MICHAUD,
C.J.K.B.:—This
is
a
motion
by
the
Canadian
Credit
Men’s
Trust
Association
Ltd.,
trustee
of
the
estate
of
Geldart’s
Dairies
Ltd.,
debtor,
in
Bankruptcy,
for
an
order
that
"‘Sandy
M.
Simms,
an
officer
of
the
Department
of
National
Revenue,
employed
as
Chief
Assessor
of
Corporations
in
the
Office
of
the
Director
of
Income
Tax
at
the
City
of
Saint
John
in
the
Prov-
ince
of
New
Brunswick,
be
required
to
attend
and
answer
questions
in
an
examination
under
Section
134
of
the
Bankruptcy
Act,
and
that
the
said
Sandy
M.
Simms
be
required
to
produce
and
give
in
evidence
any
and
all
Income
Tax
Returns
and
other
papers
and
documents
in
his
custody,
power
or
control,
which
purport
to
have
been
filed
by
the
above
named
Debtor,
at
a
time
and
place
to
be
named
by
any
special
examiner
authorized
to
take
the
examinations
in
this
matter’’.
Section
134
of
the
Bankruptcy
Act
enacts
as
follows:
4
"
134(1)
Where
a
receiving
order
or
an
authorized
assignment
has
been
made,
the
trustee,
upon
ordinary
resolution
passed
by
the
creditors
present
or
represented
at
a
meeting
regularly
called,
or
upon
the
written
request
or
resolution
of
a
majority
of
the
inspectors
of
the
estate,
may,
without
an
order,
examine
under
oath
before
the
registrar
of
the
court
or
other
prescribed
person,
the
debtor,
any
person
reasonably
thought
to
have
knowledge
of
the
affairs
of
the
debtor
or
any
person
who
is
or
has
been
an
agent,
clerk,
servant,
officer,
director
or
employee
of
the
debtor,
respecting
the
debtor,
his
dealings
or
property.
"‘(2)
Upon
application
of
any
creditor
to
the
court,
at
any
time,
upon
sufficient
cause
being
shown,
an
order
may
be
made
for
the
examination
under
oath
before
the
registrar
or
other
prescribed
person,
of
the
trustee
or
the
debtor
or
of
any
inspector
or
creditor,
or
any
other
person
named
in
the
order
for
the
purpose
of
investigating
the
administration
of
the
estate
of
any
bankrupt
or
authorized
assignor,
and
the
court
may
further
order
any
person
liable
to
be
so
examined
to
produce
any
books,
documents,
correspondence
or
papers
in
his
possession
or
power
relating
in
all
or
in
part
to
the
debtor,
the
trustee
or
any
creditor,
the
cost
of
such
examination
and
investigation
to
be
in
the
discretion
of
the
court
or
judge.’’
(enacted
1932,
c.
39,
s.
45)
In
order
to
have
a
full
comprehension
of
the
question
involved
by
this
application,
it
is
necessary
to
make
a
résumé
of
the
steps
taken
by
the
applicant
leading
to
the
present
application.
Sometime
during
the
month
of
June,
1949,
the
inspectors
of
the
estate
of
Geldart’s
Dairies
Ltd.,
bankrupt,
requested
the
trustee
of
the
said
estate,
the
present
applicant,
to
examine
under
oath
before
the
Registrar
of
the
Supreme
Court
in
Bankruptcy
or
other
prescribed
person,
certain
persons
named
in
the
written
request,
among
others
one
Sandy
M.
Simms.
On
July
20,
1949,
the
Registrar
of
this
Court
in
Bankruptcy,
upon
hearing
counsel
on
behalf
of
the
said
trustee,
ordered
that
among
others,
one
Harold
J.
Henneberry,
Court
Stenographer,
be
appointed
a
prescribed
person
to
conduct
examinations
under
s.
134
of
the
Bankruptcy
Act
of
any
person
reasonably
thought
to
have
knowledge
of
the
affairs
of
the
above
named
debtor,
or
of
any
person
who
is
or
has
been
an
agent,
clerk,
servant,
officer,
director
or
employee
of
the
above
named
debtor,
respecting
the
above
named
debtor,
its
dealings
or
property.
Upon
application
of
the
trustee
of
the
said
debtor,
the
said
Harold
J.
Henneberry,
Special
Examiner
as
aforesaid,
appointed
Monday,
August
15,
1949,
at
the
hour
of
10
o’clock
in
the
forenoon
at
the
office
of
Messrs.
Sanford
&
Teed,
39
Princess
St.,
in
the
City
of
Saint
John,
New
Brunswick,
for
the
examination
upon
oath
before
him
of
certain
persons,
among
them
the
said
Sandy
M.
Simms,
as
persons
thought
to
have
knowledge
of
the
affairs
of
the
above
named
debtor.
The
said
persons
were
ordered
to
bring
with
them
all
books,
documents,
correspondence
or
papers
in
their
custody,
possession,
power
or
control
relating
in
any
wise
to
the
above
named
debtor.
On
Monday,
August
15,
1949,
pursuant
to
the
said
appointment
signed
by
the
said
Special
Examiner,
the
said
Sandy
M.
Simms
appeared
before
the
said
Examiner,
and
before
being
sworn,
the
said
Sandy
M.
Simms
stated
to
the
said
Examiner
that
he
had
been
instructed
not
to
answer
any
questions
concerning
matters
which
had
come
to
his
knowledge
by
virtue
of
his
employment
in
the
office
of
the
Director
of
Income
Tax
at
Saint
John,
New
Brunswick,
and
had
also
been
instructed
not
to
produce
before
said
Examiner
any
of
the
income
tax
returns
filed
by
Geldart’s
Dairies
Ltd.,
the
above
named
debtor.
The
trustee
of
the
said
debtor
then
gave
notice
of
the
present
application
to
the
said
Sandy
M.
Simms,
who
at
the
appointed
time
and
place
appeared
before
me
with
counsel.
The
said
trustee,
the
administrator
of
the
estate
of
the
late
Nelson
C.
Geldart,
and
the
Honourable
the
Minister
of
National
Revenue
all
appeared
by
counsel.
Counsel
for
the
Honourable
the
Minister
of
National
Revenue
read
the
affidavit
of
the
Honourable
James
J.
McCann,
Minister
of
National
Revenue,
which,
without
the
entitlement
and
jurat,
I
read
as
follows:
11
1,
James
J.
McCann
of
Renfrew,
in
the
County
of
Renfrew,
Province
of
Ontario,
Minister
of
National
Revenue,
in
the
Government
of
Canada,
make
oath
and
say
as
follows:
"‘1.
I
have
read
a
copy
of
a
Notice
of
Motion
addressed
to
Sandy
M.
Simms,
an
officer
of
the
Department
of
National
Revenue,
and
others,
for
an
Order
that
the
said
Sandy
M.
Simms
be
required
to
attend
and
answer
questions
in
an
examination
under
section
134
of
the
Bankruptcy
Act
and
that
the
said
Sandy
M.
Simms
be
required
to
produce
and
give
in
evidence
any
and
all
income
tax
returns
and
other
papers
and
documents
in
his
custody,
power
or
control
which
purport
to
have
been
filed
by
the
above
named
debtor.
"‘2.
Section
81
of
the
Income
War
Tax
Act
provides:
""
"
81(1)
No
person
employed
in
the
service
of
His
Majesty
shall
communicate
or
allow
to
be
communicated
to
any
person
not
legally
entitled
thereto,
any
information
obtained
under
the
provisions
of
this
Act,
or
allow
any
such
person
to
inspect
or
have
access
to
any
written
statement
furnished
under
the
provisions
of
this
Act.
‘(2)
Any
person
violating
any
of
the
provisions
of
this
section
shall
be
liable
on
summary
conviction
to
a
penalty
not
exceeding
two
hundred
dollars.’
"‘Section
121
of
the
Income
Tax
Act
reads
as
follows:
“
“121.
Every
person
who,
while
employed
in
the
service
of
His
Majesty,
has
communicated
or
allowed
to
be
communicated
to
a
person
not
legally
entitled
thereto
any
information
obtained
under
this
Act
or
has
allowed
any
such
person
to
inspect
or
have
access
to
any
written
statement
furnished
under
this
Act
is
guilty
of
an
offence
and
liable
on
summary
conviction
to
a
fine
not
exceeding
$200.’
“3.
All
reports,
papers
and
documents
filed
with
the
Department
of
National
Revenue
under
or
in
connection
with
the
administration
of
The
Income
War
Tax
Act,
The
Excess
Profits
Tax
Act,
1940
or
The
Income
Tax
Act
are
of
such
confidential
nature
that
their
production
would
be
prejudicial
to
the
public
interest
and
I
accordingly
object
to
their
production.
‘“‘4.
IT
am
of
opinion
that
it
would
be
prejudicial
to
the
public
interest
for
the
said
Sandy
M.
Simms
or
any
other
officer
of
the
Taxation
Division
of
the
Department
of
National
Revenue
to
give
orally
evidence
relating
to
returns
received
by
the
said
Division
under
any
of
the
said
statutes
or
relating
to
information
which
he
or
they
have
obtained
in
the
course
of
their
employment
in
connection
with
the
administration
or
enforcement
of
any
of
the
said
statutes.’’
It
will
be
noted
that
by
s.
81
of
the
Income
War
Tax
Act,
R.S.C.
1927,
c.
97,
and
by
s.
121
of
the
Income
Tax
Act,
1948
(Can.),
c.
52,
the
two
Acts
under
which
were
filed
the
documents
sought
to
be
produced,
the
employee
of
the
Department
of
National
Revenue
charged
with
the
custody
of
the
documents
filed
with
him,
is
forbidden,
under
pain
of
penalty,
to
communicate
the
contents
of
such
documents
to
a
person
not
legally
entitled
thereto.
It
is
claimed
by
the
applicant,
the
trustee
of
a
bankrupt
debtor
who
made
an
authorized
assignment,
that
it
is
a
person
legally
entitled
to
the
information
contained
in
the
documents
in
the
custody
of
the
said
Sandy
M.
Simms
in
his
official
capacity
as
an
officer
of
the
Department
of
National
Revenue.
It
was
stated
by
counsel
for
the
applicant
at
the
hearing
before
me,
and
the
statement
was
not
contradicted,
that
the
affidavit
of
the
Honourable
the
Minister
of
National
Revenue
was
brought
to
his
attention
only
on
the
day
previous
to
the
hearing.
If
the
Honourable
the
Minister
of
National
Revenue
had
not
appeared
in
this
matter,
and
had
his
affidavit
not
been
read
to
me,
I
am
doubtful
if
the
contention
of
the
applicant,
that
it
is
a
person
entitled
to
the
information
sought,
would
not
be
right.
In
my
opinion,
the
statements
contained
in
paras.
3
and
4
above
quoted
of
the
affidavit
of
the
Honourable
James
J.
McCann,
Minister
of
National
Revenue,
in
the
Government
of
Canada,
change
altogether
the
aspect
of
the
question
as
originally
raised.
I
construe
the
intervention
by
the
Honourable
the
Minister
of
National
Revenue
of
Canada
as
raising
the
question
of
privilege.
By
his
affidavit,
and
the
statements
contained
in
paras.
3
and
4
of
such
affidavit,
undoubtedly
the
Minister
raises
the
question
of
privilege,
and
takes
the
objection
that
the
production
of
the
documents
and
any
information
therein
contained,
would
be
contrary
to
public
interest.
Whatever
heretofore
may
have
been
the
decisions
of
the
Courts,
both
in
Canada
and
in
Great
Britain,
regarding
the
right
of
a
Minister
of
the
Crown
to
object
to
the
production
of
public
documents
on
the
ground
that
such
documents
are
privileged,
or
that
their
production
would
be
contrary
to
public
interest,
I
am
of
the
opinion
that
the
matter
was
finally
and
clearly
settled
by
the
decision
of
the
House
of
Lords
in
the
case
of
Duncan
v.
Cammell
Laird
&
Co.,
[1942]
1
All
E.R.
587.
There
Viscount
Simon,
for
the
House
of
Lords,
extensively
reviews
the
previous
decisions
regarding
the
matter,
and
lays
down
rules
and
principles,
which
I
think
should
be
followed.
There
it
was
laid
down
that
documents,
otherwise
relevant
and
liable
to
production,
need
not
be
produced
if,
owing
to
their
actual
contents,
or
the
class
of
documents
to
which
they
belong,
the
public
interest
requires
that
they
should
be
withheld,
if
an
objection
to
the
production
of
such
documents
was
duly
taken
by
the
head
of
a
Government
Department.
It
was
further
there
held
that
such
objection
should
be
treated
by
the
Court
as
conclusive.
I
interpret
the
action
of
the
Minister
of
National
Revenue
for
the
Dominion
of
Canada,
in
appearing
in
this
case
by
counsel,
and
stating
under
oath
as
appears
by
his
affidavit
(paras.
3
and
4),
that
he
distinctly
claims
that
their
production
would
be
prejudicial
to
the
public
interest.
I
am
of
opinion
that
his
statement
should
be
accepted
as
conclusive
and
should
not
be
questioned.
Therefore,
I
will
refuse
to
make
an
order
that
the
said
Sandy
M.
Simms
be
required
to
produce
and
give
in
evidence
any
of
and
all
income
tax
returns
and
other
papers
and
documents
in
his
custody,
power
or
control,
which
purport
to
have
been
filed
by
the
above
named
debtor,
Geldart’s
Dairies
Ltd.,
bankrupt.
In
view
of
the
fact
that
the
appearance
in
the
matter
by
the
Honourable
the
Minister
of
National
Revenue
was
not
made
known
to
the
applicant
until
the
day
previous
to
the
hearing
of
the
application,
there
will
be
no
costs.
Order
refused.
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