MUNROE,
J.:—Application
by
the
executors
of
the
estate
of
Percival
Archibald
Woodward,
deceased,
for
an
order
to
show
cause
why
a
writ
of
certiorari
should
not
issue
to
remove
into
this
court
a
certain
record
of
determination
made
by
the
Minister
of
Finance
of
the
Province
of
British
Columbia
on
May
1,
1969
under
the
provisions
of
the
Succession
Duty
Act,
R.
S.
B.
C.
1960,
Chapter
372
and
amendments
thereto.
Mr.
P.
A.
Woodward
died
on
August
27,
1968.
He
left
an
estate
valued
for
succession
duty
purposes
of
about
$4,450,000.
Under
his
will,
Mr.
Woodward
established
a
trust
fund
to
provide
for
his
widow
and
bequeathed
the
residue
of
his
estate
(amounting
to
something
in
excess
of
$4,000,000)
to
a
Foundation
known
as
the
‘‘Mr.
and
Mrs.
P.
A.
Woodward’s
Foundation”.
That
Foundation
was
incorporated.
on
October
29,
1951
under
the
Societies
Act
exclusively
for
charitable
objects
to
be
carried
out
in
the
Province
of
British
Columbia.
For
the
18-
year
period
ending
December
31,
1968
it
donated
$1,822,368
for
such
purposes,
of
which
all
but
$1,000
was.
giypn
to
universities,
hospitals,
religious
or
other
charitable
organizations
within
the
province.
After
the
executors
had
filed
their
Affidavit
of
Value
and
Relationship,
the
Minister
of
Finance
on
May
21,
1969
made
a
^determination”
under
Section
20
of
the
Act,
assessing
succession
duties
payable
under
the
Act
in
the
amount
of
$1,730,536.88.
He
thus
assessed
the
residuary
gift
to.
the
Foundation
as
if
it
were
a
bequest
not
to
a
‘‘charitable
organization”?
but,
rather,
to
a
‘‘stranger’’.
From
that
assessment
the
executors
appealed
to
the
Minister
pursuant
to
the
provisions
of
Section
43.
They
complained
of
two
things
:
first,
an
error
in
what
was
included
in
the
widow’s
portion,
and
second,
the
failure
to
exempt
the
gift
to
the
Foundation
as
being
a
charitable
gift.
In
response
to
such
notice
of
appeal,
a
Revised
Assessment
was
issued
on
July
21,
1969.
It
gave
effect
to
the
first
ground
of
complaint
but
continued
taxing
the
gift
to
the
Foundation
as
one
to
a
“stranger”.
Since
there
is
no
such
thing
as
a
“Revised
Assessment’’
provided
for
in
the
Succession
Duty
Act,
the
executors
were
in
some
doubt
as
to
its
legal
effect.
Accordingly,
on
August
27,
1969,
they
issued
a
further
Notice
of
Appeal
to
the
Minister
under
Section
43
of
the
Act.
That
brought
no
response.
After
waiting
for
something
further
to
happen,
the
executors
decided
to
treat
the
Revised
Assessment
as
being
the
decision
of
the
Minister
under
Section
43(4).
Accordingly,
being
dissatisfied
with
the
decision
of
the
Minister,
the
executors
appealed
therefrom
on
September
11,
1969,
to
a
judge
of
the
Supreme
Court
of
British
Columbia
under
Section
44
of
the
Act.
The
hearing
of
that
appeal
came
on
before
Aikins,
J.
on
December
8,
1969.
A
preliminary
objection
was
taken
by
the
Crown,
of
which
notice
was
given
on
December
3rd,
to
the
effect
that
the
Court
lacked
jurisdiction
to
hear
such
appeal
because
no
decision
had
then
been
made
by
the
Minister
under
Section
43(4),
and
accordingly
there
was
in
effect
no
decision
against
which
the
Foundation
could
appeal.
His
Lordship
gave
effect
to
that
submission
and
dismissed
the
appeal.
On
January
6,
1970,
an
appeal
was
launched
from
that
ruling
to
the
Court
of
Appeal
and
service
of
the
Notice
of
Appeal
was
completed
by
January
14,
1970.
By
February
5,
1970
the
Appeal
Book
had
been
filed
and
the
date
for
the
hearing
of
the
appeal
confirmed.
The
Legislative
Assembly
of
the
Province
of
British
Columbia
met
on
January
22,
1970.
On
February
6,
1970,
the
Minister
of
Finance
introduced
Bill
11,
‘‘An
Act
to
Amend
the
Succession
Duty
Act’’.
The
Bill
so
introduced
was
enacted
and
came
into
force
on
April
1,
1970,
and
is
now
Chapter
45
of
the
Statutes
of
British
Columbia,
1970.
By
virtue
of
the
combined
effect
of
the
amendment
to
Section
5(2)
of
the
Act
and
Section
12(4)
of
the
amending
Act,
the
right
of
appeal
by
the
Foundation
to
the
Minister
under
Section
43
and
to
this
Court
under
Section
44,
was
removed.
When
the
appeal
from
the
judgment
of
Aikins,
J.
came
before
the
Court
of
Appeal
on
May
14,
1970,
the
executors
conceded
that
the
substratum
of
their
appeal
which,
if
successful,
would
have
had
the
result
of
returning
the
proceedings
to
Mr.
Justice
Aikins
with
a
direction
that
he
decide
upon
the
merits,
was
gone.
The
appeal
was,
accordingly,
dismissed.
From
the
material
filed
upon
this
application,
it
is
apparent
that
the
Minister
on
or
about
May
1,
1969,
acting
under
Section
5(2)
of
the
Act,
had
‘‘determined’’
that,
for
the
purpose
of
Section
5(1)
of
the
Act,
the
Foundation
is
not
a
religious,
charitable,
or
educational
organization
and
that,
also
for
the
purpose
of
Section
5(1)
of
the
Act,
the
purpose
of
the
Founda-
tion
is
not
a
religious,
charitable,
or
educational
purpose,
despite
the
fact
that
the
Foundation
was
incorporated
under
the
Societies
Act
of
British
Columbia
exclusively
as
a
charitable
organization
to
carry
out
such
purpose
within
British
Columbia
and
had
functioned
as
such
since
its
incorporation.
The
Foundation
has
,
always
been
and
is
now
exempt
from
payment
of
tax
under
the
Income
Tax
Act
of
Canada
and
the
Income
Tax
Act
of
British
Columbia,
as
a
“charitable
organization”.
Under
Section
5(1)
of
the
Succession
Duty
Act
of
British
Columbia,
gifts
of
the
type
bequeathed
by
Mr.
Woodward
or
other
persons
to
the
Foundation
‘‘for
religious,
charitable
or
educational
purposes’’
and
such
gifts
bequeathed
to
a
“religious,
charitable
or
educational
organization
”
are
exempt
from
liability
to
pay
succession
duty.
From
1963
until
April
1,
1970,
Section
5(2)
of
the
Act
read
as
follows:
For
the
purpose
of
subsection
(1),
the
Minister,
in
his
absolute
discretion,
may
determine
whether
any
purpose
or
organization
is
a
religious,
charitable,
or
educational
purpose
or
organization.
The
position
immediately
prior
to
the
coming
into
force
of
the
1970
amendments
to
the
Succession
Duty
Act
appears
to
have
been
as
follows:
May
1,
1969—The
Minister
determined
under
Section
5(2)
that
the
bequest
to
the
Foundation
did
not
qualify
under
Section
5(1)
for
exemption
from
succession
duty,
but
did
not
advise
the
Foundation
or
the
executors
of
the
estate
of
such
determination.
May
21,
1969—An
assessment
of
duties
was
issued
which
reflected
such
determination.
June
19,
1969—The
executors
appealed
to
the
Minister
from
such
assessment,
under
Section
43.
July
21,
1969—A
revised
assessment
of
duties
was
issued,
but
that
assessment
did
not
reflect
a
decision
made
by
the
Minister
under
Section
43,
according
to
counsel
who
appeared
on
his
behalf
before
Mr.
Justice
Aikins,
and
succeeded
upon
that
ground
alone.
It
thus
appears
that
no
decision
has
yet
been
rendered
upon
the
appeal
taken
to
the
Minister
under
Section
43,
and
none
will
be
rendered
in
the
future
because
on
April
1,
1970,
Section
5(2)
of
the
Act
was
amended
by
adding,
at
the
end,
the
following
:
and
the
determination
of
the
Minister
is
final,
conclusive
and
binding
on
all
persons
and,
notwithstanding
section
43
or
44
or
any
other
provision
of
this
Act
to
the
contrary,
is
not
open
to
appeal,
question,
or
review
in
any
Court,
and
any
determination
of
the
Minister
made
under
this
subsection
is
hereby
ratified
and
confirmed
and
is
binding
on
all
persons.
At
the
same
time,
Section
12(4)
was
enacted,
reading
as
follows:
(4)
Section
5
shall
be
deemed
to
have
come
into
force
on
the
first
day
of
April,
1968,
and
is
retroactive
to
the
extent
necessary
to
give
full
force
and
effect
to
the
provisions
it
amends
on
or
after
that
date,
and
applies
to
property
passing
on
the
death
of
a
person
dying
on,
from,
and
after
that
date.
Counsel
for
the
applicant
asks
that
the
gift
to
the
Foundation
be
declared
exempt
pursuant
to
the
provisions
of
Section
5(1)
(11)
of
the
Act
which
exempts
from
succession
duty
such
gifts
‘‘bequeathed
by
any
person
for
religious,
charitable,
or
educational
purposes
to
be
carried
out
in
the
Province’’,
asserting
that
the
Minister
of
Finance
lacks
jurisdiction
to
make
the
determination
which
he
made
under
Section
5(2)
in
respect
of
such
gift.
He
submits
that,
in
law,
the
said
gift
to
the
Foundation
qualifies
for
exemption
under
Section
5(1)
and
that
no
determination
made
by
the
Minister
under
Section
5(2)
can
deprive
the
Foundation
of
its
status
as
a
charitable
organization
or
deprive
a
bequest
to
it
of
its
exemption
under
Section
5(1).
He
argues
that
while
Section
5(2)
authorizes
the
Minister
to
determine
whether
any
purpose
or
organization
is
a
religious,
charitable,
or
educational
purpose
or
organization,
it
does
not
authorize
him
to
say
it
is
not.
In
short,
while
he
may
confer
a
status
or
grant
an
exemption,
he
may
not
deprive
an
organization
or
purpose
of
its
charitable
purpose
or
nature.
He
says
support
for
the
foregoing
propositions
is
to
be
found
in
the
legislative
history
of
the
Act,
and
particularly
the
amendments
made
to
Section
5
in
1963.
I
must
and
do
reject
such
submission.
It
is
trite
law
to
say
that
the
intention
of
the
Legislature
and,
therefore,
the
meaning
of
the
statute
is
primarily:
to
be
sought
in
the
words
used
in
the
statute
itself,
and
that
plain,
unambiguous
words
must
be
construed
in
their
ordinary
and
natural
meaning.
As
I
interpret
Section
5
of
the
Act,
the
Legislature
has
granted
to
the
Minister
of
Finance
the
sole
right
and
the
duty
to
determine
whether
or
not,
for
the
purpose
of
determining
liability
or
exemption
from
succession
duty,
the
Foundation
or
its
purpose
is
a
religious,
charitable,
or
educational
purpose
or
organization.
In
my
view,
the
‘‘whether’’
in
Section
5(2)
implies
a
choice
between
‘‘yes’’
or
‘‘no’’.
For
the
purpose
of
Section
5(1)
of
the
Act,
the
Foundation
had
no
status
either
as
or
not.
as
a
religious,
charitable
or
educational
organization
until
the
Minister
made
his
determination
under
Section
5(2),
regard-
less
of
its
status
for
other
purposes
at
common
law
or
under
home
other
statute
law.
Assuming
the
correctness
of
such
conclusions,
there
arises
next
for
consideration
the
allegation
of
the
applicants
that
the
Minister
lost
the
jurisdiction
given
to
him
by
the
Act
when
he
made
his
determination
under
Section
5(2)
without
notice
to
the
executors
of
the
estate,
contrary
to
the
principles
of
natural
justice.
Counsel
for
the
Minister
conceded
during
the
hearing
that
no
such
notice
was
given
and
conceded
also,
rightly
I
think,
that
when
the
Minister
made
such
determination
he
was
exercising
judicial
or
quasi-judicial
duties,
particularly
in
the
light
of
the
1970
amendments:
Giese
v.
Williston
(1963),
41
W.W.R.
331.
Accordingly,
the
law
is
clear
that
he
must
act
in
good
faith
and
give
a
fair
opportunity
to
the
executors
and
to
the
Foundation
for
correcting
or
contradicting
any
relevant
statement
prejudicial
to
their
view:
Board
of
Education
v.
Rice,
[1911]
A.C.
179;
Western
Mines
Ltd.
v.
Greater
Campbell
River
Water
District
(1967),
58
W.W.R.
705.
As
was
said
by
the
learned
President.
of
the
Exchequer
Court
of
Canada
in
Randolph
et
al.
v.
The
Queen,
[1966]
Ex.
C.R.
157
at
164:
It
is
a
general
rule
that,
unless
Parliament
has,
in
a
particular
class
of
matters,
otherwise
provided,
every
person
has
a
right
to
be
heard
and
to
be
given
a
fair
opportunity
for
correcting
or
contradicting
what
is
alleged
against
him
before
an
order
is
made
against
him.
This
is
a
fundamental
rule
of
British
justice
that
is
read
into
statutes
conferring
power
to
make
decisions.
It
applies
not
only
when
the
power
to
make
decisions
is
conferred
upon
judicial
tribunals
constituted
as
such,
but
whenever
such
a
power
is
conferred
upon
administrative
agencies,
Ministers
of
the
Crown
or
other
purely
executive
authorities.
The
rule
only
applies,
however,
in
the
absence
of
any
express
statutory
rule
to
the
contrary,
to
decision
making
powers
conferred
by
statute
that
are
of
the
kind
sometimes
referred
to
as
being
of
a
judicial
or
quasi-judicial
nature
because
they
are
primarily
directed
to
the
determination
or
abrogation
of
rights
of
members
of
the
public
by
application
of
a
statutory
rule
to
the
facts
of
a
particular
case
as
determined
by
the
tribunal.
In
other
words,
the
rule
that
I
am
discussing
does
not
apply
to
decisions
that
are
primarily
of
any
administrative
or
executive
nature
in
the
sense
that
they
are
arbitrary
because
they
are
made
having
regard
primarily
to
public
policy
or
exediency
considerations
but
does
apply
to
decisions
as
to
individual
rights
arrived
at
by
ascertaining
facts
and
applying
some
rule
or
principle
of
law
to
them.
Here,
no
opportunity
to
be
heard
was
given
and
such
failure
constituted
a
denial
of
natural
justice,
which
ousted
the
jurisdiction
of
the
Minister;
and
certiorari
is
available
as
a
remedy
unless
the
amendments
have
the
effect
of
depriving
this
Court
()f
any
jurisdiction
to
review
the
determination
made
by
the
Minister.
Counsel
for
the
Minister
so
asserts,
relying.on
the
words
added
to
Section
5(2)
in
1970.
I
reject
such
submission.
It
has
been
held
repeatedly
in
Canadian
courts
that
enactments
which
purport
to
oust
or
deprive
the
court
of
jurisdiction
to
review
the
judicial
or
quasi-judicial
acts
of
a
person
or
tribunal
exercising
a
discretionary
althority
under
a
statute
are
ineffective
for
that
purpose
where
a
breach
of
the
principles
of
natural
justice
has
0€€111°°,1€d
and
that
is
so
even
where
the
enactment
has
provided
that
the
decision
of
such
person
or
tribunal
is
final
and
that
he
or
it
shall
not
be
restrained
by
certiorari
or
otherwise
by
any
court:
Toronto
Newspaper
Guild
v.
Globe
Printing
Co.,
[19538]
S.C.R.
18;
Saltfleet
Board
of
Health.
v.
Knapman,
[1956]
S.C.R.
877;
Battaglia
v.
Workmen’s
Compensation
Board
(1960),
32
W.
W.
R.
1,
Judicial
Review
of
Adminis-
trative
Action
(2nd
ed.)
by
S.
A.
de
Smith
at
pp.
344
et
seq.-,
Re
Rammell
(1962),
37
W.W.R.
49.
However,
counsel
for
the
Minister
submits
that
the
words
‘‘and
any
determination
of
the
Minister
made
under
this
subsection
is
hereby
ratified
and
confirmed
and
binding
on
all
persons
’
’
make
the
principles
of
law
above
referred
to
inapplicable
to
this
case.
He
says,
in
effect,
that
the
determination
of
the
Minister
is
valid
and
binding
and
not
subject
to
review
in
any
court,
notwithstanding
that
in
arriving
at
his
decision
the
Minister
may
have
contravened
the
principles,
of
natural
justice.
He
says
that
the
words
‘‘any
determination”
means
just
that—a
determination
made
lawfully
or
otherwise,
which
determination,
however
much
it
may
violate
legal
principles,
must
stand
because
it
has
been
ratified
in
advance
by
the
Legislature.
I
reject
that
submission.
The
Legislature
could
not
ratify
or
confirm
a
determination
that
was
not
then
in
existence
any
more
than
it
could
ratify,
confirm
or
make
binding
a
determination:
which
was
a
nullity
at
law.
A
determination
made,
as
this
one
was,
in
breach
of
the
principles
of
natural
justice,
is
void.
Counsel
says,
and
I
agree,
that
the
Legislature
is
supreme
when
enacting
legislation
within
its,
constitutional.
powers.
It
could
have
enacted
legislation
saying
that
for
the
purpose
of
Section
5(1)
of
the
Succession
Duty
Act,
the
Foundation
is
not
a
charitable
organization
and
does
not
have
a
charitable
purpose
and
that
would
ave.
been
the
en
of
the
matter;
but
it
did
not
do
that..
Instead,
it
authorized
and
directed
the
Minister
to
decide
which
(if
any)
organizations
claiming
to
be
charitable
organizations
are
such
for
the
purpose
of
Section
5(1)
of
the
Act.
It
granted
such
discretionary
power
having
the
constructive
know
ledge
that
it
is
an
established
principle
of
law
that
such
discretion
must
be
exercised
judicially.
As
Lord
Blackburn
said
in
Young.
v.
Mayor
of
Leamington
(1883),
8
App.
Cas.
517
at
526:
-
We
ought
in
general,
in
construing
an
Act
of
Parliament,
to
assume
that
the
legislature
knows
the
existing
state
of
the
law.
In
the
result,
I
hold
that
the
power
given
by
Section
5(2)
of
the
Succession
Duty
Act
to
the
Minister
of
Finance
is
a
power
to.
be
exercised
judicially
and
is
not
an
arbitrary’
one
to
be
exercised
capriciously
according
to
his
fancy:
:
M.N.R.
v:
Wrights’
Canadian
Dopes
:
Ltd.,
[1947]
C.T.C.f
Ridge
V.
Baldioin,
[1964]
A.C.
40.
.
:
In
view
of
the
conclusions
which
I
have
reached.
it
is
unnecessary
for
me
to
adjudicate
upon
grounds
numbered
(2)
and
(4)
in
the
Notice:
of
Motion:
The
application
for
a
declaration
that
the
gift
of
the
residue
of
the
estate
of
Mr.
Woodward
to
the
Foundation
is
exempt
from
succession
duty
is
not
granted.
A
writ
of
certiorari
will
issue;
the
determination
made
under
Section
5(2)
of
the
Act
by
the
Minister
of
Finance
on
or
about
May
1,
1969,
shall
be
quashed
on
return
without
further
order.
The
matter
will
be
referred
back
to
the
Minister
for
the
exercise
of
his
discretion
on
proper
legal
principles.
Application
granted.
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