Le
Daln,
J
(judgment
delivered
from
the
Bench)
(concurred
in
by
Heald
and
Ryan,
JJ):—This
is
a
section
28
application
to
review
and
set.
aside
an
order,
pursuant
to
subsection
232(6)
of
the
Income
Tax
Act,
to
a
custodian
of
documents,
which
were
seized
and
placed
in
custody
pursuant
to
subsection
232(3)
thereof,
to
deliver
the
said
documents
to
an
officer
designated
by
the
Deputy
Minister
of
National
Revenue
for
Taxation.
We
are
all
of
the
opinion
that
there
is
no
basis
on
any
of
the
grounds
of
review
indicated
in
section
28
of
the
Federal
Court
Act
for
setting
this
order
aside.
There
was
clearly
evidence
before
the
learned
Judge
on
which
he
could
be
satisfied,
as
required
by
subsection
232(6)
of
the
Income
Tax
Act,
that
neither
the
client
nor
the
lawyer
had
made
an
application
under
subsection
232(4)
of
the
Act
for
an
order
to
determine
the
question
whether
the
client
had
a
solicitor-client
privilege
in
respect
of
the
documents.
Various
attacks
of
a
technical
nature
were
made
on
the
evidence
before
the
learned
judge
but
they
fall
far
short,
in
our
view,
of
showing
that
there
was
error
of
law
in
coming
to
the
conclusion
that
he
did.
We
were
invited
to
consider
the
validity
of
the
authorization
to
Search
and
seize
and
the
approval
thereof
pursuant
to
subsection
231(4)
of
the
Act,
and
to
express
an
opinion
as
to
the
meaning
and
scope
of
that
subsection,
but
we
are
unable
to
do
so
because
they
are
not
the
subject
of
attack
by
this
section
28
application,
and
indeed,
the
applicant
is
well
beyond
the
time
to
bring
such
an
attack.
The
learned
judge
of
the
Supreme
Court
of
Ontario,
acting
as
a
persona
deslgnata
under
subsection
232(6)
of
the
Act,
did
not
have
Jurisdiction
to
review
the
validity
of
the
said
authorization
and
approval,
and
his
order
is
not
subject
to
attack
on
any
ground
that
might
affect
such
validity.
Accordingly,
the
section
28
application
must
be
dismissed.
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