Strayer, J:—An authorization to enter and search was issued on behalf of the Minister of National Revenue on August 11, 1983 with respect to premises and automobiles where relevant documents belonging to the applicant herein were thought to be located. This authorization was executed on August 16, 1983 and numerous documents and materials belonging to the applicant were seized. Since that time two orders have been made by judges of the Trial Division which are relevant to the present proceedings. On September 9, 1983 my colleague Dubé, J gave an order quashing the authorization to enter and search. His order included the following direction:
3. Pending any appeal of this decision, all documents seized shall be delivered into the custody of the Chief of Special Investigations, Kingston National Revenue District Office, Kingston, Ontario, unless counsel for both parties agree to a more convenient disposal of the documents pending the final judicial disposition of the matter.
On March 12, 1984, my former colleague Cattanach, J issued the following order:
The Minister of National Revenue and persons acting under his control and direction are restrained from taking further steps in the investigation of the affairs of Richard G. Lipsey and specifically from conducting an interview with Dr. Lipsey pending the disposition of the appeal from the order of Mr. Justice Dubé dated September 9, 1983 herein.
The relief sought in the first four paragraphs of the present application is for declarations that the Minister and/or his officers have committed certain breaches of these orders. While normally declarations cannot be sought by way of motion, there is precedent in this Court for the grant of declarations on mo- tions where the respondent does not object. In this case counsel for the respondent made clear that he did not object on this procedural ground to the declarations being issued. Beyond that, however, his position was somewhat ambivalent: on the one hand he contended that any such alleged breaches of the previous orders could only be remedied by contempt of court proceedings which had not properly been instituted here, but on the other hand seemed to be inviting me to find that there had been no violation noting all the while that if I so found such a finding would be relied upon as res judicata in any subsequent proceeding that might be brought for contempt of court.
Even with the apparent agreement of counsel on both sides that these declarations should not be declined merely on procedural grounds, I am not prepared to issue them. In my view the substance of the allegations in the first four paragraphs of relief requested is that there have been acts constituting contempt of court. An allegation of contempt of court is a quasi-criminal charge for which there is an established procedure. Rule 355 would appear to be the appropriate procedure in this case and it requires that an application be made for a show cause order specifying with some particularity the acts said to constitute the contempt of court. It would be most inappropriate for me to make declarations with respect to these acts on the basis of inadequate notice and evidence, particularly when such a finding might be treated as res judicata in any proper contempt proceedings. I am therefore exercising my discretion in refusing in these circumstances to issue the declarations requested in paragraphs I to 4.
The next fundamental issue arises out of the relief requested in paragraph 6 for a declaration
... that the Notice of Discontinuance filed by the Minister is null and void in that there has been no judicial disposition of this matter as required by the said Order of The Honourable Mr. Justice Dubé.
The notice of discontinuance in question was for the discontinuation of the Minister’s appeal to the Federal Court of Appeal of the order of Dubé, J of September 9, 1983. The notice of discontinuance was filed in the Court on October 29, 1984 and apparently was first served on the applicant’s solicitors in their offices on November 5, 1984.
Basically, by Rule 1211 an appellant is entitled to discontinue his appeal at any time “by filing a notice stating that he discontinues the appeal, and serving notice on the respondent”. I cannot interpret the order of Mr Justice Dubé to preclude the Minister from exercising that right when he ordered the documents to be held by the Chief of Special Investigations “pending the final judicial disposition of the matter”. It was therefore open to the Minister to discontinue his appeal. While counsel for the applicant contended that the discontinuance was not effective until service of the notice of discontinuance, neither he nor counsel for the Minister were able to assist me with jurisprudence on the question of when a notice of discontinuance becomes effective. My own researches indicate that that matter has not received much consideration, even in relation to the parallel procedure of discontinuation of actions. It appears far from clear that service is essential to make a discontinuance effective: see Cusack et al v Garden City Press Ltd (1979), 22 OR (2d) 126; Pavonia SA v Bison Petroleum & Minerals Ltd (1982), 132 DLR (3d) 309. For the present purposes I think I need not decide that issue. It is clear that at least once the service of the notice of discontinuance was effected on November 5, the discontinuance was valid and operative. I therefore dismiss the application for the relief sought in paragraph 6 of the notice of motion.
Some different issues are raised by paragraphs 5 and 7 concerning notices of assessment under the Income Tax Act. In paragraph 5 a declaration is requested that a notice of reassessment dated September 18, 1984 concerning the applicant’s 1979 income tax is null and void “in that The Honourable Mr Justice Cattanach had ordered on March 12th, 1984, that no further steps were to be taken. . . .” The notice of reassessment referred to was not put before me in evidence nor was any other evidence submitted which would tend to show that the issuing of the notice in any way contravened the order of Cattanach, J. In his order he enjoined the Minister “from taking further steps in the investigation of the affairs of Richard G Lipsey and specifically from conducting an interview with Dr Lipsey . . .”. In the absence of evidence to the contrary, I cannot see how the issue of a notice of reassessment can be regarded as a step in an “investigation” or in an “interview”. In my view it is proper to resort to Mr Justice Cattanach’s “Reasons for Judgment” in interpreting his order. In those reasons it 1s quite apparent that his concern was with “inquiries” or “a fishing expedition” pending the disposition of the appeal from the order of Dubé, J. He did not intend, in my view, to suspend all administration of the Income Tax Act vis-a-vis Dr Lipsey which is what his counsel seems now to be suggesting. I therefore dismiss the application for the remedy requested in paragraph 5. I might add that no authority was provided to me for the proposition that where a notice of reassessment is issued in violation of a court order it is automatically rendered null and void. I think that is a very questionable proposition but not one which I need address having concluded as I do that there was no contravention of Mr Justice Cattanach’s order in this respect.
The relief sought in paragraph 7 was explained by counsel to be an alternative if I declined to provide the relief in paragraph 5. Having so declined, I must then consider whether the relief sought in paragraph 7 should be available. It is all predicated on this Court directing the delivery of a valid notice of assessment for the year 1980. Counsel was unable to refer me to any authority that this Court has to direct the issue of a notice of assessment, nor did he establish a statutory basis for such a duty in the Minister to issue an assessment as might be enforceable by mandamus. I assume that such duty as there is arises under subsection 152(1) of the Income Tax Act which provides:
(1) The Minister shall, with all due dispatch, examine a taxpayer’s return of income for a taxation year, assess the tax for the year, the interest and penalties, if any, payable. ... .
Subsection 152(2) provides:
(2) After examination of a return, the Minister shall send a notice of assessment to the person by whom the return was filed.
Presumably the question of sending a notice under subsection (2) does not arise until the assessment has been completed under subsection (1) which according to that subsection is to be effected “with all due dispatch”. This phrase was considered by Fournier, J in Joseph Baptiste Wilfrid Jolicoeur v MNR, [1961] Ex CR 85 at 98 where he said that these words “have the same meaning as ‘with all due diligence* or ‘within a reasonable time’ ”. I respectfully agree with this interpretation. To issue mandamus the Court must be satisfied that all the conditions have been met for the exercise of the power, and that in the circumstances the official in question has no discretionary power to delay or to refuse taking the step which is sought to be ordered by mandamus. It seems doubtful that a judge could ever by in that position vis-à-vis the issuance of a notice of assessment. If it were possible, the present case is not one in which the Court can be satisfied that an unconditional obligation now exists on the part of the Minister to issue a notice of assessment for 1980. The words “with all due dispatch” invoke a test of reasonability and the evidence does not demonstrate to me that any further delay in issuing this notice of assessment is utterly unreasonable. While there were some considerable delays, for which no explanation was offered, prior to the search and seizure of August 1983, since that time the matter has largely been in suspense becuase of the motion resulting in the order of Dubé, J of September 9, 1983 and the appeal from that order. The delay in proceeding with that appeal was explained by counsel for the Minister as related to the appeals pending in the Federal Court of Appeal in the cases of MNR v Kruger Inc et al (A-1153-83) and in Vespoli et al v The Queen et al (A-979-83), both of which also involved the validity of authorizations to search issued under subsection 231(4) of the Income Tax Act. Decisions in those cases were not handed down until August 30, 1984. The appeal from the order of Dubé, J in the present matter was discontinued by a notice dated October 29, 1984, as noted earlier. In the face of these circumstances, it is certainly not clear that the delay in issuing the notice of assessment up to this point has been so unreasonable that there is an absolute duty now on the Minister to issue the notice, a duty which can be enforced by mandamus. Therefore I am unable to direct the delivery of a notice of assessment for the year 1980.
The remainder of paragraph 7 asks for directions as to “the trial of the issue of the Applicant’s residency during the relevant periods . . .”. This would in any event be premature in relation to 1980 as no notice of assessment has yet been delivered and I am declining to order the delivery of such a notice. As for 1979, as I understand the Income Tax Act since the taxpayer has received the notice of reassessment for 1979 it is now open to him to object to that reassessment and to institute an appeal to this Court if he so wishes. If he does so, it would then be open to him to apply for directions as to steps to be taken in that action. It may be that he can reach an agreement with the Minister for reference of a question of law, fact, or mixed law and fact to the Court under section 173 of the Income Tax Act and subsection 17(3) of the Federal Court Act. In any event, until a proceeding is started in this Court with respect to the assessments, this Court is not seized of those matters and in my view has no authority to give directions as to the trial of any issues with respect to the correctness of the assessments. Having said that, I would certainly think it desirable that the Minister serve a notice of assessment for 1980 and that the parties cooperate in obtaining, if necessary, a judicial determination of the issues at an early date.
The remaining specific relief requested is that in paragraph 8 of the notice of motion requesting an interim order directing the seized documents and materials to be delivered to the custody of the Court. This takes us to the real substance of the present proceedings.
When Mr Justice Dubé gave his order he naturally assumed that there would be an appeal from that order and he therefore only provided in it for custody of the documents and materials pending the outcome of the appeal. He did not specifically provide for any disposition of the documents should the appeal be discontinued. Similarly in his order of March 12, 1984 Mr Justice Cattanach provided that his injunction should continue until “the disposition of the appeal”, again without specifically referring to the possibility of discontinuance of the appeal. When discontinuance did occur, the officers of the Department of National Revenue sought to return the documents and materials to Dr Lipsey or his representatives. After confirming that Dr Lipsey wished the documents and materials to be returned to his solicitors the officials sought to do so, serving the notice of discontinuance at the same time. The solicitors took the position that discontinuance of the appeal was not “final judicial disposition of the matter”, in the terms of the order of Dubé, J nor “disposition of the appeal” as contemplated in the order of Cattanach, J. They therefore refused to accept the documents and materials and the National Revenue officials were obliged to take away with them the objects they had sought to return. It became amply clear from the material and the arguments submitted by the applicant herein that his solicitors declined to receive the documents and materials because they recognized that, once returned to the taxpayer or his advisers, they would become subject to a possible search warrant that might be sought by National Revenue under section 443 of the Criminal Code, the authorization to search under subsection 231(4) of the Income Tax Act having been quashed by the order of Dubé, J. Further, it is obvious that the applicant wishes me to direct that the documents be put in the custody of this Court in order to render them immune from a search warrant that might be duly issued under the Criminal Code.
The request for such directions gives rise to two basic questions: does this Court have any further jurisdiction in regard to the modification of the orders of Dubé, J and Cattanach, J; and if so, should such jurisdiction be exercised?
With respect to the first issue, I shall deal first with the injunction issued by Cattanach, J. It appears that he regarded that as a permanent injunction, “final in nature”, because he dismissed the first application for the injunction on the basis that an affidavit in support of the application was inadequate because based on information and belief, a form suitable only for an interlocutory order. I do not think any question arises as to modification of his order and I therefore need not consider whether I would have jurisdiction to make such a modification. However, as there seems to be some uncertainty as to the legal consequences of the order in the light of the discontinuance of the appeal, it is open to me to make a declaration as to the legal position in the light of what were apparently unforeseen circumstances. I am satisfied that the discontinuance of the appeal amounts to a “disposition of the appeal” within the meaning of the injunction issued by Cattanach, J and I therefore declare that that injunction ceased to have any effect from the time that the appeal was discontinued.
As to the order of Dubé, J, it may be desirable for the sake of certainty to modify paragraph 3 thereof which directed only one form of custody of the documents which was to continue “pending the final judicial disposition of the matter” unless the parties otherwise agreed. It is quite arguable that discontinuance of the appeal amounted to “final judicial disposition”. If that is so, then it would follow from Vespoli et al v The Queen et al (FCA, August 30, 1984) and Lewis v MNR et al (FCTD, November 16, 1984) that the applicant thereby became entitled to the return of the documents and materials and could at any time have insisted upon their return using legal processes if necessary. For greater certainty, however, having regard to the fact that the parties may be concerned about possible liability for contempt of court, I am prepared to make a supplementary order. Notwithstanding the argument of counsel for the Minister that the Court is functus officio with respect to the order of Dubé, J, I am satisfied that I have authority to modify it in the light of changed circumstances not contemplated in the order. If one views the order of September 9, 1983 simply as based on an inherent power of the Court flowing from its power to quash the search authorization, then I believe that Rule 1733 authorizes me to vary it because of a “matter arising subsequent to the making thereof’, namely the discontinuance of the appeal without any further judicial order having intervened to dispose of the documents. Or, if the order is viewed as an interlocutory mandatory injunction, then by Rule 469(5) it is subject to amendment by order of the Court. Therefore, I will modify the order by directing that the documents affected by it be returned to Dr Lipsey’s solicitors Messrs Cunningham, Swan, Carty, Little & Bonham unless Dr Lipsey in the interim directs that they be returned to him instead, such return to be effected on or before December 17, 1984.
I have not considered seriously the request that I direct that all the documents and materials be put in the custody of the Court. There is no continuing proceeding in this Court with respect to which the documents could or should be so held. The only proceeding in this Court in this matter until now has been with respect to an authorization to search and seize which has been quashed, and the disposition of documents and materials seized pursuant to that invalid authorization. The present order terminates that matter.
In my view this application was almost entirely unnecessary and ill-founded. The only orders which I am making are not in the form requested by the applicant. It may well have been unnecessary since as I have said the legal obligation to return the documents arose once the appeal was discontinued. The party in possession of the documents obviously accepted that he had an obligation to return them. Even if the applicant’s solicitors entertained serious doubts about whether there had been “final judicial disposition of the matter” as required in the order of Dubé, J, it was certainly open to them to agree to the receipt of the documents. This would equally have freed the documents from the restraint of that order, as custody was to be maintained by the Chief of Special Investigations “unless counsel for both parties agree to a more convenient disposal” pending final judicial disposition. Obviously National Revenue was prepared to agree to the return because it was attempting to return them. All that the solicitors for the applicant would have had to have done to have met the requirements of the order would have been to agree to the return of the documents by simply accepting them. This application has been therefore essentially without merit and obviously for the purpose of sheltering the documents from any possible search warrant issued under thé Criminal Code. Consequently I will direct that the applicant pay all the costs of this motion.
ORDER
It is ordered that
1. It be hereby declared that the injunction issued by the order of Cattanach, J on March 12, 1984 ceased to have any effect upon discontinuance of the appeal by the Minister of National Revenue and officers of that Department against the order of Dubé, J of September 9, 1983.
2. The documents referred to in paragraph 3 of the order of Dubé, J of September 9, 1983 be returned to the applicant herein Richard G Lipsey by means of delivery to his solicitors Messrs Cunningham, Swan, Carty, Little & Bonham of Kingston, Ontario unless Dr Lipsey directs that they be delivered to him instead, such delivery to be effected on or before December 17, 1984.
3. The application is otherwise dismissed.
4. The applicant shall pay the costs of this motion.
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