Porter,
C.J.O.:—This
is
an
appeal
by
the
appellant
Bank
from
the
judgment
of
the
Honourable
Mr.
Justice
Morand
dismissing
the
appellant’s
claim
for
a
declaration.
The
appellant
brought
this
action
against
the
respondent
by
a
writ
issued
September
15,
1960
claiming
a
declaration
that
it
is
not
under
any
obligation
to
furnish
the
information
or
produce
the
documents
relating
to
the
accounts
of
its
customer,
The
Union
Bank
of
Switzerland,
called
for
by
a
requirement
(under
Section
126(2)
of
the
Income
Tax
Act,
R.S.C.
1952,
e.
148)
for
information
and
production
of
documents
contained
in
a
registered
letter
from
the
Department
of
National
Revenue
dated
August
17,
1960
and
addressed
to
the
General
Manager
of
the
appellant.
By
agreement
between
the
parties
a
special
case
was
stated
for
the
opinion
of
the
Court
which
was
heard
before
the
Honourable
Mr.
Justice
Morand
on
April
14,
1961
and
judgment
against
the
appellant
was
given
on
May
1,
1961.
The
facts,
as
agreed
upon
between
the
parties,
are
set
out
in
the
special
case
as
follows
(Appeal
Book,
page
9)
:
“1.
The
Plaintiff
is
a
chartered
bank
of
Canada
and
a
taxpayer
under
the
Income
Tax
Act
of
Canada.
2.
The
requirement
mentioned
in
the
Writ
of
Summons
herein
does
not
relate
in
any
way
to
the
administration
or
enforcement
of
the
Income
Tax
Act
as
respects
the
liability
for
tax
of
the
Plaintiff
itself.
3.
The
Union
Bank
of
Switzerland,
referred
to
in
the
Writ
of
Summons
herein,
is
one
of
the
major
banks
in
Switzerland
and
is
a
customer
of
the
Plaintiff.
4.
The
Minister
of
National
Revenue
(the
‘Minister’)
sent
to
the
Plaintiff
herein
a
registered
letter
dated
the
17th
day
of
August,
A.D.
1960
(which
letter
was
referred
to
in
the
Writ
of
Summons
as
the
‘Requirement’
and
is
hereinafter
referred
to
as
the
‘Requirement’).
The
Requirement
was
received
by
the
Plaintiff
and
is
attached
hereto
as
Exhibit
‘A’.
The
Plaintiff
has
failed
to
comply
in
whole
or
in
part
with
the
Requirement.
5.
The
Plaintiff
has
861
branches
throughout
Canada,
12
branches
in
the
West
Indies,
5
branches
or
agencies
in
the
United
States
and
2
branches
in
London,
England.
The
standing
internal
instructions
of
the
Plaintiff
require
that
its
International
Division
at
its
head
office
be
notified
of
any
account
opened
in
the
name
of
a
foreign
bank.
Accordingly,
the
International
Division
of
the
Plaintiff
should
be
aware
of
all
accounts
of
the
Plaintiff
in
the
name
of
its
customer,
Union
Bank
of
Switzerland,
but
the
Plaintiff
can
have
no
absolute
assurance
in
this
regard
without
circulating
its
branches,
which
has
not
been
done.
6.
To
the
knowledge
of
the
International
Division
of
the
Plaintiff
its
customer,
Union
Bank
of
Switzerland,
has
18
ledger
accounts
with
the
Plaintiff,
of
which
7
are
in
Toronto,
5
in
Montreal,
5
in
New
York
and
1
in
London,
England.
In
addition
the
Plaintiff
has
security
safekeeping
accounts
for
the
Union
Bank
of
Switzerland
in
Toronto,
Montreal
and
New
York.
1.
In
the
period
in
question
there
are
approximately
5,400
entries
in
the
ledger
accounts
of
the
Plaintiff
for
the
Union
Bank
of
Switzerland
in
Toronto
and
over
600
additional
entries
in
the
security
safekeeping
accounts
of
the
Plaintiff
for
the
Union
Bank
of
Switzerland
in
Toronto.
Each
such
entry
is
supported
by
a
voucher
from
which
the
names
and
details
relating
to
such
entry
could
be
obtained.
Such
vouchers,
for
all
customers,
are
filed
by
calendar
years
and
not
by
customers.
Merely
to
collect
the
vouchers
relating
to
all
such
entries
from
the
files
and
archives
of
the
Plaintiff,
would
require
a
complete
search
of
such
daily
filing
and
on
the
basis
that
such
search
would
produce
a
voucher
every
two
minutes,
would
require
approximately
200
hours
of
clerical
work
or
the
full-time
service
of
a
single
clerk
for
from
5
to
6
weeks.
8.
In
addition
to
the
foregoing
other
transactions
in
securities
have
occurred
in
Toronto
and
Montreal
for
the
account
of
the
Union
Bank
of
Switzerland
in
the
period
in
question
which
appear
in
the
daily
security
records
of
the
Plaintiff
rather
than
the
safekeeping
records,
since
transactions
with
complete
instructions
(e.g.
sale
transfer
delivery)
are
not
recorded
in
the
safekeeping
records.
The
daily
security
records
of
the
Plaintiff
are
filed
in
the
form
of
tickets
relating
to
individual
transactions
and
are
filed
by
number
and
not
by
either
customer
or
day.
In
the
period
in
question
there
are
approximately
30,000
such
tickets
relating
to
transactions
in
Toronto,
all
of
which
would
have
to
be
reviewed
to
collect
together
the
Toronto
daily
security
transactions
of
the
Union
Bank
of
Switzerland.
To
search
the
30,000
tickets
to
collect
the
transactions
relating
to
the
Union
Bank
of
Switzerland
would
take
approximately
the
full
time
of
one
clerk
for
1
week.
J.
The
Plaintiff
has
not
investigated
the
work
and
time
required
for
the
same
purposes
in
respect
of
accounts
in
Montreal,
New
York
and
London,
England,
but
from
general
knowledge
of
the
activities
of
the
accounts
would
estimate
Montreal
at
less
than
Toronto,
New
York
at
substantially
less
than
Montreal,
and
London
at
substantially
less
than
New
York.
10.
The
correspondence,
advices,
directions
and
reports
passing
between
the
Plaintiff
and
its
customer,
the
Union
Bank
of
Switzerland,
are
filed
by
the
Plaintiff
under
the
customer’s
name
and
for
the
period
in
question,
represent
approximately
a
full
filing
drawer
divided
among
the
various
departments
of
the
Plaintiff.
11.
The
information
to
be
gathered
together
and
produced
to
comply
with
the
said
Requirement
includes
a
great
deal
of
private
information
in
respect
of
the
business
and
affairs
of
the
Union
Bank
of
Switzerland
and
of
many
other
corporations
and
individuals,
some
resident
in
Canada
and
some
not
resident
in
Canada.
QUESTION
FOR
THE
OPINION
OF
THE
Court
Is
the
Plaintiff
entitled
to
the
relief
claimed
in
the
Writ
of
Summons
herein,
namely:
a
declaration
that
it
is
not
under
any
obligation
to
furnish
the
information
or
produce
the
documents
relating
to
the
accounts
of
its
customer,
The
Union
Bank
of
Switzerland,
called
for
by
the
Requirement
for
Information
and
Production
of
Documents
hereinafter
described,
that
the
said
Requirement
is
unauthorized
and
is
of
no
force
or
effect
and
that
the
Plaintiff
is
not
subject
to
the
penalty
threatened
therein
for
failure
to
comply
therewith.’
The
parties
concur
in
stating
the
above
question
of
law,
in
the
form
of
this
Special
Case
for
the
opinion
of
the
Court
pursuant
to
Rule
126.’’
The
following
communication
was
sent
to
the
appellant
Bank.
‘
QUIREMENT
FOR
Information
AND
PRODUCTION
OF
DOCUMENTS
Ottawa,
17th
August,
1960
The
General
Manager,
The
Canadian
Bank
of
Commerce,
25
King
Street
West,
Toronto,
Ontario.
Dear
Sir,
The
Umon
Bank
of
Switzerland
1.
For
the
purposes
related
to
the
administration
or
enforcement
of
the
Income
Tax
Act,
pursuant
to
the
provisions
of
Section
126(2)
of
the
said
Act,
I
require
from
you
on
or
before
19th
September,
1960,
information
and
production
of
documents
as
follows:
(a)
A
statement
setting
out
all
entries
in
all
accounts
that
are
known
to
be
or
to
have
been
operated
or
controlled
by,
for,
or
on
behalf
of
the
persons
named
above
or
any
of
them
and
all
entries
that
are
known
to
be
or
to
have
been
related
to
the
affairs
of
those
persons
or
any
of
them,
in
all
other
accounts
including
Casual,
Manager’s,
Sundry
and
similar
accounts
for
the
period
beginning
1st
January
1955
and
ending
31st
December
1959,
both
dates
inclusive.
(b)
A
statement
setting
out
particulars
of
all
transactions,
including
loans
and
discounts
and
collateral
thereto,
safety
deposit
box
rentals
and
security
dealings
with,
for,
or
on
behalf
of
the
persons
named
above
or
any
of
them,
or
any
person
or
persons
known
to
be
or
to
have
been
acting
on
behalf
of
those
persons
or
any
of
them
for
the
period
beginning
1st
January
1955
and
ending
31st
December
1959,
both
dates
inclusive.
(c)
Production
of
all
documents,
including
authorizations,
powers
of
attorney,
mail
and
telegraphic
transfers,
accounts,
vouchers,
letters,
contracts,
letters
of
credit
and
statements
that
are
known
to
be
or
to
have
been
related
to
the
entries
or
transactions
set
out
in
the
statements
required
under
(a)
and
(b)
above,
for
he
period
beginning
1st
January
1955
and
ending
31st
December
1959,
both
dates
inclusive.
2.
To
comply
with
this
requirement
you
should
forward
the
information
and
documents
hereby
required
to
the
Deputy
Minister
of
National
Revenue
for
Taxation,
444
Sussex
Drive,
Ottawa,
Ontario,
by
registered
mail,
within
the
time
specified
in
paragraph
1.
Photostatic
or
certified
copies
of
the
documents
will
be
sufficient.
3.
If
you
so
request
in
your
acknowledgement
of
this
requirement,
arrangements
will
be
made
for
an
officer
of
the
Taxation
Division
to
attend
at
your
office
to
receive
the
information
and
inspect
the
documents
required.
Provision
of
the
information
and
production
of
the
documents
to
that
officer
at
the
time
of
his
attendance
at
your
office
will
be
considered
as
compliance
with
this
requirement
if
your
acknowledgement
is
received
on
or
before
19th
September,
1960.
4.
Your
attention
is
directed
to
the
penalty
provided
in
subsection
(2)
of
section
131
of
the
Income
Tax
Act
for
default
in
complying
with
this
requirement.
Yours
truly,
Assistant
Deputy
Minister
of
National
Revenue
for
Taxation’’
By
Section
2
of
the
Income
Tax
Act,
income
tax
shall
be
paid
upon
the
taxable
income
of
every
person
resident
in
Canada
and
upon
non-residents
employed
in
Canada
and
non-residents
who
carry
on
business
in
Canada.
The
Act
gives
to
the
Minister
various
powers
enabling
him
to
obtain
information
which
may
relate
to
tax
liability.
The
provisions
in
question
in
this
appeal
are
Sections
126(2)
and
131(2).
They
read
as
follows:
“126.
(2)
The
Minister
may,
for
any
purposes
related
to
the
administration
or
enforcement
of
this
Act,
by
registered
letter
or
by
a
demand
served
personally,
require
from
any
person
(a)
any
information
or
additional
information
including
a
return
of
income
or
a
supplementary
return,
or
(b)
production,
or
production
on
oath,
of
any
books,
letters,
accounts,
invoices,
statements
(financial
or
otherwise)
or
other
documents,
within
such
reasonable
time
as
may
be
stipulated
therein.
131.
(2)
Every
person
who
has
failed
to
comply
with
or
contravened
subsection
(1)
of
section
47,
subsection
(5)
of
section
123,
section
125
or
section
126
is
guilty
of
an
offence
and,
in
addition
to
any
penalty
otherwise
provided
is
liable
on
summary
conviction
to
(a)
a
fine
of
not
less
than
$200
and
not
exceeding
$10,000,
or
(b)
both
the
fine
described
in
paragraph
(a)
and
imprisonment
for
a
term
not
exceeding
6
months.
’
’
The
first
issue
to
be
determined
in
this
appeal
is
whether
Section
126(2)
confers
upon
the
Minister,
acting
for
purposes
related
to
the
administration
or
enforcement
of
the
Act,
the
power
to
require
the
Canadian
Bank
of
Commerce,
whose
tax
liability
is
not
under
investigation,
information
and
production
of
documents
in
its
possession
which
may
relate
to
the
tax
liability
of
third
persons.
The
requirement
in
this
case
was
made
by
the
Assistant
Deputy
Minister
of
National
Revenue
for
Taxation.
It
was
conceded,
however,
that
pursuant
to
Section
117(1)
(f)
of
the
Act
the
Assistant
Deputy
had
been
authorized
to
perform
the
duties
of
the
Minister.
The
power
of
the
Assistant
Deputy
Minister
would
in
the
circumstances
of
this
case,
be
the
same
as
that
of
the
Minister.
In
the
requirement
‘‘The
Union
Bank
of
Switzerland’’
appears
at
the
head
of
the
document.
Various
references
are
then
made
to
‘‘the
persons
named
above’’.
Although
these
words
indicate
on
their
face
a
number
of
persons,
there
is
only
the
one
person
“named
above’’,
viz.,
the
Union
Bank
of
Switzerland.
It
is
clear,
I
think,
that
the
Bank
of
Switzerland
is
a
person
under
investigation.
It
has
not
been
shown
otherwise,
and
the
Bank
having
been
named
the
onus
to
show
that
this
Bank
was
not
the
person
under
investigation
would
fall
upon
the
appellant.
Although,
as
stated
in
paragraph
11
of
the
Special
Case,
the
information
sought
includes
much
private
information
as
to
the
affairs
of
other
persons
in
addition
to
the
affairs
of
the
Bank
of
Switzerland,
this
Bank
is
the
only
person
mentioned
in
the
requirement.
The
volume
of
transactions
of
this
Bank
appearing
on
the
records
of
the
appellant,
as
shown
in
the
special
case,
is
such
that
it
could
not
fairly
be
said
that
the
Minister
would
be
unjustified
in
attempting
to
seek
all
available
information
as
to
the
Bank’s
transactions
so
as
to
determine
whether
it
was
carrying
on
business
in
Canada
for
itself
or
as
agent
for
other
persons,
and
liable
to
taxation.
The
fact
that
the
information
sought
will
disclose
private
transactions
in
which
a
number
of
persons
were
involved
who
are
not
under
investigation,
and
may
not
be
liable
to
tax,
does
not,
in
my
opinion,
affect
the
power.
It
is
obvious
that
in
the
process
of
an
authorized
investigation
some
and
perhaps
much
of
the
information
obtained
will
turn
out
to
be
irrelevant
and
useless.
I
do
not
think
that
this
probability,
by
itself,
removes
the
enquiry
from
the
ambit
of
‘‘purposes
related
to
the
administration
or
enforcement
of
the
Act’’.
The
issue
as
to
whether
the
Minister
has
the
power
involves
solely
the
interpretation
of
Section
126(2),
and
as
such
is
properly
before
the
Court
for
determination.
The
question
involves
the
meaning
in
their
context
and
in
relation
to
the
general
intent
and
purpose
of
the
Act,
of
the
words
‘‘any
person’’,
and
‘‘any
information
or
additional
information”,
“including
a
return
of
income
or
a
supplementary
return’’
and
“any
books,
letters,
invoices,
statements
(financial
or
otherwise),
or
other
documents’’.
These
words
are
not
ambiguous.
If
taken
in
their
ordinary
meaning
and
disregarding
their
context,
these
general
words
would
on
their
face
apply
to
any
person
whether
or
not
his
tax
liability
were
under
investigation.
An
examination
of
subsections
(1)
and
(3)
of
Section
126,
it
was
contended,
indicates
that
the
power
given
to
enter
premises
is
restricted
to
the
premises
of
a
person
whose
tax
liability
is
under
investigation
and
that
subsection
(2)
should,
read
in
the
context,
be
construed
as
being
similarly
restricted.
Assuming,
but
not
deciding,
that
this
subsection
is
restricted
to
entry
of
premises
occupied
by
a
person
whose
tax
liability
is
under
investigation
and
seizure
of
books
and
records
required
to
be
kept
by
Section
125
of
the
Act,
as
contended
by
counsel
for
the
appellant,
the
procedures
permitted
are
more
drastic
than
the
requirement
for
information
in
Section
126(2),
and
I
do
not
think
that
subsection
(1),
even
if
construed
as
contended,
would
be
of
assistance
in
construing
the
words
used
in
subsection
(2).
Further,
it
may
be
that
subsection
(1)
should
not
be
given
such
a
restricted
meaning.
The
opening
words
of
the
subsection
are
general,
and
the
“premises
or
place
where’’
entry
may
be
made
are
described
disjunctively,
and
the
books
and
records
are
only
one
out
of
several
separate
items.
Subsection
(3),
which
provides
upon
the
order
of
a
Judge
of
the
Exchequer
Court
for
entry
and
seizure
if
necessary
by
force,
any
building
for
documents
which
may
afford
evidence
as
to
the
violation
of
any
provision
of
the
Act’’,
on
its
face
would
appear
to
apply
to
any
building
whether
or
not
occupied
by
a
person
under
investigation.
Section
124(4)
provides
for
an
enquiry
relating
to
anything
relating
to
the
administration
of
the
Act’’.
Section
126A
provides
for
the
protection
of
solicitor
and
client
privilege,
where
a
lawyer
is
prosecuted
for
failure
to
comply
with
a
requirement.
This
section
clearly
implies
that
a
lawyer
who
has
information
or
documents
of
a
client
in
his
possession
is
obliged
to
comply
with
a
requirement,
except
as
to
information
subject
to
privilege,
although
the
solicitor
himself
is
not
under
investigation.
This
section
thus
throws
considerable
light
upon
the
intention
of
Parliament
as
expressed
by
the
general
words
in
Section
126(2),
which
if
read
in
its
whole
context,
and
particularly
in
relation
to
Section
126A,
would
appear
to
include
the
power
to
require
from
a
person
not
under
investigation,
information
as
to
the
affairs
of
a
third
person.
The
general
principles
of
construction
applicable
are
set
forth
in
the
judgment
of
Anglin,
J.,
in
In
re
Price
Bros.
&
Co.
and
the
Board
of
Commerce
of
Canada
(1919-20),
60
8.C.R.
265
at
page
282,
as
follows:
“Lord
Wensley
dale’s
golden
rule
that
the
grammatical
and
ordinary
sense
of
words
is
to
be
adhered
to
unless
that
would
lead
to
some
absurdity,
repugnance
or
inconsistency
so
great
as
to
convince
the
court
that
the
intention
could
not
have
been
to
use
them
in
that
ordinary
signification,
applies
to
general
words,
as
to
other
words.
Generalia
verbia
sunt
generaliter
intelligenda,
3
Inst.
ce.
21,
p.
76;
Attorney
General
v.
Mercer,
8
App.
Cas.
767,
at
p.
778.
On
the
other
hand
general
words
must
be
restricted
to
the
fitness
of
the
subject
matter
(Bacon’s
Maxim,
No.
10)
and
to
the
actual
apparent
objects
of
the
Act
(River
Wear
Commissioners
v.
Adamson,
1
Q.B.D.
546;
2
App.
Cas.
743,
at
pp.
700-1)
‘gathered
from
the
necessity
of
the
matter
and
according
to
that
which
is
consonant
to
reason
and
good
discretion’.
Stradling
v.
Morgan,
Plowden
199
;
Cox
v.
Hakes,
15
App.
Cas.
5906,
at
pp.
517-8.”
In
the
course
of
the
argument
before
us
it
was
suggested
that
the
words
in
subsection
(2)
(a),
“including
a
return
of
income,
or
a
supplementary
return
.
.
.”
should
be
construed
as
having
a
restrictive
effect
upon
the
meaning
of
the
preceding
general
words,
‘‘any
information
or
additional
information’’.
It
was
suggested
that
a
return
of
income,
being
a
form
of
information
to
be
supplied
by
a
person
who
may
be
liable
to
tax,
the
general
words
preceding
it
should
be
limited
in
their
meaning
to
a
specific
person
whose
tax
liability
is
in
question.
In
my
view,
these
words
extend,
rather
than
restrict,
the
powers
given
by
the
section.
They
provide
for
information
to
be
given
in
a
special
form,
which
would
not
be
compellable
under
this
section
without
these
words.
They
are
used
here
as
they
are
generally
used
to
enlarge
the
meaning
of
the
general
words:
they
clearly
are
not
the
equivalent
of
‘‘mean
and
include”.
Cf.
Dilworth
v.
Commissioner
of
Stamps,
[1899]
A.C.
99,
where
Lord
Watson
said
at
page
105:
“It
is
not
said
in
terms
that
‘charitable
bequest’
shall
mean
one
or
other
of
the
things
which
are
enumerated,
but
that
it
shall
‘include’
them.
The
word
‘include’
is
very
generally
used
in
interpretation
clauses
in
order
to
enlarge
the
meaning
of
the
words
or
phrases
occurring
in
the
body
of
the
statute;
and
when
it
is
so
used
these
words
or
phrases
must
be
construed
as
comprehending,
not
only
such
things
as
they
signify
according
to
their
natural
import,
but
also
those
things
which
the
interpretation
clause
declares
that
they
shall
include.
But
the
word
‘include’
is
susceptible
of
another
construction,
which
may
become
imperative,
if
the
context
of
the
Act
is
sufficient
to
shew
that
it
was
not
merely
employed
for
the
purpose
of
adding
to
the
natural
significance
of
the
words
or
expressions
defined.
It
may
be
equivalent
to
‘mean
and
include’
and
in
that
case
it
may
afford
an
exhaustive
explanation
of
the
meaning
which,
for
the
purposes
of
the
Act,
must
invariably
be
attached
to
these
words
or
expressions.
’
’
Counsel
for
the
appellant
contended
that,
even
if
the
sections
were
to
be
interpreted
broadly,
it
was
not
intended,
despite
its
wide
language,
to
permit,
and
properly
interpreted
does
not
permit,
an
onerous
general
requirement
for
information
or
for
production,
but
it
is
limited
to
obtaining
specified
and
limited
particular
information
and
production.
In
my
view
the
requirement
in
question
is
not
general.
It
requires
information
of
all
transactions
of
the
Union
Bank
of
Switzerland
known
to
the
appellant
between
certain
specified
dates
and
production
of
documents
relating
to
these
transactions.
It
is
not
suggested
that
the
requirement
cannot
be
met
by
reason
of
uncertainty
as
to
what
information
is
required.
The
authorities
cited
on
this
point
are
not,
I
think,
of
assistance
in
interpreting
the
statute
before
us.
The
case
of
Burghes
v.
A.-G.,
[1911]
2
Ch.
139,
and
[1912]
1
Ch.
178,
which
was
submitted
to
be
most
closely
in
point,
is,
I
think,
distinguishable.
In
that
case,
for
the
purposes
of
the
valuation
of
all
lands
in
the
United
Kingdom
prescribed
by
Section
26
of
the
Finance
(1909-10)
Act,
1910,
Section
31(1)
provided
that
“Every
person
who
pays
rent
in
respect
of
any
land,
and
every
person
who
as
agent
for
another
person
receives
any
rent
in
respect
of
any
land,
shall,
on
being
required
by
the
Commissioners,
furnish
to
them
within
thirty
days
the
name
and
address
of
the
person
to
whom
he
pays
rent
or
on
behalf
of
whom
he
receives
rent,
as
the
case
may
be.”’
By
their
demand
the
Commissioners
required
the
plaintiff
in
that
case,
a
rent
collector,
to
give
the
names
and
addresses
of
persons
and
descriptions
and
precise
situations
of
lands
within
a
certain
borough
in
respect
of
which
rent
was
received.
The
Commissioners
did
not
specify
the
particular
parcels
in
respect
of
which
they
required
the
information.
In
the
Court
of
Appeal,
[1912]
1
Ch.
186,
Fletcher
Moulton,
L.J.,
said:
“Section
31,
under
which
the
notice
in
this
case
was
given,
is
directed
to
enabling
the
Commissioners
to
ascertain
the
names
of
the
persons
who
pay
rent
or
who
as
agents
for
others
receive
rent
in
respect
of
any
land.
Subsection
1
reads
as
follows:
(His
Lordship
read
the
subsection,
and
continued.)
I
have
no
doubt
that
the
meaning
of
this
subsection
is
that
the
Commissioners
may
in
respect
of
any
specific
land
require
from
a
person
who
pays
rent
for
such
land
the
name
and
address
of
the
person
to
whom
he
pays
it
and
from
a
person
who
as
agent
for
another
receives
any
rent
in
respect
of
such
land
the
name
and
address
of
the
person
on
whose
behalf
he
receives
such
rent.
The
inquiries
are
to
be
in
respect
of
a
specified
parcel
of
land.
If
the
language
of
subsection
1
left
any
doubt
on
my
mind
in
that
respect
it
would
be
cleared
up
by
the
language
of
subsection
4,
which
makes
the
name
and
address
so
given
sufficient
for
service
on
any
owner
or
person
interested.
This
subsection
would
be
meaningless
if
the
name
and
address
were
not
given
in
respect
of
some
specific
piece
of
land,
and
in
further
confirmation
of
this
I
may
point
out
that
in
default
of
the
address
being
ascertained
the
service
may
be
effected
by
causing
a
notice,
&e.,
to
be
put
up
in
some
conspicuous
place
on
the
land,
phraseology
which
shews
that
the
whole
of
the
subsection
and
by
implication
subsection
1
relate
to
specific
plots
of
land
with
regard
to
which
the
name
and
address
of
the
owner
or
person
interested
have
been
obtained
under
subsection
1
or
are
unknown
as
the
case
may
be.’’
For
these
reasons
I
conclude
that
the
subsection
confers
upon
the
Minister
the
power
to
require
from
the
appellant,
‘‘for
any
purpose
related
to
the
administration
or
enforcement
of
the
Act’’,
the
information
and
documents
sought
to
be
given
and
produced
as
specified
in
the
requirement.
Having
decided
that
the
Minister
has
such
power,
the
second
question
to
be
determined
is
whether
in
this
case
the
Minister
acted
for
‘
‘
any
purpose
related
to
the
administration
or
enforcement
of
the
Act’’.
I
think
it
is
obvious,
from
the
terms
of
the
Act
itself,
that
one
of
its
main
purposes
is
to
enable
the
Minister
to
determine
tax
liability
of
all
persons.
In
view
of
the
special
nature
of
income
tax,
and
the
responsibility
necessarily
placed
upon
each
person
to
disclose
his
income,
a
genuine
and
serious
enquiry
by
the
Minister
into
the
tax
liability
of
persons
would
be
an
adjunct
of
his
administrative
and
enforcement
responsibilities,
and
thus
a
purpose
contemplated
by
the
Act.
The
terms
of
the
requirement
and
the
facts
stated
in
the
Special
Case
clearly
indicate,
in
my
opinion,
that
the
requirement
was
for
such
a
purpose,
and
not
for
some
other
purpose
unrelated
to
income
tax
liability.
At
the
hearing
of
the
appeal,
counsel
for
the
appellant
submitted
that
certain
inferences
of
fact
should
be
drawn
from
the
Special
Case
as
follows
:
“(a)
The
Minister
is
proceeding
in
good
faith
in
the
sense
that
he
honestly
believes
he
is
proceeding
in
accordance
with
his
powers.
(b)
The
said
Requirement
relates
to
a
genuine
and
serious
inquiry
into
the
tax
liability
of
some
specific
person
or
persons.
(c)
The
Minister
has
reason
to
believe
that
such
person
or
persons
under
investigation
are
among
those
referred
to
in
the
Special
Case.
(d)
Neither
the
Union
Bank
of
Switzerland
nor
many
of
the
persons
referred
to
in
the
Special
Case,
para.
11
are
among
the
person
or
persons
under
investigation.”
Counsel
for
the
Attorney-General
adopted
the
first
three
of
these
submissions.
I
see
no
reason
for
refusing
to
draw
such
inferences.
I
shall
therefore
proceed
upon
the
basis
that
submissions
(a),
(b)
and
(c)
may
be
taken
as
admitted
facts
in
this
case.
Counsel
for
the
Attorney-General
would
not
admit
that
the
inference
should
be
drawn
as
stated
in
submission
(d).
I
do
not
think
that
such
inference
could
be
drawn
in
view
of
the
volume
of
transactions
indicated
in
the
special
case
and
the
words
used
in
paragraph
11
thereof,
and
the
naming
of
the
Bank
in
the
requirement.
Counsel
for
the
appellant
submitted
that
it
is
a
condition
precedent
to
the
validity
of
a
requirement
under
the
subsection
that
it
be
‘‘for
a
purpose
related
to
the
administration
or
enforcement
of
the
Act’’,
and
that
the
Minister
is
not
authorized
to
act
on
his
‘‘opinion’’,
‘‘belief’’,
or
‘‘decision’’,
but
must
in
fact
have
a
purpose
related
to
the
administration
or
enforcement
of
the
Act.
In
view
of
the
admissions
of
fact
above
referred
to,
there
is
no
dispute
as
to
the
good
faith
of
the
Minister,
or
that
the
requirement
relates
to
a
genuine
and
serious
enquiry
into
the
tax
liability
of
some
specific
person
or
persons,
or
that
the
Minister
has
reason
to
believe
that
such
person
or
persons
under
investigation
are
among
those
referred
to
in
the
special
case.
Although
the
appellant
has
not
admitted
that
the
Union
Bank
of
Switzerland
is
under
investigation,
the
Bank
is
named
in
the
requirement,
and
it
has
not
been
shown
that
the
Bank
is
not
a
person
under
investigation.
In
my
view,
from
these
admitted
and
undisputed
facts,
and
the
facts
set
forth
in
the
stated
case,
and
the
terms
of
the
requirement
itself,
it
has
conclusively
been
shown
that
the
Minister
was
acting
for
purposes
relating
to
the
administration
or
enforcement
of
the
Act.
In
reaching
this
conclusion,
I
do
not
rely
upon
the
mere
recital
contained
in
the
requirement,
but
upon
the
facts
and
circumstances
above
mentioned.
I
am
not
prepared
to
accede
to
the
proposition
put
by
counsel
for
the
Attorney-General
that
good
faith
being
admitted,
such
a
recital
by
the
Minister
must
as
a
general
rule
be
accepted.
There
is
a
difference,
I
think,
between
the
cases
where
an
official
is
empowered
to
act
when
it
appears
to
him,
or
he
is
satisfied,
or
has
reasonable
grounds
to
believe,
that
certain
conditions
exist,
and
this
case
where
it
must
be
shown
that
his
purpose
relates
to
the
administration
or
enforcement
of
the
Act.
The
first
class
of
cases
involves
a
subjective
condition,
and
the
question
as
to
whether
the
official
acting
in
an
administrative
capacity
is
in
fact
satisfied
or
has
reasonable
grounds
to
believe,
is
generally
not
subject
to
review.
In
the
present
case
the
condition
is
objective,
and
the
question
whether
he
is
acting
for
the
purpose
specified
in
the
Act,
is
subject
to
review,
even
though
he
may
be
acting
in
an
administrative
capacity.
This
question
involves
an
interpretation
of
the
Act
and
its
application
to
the
circumstances
disclosed.
However,
once
it
is
established
as
in
this
case,
that
the
Minister
is
acting
for
the
purposes
specified
in
the
Act,
his
acts
within
this
scope
are
administrative
and
not
judicial,
and
as
such
are
not
subject
to
review.
The
question
whether
the
Minister
in
performing
his
duties
has
placed
upon
the
appellant
an
unnecessarily
onerous
burden,
would
not,
in
my
opinion,
be
subject
to
review.
In
Nakkuda
Ali
v.
Jayaratne,
[1951]
A.C.
66,
the
Privy
Council
considered
a
regulation,
No.
62,
of
the
Defence
(Control
of
Textiles)
Regulations,
1945,
of
Ceylon.
The
Controller
of
Textiles
was
empowered
to
cancel
a
textile
licence
‘
where
the
Controller
has
reasonable
grounds
to
believe
that
any
dealer
is
unfit
to
be
allowed
to
continue
as
a
dealer’’.
The
Controller
cancelled
the
licence
of
the
respondent
in
the
appeal.
It
was
held
that
the
words
in
the
regulation
were
to
be
treated
as
imposing
a
condition
that
there
must
in
fact
exist
such
reasonable
grounds,
known
to
the
Controller,
before
he
could
validly
exercise
the
power
of
cancellation.
It
was
further
held,
however,
that
the
Controller
was
not
acting
in
a
judicial
capacity.
Lord
Radcliffe
said
at
page
78:
‘‘In
truth
when
he
cancels
a
licence
he
is
not
determining
a
question;
he
is
taking
executive
action
to
withdraw
a
privilege
because
he
believes,
and
has
reasonable
grounds
to
believe,
that
the
holder
is
unfit
to
retain
it.
But,
that
apart,
no
procedure
is
laid
down
by
the
regulation
for
securing
that
the
licence
holder
is
to
have
notice
of
the
Controller’s
intention
to
revoke
the
licence,
or
that
there
must
be
any
inquiry,
public
or
private,
before
the
Controller
acts.
The
licence
holder
has
no
right
to
appeal
to
the
Controller
or
from
the
Controller.
In
brief,
the
power
conferred
on
the
Controller
by
reg.
62
stands
by
itself
on
the
bare
words
of
the
regulation
and,
if
the
mere
requirement
that
the
Controller
must
have
reasonable
grounds
of
belief
is
insufficient
to
oblige
him
to
act
judicially,
there
is
nothing
else
in
the
context
or
conditions
of
his
jurisdiction
that
suggests
that
he
must
regulate
his
action
by
analogy
to
judicial
rules.
For
these
reasons
their
Lordships
are
of
opinion
that
the
case
of
Abdul
Thassim,
48
C.N.L.R.
121,
was
wrongly
decided
on
this
point,
and
that
the
respondent’s
argument
that
he
is
not
amenable
to
a
mandate
in
the
nature
of
certiorari
in
respect
of
action
under
reg.
62
must
prevail.
That
in
itself
is
sufficient
to
dispose
of
the
appeal.”
The
appeal
should
be
dismissed.
The
appellant
will
undoubtedly
be
put
to
much
inconvenience
and
expense
in
complying
with
the
requirement,
and
the
appellant
is
not
itself
under
investigation.
In
view
of
these
considerations
there
should
be
no
costs
in
the
appeal.
SCHROEDER,
J.A.:—The
plaintiff
bank
appeals
from
the
judgment
of
Morand,
J.,
pronounced
on
May
1,
1961,
whereby
he
dismissed
the
plaintiff’s
action
for
the
declaratory
relief
sought
by
it
and
ordered
the
plaintiff
to
provide
the
information
and
to
produce
the
documents
demanded
by
the
terms
of
a
written
requirement
signed
by
the
assistant
Deputy
Minister
of
National
Revenue
for
Taxation.
When
the
bank
received
the
requirement
of
the
assistant
Deputy
Minister,
it
sought
the
advice
of
its
solicitors,
since
compliance
with
its
terms
involved
the
disclosure
of
information
of
a
highly
confidential
nature
not
only
as
between
the
plaintiff
bank
and
its
immediate
customer,
the
Union
Bank
of
Switzerland,
but
also
as
between
the
latter
institution
and
its
customers
who
may
or
may
not
have
been
resident
in
Canada,
and
therefore
not
liable
under
its
income
tax
law.
Having
concluded
that
the
obligation
sought
to
be
imposed
upon
it
was
of
highly
doubtful
validity,
and
being
desirous
of
avoiding
prosecution
for
the
penalties
of
non-observance
of
the
requirement,
the
plaintiff
instituted
this
action
endorsing
the
writ
of
summons
as
follows:
“The
Plaintiff’s
claim
is
for
a
declaration
that
it
is
not
under
any
obligation
to
furnish
the
information
or
produce
the
documents
relating
to
the
accounts
of
its
customer,
The
Union
Bank
of
Switzerland,
called
for
by
the
Requirement
for
Information
and
Production
of
Documents
hereinafter
described,
that
the
said
Requirement
is
unauthorized
and
is
of
no
force
or
effect
and
that
the
Plaintiff
is
not
subject
to
the
penalty
threatened
therein
for
failure
to
comply
therewith.
The
said
Requirement
is
contained
in
a
registered
letter
dated
August
17th
1960,
addressed
to
The
General
Manager
of
the
Plaintiff,
signed
by
the
Assistant
Deputy
Minister
of
National
Revenue
for
Taxation,
and
purports
to
require
the
Plaintiff,
for
purposes
related
to
the
administration
or
enforcement
of
the
Income
Tax
Act,
pursuant
to
the
provisions
of
Section
126(2)
of
the
said
Act,
to
furnish
complete
information
and
produce
all
documents
relating
to
the
accounts
of
the
Plaintiff’s
customer,
The
Union
Bank
of
Switzerland.
The
Plaintiff’s
claim
is
against
The
Attorney
General
of
Canada
as
representing
Her
Majesty
the
Queen
in
right
of
Canada.’
It
is
evident
that
the
solicitors
for
the
Attorney-General
recognized
the
reasonableness
and
soundness
of
the
plaintiff’s
attitude,
for
both
parties
concurred
in
stating
the
question
of
law
arising
out
of
the
premises
in
the
form
of
a
special
case
for
the
opinion
of
the
Court.
The
judgment
in
appeal
is
founded
upon
the
facts
as
set
out
in
the
special
case
and
upon
the
terms
of
the
requirement
of
the
Assistant
Deputy
Minister
of
National
Revenue
for
taxation
attached
thereto
as
Exhibit
A.
It
will
be
convenient
at
this
time
to
set
out
those
terms
and
the
question
of
law
propounded
for
the
Court’s
opinion,
and
it
is
reproduced
hereunder
:
[For
terms
and
question
of
law
referred
to,
see
pp.
41
to
43.]
Exhibit
A,
attached
to
and
forming
part
of
the
Special
Case,
being
the
requirement
for
information
and
production
of
documents,
reads
as
follows:
[For
terms
of
Exhibit
A
referred
to,
see
pp.
48
to
5.
I
The
Assistant
Deputy
Minister
in
transmitting
the
written
request
to
the
plaintiff
bank
purported
to
do
so
in
exercise
of
the
powers
conferred
upon
the
Minister
by
the
terms
of
Section
126(2)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148,
which
reads
as
follows:
‘126.
(2)
The
Minister
may,
for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act,
by
registered
letter
or
by
a
demand
served
personally,
require
from
any
person
(a)
any
information
or
additional
information,
including
a
return
of
income
or
a
supplementary
return,
or
(b)
production,
or
production
on
oath,
of
any
books,
letters,
accounts,
invoices,
statements
(financial
or
otherwise)
or
other
documents,
within
such
reasonable
time
as
may
be
stipulated
therein.’’
References
should
also
be
made
to
Section
116(1)
and
Section
117(1)
(f)
which
are
relevant
for
consideration.
Section
116(1)
reads:
“116.
(1)
The
Minister
shall
administer
and
enforce
this
Act
and
control
and
supervise
all
persons
employed
to
carry
out
or
enforce
this
Act
and
the
Deputy
Minister
of
National
Revenue
for
Taxation
may
exercise
all
the
powers
and
perform
the
duties
of
the
Minister
under
this
Act.
’
’
Section
117(1)
(f)
reads:
“117.
(1)
The
Governor
in
Council
may
make
regulations
(f)
authorizing
a
designated
officer
or
class
of
officers
to
exercise
powers
or
perform
duties
of
the
Minister
under
this
Act.”
Regulations
were
passed
pursuant
to
the
provisions
of
the
latter
section
and
by
Regulation
900(1)
the
power
to
make
requirements
under
the
provisions
of
Section
126(2)
was
extended
to
the
Assistant
Deputy
Minister.
By
the
terms
of
Regulation
900(2)
(k),
it
was
further
extended
to
officials
of
the
department
holding
the
office
of
Director
of
Taxation
in
a
Taxation
District.
Regulation
900(3)
(d)
confers
the
same
power
on
the
Director
and
Assistant
Director
of
the
Legal
Branch,
and
by
Regulation
400(4)
(b)
it
was
extended
to
the
Chief
Investigator
and
the
Assistant
Chief
Investigator
of
the
Department.
Attention
should
be
directed
to
the
fact
that
the
requirement
in
question
admittedly
did
not
relate
in
any
way
to
the
administration
or
enforcement
of
the
Income
Tax
Act
with
respect
to
the
liability
for
tax
of
the
plaintiff
bank
itself.
Moreover,
it
was
admitted
in
paragraph
11
of
the
Stated
Case
that
the
information
to
be
gathered
together
and
produced
to
comply
with
the
said
requirement,
included
a
great
deal
of
private
information
in
respect
of
the
business
and
affairs
of
the
Union
Bank
of
Switzerland
and
of
many
other
corporations
and
individuals,
some
resident
in
Canada
and
some
not
resident
in
Canada.
It
need
hardly
be
argued
that
the
exercise
of
the
powers
conferred
by
the
terms
of
Section
126(2)
are
conditional
upon
the
existence
of
a
purpose
‘
‘
related
to
the
administration
or
enforcement
of
this
Act’’.
That
section
is
couched
in
words
of
the
widest
signification
and
insofar
as
the
obligation
expressed
in
those
broad
terms
is
sought
to
be
imposed
upon
a
person
who
is
not
himself
a
tax
delinquent,
its
far-reaching
and
extraordinary
implications,
should
those
words
be
given
unlimited
scope
and
meaning,
afford
the
gravest
cause
for
pause
and
demand
the
most
serious
consideration
of
the
character
and
extent
of
the
authority
which
a
Government
official
claims
the
right
to
exercise
against
the
bank
and
its
customer
in
this
instance.
Counsel
for
the
Attorney-General
contends
that
the
words
of
the
section
are
clear
and
unambiguous
and
should
be
given
a
literal
interpretation.
He
argues
that
so
construed,
the
section
plainly
constitutes
authority
for
the
demand
made
upon
the
plaintiff
bank
without
further
qualification
or
modification.
For
the
plaintiff
it
is
argued
that
upon
the
true
construction
of
the
words
of
Section
126(2),
despite
the
wide
language
in
which
it
is
couched,
the
powers
conferred
thereby
must
be
confined
within
reasonable
limits,
to
the
extent,
at
least,
of
not
permitting
an
onerous
general
requirement
for
information
or
for
production,
but
restricting
its
exercise
to
the
immediate
objective
of
obtaining
specified
and
defined
information
and
production;
that
the
words
‘‘for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act
’
’
constitute
a
condition
precedent
to
the
validity
of
a
requirement
issued
under
the
section,
and
it
is
not
sufficient
that
the
Minister
or
other
official
entertains
an
opinion
or
belief,
or
has
come
to
a
decision
that
that
purpose
exists;
hence
its
existence
is
not
established
by
the
mere
declaration
of
the
Minister
or
the
departmental
officer
exercising
his
powers,
but
the
Court
must
be
convinced
that
the
condition
precedent
has
in
fact
been
satisfied.
The
latter
contention
is
challenged
by
counsel
for
the
Attorney-General
who
maintains
that
the
powers
conferred
upon
the
Minister
and
the
other
officials
mentioned
are
executive
or
administrative
in
character,
and
since
they
involve
questions
of
opinion
or
policy,
of
which
the
Minister
or
his
authorized
officials
are
the
sole
judges,
he
or
they
are
not
bound
by
any
fixed
or
objective
standards
reviewable
by
a
Court
so
long
as
they
act
in
good
faith.
Whatever
may
be
the
true
scope
or
extent
of
the
powers
which
Parliament
intended
to
bestow
upon
the
Minister
and
the
officials
designated
in
the
Act
or
the
regulations,
one
is
impressed
2”
limine
with
the
realization
that
if
the
claim
made
for
the
wide
and
unlimited
construction
of
these
words
should
be
given
effect,
the
most
extraordinary
and
far-reaching
results
would
follow
in
the
wake
of
any
attempt
on
the
part
of
these
officers
to
roam
unchecked
in
the
field
of
private
enterprise,
and
doubts
arise
at
once
as
to
whether
Parliament
could
have
intended
to
grant
such
unbridled
power
to
a
public
servant
and
in
particular,
to
one
below
the
rank
of
a
Minister
of
the
Crown,
especially
in
time
of
peace.
These
doubts
are
increased
upon
consideration
of
the
fact
that
the
requirement
under
review
does
not
relate
in
any
way
to
the
administration
or
enforcement
of
the
Income
Tax
Act
as
against
the
plaintiff
bank
in
respect
of
its
own
tax
liability.
Since
the
Union
Bank
of
Switzerland
is
a
foreign
corporation
having
no
office
in
Canada
and
therefore
a
non-resident,
it
is
not
liable
for
income
tax
under
the
provisions
of
the
Income
Tax
Act
except
in
respect
of
dividends
payable
to
it
upon
its
holdings
in
corporations
resident
or
doing
business
in
this
country,
which
would
be
subject
to
a
15%
withholding
tax.
But
in
those
instances
the
authorities
would
look
to
the
resident
Canadian
corporations
for
payment
of
that
particular
tax
since,
under
the
terms
of
the
Act,
they
are
obliged
to
withhold
it
and
pay
it
over
to
the
Department
of
National
Revenue.
It
should
be
observed
here
that
a
non-resident
person
who
carried
on
business
in
Canada
at
any
time
in
the
year
is
liable
for
income
tax
under
the
provisions
of
Section
2(2)
(b)
of
the
Act,
and
by
the
terms
of
Section
31(1)
for
the
purposes
of
the
Act,
a
nonresident
person’s
taxable
income
earned
in
Canada
for
a
taxation
year
is:
“
(a)
the
part
of
his
income
for
the
year
that
may
reasonably
be
attributed
to
the
duties
performed
by
him
in
Canada
or
the
business
carried
on
by
him
in
Canada.
’
’
The
word
“business”
as
used
in
this
subsection
and
in
Section
2(2)
(b)
imports
‘‘something
which
is
followed
and
which
occupies
time,
attention,
and
labour
for
profit’’
as
the
word
is
defined
by
Osler,
J.A.,
in
The
Rideau
Club
v.
The
Corporation
of
the
City
of
Ottawa
(1907),
15
O.L.R.
118
at
page
122,
adopted
and
applied
by
this
Court
in
City
of
London
v.
London
Club
Ltd.,
[1952]
O.R.
177.
There
is
nothing
in
the
formal
requirement
addressed
to
the
plaintiff
which
suggests
in
the
vaguest
or
remotest
way
how
or
why
the
Union
Bank
of
Switzerland,
manifestly
a
non-resident
corporation,
is
said
to
be
taxable
;
nor
is
it
suggested
that
it
has
ever
been
required
to
file
an
income
tax
return.
For
the
appellant,
great
emphasis
is
laid
upon
the
admission
that
the
information
to
be
gathered
and
produced
in
compliance
with
the
terms
of
the
departmental
requirement
includes
much
private
information
in
respect
of
the
business
and
affairs
not
only
of
the
Union
Bank
of
Switzerland
but
of
many
other
corporations
and
individuals,
some
residents,
and
others
nonresidents
of
this
country.
It
follows
that
as
to
the
Union
Bank
of
Switzerland
and
its
non-resident
customers
there
cannot
exist
a
purpose
related
to
the
administration
or
enforcement
of
the
Act,
and
the
mere
ipse
dixit
of
the
Minister
or
his
designated
officials
cannot
in
law
create
that
essential
condition,
if
it
is
essential
to
the
validity
of
the
requirement.
Counsel
for
the
Attorney-General,
on
the
other
hand,
makes
the
widest
possible
claims
for
the
scope
and
extent
of
the
powers
created
by
provisions
of
Section
126(2)
and
goes
so
far
as
to
contend
that
that
section
by
its
terms
authorizes
what
has
been
referred
to
in
the
course
of
argument
as
a
“fishing
expedition’’;
that
so
long
as
it
is
declared
by
the
Minister
or
a
designated
official
that
the
requirement
is
for
a
purpose
related
to
the
administration
or
enforcement
of
the
Act,
its
terms
must
be
obeyed
even
if
the
investigation
is
purely
exploratory
in
its
character
and
essence,
i.e.,
something
comparable
to
a
roving
commission
for
the
purpose
of
discovery.
These,
then,
are
the
broad
issues
as
they
are
stated
by
the
parties.
I
am
unable
to
assent
to
the
appellant’s
submission
that
Section
126(2)
should
be
held
to
apply
only
to
information
and
production
of
documents
relating
to
the
possible
liability
for
income
tax
of
the
person
to
whom
the
requirement
is
addressed
and
not
to
the
attainment
of
information
and
production
of
documents
from
persons
whose
liability
to
tax
is
not
in
question
although
the
information
or
production
required
might
affect
the
liability
for
income
tax
of
third
persons.
Prima
facie
that
would
seem
to
be
implied
by
the
terms
of
Section
126(2)
(a),
since
one
can
hardly
envisage
a
person
other
than
a
taxpayer
or
his
agent
who
is
in
possession
of
information
which
would
enable
him
to
make
a
complete
or
partial
income
tax
return
on
behalf
of
the
taxpayer.
Section
126(2)
(b),
however,
is
couched
in
language
which
supports
a
very
much
wider
construction.
If
there
were
any
doubt
upon
the
point
it
is
resolved
by
a
reference
to
Section
126A(2)
relating
to
a
requirement
directed
to
a
lawyer
and
which
may
impugn
the
solicitor
and
client
privilege
existing
with
respect
to
material
documents
or
information.
I
entertain
no
doubt
upon
that
point.
Adverting
now
to
the
words
of
Section
126(2)
(b),
which
are
relied
upon
as
authorizing
the
requirement
under
consideration,
should
they
be
so
construed
as
to
be
applied
without
limitation?
Apart
from
such
a
statutory
obligation,
no
banker,
broker
or
confidential
agent
or
representative
of
any
person
or
corporation
could
be
compelled
to
make
a
disclosure
of
his
customers”
or
his
principals’
private
affairs,
except
in
a
court
of
competent
Jurisdiction
or
before
a
judicial
officer
authorized
by
law,
and
then
only
within
certain
prescribed
limits
governed
and
controlled
by
such
factors
as
relevance
to
an
identified
matter
in
issue
and
considerations
as
to
the
admissibility
of
evidence.
If
Parliament
intended
to
make
such
a
great
inroad
upon
well-
recognized
and
well-settled
rights
or
immunities,
one
would
expect
it
to
say
so
in
language
that
would
leave
no
room
for
doubt
or
obscurity
upon
the
question.
There
is
no
want
of
authority
for
the
proposition
that
the
Court
is
warranted
in
putting
a
limitation
upon
the
construction
of
wide
and
general
words
used
in
a
statute
in
order
to
give
effect
to
what
it
deems
to
be
the
real
intention
of
the
legislators.
Where,
as
here,
it
is
urged
that
a
literal
construction
must
be
placed
on
general
words
conferring
such
extraordinarily
wide
and
sweeping
powers
upon
a
Minister
or
lower
government
official,
powers
which
in
peacetime
are
wholly
unprecedented,
it
is
right
and
proper
not
only
to
look
at
the
terms
of
Section
126(2)
(b)
upon
which
the
alleged
authority
is
founded,
but
at
any
other
provision
found
in
connection
therewith
and
which
may
throw
light
upon
it,
to
see
if
they
afford
some
indication
that
those
general
words
were
not
intended
to
be
applied
without
some
reasonable
limitation.
It
is
impossible
to
read
Section
126(1)
or
126(2)
(a)
as
not
being
confined
in
their
application
to
a
definitely
ascertained
and
identified
person
or
corporation.
The
terms
of
Section
126(2)
(b)
which
may
extend
not
only
to
the
person
against
whom
Section
126(2)
(a)
is
aimed,
but
as
well
to
any
person
who
by
production
or
production
on
oath
of
any
books,
letters,
accounts,
invoices,
statements
(financial
and
otherwise)
or
other
documents
may
further
the
investigation
into
the
affairs
of
the
person
or
persons
directly
affected
by
the
terms
of
Section
126(2)
(a)—the
person
whose
liability
for
income
tax
is
the
subject
of
investigation—should
be
likewise
restricted
in
the
scope
of
their
operation.
Further
light
is
thrown
upon
the
scope
and
meaning
of
Section
126(2)
(b)
by
the
provisions
of
Section
126A
for
unless
a
solicitor
was
made
aware
of
the
identity
of
the
person
as
to
whom
information
was
sought,
he
could
not
determine
whether
or
not
that
person’s
rights
came
within
the
protection
of
the
solicitor
and
client
privilege,
and
indeed
Section
126A(2)(b)
refers
in
express
terms
to
a
‘‘named
client”?
of
the
solicitor.
The
legislators
having
taken
such
pains
to
preserve
the
solicitor
and
client
privilege,
cannot
have
intended
to
give
the
Minister
or
lesser
officials
the
power
to
order
the
banks
of
Canada
to
open
for
inspection
or
to
make
copies
of
all
their
books
and
records
within
this
country’s
territorial
limits
without
either
specifying
the
person
or
persons
whose
liability
is
under
investigation
or
otherwise
particularizing
the
information
sought,
through
the
simple
expedient
of
having
an
official
merely
declare
that
the
requirement
was
for
a
purpose
related
to
the
administration
or
enforcement
of
the
Act.
It
may
be
that
at
most
the
official
merely
entertains
the
belief
that
he
might
thereby
discover
names
of
tax
delinquents
who
have
failed
to
make
returns
or
who
have
made
faulty
or
inaccurate
returns.
It
is
no
answer
to
say
that
‘Brutus
is
an
honourable
man’’,
for
there
is
always
a
danger
that
the
official
may
be
labouring
under
a
misconception
of
his
powers
and
functions
and
he
may
mistakenly
decide
that
matters
very
remote
from
an
immediate
objective
falling
within
the
compass
of
the
practical
administration
and
enforcement
of
the
Act
are
legally
enforceable
against
the
subject.
The
implications
arising
from
these
hypothetical
circumstances
assume
an
even
more
alarming
aspect
when
it
is
considered
that
the
person
to
whom
the
requirement
is
addressed
is
punishable
either
by
the
imposition
of
a
substantial
fine
or
by
a
term
of
imprisonment
under
the
terms
of
Section
131(2),
if
he
fails
to
comply
with
the
demands
set
forth
in
the
requirement.
I
am
not
at
all
convinced
that
Parliament
ever
intended
to
confer
such
tyrannical
and
despotic
powers
upon
the
Minister,
much
less
that
it
intended
to
clothe
a
lesser
official
with
such
untrammelled
authority.
The
contextual
influence
of
the
other
provisions
of
the
statute
to
which
I
have
referred
require
that
Section
126(2)
(b)
be
construed
as
authorizing
a
demand
for
information
or
production
either
with
reference
to
a
specified
person
or
corporation
or
that
it
be
otherwise
particularized,
in
contradistinction
to
a
requirement
stated
without
particularity
and
in
such
vague
and
general
terms
as
to
leave
no
doubt
that
its
real
purpose
is
to
launch
a
‘‘fishing
expedition”,
a
proceeding
which,
in
my
view,
the
statute
neither
authorizes
nor
requires.
To
the
extent
that
the
scope
and
meaning
of
the
words
of
Section
126(2)
(b)
are
doubtful
in
the
sense
which
I
have
indicated,
there
is
an
ambiguity
which
justifies
the
Court
in
placing
upon
the
statute
a
construction
which
will
not
result
in
injustice,
oppression,
hardship,
or
inconvenience.
The
rule
of
construction
which
calls
for
an
interpretation
according
to
the
plain
ordinary
meaning
of
the
language
used,
admits
of
certain
exceptions
and
the
case
at
bar
presents
a
striking
instance
of
a
case
in
which
it
would
be
vindicable
to
depart
from
that
rule.
As
I
see
it,
the
words
are
capable
of
two
constructions,
and
the
principle
to
be
deduced
from
the
judgment
of
Bowen,
L.J.,
in
Wandsworth
Board
of
Works
v.
United
Telephone
Company,
13
Q.B.D.
904,
has
a
peculiar
application
here.
In
that
case
the
learned
jurist
stated
at
page
920:
If
a
word
in
its
popular
sense,
and
read
in
an
ordinary
way,
is
capable
of
two
constructions,
it
is
wise
to
adopt
such
a
construction
as
is
based
upon
the
assumption
that
Parliament
merely
intended
to
give
such
power
as
was
necessary
for
carrying
out
the
objects
of
the
Act
and
not
to
give
any
unnecessary
powers.
’
’
If
the
words
are
susceptible
of
a
reasonable
and
an
unreasonable
construction,
the
former
construction
should
prevail:
Boon
v.
Howard,
L.R.
9
C.P.
277,
per
Keating,
J.,
at
page
308;
A.-G.
Ontario
v.
National
Trust
Co.
Ltd.,
[1931]
O.R.
122,
per
Middleton,
J.A.,
at
page
136
(the
latter
judgment
later
reversed
by
the
Privy
Council,
[1931]
A.C.
818).
Having
due
regard
to
the
object
of
the
enactment
and
the
practical
effect
attributed
to
it
by
the
opposing
submissions
of
counsel,
I
entertain
no
doubt
that
if
the
powers
conferred
by
Section
126(2)
(b)
are
confined
within
the
limits
which
I
have
indicated,
the
real
object
of
the
legislation,
namely
to
facilitate
enforcement
of
its
provisions
against
a
defaulting
taxpayer
in
the
due
administration
of
the
Act,
will
be
adequately
met
and
its
effectiveness
will
not
be
destroyed.
It
is
not
necessary,
in
my
view,
so
to
construe
the
section
as
to
impose
onerous
police
duties
upon
subjects
of
the
state
who
are
not
themselves
delinquents,
and
to
force
them
at
their
own
considerable
cost
and
expense
to
do
work
for
the
performance
of
which
a
veritable
host
of
government
employees
are
being
paid
out
of
the
public
coffers.
The
Special
Case
is
silent
upon
the
question
as
to
whether
the
Union
Bank
of
Switzerland
was
ever
required
to
file
an
income
tax
return
in
accordance
with
the
provisions
of
Section
126(2)
(a),
and
it
would
indeed
be
singular
if
the
provisions
of
Section
126(2)
(b)
were
resorted
to
by
the
Minister
or
his
deputy
before
he
had
first
made
a
demand
upon
the
Union
Bank
under
the
former
subsection.
This
again
would
stronely
suggest
that
the
requirement
in
question
was
made
to
launch
a
fishing
expedition
of
unlimited
scope
which,
in
my
view,
the
statute
does
not
authorize.
A
striking
example
of
the
insistence
of
the
Courts
upon
the
authorities
stating
with
particularity
the
information
required
by
legislation
of
this
type
is
to
be
found
in
Burghes
v.
A.-G.,
[1912]
1
Ch.
178,
where
it
was
held
that
a
form
sent
out
by
government
commissioners
requiring
certain
information
of
a
rent.
collector
was
wholly
unauthorized,
inasmuch
as
it
did
not
specify
particular
parcels
of
land
in
respect
of
which
he
was
required
to
furnish
names
and
addresses,
and
inasmuch
as
it
also
required
the
person
to
whom
it
was
addressed
to
give
the
descriptions
and
precise
situations
of
the
lands
in
respect
of
which
rent
was
paid
or
received.
F'arwell,
L.J.,
stated
at
page
188
:
‘The
Commissioners
in
making
valuations
have
necessarily
to
deal
with
specific
parcels
of
land
in
detail
:
as
appears
from
their
own
Form
4
they
have
no
difficulty
in
extracting
from
the
rate-books
the
names
of
every
occupier
of
property
and
its
description,
situation,
extent
and
rateable
value.
If
they
desire
information
as
to
the
ownership
of
any
particular
property
they
can
inquire
of
the
occupier
of
such
land
to
whom
he
pays
rent
in
respect
of
it,
and
if
the
answer
shews
only
the
name
of
an
estate
agent,
further
inquiry
can
be
made
from
such
agent.
An
army
of
officials
to
make
such
inquires
has
been
appointed
by
the
Government
at
a
cost
to
the
country
of
between
£300,000
and
£400,000
a
year.
It
is
admitted
that
the
officials
usually
fill
up
the
particulars
of
the
property,
but
it
is
said
that,
if
they
fail
to
do
the
work
for
which
they
are
paid
by
the
public,
other
members
of
the
public
can
be
compelled
to
incur
trouble
and
expense
to
supply
their
deficiencies.
It
would
require
very
plain
words
in
the
Act
to
persuade
me
that
the
Legislature
intended
to
impose
such
a
corvée,
and
that
too
not
upon
the
landowners
who
are
taxed,
but
upon
third
persons
who
have
nothing
but
an
official
or
business
connection
with
the
land.”
A
very
useful
analogy
may
be
drawn
between
the
present
case
and
a
series
of
cases
having
to
do
with
the
application
of
procedural
rules
relating
to
production
and
discovery
of
documents
in
the
hands
of
third
persons,
or
the
attendance
of
such
persons
in
response
to
a
subpoena
duces
tecum.
I
refer
to
these
eases
as
illustrating
the
strictness
with
which
the
Courts
always
protected
third
parties
who
were
strangers
to
the
litigation,
and
as
demonstrating
the
Court’s
insistence
upon
particularity
in
the
description
of
documents
required
to
be
produced
and
exercising
care
to
compel
strict
adherence
to
rules
as
to
relevancy
and
admissibility.
The
authorities
which
I
wish
to
cite
on
this
point
are
as
follows:
Burchard
v.
Macfarlane
Ex
Parte
Tindall
and
Dryhurst,
[1891]
2
Q.B.
241
(C.A.)
;
Harcourt
v.
Homer
L.
Gibson
&
Co.
Ltd.,
40
O.W.N.
95;
Elder
v.
Carter
(1890),
25
Q.B.D.
194
(C.A.)
;
A.-G.
v.
Wilson,
9
Sim.
526;
59
E.R.
461;
47
R.
R.
305;
Lee
v.
Angas
(1866),
2
L.R.
Eq.
59.
The
above
cited
cases
were
concerned
mainly
with
procedural
rules
and
their
application,
but
in
Radio
Corporation
of
America
v.
Rauland
Corporation,
[1956]
1
All
E.R.
549,
the
Court
of
Appeal
in
England
considered
and
applied
the
same
principles
upon
an
application
made
pursuant
to
a
statute,
namely,
the
Foreign
Tribunals
Evidence
Act,
1856.
Letters
rogatory
had
been
granted
in
the
course
of
pre-trial
discovery
proceedings
in
the
United
States
of
America
to
enable
the
defendants
in
the
proceedings
to
obtain
discovery
of
documents
from
two
English
corporations
and
discovery
of
documents
and
oral
evidence
from
the
directors
of
those
companies.
In
granting
letters
rogatory
the
judge
of
the
American
District
Court
stated
among
his
reasons
:
‘
‘
It
seems
obvious
that
examination
of
the
officers
and
agents
of
alleged
co-conspirators
may
lead
to
the
discovery
of
relevant
evidence,
and
that
is
all
that
is
required.”
Accordingly,
an
application
was
made
for
an
order
for
the
disclosure
of
certain
documents
by
the
English
companies
and
for
the
examination
on
oath
of
certain
directors
under
Section
1
of
the
Foreign
Tribunals
Evidence
Act,
on
the
ground
that
‘‘a
Court
of
competent
jurisdiction
in
a
foreign
country
before
which
a
civil
or
commercial
matter
was
pending
was
desirous
of
obtaining
the
testimony
in
relation
to
such
matter’’
of
witnesses
in
England.
The
application
failed
because
it
was
held
that
the
words
‘‘testimony
in
relation
to
such
matter’’
meant
testimony
relevant
to
the
issues
to
be
tried
in
the
foreign
action
and
did
not
extend
to
other
material
the
disclosure
of
which
merely
might
lead
to
a
line
of
inquiry
which
itself
might
disclose
relevant
testimony,
and
it
had
been
made
apparent
that
the
purpose
was
merely
to
obtain
discovery
of
material
which
might
lead
to
the
obtaining
of
evidence
relevant
to
the
issues
ultimately
to
be
tried
by
the
foreign
court.
Goddard,
C.J.,
stated
:
“It
is
an
endeavour
to
get
in
evidence
by
examining
people
who
may
be
able
to
put
the
parties
in
the
way
of
getting
evidence.
That
is
what
we
should
call
mainly
a
fishing
proceeding,
which
is
never
allowed
in
the
English
courts.
I
think
that
that
of
itself
would
be
a
complete
objection
and
ought
to
justify
this
court
in
refusing
to
make
the
order.”
These
cases
are
not
directly
in
point
but
they
do
lay
down
a
broad
general
policy
of
the
law
which
our
legislators
could
scarcely
have
ignored
or
overlooked.
It
is
surely
beyond
the
bounds
of
possibility
that
Parliament
could
have
intended
to
entrust
such
uncontrolled
and
arbitrary
powers
to
a.
mere
gov-
ernment
official,
when,
in
a
court
of
law,
where
there
is
every
conceivable
safeguard
thrown
around
a
third
party,
a
judge
is
compelled
by
well
settled
principles
to
keep
the
inquiry
within
carefully
circumscribed
bounds.
In
support
of
his
contention
that
the
mere
assertion
of
the
Assistant
Deputy
Minister
that
he
requires
the
information
and
production
of
documents
for
a
purpose
related
to
the
administration
or
enforcement
of
the
Income
Tax
Act
is
sufficient
to
impose
the
statutory
obligation
of
compliance
on
the
addressee
of
the
requirement,
counsel
for
the
defendant
cites
and
relies
upon
the
judgment
of
the
House
of
Lord
in
Liversidge
v.
Anderson,
[1942]
A.C.
206.
There
the
appellant
had
been
detained
under
a
regulation
of
the
Defence
(General)
Regulations
1939,
the
material
words
of
which
were
:
‘‘If
the
Secretary
of
State
has
reasonable
cause
to
believe
any
person
to
be
of
hostile
origin
or
association
and
that
by
reason
thereof
it
is
necessary
to
exercise
control
over
him,
he
may
make
an
order
against
that
person
directing
that
he
be
detained.”
The
question
before
the
House
of
Lords
was
whether
the
Secretary
of
State
when
challenged
was
called
upon
to
prove
the
reasonableness
of
his
belief
or
whether
it
was
sufficient
for
the
Secretary
of
State
to
declare
that
he
had
such
belief;
that
is
to
say,
whether
the
question
should
be
tested
objectively
or
subjectively.
If
the
latter
test
were
applicable
it
was
sufficient
for
the
Secretary
of
State
to
decide
whether
he
had
a
reasonable
cause
of
belief,
and
if
he
acted
in
good
faith
he
could
not
be
called
upon
to
disclose
to
anyone
the
facts
and
circumstances
which
induced
his
belief
or
to
satisfy
anyone
but
himself
that
those
facts
and
circumstances
constituted
a
reasonable
cause
of
belief,
as
stated
by
Lord
Macmillan
at
page
248.
Lord
Atkin,
who
dissented,
favoured
the
objective
view
but
the
subjective
view,
as
described
by
Lord
Macmillan,
was
adopted
by
the
other
law
Lords.
In
a
later
case,
Nakkuda
Ali
v.
Jayaratne,
[1951]
A.C.
66,
a
cognate
question
arose
for
consideration
and
determination.
In
that
case
the
relevant
words
were
‘‘where
the
controller
has
reasonable
grounds
to
believe
that
any
dealer
is
unfit
to
be
allowed
to
continue
as
a
dealer’’
and
it
was
held
that
those
words
were
to
be
treated
as
imposing
a
condition
that
there
must
in
fact
exist
such
reasonable
grounds
known
to
the
controller
before
he
could
validly
exercise
the
power
of
cancellation.
The
dicta
in
Inversidge
v.
Anderson
(supra)
were
discussed
in
the
Judgment
of
Lord
Radcliffe
and
I
quote
from
his
opinion
at
pages
76
and
77
as
follows:
It
would
be
impossible
to
consider
the
significance
of
such
words
as
“Where
the
Controller
has
reasonable
grounds
to
believe
.
.
.’
without
taking
account
of
the
decision
of
the
House
of
Lords
in
Liversidge
v.
Sir
John
Anderson,
[1942]
A.C.
206.
That
decision
related
to
a
claim
for
damages
for
false
imprisonment,
the
imprisonment
having
been
brought
about
by
an
order
made
by
the
Home
Secretary
under
the
Defence
(General)
Regulations,
1939,
reg.
18B,
of
the
United
Kingdom.
It
was
not
a
case
that
had
any
direct
bearing
on
the
court’s
power
to
issue
a
writ
of
certiorari
to
the
Home
Secretary
in
respect
of
action
taken
under
that
regulation:
but
it
did
directly
involve
a
question
as
to
the
meaning
of
the
words
‘If
the
Secretary
of
State
has
reasonable
cause
to
believe
any
person
to
be
of
hostile
origin
or
associations
.
.
.’
which
appeared
at
the
opening
of
the
regulation
in
question.
And
the
decision
of
the
majority
of
the
House
did
lay
down
that
those
words
in
that
context
meant
no
more
than
that
the
Secretary
of
State
had
honestly
to
suppose
that
he
had
reasonable
cause
to
believe
the
required
thing.
On
that
basis
granted
good
faith,
the
maker
of
the
order
appears
to
be
the
only
possible
judge
of
the
conditions
of
his
own
jurisdiction.
Their
Lordships
do
not
adopt
a
similar
construction
of
the
words
in
reg.
62
which
are
now
before
them.
Indeed,
it
would
be
a
very
unfortunate
thing
if
the
decision
of
Liversidge’s
case,
[1942]
A.C.
206,
came
to
be
regarded
as
laying
down
any
general
rule
as
to
the
construction
of
such
phrases
when
they
appear
in
statutory
enactments.
It
is
an
authority
for
the
proposition
that
the
words
‘if
A.B.
has
reasonable
cause
to
believe’
are
capable
of
meaning
‘if
A.B.
honestly
thinks
that
he
has
reasonable
cause
to
believe’
and
that
in
the
context
and
attendant
circumstances
of
Defence
Regulation
18B
they
did
in
fact
mean
just
that.
But
the
elaborate
consideration
which
the
majority
of
the
House
gave
to
the
context
and
circumstances
before
adopting
that
construction
itself
shows
that
there
is
no
general
principle
that
such
words
are
to
be
so
understood;
and
the
dissenting
speech
of
Lord
Atkin
at
least
Serves
as
a
reminder
of
the
many
occasions
when
they
have
been
treated
as
meaning
‘if
there
is
in
fact
reasonable
cause
for
A.B.
so
to
believe’.
After
all,
words
such
as
these
are
commonly
found
when
a
legislature
or
law-making
authority
confers
powers
on
a
minister
or
official.
However
read,
they
must
be
intended
to
serve
in
some
sense
as
a
condition
limiting
the
exercise
of
an
otherwise
arbitrary
power.
But
if
the
ques-
tion
whether
the
condition
has
been
satisfied
is
to
be
conclusively
decided
by
the
man
who
wields
the
power
the
value
of
the
intended
restraint
is
in
effect
nothing.
No
doubt
he
must
not
exercise
the
power
in
bad
faith:
but
the
field
in
which
this
kind
of
question
arises
is
such
that
the
reservation
for
the
case
of
bad
faith
is
hardly
more
than
a
formality.
Their
Lordships
therefore
treat
the
words
in
reg.
62,
‘where
the
Controller
has
reasonable
grounds
to
believe
that
any
dealer
is
unfit
to
be
allowed
to
continue
as
a
dealer’
as
imposing
a
condition
that
there
must
in
fact
exist
such
reasonable
grounds,
known
to
the
Controller,
before
he
can
validly
exercise
the
power
of
cancellation.’’
In
Co-operative
Committee
on
Japanese
Canadians
v.
A.-G.
Canada,
[1947]
A.C.
87,
Lord
Wright
stated
at
page
107:
“Their
Lordships
do
not
doubt
the
proposition
that
an
exercise
of
the
power
for
an
unauthorized
purpose
would
be
invalid,
and
the
only
question
is
whether
there
is
apparently
any
matter
which
justifies
the
judiciary
in
coming
to
the
conclusion
that
the
power
was
in
fact
exercised
for
an
unauthorized
purpose.”
In
Liversidge
v.
Anderson
(supra)
and
Rex
v.
H
alliday,
[1917]
A.C.
260,
effect
was
given
a
regulation
under
the
Defence
of
the
Realm
Act
which
permitted
the
government
to
detain
without
trial
a
person
of
alleged
‘‘hostile
origin
or
associations”?
(Rex
v.
Halliday),
and
‘‘if
the
Secretary
of
State
has
reasonable
cause
to
believe
any
person
to
be
of
hostile
origin
or
association
and
that
by
reason
thereof
it
is
necessary
to
exercise
control
over
him’’
{Liversidge
v.
Anderson).
These
regulations
gave
rise
to
acute
controversy
among
the
lawyers
of
the
day,
and
if
reliance
is
to
be
placed
on
the
judgment
in
Liversidge
v.
Anderson
{supra),
it
must
be
remembered
that
in
that
case
the
Court
was
considering
the
effect
to
be
given
to
a
regulation
passed
at
a
time
of
grave
national
peril.
It
is
important
to
note
carefully
what
Lord
Macmillan
had
to
say
in
this
connection
at
page
251
:
“But
in
a
time
of
emergency
when
the
life
of
the
whole
nation
is
at
stake
it
may
well
be
that
a
regulation
for
the
defence
of
the
realm
may
quite
properly
have
a
meaning
which
because
of
its
drastic
invasion
of
the
liberty
of
the
subject
the
courts
would
be
slow
to
attribute
to
a
peace
time
measure.
The
purpose
of
the
regulation
is
to
ensure
public
safety,
and
it
is
right
so
to
interpret
emergency
legislation
as
to
promote
rather
than
to
defeat
its
efficacy
for
the
defence
of
the
realm.
That
is
in
accordance
with
a
general
rule
applicable
to
the
interpretation
of
all
statutes
or
statutory
regulations
in
peace
time
as
well
as
In
war
time
.
.
.
I
also
note
as
indicative
of
the
abnormal
and
temporary
character
of
the
legislation
that
it
is
expressly
limited
in
duration.
With
its
expiry
the
power
of
detention
will,
of
course,
also
come
to
an
end.’’
Later
at
page
252
Lord
Macmillan
continued
:
‘‘In
the
next
place,
it
is
relevant
to
consider
to
whom
the
emergency
power
of
detention
is
confided.
The
statute
has
authorized
it
to
be
conferred
on
a
Secretary
of
State,
one
of
the
high
officers
of
State
who,
by
reason
of
his
position,
is
entitled
to
public
confidence
in
his
capacity
and
integrity,
who
is
answerable
to
Parliament
for
his
conduct
in
office
and
who
has
access
to
exclusive
sources
of
information.
In
a
question
of
interpreting
the
scope
of
a
power
it
is
obvious
that
a
wide
discretionary
power
may
more
readily
be
inferred
to
have
been
confided
to
one
who
has
high
authority
and
grave
responsibility.”
Significantly,
in
the
case
at
bar,
the
Court
is
concerned
with
peace
time
legislation
and
with
the
exercise
of
a
power
not
granted
to
a
high
officer
of
State
alone,
but
to
public
servants
of
considerably
lower
rank
and
in
a
far
less
responsible
position.
Among
the
many
rules
of
construction
which
the
courts
have
applied
in
the
interpretation
of
statutes
the
paramount
rule
remains
that
every
statute
is
to
be
expounded
according
to
its
manifest
or
expressed
intention.
Had
Parliament
intended
to
confer
upon
the
Minister
of
National
Revenue
or
his
officials
powers
as
broad
in
scope
and
as
wide
in
range
as
claimed
on
behalf
of
the
defendant,
that
intent
could
have
been
made
manifest
by
the
use
of
appropriate
language
as
e.g.
in
the
National
Powers
Act,
1945,
of
Canada,
which
provided
by
Section
2(1)
:
“The
Governor
in
Council
may
do
and
authorize
such
acts
and
things,
and
make
from
time
to
time
such
orders
and
regulations,
as
he
may,
by
reason
of
the
continued
existence
of
the
national
emergency
arising
out
of
the
war
against
Germany
and
Japan,
deem
necessary
or
advisable
for
the
purpose
of—.
..
(c)
maintaining,
controlling
and
regulating
supplies
and
services,
prices,
transportation,
use
and
occupation
of
property,
rentals,
employment,
salaries
and
wages
to
ensure
economic
stability
and
an
orderly
transition
to
conditions
of
peace;
.
.
.”
In
A.-G.
Canada
v.
Hallet
and
Carey
Ltd.
et
al.,
[1952]
A.C.
427,
this
particular
section
was
construed,
and
it
was
held,
reversing
the
judgments
in
the
Canadian
Courts,
that
the
enabling
words
there
used
conferred
deliberately
the
most
extensive
discretion
upon
the
Governor
in
Council,
and
that
it
was
not
competent
for
the
Courts
to
‘‘canvass
the
considerations
which
had
led
the
Governor
in
Council
to
deem
it
necessary
or
advisable”
to
enact
the
measures
challenged
by
the
plaintiff
whose
property
had
been
appropriated.
The
Planning
Act,
R.S.O.
1960,
c.
296,
Section
28(5),
affords
another
example
of
a
grant
by
legislation
of
an
ample
discretion
in
the
exercise
of
stated
powers.
That
section
provides:
“The
Minister
may
impose
such
conditions
to
the
approval
of
a
plan
of
subdivision
as
in
his
opinion
are
advisable
.
.
.”’
This
particular
enactment
came
before
this
Court,
differently
constituted,
in
Re
Highbury
Development
Limited,
heard
and
decided
on
October
5,
1961.
Laidlaw,
J.A.,
delivering
the
judgment
of
the
Court
commented
upon
the
effect
to
be
given
to
that
section,
and
I
quote
from
his
reasons
as
follows
:
“The
Minister
is
then
empowered
by
subsection
(5)
to
impose
such
conditions
to
the
approval
of
a
plan
of
subdivision
‘as
in
his
opinion
are
advisable’.
Certain
conditions
which
may
be
imposed
are
set
forth
in
particular
in
the
subsection
but
it
is
provided
expressly
that
the
generality
of
the
powers
vested
in
the
Minister
are
not
restricted
by
such
particularization.
Thus
it
will
be
apparent
at
once
that
the
Minister
in
the
exercise
of
his
general
powers
vested
in
him
to
impose
conditions
to
the
approval
of
a
plan
of
subdivision
is
unfettered
and
is
wholly
free
to
decide
what
conditions
‘in
his
opinion’
are
advisable.
Assuming,
as
is
proper,
that
his
opinion
is
exercised
in
good
faith
and
that
he
has
decided
what
conditions
to
the
approval
of
any
particular
plan
of
subdivision
under
consideration
by
him
are
advisable,
it
is
not
the
function
or
the
right
of
this
Court
to
review
his
judgment
or
to
determine
whether
or
not
any
condition
which
in
his
opinion
is
advisable
should
or
should
not
have
been
imposed
by
him.
Any
condition
or
conditions
deemed
advisable
in
the
opinion
of
the
Minister
to
the
approval
by
him
of
a
plan
of
subdivision
is
wholly
and
exclusively
a
matter
for
the
exercise
of
his
discretion
and
judgment
and
this
Court
cannot
substitute
its
opinion
in
that
matter
for
that
of
the
Minister.
Likewise,
where
the
Minister
has
referred
to
matter
to
the
Ontario
Municipal
Board
pursuant
to
section
34
of
The
Planning
Act
the
discretion
exercisable
by
the
Minister
may
be
exercised
by
the
Ontario
Municipal
Board
and
conditions
to
the
approval
of
a
plan
of
subdivision
which
in
its
opinion
are
advisable
may
be
lawfully
imposed
by
it
and
this
Court
cannot
interfere
with
the
proper
exercise
of
that
power.
’
’
There
is
a
marked
distinction
between
the
enabling
words
of
the
section
under
review
in
the
present
case
and
in
the
two
instances
to
which
I
have
referred.
Here
Parliament
has
deliberately
refrained
from
using
language
which
would
confer
upon
the
Minister
or
the
named
departmental
officers
such
unrestricted
discretionary
powers.
Upon
a
fair
and
proper
construction
of
the
words
used
the
“purpose
related
to
the
administration
or
enforcement
of
the
Act’’
is
not
a
purpose
which
rests
solely
upon
the
judgment
or
opinion
of
the
Minister
or
his
officers,
but
it
is
a
purpose
which
exists
in
fact,
and
one
which
is
to
be
determined
objectively
and
not
subjectively.
It
may
well
be
that
the
Assistant
Deputy
Minister
was
acting
in
good
faith
in
the
sense
that
he
honestly
believed
that
he
was
proceeding
in
accordance
with
the
powers
conferred
upon
him
by
statute;
that
the
requirement
in
question
related
to
a
genuine
and
serious
enquiry
into
the
tax
liability
of
some
identifiable
person
or
persons,
and
that
he
had
reason
to
believe
that
such
person
or
persons
were
among
those
referred
to
in
the
special
case.
Nevertheless,
I
take
the
view
that
the
words
‘‘for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act”
must
be
treated
as
imposing
a
condition
that
such
a
purpose
does
in
fact
exist.
If
the
bank
were
to
be
prosecuted
under
the
provisions
of
Section
131(2),
for
failure
to
comply
with
the
requirement
made
pursuant
to
Section
126,
‘‘the
purpose’’
when
challenged
could
not,
in
my
opinion,
be
proven
by
the
mere
declaration
of
the
Minister
or
the
official
in
question.
The
offence
would
not
be
proven
unless
it
was
established
that
the
terms
of
the
condition
precedent
were
in
fact
satisfied,
and
the
mere
statement
of
his
belief
or
opinion
by
the
Minister
or
the
designated
official
would
not
be
sufficient
to
satisfy
that
burden.
I
would
adopt
the
language
of
Lord
Radcliffe
in
Nakkuda
AU
v.
Jayaratne
(supra),
“After
all,
words
such
as
these
are
commonly
found
when
a
legislature
or
law-making
authority
confers
powers
on
a
minister
or
official.
However
read,
they
must
be
intended
to
serve
in
some
sense
as
a
condition
limiting
the
exercise
of
an
otherwise
arbitrary
power.
But
if
the
question
whether
the
condition
has
been
satisfied
is
to
be
conclusively
decided
by
the
man
who
wields
the
power
the
value
of
the
intended
restraint
is
in
effect
nothing.
’
These
words
apply
with
particular
force
and
emphasis
to
the
questions
in
controversy
here
and
in
the
proceeding
under
review,
which
has
the
ready
concurrence
of
the
Attorney-General
as
a
desirable
method
of
having
the
question
at
issue
determined,
the
same
onus
is
cast
upon
the
defendant
as
if
the
position
of
the
parties
were
reversed
and
the
defendant
were
prosecuting
the
plaintiff
for
its
failure
to
comply
with
the
requirement’s
terms.
Moreover,
the
actual
‘‘purpose’’
being
peculiarly
within
the
knowledge
of
the
agent
or
agents
of
the
Crown,
a
contrary
ruling
upon
this
point
would
be
repugnant
to
reason
and
good
sense.
The
defendant
has
not
attempted
to
satisfy
that
burden,
but
insists
that
the
mere
assertion
of
the
minister
or
one
of
the
empowered
officials
that
the
information
or
production
is
required
for
‘‘purposes
related
to
the
administration
or
enforcement
of
the
Income
Tax
Act”
is
sufficient
under
the
statute
to
impose
the
obligation
of
compliance
with
the
requirement
upon
the
addressee.
That
is
a
contention
to
which
I
cannot
assent.
The
fact
that
the
Union
Bank
of
Switzerland
and
some
of
its
customers
referred
to
in
paragraph
11
of
the
special
case
are
not
and
cannot
be
among
the
persons
under
investigation
since,
being
non-residents,
they
are
not
chargeable
under
the
Income
Tax
Act,
makes
it
apparent
at
once
that
the
requirement
is
invalid
in
part,
for
there
can
be
no
‘‘purpose
related
to
the
administration
or
enforcement
of
the
Act’’
quoad
such
persons
insofar
as
the
requirement
relates
to
them;
to
that
extent,
at
least,
it
is
not
authorized
by
the
statute,
and
therefore
the
whole
of
the
requirement
addressed
to
the
plaintiff
is
invalid
in
accordance
with
the
principle
laid
down
in
Dyson
v.
A.-G.,
[1912]
1
Ch.
158.
On
that
ground
alone
the
plaintiff
is
justified
in
refusing
to
comply
with
the
exigencies
thereof.
I
should
like
to
add
just
a
word
as
to
the
procedure
which
has
been
followed
by
the
plaintiff.
In
the
early
stages
of
the
hearing
of
the
appeal
I
entertained
some
doubt
as
to
whether
or
not
an
action
for
a
declaration
should
be
entertained
since
the
making
of
the
declaration
would
be
to
pronounce
a
judgment
declaring
that
the
plaintiffs
had
or
had
not
committed
the
offence
created
by
the
terms
of
Sections
126
and
131
of
the
Income
Tax
Act:
Smith
v.
A.-G.
Ontario,
53
O.L.R.
572,
affirmed
[1924]
S.
C.R.
331,
and
A.-G.
Ontario
v.
Canadian
Wholesale
Grocers
Association,
53
O.L.R.
627.
Upon
further
consideration
my
doubts
have
been
resolved
and
I
am
now
convinced
that
in
the
present
case
the
Court
should
exercise
its
discretion
by
granting
the
declaratory
relief
sought
by
the
plaintiff.
Dyson
v.
A.-G.,
[1911]
1
K.B.
410
and
[1912]
1
Ch.
158,
and
Burghes
v.
A.-G.,
[1912]
1
Ch.
173,
[1911]
2
Ch.
139,
are
authorities
in
favour
of
this
form
of
action
as
the
most
convenient
one
for
testing
and
determining
such
questions.
Moreover,
in
the
present
case
the
Attorney-General,
far
from
opposing
this
mode
of
securing
an
adjudication
upon
the
questions
which
have
arisen,
has
concurred
with
the
plaintiff
in
the
submission
of
those
questions
to
the
Court
by
way
of
a
special
case.
This
is
precisely
the
kind
of
proceeding
which
was
also
taken
in
England
in
A.-G.
v.
National
Provincial
Bank
Limited,
44
T.L.R.
701,
for
determination
of
the
question
as
to
whether
or
not
the
defendant
bank
was
bound
to
prepare
and
deliver
certain
lists
demanded
by
the
Commissioners
of
Inland
Revenue.
Here
the
bank
does
not
desire
to
oppose
or
to
impede
the
authorities
in
any
way
but,
having
regard
to
its
duty
to
its
customers,
it
is
understandably
concerned
to
know
if
the
requirement
served
upon
it
constitutes
an
unwarranted
interference
with
rights
arising
out
of
its
relations
with
its
customers
and
is
an
attempt
to
impose
upon
it
an
obligation
which,
if
not
authorized
by
law,
would
subject
it
to
severe
censure
from
its
principals.
This
is
an
appropriate
and
convenient
way
of
testing
these
questions
without
subjecting
the
plaintiff
to
the
opprobrium
attached
to
and
flowing
from
a
prosecution
for
an
alleged
breach
of
a
public
statute
and
to
the
penalties
thereby
prescribed.
For
the
reasons
stated
I
would
allow
the
appeal,
set
aside
the
judgment
in
appeal
and
direct
that
in
place
thereof
judgment
should
issue
in
favour
of
the
plaintiff
declaring
that
it
is
entitled
to
the
declaratory
relief
for
which
it
has
prayed,
answering
the
question
propounded
for
the
opinion
of
the
Court
in
the
affirmative.
In
view
of
the
circumstances
I
would
make
no
order
as
to
costs.
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