Gibson, J (orally):
1 This is an application by the respondent for an order dismissing the application of the applicant herein dated August 16, 1975, on the five grounds set out in the notice, namely:
1. That the seizure of the subject matter of the application is the result of an administrative act of Edmund Michael Swartzack and is not subject to the jurisdiction of this Honourable Court under section 18 of the Federal Court Act, RSC 1970, 2nd Supp, c 10 or any other provision of the said Act.
2. That neither the respondent nor the person effecting the seizure in question, namely Edmund Michael Swartzack, are for the purposes of these proceedings a federal board, commission or other tribunal within the meaning of section 18 of the Federal Court Act, and accordingly this Honourable Court has no jurisdiction in these proceedings.
3. That if Edmund Michael Swartzack in making the said seizure was acting as a federal board, commission or other tribunal within the meaning of section 18 of the Federal Court Act, this Honourable Court has no jurisdiction to hear these proceedings by reason of section 28 of the Federal Court Act.
4. The proceedings herein are against the wrong party in that the respondent was not the person who made the seizure in question and no order of prohibition, certiorari, or any declaratory judgment can be made against the respondent in these proceedings arising out of the seizure in question.
5. That any proceedings against the respondent in this Honourable Court must be by action, section 18 of the Federal Court Act not applying to the respondent as he was not in these proceedings acting in other than an administrative capacity in delegating powers to the person effecting the seizure in question, and that party is not a party to these proceedings.
2 The applicant by its motion dated August 16, 1975, asked for an order of prohibition against the respondent, for an order of certiorari in respect of certain seizure or seizures made by the respondent and for an order directing the respondent to deliver up to the applicant all the property seized.
3 The respondent seized certain business documents of the applicant at the Edmonton Police Station on July 29, 1975, purportedly under the authority of paragraph 231(1)(d) of the Income Tax Act. The investigator of the respondent was Edmund M Swartzack.
4 As noted, firstly, this act of seizure, purportedly under paragraph 231(1)(d) of the Income Tax Act, counsel for the respondent says was an administrative act done by an agent of the respondent pursuant to such statutory authority, and that such act is not reviewable by this Court.
5 Speaking generally, the exercise of the power of “search and seizure” has been traditionally subject to review by a court. The act of taking away a person's property has always been subject to such a salutary restriction so that such an act done by any person will be done fairly.
6 The relevant jurisprudence in the consideration of whether or not a seizure under paragraph 231(1)(d) of the Income Tax Act is an act with some “judicial” element, and not a pure administrative act, is difficult. But, after careful consideration of the authorities in relation to the subject proceedings, and in the light of the said traditional attitude towards seizures and searches, I am of the opinion that the act of seizure under the authority of that subsection has some judicial element, and that this is so even though the subsection does not expressly or impliedly import a duty to afford a hearing, it being sufficient that the official deciding and effecting such a seizure is obliged in doing so to decide questions of law or fact affecting an individual's “rights” and thereby exercises a “judicial” discretion; and that a person purporting to exercise such a power of seizure is therefore under a duty to act fairly (“judicially”) solely within the ambit of authority of that subsection; and that as a consequence any act done by a person purportedly under such authority is subject to review by the Trial Division of this court at least on the issue of want or excess of jurisdiction (which is the relevant issue in these proceedings). (Cf S A de Smith, Judicial Review of Administrative Action, 3rd ed, pp 346–7.)
7 Secondly, I am also of the opinion that the respondent is a proper party, and for the purpose of these proceedings is a federal board, commission or other tribunal within the meaning of section 18 of the Federal Court Act. (See definition in paragraph 2(g) of the Act.)
8 Thirdly, I am also of the opinion that the Court of Appeal of the Federal Court has no jurisdiction in the first instance under section 28 of the Federal Court Act in relation to the subject proceedings. (Cf Attorney General of Canada v Cylien, [1973] F.C. 1116, and Howarth v National Parole Board, [1973] F.C. 1018.)
9 Finally, I am also of the opinion that Edmund Swartzack is an agent of the respondent and the respondent therefore is a proper party as his principal, and these proceedings against the respondent are by action as that word is defined in paragraph 2(b) of the Rules of this Court.
10 The motion is therefore dismissed with costs.
Email this Content