CAMERON,
J.:—This
application,
entitled
in
the
Notice
of
Motion
as
above,
is
stated
therein
to
be
for
an
order
1.
Rescinding
the
ex
parte
order
made
on
the
9th
day
of
June,
1954,
pursuant
to
Section
126(3)
of
the
Income
Tax
Act.
2.
For
the
production
for
the
inspection
of
this
Court
of
all
documents
taken
pursuant
to
the
said
ex
parte
order
and
not
heretofore
returned
to
the
applicant.
3.
For
the
delivery
to
the
applicant
of
all
of
the
said
documents
so
seized
and
not
heretofore
returned
to
him.
4.
If
considered
necessary,
permitting
the
applicant
to
cross-
examine
Douglas
Hamilton
McAlpine
on
his
affidavit
sworn
herein
on
the
20th
day
of
May,
1954,
and
enlarging
this
application
pending
the
completion
of
such
cross-examination,
or
for
such
further
or
other
order
as
the
nature
of
this
application
may
require.
On
June
9,
1954,
an
application
was
made
ex
parte
by
the
Deputy
Minister
of
National
Revenue
for
Taxation
to
Mr.
Justice
Potter,
one
of
the
judges
of
the
Exchequer
Court
of
Canada,
for
the
approval
of
a
judge
of
that
Court
of
the
issue
of
an
authori-
zation
under
subsection
(3)
of
Section
126
of
the
Income
Tax
Act,
in
respect
of
the
taxpayer
W.
H.
Biggs
of
Hamilton,
Ontario,
and
his
residence
there.
That
subsection
is
as
follows
:
‘126.
(3)
The
Minister
may,
for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act,
with
the
approval
of
a
Judge
of
the
Exchequer
Court
of
Canada
or
of
a
superior
or
county
court,
which
approval
the
judge
is
hereby
empowered
to
give
upon
ex
parte
application,
authorize
in
writing
any
officer
of
the
Department
of
National
Revenue,
together
with
such
members
of
the
Royal
Canadian
Mounted
Police
or
other
peace
officers
as
he
calls
on
to
assist
him
and
such
other
persons
as
may
be
named
therein,
to
enter
and
search,
if
necessary
by
force,
any
building,
receptacle
or
place
for
documents,
books,
records,
papers
or
things
which
may
afford
evidence
as
to
the
violation
of
any
provision
of
this
Act
or
a
regulation
and
to
seize
and
take
away
any
such
documents,
books,
records,
papers
or
things
and
retain
them
until
they
are
produced
in
any
court
proceedings.
’
’
The
application
so
made
was
supported
by
an
affidavit
of
D.
H.
McAlpine,
an
officer
of
the
Dept.
of
National
Revenue,
Taxation
Division,
attached
to
its
Hamilton
district
office.
The
application
so
made
was
approved
by
Potter,
J.,
in
writing.
Subsequently,
under
the
authority
of
the
Minister
and
the
approval
so
granted,
the
premises
of
the
taxpayer
were
entered
and
certain
documents
and
records
were
seized
and
removed,
some
of
which
have
since
been
returned
to
the
taxpayer.
In
the
absence
of
Potter,
J.,
through
illness,
the
motion
for
the
order
set
out
above
is
now
made
before
me,
as
a
judge
of
the
Exchequer
Court
of
Canada.
Counsel
for
the
Deputy
Minister
opposed
the
application
on
the
ground
that
neither
Potter,
J.,
nor
any
other
judge
of
this
Court
has
power
to
grant
any
part
of
the
relief
claimed.
Certain
material
in
support
of
the
motion
has
been
filed
by
counsel
for
the
taxpayer,
dealing
with
the
merits
of
the
case.
No
material
was
filed
by
or
on
behalf
of
the
Deputy
Minister
in
answer
thereto,
his
counsel
intimating
that
he
was
prepared
to
argue
the
matter
only
on
the
question
of
jurisdiction;
and
that
if
his
contention
in
that
regard
were
not
upheld,
he
would
ask
leave
to
have
the
motion
adjourned
to
enable
him
to
file
such
material
as
he
might
consider
necessary.
In
the
limited
time
at
my
disposal
I
have
given
consideration
to
the
arguments
of
counsel
and
to
the
cases
cited
and
have
reached
the
conclusion
that
I
must
give
effect
to
the
contention
put
forward
on
behalf
of
the
Deputy
Minister
that
neither
Potter,
J.,
nor
any
other
member
of
this
Court,
has
power
to
rescind
the
approval
granted
by
Potter,
J.,
on
June
9,
1954.
The
other
items
of
relief
claimed
in
the
Notice
of
Motion
were
not
pressed
before
me;
in
any
event
I
think
it
is
clear
that
if
I
have
no
power
to
rescind
the
approval,
I
am
likewise
powerless
to
deal
with
the
other
matters.
It
is
to
be
noted
that
Potter,
J.,
made
no
order
of
any
sort.
What
he
did
was
to
“approve”
of
the
authorization
of
the
Minister
pursuant
to
the
terms
of
Section
126(3).
Even
if
the
matter
were
properly
before
this
Court,
I
have
serious
doubts
as
to
the
applicability
of
Rule
259
of
the
General
Rules
and
Orders
of
this
Court,
on
which
counsel
for
the
applicant
relied.
In
my
opinion,
Potter,
J.,
in
signifying
his
approval,
acted
not
by
virtue
of
the
powers
he
possessed
as
a
judge
of
this
Court,
but
as
one
of
the
persons
designated
by
Section
126(3)
of
the
Statute,
and
with
the
powers
conferred
by
that
Act
alone.
Had
any
person
other
than
a
judge
been
named,
his
powers
would
have
been
precisely
the
same
as
those
of
a
judge
acting
under
the
Statute.
The
section
does
not
purport
to
confer
any
right
of
appeal
from
a
judge
who
has
refused
or
granted
his
authorization,
or
any
right
on
any
of
the
other
judges
of
the
Court
to
review
or
rescind
any
approval
so
granted;
nor
does
it
confer
any
power
on
the
judge
who
has
given
his
approval
to
review
or
reconsider
the
matter
or
to
recall
his
approval.
In
my
opinion,
no
such
rights
or
powers
exist.
In
my
view,
the
intention
of
Parliament
was
to
confer
upon
the
judges
designated
a
discretion
to
approve
or
to
disapprove
of
the
“authorization”
of
the
Minister,
such
discretion
to
be
exercised
summarily
and
finally.
When
the
duty
delegated
to
a
judge
by
the
Statute
has
been
performed,
he
becomes
functus
officio.
Reference
may
be
made
to
Chambers
and
Canadian
Pacific
Railway
Co.
(1910-11),
20
Manitoba
Reports
277
at
279,
and
to
the
cases
there
referred
to
;
and
more
particularly
to
Canadian
Pacific
Railway
v.
Little
Seminary
Ste.
Therese,
16
S.C.R.
606
at
618-19.
For
these
reasons
I
have
reached
the
conclusion
that
the
motion
fails
and
it
will
be
dismissed
with
costs.
Motion
dismissed.
Email this Content