
the
common
law
rule
as
to
the
right
to
be
heard
and
also
to
the
provisions
of
paragraph
2(e)
of
the
Canadian
Bill
of
Bights
as
aforesaid,
while
one
that
does
not
result
in
a
final
determination
of
rights
is
not
Subject
to
either.
Cartwright,
J
(as
he
then
was),
in
delivering
reasons
on
behalf
of
the
Supreme
Court
of
Canada
in
its
unanimous
decision
in
the
case
of
Her
Majesty
The
Queen
v
Bernard
Randolph
and
World
Wide
Mail
Services
Corporation,
[1966]
SCR
260,
stated
at
page
266:
“Generally
speaking
the
maxim
audi
alteram
partem
has
reference
to
the
making
of
decision
affecting
the
rights
of
parties
which
are
final
in
their
nature,
and
this
is
true
also
of
s
2(e)
of
the
Canadian
Bill
of
Rights
upon
which
the
respondents
relied.
The
following
passage
in
Broom’s
Legal
Maxims,
10th
ed,
at
p
117
is
in
point:
‘Although
cases
may
be
found
in
the
books
of
decisions
under
particular
Statutes
which
at
first
might
seem
to
conflict
with
the
maxim,
it
will
be
found
on
consideration
that
they
are
not
inconsistent
with
it,
for
the
rule,
which
is
one
of
elementary
justice,
only
requires
that
a
man
shall
not
be
Subject
to
final
judgment
or
to
punishment
without
an
opportunity
of
being
heard.’
He
then
defined
the
legal
issue
before
him
as
follows:
The
legal
issue
turns
on
whether
the
issuing
of
the
certificate
and
the
registering
thereof
in
the
Federal
Court
of
Canada
constitute
in
effect
a
final
determination
of
any
fundamental
rights
of
the
plaintiff.
Having
so
defined
the
issue
he
continued
to
say:
It
is
clear
that
if
there
were
a
judgment
(which)
fixes
the
liability
for
taxes
and
the
amount
thereof,
there
will
be
no
further
right
to
be
heard
on
the
merits
of
the
case
unless
some
error
had
occurred
on
the
conduct
of
the
trial
or
in
the
making
of
the
decision
which
flows
at
law
from
the
evidence
adduced
at
the
trial
or
from
the
facts
alleged
in
the
pleadings
in
the
case
of
a
judgment
in
default
of
either
appearance
or
pleading.
At
this
point
it
is
significant
to
repeat
that
the
certificate
of
the
Minister
when
registered
does
not
become
a
judgment
but
is
enforceable
as
such
by
the
processes
of
the
Court,
for
which
reason
the
certificate
should
not
recite
a
style
of
cause
where
no
cause
exists.
Addy,
J
then
continues
to
outline
the
right
of
a
taxpayer
to
be
heard
on
the
merit
of
the
assessment
in
these
words:
In
the
case
of
a
certificate
issued
under
section
223,
however,
there
is
a
full
right
to
be
heard
on
the
merits
if
an
objection
to
the
assessment
is
made
within
the
time
limited
for
making
such
an
objection.
and
section
165
provides
for
the
method
of
objecting,
imposes
an
obligation
on
the
Minister
to
reconsider
the
assessment
and
also
confers
the
right
on
a
taxpayer
to
appeal
directly
to
the
Tax
Review
Board
or
to
the
Federal
Court.
While
the
right
of
the
taxpayer
to
contest
an
assessment
is
preserved,
Addy,
J
points
out
the
unique
effect
of
the
registration
of
a
Minister
s
certificate
in
these
words:
The
procedure
laid
down
in
the
Act
gives
full
right
to
the
taxpayer
to
contest
the
assessment
either
before
or
after
the
certificate
is
registered
depending
on
when
the
Minister
has
issued
and
registered
the
certificate.
It
is
clear
that
the
issuing
of
the
certificate
does
not
put
an
end
to
the
normal
right
of
the
taxpayer
to
contest
any
assessment.
It
does,
however,
permit
execution
against
the
assets
of
the
taxpayer
to
take
effect
even
before
the
case
as
to
liability
has
been
finally
heard,
in
the
event
of
the
taxpayer
failing
to
pay
the
tax
in
the
meantime.
The
obligation
to
pay
the
tax,
pending
final
determination
of
the
liability
to
do
so,
is
not
a
final
determination
of
the
taxpayer's
liability
for
the
tax,
since,
notwithstanding
any
such
payment,
it
Is
still
open
to
him
to
contest
the
assessment
and,
if
successful,
to
claim
the
return
of
any
overpayment
after
final
determination.
These
are
obviously
two
different
matters.
Although
it
might
be
argued
that
the
right
to
register
a
certificate,
before
the
liability
to
pay
the
taxes
has
been
finally
determined,
is
an
extraordinary
one,
and
although
that
right
carries
with
it
a
right
to
a
writ
of
execution
which
in
turn
carries
with
it
the
right
to
have
the
assets
seized
and
subsequently
disposed
of
by
Sale
or
otherwise,
the
execution
aspect
is
merely
a
means
of
guaranteeing
or
of
assuring
the
payment
of
the
tax
by
the
taxpayer
either
before
or
after
the
liability
for
same
has
been
finally
established.
In
Morch
v
MNR
[1949]
Ex
CR
327;
[1949]
CTC
250:
4
DTC
649,
it
has
been
held
that
there
is
nothing
unreasonable
or
unduly
oppressive
in
the
summary
procedure
provided
by
Parliament
for
the
registration
of
a
Ministers
certificate
and
the
effects
which
flow
therefrom
where
execution
has
been
issued
on
the
certificate,
notwithstanding
an
objection
to
or
appeal
against
the
assessment.
As
I
have
mentioned
above
and
as
Mr
Justice
Addy
also
states,
the
obligation
of
a
taxpayer
to
pay
the
tax
assessed
against
him
arises
upon
the
assessment,
subject
to
the
right
of
contesting
the
ultimate
liability
therefor.
Addy.
J
expressed
the
policy
of
the
Income
Tax
Act
in
these
words:
The
public
policy
behind
the
power
in
many
taxing
statutes
to
declare
an
amount
payable
before
final
liability
for
the
amount
has
been
determined
and
to
take
effective
steps
of
securing
such
payment
by
means
of
seizure
of
assets
and
of
sale
of
same
if
necessary,
is
of
course
founded
on
the
principle
that
the
tax
collector
must
be
furnished
some
means
of
preventing
tax
avoidance
by
dissipation
of
assets
or
by
the
taxpayer
removing
them
from
the
jurisdiction.
Where
the
fundamental
right
of
the
taxpayer
to
have
his
liability
for
taxes
ultimately
determined
on
the
merits
is
preserved,
such
as
in
the
Income
Tax
Act,
the
powers
given
the
Minister
of
National
Revenue
by
section
223
to
ensure
speedy
and
effective
tax
collection
do
not
infringe
the
principle
of
audi
alteram
partem
or
the
Canadian
Bill
of
Rights.
As
has
been
held
by
my
brother
Thurlow
in
MNR
v
Bolduc
(supra),
the
right
of
the
taxpayer
to
contest
the
facts
upon
which
the
authority
of
the
Minister
to
make
and
register
a
certificate
under
section
223
are
based,
remains
available
to
the
taxpayer.
In
effect
the
result
is
that
while
the
right
of
a
taxpayer
to
contest
an
assessment
to
tax
and
to
impugn
the
Minister’s
certificate
both
remain,
these
rights
are
postponed
and
do
not
constitute
an
impediment
to
the
registration
of
a
certificate
by
the
Minister
under
section
223
on
production
if,
on
its
face,
it
is
in
proper
form.
It
is
not
the
proper
function
of
a
judge
to
enquire
into
the
policy
and
public
expediency
which
motivate
the
legislative
branch
of
government
in
enacting
statutes
save
as
is
necessary
to
determine
the
purpose
and
object
of
a
statute
as
an
aid
in
interpreting
the
intention
of
the
legislature
as
expressed
in
the
words
it
used.
To
do
otherwise
would
be
an
abandonment
of
the
role
of
judge
and
the
assumption
of
the
role
of
the
legislator.
In
comparing
a
certificate
under
sections
123
and
159
of
the
Canada
Labour
Code
which
were
the
subjects
of
decision
in
Public
Service
Alliance
of
Canada,
Local
660
v
Canadian
Broadcasting
Corporation
(Supra)
and
International
Brotherhood
of
Electrical
Workers
v
Central
Broadcasting
Company
Ltd
(supra)
with
a
certificate
under
section
223
of
the
Income
Tax
Act,
different
legislative
intention,
policy
and
procedure
are
apparent.
Under
the
Canada
Labour
Code
there
has
been
a
/is
inter
partes
with
a
hearing
to
be
conducted
within
the
principles
of
natural
justice.
Following
that
hearing
one
party
may
be
directed
by
the
Board
established
under
the
Code
to
do
a
specific
act.
If
there
has
been
a
failure
to
perform
that
act
within
a
time
prescribed,
then
the
adverse
party
affected
thereby
may
file
a
copy
of
the
Boards
order
to
obtain
enforcement
of
that
order
by
the
processes
of
the
Court,
there
being
no
such
facilities
vested
in
the
Board.
The
question
as
to
failure
to
comply
with
the
Board’s
order
within
a
prescribed
time
is
susceptible
to
dispute
and,
being
a
condition
precedent
to
the
filing
and
registration
of
the
order,
it
follows
that
the
filing
and
registration
must
be
by
way
of
an
application,
notice
of
which
has
been
served
on
the
opposite
party,
otherwise
no
opportunity
is
afforded
the
adverse
party
to
be
heard.
That
was
the
ratio
decidendi
of
Public
Service
Alliance
of
Canada,
Local
660
v
Canadian
Broadcasting
Corporation
(supra).
Under
the
Income
Tax
Act
a
sum
of
money
assessed
as
tax
becomes
payable
on
assessment.
Mr
Justice
Addy
has
outlined
the
policy
explicit
in
the
statute
whereby
the
tax
collector
is
empowered
to
seize
the
taxpayer’s
assets
and
thus
preserve
the
certainty
of
collection.
This
is
a
means
to
that
end
and
does
not
end
the
taxpayer’s
right
to
contest
the
assessment
or
the
correctness
of
the
basis
of
the
Minister’s
certificate.
It
postpones
these
rights
with
the
taxpayer’s
assets
secure
in
the
hands
of
the
tax
collector
during
the
interval.
By
virtue
of
section
122
of
the
Canada
Labour
Code
every
order
or
decision
of
a
board
is
final
and
should
not
be
questioned
or
reviewed
in
any
court,
except
in
accordance
with
section
28
of
the
Federal
Court
Act.
As
Cartwright,
J
(as
he
then
was)
stated
in
R
v
Randolph
et
al
(supra)
the
maxim
audi
alteram
partem
has
reference
to
the
making
of
decisions
affecting
the
rights
of
parties
that
are
final
in
their
nature.
Since
an
order
of
a
board
under
the
Labour
Code
is
final
the
maxim
is
applicable,
as
Walsh,
J
held
in
Public
Service
Alliance
of
Canada
v
Canadian
Broadcasting
Corporation
(supra),
but
since
the
certificate
under
section
223
of
the
Income
Tax
Act
is
not
final
but
the
content
thereof
and
the
prerequisites
to
its
making
are
subject
to
attack,
albeit
a
postponed
attack,
the
maxim
is
not
applicable
as
held
by
Addy.
J
in
Lambert
v
The
Queen
(supra).
It
is
for
the
foregoing
reasons
that
I
have
concluded
that
upon
the
production
of
a
Minister’s
certificate
under
section
223
of
the
Income
Tax
Act
proper
on
its
face
such
a
certificate
must
be
accepted
for
registration
under
subsection
(2)
of
section
223.
For
the
reasons
also
expressed
the
certificate
produced
for
registration
in
the
present
application
is
not
a
proper
certificate
on
its
face
because
of
the
objectionable
matter
therein
and
accordingly
I
decline
to
direct
its
registration
in
its
present
form
as
is
requested.
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