Hugessen,
Linden,
Robertson,
JJ.A.:—
This
section
28
application
seeks
to
review
and
set
aside
a
decision
of
the
Tax
Court
of
Canada
made
under
subsection
231.4(2)
of
the
Income
Tax
Act,
R.
S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
and
appointing
a
hearing
officer
to
preside
over
an
inquiry
into
the
affairs
of
the
applicant.
Section
231.4
in
its
entirety
reads
as
follows:
231.4(1)
Inquiry.
The
Minister
may,
for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act,
authorize
any
person,
whether
or
not
he
is
an
officer
of
the
Department
of
National
Revenue,
to
make
such
inquiry
as
he
may
deem
necessary
with
reference
to
anything
relating
to
the
administration
or
enforcement
of
this
Act.
(2)
Appointment
of
hearing
officer.
Where
the
Minister,
pursuant
to
subsection
(1),
authorizes
a
person
to
make
an
inquiry,
the
Minister
shall
forthwith
apply
to
the
Tax
Court
of
Canada
for
an
order
appointing
a
hearing
officer
before
whom
the
inquiry
will
be
held.
(3)
Powers
of
hearing
officer.
For
the
purposes
of
an
inquiry
authorized
under
subsection
(1),
a
hearing
officer
appointed
under
subsection
(2)
in
relation
thereto
has
all
the
powers
conferred
on
a
commissioner
by
sections
4
and
5
of
the
Inquiries
Act
and
that
may
be
conferred
on
a
commissioner
under
section
11
thereof.
(4)
When
powers
to
be
exercised.
A
hearing
officer
appointed
under
subsection
(2)
in
relation
to
an
inquiry
shall
exercise
the
powers
conferred
on
a
commissioner
by
section
4
of
the
Inquiries
Act
in
relation
to
such
persons
as
the
person
authorized
to
make
the
inquiry
considers
appropriate
for
the
conduct
thereof
but
the
hearing
officer
shall
not
exercise
the
power
to
punish
any
person
unless,
on
application
by
the
hearing
officer,
a
judge
of
a
superior
or
county
court
certifies
that
the
power
may
be
exercised
in
the
matter
disclosed
in
the
application
and
the
applicant
has
given
to
the
person
in
respect
of
whom
he
proposes
to
exercise
the
power
24
hours
notice
of
the
hearing
of
the
application
or
such
shorter
notice
as
the
judge
considers
reasonable.
(5)
Rights
of
witness
at
inquiry.
Any
person
who
gives
evidence
in
an
inquiry
authorized
under
subsection
(1)
is
entitled
to
be
represented
by
counsel
and,
on
request
made
by
him
to
the
Minister,
to
receive
a
transcript
of
the
evidence
given
by
him.
(6)
Rights
of
person
whose
affairs
are
investigated.
Any
person
whose
affairs
are
investigated
in
the
course
of
an
inquiry
authorized
under
subsection
(1)
is
entitled
to
be
present
and
to
be
represented
by
counsel
throughout
the
inquiry
unless
the
hearing
officer
appointed
under
subsection
(2)
in
relation
to
the
inquiry,
on
application
by
the
Minister
or
a
person
giving
evidence,
orders
otherwise
in
relation
to
the
whole
or
any
part
of
the
inquiry
on
the
ground
that
the
presence
of
the
person
and
his
counsel,
or
either
of
them,
would
be
prejudicial
to
the
effective
conduct
of
the
inquiry.
In
his
argument
counsel
for
the
applicant
expressly
declined
to
make
any
Charter-based
attack
on
section
231.4.
In
light
of
the
fate
suffered
by
adjacent
and
related
sections
of
the
Income
Tax
Act
(See
Baron
v.
Canada,
[1993]
1
S.C.R.
416,
[1993]
1
C.T.C.
111;
M.N.R.
v.
Kruger
Inc.,
[1984]
C.T.C.
506,
84
D.T.C.
6478
(F.C.A.)),
such
an
attack
cries
out
to
be
made.
It
remains,
however,
that
it
was
not
made
and
we
must
deal
with
this
case
on
the
basis
on
which
it
was
presented
to
us,
namely
as
a
pure
question
of
statutory
construction.
Viewed
on
that
basis,
the
legislative
history
of
section
231.4
is
critical.
Its
immediate
predecessor
was
found
in
former
subsections
231(7),
(8),
(12),
(13),
(14)
and
(15)
[S.C.
1970-71-72,
as
amended
S.C.
1980-81-82-83,
c.
158,
section
58,
S.C.
1986,
c.
6,
section
121].
Those
subsections
were
adopted
as
part
of
the
1972
Tax
Reform
[S.C.
1970-71-72,
c.
63]
in
substantially
the
same
words
they
have
today.
Apart
from
minor
matters
of
form,
the
only
change
of
substance
in
the
course
of
21
years
has
been
the
substitution
of
the
Tax
Court
of
Canada
for
the
Tax
Review
Board.
Prior
to
1972,
the
predecessor
provisions
were
contained
in
subsections
126(4)
and
(8)
of
the
Income
Tax
Act
[The
1948
Income
Tax
Act,
S.C.
1948,
section
115]
which
read:
126(4)
The
Minister
may,
for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act,
authorize
any
person,
whether
or
not
he
is
an
officer
of
the
Department
of
National
Revenue,
to
make
such
inquiry
as
he
may
deem
necessary
with
reference
to
anything
relating
to
the
administration
or
enforcement
of
this
Act.
(8)
For
the
purpose
of
an
inquiry
authorized
under
subsection
(4),
the
person
authorized
to
make
the
inquiry
has
all
the
powers
and
authorities
conferred
on
a
commissioner
by
sections
4
and
5
of
the
Inquiries
Act
or
which
may
be
conferred
on
a
commissioner
under
section
11
thereof.
Those
provisions,
in
their
turn,
had
been
subject
to
a
definitive
interpretation
by
the
Supreme
Court
of
Canada
in
the
case
of
Guay
v.
Lafleur,
[1965]
2
S.C.R.
12,
[1964]
C.T.C.
350,
64
D.T.C.
5218,
at
pages
16-17
(C.T.C.
354-55).
In
that
case,
Abbott,
J.,
speaking
for
the
majority,
said
as
follows:
Hyde
and
Montgomery,
JJ.
dissenting,
held
that
the
investigation
conducted
by
appellant
on
behalf
of
the
Minister,
is
a
purely
administrative
matter
which
can
neither
decide
nor
adjudicate
upon
anything
that
it
is
not
a
judicial
or
quasijudicial
enquiry
but
a
private
investigation
at
which
the
respondent
is
not
entitled
to
be
present
or
represented
by
counsel.
I
am
in
respectful
agreement
with
Hyde
and
Montgomery
JJ.
and
there
is
very
little
I
desire
to
add
to
what
they
have
said
in
their
reasons.
The
power
given
to
the
Minister
under
s.
126(4)
to
authorize
an
enquiry
to
be
made
on
his
behalf,
is
only
one
of
a
number
of
similar
powers
of
enquiry
granted
to
the
Minister
under
the
Act.
These
powers
are
granted
to
enable
the
Minister
to
obtain
the
facts
which
he
considers
necessary
to
enable
him
to
discharge
the
duty
imposed
on
him
of
assessing
and
collecting
the
taxes
payable
under
the
Act.
The
taxpayer's
right
is
not
affected
until
an
assessment
is
made.
Then
all
the
appeal
provisions
mentioned
in
the
Act
are
open
to
him.
The
fact
that
a
person
authorized
to
make
an
investigation
on
behalf
of
the
Minister
is
given
certain
limited
powers
of
compelling
witnesses
to
attend
before
him
and
testify
under
oath,
does
not,
in
my
opinion,
change
the
nature
of
the
enquiry.
The
changes
effected
by
the
1972
legislation
are
those
which
are
now
reflected
in
subsections
(2),
(4),
(5)
and
(6)
of
section
231.4.
They
provide
for
the
appointment
of
a
hearing
officer
who
is
different
from
the
person
authorized
to
conduct
the
inquiry,
they
limit
that
officer's
powers
to
punish
for
contempt
and
they
create
a
right
for
witnesses
and
the
person
whose
affairs
are
investigated
to
be
represented
by
counsel,
a
right
which
had
been
denied
by
Guay,
supra.
They
do
not
otherwise
change
the
nature
of
the
inquiry
which
remains,
as
it
was
described
by
the
Supreme
Court,
"a
purely
administrative
matter
which
can
neither
decide
nor
adjudicate
upon
anything”.
Viewed
in
this
light,
and
absent
any
Charter
challenge,
it
is
clear
that
the
application
must
fail.
None
of
the
grounds
that
were
argued
have
any
merit:
the
applicant
had
no
right
to
notice
of
or
to
participate
in
the
application
made
to
the
Tax
Court
for
the
appointment
of
a
hearing
officer
under
subsection
(2).
That
application
was
subject
to
no
requirements
as
to
form
and
it
was
for
the
Tax
Court
judge
alone
to
decide
if
the
materials
before
him
were
sufficient
to
allow
him
to
exercise
the
powers
conferred
on
him
by
the
statute;
if
he
thought
they
were
not
it
was
open
to
him
to
require
further
materials
or
even
to
dismiss
the
application.
Furthermore,
while
it
would
be
difficult
to
characterize
the
period
of
over
six
weeks
which
elapsed
between
the
ministerial
authorization
under
subsection
(1)
and
the
application
to
the
Tax
Court
under
subsection
(2)
as
being
“forthwith”,
we
are
satisfied
that
in
the
absence
of
any
showing
of
prejudice
by
the
applicant,
and
there
was
none,
such
defect
does
not
give
rise
to
the
nullity
of
the
appointment.
(See
Hillingdon
London
Borough
Council
v.
Cutler,
[1968]
1
Q.B.
124
(U.K.C.A.);
Regina
v.
Lane
(1973),
13
C.C.C.
(2d)
38
(Ont.
C.A.).)
Finally,
since
there
is
no
question
of
the
appointment
affecting
the
rights
or
obligations
of
the
applicant,
the
question
of
the
administrative
duty
of
fairness
does
not
arise.
The
application
will
be
dismissed.
Application
dismissed.
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