Muldoon,
J.:—The
“plaintiff”
herein
has
no
solicitor
of
record,
and
no
barrister
or
other
counsel
appeared
with
or
for
him
at
the
hearing
of
this
matter.
That
may
account
for
the
designations
in
the
style
of
cause
of
"plaintiff"
and
"defendant"
and
not
"applicant"
and
"respondent"
for
his
notice
of
motion
filed
July
23,
1992.
That
notice,
being
far
from
prolix,
is
appropriately
partially
recited
here:
THE
MOTION
is
to
vacate
the
certificate
and
costs
issued
by
this
Honourable
Court
on
January
24,
1992
and
to
dismiss
or
otherwise
discharge
the
writ(s)
of
fieri
facias
in
respect
to
the
said
certificate,
also
issued
by
this
Honourable
Court
on
the
same
date.
THAT
THE
GROUNDS
of
the
motion
are:
(a)
The
amount
certified
is
incorrect
and
no
assessment
was
provided
to
the
plaintiff
as
contained
in
Revenue
Canada
Taxation
documents
in
support
of
the
certificate.
(b)
The
terms
and
conditions
of
the
writ
of
fieri
facias
exceed
the
requirements
contained
in
Revenue
Canada
documents.
(c)
That
Revenue
Canada
Taxation
was
provided
with
the
security
agreed
to
on
June
4,
1992
and
that
Revenue
Canada,
Taxation
has
ignored,
or
in
the
alternative,
concealed
said
security
for
the
purposes
of
obtaining
a
writ
of
fieri
facias.
(d)
That
the
terms
of
the
agreement
of
June
4,
1992
were
breached
by
Revenue
Canada,
Taxation
and
that
Revenue
Canada,
Taxation
caused
such
breaches
for
the
purposes
of
obtaining
a
writ
of
fieri
facias.
(e)
That
the
grounds
stated
by
Revenue
Canada,
Taxation
in
the
documents
in
support
of
certification
and
seizure
are
not
correct
and
are
not
supported
by
fact.
The
following
documentary
evidence
will
be
presented:
(a)
The
affidavit
of
Colin
McPhail,
filed
and
served
with
this
Notice
of
Motion;
(b)
Such
further
and
other
materials
as
this
Honourable
Court
may
permit.
Prior
to
this
matter
having
come
to
hearing
in
Calgary,
two
interlocutory
orders
have
been
made
herein.
The
first,
made
by
Madam
Justice
Reed,
on
July
28,
1992
provides
that
(1)
the
writs
of
fieri
facias
may
not
be
executed
until
this
application
be
disposed
of;
and
(2)
any
additional
interest
payable
by
the
plaintiff
(if
he
be
not
ultimately
successful
on
the
merits
of
this
application)
which
will
arise
as
a
result
of
delay
in
hearing
this
application
will
be
forgiven;
and
the
application
be
adjourned
to
September
1,
1992.
The
second
interlocutory
order,
made
by
Mr.
Justice
MacKay,
on
March
2,
1993,
noted
that
the
plaintiff/applicant
appeared
on
his
own
behalf
and
sought
an
adjournment,
because
he
had
been
served
only
that
morning
with
the
Crown's
affidavits
sworn
by
Jill
Medhurst
and
James
Ackerman,
herein.
The
order
adjourns
this
matter
and
provides
that
the
parties
are
to
exchange
written
outlines
of
their
respective
representations
according
to
a
schedule.
Because
the
parties
have
proceeded
according
to
its
true
configuration
of
a
motion,
an
order
will
be
made,
nunc
pro
tunc,
to
vary
the
style
of
cause,
so
that
Mr.
McPhail
will
be
the
applicant
and
the
Crown
will
be
the
respondent.
The
applicant's
affidavits
are
two
in
number,
reflecting
his
growing
layman’s
understanding
of
the
procedure
and
its
requirements.
No
record
of
his
ever
having
been
cross-examined
on
his
affidavits.
The
applicant
has,
in
effect,
been
monitoring
the
operations
of
the
district
taxation
office
in
his
case,
by
means
of
official
applications
for
access
to
information.
What
the
information
returns
have
revealed
has
rendered
the
applicant,
already
financially
pressed
and
in
relatively
desperate
straits,
somewhat
paranoid
about
the
defendant's
servants’
actions.
He
seems
to
have
come
to
believe
that
rather
than
their
having
been
zealous
merely
to
collect
his
unpaid
income
tax,
they
have
rather
become
determined
to
hurt
him
personally.
The
applicant's
point
of
view
is
somewhat
understandable:
the
public
servants
with
whom
he
has
been
dealing
have
not
credited
every
payment
he
has
made;
they
have
taken
an
inexplicably
long
time
to
implement
his
wife’s
authorization
to
credit
directly
her
income
tax
refunds
to
his
account;
they
have
taken
actions
with
their
notices
and
garnishing
order
which
have
jeopardized
or
even
eliminated
his
and
his
little
firm's
opportunities
to
earn
money
with
which
to
pay
his
arrears;
and
they
stoutly
asserted
that
he
had
failed
to
provide
the
intended
second
mortgage
on
his
interest
in
the
matrimonial
home,
which
was
formerly
agreed
to
be
part
of
the
Minister’s
security,
in
what
was
intended
to
be
an
orderly
payment
and
collection
of
arrears.
Further,
these
objectively
demonstrated
failures
or
thoughtlessnesses
on
the
public
servants'
part
have
so
added
to
the
suffering
and
pressure
of
his
plight
such
that
he
has
resorted
like
a
wounded,
cornered
animal
to
calling
them
liars
and
other
pejorative
names.
Public
servants,
like
the
rest
of
humanity,
naturally
resent
these
brickbats,
and
therefore,
neither
side
has
contributed
much
to
a
calm,
objective
solution
to
the
problem,
if
it
be
soluble
at
all.
That
is,
if
the
applicant
really
cannot
pay
off
his
assessed
income
tax
arrears,
then,
as
Parliament
has
decreed,
the
Minister
can
take
stern
measures
to
realize
arrears
from
the
applicant's
property,
in
common
with
all
taxpayers
in
arrears.
The
legislature
in
this
free
and
democratic
country,
in
common
with
many
other
free
and
democratic
countries,
always
regards
the
collection
of
taxes
to
be
a
matter
of
priority.
It
should
be
noted
that
the
applicant,
for
whatever
reason
if
any,
never
did
file
notices
of
objection
against
the
Minister's
assessments
of
his
1988
and
1989
income
tax,
nor
did
he
seek
any
extension
in
which
to
do
so.
Those
assessments
are
not
in
issue
here,
and
so
the
full
force
of
the
Appeal
Division’s
judgment
in
Optical
Recording
Laboratories
Inc.
v.
Canada,
[1990]
2
C.T.C.
524,
90
D.T.C.
6647
(F.C.A.),
does
not
apply
here,
since
this
Court
will
not
be
purporting
to
disturb
or
quash
the
notices
of
assessment.
That
judgment
in
the
reasons
therefore
did,
however,
have
something
relevant
to
say
in
the
present
circumstances,
at
page
532
(D.T.C.
6653),
beginning
with
consideration
of
provisions
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act"),
thus:
Subsection
220(1)
requires
the
Minister
to
"administer
and
enforce
[the]
Act
and
control
and
supervise
all
persons
employed
to
carry
out
or
enforce
[the]
Act.
.
.
."
Subsection
220(4)
[as
am.
by
S.C.
1984,
c.
45,
section
88]
states
that:
220(4)
The
Minister
may,
if
he
considers
it
advisable
in
a
particular
case,
accept
security
for
payment
of
any
amount
that
is
or
may
become
payable
under
this
Act.
The
power
which
he
is
so
given
is
to
ensure
that
payment
of
the
indebtedness
by
the
debtor
is
ultimately
secure.
Normally
the
security
provided
would
be
monetary
in
nature.
But
the
Minister’s
power
is
not
limited
to
the
statutory
power
to
take
security
of
that
nature.
He
is
empowered
by
virtue
of
his
office,
to
manage
his
department,
not
exclusively
from
an
administrative
point
of
view
but
also
from
the
point
of
view
of
what
has
in
England
been
described
as
“management
of
taxes”
which
I
take
it
means
that
as
a
creditor
he
has
the
right
to
arrange
payment
for
a
tax
indebtedness
in
such
a
manner
that
best
ensures
that
the
whole
will
ultimately
be
paid.
For
example,
if
insistence
on
payment
in
full
when
due
might
jeopardize
the
solvency
of
the
taxpayer,
with
consequent
loss
of
potential
for
payment
in
full,
and
if
the
taxpayer
can
continue
in
business
by
giving
him
time
to
pay,
in
his
discretion
the
Minister
might
arrange
for
payment
in
instalments
with
such
security,
if
any,
as
he
deems
necessary.
Effectively,
such
a
course
protects
the
Revenue
and,
as
well,
the
taxpayer’s
solvency
and
continued
ability
to
pay
taxes.
It
applies
too
to
the
taxpayer
satisfying
the
Minister
in
Part
VIII
tax
situations
that
the
taxpayer
will
eliminate
its
liability
by
year
end.
Such
a
course
of
conduct
ought
to
be
encouraged,
not
discouraged.
The
above
quoted
words
of
Mr.
Justice
Urie
in
the
Optical
Recording
case,
supra,
express
an
ideal
of
which
the
protagonists
in
this
case
fell
somewhat
short
some
time
or
times
after
June
13,
1992,
when
it
appeared
that
the
Minister's
employees
and
the
applicant
had
proceeded
in
the
spirit
of
Mr.
Justice
Urie's
ideal
and
that
both
sides
were
ad
idem.
Thus
in
paragraph
11
of
the
applicant's
affidavit
he
avers:
11.
THAT
attached
to
this
my
Affidavit
and
marked
as
Exhibit
“F”
is
a
copy
of
the
letter
from
Bell
Felesky
Flynn
to
the
Collections
Section,
Calgary
District
Office
dated
June
4,
1991
as
a
result
of
discussions
between
Bell
Felesky
Flynn
and
the
Collections
Section
on
my
behalf.
In
particular
this
document
addresses
a
mortgage
in
favour
of
Revenue
Canada,
Taxation,
limited
to
my
own
equity
in
the
principle
[sic]
residence.
That
letter
is
of
some
importance
in
assaying
the
quality
of
the
parties’
attempt
to
live
up
to
Mr.
Justice
Urie’s
bright
ideal
expressed
in
the
quoted
passage
from
Optical
Recording,
supra.
Here,
then,
in
virtual
extenso
is
exhibit
F
to
the
applicant's
affidavit,
the
letter
from
Mr.
D.
Blair
Nixon
of
Bell
Felesky
Flynn.
(Rather
than
sprinkle
the
quotation
to
follow
with
sics,
one
may
simply
note
that
the
adjective
which
modifies
"residence"
ought
to
be
“principal”,
and
not
"principle".)
Department
of
National
Revenue,
Taxation
Attention:
Mr.
Clive
Wilson
Re:
Scandia
Resources
Ltd.
and
Mr.
Colin
B.
McPhail
Further
to
our
discussion
on
May
31,
1991,
we
would
like
to
set
out
what
we
understand
to
be
the
arrangement
between
the
Department
of
National
Revenue,
Taxation
(the
''Department")
and
the
above
mentioned
taxpayers.
1.
Scandia
Resources
Ltd.
("SRL")
[the
applicant’s
little
enterprise]
will
make
a
monthly
installment
[instalment]
of
$1,000
in
respect
of
its
outstanding
tax
liability.
This
monthly
installment
[instalment]
will
be
made
on
a
regular
basis.
Every
attempt
will
be
made
to
remit
this
installment
[instalment]
to
the
Department
on
or
before
the
last
working
day
of
each
month,
until
such
time
as
SRL's
income
tax
liability
has
been
eliminated.
2.
Mr.
Colin
B.
McPhail
will
make
every
attempt
to
make
a
monthly
installment
[instalment]
of
up
to
$500
in
respect
of
his
outstanding
tax
liability.
This
monthly
installment
[instalment]
will
be
made
on
a
regular
basis.
Every
attempt
will
be
made
to
remit
this
installment
[instalment]
to
the
Department
on
or
before
the
last
working
day
of
each
month,
until
such
time
as
Mr.
McPhail’s
income
tax
liability
has
been
eliminated.
(We
may
wish
to
discuss
this
matter
further.
It
is
possible
that
Mr.
McPhail
will
require
additional
surgery
and/or
hospitalization
in
which
case
it
may
be
necessary
to
temporarily
revise
this
repayment
schedule.
Should
that
become
necessary
Mr.
McPhail
will
advise
the
Department.)
3.
SRL
will
provide
the
Department
with
a
summary
of
its
projected
cash
flow
as
at
the
end
of
each
month,
commencing
with
the
month
ended
June
30,
1991.
4,
Please
find
enclosed
copies
of
the
1990
income
tax
returns
for
each
of
Mr.
and
Mrs.
McPhail.
5.
Please
find
enclosed
a
letter
of
authorization
from
Mrs.
McPhail
to
the
Department
assigning
her
income
tax
refund
that
is
expected
to
arise
in
respect
of
her
1990
income
tax
return
to
the
Department.
It
is
our
understanding
that
the
proceeds
of
this
refund
will
be
applied
to
Mr.
Colin
McPhail’s
outstanding
income
tax
liability.
6.
The
Department
will
not
require
a
general
assignment
of
book
debts
of
SRL's
accounts
receivable.
7.
Mr.
McPhail
will
make
arrangements
to
grant
a
mortgage
on
his
principle
residence
to,
and
in
favour
of,
the
Department.
This
mortgage
will
be
limited
to
Mr.
McPhail’s
equity
in
the
principle
residence
that
is
owned
by
Mr.
and
Mrs.
McPhail.
Mr.
and
Mrs.
McPhail
will
be
refinancing
their
principle
residence
during
July,
1991
as
their
mortgage
is
up
for
renewal
on
July
31,
1991.
In
view
of
these
refinancing
negotiations,
the
Department
has
agreed
that
it
will
not
register
its
mortgage
on
the
principle
residence
until
such
time
as
this
refinancing
with
a
financial
institution
has
been
completed
provided
(a)
the
Department
is
entitled
to
any
additional
funds
(the
“additional
funds")
that
arise
as
a
result
of
the
refinancing
of
the
principle
residence
for
a
mortgage
that
is
greater
than
is
currently
the
case;
and
(b)
the
Department
is
entitled
to
register
its
mortgage
on
the
principle
residence
after
the
refinancing
is
complete,
including
the
registration
of
the
financial
institution's
mortgage.
These
conditions
will
be
communicated
to
the
conveyancing
lawyer
who
will
be
handling
this
refinancing
as
soon
as
we
are
aware
of
who
that
is
to
be.
We
already
have
Mr.
McPhail’s
instructions
in
that
regard.
Bell
Felesky
Flynn
will,
on
a
best
efforts
basis,
take
steps
to
ensure
that
the
above
mentioned
conditions
are
satisfied.
With
respect
to
the
above
mentioned
conditions,
Mr.
McPhail
advises
that
the
roof
of
the
principle
residence
is
in
bad
need
of
repair.
We
would
like
to
discuss
the
prospect
of
allowing
some
of
the
additional
funds,
if
any,
to
be
available
to
Mr.
McPhail
for
that
purpose.
Mr.
McPhail
has
advised
us
that
a
mortgage
will
be
drafted
in
favour
of
the
Department
as
soon
as
is
reasonably
possible.
We
have
discussed
the
matter
with
Mr.
McPhail
and
he
has
agreed
to
provide
a
draft
copy
of
the
said
mortgage
to
the
Department
for
its
review
prior
to
execution.
We
would
appreciate
confirmation
from
the
Department
that
the
above
mentioned
comments
fairly
reflects
its
understanding
of
the
arrangements
between
it,
Mr.
McPhail
and
SRL.
As
discussed,
please
find
enclosed
the
$1,000
to
be
applied
against
SLR's
outstanding
obligation
to
the
Department.
We
would
also
appreciate
an
accounting
of
the
outstanding
liabilities
owed
to
the
Department
by
both
Mr.
McPhail
and
SRL.
As
a
final
matter,
the
above
steps
are
being
taken
in
an
effort
to
cooperate
with
the
Department
and
to
assist
in
the
economic
survial
[sic]
of
SRL.
We
believe
this
will
be
in
the
interest
of
all
concerned.
If
the
opportunity
presents
itself,
Mr.
McPhail
advises
that
the
outstanding
indebtedness
will
be
retired
earlier
than
the
above
payment
schedule
would
suggest.
In
the
interim,
we
trust
that
no
further
collection
proceedings
will
be
taken
unless
the
matter
is
first
brought
to
our
attention
so
that
we
can
advise
the
taxpayers
and
allow
corrective
action,
as
necessary.
If
you
have
any
questions,
please
call.
[Emphasis
added.]
It
is
apparent
that
the
applicant's
then
solicitors
knew
and
understood
the
ideal
which
is
expressed
in
the
Optical
Recording,
supra,
judgment,
as
witness
the
emphasized
sentences
toward
the
end
of
their
letter.
Item
7
refers
to
the
mortgage.
An
official,
James
Ackerman,
responded.
A
copy
of
his
briefer
letter
dated
June
13,
1991
is
exhibit
G
to
the
applicant's
affidavit,
thus:
Bell
Felesky
Flynn
Attention:
D.
Blair
Nixon
Re:
Scandia
Resources
Ltd.
and
Colin
B.
McPhail
With
regard
to
the
above
and
your
correspondence
dated
June
4,
1991
to
the
attention
of
Mr.
Clive
Wilson
of
this
Department.
Please
be
advised
that
the
arrangements
regarding
the
accounts
are
confirmed.
We
have
requested
that
Winnipeg
Taxation
Centre
forward
a
statement
of
account
for
both
to
your
attention
but
due
to
filing
season
this
may
take
over
a
month
to
receive.
Further,
please
be
advised
that
it
is
the
policy
of
this
Department
to
review
all
accounts
every
six
months
with
the
intent
to
increase
payments,
if
possible.
Should
you
have
any
further
queries,
please
contact
the
writer
at
[telephone
number].
Mr.
Ackerman,
in
writing
that
the
account
would
be
reviewed
every
six
months
with
"the
intent
to
increase
payments,
if
possible"
did
not
indicate
that
he
would
take
action
to
crush
"the
taxpayer’s
solvency
and
continued
ability
to
pay
taxes"
as
was
praised
in
the
Optical
Recording
case,
supra.
However
crush
he
did,
in
sending
out
requirements-to-pay,
in
effect,
garnishing
orders,
or
third-party
demands
on
July
12,
1991
to
Scandia’s
banker
and
clients:
Alberta
Treasury
Branches,
Applied
Terravision
Systems
Ltd.,
Trizec
Corporation
Ltd.,
and
Kerr-
McGee
Canada
Ltd.
Exhibit
I
to
the
applicant's
affidavit
refers
to
his
letter
to
his
lawyer
setting
out
all
the
details.
Paragraphs
15
and
16
of
the
applicant's
affidavit
run:
15.
THAT
I
have
attempted
to
obtain
the
reasons
from
Revenue
Canada
as
to
the
issue
of
the
third
party
demands
by
Jim
Ackerman.
Revenue
Canada
have
not
provided
that
information
and
a
complaint
with
the
Access
Commissioner
in
Ottawa
and
the
Deputy
Minister
has
been
filed.
16.
THAT
the
Collections
Section,
Calgary
District
Office
refused
to
remove
the
third
party
demands
until
a
waiver
in
respect
to
subsection
227.1
of
the
Income
Tax
Act
was
provided
to
the
Chief
of
Collections.
The
waiver
was
provided
under
duress
on
July
25,
1991.
A
copy
of
the
waiver
is
attached
to
this
my
affidavit
and
marked
as
Exhibit
"J".
Exhibit
I
is
a
copy
of
a
letter
from
the
applicant
to
his
solicitor,
Mr.
Blair
Nixon,
dated
July
24,
1991.
At
the
risk
of
over-extending
these
reasons
some
pertinent
passages
should
be
recited
here
for
their
relevance.
Our
payment
of
$1,000
was
sent
by
All-Pro
Courier
to
the
attention
of
Jim
Ackerman
on
Monday
July
8,
1991
having
received
funds
from
my
disability
insurance
to
cover
the
cheque
which
was
sent
from
Toronto
on
Friday
July
5,
1991
by
Purolator
Courier.
The
requirements
to
pay
were
issued
by
Jim
Ackerman
on
Wednesday,
July
10,
1991
and
mailed
on
Friday
July
12,
1991,
four
days
after
payment
was
received.
The
requirements
to
pay
issued
to
Scandia
Resources
Ltd.,
Kerr-McGee
Canada
and
Alberta
Treasury
Branches
on
Monday,
July
15,
1991.
It
is
assumed
that
Applied
Terravision
Systems
Ltd.
and
Trizec
Corporation
Ltd.
received
their
notices
on
the
same
date.
You
returned
a
telephone
call
to
Jim
Ackerman
on
Monday,
July
15,
1991
and
were
advised
that
legal
action
had
been
implemented
by
Jim
Ackerman.
A
message
to
call
you
was
left
on
the
Scandia
Resources
Ltd.
answering
machine.
On
Tuesday,
July
16,
1991
I
was
advised
by
both
Alberta
Treasury
Branches
and
Kerr-
McGee
Canada
Ltd.
that
they
had
received
a
requirement
to
pay
notice.
Also
on
July
16,
1991,
I
advised
you
by
telephone
that
a
remittance
had
been
made
to
Revenue
Canada
and
that
support
would
be
faxed
to
you
on
July
17,
1991.
On
Wednesday,
July
17,
1991
I
faxed
a
copy
of
the
Scandia
Resources
Ltd.
cheque
issued
to
Revenue
Canada
and
a
copy
of
the
courier
way
bill.
You
contacted
Jim
Ackerman
and
advised
that
payment
had
been
made.
Ackerman
requested
a
signed
copy
of
the
courier
way
bill.
On
Thursday,
July
18,
1991,
I
faxed
you
a
signed
copy
of
the
courier
way
bill.
You
again
contacted
Jim
Ackerman,
who
acknowledged
that
the
payment
had
been
received
and
credited
to
our
account
and
advised
that
the
requirements
to
pay
would
be
removed.
You
telephoned
me
on
July
18,
1991
to
advise
that
the
requirements
to
pay
would
be
removed
and
that
you
had
requested
that
notification
be
provided
to
me
when
the
notices
were
available
for
pickup.
You
also
advised
that
no
communication
would
be
sent
to
the
Director
of
the
Calgary
District
Office
as
the
matter
had
been
resolved.
Based
on
the
information
that
you
provided
to
me
on
July
18,
1991,
I
informed
our
bank
and
customers
that
notices
would
be
provided
to
them
on
Friday,
July
19,1991
or
Monday,
July
22,
1991.
I
also
advised
a
vendor
that
a
monthly
equipment
payment
returned
by
our
bank
due
to
the
actions
of
Jim
Ackerman
should
be
re-presented
for
payment,
our
landlord
was
advised
that
the
July
rent
payment
would
be
available
today,
July
24,
1991
and
our
bank
was
informed
that
the
overdraft
would
be
cleared
with
funds
from
Kerr-McGee.
On
Tuesday,
July
23,
1991
I
contacted
you
to
advise
that
notices
to
cancel
the
requirements
to
pay
had
not
been
received
by
our
bank
or
our
customers.
Today,
Wednesday,
July
24,
1991,
a
full
week
after
you
advised
me
that
the
matter
was
resolved.
I
understand
that
after
your
discussions
with
Clive
Wilson
yesterday
and
today,
only
the
requirement
to
pay
issued
to
the
Alberta
Treasury
Branch
was
authorized
to
be
removed
by
Clive
Wilson.
That
notice
will
only
be
released
after
a
waiver
is
signed
by
an
officer
of
Scandia
Resources
Ltd.
The
consequences
of
not
providing
removal
notices
for
the
requirements
to
pay,
which
we
were
led
to
believe
was
to
occur
week
ago,
have
serious
implications
regarding
our
ability
to
honour
our
commitment
to
Revenue
Canada,
our
commitment
to
our
bankers
and
the
ability
to
conduct
business.
At
this
point
in
time,
we
cannot
raise
invoices,
request
payment
from
our
clients
or
make
a
bank
deposit
in
order
to
meet
our
payment
schedule
to
Revenue
Canada
or
to
meet
our
obligations
to
our
vendors.
The
longer
that
this
situation
continues
the
worse
the
situation
becomes.
We
regard
the
comment
made
to
us
by
our
bankers
this
week
to
be
particularly
valid.
"Revenue
Canada
do
not
want
Scandia
Resources
to
survive,
they
want
you
out
of
business
to
remove
the
debt
and
cause
you
as
much
pain
as
possible."
No
doubt
had
the
respondent
moved
to
expunge
the
last
sentence,
it
would
have
been
expunged
for
being
speculative,
self-serving
hearsay.
It
does,
however,
indicate
the
applicant's
sense
of
betrayal
and
desperation
in
the
treatment
he
received
from
the
respondent's
servants.
Exhibit
K
is
a
copy
of
another
later
requirement-to-pay
issued
by
them
on
August
13,
1991.
Exhibit
M
is
a
copy
of
the
very
mortgage
document
sent
to
Revenue
Canada,
as
described
in
Bell
Felesky
Flynn’s
letter
of
June
4,
1991,
exhibit
F.
It
is
in
the
amount
of
only
$8,320,
but
it
was
after
all
accepted
being
“limited
to
Mr.
McPhail’s
equity
in
the
principle
[sic]
residence
that
is
owned
by
Mr.
&
Mrs.
McPhail”.
The
applicant,
after
all,
could
not
equitably
charge
his
wife's
interest
in
their
family
residence,
even
if
she
co-operatively
would
have
signed
that
mortgage
on
jointly
owned
by
them.
Now,
paragraph
22
of
the
applicant's
affidavit
is
pertinent,
thus:
22.
THAT
attached
to
this
my
affidavit
and
marked
as
Exhibit
"O"
is
a
copy
of
my
letter
dated
April
27,
1992
following
a
statement
by
the
Chief
of
Collections
and
the
Director
Taxation
Calgary
District
Office
that
a
mortgage
document
was
never
received
by
the
Collections
Section.
Paragraphs
23
and
24
tell
their
true
tale,
but
bring
into
question
the
ideal
earlier
above
stated
in
the
Optical
Recording
case,
supra,
about
the
Minister's
imputed,
extra-statutory,
ex
officio
power
to
make
arrangements
to
ensure
tax
collection
without
necessarily
jeopardizing
the
taxpayer’s
solvency.
What
if
the
Minister's
minions
appear
to
be
going
back
on
the
arrangements?
23.
THAT
attached
to
this
my
affidavit
and
marked
as
Exhibit
"P"
is
a
copy
of
a
letter
from
the
Director
Taxation,
Calgary
District
Office
confirming
the
mortgage
was
received
on
August
30,
1991
and
stating
it
was
contingent
on
terms
and
conditions
not
present
in
the
agreement
of
June
4,
1991
or
contained
in
any
documents
or
records
provided
to
me
or
the
law
firm
of
Felesky
Flynn.
24.
THAT
I
believe
that
the
Collections
Section
have
deliberately
breached
arrangements,
concealed
information
and
have
acted
in
a
deliberately
deceitful
manner
in
respect
to
the
security
demanded
and
provided
for
the
personal
tax
account.
It
is
clear
that
the
respondent's
servants'
conduct
had
aggravated
the
applicant's
sense
of
paranoia.
It
is
equally
clear
that
his
conduct
also
aggravated
their
sense
of
irk
with
him,
as
illustrated
in
a
letter
dated
May
26,
1992
(exhibit
P)
addressed
to
the
applicant
by
one,
A.
Stubel,
Director-Taxation,
Calgary
District
Office,
on
page
2:
It
is
obvious
you
have
obtained
a
considerable
volume
of
material
from
access
to
information
and
privacy
area
of
our
office
and
I
am
further
advised
you
continue
to
do
SO.
Of
course,
that
is
no
crime.
This
is
the
letter
in
which
the
earlier
denied
receipt
of
the
mortgage
document
is
rectified.
The
draft
mortgage,
provided
"to
the
Department
for
its
review
prior
to
execution"
[by
the
McPhails]
(exhibit
F,
item
7,
second
page),
"was
received
in
the
District
Office
on
August
30,
1991”
(exhibit
P,
last
paragraph,
first
page).
From
August
30,
1991
to
May
26,
1992,
is
a
long
time
to
waken
to
the
fact
that
the
draft
document
had
been
received
in
compliance
with
the
parties’
agreement.
The
aggravation
continued.
The
appraiser
whom
the
respondent
sent
in
November,
1991,
to
appraise
the
McPhail’s
principal
residence,
truly
seemed
not
to
go
about
his
task
in
a
professional
or
competent
manner.
He
appears
to
have
assessed
a
too-high
value
to
that
dwelling.
The
public
service
strike
taking
place
during
the
course
of
the
matter
complicated
relations.
The
respondent
provided
confidential
information
by
facsimile
transmission
to
the
friend's
station
from
which
the
applicant
transmitted
material
to
the
respondent
(a
natural
mistake,
but
careless).
The
applicant
posed
to
the
respondent
a
list
of
questions
so
long
as
to
try
the
patience
of
the
most
unflappable
public
servant.
And
on
and
on.
One
fact
is
clear
however,
and
that
is
that
it
was
on
January
24,
1992
that
the
respondent
sought
the
writs
of
fieri
facias,
while
the
respondent
believed,
without
ever
verifying,
that
the
applicant
had
reneged
on
his
undertaking
to
provide
a
draft
mortgage
for
the
respondent's
perusal.
Exhibit
CC
demonstrates
that
very
clearly.
So,
the
big
problem
is
that
the
respondent,
at
cross-purposes
with
the
"ideal"
set
out
by
Mr.
Justice
Urie
in
Optical
Recording,
supra,
shot
first,
and
accused
later.
How
appears
that
judicially
accorded
immunity
of
the
Minister
from
being
called
to
account
for
extra-legal,
or
extra-statutory
powers
when
the
exercise
of
them
turns
sour
as
here?
To
make
the
Minister
and
his
employees
immune
from
review
and
remedy
for
misleading
taxpayers
and
for
negligence
certainly
goes
against
the
rule
of
law,
upon
which
Canada’s
Constitution
is
founded.
Such
immunity,
which
Optical
Recording,
supra,
seems
to
grant,
appears
to
accord
the
Minister
the
untouchable
status
of
an
absolute
dictator.
Must
the
McPhails
of
this
world
suffer
without
recourse
as
the
Minister’s
counsel
contends?
That
is
surely
an
unconstitutional
proposition
in
terms
of
respect
for
the
rule
of
law.
Some
expectation
of
review
is
now
developing
in
regard
to
the
Minister’s
acting
beyond
the
confines
of
the
legislation,
as
can
be
noticed
in
the
albeit
special
circumstances
of
Montreal
Aluminium
Processing
Inc.
v.
A.-G.
(Canada)
and
M.N.R.,
[1993]
1
F.C.
D.
9,10/F.
15
&
16,
(1992)
146
N.R.
74.
There,
the
taxpayer
brought
an
action
for
a
declaration
that
the
Minister
had
no
authority
to
issue
a
"requirement
for
information
and
production
of
documents",
where
the
information
was
sought
by
U.S.
tax
enforcement
officials.
After
considering
the
Canada-United
States
Tax
Convention
Act,
1984,
Chap.
20,
on
the
Minister’s
application
to
strike
out
the
statement
of
claim,
Mr.
Justice
Hugessen,
for
the
unanimous
panel,
stated
at
page
79:
In
my
view,
it
is
arguable
that
the
recipient
of
a
requirement
is
entitled
to
a
fair
notice
as
to
the
purpose
for
which
the
Minister
purports
to
exercise
his
powers
under
subsection
231.2(1).
Accordingly,
it
is
my
opinion
that
a
claim
that
a
false
or
misleading
statement
of
purpose
invalidates
a
requirement
is
not
one
that
it
is
obvious
and
beyond
doubt
will
fail.
I
would
allow
the
appeal,
I
would
set
aside
the
decision
of
the
motions
judge
and
would
dismiss
the
defendants’
motion
to
strike
with
costs
here
and
below.
So
this
type
of
challenge
is
no
longer
unthinkable,
if
it
ever
truly
was.
Now,
it
is
in
regard
to
those
non-statutory
powers
accorded
—
or
at
least
recognized
—
earlier
by
the
Appeal
Division
in
Optical
Recording,
supra,
that
one
may
apply
the
rule
of
law.
It
may
be
succinctly
extracted
from
the
Supreme
Court's
decision
in
Reference
re
Manitoba
Language
Rights,
[1985]
1
S.C.R.
721,
19
D.L.R.
(4th)
1,
[1985]
4
W.W.R.
385.
At
pages
748-79
(D.L.R.
22;
W.W.R.
408),
the
Court
is
reported
thus:
The
rule
of
law,
a
fundamental
principle
of
our
Constitution,
must
mean
at
least
two
things.
First,
that
the
law
is
supreme
over
officials
of
the
government
as
well
as
private
individuals,
and
thereby
preclusive
of
the
influence
of
arbitrary
power.
Indeed,
it
is
because
of
the
supremacy
of
law
over
the
government,
as
established
in
section
23
of
the
Manitoba
Act,
1870,
and
section
52
of
the
Constitution
Act,
1982,
that
this
court
must
find
the
unconstitutional
laws
of
Manitoba
to
be
invalid,
and
of
no
force
and
effect.
This
present
case
offers
no
challenge
to
the
Minister's
assessments
but
only
to
his
servants'
post-assessment
dealings
with
the
applicant
from
which
the
Minister
cannot
be
immune
from
judicial
review,
or
suit,
lest
one
obviate
the
rule
of
law.
Law
(the
fair,
constitutional
wielding
of
state
power)
is
supreme
over
state
officials.
The
Minister
and
the
departmental
officials
are
not
immune
from
judicial
review
in
the
circumstances
of
tn
is
case.
The
applicant
has
shown
cause
to
be
accorded
a
remedy.
The
judgment
which
was
registered
against
his
family
residence
could
ultimately
operate
only
to
sever
the
joint
tenancy
and
the
Crown
could
move
against
only
his
"equity"
in
the
severed
half.
The
Court
will
not
order
it
be
discharged,
but
would
strongly
urge
the
respondent
to
consider
registration
of
the
agreed
and
proffered
second
mortgage
(if
a
second
be
still
possible)
in
exchange
for
discharging
the
judgment.
They
are
apparently
equal
in
security,
if
the
priorities
have
not,
in
the
meanwhile,
changed.
This
is
a
"precatory"
provision,
which
is
not
enforceable,
but
if
the
protagonists
can
personally
avoid
spleen,may
start
them
talking
reasonably
again.
The
writ
of
fieri
facias
is
quashed
with
any
and
all
incidental
expenses
being
the
respondent's
costs.
It
is
currently
quashed
so
that
any
money
garnished
or
attached
and
realized
by
the
respondent
may
be
retained,
but
no
real
or
personal
property
is
to
be
sold
thereunder
as
of
the
date
hereof.
In
terms
of
the
ideal
dealings
pursuant
to
the
Minister’s
non-statutory
powers,
the
issuance
of
the
writ
was
premature.
The
respondent
may
issue
a
new
writ,
if
needed,
only
after
a
further
meeting
(or,
if
agreed,
meetings)
with
the
applicant
to
the
end
of
establishing
an
orderly,
reasonable,
schedule
for
him
to
pay
off
his
tax
arrears.
The
applicant
and
those
who
meet
with
him
should
calmly
and
sincerely
keep
their
emotions
under
self-control.
That
is
a
suggestion
which,
alas,
is
also
not
enforceable.
The
Court
hereby
requires
each
side,
or
both
jointly,
to
deposit
in
the
registry
a
signed
certification
that
such
a
subsequent
meeting
has
occurred
in
the
attempt
to
reconcile
the
parties.
This
requirement
is
related
to
respect
for
the
Court's
order
and
its
efficacy.
Whichever
party
declines
to
make
the
effort
and
the
ordered
certification
will
be
penalized
in
regard
to
the
further
enforcement
of
relief.
No
costs
are
awarded
to
either
party.
Application
allowed.
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