PS & E Contractors Ltd. et al. v. Canada (Attorney General) et al., (1988) 71 Sask.R. 195 (CA)

• Judge: Bayda, C.J.S., Wakeling and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 29, 1988
• Jurisdiction: Saskatchewan
• Citations: (1988), 71 Sask.R. 195 (CA)

PS&E Contractors Ltd. v. Can. (A.G.) (1988), 71 Sask.R. 195 (CA)

MLB headnote and full text

PS & E Contractors Ltd., Precision Service & Engineering Ltd., Sergei David Doodchenko and Arne Frederick Petersen (appellants) v. Her Majesty the Queen in Right of the Attorney General of Canada and His Honour Judge J.R.O. Archambault (respondents)

(Nos. 4235 & 4236)

Indexed As: PS & E Contractors Ltd. et al. v. Canada (Attorney General) et al.

Saskatchewan Court of Appeal

Bayda, C.J.S., Wakeling and Sherstobitoff, JJ.A.

November 29, 1988.

Summary:

Section 244(4) of the Income Tax Act prescribed a five year limitation period for the laying of an information for income tax offences from the time the matter of the complaint arose or within one year from the day on which evidence sufficient to justify a prosecution came to the Minister of National Revenue's knowledge. An information containing 23 counts charged four accused with various violations of the Income Tax Act at various times during a six year period dating from January 31, 1977 to April 29, 1983. The information was sworn before a Justice of the Peace on December 17th of an unspecified year. The accused moved to quash the information on the ground that the omission from the jurat of the year during which the information was sworn rendered the information a nullity and beyond the five year limitation period in s. 244(4).

The Saskatchewan Provincial Court, in a decision unreported in this series of reports, accepted the accused's argument and ruled that the information was invalid and that the prosecution was statute-barred respecting certain of the counts. The Crown then tendered a certificate under s. 244(4) to attempt to extend the time for prosecution of those counts falling outside the limitation period. The accused objected to the admission of the certificate on the ground that it was issued by a Director-Taxation and that the Minister of National Revenue had no personal knowledge of the facts in the certificate.

The Saskatchewan Provincial Court ruled that the certificate was admissible and that the knowledge of the Director-Taxation was deemed to be that of the Minister. The accused applied for certiorari and prohibition to prohibit the trial judge from proceeding to trial. The Attorney General of Canada applied for mandamus to compel a trial on all of the statute-barred counts.

The Saskatchewan Court of Queen's Bench, in a decision not reported in this series of reports, refused prohibition and granted mandamus, compelling the trial judge to proceed with trial on all other counts. The court held that the certificate was valid and admissible. The accused appealed.

The Saskatchewan Court of Appeal held that the certificate tendered under s. 244(4) was inadmissible. In the result, the Court of Appeal dismissed those counts which fell beyond the five year limitation period in s. 244(4). The Court of Appeal ordered the Crown to proceed with the prosecution of the remaining counts.

Crown - Topic 704

Authority of Ministers - Delegation of - Nondelegable matters - Section 244(4) of the Income Tax Act prescribed a five year limitation period for the laying of an information for income tax offences from the time the matter of the complaint arose or within one year from the day on which evidence sufficient to justify a prosecution came to the Minister of National Revenue's knowledge - The Saskatchewan Court of Appeal held that the filing of a certificate under s. 244(4) (certifying the day on which evidence sufficient in the opinion of the Minister to justify a prosecution came to his knowledge), could not be delegated by the Minister to a Director-Taxation.

Income Tax - Topic 9428

Enforcement - Limitation of actions - Extension of period - Knowledge of Minister - Section 244(4) of the Income Tax Act prescribed, inter alia, a one year limitation period for laying an information for income tax offences from the day on which evidence sufficient to justify a prosecution came to the knowledge of the Minister of National Revenue - To attempt to extend the limitation period, the Crown tendered a certificate under s. 244(4), issued by a Director-Taxation - The Saskatchewan Court of Appeal held that the certificate was inadmissible because the knowledge it referred to was not the knowledge of the Minister personally; the knowledge of someone else could not be substituted - The certificate was also inadmissible because it was defective, where it failed to state the first date on which the knowledge came to the attention of the Minister.

Cases Noticed:

R. v. Government of Saskatchewan (1983), 20 Sask.R. 213 (C.A.), appld. [paras. 5, 28].

Procureur Général du Canada v. Marcotte, [1975] C.A. 570, agreed with [para. 12].

R. v. German and Medicine Hat Greenhouses Ltd., [1979] 1 W.W.R. 296; 13 A.R. 232 (C.A.), agreed with [para. 14].

R. v. German and Medicine Hat Greenhouses Ltd., [1977] 5 W.W.R. 532; 6 A.R. 357 (Q.B.), refd to. [para. 14].

Fee et al. v. Bradshaw et al., [1982] 1 S.C.R. 608; 43 N.R. 329, agreed with [para. 16].

R. c. Bellevance, Moreau et Drolet; R. c. Habitations Perigord Inc. et Dionne (1988), 14 Q.A.C. 295; 88 D.T.C. 6267, agreed with [para. 17].

R. v. Harrison, [1977] 1 S.C.R. 238; 8 N.R. 47, not appld. [para. 19].

Carltona Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.), refd to. [para. 20].

Lewisham Borough Council v. Roberts, [1949] 1 All E.R. 815 (C.A.), refd to. [para. 20].

Ahmad v. The Appeal Board, Public Service Commission, [1974] 2 F.C. 614 (F.C.A.), refd to. [para. 20].

Dressler v. Tallman Gravel and Sand Supply Ltd. (1963), 2 C.C.C. 25 (Man. C.A.), refd to. [para. 27].

R. ex rel. Hoddinott v. Wooster (1959), 123 C.C.C. 255 (Sask. C.A.), refd to. [para. 27].

R. v. Slavik (1955), 111 C.C.C. 399, refd to. [para. 27].

Statutes Noticed:

Income Tax Act, S.C. 1970-71-72, c. 63, sect. 220(1), sect. 221(f) [para. 2]; sect. 244(4) [paras. 1-2, 4, 6, 8-9, 11-12, 16, 22-15, 27].

Income Tax Act Regulations, sect. 900(2)(b) [para. 2].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 23(2) [para. 2].

Counsel:

D. Curliss, for the Crown;

J.W.H. Sanderson, Q.C., and A. Pandila, for the appellant.

This appeal was heard before Bayda, C.J.S., Wakeling and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered by Sherstobitoff, J.A., on November 29, 1988.