SCHROEDER,
J.A.
(orally)
at
the
conclusion
of
the
argument
:—
This
is
an
appeal
brought
by
the
applicant
Steven
Low
from
an
Order
pronounced
by
Donohue,
J.
in
Chambers
on
April
22,
1966
on
an
application
for
an
order
prohibiting
J.
L.
Gourlay,
an
official
designated
by
the
Minister
of
National
Revenue,
from
proceeding
with
an
inquiry
pursuant
to
the
provisions
of
Section
126
of
the
Income
Tax
Act,
R.S.C.
1952,
ce.
148,
and
the
Inquiries
Act,
R.S.C.
1952,
c.
154.
On
July
6,
1965
the
Minister
had
issued
a
notice
of
re-assessment
in
respect
of
the
appellant
taxpayer’s
income
tax
for
the
year
1960.
A
notice
of
objection
was
filed
by
the
appellant
on
July
19,
1965.
No
further
re-assessment
having
been
made
by
the
Minister
after
receipt
of
the
appellant’s
notice
of
objection
within
the
period
of
180
days
thereafter,
the
appellant
filed
a
notice
of
appeal
to
the
Tax
Appeal
Board
on
February,
10,
1966.
The
issues
on
the
appeal
are:
(1)
Whether
in
these
cireumstances
the
Minister
has
authority
to
proceed
with
the
inquiry
pursuant
to
the
provisions
of
Section
126(4)
of
the
Income
Tax
Act;
(2)
Whether
this
function
in
exercising
the
said
powers
involves
only
ministerial
or
administrative
acts;
(3)
Whether
prohibition
or
an
Order
in
the
nature
thereof
lies
against
him
in
the
circumstances.
It
is
conceded
by
appellant’s
counsel
that
if
the
inquiry
had
been
initiated
by
the
Minister
under
the
provisions
of
Section
126(4)
before
the
notice
of
appeal
to
the
Tax
Appeal
Board
had
been
filed,
the
remedy
by
way
of
prohibition
would
not
lie
for
reasons
made
abundantly
evident
in
the
judgment
of
the
Supreme
Court
in
Guay
v.
La
fleur,
[1965]
S.C.R.
12;
[1964]
C.T.C.
300,
However,
he
urges
that
because
the
Minister
is,
in
effect,
seeking
discovery
to
assist
him
in
the
pending
appeal
this
proceeding
is
thereby
converted
into
a
step
in
a
judicial
process;
that
the
Minister
is
thus
acting
beyond
his
statutory
powers
under
Section
126(4),
and
consequently
the
attempted
exercise
thereof
is
properly
reviewable
on
an
application
for
an
order
of
prohibition.
The
real
purpose
of
the
investigation
to
be
made
by
Mr.
J.
L.
Gourlay
under
the
authority
given
to
him
by
the
Minister,
was
clearly
stated
in
the
affidavit
of
John
Edward
Sheppard,
a
solicitor
in
the
Taxation
Division
of
the
Department
of
National
Revenue,
who
deposed
as
follows
:
Unless
the
inquiry
referred
to
in
the
Notice
of
Motion
is
completed
before
the
hearing
of
the
said
appeal
to
the
Tax
Appeal
Board,
the
Department
of
National
Revenue
will
not
have
been
able
to
make
the
thorough
investigation
of
the
complex
facts
of
the
said
appeal
which
is
required
for
its
preparation
and
for
the
consideration
of
the
Minister’s
position
in
the
appeal.
The
assessment
in
question
has
not
been
confirmed
by
the
Minister
under
Section
58(3)
of
the
Income
Tax
Act.
Mr.
Francis
has
argued
this
appeal
with
his
accustomed
thoroughness
and
earnestness,
but
despite
his
able
argument
it
is
our
conclusion
that
the
learned
trial
Judge
rightly
decided
that
prohibition
did
not
lie
against
the
Minister.
Assuming,
without
deciding,
that
the
Minister’s
purpose
in
launching
the
inquiry
goes
beyond
his
powers
under
the
Act,
it
does
not
appear
to
us
that
the
appellant’s
right
to
prohibition
is
in
any
way
improved
by
reason
of
this
circumstance,
since
in
any
view
of
the
matter
the
powers
exercisable
by
him
under
Section
126(4)
are
purely
ministerial
in
character
and
essence.
It
is,
perhaps,
superfluous
to
add
that
nothing
herein
stated
shall
be
taken
to
prejudice
the
right
of
the
appellant
to
pursue
such
further
or
other
remedy
as
he
may
be
advised.
The
appeal
is
dismissed
with
costs.
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