Le
Dain,
J:—This
is
an
appeal
and
a
cross-appeal
from
an
order
of
the
Trial
Division
striking
out
the
statement
of
claim
and
dismissing
the
action
as
against
certain
of
the
defendants
other
than
the
Crown
on
the
ground
that
the
Court
lacks
jurisdiction
to
entertain
the
action
as
against
them.
It
is
convenient
in
these
reasons
to
deal
at
the
same
time
with
the
closely
related
issues
in
appeal
A-652-79,
which
is
from
an
order
of
the
Trial
Division
granting
leave
to
amend
the
statement
of
claim
and
to
add
a
defendant,
and
in
appeal
A-622-81,
which
is
from
an
order
of
the
Trial
Division
striking
out
certain
paragraphs
of
the
statement
of
claim
on
the
motion
of
the
Crown.
The
action
is
for
declarations
that
certain
income
tax
assessments
are
invalid
and
the
procedures
taken
to
recover
the
arrears
are
null
and
void,
and
for
damages.
The
action
has
been
continued
since
the
appeals
by
the
administratrix
of
the
estate
of
the
late
William
R
Stephens
(hereinafter
referred
to
as
‘the
plaintiff”).
The
facts
which
must
be
taken
as
established
for
purposes
of
the
appeals
and
the
cross-appeal
are
those
set
out
in
the
statement
of
claim,
as
amended,
and
in
an
agreed
statement
of
facts
submitted
by
the
parties
pursuant
to
a
direction
of
the
Trial
Division.
By
notices
of
assessment
and
reassessment
delivered
March
16,
1979
the
plaintiff
was
assessed
for
income
tax
in
various
amounts,
as
well
as
penalty
and
interest,
for
the
taxation
years
1973,
1974,
1975,
1976
and
1977.
The
notices
bore
in
the
upper
left-hand
corner
the
inscription
“Revenue
Canada
Taxation”.
By
letter
dated
April
17,
1979
the
defendant
R
Smith,
writing
on
behalf
of
the
Chief
of
Collections,
Department
of
National
Revenue,
Taxation,
made
a
demand
for
payment
within
five
days
of
the
total
arrears
in
the
amount
of
$220,760.57.
On
April
23,
1979
the
defendant
J
H
Morrison,
Director—Taxation
in
the
London,
Ontario
district
office
of
the
Department
of
National
Revenue,
Taxation,
made
a
“Demand
on
Third
Parties”,
a
form
of
garnishment
pursuant
to
section
224
of
the
Income
Tax
Act,
by
which
the
sum
of
$167.89
in
the
plaintiff’s
bank
account
in
the
Bank
of
Nova
Scotia,
Woodstock,
Ontario,
was
“seized”,
or,
as
the
section
provides,
paid
over
by
the
bank,
to
the
Receiver
General.
By
letter
dated
April
24,
1979
to
the
defendant
Smith,
the
plaintiff’s
solicitors
informed
him
that
the
plaintiff's
position
was
that
the
liability
to
pay
within
thirty
days
from
the
mailing
of
the
notices
of
assessment,
as
provided
by
subsection
158(1)
of
the
Income
Tax
Act,
had
not
arisen
because
the
notices
of
assessment
delivered
to
the
plaintiff
appeared
“to
be
on
behalf
of
Revenue
Canada,
Taxation,
an
entity
which
does
not
exist
in
law.”
The
plaintiff
took
the
position
that
he
had
not
yet
received
a
notice
of
assessment
within
the
meaning
of
section
158(1).
It
is
alleged
that
the
plaintiff’s
solicitors
had
also
informed
the
defendant
J
M
Wilkie
by
letter
dated
April
20,
1979,
that
this
was
the
plaintiff's
position.
By
letter
dated
April
25,
1979
the
defendant
D
L
H
Davidson,
Assistant
Deputy
Minister
of
National
Revenue
for
Taxation,
directed,
pursuant
to
subsection
158(2)
of
the
Act,
that
the
arrears
of
tax,
penalty
and
interest
be
paid
forthwith.
On
the
same
day
the
amounts
unpaid
were
certified,
pursuant
to
section
223
of
the
Act,
by
the
Director,
Accounting
and
Collections
Division,
Department
of
National
Revenue,
Taxation,
and
the
certificate
was
filed
in
the
Federal
Court
to
have
the
effect
of
a
judgment
of
the
Court.
Again,
on
the
same
day,
at
the
request
of
a
solicitor
of
the
Crown,
a
writ
of
fieri
facias
issued
out
of
the
Federal
Court
directed
to
the
Sheriff
of
the
County
of
Oxford,
Ontario,
to
be
executed
against
the
plaintiff’s
property
in
satisfaction
of
the
amounts
certified
as
unpaid.
The
writ
was
executed
by
the
defendant
L
Statham,
Deputy
Sheriff
of
the
County
of
Oxford,
on
the
following
day.
The
defendants
Wilkie
and
Smith,
both
purporting
to
act
on
behalf
of
the
Director,
Accounting
and
Collections
Division,
Department
of
National
Revenue,
Taxation,
accompanied
the
defendant
Statham
and
instructed
him
to
seize
and
remove
all
chattels
from
the
plaintiff’s
premises.
The
defendant
Statham
seized
the
plaintiff's
chattels
and
prohibited
their
removal
by
“Sheriff’s
Notice
of
Seizure”
dated
April
26,
1979.
The
defendant
Statham
was
also
accompanied
by
the
defendant
Constable
J
Ross.
The
statement
of
claim
concludes
for
declarations
that
the
assessments
of
tax,
penalty
and
interest
for
the
taxation
years
1973
to
1977
inclusive
are
invalid
and
that
the
Notices
of
Assessment
or
Reassessment
for
those
years,
the
certificate
of
unpaid
arrears
filed
in
the
Federal
Court,
the
writ
of
fieri
facias,
and
the
demand
on
third
parties
are
null
and
void;
for
an
order
enjoining
the
defendant
Statham
from
taking
further
proceedings
pursuant
to
the
writ
of
fieri
facias;
for
damages
for
wrongful
seizure
and
trespass
from
all
the
defendants
except
Morrison;
and
for
exemplary
damages
from
all
the
defendants.
Applications
were
originally
brought
on
behalf
of
the
defendants
Wilkie,
Morrison
and
Smith
and
on
behalf
of
the
defendants
Statham
and
Ross
for
orders
under
Rule
419
striking
out
the
statement
of
claim
and
dismissing
the
action
as
against
them,
and
in
the
alternative
for
leave
to
file
conditional
appearances
and
for
orders
directing
the
determination
of
a
question
of
law
under
Rule
474.
By
orders
of
the
Trial
Division
on
June
25,
1979
leave
was
granted
to
these
defendants
to
file
conditional
appearances
for
the
purpose
of
objecting
to
the
jurisdiction
of
the
Court,
with
the
direction
that
an
application
be
brought
under
Rule
474
and
the
parties
file
an
agreed
statement
of
facts
and
memoranda.
Conditional
appearances
were
filed
and
a
single
application
was
made
on
behalf
of
these
defendants
for
an
order
under
Rule
419
striking
out
the
statement
of
claim
and
dismissing
the
action
as
against
them,
apparently
on
the
ground
that
it
does
not
disclose
a
reasonable
cause
of
action
against
them,
and
in
the
alternative,
on
the
ground
that
the
Court
lacks
jurisdiction
to
entertain
the
action
as
against
them.
The
Crown
filed
a
statement
of
defence
but
also
brought
an
application
for
an
order
under
Rule
419
striking
out
subparagraphs
(g),
(h)
and
(i)
of
paragraph
2
of
the
statement
of
claim,
which
contains
the
claims
for
damages.
The
plaintiff
applied
for
leave
to
add
D
L
H
Davidson
as
a
defendant
and
to
amend
the
statement
of
claim
by
the
addition
of
certain
paragraphs
containing
allegations
with
respect
to
him
and
the
capacity
in
which
the
defendants
Morrison,
Smith,
Wilkie,
Statham
and
Ross
had
purported
to
act.
The'three
applications
were
heard
together,
and
the
Trial
Division
made
the
following
orders
on
October
29,
1979:
1.
An
order
granting
leave
to
add
D
L
H
Davidson
as
a
defendant
and
to
amend
the
statement
of
claim
as
sought;
2.
An
order
striking
out
the
statement
of
claim
and
dismissing
the
action
as
against
the
defendants
Wilkie,
Smith,
Statham
and
Ross
on
the
ground
that
the
Court
lacks
jurisdiction
to
entertain
the
action
as
against
them,
but
dismissing
the
application
with
respect
to
the
defendant
Morrison;
and
3.
An
order
striking
out
subparagraphs
(g),
(h)
and
(i)
of
paragraph
2
of
the
statement
of
claim
on
the
ground
that
the
Court
lacks
jurisdiction
to
entertain
these
claims
for
damages
against
the
Crown.
In
his
reasons
the
learned
trial
judge
dealt
first
with
the
application
to
add
Davidson
as
a
defendant
and
to
amend
the
statement
of
claim.
After
allowing
the
amendments
and
the
addition
of
Davidson,
he
gave
Davidson
leave
to
file
a
conditional
appearance
immediately
and
to
be
represented
on
the
application
to
strike
out
the
statement
of
claim
and
dismiss
the
action
as
against
the
defendants
other
than
the
Crown.
The
defendant
Davidson
appeals
in
A-652-79
from
the
order
adding
him
as
a
defendant,
but
his
contentions
are
the
same
as
if
he
were
appealing
from
the
order
on
the
application
of
the
defendants
Wilkie,
Morrison,
Smith,
Statham
and
Ross,
in
so
far
as
it
failed
to
strike
out
the
statement
of
claim
and
dismiss
the
action
as
against
him.
The
defendant
Morrison
appeals
in
A-653-79
from
this
second
order
in
so
far
as
it
dismissed
the
application
to
strike
out
the
statement
of
claim
and
dismiss
the
action
as
against
him,
and
the
plaintiff
cross-appeals
from
the
same
order
in
so
far
as
it
struck
out
the
statement
of
claim
and
dismissed
the
action
as
against
the
defendants
Wilkie,
Smith
and
Statham.
There
is
no
appeal
or
cross-appeal
in
so
far
as
the
order
struck
out
the
statement
of
claim
and
dismissed
the
action
as
against
the
defendant
Ross.
The
plaintiff
appeals
in
A-622-81
from
the
order
striking
out
subparagraphs
(g),
(h)
and
(i)
of
paragraph
2
of
the
statement
of
claim
as
against
the
Crown.
It
is
convenient
to
deal
first
with
the
claims
against
the
defendants
other
than
the
Crown
—
that
is,
the
issues
raised
by
the
appeals
of
the
defendants
Davidson
and
Morrison
and
by
the
plaintiff’s
cross-appeal
against
the
order
Striking
out
the
statement
of
claim
and
dismissing
the
action
as
against
the
defendants
Wilkie,
Smith
and
Statham.
The
principal
contention
here,
and
the
basis
on
which
the
matter
was
disposed
of
in
the
Trial
Division,
is
that
the
Court
lacks
jurisdiction
to
entertain
the
action
as
against
these
defendants.
The
other
question
raised
by
the
appeals
and
the
cross-appeal
—
whether,
apart
from
the
question
of
jurisdiction,
the
statement
of
claim
discloses
a
reasonable
cause
of
action
against
these
defendants
—
may
be
treated
as
alternative
to
the
question
of
jurisdiction.
The
cause
of
action
against
the
defendants
other
than
the
Crown,
to
the
extent
that
there
is
one,
is
in
tort.
They
would
not
appear
to
be
parties
to
the
action
for
purposes
of
the
declaratory
relief
sought,
viewed
as
a
separate
and
distinct
form
of
relief.
Subparagraphs
(g)
and
(h)
of
paragraph
(2)
of
the
statement
of
claim
conclude
for
damages
for
“wrongful
seizure”
and
“trespass”
against
all
the
defendants
except
Morrison.
Subparagraph
(i)
concludes
for
“exemplary
demands”,
which
presumably
means
exemplary
damages,
against
all
the
defendants.
The
only
head
of
Federal
Court
jurisdiction
on
which
the
claims
against
the
defendants
other
than
the
Crown
can
conceivably
rest
is
paragraph
17(4)(b)
of
the
Federal
Court
Act,
which
provides:
(4)
The
Trial
Division
has
concurrent
original
jurisdiction
(b)
in
proceedings
in
which
relief
is
sought
against
any
person
for
anything
done
or
omitted
to
be
done
in
the
performance
of
his
duties
as
an
officer
or
servant
of
the
Crown.
With
one
exception,
it
was
not
contended
in
argument
that
the
claims
against
the
defendants
other
than
the
Crown
did
not
fall
within
the
description
in
paragraph
17(4)(b).
The
exception
is
the
defendant
Statham.
It
was
contended
that
he
was
not
a
servant
of
the
Crown
in
right
of
Canada.
I
agree
with
that
contention.
As
a
deputy
sheriff
of
the
County
of
Norfolk
he
was
acting,
in
the
execution
of
the
writ
of
fieri
facias,
as
an
ex
officio
deputy
sheriff
of
the
Federal
Court
by
virtue
of
subsection
13(2)
of
the
Federal
Court
Act,
which
provides:
“Where
no
sheriff
is
appointed
under
subsection
(1)
for
a
geographical
area,
the
sheriff
and
deputy
sheriffs
of
the
county
or
other
judicial
division
or
part
thereof
within
that
geographical
area
who
are
appointed
under
provincial
law
are
ex
officio
sheriff
and
deputy
sheriffs,
respectively
of
the
Court.”
That
provision
had
the
effect
of
making
Statham
an
officer
of
the
Federal
Court,
but
it
did
not
make
him
a
servant
of
the
Crown
in
right
of
Canada.
As
deputy
sheriff
of
the
Federal
Court,
by
virtue
of
this
statutory
provision,
he
was
not
appointed
by
the
Crown
in
right
of
Canada,
nor
employed
by
it,
nor
subject
to
its
ministerial
control.
It
is
clear
from
the
statement
of
claim,
as
amended,
that
the
defendants
Davidson,
Morrison,
Wilkie
and
Smith
were
servants
of
the
Crown
in
right
of
Canada.
It
further
appears
from
the
statement
of
claim,
as
amended,
that
while
the
acts
of
these
defendants
are
said
to
be
null
and
void
or
without
legal
justification
they
were
purporting
to
act
in
the
performance
of
their
duties
as
servants
of
the
Crown.
I
am,
therefore,
of
the
opinion
that
the
claims
against
them
fall
within
the
terms
of
paragraph
17(4)(b).
The
issue
of
jurisdiction
is
whether
the
claims
against
the
defendants
other
than
the
Crown
are
sufficiently
supported
by
federal
law
to
satisfy
the
requirement
of
Federal
Court
jurisdiction
laid
down
and
applied
by
the
Supreme
Court
of
Canada
in
Quebec
North
Shore
Paper
Company
v
Canadian
Pacific
Limited,
[1977]
2
SCR
1054;
McNamara
Construction
(Western)
Ltd
v
The
Queen,
[1977]
2
SCR
654;
The
Queen
v
Thomas
Fuller
Construction
Co
(1958)
Limited,
[1980]
1
SCR
695;
and
Rhine
and
Prytula
v
The
Queen,
[1980]
2
SCR
442.
The
issue
is
the
relationship
that
must
exist
between
the
cause
of
action
and
the
existing
and
applicable
federal
law
to
give
the
Court
jurisdiction.
The
most
recent
view
of
the
Supreme
Court
of
Canada
on
this
question
is
reflected
in
the
Rhine
and
Prytula
case.
Laskin,
CJ,
delivering
the
judgment
of
the
Court,
said
at
445:
“The
effect
of
the
McNamara
case,
shortly
put,
is
that
there
must
be
existing
and
applicable
federal
law
to
support
the
claims
made
in
these
cases
by
the
Crown
.
.
and
on
the
same
page
he
said,
“The
question
in
these
two
cases
is,
therefore,
whether
it
can
be
said
that
the
source
of
the
claims
by
the
Crown
is
in
existing
federal
law
.
.
With
reference
to
the
case
of
Rhine,
the
Court
held
that
while
the
undertaking
in
question
was
of
a
contractual
nature
it
was
one
that
was
governed
by
the
provisions
of
the
Prairie
Grain
Advance
Payments
Act,
which
provided
for
it.
Laskin,
CJ
said
at
447:
True,
there
is
an
undertaking
or
a
contractual
consequence
of
the
application
of
the
Act
but
that
does
not
mean
that
the
Act
is
left
behind
once
the
undertaking
or
contract
is
made.
At
every
turn,
the
Act
has
its
impact
on
the
undertaking
so
as
to
make
it
proper
to
say
that
there
is
here
existing
and
valid
federal
law
to
govern
the
transaction
which
became
the
subject
of
litigation
in
the
Federal
Court.
It
should
hardly
be
necessary
to
add
that
“contract”
or
other
legal
institutions,
such
as
“tort”
cannot
be
invariably
attributed
to
sole
provincial
legislative
regulation
or
be
deemed
to
be,
as
common
law,
solely
matters
of
provincial
law.
With
reference
to
the
case
of
Prytula,
he
said
at
449:
As
is
correctly
pointed
out
by
the
respondent
in
its
factum,
the
Canada
Student
Loans
Act
and
the
regulations
thereunder
govern
every
aspect
of
the
relationship
between
the
borrowing
student,
the
lending
bank
and
the
guaranteeing
government.
Resort
must
necessarily
be
had
to
the
statute
and
regulations
to
support
any
legal
claims,
whether
by
the
bank
or
by
the
government,
or
to
determine
the
liability
of
the
borrowing
student.
Moreover,
subrogation
of
the
Crown
to
the
claim
of
the
bank
is
expressly
dealt
with.
The
prescribed
form
of
agreement
between
the
student
and
the
bank
emphasizes
this
by
the
student’s
signed
assertion
that
‘I
understand
my
obligations
under
this
Act
and
the
Regulations
and
.
.
.
I
shall
repay
my
total
indebtedness
as
required
by
the
Act
and
Regulations”.
Once
it
is
accepted,
as
it
is
here,
that
the
Act
and
regulations
are
valid,
I
do
not
see
how
it
can
be
doubted
that
there
is
here
existing
and
applicable
federal
law
to
underpin
the
jurisdiction
of
the
Federal
Court.
He
concluded,
at
449,
with
respect
to
the
two
cases
as
follows:
The
short
answer
to
the
issues
raised
by
the
appellants
in
the
two
cases
is
that
each
of
the
statutes
with
which
they
are
respectively
concerned
provides
for
the
advancing
of
federal
funds
or
federally
guaranteed
funds
to
eligible
individuals,
as
defined
in
the
respective
statutes
and
regulations,
and
also
for
repayment
and
the
means
for
enforcing
repayment.
This
is
all
a
matter
of
the
administration
of
a
federal
statute
and
is,
therefore,
within
s
101
of
the
British
North
America
Act.
Consequently,
it
supports
jurisdiction
in
the
Federal
Court
under
s
17(4)(a)
of
the
Federal
Court
Act.
In
the
present
case
it
is
contended
that
the
income
tax
assessments
were
invalid
and
the
defendants
other
than
the
Crown
acted
without
legal
authority
in
seeking
to
recover
the
unpaid
arrears.
The
contention
that
they
acted
without
legal
justification
would
appear
to
be
a
necessary
basis
of
their
liability
in
tort,
if
any.
Thus
the
claims
against
the
defendants
other
than
the
Crown
would
necessarily
involve
the
construction
and
application
of
provisions
of
the
Income
Tax
Act.
Is
this
sufficient
to
give
the
Court
jurisdiction
to
entertain
the
claims
against
them,
having
regard
to
the
implications
of
the
Supreme
Court’s
decision
in
Rhine
and
Prytula?
Having
given
these
implications
the
best
consideration
I
can,
I
have
come
to
the
conclusion
that
it
is
not
sufficient
for
jurisdiction.
What
I
infer
from
Rhine
and
Prytula
is
that
a
cause
of
action
in
contract
(or
tort)
may
be
held
to
be
one
sufficiently
supported
by
federal
law
to
give
the
Federal
Court
jurisdiction
if
the
contractual
or
tortious
liability
can
be
said
to
be
one
that
is
provided
for
by
federal
law.
The
Supreme
Court
appears
to
have
concluded
in
Rhine
and
Prytula
that
the
rights
asserted
there
found
their
source
essentially
or
substantially
in
federal
law
because
of
the
extent
to
which
they
were
provided
for
and
governed
by
the
applicable
federal
statutes.
In
the
present
case,
despite
the
necessary
application
of
the
provisions
of
the
Income
Tax
Act
to
the
question
of
validity
or
legal
justification,
the
right
to
damages
cannot
be
said
to
be
provided
for
by
federal
law.
If
it
exists
at
all,
it
is
created
by
provincial
law.
The
applicable
federal
law
does
not
purport
to
create
or
provide
for
this
right.
This
is
not
a
case,
for
example,
of
an
action
for
breach
of
statutory
duty
for
which
a
right
of
action
can
be
said
to
be
created
by
federal
statute.
The
requirement
of
existing
and
applicable
federal
law
cannot,
as
a
practical
matter,
exclude
the
necessary
application
of
provincial
law
in
the
determination
of
certain
issues
or
incidents
affecting
the
full
extent
of
the
right
being
asserted,
but
the
right
must
be
one
which
is
provided
for
by
federal
law.
For
these
reasons
I
agree
with
the
conclusion
of
the
Trial
Division
that
the
Court
lacks
jurisdiction
to
entertain
the
claim
against
Wilkie
and
Smith.
The
same
would
be
true
of
the
claim
against
the
defendant
Statham
if
he
were
considered
to
be
a
servant
of
the
Crown
in
right
of
Canada.
It
is
equally
true,
however,
of
the
claim
against
the
defendant
Morrison,
who,
for
reasons
that
are
not
clear,
was
not
included
in
the
order
striking
out
the
statement
of
claim
and
dismissing
the
action
as
against
the
defendants
other
than
the
Crown.
I
would
accordingly
allow
his
appeal
and
strike
out
the
statement
of
claim
and
dismiss
the
action
as
against
him,
with
costs
in
this
Court
and
in
the
Trial
Division.
The
cross-appeal
should
be
dismissed
with
costs.
For
the
same
reasons
the
appeal
of
the
defendant
Davidson
in
A-652-79
should
be
allowed
and
the
order
giving
leave
to
add
him
as
a
defendant
and
to
amend
the
statement
of
claim
should
be
set
aside.
I
turn
now
to
the
plaintiff’s
appeal
against
the
order
of
the
Trial
Division
striking
out
subparagraphs
(g),
(h)
and
(i)
of
paragraph
2
of
the
statement
of
claim
on
the
motion
of
the
Crown.
As
against
the
Crown,
those
claims
for
damage
would
be
for
the
vicarious
liability
of
the
Crown
based
on
paragraph
3(1
)(a)
of
the
Crown
Liability
Act,
RSC
1970,
c
C-38,
which
provides:
3.
(1)
The
Crown
is
liable
in
tort
for
the
damages
for
which,
if
it
were
a
private
person
of
full
age
and
capacity,
it
would
be
liable
(a)
in
respect
of
a
tort
committed
by
a
servant
of
the
Crown,
Subsection
4(2)
of
the
Act
lays
down
a
condition
of
this
liability
in
the
following
terms:
(2)
No
proceedings
lie
against
the
Crown
by
virtue
of
paragraph
3(1
)(a)
in
respect
of
any
act
or
omission
of
a
servant
of
the
Crown
unless
the
act
or
omission
would
apart
from
the
provisions
of
this
Act
have
given
rise
to
a
cause
of
action
in
tort
against
that
servant
or
his
personal
representative.
The
Trial
Division
allowed
the
Crown’s
application
on
the
ground
that
the
Court
lacked
jurisdiction
to
entertain
the
claims
for
damages
against
it.
This
conclusion
appeared
to
be
treated
as
following
necessarily
from
the
decision
that
the
Court
lacked
jurisdiction
to
entertain
the
action
as
against
the
defendants
other
than
the
Crown.
I
cannot
agree
with
this
conclusion.
Anomalous
as
it
may
seem
that
the
Court
should
have
jurisdiction
to
enter-
tain
an
action
for
the
vicarious
liability
of
the
Crown
when
it
would
not
have
jurisdiction
to
entertain
an
action
against
the
Crown
servants
for
whose
acts
the
Crown
is
to
be
held
liable,
I
cannot
see
how
that
anomaly
is
to
be
avoided.
The
vicarious
liability
of
the
Crown
and
the
right
of
action
against
it
are
created
by
paragraph
3(1
)(a)
of
the
Crown
Liability
Act
and
would
not
exist
apart
from
it.
Thus
it
appears
to
be
undeniable
that
the
claim
is
founded
on
federal
law.
Whether
the
acts
of
the
defendants
other
than
the
Crown
would
give
rise
to
a
cause
of
action
in
tort,
for
purposes
of
subsection
4(2)
of
the
Act,
must
be
determined
by
what,
in
an
action
against
them,
would
have
to
be
considered
provincial
law,
but
that
cannot,
in
my
respectful
opinion,
make
the
vicarious
liability
of
the
Crown
for
those
acts
any
less
a
cause
of
action
founded
on
federal
law
when
it
is
so
clearly
provided
for
by
the
Crown
Liability
Act.
The
issue,
then,
with
respect
to
the
claim
for
damages
against
the
Crown
is
whether
the
statement
of
claim
discloses
a
reasonable
cause
of
action
for
vicarious
liability
in
tort
for
the
acts
of
the
defendants
Davidson,
Morrison,
Wilkie
and
Smith.
(Since
the
defendant
Statham
was
not
acting
as
a
servant
of
the
Crown
in
right
of
Canada
there
can
be
no
vicarious
liability
for
his
acts.)
That
is
to
be
determined,
in
my
view,
by
considering
whether
the
acts
alleged
to
have
been
committed
by
these
defendants
give
rise
to
a
reasonable
cause
of
action
in
tort
against
any
of
them.
It
is
sufficient
for
the
vicarious
liability
of
the
Crown
that
there
be
a
reasonable
cause
of
action
in
tort
against
one
of
them.
The
act
on
which
the
claim
against
Davidson
is
based
is
his
direction
to
pay
forthwith
made
in
the
exercise
of
the
ministerial
discretion
conferred
by
subsection
158(2)
of
the
Income
Tax
Act
and
delegated
to
him
by
section
900
of
the
Income
Tax
Regulations.
There
is
some
question
as
to
the
precise
nature
of
the
tortious
liability
that
is
invoked
against
him.
Presumably
it
is
for
trespass
since,
having
been
added
as
a
defendant,
he
would
be
covered
by
the
claims
in
subparagraphs
(g)
and
(h)
of
paragraph
2
of
the
statement
of
claim
for
damages
for
wrongful
seizure
and
trespass,
as
well
as
the
claim
in
subparagraph
(i)
for
exemplary
damages.
There
would,
however,
appear
to
be
an
absence
of
causal
connection
between
his
act
and
the
seizure
of
the
plaintiff’s
chattels.
It
may
be
assumed
that
his
act
had
the
effect
of
abridging
the
time
for
payment
(although
in
fact
it
appears
to
have
been
made
more
than
30
days
after
the
mailing
of
the
notices
of
assessment),
but
I
cannot
see
how
that
can
be
said
to
be
a
cause
of
the
seizure.
If
there
is
not
a
cause
of
action
against
him
in
trespass,
then
the
only
category
of
tort
that
might
conceivably
be
invoked
in
his
case
is
the
misfeasance
in
public
office
that
nas
been
recognized
on
occasion
as
consisting
of
the
malicious
or
deliberate
abuse
of
power.
See
MacBride,
Damages
as
a
Remedy
for
Unlawful
Administrative
Action
(1979),
38
Camb
LJ
323.
Apart
from
the
question
of
remoteness
of
the
damage,
I
do
not
think
that
the
allegations
of
the
statement
of
claim,
as
amended,
support
such
a
cause
of
action.
There
is
no
allegation
with
respect
to
Davidson
of
malice,
intent
to
injure,
or
knowledge
that
he
was
clearly
acting
without
authority.
For
these
reasons
I
am
of
the
opinion
that
the
act
of
Davidson
did
not
give
rise
to
a
reasonable
cause
of
action
in
tort.
There
is
also
in
my
opinion
considerable
doubt
about
the
cause
of
action
against
Morrison
based
on
the
exercise
of
the
Minister’s
power
to
make
a
demand
on
third
parties
that
is
conferred
by
section
224
of
the
Act
and
delegated
by
section
900
of
the
Regulations.
He
is
expressly
excepted
from
the
claims
for
wrongful
seizure
and
trespass.
A
demand
on
third
parties
pursuant
to
section
224
is
a
direction
to
a
debtor
of
the
taxpayer
to
pay
what
he
owes,
up
to
the
amount
of
the
sum
owing
by
the
taxpayer
to
the
Crown,
to
the
Receiver
General.
Since
that
act
does
not
involve
an
interference
with
the
possession
of
corporeal
property
I
do
not
see
how
it
could
be
considered
to
be
either
trespass
or
conversion.
There
would
appear
to
be
no
basis
for
treating
it
in
the
same
way
as
the
conversion
of
a
cheque,
in
which
the
face
value
of
the
cheque
is
taken
to
be
the
value
of
the
chattel
that
is
converted.
See
Lloyd's
Bank
v
Chartered
Bank,
[1929]
1
KB
40
at
55-6.
In
so
far
as
the
tort
of
misfeasance
in
public
office
is
concerned,
the
same
observations
apply
to
Morrison
as
to
Davidson.
For
these
reasons
I
am
of
the
opinion
that
the
act
of
Morrison
does
not
give
rise
to
a
reasonable
cause
of
action
in
tort.
I
think
it
may
be
taken
that
the
cause
of
action
asserted
against
Wilkie
and
Smith
is
in
trespass.
They
are
alleged,
in
effect,
to
have
participated
in
a
wrongful
interference
with
the
plaintiff’s
goods.
The
role
which
they
played
and
its
actual
effect
in
the
seizure
are
questions
of
fact
which
would
only
be
made
clear
by
the
evidence.
Although
it
was
the
duty
of
the
defendant
Statham
to
conform
to
the
direction
of
the
Court
contained
in
the
writ
of
fieri
facias,
and
not
to
their
alleged
instructions,
what
actually
took
place,
particularly
with
reference
to
the
extent
of
the
seizure
practised,
would
only
be
established
at
trial.
I
am
not
prepared
at
this
stage
to
hold
that
the
acts
of
the
defendants
Wilkie
and
Smith
could
not
conceivably
give
rise
to
a
cause
of
action
in
tort.
For
these
reasons,
I
am
of
the
opinion
that
the
plaintiff
should
succeed
in
his
appeal
from
the
order
striking
out
subparagraphs
(g),
(h)
and
(i)
of
paragraph
2
of
the
statement
of
claim.
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