Ryan,
J:—This
is
a
reference
by
the
Tariff
Board
to
this
Court
under
subsection
28(4)
of
the
Federal
Court
Act,
which
provides:
(4)
A
federal
board,
commission
or
other
tribunal
to
which
subsection
(1)
applies
may
at
any
stage
of
its
proceedings
refer
any
question
or
issue
of
law,
of
jurisdiction
or
of
practice
and
procedure
to
the
Court
of
Appeal
for
hearing
and
determination.
The
reference
involves
determining
whether
the
Deputy
Minister
of
National
Revenue
for
Customs
and
Excise
(“the
Deputy
Minister”)
may
delegate
to
officials
of
his
Department
the
authority,
vested
in
him
by
subsection
46(4)
of
the
Customs
Act,
to
redetermine
the
classification
of
imported
goods
or
whether
he
must
exercise
the
authority
personally.
[It
is
reasonably
well
established
that
an
express
statutory
authority
conferred
on
a
minister
of
the
Crown
can
be
exercised,
with
some
few
exceptions,
through
the
Minister’s
department.
In
a
decision
of
this
Court,
Ahmad
v
Public
Service
Commission,
[1974]
2
FC
644,
it
was
said
that
such
a
grant
of
authority
to
a
deputy
minister
can
be
executed
in
the
same
way
unless
the
statute
indicates
otherwise,
provided
that
the
decision
he
is
authorized
to
make
is
administrative
in
nature.
An
issue
in
this
case
is
whether
we
should
follow
what
was
said
in
Ahmad.
Even,
however,
if
we
were
to
decide
to
follow
Ahmad,
we
would
have
to
consider
whether
there
is
something
in
the
Customs
Act
“expressly
or
implicitly
to
the
contrary”,
something
that
would
require
the
Deputy
Minister
to
decide
personally.
It
was
submitted
in
argument
that
there
is.
It
was
submitted
that
the
structure
of
section
46
of
the
Customs
Act,
indicates
a
contrary
intention.
It
was
also
argued
that
the
authority
conferred
on
the
Deputy
Minister
by
subsection
46(4)
is
not
purely
administrative
in
nature,
but
is
an
authority
which
must
be
exercised
quasi-judicially.
One
of
the
parties
submitted
that
the
effect
of
subsection
23(3)
of
the
Interpretation
Act
provides,
in
itself,
adequate
authority
to
the
Deputy
Minister
to
delegate
as
he
did.
Steel
shot
was
imported
into
Canada.
There
appears
to
have
been
a
determination
of
the
tariff
classification
of
the
goods
at
the
time
of
entry.
Later,
a
decision,
expressed
as
having
been
made
by
the
Deputy
Minister
under
paragraph
46(4)(d)
of
the
Customs
Act,
was
issued,
dated
May
2,
1984.
The
decision
reads
in
part:
The
Department
has
been
provided
with
additional
information
concerning
the
manufacturing
processes
and
the
marketing
practice
of
steel
shot.
As
a
result
of
this
additional
information,
a
redetermination
has
been
made
by
the
Deputy
Minister
under
subsection
46(4)(d)
of
the
Customs
Act,
classifying
the
steel
shot
under
tariff
item
46600-1.
Paragraph
46(4)(d)
of
the
Act
authorizes
the
Deputy
Minister
to
redetermine
the
tariff
classification
of
any
goods
in
any
case,
other
than
the
cases
specified
in
paragraphs
(a),
(b)
and
(c),
“.
.
.
when
he
deems
it
advisable,
within
two
years
of
the
date
of
entry
of
those
goods.”
The
decision
was
signed
by
“J
T
Vachon,
Director,
Machinery,
Agriculture,
Electrical
and
Primary
Products
Classification,
Tariff
Programs”.
An
appeal
from
the
decision
was
taken
to
the
Tariff
Board
under
subsection
47(1)
of
the
Customs
Act.
The
appeal
was
taken
by
CAE
Metal
Abrasive
Division
of
Canadian
Bronze
Company
Limited
(“CAE”).
CAE
was
not
the
importer.
It
is,
however,
the
sole
Canadian
manufacturer
of
steel
shot.
I
assume
it
brought
the
appeal
as
an
aggrieved
person.
The
Tariff
Board
was
concerned
over
its
jurisdiction
to
entertain
the
appeal,
it
appearing
that
the
Deputy
Minister
had
not
personally
made
the
redetermination.
The
Board
accordingly
referred
certain
questions
to
this
Court.
The
Reference
is
in
these
terms:
REFERENCE
1.
At
the
hearing
of
the
Tariff
Board
Appeal
No.
2157
on
October
16,
1984
from
a
Decision
of
the
Deputy
Minister
of
National
Revenue
for
Customs
and
Excise
(the
Deputy
Minister)
dated
May
2,
1984
pursuant
to
section
46(4)
of
the
Customs
Act,
the
evidence
established
that:
(a)
the
Deputy
Minister
did
not
personally
make,
consider
or
execute
the
Decision
which
is
the
subject
of
this
appeal;
(b)
the
Decision
which
is
the
subject
of
this
appeal
was
made
by
J
T
Vachon,
Director
of
Machinery,
Agriculture
and
Electrical
Products
Classification,
Tariff
Programs
Division
of
Revenue
Canada,
Customs
and
Excise,
without
consulting
the
Deputy
Minister;
and
(c)
the
Deputy
Minister
by
memorandum
dated
November
25,
1983
had
instructed
persons
occupying
certain
positions
in
the
Customs
Department
including
the
position
occupied
by
Mr
Vachon
to
carry
out
on
his
behalf
certain
of
the
powers,
duties
and
functions
of
the
Deputy
Minister
under
subsection
46(4)
of
the
Customs
Act
in
respect
of
the
re-determination
of
the
tariff
classification
of
those
goods
for
which
the
Directorate
is
responsible,
excluding
the
re-determination
of
the
tariff
classification
under
Schedule
“C”
of
the
Customs
Tariff.
2.
The
Tariff
Board
was
not
satisfied
that
the
Deputy
Minister
had
the
legal
right
to
delegate
his
authority
to
redetermine
the
tariff
classification
of
goods
pursuant
to
subsection
46(4)
of
the
Customs
Act
and
adjourned
the
hearing
of
the
appeal
and
ordered
that
the
questions
of
law
and
jurisdiction
arising
be
referred
to
the
Federal
Court
of
Appeal
for
hearing
and
determination
pursuant
to
subsection
28(4)
of
the
Federal
Court
Act.
3.
Therefore,
the
Tariff
Board
refers
the
following
questions
to
the
Federal
Court
of
Appeal
pursuant
to
subsection
28(4)
of
the
Federal
Court
Act
for
hearing
and
determination
upon
the
record
in
this
appeal,
including
the
evidence
and
exhibits
filed:
(a)
Does
the
Tariff
Board
have
jurisdiction
to
hear
and
adjudicate
upon
an
appeal
pursuant
to
subsection
47(1)
of
the
Customs
Act
from
a
Decision
of
the
Deputy
Minister
of
National
Revenue
for
Customs
and
Excise
when
it
is
evident
that
the
Decision
has
not
been
made,
considered
or
executed
by
the
Deputy
Minister
personally.
(b)
Does
the
Deputy
Minister
have
the
legal
right
either
at
common
law
or
by
statute
to
delegate
his
authority
to
re-determine
the
tariff
classification
of
goods
pursuant
to
subsection
46(4)
of
the
Customs
Act
to
the
Director
of
Machinery,
Agriculture
and
Eletrical
Products
Classification,
Tariff
Programs
Division
of
Revenue
Canada,
Customs
and
Excise.
It
may
be
as
well
to
quote
section
46
and
subsection
47(1)
of
the
Customs
Act:
46.(1)
Subject
to
this
section,
a
determination
of
the
tariff
classification
or
an
appraisal
of
the
value
for
duty
of
any
goods,
made
at
the
time
of
their
entry,
is
final
and
conclusive
unless
the
importer,
within
ninety
days
of
the
date
of
entry,
makes
a
written
request
in
prescribed
form
and
manner
to
a
Dominion
customs
appraiser
for
a
redetermination
or
a
reappraisal.
(2)
A
Dominion
customs
appraiser
may
re-determine
the
tariff
classification
or
reappraise
the
value
for
duty
of
any
goods
made
at
the
time
of
their
entry
(a)
in
accordance
with
a
request
made
pursuant
to
subsection
(1),
or
(b)
in
any
other
case
where
he
deems
it
advisable,
within
two
years
of
the
date
of
entry.
(3)
Subject
to
subsection
(4),
a
decision
of
a
Dominion
customs
appraiser
under
this
section
is
final
and
conclusive
unless
the
importer
within
ninety
days
of
the
date
of
the
decision,
makes
a
written
request
in
prescribed
form
and
manner
to
the
Deputy
Minister
for
a
re-determination
or
a
re-appraisal.
(4)
The
Deputy
Minister
may
re-determine
the
tariff
classification
or
re-appraise
the
value
for
duty
of
any
goods
(a)
in
accordance
with
a
request
made
pursuant
to
subsection
(3),
(b)
at
any
time,
if
the
importer
has
made
any
misrepresentation
or
committed
any
fraud
in
making
the
entry
of
those
goods,
(c)
at
any
time,
to
give
effect
to
a
decision
of
the
Tariff
Board,
the
Federal
Court
of
Canada
or
the
Supreme
Court
of
Canada
with
respect
to
those
goods,
and
(d)
in
any
other
case
where
he
deems
it
advisable,
within
two
years
of
the
date
of
entry
of
those
goods.
(5)
Where
the
tariff
classification
of
goods
has
been
re-determined
or
the
value
for
duty
of
goods
has
been
re-appraised
under
this
section
(a)
the
importer
shall
pay
any
additional
duties
or
taxes
payable
with
respect
to
the
goods,
or
(b)
a
refund
shall
be
made
of
the
whole
or
a
part
of
any
duties
or
taxes
paid
with
respect
to
the
goods,
in
accordance
with
the
re-determination
or
re-appraisal.
(6)
In
this
section
“prescribed”
means
prescribed
by
regulations
of
the
Governor
in
Council.
47.
(1)
A
person
who
deems
himself
aggrieved
by
a
decision
of
the
Deputy
Minister
(a)
as
to
tariff
classification
or
value
for
duty,
(b)
made
pursuant
to
section
45,
or
(c)
as
to
whether
any
drawback
of
customs
duties
is
payable
or
as
to
the
rate
of
such
drawback,
may
appeal
from
the
decision
to
the
Tariff
Board
by
filing
a
notice
of
appeal
in
writing
with
the
secretary
of
the
Tariff
Board
within
sixty
days
from
the
day
on
which
the
decision
was
made.
The
Deputy
Minister,
by
a
memorandum
dated
November
25,
1983,
purported
to
instruct
certain
officials,
occupying
or
acing
in
certain
positions
within
Customs
and
Excise,
to
carry
out
on
his
behalf
his
powers
and
duties
under
subsection
46(4)
of
the
Customs
Act.
The
memorandum
is
in
these
terms:
Re:
Subsection
46(4)
of
the
Customs
Act
I
instruct
the
persons
occupying
or
acting
in
the
positions
set
out
below
to
carry
out,
on
my
behalf,
the
powers,
duties
and
functions
of
the
Deputy
Minister
under
subsection
46(4)
of
the
Customs
Act,
as
specified
hereunder:
Assistant
Deputy
Minister,
Customs
Programs,
in
respect
of
the
re-appraisal
of
the
value
for
duty
and
the
redetermination
of
the
tariff
classification
of
any
goods,
including
the
re-determination
of
the
tariff
classification
of
goods
classified
under
Schedule
“C”
of
the
Customs
Tariff;
Director
General,
Operational
Policy
and
Systems
Development,
in
respect
of
the
redetermination
of
the
tariff
classification
of
offensive
weapons
classified
under
Schedule
“C”
of
the
Customs
Tariff;
Director
General,
Tariff
Programs
Division,
in
respect
of
the
re-determination
of
the
tariff
classification
of
any
goods,
excluding
the
re-determination
of
the
tariff
classification
of
goods
classified
under
Schedule
“C”
of
the
Customs
Tariff;
Director
General,
Assessment
Programs
Division,
in
respect
of
the
re-appraisal
of
the
value
for
duty
of
any
goods;
Director
of
Machinery,
Agriculture
and
Electrical
Products
Classification,
Tariff
Programs
Division,
in
respect
of
the
re-determination
of
the
tariff
classification
of
those
goods
for
which
the
Directorate
is
responsible,
excluding
the
re-determination
of
the
tariff
classification
under
Schedule
“C”
of
the
Customs
Tariff;
Director
of
Industrial
and
Consumer
Goods
Classification,
Tariff
Programs
Division,
in
respect
of
the
re-determination
of
the
tariff
classification
of
those
goods
for
which
the
Directorate
is
responsible,
excluding
the
re-determination
of
the
tariff
classification
of
goods
classified
under
Schedule
“C”
of
the
Customs
Tariff.
I
also
instruct
the
above-named
persons
to
notify
the
persons
affected
of
decisions
made
under
subsection
46(4)
of
the
Customs
Act.
Mr
Vachon,
who
signed
the
decision
which
was
appealed
to
the
Tariff
Board,
obviously
was
purporting
to
act
under
this
memorandum.
Mr
Vachon
testified
before
the
Tariff
Board.
He
said
that
he
is
“.
.
.
a
Director
in
Tariff
Classification
in
the
Customs
Department
of
National
Revenue
.
.
.”,
and
that
he
had
occupied
that
position
for
approximately
five
years.
He
said
that
he
made
the
decision
in
question
“.
.
.
without
the
benefit
of
the
Deputy
Minister’s
input’’.
He
also
said
that
the
Deputy
Minister
was
informed
of
the
decision
after
he
had
sent
notice
of
it
to
the
interested
parties.
Mr
Vachon
also
testified
that
there
were
over
2,000
applications
for
redetermination
in
tariff
classification
matters
pending,
and
that
in
his
area
of
jurisdiction
“.
.
.
something
like
1,000
decisions
have
been
issued
in
the
last
six
months”.
He
also
said:
“The
Deputy
Minister
has
given
instructions
as
to
certain
classes
of
cases
he
would
like
to
see
personally
and
deal
with
personally.
He
has
delegated
authority
in
other
places”.
Counsel
for
CAE
submitted
that
the
questions
in
respect
of
which
the
Reference
is
made
should
be
answered
in
the
affirmative.
Counsel
submitted
that
subsection
23(3)
of
the
Interpretation
Act
provides
the
Deputy
Minister
with
authority
to
designate
Jean
T
Vachon
as
his
deputy
to
make
a
decision
pursuant
to
subsection
46(4)
of
the
Customs
Act,
and
that
the
Deputy
Minister
has
effectively
exercised
that
authority.
Subsections
23(2)
and
23(3)
of
the
Interpretation
Act
provide:
(2)
Words
directing
or
empowering
a
Minister
of
the
Crown
to
do
an
act
or
thing,
or
otherwise
applying
to
him
by
his
name
or
office,
include
a
Minister
acting
for
him,
or,
if
the
office
is
vacant,
a
Minister
designated
to
act
in
the
office
by
or
under
the
authority
of
an
order
in
council,
and
also
his
successors
in
the
office,
and
his
or
their
deputy,
but
nothing
in
this
subsection
shall
be
construed
to
authorize
a
deputy
to
exercise
any
authority
conferred
upon
a
Minister
to
make
a
regulation
as
defined
in
the
Statutory
Instruments
Act.
(3)
Words
directing
or
empowering
any
other
public
officer
to
do
any
act
or
thing,
or
otherwise
applying
to
him
by
his
name
of
office,
include
his
successors
in
the
office
and
his
or
their
deputy.
These
subsections,
in
their
French
version,
read:
(2)
Les
mots
qui
donnent
à
un
ministre
de
la
Couronne
l’ordre
ou
l’autorisation
d’accomplir
un
acte
ou
une
chose
ou
qui,
de
quelque
autre
manière,
lui
sont
applicables
en
raison
de
son
titre
officiel
comprennent
un
ministre
agissant
pour
lui
ou,
si
le
poste
est
vacant,
un
ministre
désigné
pour
remplir
ce
poste,
en
exécution
ou
sous
le
régime
d’un
décret
du
conseil,
de
même
qui
ses
successeurs
à
la
charge
en
question
et
son
ou
leur
délégué,
mais
rien
au
présent
paragraphe
ne
peut
s’interpréter
comme
permettant
à
un
délégué
d’exercer
quelque
pouvoir,
conféré
à
un
ministre,
d’établir
un
règlement
défini
dans
la
Loi
sur
les
textes
réglementaires.
(3)
Le
mots
qui
donnent
à
tout
autre
fonctionnaire
public
l’ordre
ou
l’autorisation
d’accomplir
un
acte
ou
une
chose
ou
qui,
de
quelque
autre
manière,
lui
sont
applicable
en
raison
de
son
titre
officiel,
comprennent
ses
successeurs
à
la
charge
et
son
ou
leur
délégué.
The
term
“public
officer”
is
defined
in
subsection
2(1)
of
the
Interpretation
Act
as
including,
among
others,
‘‘any
person
in
the
public
service
of
Canada
who
is
authorized
by
or
under
an
enactment
to
do
.
.
.
an
act
or
thing
.
.
.”.
The
term
thus
includes
a
deputy
minister.
Counsel
submitted
that
the
word
“deputy”,
as
used
in
subsection
23(3),
has
the
meaning
attributed
to
it
by
Chief
Justice
Culliton
in
Ex
parte
Huculak
(1969),
69
WWR
238
(Sask
CA).
Chief
Justice
Culliton
said
at
240:
In
applying
sec
656(2)
of
the
Criminal
Code,
effect
must
be
given
to
the
pertinent
provisions
of
the
Interpretation
Act.
To
accept
the
submission
of
the
appellant
would
be
to
ignore
the
words
“his
lawful
deputy”
as
used
in
the
preceding
subsection.
In
my
opinion,
the
word
“deputy”
as
there
used
must
be
construed
in
its
ordinary
sense
as
meaning
a
person
appointed
or
authorized
as
a
substitute
for
another
and
empowered
to
act
for
him
or
in
his
place.
Thus,
in
the
absence
of
any
suggestion
limiting
the
authority
of
the
assistant
clerk
of
the
Privy
Council,
I
must
conclude
that
he
is
the
lawful
deputy
of
the
clerk
of
the
Privy
Council.
Therefore,
by
virtue
of
the
provision
in
the
Interpretation
Act
the
copy
of
the
order
of
commutation,
duly
certified
by
the
assistant
clerk
of
the
Privy
Council,
meets
the
requirements
of
sec
656(2)
of
the
Criminal
Code.
In
the
Huculak
case,
the
appellant’s
sentence
had
been
commuted
to
a
term
of
imprisonment.
He
was
being
detained
in
penitentiary
by
virtue
of
an
order
in
council
signed,
not
by
the
clerk
of
the
Privy
Council,
but
by
the
assistant
clerk.
The
appellant
submitted
that
he
was
being
unlawfully
detained
because
the
clerk
of
the
Privy
Council
had
not
certified
the
order
in
council
as
required
by
the
relevant
provision
of
the
Criminal
Code.
As
I
have
just
indicated,
this
submission
failed.
In
Huculak,
the
person
who
actually
signed
the
order
in
council
appears,
by
his
very
title,
to
have
been
a
person
occupying
a
position
which
could
aptly
be
described
as
a
“deputy’s
position”.
It
is
far
from
clear
to
me
that
the
word
“deputy”
in
the
English
version
or
the
word
“délégué”
in
the
French
version
is
broad
enough
to
include
a
person
who
is
authorized
by
a
public
officer
to
act
for
him
by
way
of
delegation,
but
who
does
not
occupy
a
public
service
position
that
could
properly
be
described
as
being
that
of
“deputy”
to
the
public
officer
concerned.
I
do
not
think
the
effect
of
subsection
23(3)
of
the
Interpretation
Act
is
to
authorize
a
public
officer
to
appoint
his
own
“deputy”,
whatever
that
person’s
position
in
the
public
service
might
be,
and
to
delegate
statutory
power
to
him.
The
effect
of
subsection
23(3),
for
relevant
purposes,
appears
to
me
to
be
this:
If
an
enactment
authorizes
a
public
officer,
a
deputy
minister,
for
example,
to
do
an
act
or
thing,
the
enactment
shall
be
read
as
empowering
a
person
who
occupies
a
position
as
deputy
of
that
public
officer
to
do
the
act
or
thing.
Counsel
for
CAE
said
that,
if
he
failed
on
the
Interpretation
Act
point,
he
would
not
find
it
possible
to
argue
that
the
Customs
Act
itself
expressly
or
impliedly
authorizes
the
Deputy
Minister
to
delegate.
Counsel
for
the
Attorney
General
did
not
rely,
as
did
CAE,
on
the
Interpretation
Act.
His
submission
was
more
broadly
based.
The
Deputy
Minister,
he
argued,
does
not
have
to
act
personally.
He
has
power
to
direct
by
which
officials
in
his
Department
the
authority
conferred
on
him
by
subsection
46(4)
of
the
Customs
Act
may
be
carried
out.
As
I
understood
his
position,
it
was
that
the
Deputy
Minister’s
memorandum
of
November
25,
1983
is
such
a
direction.
It
does
not
involve
a
devolution
of
authority.
It
is
an
instrument
which
establishes
an
internal
departmental
arrangement.
He
relied
among
other
authorities
on
Carltona,
Ltd
v
Commissioners
of
Works,
[1943]
2
All
ER
560
(CA).
In
that
case
Lord
Greene
said
at
563:
In
the
administration
of
government
in
this
country
the
functions
which
are
given
to
ministers
(and
constitutionally
properly
given
to
ministers
because
they
are
constitutionally
responsible)
are
functions
so
multifarious
that
no
minister
could
ever
personally
attend
to
them.
To
take
the
example
of
the
present
case
no
doubt
there
have
been
thousands
of
requisitions
in
this
country
by
invididual
ministries.
It
cannot
be
supposed
that
this
regulation
meant
that,
in
each
case,
the
minister
in
person
should
direct
his
mind
to
the
matter.
The
duties
imposed
upon
ministers
and
the
powers
given
to
ministers
are
normally
exercised
under
the
authority
of
the
ministers
by
responsible
officials
of
the
department.
Public
business
could
not
be
carried
on
if
that
were
not
the
case.
Constitutionally,
the
decision
of
such
an
official
is,
of
course,
the
decision
of
the
minister.
The
minister
is
responsible.
It
is
he
who
must
answer
before
Parliament
for
anything
that
his
officials
have
done
under
his
authority
and,
if
for
an
important
matter
he
selected
an
official
of
such
junior
standing
that
he
could
not
be
expected
competently
to
perform
the
work,
the
minister
would
have
to
answer
for
that
in
Parliament.
The
whole
system
of
departmental
organization
and
administration
is
based
on
the
view
that
ministers,
being
responsible
to
Parliament,
will
see
that
important
duties
are
committed
to
experienced
officials.
If
they
do
not
do
that,
Parliament
is
the
place
where
complaint
must
be
made
against
them.
In
these
reasons
I
will
refer
to
this
passage
as
the
“Carltona
principle”.
Counsel
also
referred
us
to
a
passage
from
the
reasons
for
judgment
of
Mr
Justice
Dickson
(as
he
then
was)
in
The
Queen
v
Harrison,
[1977]
1
SCR
238,
at
245
and
246:
.
.
.
Although
there
is
a
general
rule
of
construction
in
law
that
a
person
endowed
with
a
discretionary
power
should
exercise
it
personally
(delegatus
non
potest
delegare)
that
rule
can
be
displaced
by
the
language,
scope
or
object
of
a
particular
administrative
scheme.
A
power
to
delegate
is
often
implicit
in
a
scheme
empowering
a
Minister
to
act.
As
Professor
Willis
remarked
in
“Delegatus
Non
Potest
Delegare”,
(1943),
21
Can
Bar
Rev
257
at
p
264:
“in
their
application
of
the
maxim
delegatus
non
potest
delegare
to
modern
governmental
agencies
the
Courts
have
in
most
cases
preferred
to
depart
from
the
literal
construction
of
the
words
of
the
statute
which
would
require
them
to
read
‘personally’
and
to
adopt
such
a
construction
as
will
best
accord
with
the
facts
of
modern
government
which,
being
carried
on
in
theory
by
elected
representatives
but
in
practice
by
civil
servants
or
local
government
officers,
undoubtedly
requires
them
to
read
in
the
words
‘or
any
person
authorized
by
it’”.
See
also
S
A
DeSmith,
Judicial
Review
of
Administrative
Action,
3d
ed,
at
p
271.
Thus,
where
the
exercise
of
a
discretionary
power
is
entrusted
to
a
Minister
of
the
Crown
it
may
be
presumed
that
the
acts
will
be
performed,
not
by
the
Minister
in
person,
but
by
responsible
officials
in
his
department:
Carltona,
Ltd
v
Commissioner
of
Works.
The
tasks
of
a
Minister
of
the
Crown
in
modern
times
are
so
many
and
varied
that
it
is
unreasonable
to
expect
them
to
be
performed
personally.
It
is
to
be
supposed
that
the
Minister
will
select
deputies
and
departmental
officials
of
experience
and
competence,
and
that
such
appointees,
for
whose
conduct
the
Minister
is
accountable
to
the
Legislature,
will
act
on
behalf
of
the
Minister,
within
the
bounds
of
their
respective
grants
of
authority,
in
the
discharge
of
ministerial
responsibilities.
Any
other
approach
would
but
lead
to
administrative
chaos
and
inefficiency.
.
.
.
The
Carltona
principle,
as
I
see
it,
is
based
on
two
elements.
One
is
the
circumstance
that
.
.
the
functions
which
are
given
to
ministers
(and
constitutionally
properly
given
to
ministers
because
they
are
constitutionally
responsible)
are
functions
so
multifarious
that
no
minister
could
ever
possibly
attend
to
them”.
The
other
is
the
constitutional
responsibility
of
a
minister
of
the
Crown
to
Parliament.
“Constitutionally,
the
decision
of
such
an
official
is,
of
course,
the
decision
of
the
minister.
The
minister
is
responsible.
It
is
he
who
must
answer
before
Parliament.
.
.
.”’
In
Harrison,
Mr
Justice
Dickson
also
referred
to
the
two
elements,
the
many
and
varied
tasks
of
a
minister
of
the
Crown,
and
his
accountability
to
Parliament.
In
HWR
Wade,
Administrative
Law
(4th
ed,
1980)
(“Wade”),
it
is
stated
that
“The
authority
of
officials
to
act
in
their
ministers’
names
derives
from
a
general
rule
of
law
.
.
[Emphasis
added.]
I
will
quote
the
passage
at
some
length,
because
I
find
it
particularly
helpful:
Strictly
speaking
there
is
not
even
delegation
in
these
cases.
Delegation
requires
a
distinct
act
by
which
the
power
is
conferred
upon
some
person
not
previously
competent
to
exercise
it.
But
the
authority
of
officials
to
act
in
their
ministers’
names
derives
from
a
general
rule
of
law
and
not
from
any
particular
act
of
delegation.
Legally
and
constitutionally
the
act
of
the
official
is
the
act
of
the
minister,
without
any
need
for
specific
authorisation
in
advance
or
ratification
afterwards.
Even
where
there
are
express
statutory
powers
of
delegation
they
are
not
in
fact
employed
as
between
the
minister
and
his
own
officials.
Such
legal
formalities
would
be
out
of
place
within
the
walls
of
a
government
department,
as
is
recognised
by
Parliament’s
practice
of
conferring
powers
upon
ministers
in
their
own
names.
The
case
is
of
course
different
where
the
official
is
to
be
empowered
to
act
in
his
own
name
rather
than
the
minister’s.
Thus
the
power
for
inspectors
to
decide
certain
kinds
of
planning
appeals
must
be
delegated
by
the
minister
by
statutory
instrument,
as
required
by
the
Act.
[Emphasis
added.]
The
passages
from
Carltona
and
Harrison
and
the
quotation
from
Wade
all
relate
to
the
exercise
of
powers
on
behalf
of
ministers
of
the
Crown,
not
to
the
exercise
of
powers
by
officials
for
other
officials.
Wade,
indeed,
distinguishes
cases
where
an
official
is
empowered
to
act
in
his
own
name.
Counsel
referred
us,
however,
to
a
passage
from
the
reasons
for
judgment
of
Chief
Justice
Jackett
in
Ahmad
v
Public
Service
Commission,
[1974]
2
FC
644,
in
which
the
Carltona
principle
appears
to
have
been
extended
to
include
deputy
ministers.
The
passage
occurs
at
651:
It
would
be
quite
impossible
for
the
deputy
head
of
a
large
modern
government
department
to
give
personal
attention
to
all
such
matters,
important
as
they
may
be
to
individuals
concerned.
That
is
why
departmental
administration
is
organized
as
it
is
and,
in
my
view,
there
is
a
necessary
implication,
in
the
absence
of
something
expressly
or
implicitly
to
the
contrary
that
ministers’
powers,
and
deputy
ministers’
powers,
are
exercised
on
their
behalf
by
their
departmental
organisations
as
long
as
they
are
of
an
administrative
character.
To
what
extent
officials
are
allowed
or
required
to
do
so
in
particular
cases
is
a
matter
of
internal
arrangement
and
outsiders
have
no
status
to
question
the
authority
of
an
official
in
a
particular
case.
In
Ahmad,
a
deputy
head
had
delegated
his
authority
under
section
31
of
the
Public
Service
Employment
Act
to
recommend
the
release
of
an
employee
if
in
the
deputy
head’s
opinion
the
employee
was
incompetent
to
perform
the
duties
of
his
office.
The
delegation
was
to
a
director
of
personnel
who
exercised
the
authority.
The
delegation
was
made
pursuant
to
a
provision
in
the
statute
authorizing
such
delegation.
The
Court
held
that
the
delegation
was
effective.
The
Chief
Justice,
however,
proceeded
to
say
at
650
and
651:
...
In
any
event,
quite
apart
from
special
statutory
authorization,
in
my
view,
this
opinion
was
not
one
that
required
personal
attention
from
the
deputy
head
and
was
validly
formed
by
appropriate
departmental
officials
on
the
basis
of
the
principles
applied
in
such
cases
as
Carltona,
Ltd
v
Comrs.
Works.
He
then
quoted
the
passage
from
Lord
Greene’s
judgment
in
Carltona
which
I
have
quoted
above,
and
proceeded
to
the
passage
in
which
he
extended
Carltona
to
include
deputy
ministers.
It
would
appear
that,
if
the
passage
from
Ahmad
is
correct,
this
Court
should
treat
an
authority
entrusted
by
statute
to
a
deputy
minister
as
carrying
with
it
a
presumption
that
the
acts
which
the
deputy
minister
is
authorized
to
perform
may
be
performed,
not
only
by
him
in
person,
but
also
by
responsible
officials
in
his
department.
And
I
would
say
that
I
do
read
the
passage
from
Ahmad
as
being
at
least
an
alternative
ground
for
the
decision
of
the
Court
on
the
“delegation
point”
involved
in
that
case.
So,
for
purposes
of
these
reasons,
I
will
assume
that
the
“Ahmad
presumption”
applies.
At
any
rate,
if
my
conclusion
should
be
that
the
Deputy
Minister
cannot
delegate
under
subsection
46(4)
even
with
the
support
of
the
presumption,
I
can
see
no
way
in
which
I
could
find
that
he
would
have
such
a
power
without
its
aid.
But
the
presumption
that
a
deputy
minister
may
exercise
a
statutory
authority
granted
to
him
by
using
departmental
officials
is,
even
according
to
Ahmad
itself,
subject
to
“.
.
.
something
expressly
or
implicitly
to
the
contrary”
in
the
statute;
and
again,
the
presumption
operates
only
if
the
authority
conferred
is
“.
.
.
of
an
administrative
character”.
Ultimately,
in
my
view,
what
is
critical
in
deciding
whether
the
Deputy
Minister
must
exercise
personally
the
authority
conferred
on
him
by
section
46
is,
in
the
words
of
Harrison,
“.
.
.
the
language,
scope
or
object
.
.
.”’
of
the
administrative
scheme
established
by
section
46.
The
“Ahmad
presumption”
is
an
element
to
be
considered
in
deciding
the
issue,
but
cannot,
in
itself,
be
decisive.
Section
46
of
the
Customs
Act
establishes
an
administrative
scheme
having
to
do
with
the
determination
of
tariff
classification
and
the
appraisal
of
the
value
for
duty
of
imported
goods.
Both
are
essential
features
of
a
Customs
system
and
both
are
very
important
to
importers.
The
process
of
classification
and
appraisal
sometimes
involves
difficult
questions
of
interpretation,
questions
of
mixed
fact
and
law.
A
determination
of
the
tariff
classification
or
an
appraisal
of
the
value
for
duty
of
goods
made
at
the
time
of
entry
of
the
goods
is
final
and
conclusive
unless
the
importer,
within
ninety
days
of
the
date
of
entry,
makes
a
written
request
in
prescribed
form
and
manner
to
a
Dominion
customs
appraiser
for
a
redetermination
or
a
reappraisal.
The
Dominion
customs
appraiser
may
redetermine
the
tariff
classification
or
may
reappraise
the
value
for
duty
in
response
to
the
importer’s
request.
But
this
redetermination
or
reappraisal
is
not
necessarily
final.
The
importer
has
a
further
recourse.
He
may
request
the
Deputy
Minister
to
make
a
further
redetermination
or
reappraisal.
This
ascending
order
is
significant
for
present
purposes.
It
points
to
a
conclusion
that
the
importer
is
entitled
to
have
his
request
considered
by
the
Deputy
Minister
himself
rather
than
by
an
official
directed
by
the
Deputy
Minister
to
act
on
his
behalf.
Under
subsection
46(3),
the
importer
has
the
right
to
make
a
request
to
the
Deputy
Minister,
the
senior
administrative
official
in
the
Department.
He
has
already
had
a
redetermination
or
a
reappraisal
by
a
junior
official,
the
Dominion
customs
appraiser.
His
request
is
for
a
redetermination
or
a
reappraisal
by
the
highest
administrative
official
in
the
Department.
I
realize
that
in
the
present
case
the
decision
appealed
to
the
Tariff
Board
is
expressed
as
being
a
decision
made
under
paragraph
46(4)(d),
not
under
paragraph
46(4)(a).
If
paragraph
46(4)(d)
stood
alone,
it
would
be
easier
to
argue
that
the
Deputy
Minister
could
delegate
to
other
officials
because
under
the
paragraph
the
Deputy
Minister
may
act
on
his
own
initiative;
he
is
not
acting
in
response
to
a
request
containing
representations.
But
his
power
under
paragraph
46(4)(d)
must
nonetheless
be
determined
by
reading
the
paragraph
in
context.
The
context
is
section
46
as
a
whole.
I
have,
I
hope,
demonstrated
that
the
importer
who
asked
for
and
obtained
a
redetermination
or
a
reappraisal
from
a
Dominion
customs
appraiser
has
a
right
to
ask
the
Deputy
Minister
personally
to
make
a
further
redetermination
or
reappraisal.
I
would
add
that
he
has
a
similar
right,
even
if
the
Dominion
customs
appraiser
acting
on
his
own
initiative
has
made
a
redetermination
or
reappraisal
under
paragraph
46(2)(b).
It
would,
I
suggest,
be
odd
if
despite
his
right
to
a
personal
decision
under
paragraph
46(4)(a),
he
could
be
subjected
to
a
“delegated
decision’’
under
paragraph
46(4)(d):
this
surely
could
not
be
the
statutory
intent.
I
would
add
that
the
presence
of
paragraph
46(4)(b)
in
the
subsection
also
points
in
the
direction
of
a
requirement
that
the
Deputy
Minister
must
act
personally
under
subsection
46(4):
the
paragraph
authorizes
the
Deputy
Minister
to
make
a
redetermination
or
a
reappraisal
“.
.
.
at
any
time,
if
the
importer
has
made
any
misrepresentation
or
committed
any
fraud
in
making
the
entry
of
those
goods’’,
this
particular
authority
to
redetermine
or
reappraise
is
not
limited
to
two
years
after
the
date
of
entry,
and
it
is
vested
in
terms
in
the
Deputy
Minister;
a
condition
precedent
to
its
exercise
is
that
the
importer
must
have
made
a
misrepresentation
or
committed
fraud,
a
very
serious
matter.
Authority
under
the
paragraph
is
understandably
reserved
to
the
highest
administrative
official
in
the
Department.
I
am
persuaded
that
the
structure
of
section
46,
when
all
parts
of
the
section
are
read
together,
indicates
an
intention
that
the
Deputy
Minister
must
act
per-
sonally
when
he
exercises
his
authority
under
any
of
the
provisions
of
the
section,
that
he
must
bring
his
own
mind
to
bear
on
the
matter:
see
Ramawad
v
The
Minister
of
Manpower
and
Immigration,
[1978]
2
SCR
375,
per
Mr
Justice
Pratte
at
pages
381
and
382.
The
language,
scope
and
object
of
the
section
can
hardly
be
said,
in
the
words
of
Harrison,
to
displace
the
“general
rule
of
construction
in
law
that
a
person
endowed
with
a
discretionary
power
should
exercise
it
personally.”.
It
was
also
argued
that
a
decision
by
the
Deputy
Minister
under
paragraph
46(4)(a)
is
not
a
decision
which
is
“administrative
in
character”,
but
is
a
decision
which
is
judicial
or
quasi-judicial.
There
is
a
good
deal
of
force
in
this
submission.
The
request
under
subsection
46(3)
must
be
made
in
writing
and
must
state
the
reasons
and
grounds
for
the
request.
If
the
Deputy
Minister
grants
the
request
to
make
the
redetermination
or
reappraisal,
he
must
surely
come
to
his
decision
with
the
terms
of
the
request
in
mind.
In
this
sense,
the
importer
is
entitled
to
and
does
make
representations.
The
decision
of
the
Deputy
Minister,
if
he
accedes
to
the
request,
may
confer
a
significant
benefit
on
the
importer:
the
duties
previously
assessed
may
be
reduced
or
eliminated.
And
the
decision
of
the
Deputy
Minister
is
not
to
be
made
for
the
purpose
of
implementing
policy.
The
Deputy
Minister,
in
making
a
redetermination,
must
apply
the
terms
of
the
Customs
Tariff
to
the
matter
in
issue
or,
in
making
a
reappraisal,
he
must
apply
the
relevant
provisions
of
the
statute
having
to
do
with
appraisal
of
value
for
duty.
And
there
is
clearly
a
matter
in
issue,
a
lis
in
a
broad
sense.
The
issue
is
whether
the
Dominion
customs
appraiser
was
in
error
in
determining
the
tariff
classification
as
he
did
or
in
appraising
as
he
did.
I
recognize,
of
course,
that,
under
paragraph
46(4)(d),
the
Deputy
Minister
does
not
act
on
a
request
from
an
importer.
But,
here
too,
his
decision
must
be
made,
not
on
a
policy
basis,
but
by
applying
the
tariff
item
or
the
relevant
statutory
provisions
appropriate
in
the
circumstances.
His
decision
carries
with
it
a
strong
“element
of
law”,
and
it
may
have
serious
consequences
to
an
importer.
I
am
persuaded
that
a
decision
taken
by
the
Deputy
Minister
under
subsection
46(4)
is
not
a
decision
“administrative
in
character”
as
I
understand
that
term
to
be
used
in
Ahmad.
In
Ahmad,
the
decision
under
review,
the
decision
to
recommend
release
of
an
employee,
though
important
to
the
employee,
was
nonetheless
a
decision
made
in
the
course
of
departmental
personnel
administration,
and
was
not
in
itself
decisive
of
whether
the
employee
should
be
released.
It
was
clearly
“administrative
in
character”.
I
do
not
think
that,
merely
because
a
decision
may
have
a
quasi-judicial
element,
it
would
necessarily
follow
that
it
could
not
be
“administrative
in
character”.
In
Vine
v
National
Dock
Labour
Board,
[1957]
AC
468,
Viscount
Kilmuir
said
at
499:
.
.
.
I
am
not
prepared
to
lay
down
that
no
quasi-judicial
function
can
be
delegated,
because
the
presence
of
the
qualifying
word
“quasi”
means
that
the
functions
so
described
can
vary
from
those
which
are
almost
entirely
judicial
to
those
in
which
the
judicial
constituent
is
small
indeed.
..
.
.
A
decision
made
under
subsection
46(4)
may,
however,
turn
on
significant
questions
of
law
as
well
as
of
fact:
the
“legal
element”
may
not
be
slight;
it
may
be
critical.
Counsel
for
the
Tariff
Board
also
relied
on
the
maxim
expressio
unius
est
exclusio
alterius
in
support
of
his
submission
that
the
Deputy
Minister
could
not
delegate.
Counsel
referred
to
the
rights
of
delegation
given
to
the
Minister
under
sections
162
and
163
of
the
Customs
Act;
it
was
argued
that
since
these
sections
expressly
authorize
the
Minister
to
delegate,
a
proper
inference
is
that
subsection
46(4)
cannot
be
taken
to
contain
an
implied
power
to
delegate.
It
was
also
argued
that
because
some
other
statutes,
statutes
such
as
the
Immigration
Act,
1976
and
the
Public
Service
Employment
Act,
expressly
authorize
the
Deputy
Minister
to
delegate,
it
may
be
assumed
that
Parliament
would
have
provided
a
similar
power
in
the
Customs
Act
if
it
had
intended
that
the
Deputy
Minister
might
delegate
his
authority
under
subsection
46(4)
of
the
Customs
Act.
I
confess
I
did
not
find
these
submissions
persuasive.
For
all
the
reasons
I
have
given,
I
would
answer
question
3(a)
of
the
Reference
in
the
negative.
It
follows
that
I
would
also
answer
question
3(b)
in
the
negative.
I
would,
however,
make
this
general
observation.
It
should,
of
course,
be
borne
in
mind
that
the
Deputy
Minister
is
entitled,
in
exercising
his
authority
under
subsection
46(4),
to
make
full
use
of
his
departmental
staff
in
arriving
at
his
redeterminationss
or
reappraisals.
He
need
not
do
the
“‘leg
work”
himself.
I
will
close
with
one
more
observation,
though
it
is
not
necessary
to
do
so
in
order
to
answer
the
questions
asked
in
the
Reference.
It
would
seem
to
me
that,
when
subsection
46(4)
of
the
Customs
Act
is
read
in
the
light
of
subsection
23(3)
of
the
Interpretation
Act,
it
may
well
have
the
effect
of
conferring
on
an
official
in
the
Department
who
occupies
a
position
which
is,
when
properly
considered,
a
position
as
“deputy”
to
the
Deputy
Minister,
authority
to
exercise
powers
conferred
on
the
Deputy
Minister
by
subsection
46(4).
An
“assistant
deputy
minister”
may,
for
example,
occupy
such
a
position.
Heald,
J:—I
have
read
the
draft
reasons
for
judgment
herein
prepared
by
my
brother,
Ryan,
J.
I
concur
in
the
result
which
he
proposes.
I
also
agree
with
the
reasons
which
he
gives
in
support
of
that
conclusion
except
for
one
reservation
which
I
would
like
to
express
shortly.
That
reservation
relates
to
the
opinion
expressed
by
Mr
Justice
Ryan
that
the
views
expressed
by
Jackett,
CJ
in
the
Ahmad
decision
are
at
least
an
alternative
ground
for
the
Court’s
decision
on
the
“delegation
point”
involved
in
that
case.
With
respect,
I
do
not
share
that
view.
It
is
my
opinion
that
there
are
factual
differences
in
Ahmad
which
serve
to
distinguish
it
from
the
case
at
bar.
As
observed
by
Mr
Justice
Ryan,
the
delegation
by
the
deputy
head
in
that
case
was
made
pursuant
to
subsection
6(5)
of
the
Public
Service
Employment
Act
which
authorized
such
delegation.
After
referring
to
subsection
6(5)
and
the
instrument
of
delegation
in
evidence
in
that
case,
the
learned
Chief
Justice
said
at
650:
In
my
view,
while
not
as
aptly
worded
as
it
might
have
been,
this
instrument
was
adequate
authority
for
the
Director
to
form
the
opinion
of
the
applicant’s
incompetency
that
was
a
condition
precedent
to
a
recommendation
under
section
31.
(Compare
Mungoni
v
Attorney
General
of
Northern
Rhodesia
[1960]
AC
336).
I
think
that
the
passage
above
quoted
forms
the
basis
and
ratio
of
the
decision
of
the
learned
Chief
Justice.
His
further
view,
as
expressed
in
the
passage
quoted
by
Mr
Justice
Ryan
to
the
effect
that,
in
any
event,
the
opinion
sought
was
“.
.
.
not
one
that
required
personal
attention
from
the
deputy
head
and
was
validly
formed
by
appropriate
departmental
officials
.
.
.”
is
an
opinion
which
should
be
treated
as
dicta
since
it
was
not
necessary
for
determination
of
the
issue
in
that
case.
Likewise,
I
do
not
find
it
persuasive
on
the
facts
here
present
because
we
do
not
have,
in
this
case,
express
statutory
authorization
for
delegation
by
the
Deputy
Minister.
Mahoney,
J:—I
have
had
the
advantage
of
reading
in
draft
the
Reasons
for
Judgment
of
my
brother
Ryan
herein.
I
agree
in
the
result
he
proposes
and,
with
one
exception,
am
in
complete
agreement
with
his
reasons.
I
would
prefer
to
express
no
settled
opinion
on
whether
the
ascription
to
a
deputy
minister
of
an
implicit
right
to
delegate
on
the
same
basis
as
a
minister
was
obiter
dicta
or
an
alternative
ground
for
the
decision
of
this
Court
in
Ahmad
v
Public
Service
Commission,
[1974]
2
FC
644,
as
I
think
it
unnecessary
to
do
so
in
the
present
case.
In
Ahmad,
that
ascription
was
stated
to
be
based
on
the
principles
applied
in
such
cases
as
Carltona,
Ltd
v
Commissioners
of
Works,
[1943]
2
All
ER
560.
As
I
understand
those
principles,
they,
in
turn,
are
based
on
two
considerations
which,
stated
briefly,
are:
a
minister’s
constitutional
responsibility
for
what
is
done
by
anyone
for
whom
he
is
answerable
to
Parliament
and,
secondly,
the
practical
impossibility
of
a
minister
personally
executing
all
his
authority.
Whatever
may
be
said
of
the
second
consideration,
I
am
by
no
means
satisfied
that
the
first
applies,
either
obviously
or
by
proper
inference,
to
a
deputy
minister.
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