Supreme Court Judgments

Supreme Court of Canada

Herman et al. v. Deputy Attorney General (Canada), [1979] 1 S.C.R. 729

Date: 1978-10-03

William Bernard Herman, City Parking Canada Limited, The William Bernard Herman Trust, Musketeers Investments Limited, S.A., Columbus Holdings Limited, Columbus Development Corporation Limited, Dumas Investments Limited, S.A., and City Parking Holding Limited Appellants;

and

The Deputy Attorney General of Canada Respondent.

1978: May 3; 1978: October 3.

Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz and Pratte JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Income tax—Jurisdiction of Federal Court—Authorization for entry, search and seizure approved by judge of a superior or a county court—Determination of solicitor-client privilege by judge of a superior or county court—Review by Federal Court of Appeal—Income Tax Act, ss. 231, 232—Federal Court Act, R.S.C. 1970, 2nd Supp, c. 10, s. 28.

Section 231 (4) permits the Minister of National Revenue, where he has reasonable and probable grounds to believe that a violation of the Act has been committed, and upon the approval of a judge of a superior or county court, to seize and take away documents and retain them until they are produced in any court proceedings. Section 232 contains lengthy provisions as to the procedure to be followed when the document to be seized is in the possession of a solicitor and the lawyer claims that a named client of his has a solicitor-client privilege in respect of that document. The Minister caused to be seized certain documents in the possession of a Toronto law firm which firm claimed solicitor-client privilege. In accordance with the s. 232 procedure the matter came before a judge of the Supreme Court of Ontario who ordered that six letters and seven memoranda be delivered to the lawyers and that four letters and four memoranda be delivered to an officer designated by the Deputy Minister of National Revenue, but only after an appeal or application for leave to appeal from or for judicial review of, the order, if any, be disposed of. Appellants brought a s. 28 application to the Federal Court of Appeal to review and set aside that part of the order declaring that certain documents were

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not privileged. Appellants thereafter made an interlocutory application under Federal Court Rule 1402(2), to vary the contents of the ‘case’, so as to exclude the documents in respect of which privilege was claimed, on the basis that public access to the contents of the case would vitiate the claim to privilege. The motion was dismissed. The determinative issue on further appeal was whether the Federal Court of Appeal, on a s. 28 application, has the right to review and set aside the order of a judge of a superior court of one of the provinces made pursuant to s. 232 of the Income Tax Act, 1970-71-72 (Can.), c. 63, as amended.

Held: The appeal should be dismissed.

Per Laskin C.J. concurring in the result: The time has come when the Courts should be relieved of the interpretative exercises often necessary to determine whether a statutory jurisdiction has been vested in a judge qua judge or as persona designata. The whole persona designata concept can be abandoned without either inconvenience or distortion of legal principles. The concept came from the Courts and can be modified or abolished by the courts. This Court should declare that whenever a statutory power is conferred upon a judge or officer of a Court, the power should be deemed exercisable in official capacity as representing the Court unless there is express provision to the contrary.

Per Martland, Ritchie, Pigeon, Dickson, Beetz and Pratte JJ.: A canvass of the Canadian authorities reveals a distinct need for a greater element of certainty in the application of the notion of persona designata. A judge does not become persona designata from the mere fact that he is administering a piece of federal legislation. As a rule one would expect that a judge enforces or applies legislation as an unexceptional function performed within his jurisdiction though from time to time a judge may be utilized outwith that jurisdiction for the purpose of giving effect to exceptional statutory tribunals or functions. Prima facie Parliament should be taken to intend a judge to act qua judge whenever by statute it grants powers to a judge. The test to be applied in considering whether a contrary intention, i.e. that the judge should act in the special capacity of persona designata, appears in the relevant statute is whether the judge is exercising a peculiar, and distinct, and exceptional jurisdiction, separate from and unrelated to the tasks which he performs from day-to-day as a judge, and

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having nothing in common with the court of which he is a member.

Section 232 of the Income Tax Act requires a judge to decide the issue of solicitor-client privilege, an issue which can arise in any civil or criminal case and is a routine exercise of judicial power. There is nothing unusual or exceptional about it. Further as the definition of solicitor-client privilege in s. 232(1)(e) refers to the right, if any, which a person has in the superior court, in the province where the matter arises, to refuse to disclose an oral or documentary communication, the exercise of the s. 232 power involves an application of the provincial law.

[Dep. A.G. (Can.) v. Brown, [1965] S.C.R. 84; Hynes v. Swartz; Re Architects Act, [1938] 1 D.L.R. 29; Canadian Northern Ontario Railway Company v. Smith (1914), 50 S.C.R. 476; Re The Sheffield Waterworks Act, 1864. (1865), 1 L.R. Ex. 54; The Canadian Pacific Railway Company v. The Little Seminary of Ste. Thérèse (1889), 16 S.C.R. 606; St. Hilaire v. Lambert (1909), 42 S.C.R. 264; Godson v. The Corporation of the City of Toronto (1890), 18 S.C.R. 36; Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228; Re Sproule (1886), 12 S.C.R. 140; R. v. Northumberland Ferries Ltd., [1945] S.C.R. 458; Scott v. Vardy, [1977] 1 S.C.R. 293 referred to.]

APPEAL from a judgment of the Federal Court of Appeal dismissing an application to review and set aside an order of Boland J. made pursuant to s. 232 of the Income Tax Act, 1970-71-72 (Can.), c. 63 as amended. Appeal dismissed.

John Clow, for the appellants.

G.W. Ainslie, Q.C., and Geoffrey J.R. Dyer, for the respondent.

THE CHIEF JUSTICE—I agree with my brother Dickson that this appeal should be dismissed. What persuades me to add the observations that follow is my conviction that it is high time to relieve the Courts of the interpretative exercises that have been common in this country when they think that a decision has to be made whether a statutory jurisdiction has been vested in a Judge qua Judge or as persona designata. More than fifty years ago, D.M. Gordon, one of Canada’s outstanding scholarly practitioners, wrote in the Canadian Bar Review (see (1927), 5 Can. Bar

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Rev. 174, at p. 185) that “the whole persona designata conception could be scrapped without the slightest inconvenience or the least distortion of legal principles”. I agree completely with this sentiment.

I find it odd (and Dickson J. has canvassed the authorities) that, although the concept of persona designata has been ignored in the United States, and has had little contemporary force in England where the concept originated, it seems to have a vigorous existence in Canada. The seminal case in England, seminal so far as Canadian acceptance was concerned, is Re Sheffield Waterworks Act[1] a case involving a private Act relating to claims against the Sheffield Waterworks Company for damages for its admitted negligence and to the determination of costs, in case of dispute, by a master of a superior court. The theory upon which the Court in that case acted, namely that the taxing master exercised an unusual function unrelated to his normal function and that his authority came from an Act of Parliament and was not part of his judicial authority, exhibits a primitive stage in judicial understanding of administrative law. Nowadays, the vesting of statutory functions in Courts or other tribunals is commonplace, and nothing of substance is added in trying to apply a distinction between ordinary curial duties of a Judge and statutory duties. I do not think, therefore, that Hynes v. Swartz[2], is any longer acceptable in drawing a distinction between powers exercisable by a Judge under The Ontario Judicature Act and powers vested in a Judge by another public Act, a regulatory statute respecting a profession.

Dickson J. referred in his reasons to two early cases in this Court which came to opposite conclusions on whether powers conferred by statute upon a Judge were his qua Judge or qua persona designata. I much prefer the reasoning in Re Sproule[3] to that in C.P.R. v. The Little Seminary of Ste.

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Thérèse[4]. I see no distinguishing point of principle in the fact that the former case dealt with powers under the then Supreme and Exchequer Courts Act and the latter dealt with powers under the Railway Act. The fact that a new type of jurisdiction is conferred by statute upon a Judge or upon a Court should not signal any need, by that fact, to consider whether the jurisdiction is exercisable only as persona designata.

The quality of justice rendered by a Judge does not depend on whether he acts as Judge or as persona designata. Where the distinction is made, it has been done for the purpose of reaching beyond the Judge’s decision in order to consider its reviewability, either by straight appeal or by judicial review through the prerogative writs or their statutory replacement. If an appeal is provided, the need for the distinction is pointless; if it is not provided, review would still be open through the prerogative writs or their statutory substitute, and only in the case of a superior court Judge would the right of such review depend on holding that the function or power in question was exercised as persona designata.

The enactment of the Federal Court Act, R.S.C. 1970, c. 10 has simply added to the complication as to appeal or reviewability that persistence with persona designata has generated. A power of review is vested in the Federal Court of Appeal by s. 28 of the Act in respect of judicial or quasi-judicial decisions of a “federal board, commission or other tribunal”, defined in s. 2(g) as covering persons or agencies exercising powers under an Act of the Parliament of Canada and not appointed under the law of a Province nor under s. 96 of the British North America Act (which provides for federal appointment of superior, district and county court Judges of provincial Courts). As a result of this provision, a fresh interpretative exercise is added where statutory powers are vested in a Judge of a provincial Court under federal legislation, namely, to decide whether the Judge is exercising those powers qua Judge (and so governed by

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provincial appeal or review procedures) or as persona designata, and thus subject to the reviewing authority of the Federal Court of Appeal.

Two recent judgments of this Court give point to my call for abandoning the persona designata conception, at least where it turns on distinguishing statutory functions of a Judge as being curial or “normal” duties in some cases and non-curial in others. The two cases are Commonwealth of Puerto Rico v. Humberto Pagan Hernandez[5] and Scott v. Vardy[6]. The four dissenting Judges in the Hernandez case, I being one of them, did not find it necessary, in the view taken by them, to consider the application of the persona designata doctrine, but it was considered in the majority reasons delivered by Pigeon J. The main issue in the Hernandez case, as viewed by the majority, was whether the decision of a county court Judge, discharging a person who had been apprehended on an extradition warrant, was reviewable by the Federal Court of Appeal under s. 28 of the Federal Court Act. This depended on whether the extradition Judge was a “federal board, commission or other tribunal” under s. 2(g) of the Act. Since, in this case, he was a s. 96 appointee was he not excluded by express words from the categories of “federal board, commission or other tribunal”?

Pigeon J. held, however, that an extradition Judge exercised his powers as persona designata and not as Judge, emphasizing the fact that the Extradition Act, now R.S.C. 1970, c. E-21 reposes its jurisdiction in extradition commissioners who are not Judges. The relevant provision of the Act is s. 9(1), reading as follows:

9. (1) All judges of the superior courts and of the county courts of a province, and all commissioners who are from time to time appointed for the purpose in a province by the Governor in Council, under the Great Seal, by virtue of this Part, are authorized to act judi-

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cially in extradition matters under this Part, within the province; and every such person has, for the purposes of this part, all the powers and jurisdiction of any judge or magistrate of the province.

It seems to me, and I say this with great respect to the majority decision in Hernandez, that s. 9 by its very words raises extradition commissioners into the ranks of Judges; and although they are not s. 96 Judges, provision for their appointment should not be taken to reduce the character of superior or county court Judges who are vested with jurisdiction under the Extradition Act. Prior to the enactment of the Federal Court Act, it was admittedly the case that extradition determinations were not reviewable either by appeal or otherwise save that habeas corpus lay to challenge a commitment for extradition. There is certainly incongruity in subjecting a superior court Judge of a Province to review of his decisions by the Federal Court of Appeal. If it is so with the Extradition Act, does it also become so with other federal Acts or are the Courts, and especially this Court, to become involved in an interpretative exercise to decide whether a Judge of a provincial superior Court is acting as Judge or as persona designata? This may mean review by the Federal Court if power is being exercised under a federal statute and appeal or no review if power is being exercised under a provincial statute. Far more rational, in my view, to let the provincial law operate in respect of appeal or review of judgments of Judges of provincial Courts.

Scott v. Vardy, supra, was also a decision under the Extradition Act. There one of the questions was whether the magistrate, a provincial appointee, who took depositions under the Act was, like the Judge in the Hernandez case, amenable to the reviewing authority of the Federal Court of Appeal as a persona designata. This Court, unanimously said no. I find it difficult to appreciate the differentiation of functions in the two cases leading to different results which put the higher judicial functionary under the Federal Court of Appeal supervision and left the magistrate to be controlled under provincial authority. I think that

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a conception which leads to such results has outlived its day.

I suppose that a trial Judge of the Federal Court could also be found to be acting as persona designata under a federal statute. But what practical purpose would such a finding serve? His judgment qua Judge would be appealable and as persona designata would be broadly reviewable, having regard to the wide scope of s. 28. It seems to me that the present case, which includes such Judges in the designation of those empowered to exercise the powers conferred by s. 232 of the Income Tax Act, 1970-71-72 (Can.), c. 63, as amended, points to the unlikelihood that trial Judges of the Federal Court would be exercising statutory functions in any other character than as a Judge of the Court.

In his article in the Canadian Bar Review, above mentioned, Mr. Gordon suggested an amendment to the federal and provincial Interpretation Acts to the following effect:

Whenever by any statute judicial or quasi-judicial powers are given to a judge or officer of any Court, in the absence of express provision to the contrary, such judge or officer shall be deemed to exercise such powers in his official capacity, and as representing the Court to which he is attached.

I endorse the principle he expresses, but I am of the opinion that it is open to this Court to lay down a similar rule without the aid of legislation. The concept of persona designata came from the Courts and it can be modified or abolished by the Courts. In my view, I think this Court should declare that whenever a statutory power is conferred upon a Judge or officer of a Court, the power should be deemed exercisable in official capacity as representing the Court unless there is express provision to the contrary.

The judgment of Martland, Ritchie, Pigeon, Dickson, Beetz and Pratte JJ. was delivered by

DICKSON J.—The threshold, and in my opinion determinative, issue in this appeal is whether the Federal Court of Appeal, on a s. 28 application, has the right to review and set aside an order of a

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judge of a superior court of one of the provinces made pursuant to s. 232 of the Income Tax Act, 1970-71-72 (Can.), c. 63, as amended. The point is narrow but of considerable importance as affecting the jurisdiction of the Federal Court.

The facts are these. Section 231(4) of the Income Tax Act permits the Minister of National Revenue, where he has reasonable and probable grounds to believe that a violation of the Act has been committed, and upon the approval of a judge of a superior or county court, to seize and take away documents and retain them until they are produced in any court proceedings. Section 232 of the Act contains lengthy provisions as to the procedure to be followed when the document to be seized is in the possession of a lawyer, and the lawyer claims that a named client of his has a solicitor-client privilege in respect of that document. The central provisions are subsections (4), (5) and (6), which read as follows:

(4) Where a document has been seized and placed in custody under subsection (3), the client, or the lawyer on behalf of the client, may

(a) within 14 days from the day the document was so placed in custody, apply, upon 3 days’ notice of motion to the Deputy Attorney General of Canada, to a judge for an order

(i) fixing a day (not later than 21 days after the date of the order) and place for the determination of the question whether the client has a solicitor-client privilege in respect of the document, and

(ii) requiring the custodian to produce the document to the judge at that time and place;

(b) serve a copy of the order on the Deputy Attorney General of Canada and the custodian within 6 days of the day on which it was made, and, within the same time, pay to the custodian the estimated expenses of transporting the document to and from the place of hearing and of safeguarding it; and

(c) if he has proceeded as authorized by paragraph (b), apply, at the appointed time and place, for an order determining the question.

(5) An application under paragraph (4)(c) shall be heard in camera, and on the application

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(a) the judge may, if he considers it necessary to determine the question, inspect the document and, if he does so, he shall ensure that it is repackaged and resealed; and

(b) the judge shall decide the matter summarily and,

(i) if he is of opinion that the client has a solicitor-client privilege in respect of the document, shall order the custodian to deliver the document to the lawyer, and

(ii) if he is of opinion that the client does not have a solicitor-client privilege in respect of the document, shall order the custodian to deliver the document to the officer or some other person designated by the Deputy Minister of National Revenue for Taxation,

and he shall, at the same time, deliver concise reasons in which he shall describe the nature of the document without divulging the details thereof.

(6) Where a document has been seized and placed in custody under subsection (3) and a judge, on the application of the Attorney General of Canada, is satisfied that neither the client nor the lawyer has made an application under paragraph (4)(a), or, having made that application neither the client nor the lawyer has made an application under paragraph (c) thereof, he shall order the custodian to deliver the document to the officer or some other person by the Deputy Minister of National Revenue for Taxation.

Section 232(1)(a) defines “judge” in these terms:

(a) “judge” means a judge of a superior court having jurisdiction in the province where the matter arises or a judge of the Federal Court of Canada;

“Solicitor-client privilege” has also been defined, in s. 232(1)(e), as follows:

(e) “solicitor-client privilege” means the right, if any, that a person has in a superior court in the province where the matter arises to refuse to disclose an oral or documentary communication on the ground that the communication is one passing between him and his lawyer in professional confidence, except that for the purposes of this section an accounting record of a lawyer, including any supporting voucher or cheque, shall be deemed not to be such a communication.

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Pursuant to the authority reposed in him by the Act, the Minister caused to be seized certain documents in the possession of the legal firm of Goodman and Carr, in the City of Toronto. That firm claimed solicitor-client privilege in respect of the documents and the procedure for resolving that issue, as prescribed by s. 232 of the Income Tax Act, was followed. The matter came before Madam Justice Boland, a judge of the Supreme Court of Ontario, who ordered that six letters and seven memoranda be delivered to the lawyers, and that four letters and four memoranda be delivered to an officer designated by the Deputy Minister of National Revenue for Taxation. The order of Madam Justice Boland contained a further provision that the documents not be delivered until an appeal or application for leave to appeal from, or for judicial review of, the order, if any, be disposed of, provided that such appeal or application be filed with the appropriate court within ten days of the date of the order.

The appellants thereafter made an application under s. 28 of the Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10, to review and set aside that part of the order in which Madam Justice Boland declared that certain documents seized by the Department were not privileged. That application was followed by an interlocutory application for an order, under Federal Court Rule 1402(2), to vary the contents of the “case” so as to exclude the documents in respect of which solicitor-client privilege was claimed. The grounds upon which the interlocutory motion was advanced were: that the documents constituted part of the “case” (Rule 1402(1)(b) and (d); that public access may be had to the contents of a “case” (Rule 201(3)); that such access would vitiate the appellants’ claim to privilege, and therefore the issues before the Court should be determined both on the contents of the “case” and the contents of the said documents.

The motion was dismissed, the Chief Justice delivering the reasons for judgment of the Federal Court of Appeal, and the present appeal followed.

In argument before the Federal Court of Appeal counsel agreed that the interlocutory application

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should be treated as a general application for an order for directions:

(a) adding the documents in question to the “case” as constituted by Rule 1402(1), and

(b) requiring that such documents be placed before the Federal Court of Appeal in some manner whereby they would not be available for examination except by that Court.

The Chief Justice was of the view that that part of Madam Justice Boland’s order in which she directed that the documents “not be delivered” until some time in the future was not authorized by s. 232. It followed, therefore, in the opinion of the Chief Justice, that the continued custody of the Sheriff was of the same character as the custody of the Sheriff in Deputy Attorney General of Canada v. Brown[7].

With respect to the merits of the application, the Federal Court of Appeal held that even if it had the power to make an order that a certain part of the “case” should be sealed up, nevertheless, it would not be appropriate to make an order in the circumstances for the following reasons (per Jackett C.J.):

(a) having regard to the reasoning of the Supreme Court of Canada in The Deputy Attorney General of Canada v. Brown dealing with section 232 when it was section 126A of the Income Tax Act, it would be entirely academic for the Court to set aside the decision or order that is under attack, and

(b) assuming that the Court’s jurisdiction under section 28 extends to reviewing the decision or order of a judge under section 232 of the Income Tax Act as to whether a particular document is subject to solicitor-client privilege, a matter concerning which I have doubt, such jurisdiction should not, in my view, be exercised in respect of an entirely academic matter any more than an appeal should be exercised once the order or decision attacked ceases to have any practical effect.

The judgment concludes:

If the Court cannot, on the section 28 application, review the order under attack from the point of view of

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the availability of solicitor-client privilege with reference to particular documents, in my view, it is clear that there is, except possibly in exceptional circumstances that I do not perceive here, no point in adding such documents to the case as constituted by Rule 1402(1). I am, therefore, of the view that the interlocutory application should be dismissed.

It will be noted that the Chief Justice expressed doubt whether the jurisdiction of the Federal Court of Appeal, under s. 28, extends to reviewing the decision or order of a judge, under section 232 of the Income Tax Act, as to whether a particular document is subject to solicitor‑client privilege. With respect, I share that doubt. For the reasons which follow, I have concluded that the jurisdiction of the Federal Court of Appeal does not extend to reviewing the decision or order of a federally-appointed provincial judge under s. 232 of the Income Tax Act.

Under s. 28(1) of the Federal Court Act, the Federal Court of Appeal has jurisdiction to review and set aside the order of Madam Justice Boland only if, in making the order, she was acting as a “federal board, commission or other tribunal.” The definition of “federal board, commission or other tribunal,” is found in s. 2(g), which, insofar as relevant, reads:

(g) “federal board, commission or other tribunal” means… any person… exercising… jurisdiction or powers conferred by or under an Act of the Parliament of Canada, other than… any such person… appointed… under section 96 of The British North America Act, 1867. [emphasis added]

Madam Justice Boland was appointed under s. 96 of The British North America Act, 1867.

From a reading of s. 2(g) of the Act one could readily draw the conclusion that it was the intention of Parliament that no decision of a federally-appointed judge of a provincial court would be subject to the review jurisdiction of the Federal Court of Appeal, nor subject to the jurisdiction of the Trial Division under s. 18, which is similarly

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restricted to any federal board, commission or other tribunal.

The appellants contend, however, that where a statute confers on a class of judges a special and peculiar jurisdiction, outside of and independent of their jurisdiction as members of the court, any member of that class who exercises the authority so given does so as persona designata. Hynes v. Swartz; Re Architects Act[8] is cited in support of this proposition, as is Canadian Northern Ontario Railway Company v. Smith[9]. It is also urged that where a judge entertains an application under s. 232 of the Income Tax Act, he does so as persona designata and not as s. 96 judge. If so, the concluding words of s. 2(g) of the Federal Court Act would not exclude his decisions and orders from review by the Federal Court of Appeal.

The issue then is whether a judge making an order under s. 232 of the Income Tax Act is acting by virtue of his appointment as a judge, or as persona designata. When a person who is a judge is given powers under a particular statute to make a certain type of decision, it is a question of statutory interpretation whether he is acting qua judge, or merely by virtue of the power conferred on him by the particular statute. The line is sometimes difficult to draw in practice.

The concept of persona designata is somewhat of an anomaly. It appears to be unknown to American law. Its application in English law is largely as an aid in the construction of wills. The other limited application in England has been in respect of the taxation of costs. In the case of Re The Sheffield Waterworks Act, 1864[10] an Act had been passed to provide for the assessment of compensation claimed against the Sheffield Waterworks Company for damage caused by the bursting of their reservoir. The Act constituted a body of commissioners for settling claims. It was provided that the commissioners might give a certifi-

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cate for costs and, in the case of difference, such costs could be “taxed and settled by a master of a superior Court of Law at Westminster.” It was held that the taxing masters, under this provision, rather resembled appraisers called in by the parties to settle a claim, that the taxation of costs was incurred in a matter wholly outside the jurisdiction of the Exchequer Court, and there being no judgment or award of that court, there was no foundation for an appellate jurisdiction. The masters taxed as personae designatae and not as officers of the court, therefore the court had no jurisdiction to review their taxation.

“Persona designata” is defined in Jowitt’s Dictionary of English Law (2nd ed.) as “a person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character.” The same definition is found in Black’s Law Dictionary (4th ed. Rev.) and in Osborn’s Concise Law Dictionary (3rd ed.). If this definition is applied, it is plain that Madam Justice Boland would not be regarded as persona designata, as she is not described in the Income Tax Act as an individual, but rather ascertained as a member of a class.

In Canada, the notion of persona designata not only fell on more fertile soil than in England and the United States, but it has been given also an application wider than, and different from, the law dictionary definition. There is apparent in the cases, if I may say so, a looseness of language and thought which has done nothing to assure certainty in the application of the persona designata construction. The following passage from an address delivered by Mr. D.M. Gordon, published in (1927), 5 Can. Bar Rev. 174, at p. 184, in my view, is as true today as in 1927:

I can feel little doubt that most men’s verdict, after experience with the persona designata idea, is that however plausible it may be, it is little better than a trap for the unwary. While a few ways of determining the intentions of the Legislature are settled, the want of tests in any way conclusive creates deplorable uncertain-

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ty. And the limits to which principles now established will be extended is not yet realized. There are a hundred sections in our statutes, not yet construed which invite attempts to apply the persona designata construction, and in most cases it would puzzle Solomon to predict the view which will prevail. As a wrong guess will render all proceedings void, the hardship to litigants is obvious.

Let us now examine the leading authorities in an endeavour to determine whether Madam Justice Boland, hearing an application under s. 232 of the Income Tax Act, did so as a judge of the Supreme Court of Ontario, or merely as a person designated by the Act, i.e. “as a sort of statutory arbitrator.”

The Canadian case of greatest influence in this branch of the law is The Canadian Pacific Railway Company v. The Little Seminary of Ste. Thérèse[11]. A judge of the Superior Court of Quebec in Chambers had granted an order under the Railway Act, R.S.C. 1886, c. 109, for payment to the seminary of certain moneys deposited by the railway company as security for land taken for railway purposes. On appeal to this Court from a judgment of the Court of Queen’s Bench for Lower Canada (Appeal Side), a jurisdictional question arose as to whether the proceeding was in the Superior Court, or was merely the act of the judge as one of the class of persons designated by the statute for a particular duty. In concluding that the judge acted as persona designata, and did not represent the court to which he was attached, Patterson J., who wrote the principal judgment, referred to one authority only, Re The Sheffield Waterworks Act, supra. He rested his conclusion upon two grounds (i) the functions assigned to “the judge” by the Railway Act (for example, the right to appoint a surveyor or an arbitrator and issue a warrant to give possession of land to the railway company) were functions “which from their nature and object must be intended to be exercised in a summary manner and not liable to the delay incident to the appeals from court to court,” and (ii) the language of the statute which

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assigned to “the court” certain duties connected with adjudicating upon questions of title, preserving throughout a distinction between “the judge” and “the court.” Neither of these criteria has application in the case at bar. No distinction is drawn in s. 232 of the Income Tax Act between court and judge. Although s. 232(5)(b) speaks of the judge deciding the matter summarily, I do not think this aids in determining whether a judge acting under s. 232 is doing so qua judge or qua persona designata, since if the contentions of the appellants are accepted and it is held that Madam Justice Boland was persona designata, there would be available to the appellants a right of review by the Federal Court of Appeal. The finality which Mr. Justice Patterson associated with a decision of a persona designata no longer exists.

In St. Hilaire v. Lambert[12] a judge of the Supreme Court of Alberta in Chambers refused to cancel a liquor licence under the Liquor Licence Act of Alberta. An appeal from a judgment of the full court reversing this order was brought to this Court, but dismissed, the Chief Justice stating merely:

The majority of the Court are of opinion that this case comes within the principle decided in The Canadian Pacific Railway Co. v. The Little Seminary of Ste. Thérèse, and that we are without jurisdiction.

The motion to quash is granted, with costs which are taxed at fifty dollars.

The judgment adds nothing to the Ste. Thérèse case.

Canadian Northern Ontario Railway Company v. Smith, supra, is another “Railway Act” case which came before this Court. It arose out of the claim of a lessee to special notice, and special arbitration as to his compensation, following expropriation of land by the railway company. The Chief Justice, Sir Charles Fitzpatrick, considered

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that the case came within the rule in The Canadian Pacific Railway Company v. Little Seminary of Ste. Thérèse, supra. He said, p. 479:

Here the judge to whom the application was made under the Dominion “Railway Act” was, it is true, a judge of the Superior Court of the Province, but for the purposes of that application his jurisdiction was “special and peculiar, distinct from, and independent of any power or authority with which he is clothed as a judge of that court.” The Act conferring jurisdiction upon him provides all necessary materials for the full and complete exercise of such jurisdiction in a very special manner, wholly independent of, and distinct from, and at variance with, the jurisdiction and procedure of the court to which he belongs (sections 194, 195, 196, 197 et seq. “Railway Act”).

If the foregoing criteria be applied, it is difficult to conceive that Madam Justice Boland, acting under s. 232 of the Income Tax Act, would qualify as persona designata.

Mr, Justice Duff in the same case said, p. 480:

The jurisdiction created by section 196 of the “Railway Act” is not, I think, a jurisdiction given to the Superior Court or County Court as the case may be, but to the judge or judges of those courts. In other words, when acting under that section the judge does not exercise the powers of the court as such but the special powers given by the Act.

In Godson v. The Corporation of the City of Toronto[13], the council of the City of Toronto, pursuant to The Municipal Act, R.S.O. 1887, c. 184, passed a resolution directing a county court judge to inquire into dealings between the City and persons who were, or had been, contractors for civic works, and to ascertain if the City had been defrauded out of public moneys in connection with the contracts. A majority of this Court held that the proceeding before the county court judge was in no sense a judicial proceeding. The object of the inquiry was simply to obtain information for the council. The county judge was in no way acting judicially; he was in no sense a court; he had no

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powers of pronouncing any judgment, decree, or order. That being the case, he was not subject to control by writ from a superior court. There is a marked difference between the situation in which a named judge inquires into alleged fraud, in which case the judge may well be regarded as persona designata, indeed, within the dictionary definition, and the situation where, as here, provision is made for an application “to a judge” to decide whether a client has a solicitor-client privilege in respect of a seized document.

In the recent case of Commonwealth of Puerto Rico v. Hernandez[14], the question arose whether a county court judge acting as an extradition commissioner was excluded, because of his appointment under s. 96 of the B.N.A. Act, 1867, from the definition of “federal board, commission or other tribunal.” Speaking for a majority of the Court, Mr. Justice Pigeon said, p. 238:

In my view, the exclusion applies to such appointees when they are acting as such, that is when exercising the jurisdiction of a county court judge. This is not the case under the Extradition Act. When the powers of an extradition commissioner are exercised by a county court judge, he is acting as persona designata, that is a person deriving his authority, not from his appointment, but from a special act of Parliament.

The criteria defining the situation of a judge acting as persona designata were considered in numerous cases, including C.P.R. v. Little Seminary of Ste. Thérèse (1889), 16 S.C.R. 606; Godson v. The City of Toronto (1890), 18 S.C.R. 36; St. Hilaire v. Lambert (1909), 42, S.C.R. 264; Canadian Northern Ontario Railway Co. v. Smith (1914), 50 S.C.R. 476; Plante v. Forest, [1936] 61 Que. K.B. 8, and Hynes v. Swartz, [1938] 1 D.L.R. 29. It is a well-established distinction and under the Extradition Act it is especially clear that a judge acts as persona designata because the same powers may be exercized by Commissioners who are not judges.

The judgment in Hernandez establishes that the right of judicial review contained in s. 28 of the

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Federal Court Act is available in respect of a judge acting as persona designata under a federal statute, and the likelihood of being found to be so acting is enhanced if the powers exercised are exercisable also by those who are not judges. The question in each will be whether the judge was acting persona designata. The quoted passage directs attention to whether, when the powers in question are exercised, the judge derives his authority from a special act of Parliament, or from his appointment as judge.

A review of the judgments of this Court on the subject under discussion would not be complete without reference to two other cases. In Re Sproule[15], section 51 of the Supreme and Exchequer Courts Act, 1875 (Can.), c. 11, empowering a judge of the Supreme Court of Canada to issue the writ of habeas corpus ad subjiciendum fell to be considered. It was held that, although the power came from the federal statute, it was not a jurisdiction conferred on the judge outside of and independent of the court. The exercise of the power was subject to the Court’s inherent power of review unless the contrary appeared. In The King v. Northumberland Ferries Ltd.[16] the Minister of Justice, under the War Measures Act, R.S.C. 1927, c. 206, had referred to the Exchequer Court a claim for compensation in respect of two ships. The Crown appealed to this Court against the award. It was argued that the Exchequer Court was curia designata and, no appeal being provided by the War Measures Act, there was no right of appeal. The contention was rejected. Chief Justice Rinfret had this to say, p. 466:

When all is said and considered, the question of whether a court or judge indicated in a statute is intended as a persona designata depends upon the construction to be given to the statute wherein the said court or judge is indicated; and, in the present instance, there is a strong presumption that Parliament meant the appointed court or judge to act in its judicial capacity.

It is to be noticed that the statute giving the authority or jurisdiction to each of the courts enumerated in section 7 or to a judge thereof, does not purport to grant or to give special and independent powers either to the court or to the judge to whom the reference is made. It

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says that the Minister of Justice should refer the matter of compensation to the court or to a judge thereof, without more.

When once the reference is made, the court or the judge is to deal with the matter in the ordinary way and according to the powers vested in it by the general Act and the inherent powers which it already possesses. Indeed, if the court or judge chosen by the Minister of Justice were not to resort to the powers vested in them by the general Act and in the ordinary way, it would seem that the exercise of its jurisdiction would be practically unworkable.

A canvass of the Canadian authorities reveals a distinct need for a greater element of certainty in the application of the notion of persona designata. Hundreds of federal laws are administered daily by federally-appointed judges of provincial courts. Yet a judge cannot become persona designata from the mere fact that he is administering a piece of federal legislation. As a rule, one would expect that a judge enforces or applies legislation as an unexceptional function performed within his ordinary jurisdiction. From time to time, however, a judge may be utilized outside that jurisdiction for the purpose of giving effect to exceptional statutory tribunals or functions.

Prima facie, Parliament should be taken to intend a judge to act qua judge whenever by statute it grants powers to a judge. He who alleges that a judge is acting in the special capacity of persona designata must find in the specific legislation provisions which clearly evidence a contrary intention on the part of Parliament. The test to be applied in considering whether such a contrary intention appears in the relevant statute can be cast in the form of a question: is the judge exercising a peculiar, and distinct, and exceptional jurisdiction, separate from and unrelated to the tasks which he performs from day-to-day as a judge, and having nothing in common with the court of which he is a member?

In the present instance, I think that Parliament intended a judge deciding the issue of privilege, pursuant to s. 232 of the Income Tax Act, to act in his or her capacity as a judge. An issue of solicitor-client privilege can arise in any civil or criminal

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case. There is nothing unusual or exceptional about that. It is a routine exercise of inherent judicial power. The definition of solicitor-client privilege (s. 232 (1)(e)) refers to the right, if any, which a person has in the superior court, in the province where the matter arises, to refuse to disclose an oral or documentary communication. The subject matter is not purely factual. The exercise of the power involves an application of the provincial law.

Section 232 does not set up a separate tribunal, or commission, or board. It does not assign special machinery or materials. The procedure followed in the instant case (i.e. the notice of motion, hearing and order) were in accordance with the normal practice of the Supreme Court of Ontario. The order is entitled in that court. The court registry was used. Madam Justice Boland was not following some unusual course to which the machinery of the court was not adapted.

Section 232 merely asks the judge to inspect certain documents and decide whether, according to the law of the province, privilege attaches. It is difficult to conceive of a more typical, or more commonplace, judicial function. The judge does not exercise any special and peculiar jurisdiction outside of, and independent of, any authority with which he or she is clothed as a judge of the court.

Additionally, there are at least three internal pieces of evidence which negate persona designata: (1) s. 232(8) authorizes subsequent applications to another judge where the judge to whom an application has been made cannot act or continue to act; (ii) s. 232(9) provides that no costs be awarded, an unnecessary provision if the judge is acting as persona designata, for at common law a person so acting was powerless to award costs; (iii) s. 232(14) speaks of the client being afforded an opportunity of waiving the claim of privilege before the matter comes on to be decided by a judge “or other tribunal.”

I conclude that a judge entertaining an application under and exercising authority given by s. 232 of the Income Tax Act does so in his judicial

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capacity. He therefore falls within the exception to s. 2(g) of the Federal Court Act, and his decision or order is not subject to review by the Federal Court of Appeal under s. 28 of that Act. Accordingly, the present appeal must fail. Such result, in my view, is not in conflict with the views expressed in this Court in The Deputy Attorney General of Canada v. Brown, supra. In that case, an officer of the Department of National Revenue attended at the office of Brown, a barrister and solicitor, in the course of a “spot check” of lawyers’ records, and asked him for permission to examine his trust account books and records. Brown refused permission. He contended that his clients had a solicitor and client privilege in respect of the books and records. The documents were seized and delivered into the custody of the sheriff of the County of Vancouver. Brown then applied pursuant to s. 126A (now s. 232) of the Income Tax Act, R.S.C. 1952, c. 148. The matter came on for hearing before Sullivan J. who held that a solicitor and client privilege existed in respect of the documents in question and ordered that the sealed package of documents be delivered to Brown forthwith: (1962), 62 D.T.C. 1331 (B.C.S.C). On appeal, a majority of the Court of Appeal for British Columbia held that in hearing the application, Sullivan J. was acting as persona designata, and there being no statutory provision for appeal from his decision, the Court of Appeal did not have jurisdiction to entertain the appeal: (1964), 64 D.T.C. 5107. The Deputy Attorney General made two applications to this Court for leave to appeal, the first from the decision of Sullivan J. as being a decision of the “highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed” within the wording of s. 41 of the Supreme Court Act, R.S.C. 1952, c. 259, and the second from the decision of the Court of Appeal of British Columbia that it did not have jurisdiction to hear an appeal from an order of Sullivan J. Both applications were dismissed. As to the second application, Martland J. who delivered the judgment of the Court said, at p. 87:

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In so far as the latter application is concerned, despite the fact that the application for leave has been made, counsel for both parties submitted that no appeal did lie to the Court of Appeal of British Columbia because, this being a statute enacted by the Federal Parliament, a right of appeal to the Court of Appeal of British Columbia could only have been given by the terms of a Federal statute and no such right had been provided. Whether or not that submission is sound was not determined in the Court of Appeal of British Columbia, which reached its decision for different reasons, and, for the reasons hereinafter given, I do not think it is necessary to decide it here.

and at p. 91:

In so far as granting leave to appeal from the Court of Appeal of British Columbia is concerned, as previously mentioned, neither counsel contended that an appeal did lie to that Court. If leave were to be granted to appeal from the decision of the Court of Appeal, even if we were to reach the conclusion, on the appeal, that an appeal did lie to the Court of Appeal, the matter would then have to be referred back to that Court to hear the appeal upon the merits. Even if that appeal were to succeed, the Court of Appeal would be faced with the same problems in formulating an order as those which I have already outlined.

The paragraph containing the ratio decidendi, upon which the rejection of both applications turned, appears on p. 90:

The section contemplates a speedy determination of the issue of the claim of privilege and thereafter a prompt delivery of possession of the document involved, either to the solicitor or to the officer of the Department. It seems to me that once that has been done the whole matter has been not only determined, but completed, and that any order which could be made on an appeal (assuming that an appeal lies) could not have a “direct and immediate practical effect”, to use the words of Chief Justice Duff in The King on the Relation of Tolfree v. Clark. The document in question would no longer be in the hands of the custodian. If the order appealed from directed delivery to the departmental officer, he would, by the time the appeal was heard, have had his opportunity to inspect the document. If the order appealed from directed delivery to the solicitor, the Act contains no provision which would require him, after the document has been restored to him, to surrender it again to the departmental officer or to the custodian.

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It will be seen from the foregoing that no opinion was expressed on the question of whether an appeal lay from the judgment of Sullivan J., nor on the correctness of the majority decision in the Court of Appeal that Sullivan J. was acting person designata. It will be apparent from what has been said earlier in these reasons that, in my opinion, the majority view in the Court of Appeal was wrong in concluding that Sullivan J. was acting as persona designata in hearing the application.

I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellants: Goodman & Carr, Toronto.

Solicitor for the respondent: R. Tassé, Ottawa.