Muldoon,
J.:—On
September
4,
1986,
in
this
present
cause,
the
Court
pronounced
the
following
order
of
certiorari
and
prohibition:
1.
IT
IS
ORDERED
THAT
the
determination
by
the
respondent
Minister
of
National
Revenue
to
purport
to
assess
tax
as
owing
by
the
applicant
and
his
issuance
of
a
document
headed
“Notice
of
Assessment”
dated
June
13,
1985,
in
respect
of
those
taxes
allegedly
owing
by
the
applicant
and
the
document
itself
are
hereby
removed
into
this
Court
on
certiorari,
and
they
are
all
quashed;
2.
IT
IS
ORDERED
THAT
the
decision
by
the
respondent
Minister
to
issue
a
"Requirement
to
Pay”
dated
March
18,
1986,
pursuant
to
section
224
of
the
Income
Tax
Act
delivered
by
hand
to
the
Royal
Bank
of
Canada,
20
King
Street
West,
Toronto,
Ontario
respecting
taxes
allegedly
owing
by
the
applicant,
and
that
instrument
itself
are
hereby
removed
into
this
Court
on
certiorari,
and
they
are
both
quashed;
3.
IT
IS
FURTHER
ORDERED
THAT
the
decision
by
the
respondent
Minister
to
issue
a
“Requirement
to
Pay”
dated
March
18,
1986
pursuant
to
section
24
of
the
Income
Tax
Act
delivered
by
hand
to
the
Canada
Permanent
Trust,
66
Temperance
Street,
Toronto,
Ontario
respecting
taxes
allegedly
owing
by
the
applicant,
and
that
instrument
itself
are
hereby
removed
into
this
Court
on
certiorari
and
they
are
both
quashed;
4.
IT
IS
FURTHER
ORDERED
THAT
the
decision
of
the
respondent
Minister
to
issue
a
certificate
pursuant
to
section
223
of
the
Income
Tax
Act
respecting
taxes
allegedly
owing
by
the
applicant,
and
that
instrument
itself
are
hereby
removed
into
this
Court
on
certiorari,
and
they
are
both
quashed;
and
5.
IT
IS
FURTHER
ORDERED
THAT
the
respondent
Minister
and
everyone
under
his
direction
and
control
be,
and
he
is
and
they
are
prohibited
from
continuing
with
collection
proceedings
or
actions
against
the
applicant
until
it
is
lawful
and
fair
to
do
—
one
certain
criterion
for
which
being
lawful
assessment
of
Part
VIII
tax
actually
found
and
assessed
to
be
owing,
upon
assessment
of
tax
in
regard
to
applicant’s
filed
return
for
its
taxation
year
ended
February
28,
1986.
The
respondents
have
launched
an
appeal
against
the
above-mentioned
decision
and
in
the
meanwhile
they
bring
this
motion,
in
Ottawa,
pursuant,
they
say,
to
Rule
1909
for
a
stay
of
execution
of
the
above-recited
order,
"or
for
such
other
relief
against
such
order
as
may
be
granted”.
Their
motion
is
supported
by
an
affidavit
of
each
of
two
officials
of
the
Department
of
National
Revenue.
Optical's
counsel
objects
to
the
admissibility
of
those
two
affidavits
because,
as
is
admitted
by
the
respondents’
counsel,
the
two
deponents
deal
with
no
new
matters
which
were
not
already
well
known
before
the
hearing
of
Optical’s
originating
motion
on
August
15,
1986.
While
agreeing
with
that
assertion,
the
respondents’
counsel
nevertheless
argues
that
these
affidavits
are
submitted
for
the
new
and
wholly
legitimate
purpose
of
establishing
irreparable
harm
to
the
respondents
if
the
order
of
certiorari
and
prohibition
be
not
stayed
as
prayed.
This
is
a
valid
contention
and,
while
the
weight
of
the
old
straw
being
threshed
in
these
affidavits
is
slight,
they
are
nevertheless
admissible
in
these
proceedings.
Even
taking
the
affidavits
at
their
full
factual
face
value,
as
one
must
since
there
has
been
no
cross-examination,
and
giving
the
deponents'
opinions
on
the
ultimate
issue
the
appropriate
weight
which
they
carry,
those
affidavits
fall
far
short
of
discharging
the
heavy
burden
here
of
demonstrating
irreparable
harm
to
the
Crown
which
would
be
generated
by
failure
to
stay
the
order
of
certiorari
and
prohibition
herein.
However,
that
conclusion
does
not
close
off
further
consideration
of
the
operation
of
the
Federal
Court
Act
and
the
Rules,
herein.
There
is
more
to
this
matter
than
Rule
1909.
Here,
with
it,
are
other
salient
provisions:
Act:
50.(1)
The
Court
may,
in
its
discretion,
stay
proceedings
in
any
cause
or
matter,
(a)
on
the
ground
that
the
claim
is
being
proceeded
with
in
another
court
or
jurisdiction;
or
(b)
where
for
any
other
reason
it
is
in
the
interest
of
justice
that
the
proceedings
be
stayed.
(2)
[Not
applicable
herein.]
(3)
Any
stay
ordered
under
this
section
may
subsequently
be
lifted
in
the
discretion
of
the
Court.
55.
(2)
An
order
for
payment
of
money
whether
for
costs
or
otherwise
may
be
enforced
in
the
same
manner
as
a
judgment.
56.
(5)
No
execution
shall
issue
on
a
judgment
given
by
the
Court
against
the
Crown.
Rules:
341A.(1)
It
is
hereby
declared,
for
greater
certainty,
that
the
operation
of
a
judgment,
or
a
part
of
a
judgment,
whether
final
or
interlocutory,
for
anything
other
than
the
payment
of
money
(including
without
restricting
the
generality
of
the
foregoing,
a
judgment
or
part
of
a
judgment
for
a
mandamus,
an
injunction,
specific
performance
or
appointment
of
a
receiver
or
a
judgment
or
part
of
a
judgment
setting
aside
the
arrest
of
a
ship)
may,
by
the
terms
thereof,
in
the
discretion
of
the
Court,
be
suspended
pending
appeal.
(2)
Where
the
operation
of
a
judgment
or
a
part
of
a
judgment
for
anything
other
than
the
payment
of
money
has
not
been
suspended
pending
appeal
as
contemplated
by
paragraph
(1),
the
Court
may,
in
its
discretion,
make
an
order
suspending
the
operation
thereof
pending
appeal.
(3)
A
suspension
contemplated
by
this
rule
may
be
granted
upon
such
terms
or
conditions,
if
any,
as
seem
just
in
the
circumstances.
(4)
Where
the
operation
of
a
judgment
or
a
part
of
a
judgment
has
been
suspended
pending
appeal
as
contemplated
by
this
rule,
the
suspension
continues
until
the
Court
makes
an
order
cancelling
the
suspension
upon
being
satisfied
(a)
that
the
party
against
whom
the
judgment
was
given
is
not
proceeding
with
an
appeal
in
relation
thereto
to
the
Appeal
Division
or
the
Supreme
Court
of
Canada
as
expeditiously
as
possible,
(b)
that
the
judgment
or
part
of
judgment
has
been
finally
upheld
on
appeal,
or
(c)
that,
owing
to
a
change
in
circumstances
since
the
suspension
was
granted,
the
suspension
is
no
longer
justified.
[Emphasis
added.]
605.
A
judgment
against
the
Crown
shall
be
a
declaration
that
the
person
in
favour
of
whom
the
judgment
is
given
is
entitled
to
the
relief
to
which
the
Court
has
decided
that
he
is
entitled,
either
absolutely
or
upon
such
terms
and
conditions,
if
any,
as
are
just.
1213.
Execution
of
a
judgment
appealed
against
shall
be
stayed
pending
the
disposition
of
the
appeal
upon
the
appellant
(a)
giving
security
satisfactory
to
the
respondent
that,
if
the
judgment
or
any
part
thereof
is
affirmed,
the
appellant
will
satisfy
the
judgment
as
affirmed;
or
(b)
giving
such
security
and
doing
such
other
acts
and
things
as
are
required
by
order
of
the
Trial
Division
to
ensure
that,
if
the
judgment
or
any
part
thereof
is
affirmed,
the
judgment
as
affirmed
will
be
satisfied.
1800.
Where
in
any
proceeding
there
is
a
judgment
or
order
against
the
Crown
for
the
payment
of
money
for
costs
or
otherwise,
a
judge,
the
Administrator,
or
any
officer
of
the
registry
designated
for
the
purpose,
shall,
after
the
judgment
or
order
has
been
entered,
(a)
...
[not
applicable]
.
..,
(b)
...
[not
applicable]
.
.
.,
(c)
upon
the
final
disposition
of
the
appeal,
if
there
has
been
an
appeal
from
the
judgment
or
order,
or
(d)
..
.
[not
applicable]
..
.,
unless
the
judgment
or
order
has
been
quashed
on
appeal,
certify
the
tenor
and
purport
of
the
judgment
or
order
(as
varied
on
appeal,
if
it
has
been
so
varied);
and
such
certificate
shall
be
by
the
registry
transmitted
to,
or
left
at,
the
office
of
the
Deputy
Attorney
General
of
Canada.
[Emphasis
added]
1909.
A
party
against
whom
a
judgment
has
been
given
or
an
order
has
been
made
may
apply
to
the
Court
for
a
stay
of
execution
of
the
judgment
or
order
or
other
relief
against
such
judgment
or
order,
and
the
Court
may
grant
such
relief,
and
on
such
terms,
as
it
thinks
just.
[Emphasis
added.]
Rule
1800
is
noteworthy
in
that,
promulgated
in
contemplation
of
subsection
56(5)
of
the
Act
(above
recited),
it
accords
an
advantage
to
the
Crown
not
enjoyed
by
other
litigants.
The
declaration
pursuant
to
Rule
605,
which
Optical
did
not
specifically
seek
in
the
original
motion,
is
without
doubt
to
be
implied
in
the
order
therein
made
by
the
Court,
and
against
which
the
Crown
and
the
Minister
now
appeal.
The
money
to
be
paid
by
the
Crown
is
payable
pursuant
to
Rule
1800
if
no
appeal
be
instituted,
but
if
an
appeal
be
taken,
the
money
is
to
be
certified
as
payable
only
if
the
Crown's
appeal
be
unsuccessful
to
have
the
judgment
or
order
quashed.
Now,
subsection
57(3)
of
the
Act
provides
that
there
shall
be
paid
out
of
the
Consolidated
Revenue
Fund
any
money
or
costs
awarded
to
any
person
against
the
Crown
in
any
proceedings
in
the
Court.
That
provision
appears
clearly
to
direct
that
whether
or
not
the
money
awarded
be
reposing
in
the
Consolidated
Revenue
Fund,
that
fund
shall
be
the
source
of
payment;
the
convenient
and
proximate
source
of
payment;
and,
whether
other
persons
hold
money
by
which
the
Crown
may
compensate
itself
wholly
or
partly
for
the
money
awarded,
the
Consolidated
Revenue
Fund
shall
ultimately
be
liable
to
make
good
the
award
in
any
event.
The
clear
implication
of
the
Court's
order
of
September
4,
1986,
is
that
with
the
garnishments
all
quashed,
and
the
decisions
to
proceed
against
Optical
all
quashed,
the
money
ought
to
be
restored
to
Optical.
The
Crown
could
not,
and
clearly
would
not,
pretend
not
to
understand
such
to
be
the
obvious
effect
of
the
Court's
order
of
September
4,
1986.
Indeed
if
the
garnishor
had
been
any
respondent
other
than
the
Crown,
the
Court
would
unhesitatingly
accord
to
Optical
the
leave
to
make
the
late
application
which
it
has
made
pursuant
to
Rule
337(5)(b).
The
Crown
has
not
shown
that
it
or
the
Minister
stands
in
any
irreparable
jeopardy
or
risk
of
irreparable
harm
if
it
had
to
disgorge
the
money
seized
as
it
was
by
irresistible
implication
ordered
to
do
on
September
4,
1986.
The
Crown
however,
since
the
award
is
to
be
paid
out
of
the
Consolidated
Revenue
Fund,
is
in
a
privileged
position
accorded
by
the
cumulative
effect
of
subsection
56(5)
of
the
Act
and
of
Rule
1800.
It
should
be
noted
that
there
is
quid
pro
quo
in
this
arrangement.
In
effect
the
Consolidated
Revenue
Fund
stands
as
the
insurer,
indemnifier
and
guarantor
of
money
awarded
to
anyone
against
the
Crown,
no
matter
where,
or
in
whose
hands,
the
very
money
or
fund
in
contention
may
be
actually
reposing,
or
from
which
it
may
have
been
lost
or
depleted.
Therefore
the
Crown's
application
to
stay
in
so
far
as
it
relates
to
the
money
of
which
Optical
is
seeking
restoration
is
unnecessary
for
the
Act
and
rules
already
work
that
effect,
upon
the
Crown's
launching
of
its
timely
appeal
herein.
In
this
regard,
too,
Optical’s
motion
under
Rule
337(5)
ought
to
be
conditionally
dismissed,
depending,
of
course,
upon
the
disposition
of
the
Crown's
appeal
by
the
Appeal
Division.
If
the
Appeal
Division
does
not
in
fact
make
any
disposition
of
the
matter
of
the
money
in
its
judgment,
then
Optical
shall
be
entitled
hereby
to
move
under
Rule
337(5)
ex
parte
and
peremptorily,
if
the
Crown's
appeal
be
lost
and
the
order
of
September
4,
1986,
be
upheld,
for
a
specific
declaration
under
Rule
605
to
reify
the
obviously
inescapable
implication
of
that
order
to
restore
the
money
to
Optical.
In
regard
to
the
above
matter
of
the
money,
the
Crown's
motion
is
dismissed
and
Optical’s
motion
is
conditionally
allowed
as
above
described.
The
effect
is
that
the
money
will
not
now
be
restored
to
Optical.
The
Crown
also
seeks
to
stay
the
execution
or
operation
of
the
prohibition
pronounced
on
September
4,
1986.
Rules
341A
and
1909
make
it
certain
that
this
is
a
perfectly
proper
application
to
bring
before
the
Court.
But
the
Crown
fails
to
demonstrate
any
irreparable
harm
which
could
be
inflicted
upon
it
if
the
operation
of
the
prohibition
were
not
stayed.
Moreover,
no
special
privilege
is
accorded
to
the
Crown
in
this
regard.
The
Crown
must
do
that
which
any
ordinary
litigant
would
have
to
do
in
order
to
persuade
the
Court
to
grant
it
the
extraordinary
relief
it
seeks.
Like
any
ordinary
litigant
who
alleges
harm
or
damage,
the
Crown,
too,
must
demonstrate
that
it
is
doing
all
it
can
within
its
power
to
mitigate
or
to
avoid
the
alleged
harm
or
damage.
The
parties
hereto
would
be
restored
to
a
normal
relationship
if
only
the
Minister
would
assess
Optical’s
annual
income
tax
payable
in
which
assessment
the
matter
of
the
Part
VIII
tax,
if
any,
would
be
also
assessed.
The
Minister
has
had
Optical’s
income
tax
return
in
his
hands
for
some
months
already.
On
September
4,
1986,
the
Court
identified
that
assessment
by
the
Minister
as
a
certain
criterion
for
dissolution
of
the
prohibition
order.
But
counsel
for
the
Minister
informed
the
Court
that
he
has
no
instruction
to
assert
that
such
assessment
has
been
performed
or
is
even
in
progress.
How
can
the
Minister
avoid
whatever
harm
might
conceivably
be
inflicted
upon
him
or
the
Crown
by
that
order
of
prohibition?
Exactly
as
the
Court
originally
suggested
during
the
original
hearing
on
August
15,
1986,
and
in
the
reasons
and
order
of
September
4,
1986.
Counsel
for
the
Minister
does
not,
and
presumably
cannot,
allege
that
the
Minister
is
unable
to
perform
that
assessment,
or
is
somehow
prevented
from
doing
it.
So
long
as
the
Minister
declines
to
do
his
duty
on
a
basis
of
priority,
in
order
to
mitigate
or
avoid
the
harm
he
alleges,
he
(with
the
Crown)
is
not
entitled
to
have
that
order
of
prohibition
stayed.
In
this
regard
the
taxpayer
is
blameless.
The
normalization
of
matters,
which
have
unfortunately
become
litigious,
is
entirely
within
the
power
and
duty
of
the
Minister.
He
is
the
author
of
his
own
apprehension
of
harm
or
damage.
Therefore,
his
motion
for
a
stay
of
the
execution
of
the
prohibition
pronounced
on
September
4,
1986,
is
dismissed.
Optical
is
entitled
to
its
party-and-party
costs
in
response
to
the
Crown’s
motion
for
a
stay.
No
costs
are
awarded
for
or
against
any
party
in
regard
to
Optical’s
motion
pursuant
to
Rule
337(5)
which
is
dismissed
at
this
time
with
possible
future
conditional
allowance,
only
in
the
event
that
the
Crown's
appeal
be
dismissed.
Motion
dismissed.