Porter, C.J.O. (for the Court) :—This is an appeal from a judgment of the Honourable Mr. Justice Moorhouse dated March 25, 1964 pursuant to leave granted by the by the Honourable Mr. Justice Landreville by order dated April 30, 1964 whereby the learned trial Judge dismissed an application for an order for replevin of certain documents, books and records belonging to the individual plaintiffs as more particularly set out in the writ of summons.
By agreement of counsel the motion before Mr. Justice Moorhouse should be treated as if it were a motion for judgment and that the pronouncement of this Court in the appeal should be a judgment finally disposing of the rights of these parties in the matters involved. The motion was for an order directed to the Sheriff of the County of York directing him to replevy to the plaintiffs all the books, writings, papers and other documents of any kind seized by the defendants and detained by them. This motion was made in the action instituted by the plaintiffs for the recovery of possession and return to the respective plaintiffs of the aforesaid documents. The Assistant Deputy Minister of National Revenue for Taxation, exercising powers conferred upon the Minister, caused an application to be made to the Honourable Mr. Justice Cattanach, a Judge of the Exchequer Court of Canada for an order approving an authorization in writing by the Assistant Deputy Minister to be issued to certain named persons. These persons were thus empowered, together with such members of the Royal Canadian Mounted Police or other peace officers as they might call on to assist them, to enter and search if necessary by force, four premises particularly described in the said order, for documents, books, records, papers or things which might afford evidence as to violation of any of the provisions of the Income Tax Act or regulations, and to seize and take away any such documents, books, records, papers or things and detain them until produced in any Court proceeding.
Mr. Justice Moorhouse, before whom the application came, made an order on March 25, 1964, dismissing the same with costs and this appeal was taken from such order of dismissal with leave granted by Mr. Justice Landreville. It was contended by counsel for the appellants that in granting the approval to the issuance of such authorization by the Assistant Deputy Minister, Mr. Justice Cattanach had not acted judicially, that he had delegated his power to the persons named in the authorization which was to be issued with his approval, and that he had not in fact given approval to the issuance thereof by the Minister. Counsel sought to distinguish the present case from the case of Canadian Bank of Commerce v. Attorney-General of Canada, [1962] O.R. 258; [1962] S.C.R. 729; [1962] C.T.C. 39.
In our view, apart from the requirement of judicial approval to the issuance of the ministerial authorization in question, that case is indistinguishable from the case at bar. In accordance with the principles therein laid down we must hold that powers conferred on the Minister by Section 126, subsection (3) are as broad and sweeping as those conferred on him by Section 126, subsection (2) which were under consideration in that case. This issuance of the authorization in the first instance, depends upon the view of the Minister that a purpose related to the administration or enforcement of the Act will or may be served by the exercise of the powers conferred upon him by the provisions of Section 126, subsection (3). Thereupon a Judge of the Exchequer Court or of a Superior or County Court may be asked upon an ex parte application to approve the exercise of the ministerial power. We take the view that there was amply sufficient material for the learned Exchequer Court Judge to grant the approval sought in the terms in which it was granted and it cannot be said that his powers under the section were not exercised judicially or that he had failed to give a lawful approval to the Minister’s exercise of his powers under subsection (3).
The appeal therefore fails and should be dismissed with costs,
We have been asked to issue a direction that the documents under seizure be impounded pending an appeal to the Supreme Court of Canada. We do not feel that in the circumstances of this case, such a directive should issue.