Muldoon,
J.:—The
plaintiffs
seek
an
order
for
service
of
their
amended
statement
of
claim,
pursuant
to
Rule
307,
on
the
defendants
Reginald
H.
Norberg
and
Donald
J.
Sasnett
in
the
State
of
Washington
or
elsewhere
in
the
United
States
of
America.
Rule
307
requires
such
an
application
to
be
supported
by
affidavit
or
other
evidence
showing
that,
in
the
deponent's
belief,
the
plaintiff
has
a
good
cause
of
action.
Not
all
superior
courts
in
Canada
require
such
an
application
to
be
made,
nor
any
order
to
be
given,
for
service
ex
juris.
Accordingly,
it
is
apparent
that
the
applicants
must
not
only
demonstrate
the
deponent's
belief
that
the
plaintiffs
have
a
good
cause
of
action;
but
they
must
also
persuade
the
Court
that
the
plaintiffs
really
do
have
a
good
cause
of
action.
It
is
equally
apparent
that
such
cause
of
action
must
be
within
this
Court's
jurisdiction.
Such
must
be
the
fundamental
purpose
of
the
Rule.
The
plaintiff’s
action
sounds
in
tort
founded
on
the
defendants'
alleged
breach
of
their
statutory
duty,
pursuant
to
section
241
of
the
Income
Tax
Act,
S.C.
1970-71-72,
Chap.
63
as
amended
(the
Act).
The
defendants
Norberg
and
Sasnett
are
alleged
to
be
agents
of
the
Internal
Revenue
Service
of
the
United
States
of
America
(I.R.S.
and
U.S.A.)
who,
the
plaintiffs
allege,
were
not
persons
legally
entitled
to
receive
information
obtained
by
or
on
behalf
of
the
Minister
of
National
Revenue
(the
Minister)
for
the
purposes
of
the
Act
or
the
Petroleum
and
Gas
Revenue
Tax
Act.
The
two
said
defendants
are
alleged
to
have
obtained
such
information
relating
to
the
plaintiffs
from
the
defendants
Ma,
Moi
and
Seagle,
in
Canada,
commencing
in
January
1986,
and
continuing
since
that
time.
The
two
defendant
I.R.S.
agents
are
alleged
to
be
parties
to
the
breach
of
duty,
negligence
and
wilfulness
alleged
against
Ma,
Moi
and
Seagle,
or
to
have
unlawfully
conspired
with
them
and
each
other,
in
Canada,
to
infringe
the
plaintiffs'
rights
defined
in
and
by
section
241
of
the
Act.
The
plaintiffs
invoke
not
only
section
241
of
the
Act,
but
also
section
24
and
Schedule
Il
of
the
Access
to
Information
Act,
S.C.
1980-81-82-83,
Chap.
111.
They
claim
that
the
plaintiffs’
rights
pursuant
to
sections
1,
7,
8,
24
and
26
of
the
Canadian
Charter
of
Rights
and
Freedoms,
were
violated
by
the
Canadian
defendants.
The
plaintiffs
also
specifically
allege
that
Article
XXVII
(exchange
of
information)
of
the
Convention
between
Canada
and
the
U.S.A.
approved
and
given
the
force
of
law
by
the
Canada-United
States
Tax
Convention
Act,
1984,
S.C.
1984,
Chap.
20,
does
not
authorize
the
dis-
closure
or
exchange
of
information
which
is
alleged
to
have
occurred
in
this
matter.
The
plaintiffs
sue
for
various
declarations
of
lack
of
force
and
effect
and
invalidity
of
the
statutory
exceptions
to
the
general
rule
propounded
in
section
241
of
the
Act
regarding
communication
and
disclosure
of
information,
books,
records,
writings,
returns
or
other
documents.
They
ask
the
Court
to
declare
that
any
such
communicating
and
disclosing
is
unlawful,
and
that
the
defendants’
actions
in
that
regard
violate
the
Charter.
They
also
seek
a
declaration
to
the
effect
that
Article
XXVII
of
the
above
mentioned
Convention
is
inconsistent
with
sections
1,
7,
8,
24
and
26
of
the
Charter.
Further,
the
plaintiffs
seek
interim
or
interlocutory
injunctions
restraining
those
defendants
who
are
servants
and
agents
of
Her
Majesty
from
communicating,
or
authorizing
the
communication
of
or
access
to,
the
aforesaid
information
or
documents.
Finally,
the
plaintiffs
claim
damages.
They
claim
special
and
general
damages
for
the
negligence
of
those
defendants
who
breached
the
duty
of
care
allegedly
owed
to
the
plaintiffs
pursuant
to
section
241
of
the
Act.
They
also
claim
special,
general
and
punitive
damages
from
the
defendants
for
their
alleged
conspiracy
in
Canada
with
the
defendants
Ma,
Moi,
Seagle,
Norberg
and
Sasnett
to
communicate
the
information
and
allow
the
inspection
of
the
documents
all
relating
to
the
plaintiffs
in
flagrant
disregard
of
the
plaintiffs’
lawful
right
to
be
protected
from
such
conduct,
communication
and
inspection.
An
earlier
ex
parte
application
by
the
plaintiffs
to
permit
service
ex
juris
was
denied
by
Mr.
Justice
Joyal
on
December
3,
1986,
but
without
prejudice
to
the
plaintiffs’
applying
again
“on
more
substantial
grounds”.
In
his
reasons
for
that
disposition
[reported
at
[1987]
1
C.T.C.
116],
Joyal,
J.
wrote
this:
I
am
not
persuaded
that
this
is
a
proper
case
for
the
order
asked
pursuant
to
Rule
307
of
the
Rules
of
this
Court.
I
have
carefully
read
the
statement
of
claim
as
well
as
the
affidavit
in
support
of
the
motion
for
the
ex
juris
order.
I
interpret
the
plaintiffs’
case
as
one
for
redress
against
the
Crown
and
its
named
servants
for
the
allegedly
unlawful
disclosure
of
confidential
tax
information.
I
fail
to
see
any
grounds
of
redress
against
the
defendants,
Norberg
and
Sasnett,
for
having
received
it.
Furthermore,
the
several
prayers
for
relief
substantially
in
the
form
of
declaratory
orders
are
directed
to
the
Crown
and
its
servants
for
the
allegedly
illegal
disclosure
to
United
States
authorities
of
confidential
tax
information
relating
to
the
plaintiffs.
Although
damages
are
claimed
against
“the
Defendants”
generally,
I
fail
at
this
stage
to
see
where
the
defendants,
Norberg
and
Sasnett,
could
be
held
accountable
for
a
breach
of
a
Canadian
statute.
On
the
facts
disclosed
in
the
statement
of
claim
and
which,
for
purposes
of
this
application
I
must
presume
to
be
true,
the
defendants
Norberg
and
Sasnett
would
not
be
answerable
to
the
provision
of
the
Income
Tax
Act
on
which
the
plaintiffs’
claim
is
substantially
based.
It
was
subsequent
to
the
earlier
disposition
of
their
application
that
the
plaintiffs
amended
their
statement
of
claim
to
allege
the
tort
of
conspiracy
between
Ma,
Moi
and
Seagle
on
the
one
hand
and
Norberg
and
Sasnett
on
the
other
hand
which,
the
plaintiffs
allege,
was
perpetrated
in
Canada
at
divers
times
and
places
known
only
to
them.
In
order
to
mark
compliance
with
Rule
307,
the
plaintiffs’
application
for
service
ex
juris
is
supported
by
the
affidavit
of
Douglas
C.
Morley,
a
barrister
and
solicitor
of
Vancouver,
British
Columbia.
In
this
affidavit
it
is
alleged,
among
other
matters:
10.
THAT
the
Plaintiffs
allege
that
in
furtherance
of
the
conspiracy
referred
to
.
.
.
herein,
(i)
Ma,
Moi,
Seagle,
Norberg
and
Sasnett
met
in
Canada
to
communicate,
receive,
inspect,
and
to
allow
access
to
information
obtained
in
the
course
of
their
duties
relating
to
the
affairs
of
the
Plaintiffs,
(ii)
Ma
and
Moi
attended
at
the
City
of
Seattle
in
the
United
States
of
America
and
were
present
during
the
examination
by
Norberg
and
Sasnett
of
a
business
associate
of
the
Plaintiffs,
(iii)
Norberg
and
Sasnett
while
in
Canada
were
given
documents
and
information
relating
to
the
affairs
of
the
Plaintiffs
by
Ma,
Moi
and
Seagle,
and
were
allowed
by
them
to
take
the
documents
and
information
to
the
United
States
of
America,
(iv)
Ma,
Moi
and
Seagle
told
Norberg
that
Wilder
had
filed
income
tax
returns
in
Canada
for
the
taxation
years
1982,
1983,
and
1984
only
after
a
demand
had
been
made
on
Wilder
for
the
filing
of
the
returns,
(v)
Ma,
Moi
and
Seagle
during
January
1986
told
Norberg
that
Wilder
was
the
subject
of
an
investigation
by
the
Department
of
National
Revenue,
Taxation,
in
Canada.
11.
THAT
upon
my
review
of
the
Amended
Statement
of
Claim
and
the
facts
alleged
therein,
and
of
the
relevant
provisions
of
the
Income
Tax
Act,
particularly
section
241
thereof,
I
verily
believe
that
the
Plaintiffs
have
set
forth
a
prima
facie
case.
12.
THAT
I
verily
believe
Norberg
and
Sasnett
are
necessary
and
proper
parties
to
the
action
herein.
While
the
present
application
is
not
one
to
strike
out
the
statement
of
claim,
upon
which
no
evidence
is
receivable,
nevertheless
the
question
must
be
asked
whether
the
defendants
Norberg
and
Sasnett
are
exigible
to
the
process
of
this
Court
in
an
action
or
proceeding
within
this
Court's
proper
cognizance.
The
plaintiffs
invoke
section
241
of
the
Act,
a
law
of
Canada
within
the
meaning
of
section
101
of
the
Constitution
Act,
1867,
as
setting
a
standard
of
care,
and
they
allege
negligence
on
the
part
of
Her
Majesty's
servants
in
breaching
that
duty.
They
allege
conspiracy
involving
the
defendants
Norberg
and
Sasnett,
with
the
other
defendants,
for
the
purpose
of
breaching
that
duty
of
care
“thereby
causing
injury
to
the
economic
interests
of
the
Plaintiffs
and
damages
to
the
Plaintiffs
herein".
The
plaintiffs
do
not
allege
how
the
alleged
breach
of
duty
factually
caused
those
alleged
damages
or
injury,
or
in
what
manner
they
occurred.
Presumably
however
breach
of
the
plaintiffs’
“right
to
be
secure
against
unreasonable
search
and
seizure"
under
the
Charter,
if
such
breach
there
were,
could
be
compensible
without
proof
of
damages.
In
the
case
of
The
Queen
v.
Saskatchewan
Wheat
Pool,
[1983]
1
S.C.R.
205;
143
D.L.R.
(3d)
9,
the
present
Chief
Justice
of
Canada,
Mr.
Justice
Dickson,
in
delivering
the
judgment
of
the
Court,
held
that
in
Canada
there
is
no
nominate
tort
of
statutory
breach.
The
judgment
is
useful
for
the
very
thorough
review
of
the
law
undertaken
there
by
Dickson,
J.
He
summarized
the
principles,
which
are
of
broader
application
than
the
limits
of
that
particular
litigation,
at
227-28:
D.L.R.
25,
thus:
1.
Civil
consequences
of
breach
of
statute
should
be
subsumed
in
the
law
of
negligence.
2.
The
notion
of
a
nominate
tort
of
statutory
breach
giving
a
right
to
recovery
merely
on
proof
of
breach
and
damages
should
be
rejected,
as
should
the
view
that
unexcused
breach
constitutes
negligence
per
se
giving
rise
to
absolute
liability.
3.
Proof
of
statutory
breach,
causative
of
damages,
may
be
evidence
of
negligence.
4.
The
statutory
formulation
of
the
duty
may
afford
a
specific,
and
useful,
standard
of
reasonable
conduct.
5.
In
the
case
at
bar
negligence
is
neither
pleased
nor
proven.
The
action
must
fail.
In
the
case
at
bar
negligence
is
alleged.
Moreover,
despite
the
provision
of
penal
consequences
for
officials
and
authorized
persons
who
commit
the
offence
created
by
subsection
241(9)
of
the
Act,
Parliament
appears
clearly
to
have
intended
to
provide
protection
against
unauthorized
disclosure
for
a
class
of
persons
in
which
the
plaintiffs
are
included.
Section
241,
taken
as
a
whole
is
much
more
indicative
of
that
intention
to
protect
the
confidentiality
of
the
plaintiffs’
records,
than
of
a
limited
intention
merely
to
discipline
wayward
officials
or
persons,
who
could
in
any
event
be
dealt
with
in
terms
of
their
employment
status.
In
terms
of
the
articulation
of
a
cause
of
action
against
the
two
American
defendants,
the
allegations
of
breach
of
the
duty
of
care
by
means
of
conspiracy
in
Canada
to
violate
the
confidentiality
of
the
plaintiffs’
records,
renders
those
defendants
at
this
stage
of
the
proceedings
exigible
to
process
in
a
proper
forum
to
the
extent
of
calling
upon
them
to
respond
to
the
plaintiffs’
allegations.
The
next
question
is
whether
this
Court
is
the
proper
tribunal.
A
recent
decision
of
the
Supreme
Court
of
Canada
on
this
matter
is
/TO
—
International
Terminal
Operators
v.
Miida
Electronics
Inc.,
[1986]
1
S.C.R.
752.
Mr.
Justice
McIntyre,
writing
for
the
majority
set
out,
at
766,
the
legal
criteria
for
establishing
this
Court's
jurisdiction
over
any
matter,
thus:
The
general
extent
of
the
jurisdiction
of
the
Federal
Court
has
been
the
subject
of
much
judicial
consideration
in
recent
years.
In
Quebec
North
Shore
Paper
Co.
v.
Canadian
Pacific
Ltd.,
[1977]
2
S.C.R.
1054,
and
in
McNamara
Construction
(Western)
Ltd.
v.
The
Queen,
[1977]
2
S.C.R.
654,
the
essential
requirements
to
support
a
finding
of
jurisdiction
in
the
Federal
Court
were
established.
They
are:
1.
There
must
be
a
statutory
grant
of
jurisdiction
by
the
federal
Parliament.
2.
There
must
be
an
existing
body
of
federal
law
which
is
essential
to
the
disposition
of
the
case
and
which
nourishes
the
statutory
grant
of
jurisdiction.
3.
The
law
on
which
the
case
is
based
must
be
“a
law
of
Canada”
as
the
phrase
is
used
in
s.
101
of
the
Constitution
Act,
1867.
Although
these
criteria
are
not
new,
there
appears
to
be
a
nouvelle
vague
of
jurisprudence
in
their
interpretation.
Madam
Justice
Reed
in
Marshall
v.
The
Queen
and
Public
Service
Alliance
of
Canada
et
al.,
[1986]
1
F.C.
437,
and
in
Roy
Little
Chief
et
al.
v.
The
Queen
and
Leo
Pretty
Youngman
et
al.,
F.C.T.D.,
June
11,
1986
(unreported)
(T-2102-85),
found
existing
and
applicable
federal
law
to
found
tort
actions
against
private
defendants.
In
Roberts
et
al.
v.
The
Queen
and
Dick
et
al.,
F.C.T.D.,
July
21,
1986
(unreported)
(T-2652-85)
Mr.
Justice
Joyal
declined
to
strike
out
a
statement
of
claim
in
which
one
Indian
Band
sued
another
Indian
Band
over
possession
of
land
occupied
by
the
latter
Band.
The
action
was
properly
taken
against
the
Crown
for
alleged
breach
of
fiduciary
duty,
but
Joyal,
J.
held
that,
in
terms
of
subsection
17(1)
of
the
Federal
Court
Act,
R.S.C.
1970,
2nd
Supp.,
Chap.
10,
the
defendant
Band’s
legal
position
was
thoroughly
intertwined
with
that
of
the
Crown
in
a
case
where
relief
was
also
claimed
against
the
Crown.
He
followed
the
judgments
of
Reed,
J.
in
that
regard.
An
appeal
against
the
decision
of
Joyal,
J.
was
unanimously
dismissed
by
the
Appeal
Division
of
this
Court
on
March
2,
1987,
(A-585-86).
However,
the
majority
of
the
Court,
Messrs.
Justices
Urie
and
Hugessen,
found
that
in
the
particular
circumstances
of
that
case
it
was
paragraph
17(3)(c)
of
the
Federal
Court
Act
which
grants
exclusive
jurisdiction
over
proceedings
to
determine
disputes
where
the
Crown
is
or
may
be
under
an
obligation,
in
respect
of
which
there
are
or
may
be
conflicting
claims.
Mr.
Justice
Mac-
Guigan
concurred
in
that
finding,
but
also
agreed
with
Joyal,
J.
and,
in
turn,
Reed,
J.
in
resting
the
requisite
statutory
grant
of
jurisdiction
upon
subsection
17(1),
as
well
as
upon
paragraph
17(3)(c).
Despite
the
urging
of
counsel
for
the
applicant
in
the
matter
at
bar,
the
Roberts
case
bears
little
similarity
to
the
present
matter,
apart
from
the
impleading
of
a
private
party
as
a
co-defendant
of
the
Crown.
Closer
in
similarity
is
the
recent
decision
of
the
Appeal
Division
of
this
Court
in
Oag
v.
The
Queen
et
al.,
F.C.A.,
February
18,
1987
(unreported)
(A-881-85).
There
the
plaintiff,
who
had
been
“gated”
upon
release
from
prison
on
mandatory
supervision,
sued
the
Crown,
the
National
Parole
Board,
the
Chairman
and
another
member
of
that
board,
and
three
public
servants.
The
action
sounds
in
false
arrest,
false
imprisonment,
assault
and
battery,
and
deprivation
of
Charter
rights.
As
against
the
parole
board
and
the
public
servants
the
statement
of
claim
was
struck
out
and
the
action
dismissed
in
regard
to
them.
The
issue
on
appeal
was
whether
the
Trial
Division
has
jurisdiction
to
hear
and
determine
the
claims
made
in
the
action
against
those
two
individual
defendants,
the
chairman
and
his
colleague.
They
held
office
not
as
public
servants,
but
by
virtue
of
appointment
by
the
Governor
in
Council.
The
Appeal
Division’s
reasons
for
judgment
in
the
Oag
case
were
expressed
by
Mr.
Justice
Stone,
with
Chief
Justice
Thurlow
and
Mr.
Justice
Heald
concurring.
The
decision
is
finely
reasoned
and
ought
to
be
appreciated
in
full,
but
its
critical
path
runs
thus:
The
source
of
the
freedom
being
enjoyed
by
the
[plaintiff]
at
the
time
of
his
alleged
false
arrest
and
imprisonment
is
found
in
federal
law.
The
relevant
statutory
provisions
are
subsection
24(1)
of
the
Penitentiary
Act,
and
subsection
10(1),
section
12,
and
subsections
15(1)
and
(2)
of
the
Parole
Act
It
is
apparent
that
so
long
as
the
[plaintiff]
fulfilled
the
terms
of
the
mandatory
supervision
he
was
entitled
to
enjoy
a
degree
of
freedom
.
.
.
That
[position]
was
approved
by
the
Supreme
Court
of
Canada,
when,
in
effect,
it
ruled
the
so-called
“gating”
practice
upon
which
this
action
is
based
to
be
illegal
(The
Queen
v.
Moore;
Oag
v.
The
Queen,
[1983]
1
S.C.R.
658
at
page
659).
There
thus
appears,
to
use
the
phrase
of
Laskin
C.J.C.
in
the
Rhine
and
Prytula
case,
“a
detailed
statutory
framework”
of
federal
law
under
which
the
appellant
not
only
acquired
the
right
to
be
free
but
also
the
right
to
remain
so.
It
must
be
emphasized
that,
as
he
remained
under
sentence,
the
quality
of
freedom
he
enjoyed
was
not
the
same
as
that
possessed
by
a
person
not
under
sentence.
Its
limits
were
demarcated
by
federal
statutes.
If
the
torts
of
false
arrest
and
imprisonment
were
committed
as
alleged,
they
were
committed
because
his
right
to
remain
free
thus
dilineated
was
interfered
with.
I
do
not
think
that
law
need
expressly
provide
a
remedy
for
such
interference
for
the
claims
to
be
governed
by
it.
These
torts,
in
my
view,
depend
for
their
existence
upon
federal
law;
any
provable
damages
resulting
from
their
commission
are
recoverable
in
the
Trial
Division.
I
have
concluded
that
the
claims
are
provided
for
in
the
“laws
of
Canada”
or
“federal
law”.
The
only
remaining
question
is
whether
there
is
here
a
“statutory
grant
of
jurisdiction
by
the
federal
Parliament”
to
satisfy
the
first
requirement.
In
my
view
such
a
grant
of
jurisdiction
is
found
in
paragraph
17(4)(b)
of
the
Federal
Court
Act,
R.S.C.
1970
(2nd
Supp.),
c.
10:
17.
(4)
The
Trial
Division
has
concurrent
original
jurisdiction
(a)
(b)
in
proceedings
in
which
relief
is
sought
against
any
person
for
anything
done
or
omitted
to
be
done
in
the
performance
of
his
duties
as
an
officer
or
servant
of
the
Crown.
While
the
word
“officer”
is
not
defined
by
that
Act,
the
definition
of
“public
officer”
in
section
2
of
the
Interpretation
Act,
R.S.C.
1970,
c.
1-23
is
relied
upon:
“public
officer”
includes
any
person
in
the
public
service
of
Canada
(a)
who
is
authorized
by
or
under
an
enactment
to
do
or
enforce
the
doing
of
an
act
or
thing
or
to
exercise
a
power,
or
(b)
upon
whom
a
duty
is
imposed
by
or
under
an
enactment;
I
do
not
think
it
necessary
to
deal
in
any
definitive
way
with
the
point,
there
being
no
evidence
before
us
that
establishes
the
duties
and
responsibilities
of
the
two
individual
respondents.
In
view
of
this
lack
of
evidence
the
parties
are
content
that
each
of
the
respondents
be
considered
an
“officer”
of
the
National
Parole
Board
for
purposes
of
this
appeal.
On
that
basis,
I
am
satisfied
that
paragraph
17(4)(b)
of
the
Federal
Court
Act
does
confer
jurisdiction
on
the
Trial
Division
to
hear
and
determine
the
claims
made
against
the
individual
respondents
in
the
action.
I
see
no
reason
for
giving
the
language
of
that
paragraph
a
narrower
construction.
There
is
an
enigma
in
that
decision
of
the
Oag
case.
It
resides
in
the
quotation
of
a
passage
of
an
earlier
judgment
of
the
Appeal
Division:
Stephens
v.
The
Queen
et
al.
(1982),
26
C.P.C.
1,
also
reported
as
Stephens'
Estate
v.
M.N.R.
(1982),
40
N.R.
620.
That
passage
C.P.C.
pp.
9
&
1;
N.R.
pp.
629
&
630)
is:
In
the
present
case
it
is
contended
that
the
income
tax
assessments
were
invalid
and
the
defendants
other
than
the
Crown
acted
without
legal
authority
in
seeking
to
recover
the
unpaid
arrears.
The
contention
that
they
acted
without
legal
justification
would
appear
to
be
a
necessary
basis
of
their
liability
in
tort,
if
any.
Thus
the
claims
against
the
defendants
other
than
the
Crown
would
necessarily
involve
the
construction
and
application
of
provisions
of
the
Income
Tax
Act.
Is
this
sufficient
to
give
the
Court
jurisdiction
to
entertain
the
claims
against
them,
having
regard
to
the
implications
of
the
Supreme
Court’s
decision
in
Rhine
and
Prytula?
Having
given
these
implications
the
best
consideration
I
can,
I
have
come
to
the
conclusion
that
it
is
not
sufficient
for
jurisdiction.
What
I
infer
from
Rhie
and
Prytula
is
that
a
cause
of
action
in
contract
(or
tort)
may
be
held
to
be
one
sufficiently
supported
by
federal
law
to
give
the
Federal
Court
jurisdiction
if
the
contractual
or
tortious
liability
can
be
said
to
be
one
that
is
provided
for
by
federal
law.
The
Supreme
Court
appears
to
have
concluded
in
Rhine
and
Prytula
that
the
rights
asserted
there
found
their
source
essentially
or
substantially
in
federal
law
because
of
the
extent
to
which
they
were
provided
for
and
governed
by
the
applicable
federal
statutes.
In
the
present
case,
despite
the
necessary
application
of
the
provisions
of
the
Income
Tax
Act
to
the
question
of
validity
or
legal
justification,
the
right
to
damages
cannot
be
said
to
be
provided
for
by
federal
law.
If
it
exists
at
all,
it
is
created
by
provincial
law.
The
applicable
federal
law
does
not
purport
to
create
or
provide
for
this
right.
[Emphasis
added.]
The
Appeal
Division
recited
the
above
passage
of
Mr.
Justice
LeDain
in
reporting
the
respondents'
arguments
before
it.
The
Appeal
Division
did
not
ratify
what
LeDain,
J.
said,
nor
did
it
repudiate
what
he
said.
The
Stephens
case,
in
which
LeDain,
J.
made
the
above-recited
statement,
evinced
many
more
similarities
with
the
case
at
bar
than
either
the
Roberts
case
or
the
Oag
case,
both
so
recently
decided
by
the
Appeal
Division
and
earlier
mentioned
herein.
In
such
a
manner
does
this
nouvelle
vague
introduce
an
element
of
abhorrent
uncertainty
into
the
law.
In
the
Oag
case
where
there
was,
no
doubt,
a
choice
of
who
should
answer
for
the
alleged
wrong-doing
of
the
National
Parole
Board,
the
Attorney-General,
or
the
implicated
board
members
individually,
the
Appeal
Division
chose
the
individual
board
members.
Its
judgment
seems
to
attach
personal
liability
to
them.
The
earlier
judgments
of
this
Court
have
indicated
that
where,
under
the
Crown
Liability
Act,
officers
or
servants
of
the
Crown
committed
an
actionable
tort
for
which
they
might
be
held
personally
liable,
the
action
proceeded
against
the
Crown,
but
not
against
such
officers
and
servants
in
this
Court.
In
the
case
at
bar
it
would
seem
to
be
easy
to
hold
that
the
grant
of
jurisdiction
resides
in
subsection
17(1)
and
paragraph
17(4)(b)
of
the
Federal
Court
Act:
17.
(1)
The
Trial
Division
has
original
jurisdiction
in
all
cases
where
relief
is
claimed
against
the
Crown
and,
except
where
otherwise
provided,
the
Trial
Division
has
exclusive
original
jurisdiction
in
all
such
cases.
(4)
The
Trial
Division
has
concurrent
original
jurisdiction
(a)
.
.
.
(b)
in
proceedings
in
which
relief
is
sought
against
any
person
for
anything
done
or
omitted
to
be
done
in
the
performance
of
his
duties
as
an
officer
or
servant
of
the
Crown.
[Emphasis
added.]
The
action
before
the
Court
is
certainly
a
case
where
relief
is
claimed
against
the
Crown.
It
is
certainly
a
proceeding
in
which,
were
it
not
for
the
(now
uncertain)
operation
of
the
Crown
Liability
Act,
relief
could
be
sought
from
any
person
for
misdeeds
in
the
performance
of
duties
as
an
officer
or
servant
of
the
Crown.
Admittedly,
these
are
the
interpretations
which
Urie,
J.
and
Hugessen,
J.
declined
to
embrace
in
the
above-mentioned
Roberts
case.
In
the
case
at
bar
it
would
seem
to
be
obvious
that
there
is
a
body
of
federal
law
which
is
essential
to
the
disposition
of
the
case
and
which
nourishes
the
statutory
grant
of
jurisdiction.
It
is
a
small
body,
being
section
241
of
the
Act,
passed
for
the
protection
of
taxpayers
and
others
from
whom
the
Minister
collects
information,
returns
and
other
documents.
Its
basic
purpose
may
well
be
to
protect
the
Revenue,
but
it
aims
to
achieve
that
by
protecting
taxpayers
and
others.
The
plaintiffs
are
such
taxpayers
or
other
persons.
The
Minister’s
officials’
duty
not
to
divulge,
and
the
plaintiffs’
correlative
right
to
have
their
information,
books,
records,
returns
or
other
documents
kept
from
being
revealed
by
the
Minister's
officials,
are
conceived
and
born
and
reside
in
section
241
which
is
their
sine
qua
non.
That
provision
is
quintessentially
federal
law
for
it
is
emplaced
in
and
incidental
to
Parliament’s
specific
exertion
of
its
legislative
competence
in
a
class
of
subject
prescribed
in
head
3
of
section
91
of
the
Constitution
Act,
1867:
The
Raising
of
Money
by
any
Mode
or
System
of
Taxation.
The
other
federal
legislation
pleaded
by
the
plaintiffs
is
section
24
and
schedule
II
of
the
Access
to
Information
Act,
S.C.
1980-81-82-83,
Chap.
111.
This
legislation
supplements
and
specifically
supports
section
241
of
the
Income
Tax
Act.
It
is
undoubtedly
authentic
federal
law.
Therefore,
to
paraphrase
Stone,
J.
in
the
unanimous
Oag
decision
of
the
Appeal
Division,
the
source
of
the
right
to
be
enjoyed
by
the
plaintiffs
at
all
times
after
their
information
and
documents
had
been
“obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act”
is
found
in
federal
law.
To
paraphrase
further:
“These
[alleged]
torts
.
.
.
depend
for
their
existence
upon
federal
law;
any
provable
damages
resulting
from
their
commission
are
recoverable
in
the
Trial
Division”.
Admittedly,
these
conclusions
do
not
square
with
the
conclusions
previously
stated
by
LeDain,
J.
for
an
equally
unanimous
panel
of
the
Appeal
Division
in
the
Stephens
case,
which
were
passively
recited
by
the
more
recently
convoked
panel
of
that
division
in
the
Oag
case.
Nor,
admittedly,
do
these
conclusions
square
with
the
decisions
in
this
Court
in
Pacific
Western
Airlines
v.
The
Queen,
[1979]
2
F.C.
476;
105
D.L.R.
(3d)
44
(F.C.T.D.)
and
[1980]
1
F.C.
86;
105
D.L.R.
(3d)
60
(F.C.A.).
This
declared
state
of
the
law
seems
to
pose
a
conundrum
for
the
Court.
What
ought
to
be
the
result,
in
view
of
the
previous
long
line
of
apparently
authoritative
interpretations
of
section
101
of
the
Constitution
Act,
1867?
No
doubt
Mr.
Justice
McIntyre's
three
criteria
expressed
in
the
ITO
—
International
Terminal
Operators
case,
above
recited,
constitute
the
most
authoritative
interpretation
of
that
constitutional
provision.
Equally,
the
Appeal
Division’s
interpretations
of
those
three
criteria
in
the
Roberts
and
the
Oag
cases
provide
authoritative
statements
of
jurisdiction
which
this
Court
ought
to
follow.
Unless
and
until
the
Supreme
Court
of
Canada
decrees
otherwise,
this
Court
must
abide
by
the
reasoning
expressed
by
one
panel
of
the
Appeal
Division
in
the
Roberts
case,
and
particularly
this
Court
must
abide
by
the
reasoning
expressed
by
another
panel
of
the
Appeal
Division
in
the
more
apposite
situation
revealed
in
the
Oag
case.
This,
despite
the
contrary
opinion
of
the
Appeal
Division
in
the
earlier,
but
now
apparently
overruled
statement
of
the
law
expressed
in
the
similar
Stephens
case,
as
well
as
in
the
Pacific
Western
Airlines
case.
Therefore,
the
Court
will
order
that
a
notice
of
the
amended
statement
of
claim
herein
may
be
served
on
the
defendants
Reginald
H.
Norberg
and
Donald
J.
Sasnett
at
915-2nd
Avenue,
in
the
City
of
Seattle,
in
the
State
of
Washington,
one
of
the
United
States
of
America,
or
elsewhere
in
that
country
wherever
they
may
be
found.
Each
of
those
defendants
shall
be
accorded
60
days
from
and
after
such
service
within
which
to
file
his
defence.
Rule
307(2)
provides
that
the
defendant
may,
within
such
time,
seek
to
obtain
from
the
Court
further
time
to
file
his
defence.
Order
accordingly.
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