Cattanach,
J:—This
matter
arose
as
a
consequence
of
a
motion
by
the
defendant
for
an
order
granting
the
defendant
leave
to
enter
a
conditional
appearance
to
an
appeal
de
novo
from
a
decision
of
the
Tax
Review
Board
dated
July
31,
1972
(reported
[1972]
CTC
2549)
initiated
by
the
filing
of
a
statement
of
claim.
After
an
exchange
of
correspondence
between
counsel,
particularly
a
letter
dated
December
29,
1972
from
Mr
Mockler,
counsel
for
the
defendant,
to
Mr
Ainslie,
counsel
for
the
plaintiff,
as
to
the
objections
to
the
statement
of
claim
to
be
raised
by
Mr
Mockler
dated
January
8,
1973
wherein
the
material
to
be
placed
before
the
Court
was
outlined,
it
was
agreed
that
counsel
for
the
plaintiff
would
consent
to
a
conditional
appearance
and
that
the
motion
would
be
considered
as
an
application
to
strike
out
the
statement
of
claim
in
its
entirety
to
be
argued
on
its
merits
but
limited
to
the
objections
to
the
statement
of
claim
as
outlined
in
items
1
to
5
in
Mr
Mockler’s
letter
dated
December
29,
1972.
Those
grounds
of
objection
to
the
statement
of
claim
are
as
follows:
(1)
The
statement
of
claim
contravenes
Rule
408
in
that
it
does
not
state
the
material
facts
to
support
the
action.
(2)
The
statement
of
claim
as
originally
filed
purported
to
commence
an
action
from
a
judgment
dated
July
31,
1971
and
mailed
August
1,
1971
was,
on
its
face,
in
contravention
of
section
172
of
the
Income
Tax
Act.
i
would
mention
here
parenthetically
that
the
insertion
of
the
dates
of
July
31,
1971
and
August
1,
1971
in
paragraph
1
of
the
statement
of
claim
was
by
clerical
error
and
that
the
plaintiff
amended
its
pleadings
pursuant
to
Rule
421
whereby
any
party
may
amend
his
pleadings
without
leave
at
any
time
before
any
other
party
has
pleaded
thereto
and
that
this
amendment
was
prior
to
any
pleading
by
the
defendant,
so
that
the
references
to
the
figures
1971
in
the
second
and
third
lines
of
paragraph
1
of
the
statement
of
claim
were
deleted
and
replaced
by
the
figures
1972.
This
amendment
was
done
by
written
alterations
in
accordance
with
Rule
429
since
the
amendment
did
not
require
the
insertion
of
more
than
10
words
on
the
page.
Two
certified
copies
of
the
amended
statement
of
claim
were
transmitted
to
the
defendant
on
December
5,
1972.
(3)
The
statement
of
claim
purports
to
be
signed
by
F
J
Dubrule
on
behalf
of
D
S
Maxwell,
Deputy
Attorney
General
of
Canada,
whereas
the
name
F
J
Dubrule
was
written
by
Mr
Storrow.
The
contention
of
counsel
for
the
defendant
was
to
be
that
Mr
Storrow
should
have
signed
his
own
name
on
behalf
of
D
S
Maxwell
and
that
Mr
Dubrule,
being
the
agent
of
Mr
Maxwell,
would
not
have
authority
to
subdelegate.
(4)
The
original
statement
of
claim
when
filed
was
not
dated.
The
date
of
November
27,
1972
was
inserted
by
a
deputy
clerk
of
process.
On
the
first
page
a
typewritten
endorsement
reading
.
“Filed
this
(blank)
day
of
(blank)
1972”
was
also
completed
by
the
deputy
clerk
of
process
who
inserted
“27th”
in
the
first
blank
and
the
word
“November”
in
the
second
blank.
It
was
to
be
the
contention
of
the
defendant
that
the
deputy
clerk
of
process
had
no
authority
to
do
this.
At
this
point
I
would
again
add
parenthetically
that
the
deputy
clerk
of
process
inserted
the
dates
in
two
places
indicated
on
his
own
initiative
and
not
on
the
instructions
of
the
person
who
presented
the
statement
of
claim
to
him
for
filing
over
the
counter
in
the
Registry.
The
matter
was
argued
upon
this
basis
so
that
no
question
of
agency
arises
in
these
instances.
(5)
The
last
item
was
that
counsel
for
the
defendant
would
contend
that
the
action
was
begun
out
of
time
in
any
event
since
the
statement
of
claim
was
not
served
on
the
defendant
until
November
29,
1972.
In
a
letter
dated
December
19,
1972
from
Mr
Ainslie
to
Mr
Mockler
which
constituted
part
of
the
material
by
agreement
between
the
parties
it
was
stated:
.
.
.
I
understand
that
Mr
Power
has
confirmed
to
you
that
Mr
Dubrule’s
signature
was
in
fact
endorsed
upon
the
Statement
of
Claim
by
Mr
Storrow,
one
of
the
solicitors
who
works
in
the
Tax
Litigation
Section.
I
wish
to
further
confirm
that
Mr
Storrow,
as
one
of
the
solicitors
who
forms
part
of
the
Tax
Litigation
Section,
had
the
authority
to
sign
the
Statement
of
Claim.
.
.
.
During
his
argument
counsel
for
the
plaintiff
contended
that
Mr
Storrow
had
the
authority
from
Mr
Dubrule
to
endorse
his
name
on
the
statement
of
claim.
The
above
quoted
extract
from
Mr
Ainslie’s
letter
is
ambiguous.
Therefore
at
the
request
of
counsel
for
the
defendant
I
adjourned
the
matter
in
order
that
the
plaintiff
might
file
an
affidavit
or
affidavtis
on
the
question
of
the
authority
given
by
Mr
Dubrule
to
Mr
Storrow.
I
gave
leave
to
counsel
for
the
defendant
to
submit
written
argument
on
this
issue
after
the
affidavits
had
been
produced
to
him.
I
also
afforded
him
the
opportunity
to
decide
whether
he
wished
to
cross-examine
upon
any
affidavit
produced.
He
has
now
concluded
that
he
does
not
need
to
cross-examine
and
has
submitted
written
argument.
During
the
oral
argument
on
the
merits
of
the
motion
counsel
for
the
defendant
raised
an
objection
which
was
not
one
of
the
five
objections
agreed
upon
between
counsel.
It
was
to
the
effect
that
the
typewritten
words
and
letters
“D.
M.
Maxwell,
Deputy
Attorney
General”
was
not
the
affixing
of
the
signature
of
D
S
Maxwell.
As
I
understood
his
submission
it
was
that
the
word
and
letters
“D.
S.
Maxwell”
should
have
been
written
manually
by
Mr
Dubrule
or
by
an
impression
of
a
rubber
stamp
facsimile
of
Mr
Maxwell’s
signature
and
that
in
the
event
of
either
procedure
being
adopted
that
Mr
Dubrule
should
also
sign
his
own
name
in
a
manner
indicative
that
he
had
the
authority
to
manually
write
Mr
Maxwell’s
name
or
affix
the
stamp
facsimile
of
Mr
Maxwell’s
signature.
I
did
not
preclude
counsel
for
the
defendant
advancing
that
argument
despite
the
fact
that
this
ground
of
objection
was
not
included
as
a
ground
in
the
agreement
between
counsel,
but
I
have
afforded
counsel
for
the
plaintiff
the
opportunity
to
reply
thereto
in
writing.
Adverting
to
the
first
objection
to
the
statement
of
claim,
which
is
that
it
does
not
state
the
material
facts
necessary
to
sustain
a
cause
of
action,
Rule
408(1)
requires
that
“every
pleading
must
contain
a
precise
statement
of
the
material
facts
on
which
the
party
pleading
relies”.
The
statement
of
claim,
which
is
commendable
in
its
brevity,
consists
of
four
paragraphs
under
the
heading
“Statement
of
Facts”.
The
first
paragraph
recites
the
fact
that
the
Tax
Review
Board
allowed
the
defendant’s
appeal
from
the
Minister’s
assessment
to
income
tax.
An
appeal
from
a
decision
of
the
Tax
Review
Board
is
by
way
of
a
hearing
de
novo
which
accounts
for
proceeding
by
way
of
statement
of
claim.
The
second
paragraph
alleges
the
purchase
of
a
parcel
of
property
by
the
defendant
in
1965
at
the
cost
specified,
the
sale
of
a
portion
of
that
parcel
in
1970
at
a
specified
sale
price
and
that
a
gain
in
the
amount
of
$168,018
was
realized
by
the
defendant.
Paragraph
3
recites
that
the
Minister
included
the
gain
in
computing
the
defendant’s
income
on
the
assumption
that
the
gain
was
income
from
a
business
or
venture
in
the
nature
of
trade.
These
allegations,
in
my
view,
comply
in
spirit
with
Rule
408.
It
clearly
raises
the
issue
of
what
has
been
commonly
referred
to
as
a
“trading”
case.
It
discloses
with
equal
clarity
the
case
which
the
Minister
will
put
forward
and
with
abundant
clarity
discloses
the
case
which
the
defendant
will
be
required
to
meet.
However
counsel
for
the
defendant
submits
that
the
statement
of
claim
is
deficient
in
that
it
does
not
allege,
(1)
that
the
defendant
is
a
body
corporate
and
politic
incorporated
pursuant
to
the
laws
of
a
specified
jurisdiction;
(2)
the
place
where
the
land
sold
is
situate;
and
(3)
that
the
defendant
is
a
taxpayer
or
subject
to
the
income
tax
which
could
have
been
accomplished
by
an
allegation
that
the
defendant
was
resident
in
Canada
or
carried
on
business
in
Canada.
It
is
a
cardinal
rule
that
one
party
has
no
right
to
dictate
to
the
other
how
he
shall
plead,
subject
only
to
the
modification
and
limitation
that
the
parties
must
not
offend
against
the
rules
of
pleading
laid
down
by
law.
As
I
have
indicated
above
the
general
rule
of
pleading
is
that
those
facts
which
will
put
the
defendant
on
guard
as
to
the
case
he
has
to
meet
at
trial
shall
be
stated
and
material
facts
are
those
as
are
neces-
cary
to
formulate
a
cause
of
action.
This
I
think
has
been
done
by
the
present
statement
of
claim.
I
fail
to
follow
how
the
failure
to
allege
that
the
defendant
is
an
incorporated
joint
stock
company
can
in
any
way
prejudice
the
defendant.
This
fact
is
well
known
to
the
defendant
and
an
averment
of
this
kind
is
not
essential
to
be
proven
by
the
Minister
as
a
condition
to
his
success
at
trial.
In
any
event
in
the
style
of
cause
the
corporate
name
of
the
defendant
appears
the
concluding
word
of
which
is
“Limited”.
In
all
common
law
jurisdictions
in
Canada
there
are
statutory
provisions
that
the
concluding
word
of
a
joint
stock
company
shall
be
“Limited”
or
the
abbreviation
thereof.
I
also
fail
to
follow
that
the
omission
of
an
allegation
by
what
jurisdiction
the
defendant
is
incorporated
would
prejudice
the
defendant
in
its
defence
or
is
a
fact
which
the
Minister
must
prove
as
essential
to
his
success.
No
doubt
counsel
for
the
defendant
by
submitting
that
the
omission
of
an
allegation
as
to
the
description
of
the
land
which
was
sold
and
its
situs
as
well
as
an
allegation
that
the
defendant
is
a
taxpayer
has
in
mind
that
these
are
averments
essential
to
bring
the
defendant
within
the
purview
of
the
Income
Tax
Act
and
as
such
the
lack
of
a
“material”
statement
makes
the
statement
of
claim
bad.
The
question
whether
a
particular
fact
is
material
depends
upon
the
special
circumstances
of
the
particular
case.
In
this
instance
paragraph
1
of
the
statement
of
facts
alleges
that
the
Tax
Review
Board
by
its
judgment
allowed
the
defendant’s
appeal
from
the
assessment
by
the
Minister
for
the
defendant’s
1970
taxation
year.
The
formal
judgment
is
dated
July
31,
1972
and
ordered
that
the
appeal
be
allowed
and
the
matter
be
referred
back
to
the
Minister
for
reassessment
accordingly.
Comprehensive
reasons
for
judgment
were
also
given.
It
is,
therefore,
obvious
that
the
appeal
was
heard
and
determined
on
the
question
of
whether
the
gain
realized
by
the
defendant
was
the
enhanced
value
of
a
capital
or
arose
from
a
business
or
venture
in
the
nature
of
trade.
It
follows
from
this
that
the
defendant
was
subject
to
the
Income
Tax
Act.
This
would
remain
so
and
is
implicit
from
the
allegations
of
fact
in
paragraph
1
bearing
in
mind
that
this
is
an
appeal
by
way
of
a
hearing
de
novo.
Accordingly
the
defendant
has
not
been
placed
at
a
disadvantage.
Further
it
seems
to
me
that
if
the
land
is
not
situate
in
Canada
or
that
the
defendant
is
not
resident
in
Canada,
then
the
transaction
in
questinn
may
not
be
the
subject
matter
of
taxation
in
Canada.
If
this
is
so
then
it
seems
to
me
that
such
matters
are
properly
the
subject
matter
of
defence.
It
is
not
the
function
of
a
statement
of
claim
to
anticipate
the
defence
and
state
what
would
be
alleged
in
response
thereto
if
said.
It
is
my
opinion
that
the
statement
of
claim
in
its
present
form
discloses
a
cause
of
action.
Assuming,
however,
that
the
defendant
is
prejudiced
in
some
way
then
the
remedy
would
be
to
ask
for
particulars.
I
do
not
think
that
the
statement
of
claim
should
be
struck
out
but
the
Minister
should
be
given
leave
to
amend.
I
base
the
opinion
I
have
last
expressed
above
on
Rule
302
that
no
proceeding
shall
be
defeated
by
any
merely
formal
objection
and
that
non-compliance
with
a
rule
of
practice
shall
not
render
any
proceeding
void
but
that
such
proceedings
may
be
amended.
However
the
present
motion
is
to
strike
out
the
statement
of
claim
in
its
entirety
as
being
bad.
I
am
not
being
asked
to
cure
any
deficiency
by
ordering
particulars
or
an
amendment.
Head
B
of
the
statement
of
claim
is
entitled
“Statutory
Provision
upon
which
the
plaintiff
relies
and
the
reasons
which
he
intends
to
submit”.
Paragraph
4
states
that
the
Minister
intends
to
rely
on
sections
3,
4
and
paragraph
139(1)(e)
of
the
Income
Tax
Act.
Section
3
provides
that
the
income
of
a
taxpayer
is
his
income
from
all
sources
inside
or
outside
Canada
and
includes
income
from
businesses.
By
section
4
income
from
a
business
is
the
profit
therefrom.
Paragraph
139(1)(e)
defines
“business”
as
including
an
adventure
or
concern
in
the
nature
of
trade.
These
are
the
statutory
provisions
relied
upon
and
which
are
invariably
cited
in
trading
cases
to
bring
a
single
transaction
within
the
definition
of
business.
Counsel
for
the
defendant
contends
that
the
statement
of
claim
is
bad
because
paragraph
4
does
not
contain
the
reasons
which
the
Min-
ister
intends
to
submit
as
stated
in
the
title
to
the
heading.
There
is
such
omission.
However
paragraph
3
of
the
statement
of
facts
recites:
The
Minister
of
National
Revenue
in
assessing
the
Defendant
for
its
1970
taxation
year
and
including
in
its
income
the
gain
of
$168,018.00
did
so
on
the
assumption
that
the
gain
arising
therefrom
was
income
from
a
business
or
venture
in
the
nature
of
a
trade.
This
is
clearly
the
reason
for
which
the
Minister
assessed
the
defendant
as
he
did
and
to
repeat
that
reason
in
paragraph
4
would,
in
my
view,
be
needless
repetition.
The
defendant
has
been
apprised
of
the
case
to
be
put
forward
by
the
Minister
which
it
will
be
compelled
to
meet.
For
the
reasons
above
expressed
I
decline
to
strike
out
the
statement
of
claim
on
the
first
ground
advanced.
The
second
ground
advanced
for
striking
out
the
statement
of
claim
is
that
as
originally
filed
it
purported
to
commence
an
appeal
de
novo
from
a
judgment
dated
July
31,
1971
and
mailed
on
August
1,
1971.
Under
section
172
of
the
Income
Tax
Act
which
came
into
force
on
January
1,
1972,
the
Minister
or
taxpayer
may
appeal
to
the
Federal
Court
of
Canada
from
a
judgment
of
the
Tax
Review
Board
within
120
days
from
the
day
on
which
the
registrar
of
that
Board
mails
the
decision
to
the
Minister
or
the
taxpayer.
Accordingly
on
the
face
of
the
document
the
appeal
was
filed
beyond
the
time.
However
as
I
mentioned
above,
the
insertion
of
the
dates
of
July
31,
1971
and
August
1,
1971
was
done
in
error.
These
errors
were
corrected
under
Rule
421
before
any
pleading
by
the
defendant,
to
read
July
31,
1972
and
August
1,
1972
and
the
defendant
was
advised
of
the
amendments
on
December
5,
1972.
An
amendment
duly
made,
with
or
without
leave,
takes
effect,
not
from
the
date
when
the
amendment
is
made,
but
from
the
date
of
the
original
document
which
it
amends.
(See
Hodson,
LJ
in
Warner
v
Simpson,
[1959]
1
QB
at
p
321.)
Since
the
amendment
is
retroactive
the
statement
of
claim
cannot
be
stricken
out
on
the
second
ground.
I
propose,
at
this
point,
to
depart
from
the
numerical
sequence
of
the
grounds
of
objection
to
the
statement
of
claim
and
consider
the
fourth
and
fifth
objections
leaving
the
third
objection,
which
has
caused
me
the
greatest
concern,
until
the
last.
The
fourth
objection
is
two-fold.
The
first
is
that
a
deputy
clerk
of
process
inserted
“27th”
and
the
word
“November”
in
a
legend
at
top
of
the
statement
of
claim
reading,
“Filed
this
day
of
1972”,
without
authority
to
do
so.
Rule
400
provides
that,
unless
otherwise
provided,
every
action
shall
be
commenced
by
filing
an
originating
document,
which
may
be
called
a
statement
of
claim
or
a
declaration
in
the
form
of
Form
11
in
an
appendix
to
the
Rules.
In
Rule
2,
which
is
a
definition
and
interpretation
rule,
paragraph
3
states
that
the
reference
to
a
“form”
in
the
Rules
shall
be
construed
as
a
reference
to
that
form
in
the
appendix
and
as
a
direction
that
the
document
referred
to
shall
follow
the
form
as
nearly
as
may
be.
Form
11
bears
the
endorsation
“Filed
on
the
.
day
of
19
_”.
By
Rule
201
there
shall
be
maintained
with
,
19
with
a
space
indicated
below
for
the
signature
by
the
attorney
or
solicitor
for
the
plaintiff.
The
statement
of
claim
herein
was
received
and
filed
by
the
Registry
office
with
the
place
completed
in
typing
but
with
the
dates
in
blank.
A
deputy
clerk
of
process,
on
his
own
initiative,
inserted
these
dates.
Obviously
the
completion
of
this
part
of
the
statement
of
claim
is
the
responsibility
of
the
solicitor
for
the
plaintiff
and
is
not
that
of
any
officer
or
clerk
employed
in
the
Registry.
I
do
not
condone
the
enterprise
of
the
deputy
clerk
of
process
who
must
have
noticed
that
the
statement
of
claim
was
not
dated
and
undertook
to
cure
that
omission
by
completing
the
blanks
by
inserting
a
date
coincident
with
the
date
of
filing,
but
I
do
not
think
that
this
unwarranted
assumption
of
authority
affects
the
validity
of
the
statement
of
claim.
In
Halsbury,
3rd
ed,
Vol
11,
paragraph
604
it
is
stated:
An
alteration
made
in
a
deed,
after
its
execution,
in
some
particular
which
is
not
material
does
not
in
any
way
effect
the
validity
of
the
deed;
and
this
is
equally
the
case
whether
the
alteration
was
made
by
a
stranger
or
a
party
to
the
deed.
.
.
.
The
rule
was
laid
down
in
Pigot’s
Case
(1614),
11
Co
Rep
26b
at
273:
If
the
obligee
himself
alters
the
deed
by
any
of
the
said
ways,
although
it
is
in
words
not
material,
yet
the
deed
is
void;
but
if
a
stranger,
without
his
privity,
alters
the
deed
by
any
of
the
said
ways
in
any
point
not
material,
it
shall
not
avoid
the
deed,
.
.
.
Pigot’s
Case
was
considered
in
Aldous
v
Cornwell,
LR
3
QB
573
at
579.
Lush,
J
speaking
for
the
Court
after
reviewing
the
authorities
said:
This
being
the
state
of
the
authorities,
we
think
we
are
not
bound
by
the
doctrine
in
Pigot’s
Case,
or
the
authority
cited
for
it;
and
not
being
bound,
we
are
certainly
not
disposed
to
lay
it
down
as
a
rule
of
law
that
the
addition
of
words
which
cannot
possibly
prejudice
any
one,
destroys
the
validity
of
the
note.
The
rule
in
Pigot’s
Case
that
any
alteration
made
by
the
obligee
after
execution
invalidates
the
deed,
must,
since
the
decision
of
Aldous
v
Cornwell,
be
taken
to
apply
only
to
material
alterations.
Pigot’s
Case
was
overruled
on
the
point
that
if
the
obligee
altered
a
deed
it
was
void
even
though
the
alteration
was
immaterial
by
Bishop
of
Crediton
v
Bishop
of
Exeter,
[1905]
2
Ch
455,
where
Swinfen
Eady,
J
said
at
page
459:
.
.
.
In
other
words,
Pigot’s
Case
is
not
now
any
authority
that
where
the
alteration
is
not
material
the
deed
is
made
void.
The
rule
in
Pigot’s
Case
that
if
a
stranger,
without
the
privity
of
an
obligee,
alters
the
deed
in
any
point
not
material,
it
shall
not
avoid
the
deed
stands
unaffected.
These
cases
are
cited
by
the
editor
of
Halsbury
in
the
footnotes
as
authority
for
the
proposition
succinctly
stated
in
the
paragraph
quoted
above.
While
these
cases
deal
with
deeds
which
are
contracts,
nevertheless
the
principles
enunciated
therein,
in
my
view,
apply
with
equal
force
to
the
statement
of
claim
herein
bearing
in
mind
the
spirit
which
inspired
Rule
302
that
merely
formal
objection
or
failure
to
comply
with
the
rules
shall
not
defeat
or
render
the
proceedings
void.
The
alteration
of
the
statement
of
claim
by
the
deputy
clerk
of
process
was
not
a
material
alteration.
The
requirement
that
the
statement
of
claim
be
dated
is
a
formality.
In
the
present
instance
the
statement
of
claim
could
have
been
dated
on
any
one
of
120
days
immediately
following
August
1,
1972,
the
day
on
which
the
Registrar
of
the
Tax
Review
Board
mailed
the
decision
of
that
Board
to
the
defendant.
It
would
seem
to
me
that
the
statement
of
claim,
which
becomes
effective
only
on
filing
with
the
Registry,
would
be
equally
effective
even
though
undated.
The
material
date
is
when
the
action
was
commenced
by
filing
the
statement
of
claim
in
the
Registry.
For
the
foregoing
reasons
I
decline
to
strike
out
the
statement
of
claim
herein
on
the
fourth
ground
advanced
by
the
defendant.
The
fifth
ground
of
objection
is
that
the
action
is
out
of
time
in
that
the
statement
of
claim
was
not
served
on
the
defendant
until
November
29,
1972.
Subsection
172(1)
of
the
Income
Tax
Act
reads
as
follows:
172.
(1)
The
Minister
or
the
taxpayer
may,
within
120
days
from
the
day
on
which
the
Registrar
of
the
Tax
Review
Board
mails
the
decision
on
an
appeal
under
section
169
to
the
Minister
and
the
taxpayer,
appeal
to
the
Federal
Court
of
Canada.
The
Registrar
of
the
Tax
Review
Board
mailed
the
decision
of
the
Board
on
August
1,
1972.
Therefore
the
time
within
which
the
Minister
may
appeal
to
the
Federal
Court
as
provided
in
subsection
172(1)
would
expire
on
November
28,
1972.
Subsection
175(1)
of
the
Income
Tax
Act
provides:
175.
(1)
An
appeal
to
the
Federal
Court
under
this
Act,
other
than
an
appeal
to
which
section
180
applies,
shall
be
instituted,
(a)
in
the
case
of
an
appeal
by
a
taxpayer,
(i)
in
the
manner
set
forth
in
section
48
of
the
Federal
Court
Act,
or
(ii)
by
the
filing
by
the
Minister
in
the
Registry
of
the
Federal
Court
of
a
copy
of
a
notice
of
objection
pursuant
to
paragraph
165(3)(b);
and
(b)
in
the
case
of
an
appeal
by
the
Minister,
in
the
manner
provided
by
the
Federal
Court
Rules
for
the
commencement
of
an
action.
Subsection
48(1)
of
the
Federal
Court
Act
is
as
follows:
48.
(1)
A
proceeding
against
the
Crown
may
be
instituted
by
filing
in
the
Registry
of
the
Court
a
document
in
the
form
set
out
in
Schedule
A
to
this
Act.
The
remaining
subsections
provide
for
the
material
to
be
filed,
the
service
thereof
on
Her
Majesty
and
a
certificate
of
service.
Rule
600
of
the
Federal
Court,
covering
actions
by
the
Crown,
provides
in
part
as
follows:
Rule
600.
(1)
Except
in
a
case
where
some
other
procedure
is
required
by
statute,
Rule
400
applies
to
an
action
by
the
Crown,
.
.
.
Rule
400,
which
is
applicable
in
the
present
instance,
reads
as
follows:
Rule
400.
Unless
otherwise
provided,
every
action
shall
be
commenced
by
filing
an
originating
document,
which
may
be
called
a
statement
of
claim
or
a
declaration
.
.
.
If
it
were
incumbent
upon
me
to
decide,
the
language
of
section
48
of
the
Federal
Court
Act
and
Rule
400
would
lead
me
to
the
conclusion
that
the
action
is
commenced
by
the
filing
of
the
originating
document
in
the
Registry,
in
this
instance
on
November
27,
1972.
The
position
taken
by
counsel
for
the
defendant
is
that
the
action
is
not
commmenced
until
the
originating
document
has
been
filed
in
the
Registry
and
served
on
the
defendant
and
that
service
on
the
defendant
is
on
the
day
of
receipt
by
the
defendant,
which
in
this
instance
was
on
November
29,
1972,
the
day
after
the
expiration
of
the
time
for
appeal.
The
certificate
of
the
clerk
of
process
is
that
the
original
and
two
copies
of
the
statement
of
claim
were
received
and
filed
in
the
Registry
on
November
27,
1972
and
that
the
copies
were
transmitted
by
registered
mail
to
the
defendant
at
the
latest
known
address,
829
Aberdeen
Street,
Fredericton,
NB
all
in
accordance
with
subsection
(4)
and
subsection
(5)
of
section
175
of
the
Income
Tax
Act
which
read
as
follows:
175.
(4)
Where
an
appeal
is
instituted
by
the
Minister
under
this
section
or
a
copy
of
a
notice
of
objection
is
filed
in
the
Registry
of
the
Federal
Court
by
him
pursuant
to
paragraph
165(3)(b)
and
the
Minister
files
the
originating
document
or
the
copy
of
the
notice
of
objection,
together
with
two
copies
cr
additional
copies
thereof
and
a
certificate
as
to
the
latest
known
address
of
the
taxpayer,
an
officer
of
the
Registry
of
the
Court
shall,
after
verifying
the
accuracy
of
the
copies,
forthwith
on
behalf
of
the
Minister
serve
the
originating
document
or
the
copy
of
the
notice
of
objection
on
the
taxpayer
by
sending
the
copies
or
additional
copies
thereof
by
registered
mail
addressed
to
him
at
the
address
set
forth
in
the
certificate.
(5)
Where
copies
have
been
served
on
a
taxpayer
under
subsection
(4),
8
certificate
signed
by
an
officer
of
the
Registry
of
the
Federal
Court
as
to
the
date
of
filing
and
the
date
of
mailing
of
the
copies
shall
be
transmitted
to
the
office
of
the
Deputy
Attorney
General
of
Canada
and
such
certificate
is
evidence
of
the
date
of
filing
and
the
date
of
service
of
the
document
referred
to
therein.
During
argument
I
expressed
the
view
that
the
date
of
service
on
the
defendant
was
the
date
of
mailing
copies
of
the
originating
document
to
the
taxpayer.
In
my
view
the
quoted
subsection
(5)
of
section
175
is
susceptible
of
no
other
interpretation
than
that
the
date
of
service
on
the
defendant
is
the
date
of
the
mailing
of
the
copies
by
the
Registry.
I
am
confirmed
in
this
view
by
the
decision
of
Hyndman,
DJ
in
MNR
v
W
S
Walker,
[1951]
CTC
334;
52
DTC
1001.
In
that
case
Hyndman,
DJ
was
obliged
to
interpret
subsection
89(2)
of
the
Income
Tax
Act
then
in
force.
He
said
at
page
336
[1002]:
However,
one
must
examine
carefully
the
language
of
Section
89(2)
above
set
out.
The
wording
is,
“may
be
served
upon
the
taxpayer
either
personally
or
by
being
‘sent’
to
him
at
his
last
known
address
by
registered
mail.”
My
interpretation
of
this
wording
is
that
it
is
not
the
receipt
of
the
notice
by
the
taxpayer
which
is
important,
but
its
“being
sent”;
and
the
date
on
which
it
was
“sent”,
should
be
regarded
as
the
date
of
service.
On
mature
reflection
I
adhere
to
my
previously
expressed
opinion
that
the
service
was
in
time
and
accordingly
this
objection
fails.
I
now
turn
to
the
last
objection
to
the
validity
of
the
statement
of
claim
which
is
the
third
ground
set
forth
in
the
letter
of
December
29,
1972
from
counsel
for
the
defendant
to
counsel
for
the
plaintiff
which
I
quote:
3.
The
Statement
of
Claim
purports
to
be
signed
by
Mr
Dubrule
on
behalf
of
D
S
Maxwell
and
we
both
know
the
document
was,
in
fact,
signed
by
a
Mr
Storrow
while
Mr
Dubrule
was
in
Toronto.
It
will
be
our
position
that
Mr
Storrow
should
have
signed
his
own
name
on
behalf
of
Mr
Maxwell
and
that
Mr
Dubrule,
being
an
agent
of
Mr
Maxwell,
would
not
have
authority
to
sub-delegate.
In
oral
argument
it
was
pointed
out
by
counsel
for
the
defendant
that
Rule
600
specifically
requires
that
.
.
.
A
statement
of
claim
or
declaration
in
an
action
by
the
Crown
may
be
signed
by
the
Attorney
General
of
Canada,
the
Deputy
Attorney
General
of
Canada,
or
by
some
person
duly
authorized
to
affix
the
signature
of
one
of
them
thereto.
The
word
“may”
as
used
in
the
context
is
permissive
in
the
sense
that
a
statement.
of
claim
or
declaration
may
be
signed
by
one
of
two
persons
or
a
person
authorized
to
affix
the
signature
of
either
such
person
but
it
is
to
be
construed
as
obligatory
in
that
the
document
must
be
so
signed
by
one
of
such
persons.
lt
is
common
ground
that
D
S
Maxwell
was
at
the
material
time
the
Deputy
Attorney
General
of
Canada
and
that
F
J
Dubrule
was
a
person
duly
authorized
to
affix
the
signature
of
D
S
Maxwell
to
a
statement
of
claim.
The
signature
of
the
statement
of
claim
herein
was
in
the
following
manner:
D.
S.
Maxwell
Deputy
Attorney
General
of
Canada
per
“F.
J.
Dubrule”
F.
J.
Dubrule
All
words
and
letters
were
typewritten
except
“F.
J.
Dubrule”
above
the
line
which
was
written
manually.
It
is
also
common
ground
that
the
manually
written
initials
and
surname
“F.
J.
Dubrule”
were
not
so
written
by
Mr
Dubrule
but
by
Mr
Storrow,
a
solicitor
in
the
Tax
Litigation
Section
of
the
Department
of
Justice
of
which
section
Mr
Dubrule
is
the
director.
Basically
it
was
the
contention
of
counsel
for
the
defendant
that
Mr
Dubrule
being
authorized
to
affix
the
signature
of
the
Deputy
Attorney
General,
he
could
not
delegate
that
authority
to
Mr
Storrow.
Counsel
for
the
Crown
in
reply
contended
upon
the
basis
of
authorities
cited
that
the
signature
“F.
J.
Dubrule”
subscribed
by
Mr
Storrow
was
in
fact
the
signature
of
Mr
Dubrule.
During
argument
counsel
for
the
defendant
disputed
that
Mr
Storrow
had
been
authorized
by
Mr
Dubrule
to
sign
his
name.
Because
the
agreement
between
counsel
was
not
susceptible
of
indicating
the
agreement
in
this
respect
in
clear
and
unequivocal
terms
I
concurred
in
counsel
for
the
defendant’s
insistence
that
evidence
of
this
authority
be
produced
by
affidavit
and
gave
leave
to
the
Crown
to
do
so.
Also
during
argument
counsel
for
the
defendant
raised
the
further
point,
not
previously
put
forward
as
a
ground
of
objection,
that
the
typewritten
initials
and
surname
“D.
S.
Maxwell”
could
not
be
adopted
as
the
signature
of
Mr
Maxwell
but
that
his
name
should
have
been
written
manually
or
affixed
by
a
rubber
stamp
of
Mr
Maxwell’s
signature.
Again
he
required
to
be
informed
of
how
the
typewritten
initials
and
surname
were
affixed
and
by
whom.
I
gave
leave
to
counsel
for
the
Crown
to
provide
a
further
affidavit
covering
this
subject
matter.
These
affidavits
have
now
been
produced.
The
affidavit
of
Linda
A
Terry,
who
works
as
a
secretary
in
the
Tax
Litigation
Section,
deposes
as
to
a
telephone
call
she
received
from
Mr
Dubrule
instructing
her
to
take
a
statement
of
claim
left
on
his
desk
and
have
it
signed
by
one
of
the
lawyers
in
the
Tax
Litigation
Section
and
filed
with
Registry
of
the
Federal
Court.
The
affiant
further
deposes
of
how
on
November
27,
1972
she
took
the
statement
of
claim
to
Mr
Storrow
to
sign.
When
the
statement
of
claim
had
been
signed
and
filed
in
the
Registry
she
then
telephoned
Mr
Dubrule
and
informed
him
of
what
had
been
done.
In
my
view
the
affidavit
of
Miss
Terry
establishes
that
Mr
Dubrule
authorized
and
instructed
her
to
have
a
lawyer
in
the
Tax
Litigation
Section
execute
the
statement
of
claim.
Any
one
of
the
several
lawyers
in
the
Section,
of
which
Mr
Storrow
was
one,
are
covered
by
those
instructions.
Miss
Terry
complied
with
the
instructions
received
by
her
from
Mr
Dubrule
by
having
Mr
Storrow
sign
the
statement
of
claim
and
so
reported.
The
instructions
of
Mr
Dubrule
received
by
Miss
Terry
as
related
by
her
are
so
broad
as
to
be
susceptible
of
two
interpretations,
(1)
that
Mr
Storrow
execute
the
statement
of
claim
by
signing
his
own
name
“M.
R.
V.
Storrow”
or
(2)
that
Mr
Storrow
sign
Mr
Dubrule’s
name.
If
Mr
Storrow
had
accepted
the
first
interpretation
he
could
have
subscribed
his
own
name
assuming
that
he
was
authorized
to
affix
the
signature
of
the
Deputy
Attorney
General.
However
he
chose
to
interpret
the
instructions
in
the
second
manner
and
signed
Mr
Dubrule’s
name,
which
course,
because
of
the
nature
of
the
instructions
conveyed
by
Miss
Terry
from
Mr
Dubrule,
he
was,
in
my
view,
entitled
to
do.
The
argument
of
counsel
for
the
Crown,
as
I
understood
it,
may
be
summarized
as
follows:
(1)
that
the
signature,
F
S
Dubrule,
manually
written
by
Mr
Storrow
was
in
fact
the
signature
of
Mr
Dubrule
because
where
a
person
authorizes
another
to
sign
for
him
the
signature
of
a
person
so
signing
is
the
signature
of
the
person
authorizing
it;
(2)
that
the
writing
of
the
name
“F.
S.
Dubrule”
by
a
person
authorized
to
do
so,
to
wit,
Mr
Storrow,
is
the
affixing
of
the
signature,
D
S
Maxwell,
by
a
person
authorized
to
affix
that
signature,
to
wit,
Mr
Dubrule.
In
The
Queen
v
The
Justices
of
Kent
(1873),
LR
8
QB
305,
one
Weld
appealed
against
the
rating
of
his
lands.
The
notice
of
appeal
was
required
to
be
“signed
by
the
person
giving
the
same
or
by
his
attorney”.
The
notice
was
not
signed
by
Weld
or
by
his
attorney
but
was
signed
in
Weld’s
name
by
the
clerk
to
his
attorney,
by
Weld’s
authority.
It
was
objected
that
the
notice
of
appeal
was
bad
because
the
signature
of
appellant
was
not
in
his
handwriting.
Blackburn,
J
said
at
page
30/7:
No
doubt
at
common
law,
where
a
person
authorizes
another
to
sign
for
him,
the
signature
of
the
person
so
signing
is
the
signature
of
the
person
authorizing
it;
nevertheless
there
may
be
cases
in
which
a
statute
may
require
personal
signature.
.
..
and
later
on
the
same
page:
Here
the
clerk,
having
full
authority
from
the
appellant,
signed
for
him,
and
this
is
a
sufficient
signing
at
common
law.
I
see
nothing
in
this
statute
that
makes
a
personal
signature
necessary,
and
the
rule
must
therefore
be
made
absolute.
Quain,
J
said
also
at
page
307:
I
am
of
the
same
opinion.
We
ought
not
to
restrict
the
common
law
rule,
qui
facit
per
alium
facit
per
se,
unless
the
statute
makes
a
personal
signature
indispensable.
.
.
.
Archibald,
J
spoke
to
like
effect
as
Quain,
J.
In
France
v
Dutton,
[1891]
2
QB
208,
the
County
Court
rules
required
that
particulars
of
claim
be
signed
“by
the
solicitor”.
The
particulars
were
signed
in
the
name
of
the
solicitor
by
his
clerk
In
pursuance
of
a
general
authority.
Lord
Coleridge,
CJ
held
that
the
signature
was
sufficient
quoting
with
approval
the
explanation
of
Blackburn,
J
in
The
Queen
v
Kent
Justices
(supra)
as
set
out
above.
In
The
Queen
v
Cowper
(1890),
25
QBD
533,
the
question
was
whether
the
signature
of
a
solicitor
was
sufficiently
signed
solely
by
the
appearance
of
a
lithographed
statement
of
the
solicitor’s
name.
This
was
held
by
the
majority
to
be
insufficient.
Lord
Esher,
MR,
who
dissented,
said
at
page
535:
.
.
.
I
know
of
no
case
with
the
exception
of
a
will
in
which,
if
a
man’s
name
is
put
down
by
him
with
the
intent
that
it
shall
be
treated
as
his
signature,
that
is
insufficient,
because
it
is
not
in
his
handwriting.
The
majority
held
that
the
rules
contemplated
that
it
must
be
shown
that
the
matter
had
come
under
the
personal
notice
of
the
solicitor
and
had
been
adopted
by
him
which
was
not
the
case
when
the
solicitor’s
name
was
merely
lithographed
but
the
remarks
by
Lord
Esher
quoted
above
were
not
challenged
but
have
been
cited
with
approval
in
many
subsequent
cases.
In
London
County
Council
v
Agricultural
Food
Products
Ltd,
[1955]
2
QB
218,
tenancy
agreements
made
by
the
London
County
Council,
as
landlords,
contained
a
clause
to
the
effect
that
if
the
landlords
desired
to
terminate
the
tenancy,
it
must
be
by
“a
written
notice
signed
by
the
valuer
to
the
council”.
The
landlords
served
notices
to
quit
on
the
tenants
on
which
the
name
of
the
valuer
to
the
Council
appeared
as
signatory,
but
his
name
was
written
by
an
assistant
valuer
with
nothing
on
the
document
to
show
the
signature
was
by
proxy.
These
facts
are
the
exact
parallel
of
the
signature
“F.
S.
Dubrule”
by
Mr
Storrow.
Lord
Denning
had
this
to
say
at
page
222:
On
the
wording
of
this
tenancy
agreement,
I
think
that
a
signature
by
proxy
was
permissible
on
this
notice
to
quit.
Take
the
case
where
the
tenants
desire
to
determine
the
tenancy.
The
notice
has
to
be
in
writing
“signed
by
the
tenants.”
But
the
tenant
is
a
limited
Company
which
cannot
write
its
own
name.
It
can
only
sign
by
proxy,
as,
for
instance,
by
a
director
or
secretary
signing
on
its
behalf.
Take
next
the
case
where
the
London
County
Council
desire
to
give
a
notice
to
quit.
The
notice
has
to
be
a
written
notice
“signed
by
the
valuer
to
the
council.”
The
valuer
is
not
designated
by
name,
but
by
his
office.
The
tenants
might
not
even
know
his
name.
Valuers
come
and
go
without
the
tenants
being
any
the
wiser.
The
personality
of
the
valuer
does
not
come
into
it.
In
these
circumstances
I
think
that
a
signature
by
proxy
is
permissible.
The
valuer
can
get
one
of
the
assistant
valuers
to
write
his
name
for
him;
but
the
assistant
should
add
the
letters
“p.p.”
to
show
that
it
is
done
by
proxy,
followed
by
his
initials.
Obviously
Lord
Denning
feels
that
when
someone
signs
someone
else’s
name
with
that
person’s
authority
the
better
practice
is
to
add
“per”,
“per
proc”
or
“pp”
to
indicate
that
it
was
done
by
proxy
followed
by
the
proxy’s
initials.
To
comply
with
Lord
Denning’s
preference
Mr
Storrow
should
have
written
“F.
S.
Dubrule,
per
M.
R.
V.
Storrow”
or
his
initials
“M.R.V.S.”.
However
this
was
not
done
in
the
London
County
Council
case
(supra)
nor
in
the
present
instance.
Lord
Denning
continued,
on
page
223,
to
say:
The
second
question
is
more
difficult.
The
assistant
valuer
did
not
add
the
letters
“p.p.”
as
he
ought
to
have
done.
This
is
a
bad
practice
because
it
is
misleading.
Anyone
who
did
not
know
Toole’s
signature
would
think
that
he
had
himself
signed
the
document.
If
it
were
not
for
authority,
I
should
have
thought
that
this
was
a
fatal
flaw.
But
there
are
two
cases
which
show
the
contrary.
In
Reg
v
Kent
Justices
((1873),
LR
8
QB
305)
and
France
v
Kent
Justices
([1891]
2
QB
206)
a
clerk
wrote
the
name
of
the
principal,
being
duly
authorized
so
to
do,
but
did
not
add
anything
to
show
that
it
was
done
by
proxy.
Nevertheless.
the
signature
was
done
by
proxy.
Nevertheless
the
signature
was
held
good.
I
do
not
think
that
we
should
disturb
cases
of
such
long
standing;
especially
when
section
91(1)
of
the
Bills
of
Exchange
Act,
1882,
proceeds
on
the
same
footing.
That
section
says
that:
“Where,
by
this
Act,
any
instrument
or
writing
is
required
to
be
signed
by
any
person
it
is
not
necessary
that
he
should
sign
it
with
his
own
hand,
but
it
is
sufficient
if
his
signature
is
written
thereon
by
some
other
person
by
or
under
his
authority.”
That
Act
is
a
codification
Act,
and
is
therefore
a
statutory
recognition
of
the
rule
in
Reg
v
Kent
Justices
(LR
8
QB
305).
Applying
this
rule,
I
think
that
the
signature
of
this
notice
to
quit
should
be
held
good
so
long
as
it
was
authorized
by
Toole.
I
would
point
out
that
section
4
of
the
Bills
of
Exchange
Act,
RSC
1970,
chapter
B-5
is
in
the
identical
language
of
subsection
91(1)
of
the
Bills
of
Exchange
Act,
1882
quoted
by
Lord
Denning.
Lord
Romer
said
at
page
223:
It
is
established,
in
my
judgment,
as
a
general
proposition
that
at
common
law
a
person
sufficiently
“signs”
a
document
if
it
is
signed
in
his
name
and
with
his
authority
by
somebody
else;
and
in
such
case
the
agent’s
Signature
is
treated
as
being
that
of
his
principal.
That
this
is
so
was
recognized
by
Blackburn
J
in
Reg
v
Kent
Justices
(LR
8
QB
305)
by
Lord
Esher
in
Reg
v
Cowper
((1890),
24
QBD
533;
6
TLR)
and
by
the
Divisional
Court
in
France
v
Dutton
([1891]
2
QB
208).
The
definition
of
“signature”
in
Stroud’s
Judicial
Dictionary
is
also
in
conformity
with
the
principle.
Lord
Parker
began
his
judgment
by
quoting
Stroud’s
Judicial
Dictionary.
He
said
at
page
225:
The
definition
of
“Signed;
signature”
in
Stroud’s
Judicial
Dictionary,
3rd
ed,
vol
4,
p
2783,
is
as
follows:
“(1)
Speaking
generally,
a
signature
is
the
writing,
or
otherwise
affixing,
a
person’s
name,
or
a
mark
to
represent
his
name,
by
himself
or
by
his
authority
.
.
.
with
the
intention
of
authenticating
a
document
as
being
that
of,
or
as
binding
on,
the
person
whose
name
or
mark
is
so
written
or
affixed.
.
.
.”
As
stated
by
Romer
LJ
in
Goodman
v
J
Eban
Ltd,
([1954]
1
QB
550,
563)
that
statement
appears
to
be
in
accord
with
what
Blackburn
J
said
in
Reg
v
Kent
Justices,
(LR
8
QB
305,
307)
namely:
“No
doubt
at
common
law,
where
a
person
so
Signing
is
the
signature
of
the
person
authorizing
it;
nevertheless
there
may
be
cases
in
which
a
statute
may
require
personal
signature.”
This
statement,
moreover,
was
expressly
approved
by
Lord
Coleridge
CJ
in
France
v
Dutton
([1891]
2
QB
208,
210).
See
also
per
Lord
Esher
MR
in
Reg
v
Cowper
(24
QBD
533,
535).
There
is
much
to
be
said
for
the
view
expressed
by
Denning
LJ
in
Goodman
v
J
Eban
Ltd,
([1954]
1
QB
550,
561)
where
he
said,
“In
modern
English
usage,
when
a
document
is
required
to
be
signed
by
someone,
that
means
that
he
must
write
his
name
with
his
own
hand
upon
it.”
This
view,
however,
was
not
shared
by
the
majority
of
the
court,
who
held
that
a
rubber
stamp
bearing
a
solicitor’s
name,
put
on
with
his
authority,
was
a
good
signature
on
a
bill
of
costs.
It
is
true
that
the
question
in
that
case
was
not
by
whom,
but
how,
the
relevant
document
“must
be
‘signed,’
but
it
does
show
that
the
old
common
law
rule
still
survives.
In
view
of
the
foregoing
authorities
of
conclusive
weight
and
in
view
of
my
conclusion
that
Mr
Dubrule
authorized
Mr
Storrow
to
sign
his
name,
there
is
no
question
that
the
signature
“F.
S.
Dubrule”
written
by
Mr
Storrow
is
in
fact
the
signature
of
Mr
Dubrule.
The
next
question
which
follows
from
this
conclusion
is
whether
Rule
600
makes
it
mandatory
that
a
statement
of
claim
must
be
signed
personally
by
the
person
on
whom
that
duty
is
cast.
The
position
taken
on
behalf
of
the
defendant
was
while
the
Attorney
General
or
Deputy
Attorney
General
had
authorized
Mr
Dubrule
to
affix
the
signature
of
one
of
them
Mr
Dubrule,
in
turn,
could
not
delegate
that
authority
to
a
solicitor
in
the
Tax
Litigation
Section
of
which
he
is
director.
There
are
many
cases
which
show
that
when
a
discretion
to
act
for
a
principal
is
given
to
an
agent
the
maxim
delegatus
non
potest
delegare
applies
but
there
are
certain
well
recognized
exceptions
where
the
authority
to
delegate
is
necessarily
implied
generally
on
the
ground
that
personal
attention
is
not
required
and
the
duty
is
capable
of
being
equally
well
discharged
by
any
person.
In
Carltona,
Ltd
v
Commissioners
of
Works,
[1943]
2
All
ER
560,
Lord
Greene
said
at
page
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
individual
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
organisation
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
Metropolitan
Borough
and
Town
Clerk
of
Lewisham
v
Roberts,
[1949]
1
All
ER
815,
Bucknill,
LJ
said
at
page
821
:
After
quoting
from
the
judgment
of
Lord
Greene
MR
in
Carltona,
Ltd
v
Works
Comrs
([1943]
2
All
ER
563)
the
learned
county
court
judge
continued:
.
.
applying
these
considerations
to
the
present
case,
I
am
unable
to
say
that
the
evidence
shows
that
Mr
O’Gara
in
purporting
to
sanction
on
behalf
of
the
Minister
the
requisitioning
of
property,
and
in
particular
in
issuing
the
document
of
Nov
12,
1946,
was
acting
without
authority
to
do
so.
On
the
contrary,
the
presumption
being
that
ministerial
acts
will
be
performed,
not
by
the
Minister
in
person,
but
by
responsible
officials
in
his
department,
I
think
where
such
acts
of
an
official
nature,
all
of
them
involving
the
knowledge
and
some
of
them
requiring
and
receiving
the
concurrence
of
other
officials,
have,
as
here,
continued
over
a
long
period,
this
of
itself
affords
cogent
evidence
that
the
person
in
fact
acting
in
such
an
official
capacity
was
duly
authorized
to
act.”
Lord
Denning
said
at
page
824:
.
.
.
I
take
it
to
be
quite
plain
that
when
a
Minister
is
entrusted
with
administrative,
as
distinct
from
legislative,
functions
he
is
entitled
to
act
by
any
authorized
official
of
his
department.
The
matter
was
dealt
with
by
Jenkins,
J
at
page
828
in
the
following
language:
The
validity
of
the
delegation
which
Mr
O’Gara
purported
by
this
letter
to
effect
on
behalf
of
the
Minister
was
further
attacked
on
the
ground
that,
even
if
he
was,
in
fact,
authorized
by
the
Minister
to
effect
such
delegations
in
the
sense
that
the
duties
entrusted
to
him
in
terms
extended
to
the
making
of
such
delegations,
he
could
only
be
so
authorized
as
a
delegate
of
the
Minister’s
powers
with
the
result
that
as
a
matter
of
law
he
could
not
himself
validly
effect
any
further
delegations,
in
view
of
the
well-known
principle
of
delegatus
non
potest
delegare.
I
think
this
contention
is
based
on
a
misconception
of
the
relationship
between
a
Minister
and
the
officials
in
his
department.
A
Minister.
must
perforce,
from
the
necessity
of
the
case,
act
through
his
departmental
officials,
and
where,
as
in
the
Defence
Regulations
now
under
consideration,
functions
are
expressed
to
be
committed
to
a
Minister,
those
functions
must
as
a
matter
of
necessary
implication,
be
exercisable
by
the
Minister
either
personally
or
through
his
departmental
officials,
and
acts
done
in
exercise
of
those
functions
are
equally
acts
of
the
Minister
whether
they
are
done
by
him
personally,
or
through
his
departmental
officials,
as
in
practice
except
in
matters
of
the
very
first
importance
they
almost
invariably
would
be
done.
No
question
of
agency
or
delegation
as
between
the
Minister
and
Mr
O’Gara
seems
to
me
to
arise
at
all.
I
think
this
view
is
borne
out
by
the
observations
of
Lord
Greene
MR,
in
Carltona,
Ltd
v
Commissioner
of
Works
.
.
.
On
the
authority
of
the
foregoing
cases,
Noel,
J
(as
he
then
was)
said
in
Gamache
v
Jones,
[1968]
1
Ex
CR
345,
at
page
369:
.
.
.
I
do
not
believe
that
the
principle
of
delegatus
non
potest
delegare
applies
to
the
present
instance
where
the
Pilotage
Authority
happens
to
be
the
Minister
of
Transport.
It
does
not
apply
because
the
act
done
by
a
departmental
official
such
as
here
is
equally
the
act
of
the
authority
and
the
departmental
official
has
the
power
to
act
as
if
the
authority
had
done
it
personally.
In
Rule
600
it
is
recongized
that
the
signature
by
the
Attorney
General
or
Deputy
Attorney
General
may
be
affixed
on
their
behalf.
The
Attorney
General
is
charged
with
the
regulation
and
conduct
of
all
litigation
for
and
against
the
Crown
but
it
is
inconceivable
that
he
should
personally
do
so.
Accordingly
it
is
my
view
that
the
Minister
or
his
deputy
are
not
required
to
personally
supervise
such
litigation
for
the
reasons
indicated
and
that
the
duties
may
be
equally
well
discharged
by
other
qualified
persons.
That
being
so
the
maxim
delegatus
non
potest
delegare
does
not
apply
and
authority
to
delegate
is
implicit.
It
is
not
so
much
a
question
of
sub-delegation
as
it
is
whether
Mr
Dubrule
must
personally
sign
his
name.
In
view
of
the
fact
that
other
persons
are
capable
of
approving
a
statement
of
claim
it
follows
that
Mr
Dubrule’s
personal
attention
is
not
required
to
be
authenticated
by
the
act
of
his
personal
signature.
Therefore
on
the
basis
of
long
standing
authority
Mr
Dubrule’s
signature
written
by
Mr
Storrow
remains
Mr
Dubrule’s
signature.
It
seems
to
me
that
the
question
of
sub-delegation
would
arise
if
Mr
Dubrule,
who
is
authorized
to
affix
the
signature
of
the
Deputy
Attorney
General,
purported
to
authorize
Mr
Storrow
to
affix
the
signature
of
the
Deputy
Attorney
General
assuming
that
Mr
Storrow
was
not
otherwise
authorized
to
do
so.
On
the
other
hand
if
Mr
Storrow
was
possessed
of
authority
to
affix
the
signature
of
the
Deputy
Attorney
General
(there
was
no
evidence
before
me
on
this
point)
then
I
think
it
would
have
been
better
practice
for
him
to
have
written
his
own
name
rather
than
Mr
Dubrule’s.
But
he
wrote
Mr
Dubrule’s
name.
I
should
have
thought,
as
Lord
Denning
expressed
it
in
the
London
County
Council
case
(supra),
that
it
would
have
been
preferable
that
Mr
Storrow
having
written
Mr
Dubrule’s
name
should
next
have
written
the
letters
“pp”
then
written
his
own
name
or
initials.
However
he
did
not
do
so
and
as
I
have
said
before
the
fact
that
Mr
Storrow
signed
Mr
Dubrules’
name
does
not
detract,
in
the
circumstance
here
present,
from
that
being
the
signature
of
Mr
Dubrule.
For
these
reasons
the
third
ground
of
objection
to
the
statement
of
claim
must
also
fail.
During
the
course
of
the
oral
argument
counsel
for
the
defendant
maintained
that
the
name
“D.
S.
Maxwell”
should
not
have
been
typed
but
should
have
been
manually
written
by
whomsoever
was
authorized
to
affix
Mr
Maxwell’s
signature
or
that
that
person
should
have
affixed
a
facsimile
of
Mr
Maxwell’s
signature
by
means
of
a
rubber
stamp.
I
have
no
doubt
that
the
suggestion
of
the
use
of
a
rubber
stamp
was
inspired
by
the
decision
in
Goodman
v
J
Eban
Ltd,
[1954]
1
All
ER
763,
often
referred
to
as
“the
rubber
stamp
case”,
which
held
that
a
rubber
stamp
bearing
a
name
put
on
a
document
with
the
person’s
authority
is
the
signature
of
that
person
for
some
purposes.
Counsel’s
suggestion,
as
I
recall
it,
was
that
Mr
Dubrule
or
Mr
Storrow
could
have
used
such
a
stamp
bearing
Mr
Maxwell’s
name,
or
have
written
Mr
Maxwell’s
name
manually,
but
that
the
typewritten
name
could
not
be
an
affixing
of
Mr
Maxwell’s
signature.
It
was
for
this
reason
that,
on
the
request
of
counsel
for
the
defendant,
I
gave
leave
to
counsel
for
the
Crown,
to
produce
an
affidavit
for
the
purpose
of
showing
who
typed
the
name
D
S
Maxwell
on
the
statement
of
claim.
The
affidavit
of
Kathleen
S
Landry
establishes
that
she
was
the
secretary
who
did
so.
I
do
not
agree
with
this
contention
by
the
defendant.
In
the
Interpretation
Act,
RSC
1970,
chapter
I-23
“writing”
is
defined
in
section
28
as
follows:
“writing”,
or
any
term
of
like
import,
includes
words
printed,
typewritten,
painted,
engraved,
lithographed,
photographed,
or
represented
or
reproduced
by
any
mode
of
representing
or
reproducing
words
in
visible
form;
Stroud's
Judicial
Dictionary
defines
“Signed;
signature”
as
follows:
(1)
Speaking
generally,
a
signature
is
the
writing,
or
otherwise
affixing,
a
person’s
name,
or
a
mark
to
represent
his
name,
by
himself
or
by
his
authority
.
.
.
with
the
intention
of
authenticating
a
document
as
being
that
of,
or
as
binding
on,
the
person
whose
name
or
mark
is
so
written
or
affixed.
.
.
.
If
the
typewritten
name
“D.
S.
Maxwell”
is
not
“writing”
(as
I
think
it
is)
it
is
most
certainly
a
mechanical
method
of
affixing
and
I
cannot
distinguish
in
principle
an
affixing
by
keys
striking
a
ribbon
from
a
rubber
stamp
with
ink
on
it.
I
assume
that
counsel’s
point
was
that
it
was
Mrs
Landry
who
affixed
Mr
Maxwell’s
name
which
entailed
a
still
further
delegation
by
Mr
Dubrule.
In
Regina
v
Welsford,
[1967]
2
OR
496,
McGillivray,
JA
said:
There
have
been
many
cases
where
the
courts
have
held
that
a
legislative
requirement
for
a
signature
did
not
necessarily
require
a
signature
be
in
the
handwriting
of
the
person
signing.
In
particular
instances,
typed
names,
stamped
names
or
a
man’s
mark
have
been
accepted.
In
my
view,
the
typed
symbols,
“D.
S.
Maxwell”
when
authenticated
by
the
subscription
of
Mr
Dubrule’s
signature
by
Mr
Storrow,
became
the
signature
of
the
Deputy
Attorney
General
of
Canada.
The
motion
is
dismissed
with
costs
in
the
cause.
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