Nanaimo Community Hotel, Limited v. Board of Referees Appointed Under the Excess Profits Tax Act, [1945] CTC 125

SLOAN, C.J.B.C.: I am of the opinion that the Supreme Court of the Province has jurisdiction in proceedings by way of certiorari to determine if the Board of Referees has acted, as Lord Parmoor expressed it in Local Government Board v. Arlidge (1914), 84 L.J.K.B. 72 at 87, ‘‘im a Judicial spirit in accordance with the principles of substantial tice. ’

I have had the opportunity of reading the judgment of my Brother O’Halloran and am in substantial agreement with the reasons therein given supporting the conclusion that Section 66 of the Income War Tax Act does not oust the jurisdiction of the Supreme Court to consider and determine that question.

I do not find it necessary to express any view as to whether or not the Parliament of Canada is competent to enact legislation effectuating that intention. It is sufficient to say that the legislation presently under review is not, in my opinion, designed to achieve that purpose.

I would, with deference, allow the appeal with all consequential directions.

ROBERTSON, J.A.: This is an appeal by the Nanaimo Community Hotel Company Limited from the judgment of Macfarlane J., [1944] Canada Tax Cases 102, dismissing its motion for a writ of certiorari directed to the Board of Referees, next to be mentioned, then sitting in Vancouver, B.C. $. 13 of the Excess Profits Tax Act empowers the Minister to appoint a Board of Referees to advise and aid him in exercising his powers under the Act, and authorizes the Board to exercise its powers conferred under the Act. Pursuant to this section the Minister, on 1st November, 1940, appointed three members of the Board. An Order-in-Council dated 16th November, 1940—after referring to the appointment—assigned to the Board, inter alia, the power and duty “to determine within the Provision of the said Act the standard profits of any taxpayer or group of taxpayers that may be referred to it for consideration by the Minister of National Revenue.’’ 8. 5 of the Act permits a taxpayer who is convinced that his standard profits are so low that it would not be just to determine his liability to tax under the Act by reference thereto because his business was of a class which during the standard period was depressed . . . to compute his standard profits at such greater amount as he may think just, but not exceeding a certain amount, with the proviso that if the Minister is not satisfied that the business of the taxpayer was depressed or that the standard profits as computed by the taxpayer are fair and reasonable he may direct that the standard profits be ascertained by the Board ; whereupon the Board, in its sole discretion, is bound to ascertain the standard profits at such an amount as the Board thinks just, subject to certain limitations; or the Minister may, instead of referring the matter to the Board, assess the taxpayer in accordance with the provisions of the Act. The company, taking the position that the standard profits were so low during the standard period fixed by s. 2 of the Act that it would not be just to determine its liability to tax under the Act by reference thereto, made a return in which it computed its profits at a figure which was unsatisfactory to the Minister who, pursuant to s. 5, supra, referred the matter to the Board, which by then consisted of four members. Subsection 4 of s. 5 of the Act provides that the decision of a Board shall not be operative until approved by the Minister, whereupon the decision shall be " " final and conclusive. ‘

The company was notified that a hearing would be held in Vancouver on 27 th April, 1943. On that date only two members of the Board were present. The company appeared by counsel. It alleges that a partial hearing took place and then adjournment was had to enable the company to supply further evidence, but before it could do so the Board on 15th May, 1943, gave its decision, which is contained in a letter dated 15th May, 1945, signed by the Chairman of the Board and the two members who sat in Vancouver. The Board’s decision which was against the company ‘s contention, was approved by the Minister on or before the 26th May, 1943. The company was advised by the commissioner of Income Tax by letter dated 9th June, 1943, to "‘appeal against an assessment based on the Board ‘s decision as provided by the relevant sections of the Act,’’ and a further letter of 8th July, 1943, re-iterated this advice. On the 13th September, 1943, purporting to act under s. 12, an assessment was made against the company on the basis of the Board ‘s decision. On October 4th, 1943, the company appealed, the grounds being (1) that the Board was not properly constituted, as only two members sat; and (2) that the Board had decided without hearing all the evidence.

On 27th May, 1944, the company were notified that since the Board’s decision had been approved of by the Minister its "‘only recourse is the Exchequer Court of Appeal . . . and the claim could only be reviewed by the Board on the direction of the Court.’’

Notwithstanding its appeal, the company on 3rd June, 1944, filed a notice of motion in the Supreme Court of British Columbia for a writ of certiorari to remove the-Board’s decision into that Court so that it might be quashed. The sole question for decision is whether or not the Supreme Court’s jurisdiction in the circumstances of this case has been taken away. Counsel for the Board takes the position that the Exchequer Court has exclusive jurisdiction in the matter. S. 14 of the Act reads :

“14. Without limiting any of the provisions contained in this Act, sections forty to eighty-seven both inclusive, of the ‘Income War Tax Act,’ excepting section seventy-six A thereof, shall, mut at is mutandis, apply to matters arising under the provisions of this Act to the same extent and as fully and effectively as they apply under the provisions of the Income War Tax Act.”

S. 66 of the Income War Tax Act, later referred to as the ‘‘ Income Act ’ provides, in part, as follows :

“66. Subject to the provisions of this Act, the Exchequer Court shall have exclusive jurisdiction to hear and determine all questions that may arise in connection with any assessment made under this Act. . . .”

The learned Judge below held that s. 66 ousted the jurisdiction of the Supreme Court and accordingly dismissed the motion. The appellant submits that the appeal sections 58 et seq. have no application to a decision of the Board, approved of by the Minister, because the statute declares its decision to be final and conclusive; and that there would be no purpose in taking an appeal because the appeal in the first instance under s. 58 is to the Minister himself, he having already approved the Board’s decision. I see no difficulty however as to this, because if an appeal is taken s. 59 provides that the Minister is to duly consider the appeal and to affirm or amend the assessment. He might upon reconsideration amend the assessment. If he did not feel disposed to do so, then his duty under s. 59 would be to notify the appellant of his decision, whereupon, if the appellant was dissatisfied therewith he might, pursuant to s. 60, mail to the Minister a notice of dissastisfaction, with the result that the matter would come up finally for trial in the Exchequer Court. Further than this, the Board’s decision, although approved by the Minister, would not be final and conclusive if the Board was not properly constituted—see Murphy v. Rex, [1911] A.C. 401— or, if the Board "‘didn't fairly listen to both sides, for that is a duty lying upon anyone who decides anything.” See Board of Education v. Rice and Others, [1911] A.C. 179 at 182. In either of these circumstances the decision would be null and void. Further, I cannot understand how a decision can be said to be final and conclusive if there is an appeal from it.

In Corporation of District of Oak Bay v. Corporation of the City of Victoria (1941), 56 B.C. 345 it appeared that an appeal had been taken from a decision of the Commission to the Lieutenant-Governor in Council under s. 105 of the Public Utilities Act, which provides for appeals ‘‘upon any question of fact’’; and under s. 106 of the same Act the Lieutenant-Governor in Council had referred the appeal to the Court of Appeal.

The appeal had to do with whether or not a certain rate was unjust or unreasonable. Under an amendment made in 1939 to s. 8 of the Act it was provided that it should be a question of fact ‘‘of which the Commission shall be the sole judge whether any rate is unjust or unreasonable.”

It was argued that this was intended to repeal sections 105 and 106 as to appeals on questions of fact. McDonald J.A. (afterwards C.J.B.C.) said at p. 369 that he had a strong view that nothing of the kind was intended and that the language in the amendment "‘makes the Commission the sole judge of that fact, but as a judge of first instance only.’’ In other words, he said the decision of the Commission on that question was final and binding upon all the world, saving only this, that the right of appeal provided by Sections 105 and 106 was not interfered with. He pointed out that s. 73, providing, shortly: "‘that the finding or determination of the Commission upon any question of fact within its jurisdiction shall be binding and conclusive upon all persons and in all Courts” was just as vigorous and forcible in regard to the finality and conclusiveness of the Commission ‘s findings of fact as are those of the addition to s. 8, and yet these provisions were followed by appeal sections 105 and 106 of the original Act.’’ Macdonald, C.J.B.C. and MeQuarrie J.A. agreed with McDonald, J.A.

I think, therefore, that an appeal would lie notwithstanding, the language that the decision of the Board is to be final and conclusive. Then it is submitted that s. 66, supra, only applies to the assessment itself or matters subsequent to its being made, and does not apply to any question arising before the assessment is made. To my mind the language ‘‘in connection with any assessment’’ clearly covers all the preceding steps leading up to the assessment being made; and this view is confirmed by s. 67 of the Income Act which says :

“An assessment shall not be varied or disallowed because of any irregularity, informality, omission or error on the part of any person in the observation of any directory provision up to the date of the issuing of the notice of assessment.”

It may be noted in passing that this view agrees with that of the Commissioner of Income Tax as shown by his letters of the 9th June, 1943 and 8th July, 1943, supra.

Then it is said that s. 66 cannot affect the power of the Supreme Court of British Columbia to issue a writ of certiorari because the Exchequer Court, being a statutory court, has no common-law powers. Sec. 19 of the Exchequer Court Act as amended by s. 1 of cap. 13 of 23 & 24, Geo. 5 provides, in part, that that Court shall have exclusive original jurisdiction in, inter alia,

“19 (j) Every application for a writ of habeas corpus ad subjiciendum or a writ of certiorari or a writ of prohibition, or a writ of mandamus, in relation to any officer or man of any Canadian Naval, Military or Air Forces serving outside of Canada, or in relation to any proceedings, or to any act or omission respecting any such officer or man, to the same extent as and under similar circumstances in which jurisdiction now exists in the Exchequer Court of Canada or in the courts or judges of the several provinces in respect of similar matters within Canada.”

This implies that the power to issue a certiorari does exist in the Exchequer Court. I think the power existed at all times, as I shall now endeavour to show:

British Columbia entered into Confederation in 1871. S. 129 of the British North America Act provided that all laws in foree and all courts of civil and criminal jurisdiction were continued subject, except as to Imperial Acts, to be repealed, abolished or altered by the Parliament of Canada or the Legislature of British Columbia according to the authority of the Parliament or of the Legislature under the Act. English civil and criminal laws so far as the same were not from local circumstances inapplicable as they existed on the 9th November, 1858, and except as altered or repealed by competent authority, were then in force in British Columbia. There was only one Court, namely, the Supreme Court of British Columbia, which, generally speaking, possessed and exercised all the powers which the separate courts of Queen’s Bench, Common Pleas and Exchequer had in England. See Mr. Justice Martin’s dissenting judgment in Attorney-General v.

E. f; N. Ry Co. (1899), 7 B.C. 231, especially at p. 235 as to the history of the Supreme Court and the powers of the Exchequer Court possessed by it. The English Court of Exchequer was then a common-law court as well as a court of revenue. It had also enjoyed equitable jurisdiction, but this had been taken from it. See s. 1 of cap. 5 of 5 Victoria. It had exclusive jurisdiction as to matters of revenue, and had the right by certiorari to remove proceedings from’ an inferior tribunal "into the office of Pleas,’’ or "‘by a kind of injunction” to remove matters affecting the revenue from the cognizance of other superior courts.

In Tidd’s Practice of the Courts of King’s Bench and Common Pleas and Modern Decisions in the Exchequer of Pleas—1828— 9th ed., at p. 38, after pointing out the respective jurisdictions the King’s Bench and Common Pleas, it is said as to the jurisdiction of Exchequer of Pleas :

"The court of Pleas, in the Exchequer, is holden before the barons; and has jurisdiction of all causes which concern the king’s profit of revenue, as of debts or duties to the king; . . .” .

and at p. 397 :

‘ " Suits commenced in inferior courts of record may, it seems, be removed by certiorari into the Exchequer, by the Plaintiff or defendant: And this Court, having an original and in many cases an exclusive jurisdiction in fiscal matters, will not permit questions in the decision of which the king’s revenue is interested, to be discussed before any other tribunal. On such occasions, the Court interposes upon motion, by ordering the proceedings to be removed into the office of pleas. The usual order, in cases of this nature, is that the action be removed out of the King’s Bench or Common Pleas, or other court in which it is depending, into the office of pleas in the Exchequer ; and that it shall be there in the same forwardness as in the court out of which the action is removed. This order, however, does not operate as a certiorari to remove the proceedings, but as a personal order on the party, to stay them there. . . .”

In Farwell v. The Queen (1893), 22 S.C.R. 553 the facts were that an information of intrusion had been exhibited by the Attorney-General for Canada in the Exchequer Court of Canada to compel Farwell to execute a surrender or conveyance of certain lands for which a Crown grant had been issued to him by the Province of British Columbia to the Crown in right of Canada. Objection was taken that the Parliament of Canada could not give concurrent original jurisdiction to the Exchequer Court in actions and suits of a civil nature at common law or in equity. King J., with whom the Chief Justice, Fournier J. and I think, Gwynne J. agreed, said at p. 562 :

“The king has the undoubted privilege of suing in any Court he pleases and ‘where the matter in suit in another court concerns the revenue or touches the profit of the king, he has the right to remove the suit into the Exchequer’.’’

He then referred to Cawthorne v. Campbell (1790), 1 Anstruther 205, in which Eyre C.B. gave the Court’s judgment, showing the numerous cases in which the Court of Exchequer had issued what amounted to an injunction against other courts to prevent the proceedings with reference to matters of revenue being continued in those courts.

This case was followed in Anonymous (1793) 145 E.R. 846. In that case an action had been brought in the Court of Common Pleas against a revenue officer for an alleged assault in the performance of his official duties. The Court of Exchequer removed the cause into the ‘‘ Office of Pleas of this Court.”

In Vol. 1 of Holdsworth’s History of English Law at p. 238 it is said :

" " A good instance of this peculiar union of legal and equitable procedure used in the Exchequer, sitting as a Court of revenue, is furnished by the power possessed by it of removing matters affecting the revenue or the property of the crown from the cognizance of other courts. Eyre, C.B. described it as a kind of injunction to stay proceedings in another court qualified by the liberty given to sue in the Exchequer. He speaks of it as being a piece with the anomalous jurisdiction of the court of revenue in the Exchequer, which has here adopted an equitable, rather than a legal procedure. ’ ’

At p. 874 of 9 Halsbury 2nd ed. appears the following relating to certiorari:

" At an early period the Court of Exchequer acquired power to issue the writ in eases relating to the revenue (see Churton v. Wilkin, [1884] N.W. 62). But as late as 1828 it could not issue the writ for any other purpose (Tidd’s Practice (1828), p. 397). A little later, however, it obtained the same jurisdiction in certiorari as the Court of Common Pleas (see Archbold’s Practice (1847), p. 452).”

In re Kingman v. Hird (1814), 1 Price 206 proceedings in trespass in the Court of Great Sessions for the County of Anglesey were removed into the Exchequer Court by certiorari.

So that it seems clear that in 1875 the Court of Exchequer in England had exclusive jurisdiction with reference to matters of revenue, and could proceed by certiorari to remove proceedings from an inferior tribunal into it or by a "‘kind of injunction’’ remove matters affecting revenue of the Crown from the cognizance of the Queen’s Bench or Common Pleas. The Supreme Court of British Columbia, generally speaking, enjoys today and enjoyed in 1871 all the powers of the Court of Exchequer in England and all the machinery necessary for the exercise thereof. See Attorney-General v. E. & N. Ry Co., supra, at p. 235. As there was only one Supreme Court of original jurisdiction in British Columbia, no question of "‘a kind of injunction’’ could arise.

Although the English Judicature Act was passed in 1873 it did not come into force until the 1st November 1875, up to which time the Exchequer Court in England was a separate court of revenue as well as of common law. See Judicature Act 1875, 36 and 37 Victoria, Cap. 66, sec. 16(4).

This was the position of affairs at the time of Confederation. It is submitted that the words ‘ 4 exclusive jurisdiction’’ in s. 66, supra, are not sufficient to deprive the Supreme Court of the right to issue a certiorari. No doubt there must be found in the legislation under consideration precise words to take away from the Supreme Court of British Columbia the jurisdiction to issue a writ of certiorari, if that is the purpose. The Supreme and Exchequer Court Act. cap. 11 of the Statutes of Canada, 1875, was assented to on the 8th April, 1875 and therefore passed while the Court of Exchequer in England was a separate court.

S. 58 of the Act provided in part that the Exchequer Court was to have concurrent original jurisdiction in Canada in all cases in which it was sought ‘‘to enforce any law of the Dominion of Canada relating to the revenue’’ and exclusive original jurisdiction in all cases in which a demand should be made or relief sought in respect of any matter which might in England be the subject of a suit or action in the Court of Exchequer on its revenue side against the Crown or any officer of the Crown.

S. 59 gave the Court concurrent original jurisdiction with the Courts of the several provinces in all other suits of a similar nature at common law and equity in which the Crown in the interest of Canada might be plaintiff or petitioner :

And s. 61 provided the procedure in suits and actions within the jurisdiction of the Exchequer Court should, unless otherwise provided, be regulated by the practice and procedure of Her Majesty’s Court of Exchequer at New Westminster on its revenue side.

The act now in force is Chap. 34 of R.S.C. 1927. Ss. 18, 19 and 20 provide that the Exchequer Court is to have exclusive original jurisdiction in a number of cases consisting, generally, of suits against the Crown.

Ss. 22, 25 and 27 give the Court jurisdiction in cases of patents, copyrights and trademarks, interpleader and railway debts.

S. 30 gives the Court coneurrent original jurisdiction in Canada, inter alia— (a) in all cases relating to the revenue in which it is sought to enforce any law of Canada . . . (c) in all cases in which demand is made or relief sought against any officer of the Crown for anything done or omitted in the performance of his duty as such officer, and (d) in all other actions and suits of a civil nature at common law or equity in which the Crown is plaintiff or petitioner.

These correspond in substance to the provisions of ss. 58 and 59, supra, except that the Court, which formerly had exclusive jurisdiction with regard to (c), has it no longer.

S. 36 provides the practice and procedure in suits and actions in the Court shall, as far as applicable . . . be regulated by the practice and procedure in similar suits, actions and matters in the High Court of Justice on the 1st October, 1887—the date when the Canadian Exchequer Court Act of that year came into force.

In National Trust Co. Ltd. v. The Christian Community of Universal Brotherhood Ltd. et al., [1941] S.C.R. 601, the Supreme Court of Canada held, under the special circumstances of that case, that a section of the F armer s f Creditors Arrangement Act declaring that in the case of a petition under that Act the County Court should have exclusive jurisdiction in bankruptcy did not exclude the right of the appellant to maintain an action in the Supreme Court of British Columbia for a declaration that the applicant was not a farmer within the meaning of the Act. As I understand this decision, the Court did not find it necessary to decide the broad question as to the respective jurisdictions of the Supreme Court and County Court. See Duff C.J. at p. 609 and Rinfret J. (now C.J. of C.) at 629-30.

In view of the history of the Exchequer Court of England and, its exclusive jurisdiction in matters of revenue, and, the legislation in Canada to which I have referred, I am of the opinion that the intention was to give to the Exchequer Court of Canada the same jurisdiction as the English Court of Ex- chequer has enjoyed, and to oust the jurisdiction of all other Courts where exclusive jurisdiction is conferred; and that to carry out this purpose the words in s. 66 conferring exclusive jurisdiction are clear and express. Unless this meaning is given to these words, I can see no object in giving exclusive jurisdiction to the Exchequer Court in the matters specified.

It is further submitted that the Supreme Court of British Columbia enjoys its powers by reason of Imperial legislation and that therefore there is no right in the Parliament of Canada to pass legislation under s. 101 of the British North America Act taking away from the Supreme Court the right of certiorari in any matter whatsoever because of the exception in s. 129 of the said Act.

I would point out that s. 129 commences : ""Except as otherwise provided by this Act,’’ which takes us to a consideration of s. 101. That Section provides :

"‘101. The Parliament of Canada may, notwithstanding anything in this Act, from time to time provide for the constitution, maintenance, and organization of a General Court of Appeal for Canada, and for the establishment of any additional Courts for the better administration of the laws of Canada.”

So that the powers under s. 101 may be exercised nothwith- standing s. 129 or s. 92, so long as Parliament does not, under the guise of legislating under s. 101, make laws which are exclusively within the jurisdiction of the Province; although in legislating competently under s. 101 or any of the heads of s. 91 it may affect property and civil rights in the Province. See Proprietary Articles Trade Association v. Attorney-General, [1981] A.C. 310 at 326-7.

The legislation in question comes within s. 101 and clause 3 of s. 91 of the British North America Act. In view of this and the non ostante clause in s. 101 it seems to me the Dominion power is plenary. The Supreme Court of Canada considered s. 101 so far as it affected the right of the Dominion Parliament to enact legislation under it, to abrogate appeals to the Privy Council in Reference Re Privy Council Appeals, [1940] 1 D.L.R. 299. I am of the opinion that the views of the learned Justices upon the question under consideration in that case are equally applicable to the case at bar. It is to be observed that the limitations in s. 129 of the British North America Act as to the right to repeal, abolish or alter Imperial Acts are, as Sir Lyman Duff, C.J.C. says at p. 292 of The Reference re Privy Council Appeals, supra, "‘no longer in foree.’’ See also British Coal Corporation v. The King, [1935] A.C. 500 at 520, where Viscount Sankey, L.C. says, speaking of the limitations in s. 129 as affected by the Statute of Westminster,

"‘But these limitations have now been abrogated by the statute. There now remains only such limitations as flow from the statute itself.’’

Sir Lyman Duff, C.J.C. said at p. 299 Re Reference Re Privy Council Appeals, supra, that the phrase "‘law of Canada’’ embraces any law "‘in relation to some subject-matter, legislation in regard to which was within the legislative competence of the Dominion, ‘‘ referring to Consolidated Distilleries Ltd. v. The King, [1933] A.C. 508 at 522. At p. 301 he says, referring to s. 101, that since the legislative authority may be executed in Canada "‘notwithstanding anything in the Act’’ you cannot imply any restriction of power because of anything in s. 92 ; that "‘whatever is granted by the words of the section, read and applied as prima facie intended to endow Parliament with power to effect high political objects concerning the self-government of the Dominion (s. 3 of the B.N.A. Act) in the matter of Judicature is to be held and exercised as a plenary power in that behalf with all ancillary powers necessary to enable Parliament to attain its objects fully and completely”; and, further, that since, by virtue of the words in s. 101, Parliament may legislate for objects within the ambit of s. 101 regardless of any powers the Provinces possess, to affect appeals to the Judicial Committee, it follows that the general power of Parliament to make provision for the peace, order and good government of Canada in relation to such objects is in no way limited by the exception of local matters, "‘assigned exclusively by the introductory words of s. 91 to the legislatures of the Provinces”; and consequently no existing judicial authority competent to affect the course of judicature in Canada can be an obstacle precluding the Parliament of Canada from making its legislation relating to these objects effective. At p. 302 he said ‘‘the primacy of Parliament under s. 101 is just as absolute as under the enumerated clauses of s. 91;” and finally at p. 306 he said: ‘‘I venture to suggest as regards s. 101 that ‘notwithstanding anything in the Act’ includes within its purview that part of s. 129 as well as all other sections of the Act.’’ This was, I presume, based on his statement at p. 292 that since the Statute of Westminster the limitation in s. 129 as to repealing, abolishing or altering Imperial Legislation was no longer in foree. Mr. Justice Rinfret, as he then was, now Chief Justice of Canada, speaking of s. 101, said at p. 310 ‘‘the legislative authority conferred on the Dominion by that section is exclusive, paramount and plenary.’’

Kerwin J. said at p. 350:

“ . . . This non obstante clause places the Dominion power on the same footing as those conferred by the specially enumerated heads of s. 91.”’

Mr. Justice Taschereau in Valin v. Langlois (1879), 3 S.C.R. p. 74, refers to the argument advanced that the Dominion Parliament could not in any way increase or decrease, give or take away from, or in any manner interfere with the jurisdiction of the provincial courts as a radically and entirely false and erroneous interpretation of section 92, No. 14. Speaking of the criminal law he says:

"Cannot parliament in virtue of s. 101 of the Act create new courts of criminal jurisdiction and enact that all crimes, all offences, shall be tried exclusively before these new courts? I take this to be beyond controversy. ‘ ‘

And later on he says:

" " I also think it clear that parliament may say, for instance, that all judicial proceedings on promissory notes and bills of exchange shall be taken before the Exchequer Court or before any other Federal Court. This would be certainly interfering with the jurisdiction of the provincial courts. But I hold it has the power to do so quoad all matters within its authority. ‘ ‘ Mr. Justice Clement at pp. 537-8 of his work on the Canadian Constitution, 3rd ed., says:

"‘No question, of course, can arise as to the power to confer concurrent jurisdiction. To that extent the scope and policy of section 101 is obvious. The moot point is as to the right to confer an exclusive jurisdiction; and upon that point, it is conceived, the view of Mr. Justice Taschereau is more in consonance with the scheme and policy of the Act than is that of Chief Justice Wilson.

In this view, the Dominion Parliament may take from provincial Courts the cognizance of those matters within Dominion competence which it may think fit to assign to Courts of its own creation, or it may take them from one provincial Court and assign them to another.”

For the above reasons I think the Court of Exchequer has exclusive jurisdiction to deal with the matter in question.

The appeal must be dismissed.

Bird, J.A.: I would dismiss this appeal for the reasons given by my Brother Robertson, which I concur.

O’HALLORAN, J.A.: This case revolves around two main questions; (1) whether Counsel for the appellant Hotel Company was given a fair hearing by the Board of Referees (a statutory tribunal) when he appeared before it in Vancouver to uphold the ‘‘standard profit’’ it claimed to be entitled to under “The Excess Profits Tax Act 1940’’; and (2) whether the certiorari jurisdiction of the Supreme Court of British Columbia to ascertain if that hearing was conducted fairly and judicially, has been ousted, and vested exclusively in the Exchequer Court of Canada. The latter question is one of far reaching public importance. It is the right to certiorari, and not the right to appeal from the Board of Referees, which we have to consider. The two are vastly different things.

It is vital to the true decision of this appeal to avoid treating the exercise of supervisory jurisdiction by the Supreme Court through the medium of the high prerogative common-law remedy of certiorari as if it were a trial by the Supreme Court of an assessment or revenue matter or a decision thereon. Too much stress cannot be placed upon the distinction between the two things. For unless it is fully recognized in limine and kept in mind throughout, I see no escape from conclusions which must contain inherent fallacy. The learned Judge of the Supreme Court from whom this appeal is taken, did not decide the first question, viz., whether or not a fair hearing was had. The second question was presented to him in the form of a preliminary objection to his jurisdiction to hear the first question on the motion for certiorari. The learned Judge held he had not jurisdiction, and gave effect to the preliminary objection, thus deciding the second question by holding that his certiorari jurisdiction was ousted in favour of the Exchequer Court of Canada.

With respect, I must reach the conclusion that he had certiorari jurisdiction. In my opinion the motion for certiorari ought to be referred back to proceed before a Judge of the Supreme Court. It may then be decided whether there did occur a ""violation of an essential of justice’’ in the sense that term has been frequently interpreted in this Court, notably in re Low Hong Hing (1926), 37 B.C. 295 at 302; Ex parte Yuen Vick Jun (1938), 54 B.C. 541 at pp. 549, 551 and 555 and Rex v. Moran and McLaren (1940), 55 B.C. 491, which in turn were largely founded on The King v. Mahony (1910), 2 Ir. Rep. 695, which was approved in Rex v. Nat Bell (1922), 91 L.J.P.C. 146. Such decisions as Crawley v. Anderson (1868), 7 N.S.R. 385; In re Berquist (1925), 35 B.C. 368, and The King v. Wandsworth Justices, [1942] 1 K.B. 281, are also informative on this latter aspect.

I put the case as I have to make it clear that this Court, in the exercise of its appellate jurisdiction, is not concerned now as to whether or not there was a judicial hearing before the Board of Referees on the first question. That first question has not yet been determined by a Judge of the Supreme. Court in certiorari proceedings, and is not truly before us until it has been. Interjection of evidence and argument relating to it, and discussion of evidence and argument concerning the machinery of taxation and assessment under "‘The Excess Profits Tax Act, 1940,” or concerning appeals from the Board of Referees, in my judgment tends to obscure the real point upon which this appeal depends, and does not assist this Court in determining whether the learned Judge was right or wrong in the opinion he formed regarding his jurisdiction to entertain the motion for certiorari.

The effective question before us for decision is whether or not the certiorari jurisdiction of the learned Supreme Court Judge to entertain the first question was ousted as he held it was. The learned Judge’s reasoning is best expressed in his own language from which it appears his opinion is based wholly on s. 66 of the “Income War Tax Act.” The learned Judge said in material part :

“Section 66 of the Income War Tax Act reads in part as follows :—

" 66. Subject to the provisions of this Act The Exchequer Court shall have exclusive jurisdiction to hear and determine all questions that may arise in connection with any assessment made under this act. . . .’

Mr. Cunliffe argues that that section presupposes that an assessment has been made, and that as I understand him, the words ‘in connection with’ mean ‘consequent upon.’ I do not think that is the correct construction to be put upon these words. One of the very generally accepted meanings of ‘connection’ is Relation between things one of which is bound up with or involved in another’; or again ‘having to do with.’ The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing. The phrase ‘having to do with’ perhaps gives as good a suggestion of the meaning as could be had. I think Section 66 is sufficient to oust the jurisdiction of this Court to deal with a decision on which an assessment is subsequently made.”

In my opinion, with respect, for reasons developed hereafter; (1) Section 66 of the “Income War Tax Act” does not take away Certiorari from the Supreme Court of British Columbia; and (2) The British North America Act does not empower the Parliament Of Canada to do so.

Several prefatory observations ought to be made. The respondent Board of Referees appears as a statutory tribunal of inferior jurisdiction, and of. the decisions referred to in National Trust Company Limited v. Christian Community etc. (1940), 55 B.C. 516 at pp. 529-530 and in Lee v. Workmen f s Compensation Board (1942), 57 B.C. 412 at pp. 429-430 and 438-441. As to the enlarged scope of Certiorari see Crawley v. Anderson, supra, The Security Export Co. v. Hetherington, [1923] S.C.R. 539, Duff J. at 555, and Lee v. Workmen f s Compensation Board, supra, at p. 431. It is also essential to have a clear apprehension of the nature of the jurisdiction exercised in Certiorari. It is thus stated in National Trust Company Ltd. V. Christian Community, supra, at p. 541 (and see also at p. 527 and pp. 540 and 542)—

(C . such proceedings are an appeal, and they are not a

hearing de novo; they cannot go into the merits of the dispute between the parties. The only remedy the applicant may obtain, for, (apart from any extension or abridgement of certiorari in a particular statute), the only jurisdiction the Supreme Court (of the Province) has in such proceedings, is to review the proceedings in the inferior Court or tribunal, to ascertain if the inferior Court or tribunal has acted without jurisdiction or in violation of the essentials of justice.”

In this ease, on Certiorari the Judge cannot review the correctness of any decision of the Board of Referees “in connection with” the appellant’s assessment, which, the Board would have power to make, if it did not violate an essential of justice, or exceed its jurisdiction. It is not a trial in connection with the correctness of the assessment. No question arises concerning the exclusive jurisdiction of the Exchequer Court of Canada to hear and determine " " all questions that may arise in connection with ’ the appellant’s assessment, provided the decision of the Board of Referees is made after a proper hearing in a matter and manner in which the Board has jurisdiction. The appellant’s complaint concerns another matter entirely, viz., the manner in which the Board of Referees acted in arriving at a decision. The appellant complains that the Board violated essentials of Justice in the way it came to its decision.

The appellant’s complaint is not against a wrong decision as such by the Board, but it is a complaint that no proper hearing was held by the Board to justify any decision, right or wrong. To put it as Lord Parmoor did in Local Government Board v. Arlidge (1914), 84 L.J.K.B. 72, at 87, it is contended the Board did not determine the assessment “in a judicial spirit in accordance with the principles of substantial justice.” The appellant says in effect that it has been deprived of the imprescriptible civil right of a British subject (cf. Darling J. with Avory and Salter J J. concurring in Tyrrel v. Cole (1918), 120 L.T. 156) to have a fair hearing in a matter which affects its property, and it seeks the aid of. the inherent jurisdiction of the Supreme Court, to quash a decision which it alleges is a denial of justice according to law. And see also I ames v. Wylie (1844), 1 Car. & K. 257, Lord Denman at 263 and Russell V. Russell (1880), 14 Ch.D. Jessel M.R. at 478.

Since the respondent asserts s. 66 of the " " Income War Tax Act” has deprived the Supreme Court of British Columbia of its supervisory jurisdiction on certiorari and the learned Judge has so held, it is essential to understand what the jurisdiction of that Court is. The Supreme Court of this Province is a Superior Court of inherent, original, supervisory and general jurisdiction at common law, quite apart from any statutory confirmation or re-statement of that inherent and common-law jurisdiction, and also quite apart from any additional jurisdiction which has been conferred upon it by Dominion or Provincial Statutes, cf. Stephen et al. v. Stewart (No. 2) (1943), 59 B.C. 297, at 301-2. The Ancient rule in Peacock v. Bell (1667), 85 E.R. at 87-8 applies to its general common-law jurisdiction, that nothing shall be intended to be cut of its jurisdiction, "‘but that which specially appears to be so”; and vide Beaton v. Sjolander (1903), 9 B.C. 439 (Full Court) at 441-2 and Stephen et al. v. Stewart et al. supra, at 301-2. Within the Province it has ""universal jurisdiction and superintendency” per Willes J. in Mayor of London v. Cox, (1867) L.J. Ex. 225.

Included in the Supreme Court’s inherent jurisdiction is the exercise of supervisory jurisdiction through the medium of the high prerogative remedies of habeas corpus, certiorari, mandamus and prohibition, to prevent inferior tribunals acting without jurisdiction, in excess or in abuse of their jurisdiction, and in violation of the essentials of justice, of. National Trust Company Limited v. The Christian Community, etc. (1940), 55 B.C. 516 at pp. 527-8, 541-2, and at 545; at the latter page it is made clear that such supervisory jurisdiction in no wise interferes with the jurisdiction conferred by Parliament upon special tribunals such as the Board of Referees in this case, but it does enable the Supreme Court to Supervise the conduct and decisions of such tribunals should they act unjudicially and cf. also The Queen v. The Overseers of Walsall (1877), 47 L.J.Q.B. 711, Cockburn, L.C.J. at 718, and Lee v. Workmen f s Compensation Board (1942),

57 B.C. 412, at pp. 429-432 and 439-441.

Coming now to the first branch of this appeal, that Certiorari is not taken away by s. 66 of the “Income War Tax Act.” It must first be said that the Supreme Court of this Province has the same inherent jurisdiction to issue Certiorari as the King’s Courts in England. It possesses that jurisdiction by virtue of its Imperial origin and descent through the Supreme Court of Vancouver Island and its Judges. That Court was created and appointed directly under an Act of the Imperial Parliament 12 & 13, Vic. C. 48 (28 July 1849) "An Act to provide for the Administration of Justice in Vancouver’s Island,” and that Act was passed before Vancouver Island became a Colony properly so-called, cf. The Thrasher case (1882) 1 B.C. (Pt. 1) 153, Crease J. at 192-4 and 210; S. v. S. (1877) 1 B.C. (Pt. 1), Crease J. at 44, and Reynolds v. Vaughan (1872) 1 B.C. (Pt. 1) Begbie C.J. p. 4.

In due course, two separate Colonies, Vancouver Island with its dependencies, and the Mainland of British Columbia, came into being, each with its own Supreme Court. The Supreme Court of Vancouver Island "'was created direct from England” per Crease J. in The Thrasher case at p. 193. When the two Colonies eventually united in 1866, the two Colonial Courts were finally merged by the "Courts Merger Ordinance, 1870,” (C. 54 of Coneol. Stats, of 1877) and cf. S. V. S., supra; the Thrasher case, supra; Atty.-Gen. v. E. c N. Ry. (1899), 7 B.C. at 234; Atty.- Gen. v. Ludgate (1904), 11 B.C. at 260 and 267, aff. 1906 75 L.J.P.C. 114 and Sheppard v. Sheppard (1908), 13 B.C. at 506-9.

When the Colony of British Columbia became a Province of the Dominion of Canada on 20 July, 1871, it carried into Confederation its Supreme Court and its two Imperially appointed Superior Court Judges (Begbie, C.J.B.C. and Crease J.), with, not only the jurisdiction it had inherited from the Supreme Court of the Original separate mainland Colony of British Columbia, and the jurisdiction it had subsequently acquired, but also the status, authority, and original, inherent (including certiorari jurisdiction), and any other jurisdiction it possessed by virtue Of its Imperial origin and descent through the Supreme Court of Vancouver Island and its Judges. Moreover the jurisdiction of the said Court and the faculties of its Judges were recognized by s. 129 of the B.N.A. Act. It is later pointed out that s. 101 of the B.N.A. Act does not empower the taking away of that Imperially descended inherent jurisdiction which the Court possessed when the Province entered Confederation.

Certiorari cannot be taken away in the absence of specific and unequivocal positive statutory language. It will be apparent that our decision upon this first branch of the appeal does not depend upon whether or not the Exchequer Court of Canada possesses concurrent certiorari jurisdiction. Even if the latter Court does possess concurrent certiorari jurisdiction that is not enough to devest the Supreme Court of its ancient jurisdiction in certiorari. The jurisdiction may be concurrent, but it cannot be taken away from the Supreme Court and vested exclusively in the Exchequer Court in the absence of specific and unequivocal positive statutory language. The decisions show certiorari cannot be taken away simply by conferring ‘exclusive jurisdiction” upon another Court as is done in s. 66 of the “Income War Tax Act.” In fact, language which seemed expressly to take away certiorari has been held not to do so, perhaps reflecting judicial disapproval of parliamentary interference with those ancient judicial faculties of the King in person, which, by the custom of the land and the sanction of exercise since time immemorial, have come to be regarded as constitutionally vested in the King’s JJudges and not in Parliament. In Rex V. Nat Bell (1922), 91 L.J.P.C. 146, the Judicial Committee, per Lord Sumner, at 162-3, intimated that Parliament had long accepted these judicial interpretations.

In The King v. Reeve (1760), 96 E.R. 127, Lord Mansfield held that certiorari could not be taken away by general words, but only by express negative words. In that case objection has been taken to the issuance of certiorari because an appeal was provided by a statute which also enacted that such appeal should be final and that no other Court should interpose. The Statute (The Conventicle Act 22 Car. 2 C. 1) provided in s. 6 that

. . no other Court whatsoever shall intermeddle with

any cause or causes of appeal upon this Act, but they shall be finally determined in the Quarter-sessions only.”

That of course is much stronger than s. 66 of the “Income War Tax Act, ’ but Lord Mansfield said :—

“There is no colour, that these negative words should take away the jurisdiction of this Court to issue writs of certiorari. They will perhaps take away the writ of error that has been

mentioned. But this Court has an inherent power to issue certioraris, in order to keep all inferior courts within due bounds, unless expressly forbid so to do, by the words of the law. If the justices have done right below, you may show it, and quash the certiorari. But if there be the least doubt, this Court will grant the writ.” (The italics are mine.)

That reasoning is followed throughout cf. The King v. Plowright (1689), 87 E.R. 60; Rear: v. Moreley (1760), 97 E.R. 696; The King v. Jukes (1800), 8 Term Reports 542; The Queen v. The Justices of St. Albans (1853), 22 L.J.M.C. 142; Crawley v. Anderson (1868), 7 N.S.R. 385; The Queen v. the (( Troop ff Company (1899), 29 S.C.R. 662 at 673; Re Sing Kee (1901), 8 B.C. 20 (Martin J.) ; The Colonial Bank of Australia v. Willan (1874), 43 L.J.P.C. 39 at 44, and Rex v. Nat Bell 1922), 91 L.J.P.C. at 162-3. In The Queen v. The Cheltenham Paving Commissioners (1841), 113 E.R. 1211, approved in Colonial Bank of Australia v. Willian, supra, the Statute provided (p. 1212) :

" " that no order, verdict, rate, assessment, judgment, conviction or other proceeding touching or concerning any of the matters aforesaid, or touching or concerning any offence against this Act, or any by-law or order to be made in pursuance thereof, shall be quashed or vacated for want of form only, or be removed or removable by certiorari, or any other writ or process whatsoever, into any of His Majesty’s Courts of Record at Westminster; any law or statute to the contrary thereof in anywise notwithstanding.^ (The italics are mine.)

But despite this expressive language (which does not appear in s. 66 of the ‘‘Income War Tax Act”), Lord Chief Justice Denman quashed the order because three Magistrates who were interested took part in the decision. In the case at Bar the appellant alleges that not only did the Board refuse him a fair hearing but it was also improperly constituted. The Lord Chief Justice said (p. 1214) :

66 three Magistrates who were interested took a part in the decision. It is enough to show that this decision was followed by an Order; and J will not enquire what the particular question was, nor how the majority was made up, nor what the result would have been if the Magistrates who were interested had retired. The Court was improperly constituted ; and that rendered the decision invalid. . . . 1‘

A statutory clause taking away Certiorari must be understood to assume that an order has been made by the proper authority.

It cannot be said a proper authority has been exercised, if as alleged here, a fair hearing has been denied. A more recent example is Samejima v. The King, [1932] S.C.R. 640. That was a Habeas Corpus case, but in so far as this appeal is concerned its principle applies equally to Certiorari and in this respect cf. Rex v. Commanding Officer of Morn Hill Camp (1916), 86 L.J.K.B. 410, Lord Reading at 413, and In re Low Hong Hing (1926), 37 B.C. 295 at 302. The relevant s. 23 of the Immigration Act, C. 93, R.S.C. 1927, read:

“No Court, and no Judge or officer thereof, shall have Jurisdiction to review, quash, reverse, restrain or otherwise interfere with any proceeding, decision or order of the Minister or of any Board of Inquiry, or officer in charge, had, made or given under the authority and in accordance with the provisions of this Act relating to the detention or deportation of any rejected immigrant, passenger or other person, upon any ground whatsoever, unless such person is a Canadian citizen or has Canadian domicile.” (The italics are mine.)

Here one would think are express negative words of the kind Lord Mansfield referred to in The King v. Reeve, supra, and special attention is directed to the underlined words “upon any ground whatsoever.”

Samejima was not a Canadian citizen and had not Canadian domicile. Upon arrest for being unlawfully in Canada, he was discharged on Habeas Corpus by Fisher J. (1932), 44 B.C. 317. He was re-arrested and Murphy J., on a second Habeas Corpus application refused his release. An appeal to this Court—In re Immigration Act and Samejima (1932), 45 B.C. 401 was dismissed upon an equal division of the Court. Macdonald C.J.B.C., and MePhillips J.A. founded their judgments on the ground that s. 23 quoted above, completely ousted the jurisdiction of the Supreme Court of this Province. An appeal to the Supreme Court of Canada was successful. It was there held that notwithstanding the apparent express exclusion of the jurisdiction of the Courts, and the presence of the words "‘upon any ground whatsoever” that what was done, had not been done under the authority and in accordance with the provisions of the Immigration Act.

In this case the statute does not prescribe the duties of the Board of Referees with the detail which the Immigration Act did in the Samejima ease. The duties of the Board are generally stated but that does not relieve it from the common law duty of giving the appellant a fair hearing which is the inalienable right of every Canadian. If the Board, as the uncontradicted affidavit of the appellant asserts, has in fact violated an essential of justice, then it has not acted under its statutory authority and in accordance with the common law in force in this Province since before Confederation, and Certiorari is as readily available to the appellant as Habeas Corpus was to Samejima. In fact much more so because of the lack of express negative words which appeared in the Samejima case. And see also Shin Shim v. The King, [1938] 4 D.L.R. (S.C. of Can.).

There is a recent decision which applies in principle although it did not concern Habeas Corpus, Certiorari, Mandamus or Prohibition. It turned upon whether the jurisdiction of the Supreme Court of this Province as a Court of first instance had been taken away by a Dominion Statute. The case is National Trust Company Limited v. The Christian Community etc., [1941]

S.C.R. 601, reversing the decision of this Court in 1940, 55 B.C. 516. After the Christian Community had invoked the "‘Farmers’ Creditors Arrangement Act,” the National Trust Company Limited issued a writ against it out of the Supreme Court for a declaration that it was not a ‘‘farmer’’ within the meaning of the Act it has invoked, and obtained a declaratory judgment accordingly.

On appeal this Court held that Parliament had expressly devested the Supreme Court of all original, auxiliary, and ancillary jurisdiction in the premises by enacting in s. 5(1) of the F.C.A. Act (see p. 534 of 55 B.C.) that in matters to which the F.C.A. Act related, the County Court of the district in which the farmer lived

“shall have exclusive jurisdiction subject to appeal.”

It is to be observed that the same language, ‘‘exclusive jurisdiction” appears in s. 66 of the Income War Tax Act. In my opinion nothing in particular turns on the words ‘‘in connection with”? in s. 66 upon which the learned Judge seems to have based his decision (see the quoted reasons above). I assume that the ordinary meaning conveyed by these words is fully comprised in the term “exclusive jurisdiction.’’ This Court reasoned in the National Trust case that Parliament, by using the term ‘‘ exclusive jurisdiction” had expressed its intendment that the Supreme Court’s jurisdiction as a Court of first instance was ousted in favour of the County Court, and so held.

It was pointed out in this Court, however, at pp. 527 and 540-2 (55 B.C.) that this did not oust the Supreme Court’s supervisory jurisdiction by way of Habeas Corpus, Certiorari, Mandamus or Prohibition, and as I read the judgments in the Supreme Court of Canada this latter view was not questioned. But the Supreme Court of Canada did uphold the jurisdiction of the Supreme Court of this Province as a Court of first instance declaring that the language of the F.C.A. Act conferring exclusive jurisdiction upon the County Court did not go far enough to oust the jurisdiction of the provincially constituted Supreme Court as a Court of first instance notwithstanding Barraclough v. Brown (1897), 66 L.J.Q.B. 672 (H.L.) and similar decisions referred to in this Court at pp. 534-5 of 55 B.C.

The facts were that assets of the Christian Community at the time it invoked the F.C.A. Act, were in the hands of a receiver appointed by an order of the Supreme Court of this Province. Sir Lyman Duff, C.J.C. (Davis and Hudson JJ. concurring) said at p. 610 that ‘‘only the most precise language’’ would justify a conclusion that Parliament, in conferring exclusive jurisdiction upon the County Court, intended to deprive the Supreme Court of jurisdiction in a case where a receiver had been appointed by the Supreme Court. It had appeared to this Court, that the giving of exclusive jurisdiction to the County Court, in case of bankruptcy, would be clearly sufficient to create that Jurisdiction immediately an act of bankruptcy occurred, and under the House of Lords decision in Barraclough v. Brown, supra, and similar decisions, that it would be sufficient to deprive any other Court immediately and entirely of jurisdiction. But Sir Lyman Duff, C.J.C. repeated at p. 610 that ‘‘only the very clearest language’’ could justify a conclusion the jurisdiction of the Supreme Court was ousted, and invoked Stradling v. Morgan (1560), 75 E.R. 305 at 311 and 315.

In my judgment the principle of statutory construction enunciated in Stradling v. Morgan and thus approved (it was also approved by Sir William Ritchie, C.J.C. in Valin v. Langlois (1879), 3 S.C.R. at 27) is equally applicable to both branches of this appeal. It is expressed at p. 315 of 75 E.R. in these words:

“From which cases it appears, that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter, they have expounded to extend but to some things, and those which generally prohibit all people from doing such an act, they have interpreted to permit some people to do it, and those which include every person in the letter they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the Legislature, which they have collected sometimes by considering the cause and necessity of making the Act, sometimes by comparing one part of the Act with another, and sometimes by foreign circumstances. So that they have ever been guided by the intent of the Legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion.”

The authorities are clear from Lord Mansfield’s time onward that certiorari cannot be taken away in the absence of express and unequivocal statutory language. It is a venerable principle which has come down to us with the approval of generation after generation of Judges and Legislators. But there is not one word about certiorari in s. 66 of the ‘‘ Income War Tax Act.’’ It must be conceded also that there is nothing in the Exchequer Court Act c. 34, R.S.C. 1927 and amending Acts which expressly gives that Court exclusive Certiorari jurisdiction. In fact there is nothing in that statute which expressly gives the Exchequer Court even concurrent jurisdiction in Certiorari.

But despite the lack of these two indicia of jurisdiction, it was argued that the Exchequer Court has exclusive Certiorari jurisdiction in any matter affecting the revenue. I find difficulty in following the reasoning which seeks to support this submission. So far as I can grasp it, it is grounded first, upon the 1933 amendment to the ‘‘ Exchequer Court Act’’ which confers jurisdiction in Certiorari upon the Exchequer Court in respect to persons serving in the Armed Forces outside Canada, but in terms which implied that Court already had certain concurrent Certiorari jurisdiction within Canada; and secondly, that the Canadian Court of Exchequer was endowed at its inception with the same jurisdiction as the English Court of Exchequer, and as it is argued the latter Court had exclusive jurisdiction in matters affecting the revenue, so also has the Canadian Court; and hence, it is reasoned the Canadian Court must have exclusive Certiorari jurisdiction in matters arising out of disputes affecting the revenue.

The short answer to both grounds is that the 1933 amendment to the ‘‘ Exchequer Court Act, ‘ ‘ denies the existence of exclusive Certiorari jurisdiction in the Exchequer Court, since it plainly concedes that whatever Certiorari jurisdiction the Exchequer Court may possess is concurrent with the jurisdiction of the provincially constituted Courts. Section 19(j) of the 1933 amendment confers Certiorari jurisdiction upon the Exchequer Court in relation to persons in the Armed Forces outside of Canada :

" to the same extent as and under similar circumstances in which jurisdiction now exists in the Exchequer Court of Canada or in the Courts or Judges of the several Provinces in respect of similar matters within Canada.’’ (The italics are mine. )

To my mind that statutory language which plainly concedes concurrent Certiorari jurisdiction in the Courts and Judges of the several Provinces closes the door completely upon the contention of exclusive Certiorari jurisdiction in the Exchequer Court.

While the Exchequer Court Act thus definitely rules out exclusive Certiorari jurisdiction in that Court, it is in point also to note that even if it did not, the second ground fails to withstand critical analysis. When the references to the jurisdiction of the English Court of Exchequer are sifted down to the point where they may understandably have application to the Cana- dian Exchequer Court, I am unable to find that second ground means in principle and effect any more than this, that because s. 66 of the ‘‘ Income War Tax Act’’ gave the Canadian Exchequer Court exclusive jurisdiction in matters of assessment it thereby carries with it exclusive Certiorari Jurisdiction in any matter arising out of a dispute affecting assessments. But that submission has already been dealt with in the foregoing pages where it is established, fortified by copious references to long accepted authorities, first, that language such as that used in the ‘‘ Income War Tax Act’’ is not sufficient to take away Certiorari, and, secondly, that the nature and scope of Certiorari itself denies that its exercise may in any wise affect the Exchequer Court’s exclusive jurisdiction in assessment matters.

There ought to be no need to say that Certiorari is not an action or a suit. Its very nature makes inapplicable the proposition that the King has the privilege of suing in any Court he pleases. These Certiorari proceedings are not a suit or action by or against the King. In Certiorari "‘there is no lis; there is no action.’’ Lord Bramwell (Lord Watson concurring) in Cox v. Hakes (1890), 60 L.J.Q.B. 89 at 98 used these words regarding habeas corpus, but they apply equally to Certiorari.

To summarize briefly—(1) The guiding decisions in Certiorari show that language of the kind used in s. 66 of the "‘Income War Tax Act’’ is not sufficient to take away Certiorari jurisdiction from the Supreme Court; (2) The ‘‘ Exchequer Court Act'' not only fails to confer exclusive Certiorari jurisdiction upon the Exchequer Court, but by plain implication confers certain concurrent jurisdiction upon that Court; (3) The ratio decidendi of Samejima v. The King, [1932] 8.C.R. 640 and National Trust Company v. The Christian Community, etc., [1941] S.C.R. 610 are conclusive against holding exclusive Certiorari jurisdiction lies in the Exchequer Court. With respect, it follows as an inescapable conclusion, that s. 66 of the "‘Income War Tax Act’’ does not attempt to take away Certiorari from the Supreme Court of British Columbia.

The conclusion just reached on the first branch is sufficient in itself to require this appeal to be allowed. But it is worthy of note that it is re-enforced by a conclusion which in my judgment, emerges from a study of the second branch of the appeal, viz., that the British North America Act does not empower the Parliament of Canada to take away Certiorari from the Supreme Court of British Columbia; or, to put it another way, the ‘* Exchequer Court Act’’ does not attempt to do so, because the B.N.A. Act is not competent to give it that power. In this aspect it is essential to keep in mind the observations made at the outset of this judgment concerning the nature of the jurisdiction exercised in Certiorari, and the Character of the Supreme Court’s inherent power to exercise that jurisdiction through its imperial origin and descent. In Valin v. Langlois (1879), 3 S.C.R. 1, it was said at p. 19 (affirmed (1874), 5 A.C. 115) that the provincially constituted Courts (and cf. In re Vancini (1904), 34 S.C.R. 621) :

‘ " are not mere local Courts for the Administration of the local laws passed by the local Legislatures of the Provinces in which they are organized.”

Section 129 of the B.N.A. Act (see also s. 10 of the Terms of Union) reads in relevant part:

"Except as otherwise provided by this Act, all laws in force . . . at the Union, and all Courts of civil and criminal jurisdiction . . . existing . . . at the Union, shall continue . . . as if the Union had not been; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain . . . ) to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province. . . .’ (The italics are mine.)

In my judgment, the true interpretation of the exception in that section, leads to the conclusion that the inherent Certiorari jurisdiction of the Supreme Court of British Columbia, derived as it is from the imperially created Supreme Court of Vancouver Island, is not subject to be "‘repealed, abolished or altered’’ by the Parliament of Canada.

It has been suggested that the exception in s. 129 has been repealed by the ‘‘Statute of Westminster 1931.” But that is denied in plain words by s. 7(1) thereof which reads:

“Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts 1867 to 1930, or any order, rule or regulation made thereunder. ’

The Reference re Privy Council Appeals, [1940] S.C.R. 49 related to the jurisdiction of the Canadian Parliament to abrogate the jurisdiction of the Judicial Committee to hear appeals from Canadian Courts. That reference was concerned with Parliament’s extra-territorial jurisdiction and also its jurisdiction to subtract from His Majesty’s prerogative as exercised by the Judicial Committee. British Coal Corporation v. The King, [1935] A.C. 500, concerned the constitutionality of prohibiting appeals in criminal matters to the Judicial Com- mittee after the passing of the Statute of Westminster. That decision was expressly limited to the type of criminal appeal there under consideration. With respect, I cannot find that the ratio decidendi of either the decision or the reference excludes the proposition contained in the second branch of this appeal. I think it is also plain from its context that the observations at p. 74 in Valin v. Langlois (1879), 3 S.C.R. 1, were not directed to the case of a Court of Imperial origin and descent.

The Supreme Court of Vancouver Island from which the Supreme Court descends, was, as Mr. Justice Crease said in The Thrasher case (1882), 1 B.C. (Pt. 1) at 93, "created direct from England.” That Court was not constituted by the Colony of Vaneouver Island, nor was it constituted by a subordinate province of a Colony, and see The Thrasher case, supra, at pp. 194 and 212, and Reference re Privy Council Appeals, [1940] S.C.R. at pp. 103, 109, 111, 114, and 120. The introductory words of s. 129 ‘‘except as otherwise provided by this Act’’ lead to ss. 91, 92 and 101, of the B.N.A. Act. We are concerned with the latter section whereunder Parliament is empowered to provide:

“. . . for the establishment of any additional Courts for the better administration of the laws of Canada.”

The Exchequer Court of Canada was created under that authority. Its entire jurisdiction stems from those words in s. 101. It is purely the creature of those statutory words. It has no inherent jurisdiction such as is possessed by the Supreme Court of British Columbia. In Bow McLachlan & Co. v. “Camosun’’? (Owners) (1910), 79 L.J.P.C. 17, Lord Gorrell at 20, said of the Exchequer Court of Canada that it “‘has no general common law jurisdiction,’’ and see also pp. 19 and 25.

Section 101 deserves examination for what it does not say, as well as for what it does say. It does not say these statutory “additional Courts’’ shall have inherent jurisdiction or a general common law jurisdiction such as is possessed by Courts of common law, or that they shall have exclusive jurisdiction in administering the ‘‘laws of Canada.” These important jurisdictional omissions must be regarded as vital when determining the jurisdiction of a statutory Court which can have no jurisdiction but what the B.N.A. Act is competent to give it. If s. 101 is not competent to confer exclusive Certiorari Jurisdiction upon the Exchequer Court it must follow that court cannot possess exclusive Certiorari jurisdiction. If that is so, then the Certiorari jurisdiction of the Supreme Court cannot be ousted, for to prove it is ousted, it must be shown affirmatively that the jurisdiction is vested exclusively in the Exchequer Court, vide Lord Hardinge in Derby (Earl of) v. Athol (Duke of) (1749), 27 E.R. 982, "A plea to the jurisdiction of a general Court (a superior Court of general jurisdiction), must shew where the jurisdiction vests, as well as negatively, that it is not there,’’ and see also Board v. Board (1919), 88 L.J.P.C. 165 at 168.

Turning next to what s. 101 does say. The power is to establish "additional Courts’’ for the better administration of ‘‘the laws of Canada.” The expression ‘‘additional Courts’’ can only mean more Courts. There is not a hint that these Courts shall supplant existing Courts under s. 129 which have Imperial origin, or oust their jurisdiction in any respect. They are "additional Courts’’ in no wise interfering with‘the existing Courts under s. 129 which have Imperial origin. They must be "a means to some end competent to the latter’’ as it was put in the Board of Commerce case post. One would think the expression "laws of Canada” in its context of s. 101 must mean just what it says, viz., laws of that Federal entity known as Canada organized by the B.N.A. Act (s. 3), as distinguished from the laws of the several Provinces. No one has suggested that the "laws of Canada” include any ‘‘lex non scripta.’’ Cf. The King v. Hume et al., [1930] S.C.R. 531.

Counsel for the respondent relied on G.T. Railway of Canada v. Atty. Gen. of Canada (1907), 76 L.J.P.C. 23, but apart from other distinctive considerations it did not concern s. 101. In Atty-Gen. of Canada v. Atty.-Gen. of Alberta (1922), 91 L.J.P.C. 40, {The Board of Commerce case) the Judicial Committee (per Viscount Haldane) at p. 47 said s. 101

“ . cannot be read as enabling that Parliament (Dominion) to trench on provincial rights, such as the powers over property and civil rights in the Provinces exclusively conferred on their Legislatures. Full significance can be attached to the words in question without reading them as implying such capacity on the part of the Dominion Parliament. It is essential in such cases that the new judicial establishment should be a means to some end competent to the latter. 9} (The italics are mine.)

The foregoing is made to apply equally to ‘‘The Administration of Justice in the Province” under s. 92(14). I do not conceive that any one will question that denial of a fair hearing in the Province, to a property owner in the Province, in matters relating to his property in the Province, is a denial of a civil right in the Province within s. 92(13). It is a plain denial of justice in the Province contrary to the law of the Province. As I view it, it is as much the duty of Dominion officials to observe the provincial law requiring a fair hearing, as it is their duty to obey the provincial and/or municipal traffic laws. Cf. Workmen^ Compensation Board v. C.P.R. (1919), 88 L.J.P.C. at 172. It is a cardinal principle of the common law of England which forms part of the law of this Province, that a tribunal shall hear the whole case and allow a full opportunity therefor^ and that any departures thereform may be corrected promptly by the efficacious remedies afforded by the appropriate high prerogative writs in which are included Certiorari and Mandamus.

Property and civil rights’’ in s. 92(14) "‘are plainly used in their largest sense’’ as said in Citizens Insurance Co. v. Parsons (1882), 51 L.J.P.C. 11 at 18 and in The Natural Products Marketing Act Reference, [1936] S.C.R. 398 at 416. The remedy of Certiorari to prevent a violation of an essential of justice is in its essence a civil right. For regarded in its true character, Certiorari, as was said of Mandamus in The Mayor of Rochester v. The Queen (1858), 120 E.R. 791 at 794, (per Pollock C.B. and Martin B.) is a great constitutional remedy for error and misgovernment and it is the duty of the Court to be vigilant to apply it in every case, to which, by any reasonable construction it may be made applicable.

As one of the high prerogative writs including Habeas Corpus, Mandamus and Prohibition, Certiorari is not a part of the original proceedings before the statutory tribunal. That is to say it is not part of the assessment proceedings before the Board of Referees. It is in the nature of a new proceeding brought by the subject to enforce a civil right (in this case a fair hearing) of which he claims to have been deprived. The same principle governs in this respect as was applied in Habeas Corpus in Ex parte Tom Tong (1883), 108 U.S. 556 ; Kurtz v. Moffitt (1885), 115 U.S. 487; Ex parte Fong, [1929] 1 D.L.R. 223; and Ea: Parte Yuen Yick Jun (1938), 54 B.C. 541—applied in Re Wilby (No. 1) (1944), 60 B.C. at 374.

In Farnsworth v. Montana (1889), 129 U.S. 104 at 113 it was held the same principle applied in Prohibition as in Habeas Corpus. In Rex v. Electricity Commissioners (1924), 93 L.J.K.B. 390, Atkin L.J. at 406 said there was no difference in principle between Certiorari and Prohibition. The Queen v. The Justices of Surrey (1870), 39 L.J.M.C. 145 was cited by Lord Blackburn in Julios v. The Bishop of Oxford (1880), 49 L.J.Q.B. 577 at 591, as a Certiorari case applicable to Mandamus and Prohibition. The House of Lords in Local Government Board v. Arlidge (1914), 84 L.J.K.B. 72 applied the same principles to Certiorari as it had applied to Mandamus in Board of Education v. Rice (1911), 80 L.J.K.B. 786. The principle of Habeas Corpus was applied to Mandamus in Re McLean (1914) 57 B.C. at 58 and 59, per Sloan, C.J.B.C. (then J.A.) with whom McQuarrie, J.A. agreed in legal substance. In both Rex v. Commanding Officer of Moru Hill Camp (1916), 86 L.J.K.B., Lord Reading at 413, and in re Low Hong Hing (1926), 37 B.C., Martin J.A. at 302 applied the principle of Habeas Corpus to Certiorari.

It is true that Habeas Corpus involves personal liberty and thus no doubt stands at the right hand of all the high prerogative ‘writs. But it is intimately related to Certiorari, cf. Houldsworth, Vol. 9, p. 109. For if a person is detained or penalized it is generally grounded on some order, statute or written authority which, as the cause of detention or punishment, must first be quashed on removal of the proceedings from the inferior tribunal to a Superior Court of general common law jurisdiction. If a person may be penalized if he disregards a decision reached at an unfair hearing, his remedy is by Certiorari to quash the decision which is the occasion for his punishment, and see Lee v. Workmen‘s Compensation Board (1942), 57 B.C. at 441.

To summarize briefly the reasoning which supports the conclusion on the second branch of the appeal. The inherent common law Certiorari jurisdiction of the Supreme Court of British Columbia (1) is inherited from the Supreme Court of Vancouver Island created by an Act of the Parliament of Great Britain within the meaning of section 129 of the B.N.A. Act; (2) it was not taken away by the B.N.A. Act, and section 101 of the B.N.A. Act did not confer power on Parliament to do so; (3) alternatively, it is not taken away (a) since section 101 does not expressly and unequivocally provide for the taking away of Certiorari as is found to be indispensably required under the authorities referred to in the first branch of the appeal, and

(b) Certiorari jurisdiction must be first shewn to exist in The Exchequer Court of Canada which Bow McLachlan & Co. v. i( Camosun " (owners) denies; and (4) because the right to Certiorari is a civil right of the same general character as the right to Habeas Corpus which is a vested jurisdiction of the Supreme Court of this Province and forms no part of the ‘‘laws of Canada” as that term is used in s. 101; and (5) the right to a fair hearing is a civil right in the Province under s. 92(13) the protection of which is within the vested jurisdiction of the Provincially constituted Supreme Court and which for reasons stated in paras. 1 to 4 just above the B.N.A. Act does not permit to be taken away from a Court of Imperial origin.

I am accordingly of opinion that the learned Judge’s jurisdiction was not ousted, and that this opinion may be supported on either branch of the appeal. Other grounds, as contained in his factum, were urged by Counsel for the respondent to the effect that Certiorari, even if the Supreme Court’s jurisdiction were not ousted, is nevertheless not an available or a proper remedy in the circumstances of this case. Some of those grounds are answered by what is contained in the decisions to which I have referred on the two branches of the appeal, and see for example Dumont v. Commissioner of Provincial Police (1940), 55 B.C, 298, affirmed generally [1941] S.C.R. 317.

" But there is one submission of Counsel for the respondent that ought not to be passed without comment. It is thus stated in the factum :

"‘that the King cannot be forced by the subject to sit in his own Court and bring upon Certiorari to be tried by himself, a claim of the subject against the Crown which he has sent to an inferior Court to be decided, and this without the issue by the Crown of any fiat.’’

This with respect betrays a misconception of what the remedy of Certiorari really is. I need not repeat here what was said in Ex parte Yuen Yick Jun (1938), 54 B.C. at 549-550. Nor is there properly viewed, any claim here by the subject against the Crown in Certiorari proceedings. No doubt such a claim exists in the assessment proceedings, but with that Court is not concerned in Certiorari proceedings as I have sought to explain elsewhere in this judgment. This aspect was also considered in the Mandamus ease of Lee v. Workmen’s Compensation Board

(1942), 57 B.C. 412 at pp. 434-439, and decisions there examined and discussed, and see also Dumont v. Commissioner of Provincial Police (1940), 55 B.C., Sloan, C.J.B.C. (then J.A.) at 302-3. Certiorari, properly understood is not an alternative remedy to an appeal, nor is it a procedural step in the original proceedings.

The subject here is not attempting to command the Crown or to command a servant of the Crown against the Crown. Quite the contrary. The subject is acting under the Crown, and seeks from the Crown through its Judges to obtain Certiorari to compel respect to the Crown by obedience to the common law in foree in this Province. The Crown has deposited in the Judges of the Supreme Court of this Province its faculties in this respect. If a Crown servant or an agent of Parliament refuses or neglects to obey the Crown it is the function of the Courts to compel his obedience. It is the function of the Courts to interpret the laws and enforce them. In a proper case the Crown will assist its subject by grant of Certiorari or other appropriate high prerogative writ, if he shows that he has been deprived of his common law rights by the illegal action of any statutory Board, and cf.^Lee v. Workmen’s Compensation Board, supra, at pp 439-6.

Upon no ground advanced in this appeal do I consider that Certiorari may be properly refused, if the learned Judge of the Supreme Court before whom the matter shall be heard, is satisfied that a violation of an essential of justice did actually occur.

I would allow the appeal and remit the case to the Supreme Court to enable the motion for Certiorari to be heard.

SMITH, J.A.: This is an appeal from an order of the Supreme Court of British Columbia, made on the 26th July 1944, dismissing a motion for a writ of certiorari.

The appellants are a company engaged in the business of operating a hotel at Nanaimo, B.C. The present litigation was initiated in consequence of alleged misconduct in the proceedings of a Board of Referees set up under the terms of the Excess Profits Tax Act, Chap. 32 of the Statutes of Canada 1940. The intention of this Act is that a further tax should be assessed upon excess profits and that in the assessment thereof the Minister should have the assistance of a special Board to decide upon certain matters preliminary to the computation of the assessment. It may be helpful to briefly mention the relevant sections of the Act together with one or two sections of the Income War Tax Act which are incorporated therein by reference.

The expression “standard period’’ of the former Act is defined as comprising the calendar years 1936 to 1939 inclusive and the expression “standard profits’’ as the average yearly profits during the standard period. Sec. 3 of the Act authorizes the imposition of a tax on excess profits, namely, that portion of the profits of a taxpayer in excess of the standard profits. See. 5(1) provides that if a taxpayer is convinced that owing to his business being depressed, his standard profits were so low during the standard period that it would not be just to determine his liability with reference thereto, he may compute his standard profits at such greater amount as he thinks just; and provides further that in that event the Minister, if not satisfied either that the business was depressed or that the computed profits are fair and reasonable, may direct that the standard profits be ascertained by a Board of Referees and that the Board shall thereupon in its sole discretion ascertain the standard profits at such amount as the Board thinks just, subject to certain limitations which are not material to the matters at issue. See. 5(4) provides that the decisions of the Board of Referees shall not be operative until approved by the Minister, whereupon "‘the said decision shall be final and conclusive”; and provides further that if a decision is not approved by the Minister it shall be submitted to the Treasury Board who shall thereupon determine the standard profits and "‘the decision of the Treasury Board shall be final and conclusive.”

The Board of Referees to which reference has been made is authorized under Sec. 13 "‘to advise and aid (the Minister) in exercising the powers conferred upon him under this Act.’’ (This Board was duly appointed and at the material dates consisted of four members under the Chairmanship of Mr. Justice Harrison of the Supreme Court of New Brunswick.) Sec. 14 is the incorporating section and states that "‘without limiting any of the provisions contained in this Act, sections 40 to 87, both inclusive, of the Income Tax Act . . . shall mutatis mutandis apply to matters arising under the provisions of this Act.’’

It will be sufficient for our present purpose to note that these incorporated sections provide that an appeal may be brought by "‘any person who objects to the amount at which he is assessed’’ and that this appeal is in the first place to the Minister (Sec. 58) and thence, if the appellant is dissatisfied with the Minister’s decision, to the Exchequer Court of Canada. Sec. 66 expressly provides that " ‘ Subject to the provisions of this Act the Exchequer Court shall have exclusive jurisdiction to hear and determine all questions that may arise in connection with any assessment made under this Act.”

The appellants, considering their business depressed within the meaning of Sec. 5(1), took advantage of these provisions and computed their standard profits at the sum of $10,378.32 and the Minister, not being satisfied, directed that the standard profits be determined by the Board of Referees. The appellants were notified that their standard profits claim would be heard at Vancouver, B.C. on 27th April, 1943, and were requested to have a representative of the Company appear before the Board at that time. Mr. Cunliffe duly appeared for the Company. The appellants complain of the constitution and conduct of the Board upon this hearing. Mr. Cunliffe filed an affidavit stating that the Board was composed of two members only instead of four, that the hearing was adjourned on the understanding that there would be a further hearing after Mr. Cunliffe had secured and sent to the Board certain further particulars of the Company’s business; that one of the members told him (Mr. Cunliffe) that when the Board had made its decision Mr. Cunliffe, if he so desired, could make further submissions to the Minister before he (the Minister) formally approved thereof; that contrary to this understanding, not only was there no further - hearing, but the Board’s decision, approved by the Minister, was handed down before the Board received the further particulars to which reference has been made.

The Board’s view of these allegations was not disclosed. The position taken by its Conusel on the hearing before us was set out in his factum as follows :

‘‘There is no evidence before the Court as to whether the Board of Referees accepts this version of what happened and whether the understanding of the members of the Board was the same as that of Mr. Cunliffe. This would have been disclosed in the return made to the Writ of Certiorari had the issue of the same been ordered.”

And further on as follows:

" " The actual procedure usually adopted by the Board of Referees was not disclosed in the material before the trial Judge, as it would have been in the return which would have been made had a writ issued.’’

The motion for the writ of certiorari came before Mr. Justice Macfarlane and the question of jurisdiction was raised as a preliminary objection. The learned Judge decided against the appellant on that issue. As I have reached the same conclusion the lack of evidence on the Board’s position becomes immaterial.

But before leaving this aspect of the matter it may be useful to observe that these statutory advisory Boards should not be regarded as Courts, and subject to strict Court procedure. As it happens I have presided over three such Boards in recent years. We have always considered ourselves free to follow the methods of procedure best adapted to the work in hand, provided that all parties had an opportunity of being fully heard or of otherwise stating their case and their view; this being a duty " " lying upon anyone who decides anything. ” These would appear to be the principles enunciated in such cases as Board of Education v. Rice, [1911] A.C. 179 at 182; Local Government Board v. Arlidge, [1915] A.C. 120; The Imperial Tobacco Co. Ltd. v. McGregor, [1939] O.R. 213; The King v. Noxzema Chemical Co. of Canada Limited, [1941] Ex. C.R. 155 (at 165 and 166). I think the usefulness and efficacy of such Boards would be greatly curbed if they were to be fettered by procedure of a less elastic nature.

The Board handed down its decision dated at Ottawa the 15th May, 1943. It was signed by the Chairman and two members of the Board, and was subsequently duly approved by the Minister. The Company’s standard profits were determined at the sum of $7,500.00. On this basis an assessment was made for the years 1941 and 1942 and received by the Company. The Company appealed to the Minister from this assessment under Sec. 58. This appeal was pending during the currency of the proceedings before Mr. Justice Macfarlane. It was dismissed by the Minister on 5th October, 1944, after the dismissal of the motion for oertiorari.

In my opinion the sole question before us is whether the Supreme Court of British Columbia had jurisdiction to direct the issue of a writ of certiorari in the circumstances of this case. The answers turns upon the interpretation of sec. 66 of the Income War Tax Act, which, as already noted, states that "‘the Exchequer Court shall have exclusive jurisdiction to hear and determine all questions that may arise in connection with any assessment made under this Act’’ (1.e., the Excess Profits Act). It was submitted that, notwithstanding this section, the Exchequer Court had no jurisdiction to review the proceedings of the Board of Referees because sec. 5(4) provided that the decisions of the Board, after approval by the Minister, ‘‘shall be final and conclusive’’; and that while the Exchequer Court might have jurisdiction concerning any other question that might arise in connection with the assessment it had none over questions which had been determined by the Board.

I am unable to accept this view. Sec. 5(4) and sec. 66 must be read so that they may live together and not so that one may destroy the other. Looking at them thus, I have no doubt that the words “final and conclusive” are referable only to proceedings before the Board after their approval by the Minister. So far as the Board and the Minister are concerned they are then “final and conclusive.” But I do not think they are Intended to be final and conclusive as regards the provisions dealing with appeals which are to be found, and to be found only, in the incorporated sections. (Cf. Corporation of the District of Oak Bay v. Corporation of the City of Victoria (1941), 56 B.C. 345.

It was then submitted that even if the Exchequer Court had Jurisdiction in this regard it was by way of appeal only and that this did not displace the inherent common-law jurisdiction of the Supreme Court of British Columbia to direct such proceedings to be brought before it for review by means of the remedial writ of certiorari. But neither am I able to accept this view. I have had the benefit of reading the judgment of my brother Robertson and I was impressed by the force of his conclusion that, in the circumstances now before us, the Exchequer Court has concurrent jurisdiction to examine the Board’s proceedings by way of certiorari. But even if this were not so, I think see. 66, by its very words, gives the Exchequer Court jurisdiction to review the Board’s fiindings either by way of appeal or by any way of summary application that may be open to it under sec. 36 of the Exchequer Court Act.

I agree with Mr. Justice Macfarlane that the words of sec. 66 “include matters occurring prior to, as well as subsequent to, or consequent upon, so long as they are related to” the assessment. It seems to me not open to argument that the lawful determination by the Board of the amount of the standard profits is one of the fundamental elements in the computation of the assessment. And therefore it would seem that this question, like all other questions, is given over to the ‘‘exclusive jurisdiction” of the Exchequer Court.

There can be no doubt that Courts should scrutinize most carefully any statute which purports to take away the commonlaw right of certiorari and that such right should not be held taken away unless the language is imperative. We were referred to an abundance of authorities to that effect. But these authorities for the most part dealt with legislation of a unitary system of government. None of them touches the exact case before us, where we have a federal system of government and where the manifest intention of the Federal Government is to give exclusive Jurisdiction to a Federal Court set up for the primary purpose of dealing with matters of revenue and other matters in which the Crown is concerned. (Bow, McLachlan v. The ‘‘Camosun,’’ [1909] A.C. 597; Farwell v. The Queen (1893), 22 S.C.R. 553; Rex v. McCarthy (1919), 18 Ex. C.R. 410; 46 D.LR. 456 (approved S.C. 11 Oct. 1921).

I agree with my Brother Robertson that under the authority of the Reference re Privy Council Appeals, [1940] S.C.R. 49, there can now be no doubt that the Federal Parliament has jurisdiction to create such Court and to confer upon it such jurisdiction.

For these reasons I think the appeal should be dismissed.