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.