Mahoney,
J.A.:—These
appeals
are
from
identical
orders
made
by
the
Associate
Chief
Justice
on
applications
of
the
respondent
taxpayers,
who
claimed
refunds
of
taxes
they
had
not
paid
under
Part
VIII
of
the
Income
Tax
Act.
The
reasons
of
the
motions
judge
are
reported,
[1988]
2
C.T.C.
270,
88
D.T.C.
6451.
Appeals
A-942-88,
A-943-88
and
A-944-88
are
from
orders
which
set
aside
orders
made
ex
parte
by
the
Senior
Prothonotary
requiring
a
director
of
the
respondent
to
attend
to
be
examined
in
aid
of
execution
consequent
upon
the
filing
of
certificates
in
the
Registry.
Appeals
A-939-88,
A-940-88
and
A-941-88
are
against
interlocutory
injunctions
prohibiting
the
appellant
Minister
from
acting
under
the
authority
of
certain
provisions
of
the
Income
Tax
Act
to
collect
the
unpaid
taxes
until
the
trial
of
actions
in
which
the
appellants
seek
to
have
those
statutory
provisions
declared
void
by
reason
of
their
alleged
inconsistency
with
sections
8
and
15
of
the
Canadian
Charter
of
Rights
and
Freedoms.
The
applications
were
heard
December
8,
1987,
and
judgment
rendered
September
9,
1988.
Notices
of
appeal
were
filed
September
9.
There
is
no
indication
on
the
record
of
any
serious
attempt
by
the
appellants
to
have
the
hearing
of
the
appeals
expedited.
They
were
finally
heard
together
today,
March
9,
1990.
As
to
the
examinations
in
aid
of
execution,
we
are
satisfied
that
the
motions
judge
did
not
err
in
the
result
although
his
conclusion
that
any
part
of
Rule
324
other
than
paragraph
(1)
applied
to
an
ex
parte
application
was
clearly
wrong.
The
applications
were
authorized
by
Rule
2200
to
be
made
ex
parte
and
Rule
321(4)
provides:
Any
motion
authorized
to
be
made
ex
parte
may
be
disposed
of
in
accordance
with
the
provisions
of
Rule
324(1)
unless
a
judge
or
prothonotary
otherwise
directs.
The
requirements
of
the
remaining
paragraphs
of
Rule
324
as
to
notice
to
and
the
opportunity
to
make
representations
by
opposing
and
interested
parties
normally
do
not
apply
to
a
motion
authorized
to
be
made
ex
parte.
That
said,
respondents'
counsel
had
been
notified
of
the
appellants’
intentions
in
compliance
with
a
directive
as
to
professional
conduct
by
the
Alberta
Law
Society
and
had
made
known
to
the
Court
his
wish
to
appear.
The
decision
to
proceed
ex
parte
was
an
improper
exercise
of
discretion.
The
motions
judge
did
not
err
in
setting
those
orders
aside.
These
appeals
will
be
dismissed
with
costs.
The
decision,
as
it
deals
with
the
interlocutory
injunctions,
makes
no
mention
of
Attorney
General
of
Manitoba
v.
Metropolitan
Stores,
[1987]
1
S.C.R.
110,
which
had
been
released
March
5,
1987.
Neither
does
it
evidence
an
awareness
of
the
principles
enunciated
in
that
decision.
On
the
contrary,
for
example,
the
motions
judge
stated,
at
page
6454
of
his
reasons:
It
is
well
established
that
where
the
validity
of
any
law
is
questioned
that
[sic]
the
law
is
presumed
to
be
valid
until
declared
otherwise
..
.
.
That,
with
respect
and
in
the
circumstances,
simply
cannot
be
reconciled
with
what
was
said
at
page
122
of
the
Metropolitan
Stores
decision:
A
reason
of
principle
related
to
the
character
of
the
Charter
also
persuades
me
to
dismiss
the
appellant’s
submission
based
on
the
presumption
of
constitutional
validity.
Even
when
one
has
reached
the
merits,
there
is
no
room
for
the
presumption
of
constitutional
validity
within
the
literal
meaning
suggested
above:
the
innovative
and
evolutive
character
of
the
Canadian
Charter
of
Rights
and
Freedoms
conflicts
with
the
idea
that
a
legislative
provision
can
be
presumed
to
be
consistent
with
the
Charter.
It
seems
apparent
that,
in
reaching
his
decision,
the
motions
judge
was
oblivious
to
the
Metropolitan
Stores
decision.
Nevertheless,
we
have
not
been
persuaded
that
he
necessarily
erred
by
granting
the
injunctions.
He
did,
however,
clearly
err
by
failing
to
require
the
respondents
to
provide
security
for
all
financial
losses
which
the
appellants
might
incur
as
a
result
of
not
being
permitted
to
collect
the
taxes
in
the
manner
required
by
the
Income
Tax
Act
and
in
failing
to
prescribe
a
strict
timetable
to
bring
the
actions
to
trial
at
an
early
date.
That
the
former
is
required
is
trite
law
and
the
latter
is
mandated
by
the
Metropolitan
Stores
decision
at
page
150:
I
would
finally
add
that
in
cases
where
an
interlocutory
injunction
issues
in
accordance
with
the
above-stated
principles,
the
parties
should
generally
be
required
to
abide
by
the
dates
of
a
preferential
calendar
so
as
to
avoid
undue
delay
and
reduce
to
the
minimum
the
period
during
which
a
possibly
valid
law
is
deprived
of
its
effect
in
whole
or
in
part.
We
do
not
propose
now
to
vacate
the
interlocutory
injunctions,
however,
we
do
propose
to
allow
the
appeal
to
the
extent
of
remitting
the
matter
to
the
Trial
Division,
pursuant
to
subparagraph
52(b)(iii)
of
the
Federal
Court
Act,
for
a
continuance
of
the
hearing,
to
be
convened
on
or
before
March
30,
1990,
for
the
purpose
of
making
an
appropriate
order
as
to
the
security
to
be
provided
by
the
respondents
and
to
establish
a
schedule
with
a
view
to
the
actions
being
tried
on
or
before
October
1,
1990,
which,
after
hearing
the
parties
on
the
subject,
we
consider
a
reasonable
time
frame.
We
will
further
order
that,
if
the
trial
does
not
proceed
on
or
before
that
date,
the
appellants
shall
be
at
liberty
to
apply
to
the
Trial
Division
for
orders
vacating
the
injunctions.
Applications
dismissed.
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