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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.
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