T-4056-78
In re Income Tax Act, Canada Pension Plan and
Unemployment Insurance Act, 1971 and in re
Solway
Trial Division, Cattanach J.—Ottawa, February
27, 1979.
Practice — Application for order requiring attendance
before prothonotary for oral examination — Affiant described
as employee of Revenue Canada, Taxation — "Department of
National Revenue" is the name given by Parliament to the
department authorized to administer the Act — No change of
departmental name authorized by Parliament — Affiant,
swearing to be member of Revenue Canada, Taxation, would
not be employee of Department of National Revenue, and not
entitled to have access to information to which he purports to
swear — Application refused with leave to renew application
supported by affidavit sworn by officer of appropriate depart
ment — Department of National Revenue Act, R.S.C. 1970, c.
N-15, s. 2(1) — Income Tax Act, S.C. 1970-71-72, c. 63, ss.
220(1), 248(1)— Federal Court Rule 2200.
APPLICATION in writing under Rule 324.
COUNSEL:
T. L. James for applicant.
Benjamin J. Solway on his own behalf.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This is an application for an
order pursuant to Rule 2200 of the Federal Court
Rules to require Benjamin J. Solway, as a judg
ment debtor, to attend before a prothonotary or
such other officer of the Court as the Court may
appoint to be orally examined concerning the prop
erty he possesses.
The application is supported by an affidavit
sworn by Norman E. O'Grady which on its very
face establishes that the affiant is not qualified to
swear the affidavit and has no knowledge of the
matters to which he deposes.
When the word "Minister" is used in the
Income Tax Act it means the Minister of National
Revenue (see section 248(1)).
By virtue of section 220(1) it is the duty of the
Minister to administer and enforce the Income
Tax Act and to control and supervise all persons
employed to carry out or enforce this Act. Such
officers, clerks and employees as are necessary to
administer and enforce the Income Tax Act shall
be appointed or employed to do so in the manner
authorized by law.
In paragraph 1 of the affidavit the affiant
swears:
I am a Collections Officer at the Toronto District Office of
Revenue Canada, Taxation, and as such have knowledge of the
matters hereinafter deposed to.
In section 2(1) of the Department of National
Revenue Act, R.S.C. 1970, c. N-15, it is provided
that:
2. (1) There shall be a department of the Government of
Canada called the Department of National Revenue over which
the Minister of National Revenue appointed by commission
under the Great Seal shall preside.
Section 3 provides for the appointment of an
officer to be designated as the Deputy Minister of
National Revenue for Taxation.
The word "called" as it precedes the words "the
Department of National Revenue" means "to have
named" or "to have given as a name or as a title
to".
Therefore, Parliament in enacting section 2(1)
(supra) as it did named this particular department
of the Government of Canada the "Department of
National Revenue". That being so the Department
cannot be called by any other name such as "Reve-
nue Canada, Taxation" unless such a change in
name is authorized by Parliament by the enact
ment of an appropriate statute. This Parliament
has not done. Accordingly the name of a depart
ment as is prescribed by a statute of the Parlia
ment of Canada cannot be changed by any execu
tive or administrative action as must have been the
case in this instance, nor at the whim of some
individual.
By virtue of section 241 of the Income Tax Act
information obtained for the purposes of the Act
shall not be communicated to any person except
that an official or authorized person may so com
municate such information in the course of the
administration or enforcement of the Act.
The Income Tax Act is administered by the
Minister of National Revenue who presides over
the Department of National Revenue and is vested
with the control and supervision of all persons
appointed or employed to carry out or enforce the
Act. It follows that these persons are the
employees of the Department of National Revenue
and not a non-existent entity called Revenue
Canada.
If the affiant, as he swears he is, is an employee
of the Revenue Canada, Taxation, he would not be
an employee of the Department of National Reve
nue and if he is not an employee of that Depart
ment then he is not entitled to have access to the
information with respect to which he purports to
swear.
Accordingly the application for the order
requested is refused but with leave to the applicant
to renew the motion supported by an affidavit the
allegations in which are deposed to by an appropri
ate officer of the Department of the Government
of Canada in which the administration and
enforcement of the Income Tax Act is vested.
An order to that effect is endorsed on the notice
of motion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.