CUSTOMS AND EXCISE |
Excise Tax Act |
Pomerleau Inc. v. Canada
A-146-96
Décary, Létourneau (dissenting) and Noël, JJ.A.
31/5/00
23 pp.
Appeal from Trial Division judgment ((1996), 108 F.T.R. 273) allowing respondent Pomerleau Inc.'s action and ordering Her Majesty to pay $161,259.62--Court had to interpret tax adjustment clause contained in contracts between Her Majesty and respondent bidder--In each of 6 bids presented between July and September 1984, contractor calculated price based on 5 percent tax rate in effect at time said bids filed--General Condition GC22.4 provided that fiscal changes subsequent to filing of bids would be deemed to have occurred before bids filed if Finance Minister had given public notice thereof before bids filed--Tax increase announced before bids filed; Act enacted after bids filed; Parliament dissolved before bids filed and new government elected before Act came into effect--On February 26, 1985 royal assent given to Act to amend Excise Tax Act and the Excise Act, which increased sales tax on certain goods from 5 percent to 6 percent--Sum of $161,259.62 claimed from Her Majesty represented total additional cost to contractor of 1 percent tax increase coming into effect October 1, 1984 --Appeal dismissed--Per Décary J.A.: issue turning essentially on interpretation to be given to phrase "public notice" contained in clause GC22--Counsel for respondent argued public notice unopposable where, when bids filed, no Parliament capable of adopting relevant legislation and any doubt as to meaning of expression "public notice" should be resolved in favour of party who has contracted obligation--Interpretation suggested by respondent seems correct and reasonable in circumstances--Legislation here that which came into effect in February 1985, and notice to which legislation gave effect new Finance Minister's press release dated September 27, 1984--Press release issued by Hon. Lalonde on August 9, 1984, during election campaign, could not have any effect in circumstances--If any doubt as to meaning to be given to phrase "public notice", doubt should be resolved in favour of bidding contractor--Per Noël J.A. (concurring): section GC22.4 of clause GC22 not clear as to meaning to be given to words "public notice"--Since talking about contractual matter, clause subject to ambiguity stipulated by Department of Public Works and ambiguity resulted in interpretation adopted by respondent, Denault J. properly accepted interpretation favouring respondent--Per Létourneau J.A. (dissenting): respondent's position based on theory of counter-notice: dissolution of Parliament amounted to counter-notice to public notice given by Minister of Finance on April 19, 1983, public notice by which Minister announced 1 percent increase in federal sales tax--Meaning to be given to term "public notice" depends on objective sought by clause GC22--Provisions contained in clause GC22 designed to insulate contract from any cost fluctuation--Word "notice" contained in clause GC22 must be given ordinary, usual and everyday meaning--Appellants brought to respondent's attention fact there might be increase in federal sales tax--Public notice given by Minister of Finance on April 19, 1983 met requirements of clause GC22.4 and simply initiated process of implementing it in accordance with clearly expressed intent of parties--Saying public notice of April 9, 1983 not valid for purposes of contract is to insert into actual wording of quite clear contractual provision, without good reason, ambiguity external and foreign to contract--Confusion between concept of public notice mentioned in clause GC22.4 of contract and that of Notice of Ways and Means Motion on Budget by which public notice of contract implemented--Act to amend Excise Tax Act and the Excise Act, S.C. 1985, c. 3.