Dubé,
J:—This
is
an
application
under
subsection
232(4)
of
the
Income
Tax
Act
to
fix
a
time
and
a
place
for
the
determination
of
the
question
whether
the
applicants
have
a
solicitor-client
privilege
in
respect
of
documents,
records
and
other
papers
seized
on
July
8,
1982,
at
the
premises
of
their
lawyers,
and
kept
under
seal
since
that
time
by
Jacques
Morel,
assistant
sheriff
for
the
district
of
Montreal.
Counsel
for
the
respondents
objects
to
the
application
on
the
ground
that
it
was
not
made
within
14
days
from
the
day
of
seizure.
It
is
common
ground
that
the
seizure
was
carried
out
on
July
8,
1982
pursuant
to
an
order
of
a
judge
of
the
Superior
Court,
district
of
Montreal,
granted
on
June
22,
1982
under
the
provisions
of
subsection
231(4)
of
the
Act.
The
notice
of
motion
of
the
applicants
notifying
that
the
application
will
be
made
before
the
Federal
Court
in
Montreal
on
August
16,
1982
is
dated
July
19,
1982.
It
was
filed
with
the
Federal
Court
on
July
20,
1982.
The
motion
came
up
before
me
on
August
16,
1982
when
counsel
for
the
applicants
asked
and
was
granted
time
to
file
written
arguments
to
meet
the
Objection
of
the
respondents.
The
applicant’s
arguments
are
mainly
to
the
effect
that
the
first
motion
day
during
the
Long
Vacation
in
Montreal
after
the
seizure
was
July
12,
1982
and
that
they
were
not
in
a
position
to
prepare
the
appropriate
application
and
to
give
the
required
three
day
notice
to
the
Deputy
Attorney
General
for
Canada
in
order
to
set
the
application
for
hearing
on
that
date.
The
second
motion
day
in
Montreal
during
the
Long
Vacation,
August
16,
1982,
was
therefore
the
earliest
possible
date
on
which
to
make
the
motion
returnable.
Subsection
232(4)
reads
as
follows:
(4)
Application
to
judge.
Where
a
document
has
been
seized
and
placed
in
custody
under
subsection
(3),
the
client,
or
the
lawyer
on
behalf
of
the
client,
may
(a)
within
14
days,
from
the
day
the
document
was
so
placed
in
custody,
apply,
upon
3
days’
notice
of
motion
to
the
Deputy
Attorney
General
of
Canada,
to
a
judge
for
an
order
(i)
fixing
a
day
(not
later
than
21
days
after
the
date
of
the
order)
and
place
for
the
determination
of
the
question
whether
the
client
has
a
solicitor-client
privilege
in
respect
of
the
document,
and
(ii)
requiring
the
custodian
to
produce
the
document
to
the
judge
at
that
time
and
place;
(b)
serve
a
copy
of
the
order
on
the
Deputy
Attorney
General
of
Canada
and
the
custodian
within
6
days
of
the
day
on
which
it
was
made,
and,
within
the
same
time,
pay
to
the
custodian
the
estimated
expenses
of
transporting
the
document
to
and
from
the
place
of
hearing
and
of
safeguarding
it;
and
(c)
if
he
has
proceeded
as
authorized
by
paragraph
(b),
apply,
at
the
appointed
time
and
place,
for
an
order
determining
the
question.
The
Crown’s
position
is
that
the
14
day
limit
imposed
by
subsection
232(4)
is
mandatory:
if
it
had
been
the
intention
of
the
legislators
to
empower
the
Court
to
grant
an
extension
of
time
they
would
have
said
so.
For
instance,
subsection
167(4)
provides
that
where
no
appeal
has
been
instituted
within
the
time
limited
by
section
172
an
application
may
be
made
to
the
Court
for
an
extension.
The
Act,
however,
does
not
provide
such
an
extension
clause
with
reference
to
section
232.
It
is
also
alleged
by
the
Crown
that
the
applicants
were
not
limited
to
the
motion
days
provided
by
the
Federal
Court
as
they
could
have
applied
to
a
judge
of
the
Superior
Court
of
the
Province
of
Quebec,
who
is
also
a
“judge”
under
paragraph
232(1
)(a).
The
respondents,
therefore,
claim
that
this
Court
is
without
jurisdiction
to
entertain
the
application
beyond
the
1è
days
stipulated
in
the
Act.
The
applicants
submit
that
the
Crown’s
position
is
too
rigid
and
deprives
them
of
a
very
important
right,
namely
the
protection
of
privileged
communications
between
a
solicitor
and
his
client.
Also,
that
a
taxpayer’s
rights
cannot
be
lost
on
mere
technicalities:
a
liberal
interpretation
must
be
chosen
against
this
strict
approach
which
would
result
in
the
loss
of
important
individual
rights.
As
attractive
as
these
arguments
be,
they
do
not
obviously
clothe
the
Court
with
the
authority
to
grant
extensions
of
time
where
no
such
authority
is
spelled
out
in
the
Act.*
Counsel
for
the
applicants
indirectly
raised
another
point
which
deserves
more
favourable
consideration.
Is
the
date
of
the
application
to
a
judge
the
date
when
the
application
is
heard
(August
16,
1982),
or
the
date
when
the
notice
of
motion
is
filed
at
the
Registry
office
of
the
Federal
Court
(July
20,
1982),
the
latter,
of
course,
being
within
the
14
day
limit?
Counsel
provides
authorities!
to
the
effect
that
an
information
in
writing
is
laid
for
the
purposes
of
the
Magistrates
Courts
Act
of
England
when
it
is
received
at
the
office
of
the
clerk
by
a
member
of
the
staff
expressly
or
impliedly
authorized
to
receive
it.
Subsection
232(4)
recites
that
“the
client,
or
the
lawyer
on
behalf
of
the
client,
may
.
.
.
within
14
days
.
.
.
apply
.
.
.
to
a
judge
for
an
order”.
How
does
one
apply
to
a
judge
under
the
Rules
of
the
Federal
Court?
One
does
so
by
filing
and
serving
a
notice
of
motion
with
a
returnable
date
on
a
motion
day.t
As
mentioned,
the
applicants
made
their
motion
returnable
on
the
earliest
possible
returnable
date,
that
is
the
August
motion
day
in
Montreal.
They
might
have
obtained
an
earlier
date
from
a
Superior
Court
judge,
but
they
are
entitled
under
the
Act
to
present
their
motion
before
a
Federal
Court
judge.
In
my
view,
they
did
so
when
they
properly
applied
by
way
of
a
notice
of
motion
duly
filed
within
the
14
day
limit.
The
motion
is
therefore
granted
with
costs
and
the
determination
of
the
question
whether
the
applicants
have
a
solicitor-client
privilege
in
respect
of
the
aforementioned
documents
will
be
heard
on
motion
day
at
the
Palais
de
Justice
in
Montreal
on
Monday,
November
1,
1982
at
10:30
am.
ORDER
Motion
granted
with
costs.
The
day
and
place
for
the
determination
of
the
question
whether
the
applicants
have
a
solicitor-client
privilege
in
respect
of
the
documents
have
been
fixed
at
the
Palais
de
Justice
in
Montreal
on
Monday
November
1,
1982,
at
10:30
am.
The
custodian
will
keep
under
seal
the
said
documents
in
his
custody
until
that
date
when
he
will
produce
them
to
the
presiding
judge.
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