Collier, J. [Orally]: —The plaintiff's motion is for mandamus, as follows:
(a) for an order directing the Defendant to seek advice from internal scientific research experts or comply with Section 37(3) when seeking advice with relation to the carrying on of activities in the field of scientific research and experimental development as to whether any particular activity constitutes scientific research and experimental development in any review that may be necessary of the Plaintiff's scientific research and experimental development business.
Officials of Revenue Canada propose to issue a reassessment in respect of the plaintiff's income tax for 1984, 1985 and 1986. As I understand it, these reassessments will involve claims by the plaintiff for deductions under section 37 of the Income Tax Act — for expenditures in respect of scientific research and experimental development.
The Revenue Department has not appointed an authorized person under subsection 231.1(1). Nor does the Minister intend, before the reassessment is issued, to obtain advice from the departments or agencies referred to in subsection 37(3) of the Act.
That subsection is as follows:
(3) The Minister may obtain the advice of the Department of Regional Industrial Expansion, the National Research Council, the Defence Research Board or any other agency or department of the Government of Canada carrying on activities in the field of scientific research and experimental development as to whether any particular activity constitutes scientific and experimental development.
The plaintiff argues that the Minister’s decision not to seek advice is a violation of section 15 of the Charter of Rights and Freedoms. It is said there will likely be discrimination if the question of his scientific research and experimental development is investigated and decided upon by assessors who have no knowledge or expertise in that field.
There will not be, in my view, any discrimination, in the sense set out in the Charter, if the Minister chooses not to seek advice pursuant to subsection 37(3). The plaintiff can always challenge the validity and basis of his reassessment once it is issued.
Nor can mandamus issue in this case. Subsection 37(3) is discretionary. There is no mandatory duty on the Minister to obtain advice. There is no legal right in the plaintiff to require him to do so. See Maple Lodge Farms Ltd. v. Government of Canada, [1980] 2 F.C. 458 (F.C.T.D.).
The National Harbour Board case is distinguishable. There the Board had a specific duty to do certain things in the harbour, and it refused to carry out that duty. The plaintiffs there were found to have a legal right to mandamus. That is not the situation here.
This motion is dismissed, with costs.
Motion dismissed.