T-4157-74
British Columbia Railway Company (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Collier J.—Vancouver, November
8 and December 8, 1978.
Excise — Sales tax — Goods prepared for use by manufac
turer and not for sale — Plaintiff disputing Revenue Depart
ment's method of valuating product — Court to determine
preliminary questions of law: (1) whether any tax is payable at
all, and (2) whether Minister's valuation of product is review-
able by proceedings in Trial Division — Excise Tax Act,
R.S.C. 1970, c. E-13, ss. 27, 28 — Interpretation Act, R.S.C.
1970, c. I-23, s. 11.
The Department of National Revenue, Customs and Excise
Division, pursuant to the Excise Tax Act, assessed the plaintiff
sales or consumption tax in respect of railway ties. The plaintiff
sent out its raw ties to another company to be creosoted and the
price charged included a reasonable component for administra
tive costs and profit of that other company. The Revenue
Department computed the value of the ties, for tax purposes, on
the total cost of the raw ties, certain freight charges, the
charges for creosoting, plus 15% on all that for supervision and
profit. The plaintiff took issue with the 15% charge. The Court
is to determine two preliminary questions of law: firstly, did the
Excise Tax Act fail to specify the time at which the sales tax
was payable, and if so, is any tax payable at all? and secondly,
is the Minister's determination of the value of the railway ties
reviewable by proceedings in the Trial Division of this Court?
Held, the first question is answered in plaintiff's favour. For
transactions falling within paragraph 28(1)(d), no time for
repayment is set out in subsection 27(1). Subparagraph
27(1)(a)(i) cannot be interpreted as fixing a time for payment
of the deemed sale specified in paragraph 28(1)(d). Subsection
50(3) does not fix the time when the tax is payable; it merely
allows the taxpayer to file a return and forward the taxes
collected, on a monthly basis or payable earlier, to the tax
gatherer. The result of the existing statutory provisions is that a
manufacturer or producer does not know when the tax becomes
payable. A taxpayer must know the point in time when tax is
payable in order to comply with and fulfil his statutory duties.
Here there is a gap or omission; there is no certainty and, as a
consequence, no liability. As to question 2, it was agreed that if
question 1 was answered in favour of the plaintiff, the assess
ments are to be vacated.
ACTION.
COUNSEL:
P. N. Thorsteinsson for plaintiff.
W. Hohmann for defendant.
SOLICITORS:
Thorsteinsson, Mitchell, Little, O'Keefe &
Davidson, Vancouver, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
COLLIER J.: These reasons are the determina
tion, before trial, of a question of law.
The plaintiffs action is for declaratory relief.
Paragraph 2 of the statement of claim alleges,
and the defendant admits:
2. The Plaintiff at all material times purchased ties from
various sources, transferred the ties to other parties to have
preservative applied, and then utilized the finished ties in the
maintenance and extension of its railway lines.
The Department of National Revenue, Customs
and Excise Division, pursuant to the Excise Tax
Act', assessed the plaintiff sales or consumption
tax in respect of the railway ties. The taxes were
assessed over the period June 14, 1963 to June 30,
1973. The amounts are substantial.
One particular aspect of the assessment gave
rise to the present law suit. The plaintiff sent out
its raw ties to another company to be creosoted.
This is a relatively expensive process. The price
charged the plaintiff for that service included a
reasonable component for administrative costs and
profit of that other company. The Revenue
Department computed the value of the ties, for tax
purposes, on the total of the cost of the raw ties,
certain freight charges, the charges for creosoting,
plus 15% on all that for supervision and profit. The
plaintiff took issue with the 15% charge. This
action followed.
' R.S.C. 1952, c. 100 and amendments, and subsequently
R.S.C. 1970, c. E-13 and amendments.
The parties agreed to have the Court determine
two preliminary questions of law. The first ques
tion is not really related to the 15% calculation in
respect of administration costs and profit. It goes
to whether any tax is payable at all. The second
question is more directly related to the 15% issue.
I set out, first, an agreed statement of facts 2 :
1. The Plaintiff purchased raw railroad ties from suppliers
along its railway line.
2. It delivered raw ties to a creosoting plant operated by
Dominion Tar and Chemical Co. Ltd. (`Domtar'), whereupon
Domtar creosoted the ties.
3. The Plaintiff then picked up the ties at Domtar's plant and
put them to use throughout its rail system.
4. Domtar charged the Plaintiff for the creosoting function
performed by it an amount that was an arm's length price for
what Domtar did, including a reasonable component to cover
administrative costs and profit.
5. By analogy with the decision of the Supreme Court of
Canada in The Queen v. Canadian Pacific Railway Company,
1971 Dominion Tax Cases 5078, the Plaintiff is considered to
be the manufacturer for sales tax purposes of the ties creosoted
in these circumstances by Domtar.
6. Pursuant to section 27 of the Excise Tax Act the Defendant
has assessed the Plaintiff on the basis that it is to be treated as
the manufacturer of the finished ties and has imposed tax on
the basis of a determination pursuant to section 28 of the
Excise Tax Act that the value on which the tax is to be
imposed is the total of:
(a) cost of the raw ties,
(b) amounts for freight for which no specific charge was
made by the Plaintiff, and
(c) charge by Domtar for creosoting,
and then to that total is added 15% for supervision and profit.
At the hearing, the parties further agreed that
the defendant had selected, for the points in time
when the tax became payable, the time the par
ticular ties were physically installed into the plain
tiff's rail bed system—the time of consumption.
I set out, next, the questions of law for
determination:
1. Did the Excise Tax Act fail to specify the time at which the
consumption or sales tax was payable on the Plaintiffs railroad
ties, and if so, is there any liability on the Plaintiff for payment
of the consumption or sales tax assessed by the Minister in this
case?
2. Is the determination made by the Minister of National
Revenue, pursuant to s. 28 of the Excise Tax Act R.S.C. 1970,
2 I have already briefly summarized them.
c. E-13 (and amendments) and pursuant to s. 31 of the Excise
Tax Act R.S.C. 1952, c. 100 (and amendments), of the value of
the plaintiff's railroad ties, for the consumption or sales tax, as
calculated according to Schedule A of the amended statement
of claim, reviewable by proceedings in the Trial Division of this
Court?
The parties further agreed:
(a) if question 1 is answered in favour of the
plaintiff, the assessments are to be vacated; if
the answer is unfavourable, question 2 is to be
determined.
(b) if question 2 is answered in favour of the
defendant, the plaintiff's action is dismissed; if
the answer is in the affirmative, the action will
proceed to trial.
When these questions came on for hearing, I
stated, after discussion, question 1 would be
argued and determined first.
I turn, then, to the submissions made on the first
question.
Counsel referred at length to subsections 27(1)
and (4), and subsection 28(1) of the Excise Tax
Act 3 . I set out those portions of the legislation:
27. (1) There shall be imposed, levied and collected a con
sumption or sales tax of nine per cent on the sale price of all
goods
(a) produced or manufactured in Canada
(i) payable, in any case other than a case mentioned in
subparagraph (ii) or (iii), by the producer or manufacturer
at the time when the goods are delivered to the purchaser
or at the time when the property in the goods passes,
whichever is the earlier,
(ii) payable, in a case where the contract for the sale of
the goods (including a hire-purchase contract and any
other contract under which property in the goods passes
upon satisfaction of a condition) provides that the sale
price or other consideration shall be paid to the manufac
turer or producer by instalments (whether the contract
provides that the goods are to be delivered or property in
the goods is to pass before or after payment of any or all
instalments), by the producer or manufacturer pro tanto at
the time each of the instalments becomes payable in
accordance with the terms of the contract, and
3 R.S.C. 1970, c. E-13. The amendment to section 27 by S.C.
1970-71-72, c. 62, s. 1, merely increased the tax from 9% to
12%. I do not think it necessary to set out the comparable
provisions of the Excise Tax Act, R.S.C. 1952, c. 100, and
amendments, covering the years 1963-1970.
(iii) payable, in the case of dressed or dressed and dyed
furs, by the person to whom the furs are delivered by the
dresser or dyer, at the time of such delivery, whether or
not that person is a licensed wholesaler or licensed manu
facturer, and the sale price of the goods shall be deemed to
be either the aggregate of the current market value of the
furs in their raw state and the dressing or dressing and
dyeing charge, or the dyeing charge only where the furs
delivered were dressed furs on which tax has been paid
under this subparagraph or on importation, and the dresser
or dyer shall, at the time the furs are so delivered, collect
the tax in the form of a certified cheque made payable to
the Receiver General and shall forthwith remit the same to
the Receiver General;
(b) imported into Canada, payable by the importer or trans-
feree who takes the goods out of bond for consumption at the
time when the goods are imported or taken out of warehouse
for consumption;
(e) sold by a licensed wholesaler, payable by him at the time
of delivery to the purchaser, and the tax shall be computed
(i) on the duty paid value of the goods, if they were
imported by the licensed wholesaler, or
(ii) on the price for which the goods were purchased by
the licensed wholesaler, if they were not imported by him,
and such price shall include the amount of the excise
duties on goods sold in bond; or
(d) retained by a licensed wholesaler for his own use or for
rental by him to others, payable by the licensed wholesaler at
the time the goods are put to his own use or first rented to
others, and the said tax shall be computed
(i) on the duty paid value of the goods, if they were
imported by the licensed wholesaler, or
(ii) on the price for which the goods were purchased by
the licensed wholesaler, if ...
(4) Where a motor vehicle or tractor or a machine or tool
for operation by a motor vehicle or tractor
(a) has been purchased or imported by a person who is the
first purchaser or importer in Canada of the article for his
own use and who purchased or imported the article for a use
rendering such purchase or importation exempt from tax
under this Part, or
(b) has been purchased as described in subsection 44(2);
the following rules apply:
(c) if within five years of such purchase or importation the
article is applied by the purchaser or importer to any use
(other than of a casual nature) for which it could not
originally have been purchased or imported by the purchaser
or importer exempt from tax under this Part, the purchaser
or importer shall be deemed to have sold the article at the
time of its application to that use and there shall be imposed,
levied and collected a consumption or sales tax of nine per
cent on the value of the article at the time of its application
to that use, payable by the purchaser or importer at that
time; and
(d) if within five years of such purchase or importation the
article is sold or leased by the purchaser or importer to any
person other than a licensed wholesaler, the purchaser or
importer shall be deemed to have sold the article at the time
of its sale or lease to such person and there shall be imposed,
levied and collected a consumption or sales tax of nine per
cent on the value of the article at the time of its sale or lease
to such person, payable by the purchaser or importer at that
time.
28. (1) Whenever goods are manufactured or produced in
Canada under such circumstances or conditions as render it
difficult to determine the value thereof for the consumption or
sales tax because
(a) a lease of such goods or the right of using the goods but
not the right of property therein is sold or given;
(b) such goods having a royalty imposed thereon, the royalty
is uncertain, or is not from other causes a reliable means of
estimating the value of the goods;
(c) such goods are manufactured by contract for labour only
and not including the value of the goods that enter into the
same, or under any other unusual or peculiar manner or
conditions; or
(d) such goods are for use by the manufacturer or producer
and not for sale;
the Minister may determine the value for the tax under this Act
and all such transactions shall for the purposes of this Act be
regarded as sales.
The defendant's position, in assessing the plain
tiff in respect of the railroad ties, was that it was
difficult to determine their value, for tax purposes,
because they were "manufactured or produced" by
the plaintiff for use by it and not for sale 4 ; the
purchase of untreated ties, the creosoting pro
cesses, and the eventual consumption or use in the
plaintiff's railroad system were "transactions"
which, for the purposes of the Excise Tax Act, are
regarded as sales of the ties 5 .
Counsel for the plaintiff questions whether the
steps set out in the preceding paragraph can realis
tically, or legally, be said to fall within the expres
sion "all such transactions". The matters set out in
paragraphs 28(1)(a),(b) and (c) may each be char
4 In The Queen v. Canadian Pacific Railway Company
[1971] S.C.R. 821 the railroad company was held to be, on
almost identical facts, a manufacturer or producer of ties
within the meaning of paragraph 28(1)(d) of the statute.
5 See subsection 28(1).
acterized as a "transaction", it is said, because
they seem to envisage the transfer of goods from
the manufacturer or producer to someone else; it is
then not too difficult for them to "be regarded as
sales." But, it is contended, the manufacturing or
producing of goods for one's own use, without
something further, cannot be a "transaction."
I agree there is some awkwardness in the lan
guage of subsection 28(1). A court ought, never
theless, to endeavour to give effect to the words
used. "Transactions" include the doing or carrying
on of activities. The manufacture or production of
goods for one's own use, and not for sale, can
reasonably, to my mind, be characterized as a
transaction.
The plaintiffs main contention is that for a tax
to be validly imposed, a time for its payment must
be fixed. Counsel says when one goes to section 27,
the charging section, there is no time of payment
applicable to transactions falling within paragraph
28(1)(d).
The plaintiff points out, and I agree, that the
legislators, in paragraphs 27(1) (a),(b),(c) and (d),
and in subsection 27(4), have explicitly provided
precisely when the tax is payable. Paragraph
27(1)(d) was singled out. In so far as it deals with
the case of a licensed wholesaler retaining goods
for his own use, it is very similar to the factual
situation in this case and to transactions falling
within paragraph 28(1)(d). The tax on the goods
of a licensed wholesaler who retains them for his
own use is payable at the time the goods are put to
his own use. In paragraph 27(4)(c), dealing with
the tax payable in respect of motor vehicles and
tractors, and certain types of machinery, there is a
somewhat similar provision as to the time for
payment.
The plaintiff says there is no provision anywhere
in section 27, or Part V, which specifies when the
tax, payable by a manufacturer or producer who
uses his own goods, is payable; there is a gap or
omission; there is therefore no certainty, and as a
consequence, no liability.
It is of assistance, in my view, to look at other
Parts of the Excise Tax Act.
Part I imposes a tax on premiums paid in
respect of certain insurance contracts. Section 4
provides the tax is payable on, or before, a fixed
date in each year.
Part II imposes an air transportation tax on the
amount paid for certain air transportation. The tax
is specified to be payable at the time when the
transportation is paid for, or becomes payable
(section 12). The tax collected by the air carriers is
remitted monthly (section 17).
Part III of the legislation imposes a tax on
various goods set out in Schedules I and II to the
Act. The tax imposed on, for example, cigarettes
and tobacco, is set out in Schedule II. The times
for payment are specifically set out in subsection
21(2).
In this Part of the statute, subsection 21(4) is
noteworthy:
21. ...
(4) When goods of any class mentioned in Schedules I and
II are manufactured or produced in Canada and are for use by
the manufacturer or producer thereof and not for sale, such
goods shall, for the purposes of this Part, be deemed to have
been delivered to a purchaser thereof, and the delivery shall be
deemed to have taken place when the goods are used or
appropriated for use; the Minister may determine the value of
the said goods for the tax.
There the legislators have, once more, specifically
set out the time for payment of the tax, when
certain classes of goods are manufactured or pro
duced for one's own use. I contrast that with the
silence in section 27 in respect of paragraph
28(1)(d) goods.
Part IV deals with taxes on playing cards and
wines. In the case of the former the precise time
for payment is set out in subsection 23(2). In the
case of wines, the times are set out in subsections
24(2) and 25(2).
I turn now to the submissions on behalf of the
defendant.
It was argued there was no need to single out
the goods falling within paragraph 28(1)(d), and
spell out, by deeming provisions such as those used
in subsection 21(4), the time for payment of the
tax; subparagraph 27(1)(a)(i) covers the point;
when a manufacturer or producer uses his own
goods, the transaction is deemed a sale; the
amount of tax is calculated and is payable at the
time the goods are taken out of inventory and put
into use; there is, in effect, at that instant, a
deemed delivery to the manufacturer (purchaser)
and a deemed transfer of property. Counsel sub
mitted the times set out in the remaining subpara-
graphs of paragraph 27(1)(a) and in paragraphs
27(1)(b),(c) and (d) were necessary to cover those
special situations, where there might be uncertain
ty as to when the tax was payable.
I cannot accept the defendant's submissions.
To interpret sections 28 and 27 in the manner
urged by the defendant is, as I see it, to insert
words to make the provisions say "what the legis
lature could have said or would have said if [the]
particular situation [the plaintiff's ties] had been
before it." 6
I was referred by the plaintiff, for the general
proposition that statutes which impose pecuniary
burdens are subject to strict construction, to older
classical texts on construction of statutes.
I quote from Maxwell, On the Interpretation of
Statutes':
Statutes imposing burdens
Statutes which impose pecuniary burdens are subject to the
same rule of strict construction. It is a well-settled rule of law
that all charges upon the subject must be imposed by clear and
unambiguous language, because in some degree they operate as
penalties: the subject is not to be taxed unless the language of
the statute clearly imposes the obligation, and language must
not be strained in order to tax a transaction which, had the
legislature thought of it, would have been covered by appropri
ate words. "In a taxing Act," said Rowlatt J., "one has to look
merely at what is clearly said. There is no room for any
intendment. There is no equity about a tax. There is no
presumption as to a tax. Nothing is to be read in, nothing is to
be implied. One can only look fairly at the language used." But
this strictness of interpretation may not always enure to the
subject's benefit, for "if the person sought to be taxed comes
within the letter of the law he must be taxed, however great the
hardship may appear to the judicial mind to be."
6 E. A. Driedger, The Construction of Statutes, Butterworths
(Canada) 1974, at pp. 79-80.
7 (12th ed., 1969), 256.
The judicial decisions cited in support of the above
principles are of high authority. To similar effect
is Craies on Statute Law 8 .
The strict construction rule was adopted by the
Supreme Court of Canada in The King v. Crabbs 9 .
The authorities I have cited deal, generally, with
the construction to be adopted in order to deter
mine whether or not a tax is imposed, or exigible.
The same construction rules should, in my view, be
equally applicable in respect of time for payment
of a tax. Under the Excise Tax Act, a taxpayer,
such as the plaintiff, can be charged for failure to
pay taxes 10 . It seems to me that certainty as to the
time of payment would be essential in order to
secure a conviction.
Two more recent works on statutory interpreta
tion take the view there are not, or ought not to be,
special rules, or rules of strict construction, in
respect of taxing statutes". As Mr. Driedger
points out, the Interpretation Act 12 in this country
requires:
11. Every enactment shall be deemed remedial, and shall be
given such fair, large and liberal construction and interpreta
tion as best ensures the attainment of its objects.
Applying just the ordinary rules of construction,
(and not so-called strict construction) as set out in
Mr. Driedger's text at pages 67, and 76-80 13 and
in Professor Cross's text at page 43, I conclude
that, for transactions falling within paragraph
28(1)(d), no time for payment is set out in subsec
tion 27(1). Further, that subparagraph 27(1)(a)(i)
cannot be made applicable to the situation here.
That subparagraph cannot, in my opinion, be
interpreted, in the manner suggested by the
defendant, in order to fix a time for payment of
the deemed sale specified in paragraph 28(1)(d).
8 (7th ed., 1971), 112-115.
9 [1934] S.C.R. 523. See also the reasons of Duff J. (later
C.J.C.) in Versailles Sweets, Ltd. v. Attorney General of
Canada [1924] S.C.R. 466 at 467-468.
10 See, for example, section 55 and section 56.
Driedger, op. cit. supra, n. 6, at 148-153.
' 2 Interpretation Act, R.S.C. 1970, c. I-23, s. 11.
13 I include the additions to pages 76 and 79 set out in the 1st
Supplement (1976).
The result of the existing statutory provisions is
that a manufacturer or producer does not know
when the tax becomes payable. It can be just as
plausibly argued the notional sale takes place
when the railroad ties are, after treatment, put in
inventory; that the hypothetical sale is not at some
date when they are put to use. The ties may not be
used or consumed for months or years. They may
increase or decrease in value over that period of
time. A taxpayer must, as I see it, know the point
in time when tax is payable. He can then comply
with, or fulfill, his statutory duties. Here there is a
gap or omission.
The defendant made reference to section 50 of
the statute and suggested the time for payment is
fixed by that section. The relevant subsections are
as follows:
50. (1) Every person who is required by or pursuant to Part
III, IV or V to pay taxes shall make each month a true return
of his taxable sales for the last preceding month, containing
such information in such form as the regulations require.
(2) Every person holding a licence granted under or in
respect of Part III, IV or V shall, if no taxable sales have been
made during the last preceding month, make a return as
required by subsection (1) stating that no taxable sales have
been made.
(3) The return required by this section shall be filed and the
tax payable shall be paid not later than the last day of the first
month succeeding that in which the sales were made.
I do not agree.
Subsection 50(3) does not, in my opinion, fix, in
this case, the time when the tax is payable by the
plaintiff. It is merely a provision allowing the
taxpayer to file a return and forward, on a month
ly basis, to the tax gatherer, the taxes collected or
earlier payable.
Counsel stated they had been unable to unearth
any decisions which indicate, for a tax to be valid
and collectable, the time for payment must be
specified. I, too, have been unable to find any
reported cases. In the second edition of Cooley,
Law of Taxation" the following appears at pp.
8-9:
" (2nd ed. 1886) Callaghan and Company, Chicago. This
reference was given to me by a third person.
Maxims of policy. Writers on political economy lay down
certain principles which should govern the imposition of taxes,
but these are guides rather to the legislature than to the courts.
The author of the "Wealth of Nations," in particular, has
enumerated certain maxims, the substance of which may be
stated as follows: 1. That the subjects of every state ought to
contribute to the support of the government as nearly as
possible in proportion to the revenue which they respectively
enjoy under its protection. 2. The tax which each is to pay
ought, as respects the time and manner of payment, and the
sum to be paid, to be certain and not arbitrary. 3. It ought to be
levied at the time and in the manner in which it is most likely to
be convenient to the contributor to pay it; and 4. It ought to be
so contrived as both to take out and to keep out of the pockets
of the people as little as possible over and above what it brings
into the public treasury.
The words of Adam Smith's second maxim
are' 5 :
II. The tax which each individual is bound to pay ought to be
certain, and not arbitrary. The time of payment, the manner of
payment, the quantity to be paid, ought all to be clear and plain
to the contributor, and to every other person. Where it is
otherwise, every person subject to the tax is put more or less in
the power of the tax-gatherer, who can either aggravate the tax
upon any obnoxious contributor, or extort, by the terror of such
aggravation, some present or perquisite to himself. The uncer
tainty of taxation encourages the insolence and favours the
corruption of an order of men who are naturally unpopular,
even where they are neither insolent nor corrupt. The certainty
of what each individual ought to pay is, in taxation, a matter of
so great importance, that a very considerable degree of inequal
ity, it appears, I believe, from the experience of all nations, is
not near so great an evil as a very small degree of uncertainty.
In the fourth edition of Cooley Law of
Taxation 16 the following statement is made in
section 1311:
The time when taxes become due and payable and when they
become delinquent is generally fixed by statute.
No reference is made to the Wealth of Nations. A
number of American cases are cited.
I therefore answer question 1 in favour of the
plaintiff. The formal determination of that ques
tion of law will be as follows:
The Excise Tax Act failed to specify the time at which the
consumption or sales tax was payable on the plaintiff's railroad
ties. There is no liability on the plaintiff for payment of the
15 The Wealth of Nations (1776) Book V, chap. II, Part II,
(Methuen & Co. 1961 ed. vol. 2, pp. 350-351). -
'6 (4th ed. 1924) (Callaghan and Company, Chicago) vol.
III.
consumption or sales tax assessed by the Minister of National
Revenue in the assessments set out in paragraph 3 of the
statement of claim.
I have come to this conclusion with considerable
reluctance. The sales tax on goods used, for his
own purposes, by a manufacturer or producer of
them, has been in effect for approximately fifty-
five years ". I am told the point now taken by the
plaintiff has never before been raised with the
Revenue Department; that manufacturers and pro
ducers, ostensibly chargeable by paragraph
28(1)(d), have been faithfully paying sales or con
sumption tax for many years.
All that cannot deter a court from construing
against what may have become an established tax
practice, if the statutory construction reached is, in
the opinion of the construes, clearly against the
long prevailing assumption or understanding of
many taxpayers and the Revenue Department ' 8 .
I direct counsel for the plaintiff to draw the
pronouncement giving effect to these reasons and
to submit it to counsel for the defendant for com
ment. If agreement cannot be reached, counsel
may speak to the matter.
" See the amendment to The Special War Revenue Act,
1915, passed by S.C. 1923, c. 70, s. 6. Subsection (13) of
section 19 BBB of the amending legislation is now subsection
28(1). The wording has remained unchanged over all those
years.
1S A judge might, in some circumstances, hesitate before
construing a statute in a way which will upset a long standing
practice. See: The S.S. "Glensloy" Co. Ltd. v. Lethem (1911-
1915) 6 T.C. 453, per the Lord President at 462; Lord Macken-
zie, however, said, at p. 465:
I agree with the conclusion reached by your Lordship in
the Chair. In the first place, I should like to say that, as
regards the practice, I am afraid I am not able to attach any
weight to that in this case. If the practice was not warranted
by the provisions of the Statute, we could give no effect to it;
and, for my own part, I cannot proceed upon a rule of
practice which has neither been proved nor admitted in this
case. Therefore, I am compelled to put my judgment solely
upon the construction which I put upon the Act of
Parliament.
Cameron J., in Gilhooly v. M.N.R. [1945] Ex.C.R. 141 at
148-149 appears to have preferred the views of the Lord
President.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.