Stasiv, Mitton & Smith v. The Queen, [1989] 1 CTC 171

Kurisko, J.: —This is an application brought before me as a local judge of the Supreme Court of Ontario by the above-named solicitors under section 232 of the Income Tax Act to determine their claim of solicitor and client privilege in respect of the files of certain clients named in a demand made for the production of such files by the Minister of National Revenue pursuant to paragraph 231.2(1)(b) of the Income Tax Act.

Such application may only be heard by a judge as defined in paragraph 232(1)(a) of the Income Tax Act, namely:

. . . a judge of a superior court having jurisdiction in the province where the matter arises or a judge of the Federal Court of Canada.

I have concluded that this definition does not include a local judge of the Supreme Court of Ontario appointed pursuant to subsections 12(1) and (2) of the Courts of Justice Act, S.O. 1984, c. 11 which provide as follows:

(1) Every District Court judge may be appointed as a local judge of the High Court.

(2) Every local judge has the jurisdiction conferred by the Rules of Civil Procedure.

My reasons for so concluding are hereinafter detailed.

Counsel for both parties submit that the authority of a local judge to hear this application derives from Rule 38.02 which provides as follows:

Where the Supreme Court or a High Court judge has jurisdiction in respect of an application, a local judge has jurisdiction to hear the application and has all the jurisdiction of a High Court judge in respect of the application, except where,

(a) the application is for judicial review or a prerogative remedy; or

(b) the application has been removed from the District Court in accordance with a statute.

Counsel argue that since the present application has nothing to do with judicial review or a prerogative remedy a local judge of the Supreme Court of Ontario, (the superior court of this province) has the same jurisdiction as a judge of such court and, a fortiori, jurisdiction to hear this application.

The foregoing argument is valid in relation to provincial legislation. But this application relates to a federal statute. In the case of federal legislation the intention of Parliament as to the jurisdiction or authority of a judge or court is to be gained from the legislation naming or appointing such judge or court. This is the ratio implicit in Herman et al. v. Deputy A.G. (Canada), [1978] C.T.C. 728; 78 D.T.C. 6456 where the Supreme Court of Canada held that under section 232 of the Income Tax Act Parliament intended that a judge deciding the issue of privilege should act in his or her judicial capacity and not as persona designata.

If Parliament had intended that the authority of a judge of the superior court under section 232 could be invoked by a judge other than such judge, Parliament would have so stated, as it has done in other federal statutes. For example under Part XVI of the Criminal Code (Indictable offences—Trial Without Jury) "judge" means:

482 (a) in the Province of Ontario a judge of the superior court of criminal jurisdiction

of the province or a judge of the District Court.

Pursuant to section 2 of the Canada Elections Act, R.S.C. 1970, c. 14 a judge, in the case of the Province of Ontario means:

(f) . . . . the judge exercising from time to time the jurisdiction of the judge of the county court of the county, or the judge of the district court of the judicial district, as the case may be, . . . and if there is more than one such judge, the senior of them, . . . .

Under subsection 9(1) of the Extradition Act, R.S.C. 1970, c. E-21 the persons who may act on extradition matters are defined as follows:

All judges of the superior court and of the county courts of a province, and all commissioners who are appointed for the purpose in a province by the Governor in Council, under the Great Seal, by virtue of this Part, are authorized to act judicially in extradition matters under this Part within the province, and each of those person [sic] has for the purposes or [sic] this Part all the powers and jurisdiction of any judge or magistrate of the province.

The foregoing wording for investing authority in a specifically named judge is to be compared with the Bankruptcy Act, R.S.C. 197, c. B-3 where jurisdiction is given to a specifically named court. Subsection 153(1) provides that:

The following named courts are invested with such jurisdiction at law and in equity as will enables [sic] them to exercise original, auxiliary and ancillary jurisdiction in bankruptcy and in other proceedings authorized by this Act. . . .

(e) in the Province of Ontario, the Supreme Court of Ontario.

Thus in Re 548437 Ontario Inc.: Quinte Seafood Products Limited v. Frank Zeilsky and Associates Inc. (1985), 7 C.P.C. (2d) 9, the Honourable Judge Honey, sitting as a local judge of the Supreme Court of Ontario ruled (correctly in my opinion) that he had jurisdiction with respect to an application brought under the Bankruptcy Act for an order requiring a Trustee in Bankruptcy to accept a tender. Judge Honey adopted the argument advanced by counsel herein with reference to subsections 12(1) and (2) of the Courts of Justice Act and the Rules of Practice. Had the Income Tax Act been similarily worded I would have acceded to the argument in this case.

On the initial return of this application and before I was able to consider the jurisdiction question counsel for the parties persuaded me on the ground of urgency to make an order permitting the solicitors to open, in the presence of a representative of the Minister of National Revenue, the sealed packets being held by them under paragraph 231.2(1)(b) of the Income Tax Act for the purpose of enabling the solicitors to determine whether to waive solicitor client privilege in respect of any specific documents. The definition of "judge" under section 231 is identical to section 232. My conclusion that a local judge of the Supreme Court of Ontario has no jurisdiction to hear any matters under section 232 applies equally to section 231, thereby rendering the foregoing order null and void.

Order accordingly.