T-6021-82
Domenico Vespoli, Precision Mechanics Ltd.,
80591 Canada Limited, and Paradis Vespoli Ltée
(Applicants)
v.
The Queen in right of Canada and the Attorney
General of Canada (Respondents)
and
Jacques Morel (Mis -en-cause)
Trial Division, Dubé J.—Montreal, August 16;
Ottawa, October 18, 1982.
Income tax — Practice — Application to determine question
of solicitor-client privilege under s. 232 of the Income Tax Act
— S. 232(4) recites that "... the client ... may ... within 14
days ... apply ... to a judge for an order ..." — Application
filed within limitation period and made returnable on first
available date, falling beyond limitation period — Earlier date
available if application made before Superior Court judge
Ruling that Trial Division has jurisdiction to entertain
application beyond the 14 days stipulated in the Act —
Application allowed — Application complete when filed and
notice of motion with returnable date on motion day is served
— Applicants satisfied statutory requirements in time —
Absolute right to present application in either Federal Court
or before Superior Court judge under s. 232(1)(a) — Held also
that no jurisdiction to extend time within which to apply under
s. 232 — Income Tax Act, S.C. 1970-71-72, c. 63, ss. 231(4),
232(1)(a),(4) — Federal Court Rules 317(2), 319(1),(2), 320.
CASES JUDICIALLY CONSIDERED
APPLIED:
Linett v. The Queen, [1980] 1 F.C. 591 (C.A.).
REFERRED TO:
Regina v. Dartford Justices, Ex Parte Dhesi (reported in
the Times Newspaper Law Report, July 23, 1982);
Regina v. Manchester Stipendiary Magistrates, [1982] 3
W.L.R. 331 (H.L.).
MOTION.
COUNSEL:
Guy Du Pont for applicants.
Paul Fortugno for respondents.
SOLICITORS:
Verchère, Noël & Eddy, Montreal, for
applicants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
DuBÉ J.: This is an application under subsection
232(4) of the Income Tax Act, S.C. 1970-71-72, c.
63, to fix a time and a place for the determination
of the question whether the applicants have a
solicitor-client privilege in respect of documents,
records and other papers seized on July 8, 1982, at
the premises of their lawyers, and kept under seal
since that time by Jacques Morel, assistant sheriff
for the district of Montreal.
Counsel for the respondents objects to the
application on the ground that it was not made
within 14 days from the day of seizure. It is
common ground that the seizure was carried out
on July 8, 1982 pursuant to an order of a judge of
the Superior Court, district of Montreal, granted
on June 22, 1982 under the provisions of subsec
tion 231(4) of the Act. The notice of motion of the
applicants notifying that the application will be
made before the Federal Court in Montreal on
August 16, 1982 is dated July 19, 1982. It was
filed with the Federal Court on July 20, 1982.
The motion came up before me on August 16,
1982 when counsel for the applicants asked and
was granted time to file written arguments to meet
the objection of the respondents. The applicants'
arguments are mainly to the effect that the first
motion day during the Long Vacation in Montreal
after the seizure was July 12, 1982 and that they
were not in a position to prepare the appropriate
application and to give the required three-day
notice to the Deputy Attorney General for Canada
in order to set the application for hearing on that
date. The second motion day in Montreal during
the Long Vacation, August 16, 1982, was there
fore the earliest possible date on which to make
the motion returnable.
Subsection 232(4) reads as follows:
232....
(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 docu
ment 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 deter
mining the question.
The Crown's position is that the 14-day limit
imposed by subsection 232(4) is mandatory: if it
had been the intention of the legislators to empow
er the Court to grant an extension of time they
would have said so. For instance, subsection
167(4) provides that where no appeal has been
instituted within the time limited by section 172 an
application may be made to the Court for an
extension. The Act, however, does not provide such
an extension clause with reference to section 232.
It is also alleged by the Crown that the appli
cants were not limited to the motion days provided
by the Federal Court as they could have applied to
a judge of the Superior Court of the Province of
Quebec, who is also a "judge" under paragraph
232(1)(a).
The respondents, therefore, claim that this
Court is without jurisdiction to entertain the
application beyond the 14 days stipulated in the
Act.
The applicants submit that the Crown's position
is too rigid and deprives them of a very important
right, namely the protection of privileged com
munications between a solicitor and his client;
also, that a taxpayer's rights cannot be lost on
mere technicalities: a liberal interpretation must
be chosen against this strict approach which would
result in the loss of important individual rights.
As attractive as these arguments be, they do not
obviously clothe the Court with the authority to
grant extensions of time where no such authority is
spelled out in the Act'.
Counsel for the applicants indirectly raised
another point which deserves more favourable con
sideration. Is the date of the application to a judge
the date when the application is heard (August 16,
1982), or the date when the notice of motion is
filed at the Registry office of the Federal Court
(July 20, 1982), the latter, of course, being within
the 14-day limit? Counsel provides authorities 2 to
the effect that an information in writing is laid for
the purposes of the Magistrates Courts Act 1980,
of England when it is received at the office of the
clerk by a member of the staff expressly or
impliedly authorized to receive it.
Subsection 232(4) recites that "... the client, or
the lawyer on behalf of the client, may ... within
14 days ... apply ... to a judge for an order ...".
How does one apply to a judge under the Rules of
the Federal Court? One does so by filing and
serving a notice of motion with a returnable date
on a motion day'. As mentioned, the applicants
made their motion returnable on the earliest possi
ble returnable date, that is the August motion day
in Montreal. They might have obtained an earlier
' See Linett v. The Queen, [ 1980] 1 F.C. 591 (C.A.).
2 Regina v. Dartford Justices, Ex Parte Dhesi (reported in
the Times Newspaper Law Report, July 23, 1982); Regina v.
Manchester Stipendiary Magistrates, [1982] 3 W.L.R. 331
(H.L.).
3 Rule 319. (1) Where any application is authorized to be
made to the Court, a judge or a prothonotary, it shall be made
by motion.
(2) A motion shall be supported by affidavit as to all the
facts on which the motion is based that do not appear from the
record, which affidavit shall be filed; and an adverse party may
file an affidavit in reply.
Rule 320. (1) A notice of motion, other than an ex parte
application, shall be filed, together with supporting affidavits,
at least 2 days before the time fixed thereby for presenting the
motion, unless the Court otherwise orders.
(2) No notice of motion may be filed unless it is expressly
made returnable at a sittings fixed by or under Rule 317 or 318
or at a time and place appointed under one of those rules.
Rule 317. .. .
(2) Long Vacation sittings to hear motions will be announced
by the Associate Chief Justice before June 15 each year.
[Emphasis mine.]
date from a Superior Court judge, but they are
entitled under the Act to present their motion
before a Federal Court judge. In my view, they did
so when they properly applied by way of a notice
of motion duly filed within the 14-day limit.
The motion is therefore granted with costs and
the determination of the question whether the
applicants have a solicitor-client privilege in
respect of the aforementioned documents will be
heard on motion day at the Palais de Justice in
Montreal on Monday, November 1, 1982 at 10:30
a.m.
ORDER
Motion granted with costs. The day and place
for the determination of the question whether the
applicants have a solicitor-client privilege in
respect of the documents have been fixed at the
Palais de Justice in Montreal on Monday,
November 1, 1982, at 10:30 a.m. The custodian
will keep under seal the said documents in his
custody until that date when he will produce them
to the presiding judge.
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.