SCHROEDER, J.A. (orally) at the conclusion of the argument :— This is an appeal brought by the applicant Steven Low from an Order pronounced by Donohue, J. in Chambers on April 22, 1966 on an application for an order prohibiting J. L. Gourlay, an official designated by the Minister of National Revenue, from proceeding with an inquiry pursuant to the provisions of Section 126 of the Income Tax Act, R.S.C. 1952, ce. 148, and the Inquiries Act, R.S.C. 1952, c. 154.
On July 6, 1965 the Minister had issued a notice of re-assessment in respect of the appellant taxpayer’s income tax for the year 1960. A notice of objection was filed by the appellant on July 19, 1965. No further re-assessment having been made by the Minister after receipt of the appellant’s notice of objection within the period of 180 days thereafter, the appellant filed a notice of appeal to the Tax Appeal Board on February, 10, 1966.
The issues on the appeal are:
(1) Whether in these cireumstances the Minister has authority to proceed with the inquiry pursuant to the provisions of Section 126(4) of the Income Tax Act;
(2) Whether this function in exercising the said powers involves only ministerial or administrative acts;
(3) Whether prohibition or an Order in the nature thereof lies against him in the circumstances.
It is conceded by appellant’s counsel that if the inquiry had been initiated by the Minister under the provisions of Section 126(4) before the notice of appeal to the Tax Appeal Board had been filed, the remedy by way of prohibition would not lie for reasons made abundantly evident in the judgment of the Supreme Court in Guay v. La fleur, [1965] S.C.R. 12; [1964] C.T.C. 300, However, he urges that because the Minister is, in effect, seeking discovery to assist him in the pending appeal this proceeding is thereby converted into a step in a judicial process; that the Minister is thus acting beyond his statutory powers under Section 126(4), and consequently the attempted exercise thereof is properly reviewable on an application for an order of prohibition. The real purpose of the investigation to be made by Mr. J. L. Gourlay under the authority given to him by the Minister, was clearly stated in the affidavit of John Edward Sheppard, a solicitor in the Taxation Division of the Department of National Revenue, who deposed as follows :
Unless the inquiry referred to in the Notice of Motion is completed before the hearing of the said appeal to the Tax Appeal Board, the Department of National Revenue will not have been able to make the thorough investigation of the complex facts of the said appeal which is required for its preparation and for the consideration of the Minister’s position in the appeal. The assessment in question has not been confirmed by the Minister under Section 58(3) of the Income Tax Act.
Mr. Francis has argued this appeal with his accustomed thoroughness and earnestness, but despite his able argument it is our conclusion that the learned trial Judge rightly decided that prohibition did not lie against the Minister. Assuming, without deciding, that the Minister’s purpose in launching the inquiry goes beyond his powers under the Act, it does not appear to us that the appellant’s right to prohibition is in any way improved by reason of this circumstance, since in any view of the matter the powers exercisable by him under Section 126(4) are purely ministerial in character and essence. It is, perhaps, superfluous to add that nothing herein stated shall be taken to prejudice the right of the appellant to pursue such further or other remedy as he may be advised.
The appeal is dismissed with costs.