Strayer,
J:—An
authorization
to
enter
and
search
was
issued
on
behalf
of
the
Minister
of
National
Revenue
on
August
11,
1983
with
respect
to
premises
and
automobiles
where
relevant
documents
belonging
to
the
applicant
herein
were
thought
to
be
located.
This
authorization
was
executed
on
August
16,
1983
and
numerous
documents
and
materials
belonging
to
the
applicant
were
seized.
Since
that
time
two
orders
have
been
made
by
judges
of
the
Trial
Division
which
are
relevant
to
the
present
proceedings.
On
September
9,
1983
my
colleague
Dubé,
J
gave
an
order
quashing
the
authorization
to
enter
and
search.
His
order
included
the
following
direction:
3.
Pending
any
appeal
of
this
decision,
all
documents
seized
shall
be
delivered
into
the
custody
of
the
Chief
of
Special
Investigations,
Kingston
National
Revenue
District
Office,
Kingston,
Ontario,
unless
counsel
for
both
parties
agree
to
a
more
convenient
disposal
of
the
documents
pending
the
final
judicial
disposition
of
the
matter.
On
March
12,
1984,
my
former
colleague
Cattanach,
J
issued
the
following
order:
The
Minister
of
National
Revenue
and
persons
acting
under
his
control
and
direction
are
restrained
from
taking
further
steps
in
the
investigation
of
the
affairs
of
Richard
G.
Lipsey
and
specifically
from
conducting
an
interview
with
Dr.
Lipsey
pending
the
disposition
of
the
appeal
from
the
order
of
Mr.
Justice
Dubé
dated
September
9,
1983
herein.
The
relief
sought
in
the
first
four
paragraphs
of
the
present
application
is
for
declarations
that
the
Minister
and/or
his
officers
have
committed
certain
breaches
of
these
orders.
While
normally
declarations
cannot
be
sought
by
way
of
motion,
there
is
precedent
in
this
Court
for
the
grant
of
declarations
on
mo-
tions
where
the
respondent
does
not
object.
In
this
case
counsel
for
the
respondent
made
clear
that
he
did
not
object
on
this
procedural
ground
to
the
declarations
being
issued.
Beyond
that,
however,
his
position
was
somewhat
ambivalent:
on
the
one
hand
he
contended
that
any
such
alleged
breaches
of
the
previous
orders
could
only
be
remedied
by
contempt
of
court
proceedings
which
had
not
properly
been
instituted
here,
but
on
the
other
hand
seemed
to
be
inviting
me
to
find
that
there
had
been
no
violation
noting
all
the
while
that
if
I
so
found
such
a
finding
would
be
relied
upon
as
res
judicata
in
any
subsequent
proceeding
that
might
be
brought
for
contempt
of
court.
Even
with
the
apparent
agreement
of
counsel
on
both
sides
that
these
declarations
should
not
be
declined
merely
on
procedural
grounds,
I
am
not
prepared
to
issue
them.
In
my
view
the
substance
of
the
allegations
in
the
first
four
paragraphs
of
relief
requested
is
that
there
have
been
acts
constituting
contempt
of
court.
An
allegation
of
contempt
of
court
is
a
quasi-criminal
charge
for
which
there
is
an
established
procedure.
Rule
355
would
appear
to
be
the
appropriate
procedure
in
this
case
and
it
requires
that
an
application
be
made
for
a
show
cause
order
specifying
with
some
particularity
the
acts
said
to
constitute
the
contempt
of
court.
It
would
be
most
inappropriate
for
me
to
make
declarations
with
respect
to
these
acts
on
the
basis
of
inadequate
notice
and
evidence,
particularly
when
such
a
finding
might
be
treated
as
res
judicata
in
any
proper
contempt
proceedings.
I
am
therefore
exercising
my
discretion
in
refusing
in
these
circumstances
to
issue
the
declarations
requested
in
paragraphs
I
to
4.
The
next
fundamental
issue
arises
out
of
the
relief
requested
in
paragraph
6
for
a
declaration
.
.
.
that
the
Notice
of
Discontinuance
filed
by
the
Minister
is
null
and
void
in
that
there
has
been
no
judicial
disposition
of
this
matter
as
required
by
the
said
Order
of
The
Honourable
Mr.
Justice
Dubé.
The
notice
of
discontinuance
in
question
was
for
the
discontinuation
of
the
Minister’s
appeal
to
the
Federal
Court
of
Appeal
of
the
order
of
Dubé,
J
of
September
9,
1983.
The
notice
of
discontinuance
was
filed
in
the
Court
on
October
29,
1984
and
apparently
was
first
served
on
the
applicant’s
solicitors
in
their
offices
on
November
5,
1984.
Basically,
by
Rule
1211
an
appellant
is
entitled
to
discontinue
his
appeal
at
any
time
“by
filing
a
notice
stating
that
he
discontinues
the
appeal,
and
serving
notice
on
the
respondent”.
I
cannot
interpret
the
order
of
Mr
Justice
Dubé
to
preclude
the
Minister
from
exercising
that
right
when
he
ordered
the
documents
to
be
held
by
the
Chief
of
Special
Investigations
“pending
the
final
judicial
disposition
of
the
matter”.
It
was
therefore
open
to
the
Minister
to
discontinue
his
appeal.
While
counsel
for
the
applicant
contended
that
the
discontinuance
was
not
effective
until
service
of
the
notice
of
discontinuance,
neither
he
nor
counsel
for
the
Minister
were
able
to
assist
me
with
jurisprudence
on
the
question
of
when
a
notice
of
discontinuance
becomes
effective.
My
own
researches
indicate
that
that
matter
has
not
received
much
consideration,
even
in
relation
to
the
parallel
procedure
of
discontinuation
of
actions.
It
appears
far
from
clear
that
service
is
essential
to
make
a
discontinuance
effective:
see
Cusack
et
al
v
Garden
City
Press
Ltd
(1979),
22
OR
(2d)
126;
Pavonia
SA
v
Bison
Petroleum
&
Minerals
Ltd
(1982),
132
DLR
(3d)
309.
For
the
present
purposes
I
think
I
need
not
decide
that
issue.
It
is
clear
that
at
least
once
the
service
of
the
notice
of
discontinuance
was
effected
on
November
5,
the
discontinuance
was
valid
and
operative.
I
therefore
dismiss
the
application
for
the
relief
sought
in
paragraph
6
of
the
notice
of
motion.
Some
different
issues
are
raised
by
paragraphs
5
and
7
concerning
notices
of
assessment
under
the
Income
Tax
Act.
In
paragraph
5
a
declaration
is
requested
that
a
notice
of
reassessment
dated
September
18,
1984
concerning
the
applicant’s
1979
income
tax
is
null
and
void
“in
that
The
Honourable
Mr
Justice
Cattanach
had
ordered
on
March
12th,
1984,
that
no
further
steps
were
to
be
taken.
.
.
.”
The
notice
of
reassessment
referred
to
was
not
put
before
me
in
evidence
nor
was
any
other
evidence
submitted
which
would
tend
to
show
that
the
issuing
of
the
notice
in
any
way
contravened
the
order
of
Cattanach,
J.
In
his
order
he
enjoined
the
Minister
“from
taking
further
steps
in
the
investigation
of
the
affairs
of
Richard
G
Lipsey
and
specifically
from
conducting
an
interview
with
Dr
Lipsey
.
.
.”.
In
the
absence
of
evidence
to
the
contrary,
I
cannot
see
how
the
issue
of
a
notice
of
reassessment
can
be
regarded
as
a
step
in
an
“investigation”
or
in
an
“interview”.
In
my
view
it
is
proper
to
resort
to
Mr
Justice
Cattanach’s
“Reasons
for
Judgment”
in
interpreting
his
order.
In
those
reasons
it
is
quite
apparent
that
his
concern
was
with
“inquiries”
or
“a
fishing
expedition”
pending
the
disposition
of
the
appeal
from
the
order
of
Dubé,
J.
He
did
not
intend,
in
my
view,
to
suspend
all
administration
of
the
Income
Tax
Act
vis-a-vis
Dr
Lipsey
which
is
what
his
counsel
seems
now
to
be
suggesting.
I
therefore
dismiss
the
application
for
the
remedy
requested
in
paragraph
5.
I
might
add
that
no
authority
was
provided
to
me
for
the
proposition
that
where
a
notice
of
reassessment
is
issued
in
violation
of
a
court
order
it
is
automatically
rendered
null
and
void.
I
think
that
is
a
very
questionable
proposition
but
not
one
which
I
need
address
having
concluded
as
I
do
that
there
was
no
contravention
of
Mr
Justice
Cattanach’s
order
in
this
respect.
The
relief
sought
in
paragraph
7
was
explained
by
counsel
to
be
an
alternative
if
I
declined
to
provide
the
relief
in
paragraph
5.
Having
so
declined,
I
must
then
consider
whether
the
relief
sought
in
paragraph
7
should
be
available.
It
is
all
predicated
on
this
Court
directing
the
delivery
of
a
valid
notice
of
assessment
for
the
year
1980.
Counsel
was
unable
to
refer
me
to
any
authority
that
this
Court
has
to
direct
the
issue
of
a
notice
of
assessment,
nor
did
he
establish
a
statutory
basis
for
such
a
duty
in
the
Minister
to
issue
an
assessment
as
might
be
enforceable
by
mandamus.
I
assume
that
such
duty
as
there
is
arises
under
subsection
152(1)
of
the
Income
Tax
Act
which
provides:
(1)
The
Minister
shall,
with
all
due
dispatch,
examine
a
taxpayer’s
return
of
income
for
a
taxation
year,
assess
the
tax
for
the
year,
the
interest
and
penalties,
if
any,
payable.
.
.
.
Subsection
152(2)
provides:
(2)
After
examination
of
a
return,
the
Minister
shall
send
a
notice
of
assessment
to
the
person
by
whom
the
return
was
filed.
Presumably
the
question
of
sending
a
notice
under
subsection
(2)
does
not
arise
until
the
assessment
has
been
completed
under
subsection
(1)
which
according
to
that
subsection
is
to
be
effected
“with
all
due
dispatch”.
This
phrase
was
considered
by
Fournier,
J
in
Joseph
Baptiste
Wilfrid
Jolicoeur
v
MNR,
[1961]
Ex
CR
85
at
98
where
he
said
that
these
words
“have
the
same
meaning
as
‘with
all
due
diligence*
or
‘within
a
reasonable
time’
”.
I
respectfully
agree
with
this
interpretation.
To
issue
mandamus
the
Court
must
be
satisfied
that
all
the
conditions
have
been
met
for
the
exercise
of
the
power,
and
that
in
the
circumstances
the
official
in
question
has
no
discretionary
power
to
delay
or
to
refuse
taking
the
step
which
is
sought
to
be
ordered
by
mandamus.
It
seems
doubtful
that
a
judge
could
ever
by
in
that
position
vis-à-vis
the
issuance
of
a
notice
of
assessment.
If
it
were
possible,
the
present
case
is
not
one
in
which
the
Court
can
be
satisfied
that
an
unconditional
obligation
now
exists
on
the
part
of
the
Minister
to
issue
a
notice
of
assessment
for
1980.
The
words
“with
all
due
dispatch”
invoke
a
test
of
reasonability
and
the
evidence
does
not
demonstrate
to
me
that
any
further
delay
in
issuing
this
notice
of
assessment
is
utterly
unreasonable.
While
there
were
some
considerable
delays,
for
which
no
explanation
was
offered,
prior
to
the
search
and
seizure
of
August
1983,
since
that
time
the
matter
has
largely
been
in
suspense
becuase
of
the
motion
resulting
in
the
order
of
Dubé,
J
of
September
9,
1983
and
the
appeal
from
that
order.
The
delay
in
proceeding
with
that
appeal
was
explained
by
counsel
for
the
Minister
as
related
to
the
appeals
pending
in
the
Federal
Court
of
Appeal
in
the
cases
of
MNR
v
Kruger
Inc
et
al
(A-1153-83)
and
in
Vespoli
et
al
v
The
Queen
et
al
(A-979-83),
both
of
which
also
involved
the
validity
of
authorizations
to
search
issued
under
subsection
231(4)
of
the
Income
Tax
Act.
Decisions
in
those
cases
were
not
handed
down
until
August
30,
1984.
The
appeal
from
the
order
of
Dubé,
J
in
the
present
matter
was
discontinued
by
a
notice
dated
October
29,
1984,
as
noted
earlier.
In
the
face
of
these
circumstances,
it
is
certainly
not
clear
that
the
delay
in
issuing
the
notice
of
assessment
up
to
this
point
has
been
so
unreasonable
that
there
is
an
absolute
duty
now
on
the
Minister
to
issue
the
notice,
a
duty
which
can
be
enforced
by
mandamus.
Therefore
I
am
unable
to
direct
the
delivery
of
a
notice
of
assessment
for
the
year
1980.
The
remainder
of
paragraph
7
asks
for
directions
as
to
“the
trial
of
the
issue
of
the
Applicant’s
residency
during
the
relevant
periods
.
.
.”.
This
would
in
any
event
be
premature
in
relation
to
1980
as
no
notice
of
assessment
has
yet
been
delivered
and
I
am
declining
to
order
the
delivery
of
such
a
notice.
As
for
1979,
as
I
understand
the
Income
Tax
Act
since
the
taxpayer
has
received
the
notice
of
reassessment
for
1979
it
is
now
open
to
him
to
object
to
that
reassessment
and
to
institute
an
appeal
to
this
Court
if
he
so
wishes.
If
he
does
so,
it
would
then
be
open
to
him
to
apply
for
directions
as
to
steps
to
be
taken
in
that
action.
It
may
be
that
he
can
reach
an
agreement
with
the
Minister
for
reference
of
a
question
of
law,
fact,
or
mixed
law
and
fact
to
the
Court
under
section
173
of
the
Income
Tax
Act
and
subsection
17(3)
of
the
Federal
Court
Act.
In
any
event,
until
a
proceeding
is
started
in
this
Court
with
respect
to
the
assessments,
this
Court
is
not
seized
of
those
matters
and
in
my
view
has
no
authority
to
give
directions
as
to
the
trial
of
any
issues
with
respect
to
the
correctness
of
the
assessments.
Having
said
that,
I
would
certainly
think
it
desirable
that
the
Minister
serve
a
notice
of
assessment
for
1980
and
that
the
parties
cooperate
in
obtaining,
if
necessary,
a
judicial
determination
of
the
issues
at
an
early
date.
The
remaining
specific
relief
requested
is
that
in
paragraph
8
of
the
notice
of
motion
requesting
an
interim
order
directing
the
seized
documents
and
materials
to
be
delivered
to
the
custody
of
the
Court.
This
takes
us
to
the
real
substance
of
the
present
proceedings.
When
Mr
Justice
Dubé
gave
his
order
he
naturally
assumed
that
there
would
be
an
appeal
from
that
order
and
he
therefore
only
provided
in
it
for
custody
of
the
documents
and
materials
pending
the
outcome
of
the
appeal.
He
did
not
specifically
provide
for
any
disposition
of
the
documents
should
the
appeal
be
discontinued.
Similarly
in
his
order
of
March
12,
1984
Mr
Justice
Cattanach
provided
that
his
injunction
should
continue
until
“the
disposition
of
the
appeal”,
again
without
specifically
referring
to
the
possibility
of
discontinuance
of
the
appeal.
When
discontinuance
did
occur,
the
officers
of
the
Department
of
National
Revenue
sought
to
return
the
documents
and
materials
to
Dr
Lipsey
or
his
representatives.
After
confirming
that
Dr
Lipsey
wished
the
documents
and
materials
to
be
returned
to
his
solicitors
the
officials
sought
to
do
so,
serving
the
notice
of
discontinuance
at
the
same
time.
The
solicitors
took
the
position
that
discontinuance
of
the
appeal
was
not
“final
judicial
disposition
of
the
matter”,
in
the
terms
of
the
order
of
Dubé,
J
nor
“disposition
of
the
appeal”
as
contemplated
in
the
order
of
Cattanach,
J.
They
therefore
refused
to
accept
the
documents
and
materials
and
the
National
Revenue
officials
were
obliged
to
take
away
with
them
the
objects
they
had
sought
to
return.
It
became
amply
clear
from
the
material
and
the
arguments
submitted
by
the
applicant
herein
that
his
solicitors
declined
to
receive
the
documents
and
materials
because
they
recognized
that,
once
returned
to
the
taxpayer
or
his
advisers,
they
would
become
subject
to
a
possible
search
warrant
that
might
be
sought
by
National
Revenue
under
section
443
of
the
Criminal
Code,
the
authorization
to
search
under
subsection
231(4)
of
the
Income
Tax
Act
having
been
quashed
by
the
order
of
Dubé,
J.
Further,
it
is
obvious
that
the
applicant
wishes
me
to
direct
that
the
documents
be
put
in
the
custody
of
this
Court
in
order
to
render
them
immune
from
a
search
warrant
that
might
be
duly
issued
under
the
Criminal
Code.
The
request
for
such
directions
gives
rise
to
two
basic
questions:
does
this
Court
have
any
further
jurisdiction
in
regard
to
the
modification
of
the
orders
of
Dubé,
J
and
Cattanach,
J;
and
if
so,
should
such
jurisdiction
be
exercised?
With
respect
to
the
first
issue,
I
shall
deal
first
with
the
injunction
issued
by
Cattanach,
J.
It
appears
that
he
regarded
that
as
a
permanent
injunction,
“final
in
nature”,
because
he
dismissed
the
first
application
for
the
injunction
on
the
basis
that
an
affidavit
in
support
of
the
application
was
inadequate
because
based
on
information
and
belief,
a
form
suitable
only
for
an
interlocutory
order.
I
do
not
think
any
question
arises
as
to
modification
of
his
order
and
I
therefore
need
not
consider
whether
I
would
have
jurisdiction
to
make
such
a
modification.
However,
as
there
seems
to
be
some
uncertainty
as
to
the
legal
consequences
of
the
order
in
the
light
of
the
discontinuance
of
the
appeal,
it
is
open
to
me
to
make
a
declaration
as
to
the
legal
position
in
the
light
of
what
were
apparently
unforeseen
circumstances.
I
am
satisfied
that
the
discontinuance
of
the
appeal
amounts
to
a
“disposition
of
the
appeal”
within
the
meaning
of
the
injunction
issued
by
Cattanach,
J
and
I
therefore
declare
that
that
injunction
ceased
to
have
any
effect
from
the
time
that
the
appeal
was
discontinued.
As
to
the
order
of
Dubé,
J,
it
may
be
desirable
for
the
sake
of
certainty
to
modify
paragraph
3
thereof
which
directed
only
one
form
of
custody
of
the
documents
which
was
to
continue
“pending
the
final
judicial
disposition
of
the
matter”
unless
the
parties
otherwise
agreed.
It
is
quite
arguable
that
discontinuance
of
the
appeal
amounted
to
“final
judicial
disposition”.
If
that
is
so,
then
it
would
follow
from
Vespoli
et
al
v
The
Queen
et
al
(FCA,
August
30,
1984)
and
Lewis
v
MNR
et
al
(FCTD,
November
16,
1984)
that
the
applicant
thereby
became
entitled
to
the
return
of
the
documents
and
materials
and
could
at
any
time
have
insisted
upon
their
return
using
legal
processes
if
necessary.
For
greater
certainty,
however,
having
regard
to
the
fact
that
the
parties
may
be
concerned
about
possible
liability
for
contempt
of
court,
I
am
prepared
to
make
a
supplementary
order.
Notwithstanding
the
argument
of
counsel
for
the
Minister
that
the
Court
is
functus
officio
with
respect
to
the
order
of
Dubé,
J,
I
am
satisfied
that
I
have
authority
to
modify
it
in
the
light
of
changed
circumstances
not
contemplated
in
the
order.
If
one
views
the
order
of
September
9,
1983
simply
as
based
on
an
inherent
power
of
the
Court
flowing
from
its
power
to
quash
the
search
authorization,
then
I
believe
that
Rule
1733
authorizes
me
to
vary
it
because
of
a
“matter
arising
subsequent
to
the
making
thereof’,
namely
the
discontinuance
of
the
appeal
without
any
further
judicial
order
having
intervened
to
dispose
of
the
documents.
Or,
if
the
order
is
viewed
as
an
interlocutory
mandatory
injunction,
then
by
Rule
469(5)
it
is
subject
to
amendment
by
order
of
the
Court.
Therefore,
I
will
modify
the
order
by
directing
that
the
documents
affected
by
it
be
returned
to
Dr
Lipsey’s
solicitors
Messrs
Cunningham,
Swan,
Carty,
Little
&
Bonham
unless
Dr
Lipsey
in
the
interim
directs
that
they
be
returned
to
him
instead,
such
return
to
be
effected
on
or
before
December
17,
1984.
I
have
not
considered
seriously
the
request
that
I
direct
that
all
the
documents
and
materials
be
put
in
the
custody
of
the
Court.
There
is
no
continuing
proceeding
in
this
Court
with
respect
to
which
the
documents
could
or
should
be
so
held.
The
only
proceeding
in
this
Court
in
this
matter
until
now
has
been
with
respect
to
an
authorization
to
search
and
seize
which
has
been
quashed,
and
the
disposition
of
documents
and
materials
seized
pursuant
to
that
invalid
authorization.
The
present
order
terminates
that
matter.
In
my
view
this
application
was
almost
entirely
unnecessary
and
ill-founded.
The
only
orders
which
I
am
making
are
not
in
the
form
requested
by
the
applicant.
It
may
well
have
been
unnecessary
since
as
I
have
said
the
legal
obligation
to
return
the
documents
arose
once
the
appeal
was
discontinued.
The
party
in
possession
of
the
documents
obviously
accepted
that
he
had
an
obligation
to
return
them.
Even
if
the
applicant’s
solicitors
entertained
serious
doubts
about
whether
there
had
been
“final
judicial
disposition
of
the
matter”
as
required
in
the
order
of
Dubé,
J,
it
was
certainly
open
to
them
to
agree
to
the
receipt
of
the
documents.
This
would
equally
have
freed
the
documents
from
the
restraint
of
that
order,
as
custody
was
to
be
maintained
by
the
Chief
of
Special
Investigations
“unless
counsel
for
both
parties
agree
to
a
more
convenient
disposal”
pending
final
judicial
disposition.
Obviously
National
Revenue
was
prepared
to
agree
to
the
return
because
it
was
attempting
to
return
them.
All
that
the
solicitors
for
the
applicant
would
have
had
to
have
done
to
have
met
the
requirements
of
the
order
would
have
been
to
agree
to
the
return
of
the
documents
by
simply
accepting
them.
This
application
has
been
therefore
essentially
without
merit
and
obviously
for
the
purpose
of
sheltering
the
documents
from
any
possible
search
warrant
issued
under
thé
Criminal
Code.
Consequently
I
will
direct
that
the
applicant
pay
all
the
costs
of
this
motion.
ORDER
It
is
ordered
that
1.
It
be
hereby
declared
that
the
injunction
issued
by
the
order
of
Cattanach,
J
on
March
12,
1984
ceased
to
have
any
effect
upon
discontinuance
of
the
appeal
by
the
Minister
of
National
Revenue
and
officers
of
that
Department
against
the
order
of
Dubé,
J
of
September
9,
1983.
2.
The
documents
referred
to
in
paragraph
3
of
the
order
of
Dubé,
J
of
September
9,
1983
be
returned
to
the
applicant
herein
Richard
G
Lipsey
by
means
of
delivery
to
his
solicitors
Messrs
Cunningham,
Swan,
Carty,
Little
&
Bonham
of
Kingston,
Ontario
unless
Dr
Lipsey
directs
that
they
be
delivered
to
him
instead,
such
delivery
to
be
effected
on
or
before
December
17,
1984.
3.
The
application
is
otherwise
dismissed.
4.
The
applicant
shall
pay
the
costs
of
this
motion.
Email this Content