Giles
A.S.P.:-The
proceeding
in
which
the
motion
before
me
is
brought,
arises
because
of
an
inquiry
under
section
231.4
of
the
Income
Tax
Act,
R.S.C.
1985,
c.
1
(5th
Supp.)
(the
"Act”),
and
seeks
declarations
that
sections
231.4
and
5
of
the
Canada
Evidence
Act
are,
for
Charter
reasons,
of
no
force
and
effect.
One
Herbert
B.
Noble,
who
has
been
subpoenaed
as
a
witness
in
the
inquiry
has
commenced
separate
judicial
review
proceedings
seeking
to
have
the
subpoena
quashed,
relying
on
the
argument
that
for
Charter
reasons,
section
231.4
is
of
no
force
and
effect.
Before
me
are
a
motion
in
each
file
seeking
consolidation
and
a
motion
by
the
Crown
in
this
file
seeking
to
strike
out
the
claims
against
the
Minister
of
National
Revenue
and
John
Edward
Thompson,
the
person
authorized
by
the
Minister
to
make
an
inquiry
and
D.
Reilly
Watson
who
was
appointed
the
hearing
officer
before
whom
the
inquiry
was
to
be
held.
Since
I
heard
these
motions,
I
note
that
an
order
has
been
made
in
each
file
on
November
26,
1993
by
Mr.
Justice
McKeown
staying
the
order
of
the
Tax
Court
which
purported
to
appoint
D.
Reilly
Watson
and
also
restraining
D.
Reilly
Watson,
from
acting
as
hearing
officer
and
John
Edward
Thompson
from
conducting
the
inquiry.
I
note
that
the
sole
claims
against
Messrs.
Watson
and
Thompson
are
for
interim
orders
restraining
them
from
acting
until
the
final
determination
of
the
proceedings.
This
is
not
a
case
where
a
subject
is
claiming
damages
against
another
subject
for
an
act
done
purportedly
in
pursuance
of
his
duties
as
a
servant
of
the
Crown,
which
type
of
case
has
frequently
been
held
beyond
the
jurisdiction
of
this
Court.
In
this
case
the
purpose
of
the
proceedings
is
to
stop
the
investigation
permanently
because
the
authorizing
legislation
is
allegedly
void.
As
an
interim
measure
it
is
sought
to
restrain
those
appointed
to
conduct
the
investigation
from
conducting
the
investigation
until
the
validity
of
the
investigation
has
been
finally
determined.
In
my
view,
these
two
individuals
are
proper
parties
and
the
claims
against
them
will
not
be
struck
out.
No
claim
is
made
against
the
Minister
of
National
Revenue.
While
it
might
be
that
if
he
had
not
been
made
a
party
he
could
have
sought
successfully
to
be
added
as
either
a
defendant
or
an
intervenor
because
some
interest
of
his
was
in
issue.
Even
if
an
interest
of
the
Minister
is
in
issue
here,
he
has
not
sought
to
intervene
to
protect
his
interest.
In
fact
he
has
sought
to
be
removed
from
the
action.
Because
the
plaintiff
makes
no
claim
against
the
Minister
and
the
Minister
does
not
seek
to
be
involved
in
the
action,
the
Minister
will
be
removed
as
a
party.
With
regard
to
the
matter
of
consolidation,
there
is
no
provision
in
the
Rules
of
this
Court
for
consolidation
of
actions
and
consolidation
has
frequently
been
refused.
The
Court
has
very
seldom
taken
advantage
of
Rules
to
analogize
to
provincial
rules
allowing
consolidation.
In
addition,
the
proceedings
sought
to
be
consolidated
here
are
not
both
actions.
One
was
commenced
with
a
statement
of
claim
and
the
other
by
a
notice
of
motion.
The
parties
are
not
identical.
It
is
my
view
that
consolidation
should
not
be
ordered.
A
single
point
of
law
will
determine
both
proceedings
so
there
is
obviously
an
advantage
that
the
matters
be
determined
by
the
same
judge.
This
Court
has
frequently
ordered
cases
to
be
tried
together
or
one
after
the
other,
as
the
judge
at
trial
may
determine.
Because
of
the
single
point
of
law
and
the
single
investigation
involved,
it
might
have
simplified
matters
to
stay
one
proceeding
and
allow
the
moving
party
in
the
stayed
proceeding
to
intervene
in
the
continuing
proceeding.
Thus
all
would
have
had
input
in
the
same
proceeding
in
the
decision
as
to
constitutionality.
That
relief
was
not
asked
for
and
cannot
be
granted
in
this
motion.
It
may
well
be
that
consolidation
as
such
having
been
refused,
the
parties
will
be
able
by
agreement
to
find
a
way
of
simplifying
proceedings,
which
presumably
will
be
further
complicated
by
section
57
of
the
Federal
Court
Act.
Order
The
motion
to
strike
the
claim
as
against
John
Edward
Thompson
and
D.
Reilly
Watson
is
dismissed.
The
motion
to
strike
the
claim
as
against
the
Minister
of
National
Revenue
is
granted
and
he
is
struck
from
the
style
of
cause.
The
motion
for
consolidation
is
dismissed.
It
is
ordered
that
this
matter
be
heard
together
with
file
T-992-93,
Herbert
Noble
v.
M.N.R.,
or
immediately
thereafter
as
the
judge
at
hearing
may
decide.
Provided
one
of
the
parties
may,
on
consent
of
all
of
the
parties
to
both
proceedings,
move
to
stay
this
proceeding
or
the
Noble
proceeding
and
for
an
order
granting
the
prosecuting
party
in
the
stayed
proceeding
the
right
to
intervene
in
the
other
proceeding
with
leave
to
present
argument
on
the
constitutional
issue.
Costs
in
the
cause.
Motion
dismissed.
Email this Content