Drake,
J.:—On
February
24
last
Cohen,
J.
authorized
action
by
the
petitioner
in
accordance
with
subsection
225.1(1)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
This
section
provides
for
a
delay
in
the
exercise
of
various
collection
procedures;
but,
under
subsection
225.2(2),
on
the
ex
parte
application
of
the
Minister
of
National
Revenue,
a
judge,
upon
being
satisfied
that
collection
of
taxes
due
would
be
"jeopardized"
by
the
delay
provided
for
in
subsection
225.1(1),
may
authorize
the
Minister
to
proceed.
That
is
what
my
brother
Cohen
did.
Before
me,
rather
than
Cohen,
J.,
evidently
by
consent,
is
an
application
under
subsection
225.2(8)
of
the
Act
to
review
this
authorization.
The
grounds
put
forward
to
justify
setting
it
aside
are
said
to
be,
first,
the
failure
of
the
Deputy
Minister
to
make
full
disclosure
of
all
material
circumstances
in
the
first
instance;
and
second,
failure
to
establish
that“
"jeopardy"
will
result
from
a
delay
in
collection.
The
first
ground
is
the
suppressio
veri
which
will
vitiate
any
order
obtained
ex
parte
in
ordinary
cases
such
as
an
interlocutory
injunction:
see
Gulf
Islands
Navigation
Ltd.
v.
Seafarers?
International
Union
of
North
America
and
Cunningham
and
Heinekey
(1959),
28
W.W.R.
517,
18
D.L.R.
(2d)
265:
and
the
second
goes
to
the
actual
merits
of
the
petitioner's
case.
The
background
facts
are
well
set
out
in
Mr.
Green's
chambers
brief,
and
are
not
questioned
by
Ms.
McCormick.
I
reproduce
them
here
for
convenience:
3.
The
respondent
was
charged
with
a
number
of
offences
in
February/March
of
1990.
The
indictment
on
which
the
respondent
was
tried
in
the
Supreme
Court
can
be
found
at
Tab
6.
On
the
trial
of
the
indictment
the
Crown
stayed
proceedings
on
counts
4,
5,
6
and
7
and
counts
9
and
10
were
quashed
by
Mr.
Justice
Melvin.
The
respondent
was
acquitted
on
counts
1,
2,
3
and
8
on
January
31st,
1992.
4.
In
February
and
March
1990
the
police
executed
a
number
of
search
warrants
and
seized
property
and
documents
from
the
respondent,
some
of
which
are
listed
in
Exhibit
"C"
to
the
affidavit
of
Ronald
McPherson
Coull
filed
herein
by
the
petitioner.
5.
Most
of
the
property
referred
to
in
Coull's
affidavit
was
not
tendered
by
the
Crown
in
the
trial
proceedings.
Despite
that,
the
Crown
indicated
they
would
not
agree
to
returning
the
respondent's
property
until
the
applicable
appeal
period
had
expired
after
his
acquittal
(March
2nd,
1992).
6.
In
June
of
1991,
after
receiving
“
Requirements
for
Information”
from
Revenue
Canada,
the
respondent
retained
the
law
firm
Thorsteinssons
in
Vancouver
to
act
for
him
in
his
dealings
with
Revenue
Canada.
7.
Nicholas
Smith
of
Thorsteinssons
dealt
principally,
although
not
exclusively,
with
Bradford
Anderson
at
Revenue
Canada.
Mr.
Smith’s
contact
with
Revenue
Canada
on
behalf
of
the
respondent
is
outlined
in
his
affidavit
which
is
at
Tab
4.
8.
As
his
affidavit
discloses,
Mr.
Smith
was
scheduled
to
meet
with
Bradford
Anderson
on
February
24th,
1992
at
Thorsteinssons"
offices
in
Vancouver
at
Mr.
Anderson's
suggestion.
The
purpose
of
this
meeting
was
to
have
a“
frank
discussion"
about
the
respondent's
file.
Of
course,
that
meeting
was
cancelled
by
Mr.
Anderson
between
9:30
and
10:00
a.m.,
presumably
because
the
“frank
discussion"
would
have
been
both
irrelevant
and
somewhat
less
than
“frank”
in
light
of
the
steps
Revenue
Canada
was
then
taking
without
notice
to
the
respondent
or
his
solicitors.
To
persuade
the
court
that
his
authorization
ought
to
be
set
aside,
the
applicant
must
show
that
the
petitioner
failed
in
a
duty
to
show
the
utmost
good
faith
in
his
original
ex
parte
application.
Where,
as
here,
a
lack
of
disclosure
is
alleged,
that
lack
must
be
of
serious,
material
particulars,
which,
had
they
been
known
at
first
instance,
would
have
moved
the
judge
to
refuse
the
relief
sought.
Slight
omissions
which
would
have
no
real
bearing
on
the
merits
of
the
matter
do
not
constitute
any
breach
of
the
petitioner's
duty
to
disclose
all
material
considerations.
There
must
be
omissions
which
can
fairly
be
said
to
have
misled
the
judge.
Equity
governs.
The
principal
evidence
before
Cohen,
J.
was
the
affidavit
of
Bradford
Anderson,
a
civil
servant
charged
with
the
collection
of
assessed
taxes,
sworn
on
February
21,
1992,
shortly
before
the
hearing.
Other
affidavits
therein
referred
to
were
also
before
him.
In
May
and
again
in
November
of
1991,
Mr.
Anderson
served
Jackman
with
formal
requirements
for
information
and
got
no
response.
At
that
time
Jackman
was
involved
in
the
prosecution
I
have
referred
to.
In
June
of
1991
he
retained
Mr.
Nicholas
Smith
of
the
law
firm
of
Thorsteinssons
to
represent
him
in
the
taxation
matter.
Mr.
Smith
so
notified
Mr.
Anderson,
and
spoke
with
him
on
various
occasions,
as
well
as
with
a
solicitor
in
the
Department
of
Justice,
regarding
Jackman's
taxation
matters.
There
were
many
meetings
and
conferences
between
Mr.
Smith,
his
client,
the
Department
of
Justice
and
Anderson
up
to
February,
1992,
when
the
conspiracy
charges
against
Jackman
were
disposed
of,
some
by
stays
and
others
by
acquittal.
Throughout,
I
am
satisfied,
Jackman's
position
was
that
he
would
comply
with
Revenue
Canada's
requirements
when
the
criminal
charges
were
dealt
with.
Much
of
the
information
required
had
already
been
seized
by
the
police
in
the
conspiracy
matter,
and
had
been
retained
by
the
Crown.
This
information
appears
in
a
report
which
W.M.
Trenholme,
a
chartered
accountant,
had
furnished
to
the
police:
and
this
report
was
an
exhibit
in
the
preliminary
hearing
of
the
conspiracy
charges.
None
of
this
was
before
Cohen,
J.,
and
if
full
disclosure
of
material
facts
was
to
be
made,
it
should
have
been.
Turning
now
to
the
matter
of
jeopardy,
Jackman
is
said
to
have
sold
or
disposed
of
various
exigible
assets
which
would
or
could
be
security
for
payment
of
taxes.
This
indeed
happened:
but
not
for
any
improper
purpose.
Certain
moneys
seized
went
to
his
defending
solicitors
by
way
of
retainer
in
the
conspiracy
prosecution,
under
the
authority
of
a
consent
order
of
Oliver,
J.
Other
moneys
realized
from
the
sale,
at
a
considerable
loss,
of
a
a“
time
share”
at
a
Whistler
resort,
went
into
the
living
expenses
of
Jackman
and
his
family.
I
need
not
mention
the
details
of
other
items
of
property,
which
are
satisfactorily
accounted
for.
I
conclude
that
there
was,
in
the
ex
parte
proceedings
before
Cohen,
J.,
suppressio
veri
of
a
material
nature:
had
he
been
made
aware
of
what
has
since
come
to
light
before
me,
information
which
was
either
known
or
readily
available
at
the
time,
it
is
unlikely
in
the
extreme
that
he
would
have
made
the
authorization
order
he
did.
In
these
circumstances,
the
authorization
should
be
set
aside;
costs
to
the
respondent.
Application
granted.
Email this Content