Kelly,
Deputy
JUDGE.—This
is
an
information
by
the
Honourable
the
Attorney
General
of
Canada
to
recover
from
the
defendant,
retail
purchase
taxes
allegedly
due
under
Part
XVII
(since
repealed),
of
the
Excise
Tax
Act,
Cap.
179,
BR.S.C.
1927,
as
amended.
The
defendant,
at
all
relevant
times,
carried
on
business,
at
the
City
of
Winnipeg,
as
a
jeweller
and
it
is
alleged
that
he
failed
to
affix
and
cancel
stamps
to
the
amount
of
retail
purchase
taxes
imposed
in
respect
of
goods
sold
by
him.
The
imposition
of
retail
purchase
taxes
was
authorized
by
Part
XVII
of
the
Excise
Tax
Act
and
such
obligation
was
to
be
discharged
by
affixing
and
cancelling
an
excise
stamp
or
stamps
to
the
amount
of
the
tax
imposed.
In
addition
to
penalties
for
failure
to
affix
or
cancel
such
stamps,
the
Excise
Tax
Act
provides:
‘
‘
101
(a)
Every
person
who,
being
required
by
or
pursuant
to
this
Act
to
affix
or
cancel
stamps,
fails
to
do
so
as
required
is
liable
to
His
Majesty
for
the
amount
of
stamps
he
should
have
affixed
or
cancelled
and
that
amount
shall
be
recoverable
in
the
Exchequer
Court
of
Canada,
or
in
any
other
court
of
competent
jurisdiction
as
a
debt
due
to
His
Majesty.”’
"108(1)
All
taxes
or
sums
payable
under
this
Act
shall
be
recoverable
at
any
time
after
the
same
ought
to
have
been
accounted
for
and
paid,
and
all
such
taxes
and
sums
shall
be
recoverable,
and
all
rights
of
His
Majesty
hereunder
enforced,
with
full
costs
of
suit,
as
a
debt
due
to
or
as
a
right
enforceable
by
His
Majesty,
in
the
Exchequer
Court
or
in
any
other
court
of
competent
jurisdiction.’’
The
defendant
filed
a
Statement
of
Defence
herein,
denying
liability,
but
at
the
trial
Counsel
for
the
defendant
stated
that
the
latter
would
not
appear
and
thereupon
withdrew
from
the
case.
It
appears
that
the
Minister
of
National
Revenue,
being
of
opinion
that
the
defendant
had
failed
to
keep
records
and
books
of
account,
as
required
so
to
do
by
S.
113(1)
of
the
Excise
Tax
Act,
assessed
the
amount
of
stamps
that
the
defendant
was
required
to
affix
and
cancel,
as
aforesaid.
This
assessment
was
in
the
following
form:
"I,
James
Joseph
McCann,
of
the
City
of
Ottawa,
Minister
of
National
Revenue
for
the
Dominion
of
Canada,
having
considered
audit
reports
made
by
Excise
Tax
Auditor
N.
W.
Kennedy,
and
having
considered
the
replies
made
by
Frank
H.
Allison,
Esq.,
on
July
5th,
1948,
and
his
solicitor,
G.
Lyman
Van
Vliet,
Esq.,
of
the
City
of
Winnipeg,
on
July
23rd,
1948,
in
response
to
departmental
letter
of
June
24th,
1948,
for
representations
regarding
or
objections
to
a
proposed
assessment
of
$14,146.77
for
retail
purchase
tax,
and
the
said
Frank
H.
Allison,
Esq.,
and
his
solicitor
having
been
advised
during
the
course
of
the
Inquiry
hereinafter
mentioned
that
the
amount
of
the
proposed
assessment
had
been
increased
to
$14,844.33,
and
having
considered
the
evidence
taken
at
an
Inquiry
held
under
Section
116
of
the
Excise
Tax
Act
by
J
.
S.
Rankin,
Esq.,
as
Commissioner,
the
report
made
by
the
Commissioner,
the
reports
made
by
A.
G.
Eggertson,
Esq.,
K.C.,
Counsel
for
the
Commissioner,
and
the
representations
made
by
G.
Lyman
Van
Vliet,
Esq.,
on
behalf
of
the
said
Frank
H.
Allison,
and
having
made
further
enquiries
and
having
given
full
consideration
to
the
matter
and
being
of
the
opinion
that
the
said
Frank
H.
Allison,
Esq.,
while
carrying
on
business
as
a
jeweller
in
the
City
of
Winnipeg,
failed
to
keep
records
or
books
of
account
as
required
by
Subsection
1
of
Section
113
of
the
Excise
Tax
Act
during
the
period
from
July
1st,
1944
to
July
8th,
1946,
by
virtue
of
the
powers
vested
in
me
do
hereby
assess
pursuant
to
the
provisions
of
Section
113(8)
of
the
Excise
Tax
Act,
R.S.C.
1927,
Chapter
179
and
amendments
thereto,
the
said
Frank
H.
Allison,
Esq.,
carrying
on
business
as
aforesaid
for
the
said
period,
the
amount
of
$14,844.33
as
the
amount
of
stamps
that
he
was
required
by
or
pursuant
to
Part
XVII
of
the
Excise
Tax
Act
to
affix
or
cancel
in
or
in
respect
of
that
period.
This
assessment
of
$14,844.33
shall
be
in
addition
to
the
amount
of
stamps,
if
any,
already
affixed
or
cancelled
in
respect
of
the
said
period.
Dated
at
Ottawa,
this
28th
day
of
June,
1949.
(sgd.)
‘James
J.
McCann‘
James
J.
McCann
Minister
of
National
Revenue.’’
-The
Minister’s
authority
to
make
such
assessment
is
contained
in
s.
113(8)
of
the
Act,
as
follows:
“113(8)
Where
a
person
has,
during
any
period,
in
the
opinion
of
the
Minister,
failed
to
keep
records
or
books
of
account
as
required
by
subsection
one
of
this
section,
the
Minister
may
assess
(a)
the
taxes
or
sums
that
he
was
required,
by
or
pursuant
to
this
Act,
to
pay
or
collect
in,
or
in
respect
of,
that
period,
or
(b)
the
amount
of
stamps
that
he
was
required,
by
or
pursuant
to
this
Act,
to
affix
or
cancel
in,
or
in
respect
of,
that
period,
and
the
taxes,
sums
or
amounts
so
assessed
shall
be
deemed
to
have
been
due
and
payable
by
him
to
His
Majesty
on
the
day
the
taxes
or
sums
should
have
been
paid
or
the
stamps
should
have
been
affixed
or
cancelled.
‘
‘
It
is
clear
that,
upon
such
assessment
being
made
by
the
Minister,
the
taxes,
sums
or
amounts
so
assessed
became
a
debt
due
and
payable
by
the
defendant
in
respect
of
which
proceedings
could
be
taken
by
the
Crown.
This
is
the
result
of
the
latter
part
of
8.
113(8)
which
reads,
in
part,
as
follows:
H
and
the
taxes,
sums
or
amounts
so
assessed
shall
be
deemed
to
have
been
due
and
payable
by
him
to
His
Majesty
on
the
day
the
taxes
or
sums
should
have
been
paid
or
the
stamps
should
have
been
affixed
or
cancelled.’’
It
would
seem
that
the
action
of
the
Minister
in
making
such
an
assessment
is
not
open
to
review
by
the
Courts
if
it
is
found
to
be
an
administrative
function
conferred
upon
him
by
Parliament
and
I
do
so
find.
In
the
case
of
The
King
v.
Noxzema
Chemical
Company
of
Canada,
Limited,
[1942]
S.C.R.
178,
[1942]
C.T.C.
21,
the
question
for
consideration
was
the
right
of
the
Minister,
under
s.
98
of
the
Special
War
Revenue
Act,
Cap.
179,
R.S.C.
1927,
to
fix
fair
prices
upon
which
sales
and
excise
taxes
should
be
paid.
Kerwin,
J.,
at
p.
185
says,
in
this
regard:
"...
we
cannot
be
aware
of
all
the
reasons
that
moved
the
Minister
and,
in
any
event,
his
jurisdiction
under
section
98
was
dependent
only
upon
his
judgment
that
the
goods
were
sold
at
a
price
which
was
less,—not,
be
it
noted,
less
than
what
would
be
a
fair
price
commercially
or
in
view
of
competition
or
the
lack
of
it,—but
less
than
what
he
considered
was
the
fair
price
on
which
the
taxes
should
be
imposed.
The
legislature
has
left
the
determination
of
that
matter
and
also
of
the
fair
prices
on
which
the
taxes
should
be
imposed
to
the
Minister
and
not
to
the
court.
In
my
view,
section
98
confers
upon
the
Minister
an
administrative
duty
which
he
exercised
and
as
to
which
there
is
no
appeal.
In
such
a
ease
the
language
of
the
Karl
of
Selborne
in
Spackman
v.
Plumstead
District
Board
of
Works
(1885),
10
App.
Cas.,
229
at
235,
appears
to
be
particularly
appropriate:
‘And
if
the
legislature
says
that
a
certain
authority
is
to
decide,
and
makes
no
provision
for
a
repetition
of
the
inquiry
into
the
same
matter,
or
for
a
review
of
the
decision
by
another
tribunal,
prima
facie,
especially
when
it
forms,
as
here,
part
of
the
definition
of
the
case
provided
for,
that
would
be
binding.”
In
any
event,
it
is
quite
clear
that
the
Minister
acted
honestly
and
impartially
and
that
he
gave
the
respondent
every
oppor-
tunity
of
being
heard,
and,
in
fact,
heard
all
it
desired
to
place
before
him.
Whatever
might
be
the
powers
of
the
Exchequer
Court,
if
proceedings
had
been
taken
under
subsection
4
of
section
108,
as
to
which
it
is
unnecessary
to
express
any
opinion,
the
taxes,
if
properly
payable,
are
recoverable
under
subsection
1
of
section
108
as
a
debt
due
to
or
as
a
right
enforceable
by
His
Majesty
in
the
Exchequer
Court
or
in
any
other
court
of
competent
jurisdiction.
In
view
of
the
wording
of
section
98,
nothing,
I
think,
need
be
shown
other
than
what
appears
in
the
present
case
and
the
obligation
of
the
respondent
to
pay
taxes
on
the
basis
of
the
prices
determined
by
the
Minister.’’
There
is
to
be
considered
the
question
of
the
evidentiary
value
of
the
document
purporting
to
be
signed
by
the
Minister
of
National
Revenue,
whereby
the
assessment
of
the
defendant
was
made.
This
document,
duly
certified
as
follows:
«
DEPUTY
MINISTER
OF
NATIONAL
REVENUE
Customs
and
Excise
OTTAWA,
February
23,
1950.
I
hereby
certify
that
the
document
dated
the
28th
day
of
June,
1949,
annexed
hereto,
is
a
document
signed
by
the
Honourable
the
Minister
of
National
Revenue.
(sed.)
‘D.
Sim’
D.
Sim
Deputy
Minister
of
National
Revenue
for
Customs
and
Excise?
‘
(Seal)
was
filed,
without
further
proof,
by
Counsel
for
the
Crown.
In
the
case
of
Rex
v.
Pacific
Bedding
Company
Limited,
[1949]
2
W.W.R.
575,
the
Court
of
Appeal
in
British
Columbia
held
that
a
similar
document,
under
the
hand
of
the
Minister,
was
not
admissible
in
evidence
on
a
prosecution
for
non-payment
of
tax;
that
it
was
not
evidence
of
the
facts
stated
therein
nor
of
the
assessment
of
the
Minister
within
the
meaning
of
8.113
(8)
of
the
Excise
Tax
Act,
and
that
it
was
not
a
certificate
made
under
the
authority
of
any
Act.
Sloan,
C.J.B.C.,
says
at
p.
578:
It
will
be
noted
that
the
document
signed
by
the
Minister
purports
to
be
an
assessment
in
the
exercise
of
the
authority
vested
in
him
by
said
see.
113(8).
Is
then
the
production
of
this
document
and
proof
of
the
Minister’s
signature
conclusive
or
even
prima
facie
evidence
of
such
assessment?”
and
at
p.
579:
‘
The
document
signed
by
the
Minister
is
not,
in
my
opinion
a
‘certificate
made
under
the
authority
of
any
Act.’
The
‘certificate’
contemplated
in
that
phraseology
would
be
something
in
the
nature
of
an
analyst’s
certificate
relating
to
drugs
and
given
evidentiary
value
by
sec.
18
of
the
Opium
and
Narcotic
Drug
Act,
1929,
ch.
49,
or,
e.g.,
customs
certificates
under
sec.
260
of
the
Customs
Act,
R.S.C.,
1927,
ch.
42.
To
give
other
provincial
examples,
the
certificate
of
an
analyst
as
to
the
percentage
of
alcohol
in
any
liquor
is
made
prima
facie
evidence
by
sec.
90
of
the
Government
Liquor
Act,
R.S.B.C.
1948,
ch.
192,
and
would
therefore
fall
within
the
definition
as
would
a
certificate
of
the
provincial
inspector
issued
under
the
authority
of
sec.
22
of
the
Milk
Act,
R.S.B.C.,
1948,
ch.
208,
showing
the
grades
of
a
dairy
farm.
In
the
absence
of
statutory
sanction
these
certificates,
or
any
‘certificate
of
a
mere
matter
of
fact,
not
coupled
with
any
matter
of
law’
is
not
admissible
as
evidence:
Omichund
v.
Barker
(1774),
Willes,
549,
550.”
And
at
p.
581
:
‘It
is
sufficient
for
me
to
say
in
this
case
that
in
a
criminal
proceeding
and
in
the
absence
of
any
express
legislative
provision
authorizing
its
use
the
mere
production
of
a
signed
document
of
this
character
cannot,
in
my
view,
be
regarded
as
either
conclusive
or
prima
facie
proof
of
the
facts
contained
therein.
That
being
so
the
document
has
no
evidentiary
value
and
ought
not
to
have
been
admitted
in
evidence.”
Following
the
decision
in
the
Pacific
Bedding
Case,
the
Excise
Tax
Act
was
amended
by
adding
to
s.
108
of
the
Act,
the
following
subsections
:
“
(8)
Where
any
question
arises
in
a
proceeding
under
this
Act
as
to
whether
the
Minister
has
formed
a
judgment
or
opinion
or
made
an
assessment
or
determination,
a
document
signed
by
the
Minister
stating
that
he
has
formed
the
judgment
or
opinion
or
made
the
determination
or
assessment
is
evidence
that
he
has
formed
the
judgment
or
opinion
or
made
the
determination
or
assessment
and
of
the
judgment,
opinion,
determination
or
assessment.
(9)
In
any
proceedings
under
this
Act
a
certificate
purporting
to
be
signed
by
the
Deputy
Minister
that
a
document
annexed
thereto
is
a
document
or
a
true
copy
of
a
document
signed
by
the
Minister
shall
be
received
as
evidence
of
the
document
and
of
the
contents
thereof.’’
This
amendment
was
assented
to
on
10th
December,
1949,
and
was
obviously
intended
to
meet
the
difficulties
of
proof
as
laid
down
by
the
Pacific
Bedding
Case.
I
am
invited
by
Counsel
for
the
Crown
to
say
whether
or
not
the
amendment
achieves
the
purposes
intended.
The
Common
Law
rule,
in
this
regard,
was
thus:
"
4
At
common
law,
certificates
of
matters
of
fact
not
coupled
with
matters
of
law
are
usually
said
to
be
inadmissible
.
.
.’’;
Halsbury
(2nd
Ed)
Vol.
13,
p.
661
;
Taylor
on
Evidence
(12th
Ed.),
p.
1128,
and
Phipson
on
Evidence
(8th
Ed),
p.
356,
citing
Omichund
v.
Barker,
(1774),
Willes,
538,
549
and
550.
The
rule
appears
to
be
the
same
whether
applied
to
certificates
of
matters
of
fact
or
to
certified
or
authenticated
copies
of
documents
which
contain
matters
of
fact.
However,
Parliament
has
varied
the
Common
Law
rule,
in
many
instances,
by
giving
evidential
value
to
both
certificates
and
certified
copies
of
documents,
by
designated
public
officials.
As
to
these
it
is
said
:
*
‘The
certificates,
letters
or
returns
of
public
officers,
intrusted
by
law
with
authority
for
the
purpose,
are
prima
facie,
but
not
generally
conclusive,
evidence
of
the
facts
authorized
to
be
stated,
but
not
of
extraneous
matters
.
.
.”
(Phipson
on
Evidence,
8th
Ed.,
p.
356).
As
to
documents,
13
Halsbury
(2nd
Ed)
says,
at
p.
654:
é¢
And
by
virtue
of
statutory
provisions
a
number
of
documents
can
now
be
proved
by
means
of
copies
of
a
prescribed
kind.”
Referring
to
the
amendment,
in
question,
it
will
be
seen
that,
‘‘a
document
signed
by
the
Minister
stating
that
he
has
formed
the
judgment
or
opinion
or
made
the
determination
or
assessment
is
evidence,’’
not
only
of
the
fact
that
the
Minister
has
exercised
the
administrative
functions
vested
in
him
but
also
of
the
judgment,
opinion,
determination
or
assessment
which
he
has
reached
or
made.
Looking
at
s.
113(8)
of
the
Excise
Tax
Act,
it
is
apparent
that
the
Minister
may,
where
in
his
opinion
there
has
been
a
failure
to
keep
records
or
books
of
account,
assess
the
taxes
or
sums
or
amounts
payable,
and
by
the
amendment
his
opinion
and
the
assessment
may
be
set
forth
in
a
document
signed
by
him.
Such
document
becomes
of
evidentiary
value
when,
accompanied
by
a
certificate
purporting
to
be
signed
by
the
Deputy
Minister
identifying
the
document
in
question.
The
document,
filed
herein,
has
attached
thereto
the
required
certificate
by
the
Deputy
Minister,
and
sets
out
the
opinion
of
the
Minister
as
to
the
failure
of
the
defendant
to
keep
records
or
books
of
account
and
thereafter
makes
an
assessment
of
$14,844.33
as
the
amount
of
stamps
required
to
be
affixed
or
cancelled
by
the
defendant.
I
must
hold
that
the
document
filed
is
proper
evidence
of
the
opinion
formed
by
the
Minister
and
of
his
assessment
against
the
defendant,
having
regard
to
the
amendment,
referred
to.
During
argument
herein,
I
queried
whether
or
not
proof
of
the
Minister’s
signature
was
still
necessary.
I
should
have
thought
that
the
concluding
words
of
ss.
9,
as
added
by
the
amendment,
would
have
had
greater
clarity
if
they
had
read
thus:
CC
shall
be
received
as
evidence
of
the
document
and
of
the
contents
thereof
and
of
the
Minister’s
signature
thereto^
9
Upon
further
consideration
of
the
matter,
I
have
reached
the
conclusion
that
the
‘
‘
document,
‘
‘
which
is
made
evidence,
includes
the
signature
of
the
Minister
or
in
other
words
everything
contained
therein,
within
the
delegated
power
of
the
Minister.
Further,
the
Deputy
Minister
is
required
to
certify
that
the
document
or
true
copy
of
a
document,
as
the
case
may
be,
is
one
signed
by
the
Minister.
This
has
been
done
in
the
present
case
and
is,
therefore,
evidence
of
such
signature
in
the
manner
directed
by
the
Statute.
I
might
mention,
in
conclusion,
that
while
this
action
was
commenced
on
15th
September,
1949,
the
amendment,
referred
to,
was
not
assented
to
until
the
later
date.
This
raises
the
question
as
to
the
retrospective
operation
of
the
amending
Statute.
The
law
on
this
point
is
stated
in
Craies
on
Statute
Law
(3rd
Ed.)
at
p.
324:
"‘It
is
a
fundamental
rule
of
English
law
that
no
statute
shall
be
construed
so
as
to
have
a
retrospective
operation,
unless
its
language
is
such
as
plainly
to
require
such
a
construction.
‘
‘
and
at
p.
330
:
“It
is
a
well
‘recognized
rule
that
statutes
should
be
interpreted,
if
possible,
so
as
to
respect
vested
rights,’
.
.
.”
and
at
p.
332
:
°
But
there
is
no
vested
right
in
procedure
or
costs.
Enactments
dealing
with
these
subjects
apply
to
pending
actions,
unless
a
contrary
intention
is
expressed
or
clearly
implied.
‘It
is
a
general
rule
that
when
the
Legislature
alters
the
rights
of
parties
by
taking
away
or
conferring
any
right
of
action,
its
enactments,
unless
in
express
terms
they
apply
to
pending
actions,
do
not
affect
them.
But
there
is
an
exception
to
this
rule,
namely,
where
enactments
merely
affect
procedure,
and
do
not
extend
to
rights
of
action,’
(Jessel,
M.
R.
in
Re
Joseph
Suche
c
Co.,
Ltd.
(1875),
1
Ch.
D.
48,
50).
For
‘it
is
perfectly
settled
that
if
the
Legislature
forms
a
new
procedure,
that,
instead
of
proceeding
in
this
form
or
that,
you
should
proceed
in
another
and
a
different
way,
clearly
there
bygone
transactions
are
to
be
sued
for
and
enforced
according
to
the
new
form
of
procedure.
Alterations
in
the
form
of
procedure
are
always
retrospective,
unless
there
is
some
good
reason
or
other
why
they
should
not
be,’
(Lord
Blackburn
in
Gardner
v.
Lucas
(1878),
3
App.
Cas.
582,
603).
"
A
statute
cannot
be
said
to
have
a
retrospective
operation
because
it
applies
a
new
mode
of
procedure
to
suits
commenced
before
its
passing,’
(Sir
James
Wilde
in
Watton
v.
Watton
(1866),
L.R.
1
P.
&
M.
227,
229).
In
other
words,
if
a
statute
deals
merely
with
the
procedure
in
an
action,
and
does
not
affect
the
rights
of
the
parties,
‘it
will
be
held
to
apply
prima
facie
to
all
actions,
pending
as
well
as
future.’
(Blackburn,
J.,
in
Aimbray
v.
Draper
(1868),
L.R.
3
Q.B.
160,
163.)”
It
cannot
be
doubted
that
the
amendment
is
one
dealing
with
procedure
and
I
so
hold.
Its
sole
purpose
was
to
deal
with
a
matter
of
evidence
and
evidence
has
been
held
to
come
under
procedure:
Prendergast,
C.J.M.,
in
Rex
v.
Kumps
(1931),
39
M.R.
445.
In
result
there
will
be
judgment
against
the
defendant
for
the
sum
of
$14,844.33
and
costs.
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