Rothmans, Benson & Hedges Inc. v. M.N.R.
T-241-98
Teitelbaum J.
14/4/98
9 pp.
Motion to strike originating notice of motion seeking to quash Minister of National Revenue's decision certain tobacco products meeting definition of "tobacco stick" in Excise Act, Excise Tax Act-Decision allegedly made by Minister accepting, without further comment at time or thereafter, payment by applicant of tax and duty on product as if "tobacco stick"-Applicant marketed one case of product labelled "Mark Ten Presto Pak", paid excise duties, taxes calculated at tobacco stick rate, not higher cigarette rate-Product for all intents and purposes same as that sold by competitor-Prior to marketing "Mark Ten" product, applicant obtaining ruling from Minister prototype tobacco stick-Judicial review of ruling refused as not "decision" subject to judicial review-Applicant wanting Minister to subject "Mark Ten" product to cigarette rate so as to compel Minister to tax competitor's product as cigarette-Application allowed-Court would strike originating motion, but would have to be plain and obvious case beyond doubt before application to strike granted: Rothmans, Benson & Hedges Inc. v. Canada (Minister of National Revenue-M.N.R.), [1998] F.C.J. No. 79 (T.D.) (QL)-Cannot assume Minister made decision because received, cashed cheque-Nothing in law preventing Minister from requesting applicant to pay duties, taxes at cigarette rate-Failure to act not decision-No decision subject to review if no amounts of duties, taxes claimed by Minister.