Regulations

A definition of "hedging" was introduced, first by way of Regulation and, subsequently by amendment to the MIning TAx Act (Ontario) which had the effect of expanding the concept of mine produciton to include profits from relateed cash-settled derivative contracts. Respecting the intra vires of the introduction by Regulation, LeBel stated (at para. 38):

PDC raised several arguments, based on the statutory and constitutional limits on the power of the Lieutenant Governor in Council at the time, about the meaning of “hedging” when it was first introduced in the Regulation. Specifically, PDC argues that no power had been vested in the Lieutenant Governor in Council to make regulations imposing a new tax or expanding the existing tax base, and that any such attempt would have been contrary to s. 53 of the Constitution Act, 1867 , which requires that bills imposing any tax originate in the House of Commons. Both of these arguments depend for their validity on the proposition that the 1975 Regulation created a new tax or expanded the tax base. I am not satisfied that the 1975 Regulation can be so construed — it did not alter the primary definition of “gross receipts” in the Act, but merely clarified the method by which a subsidiary, discretionary amount was to be assessed. This does not, in my view, constitute a change of the radical nature that PDC suggests.

Before going on to interpret Reg. 105 narrowly and find that it was intra vires, Bowie J quoted with approval the statement made by Cartwright J (as he then was) in The Queen v. McKay, [1965] S.C.R. 798 at 803-4:

... if an enactment, whether of Parliament or of a legislature or of a subordinate body to which legislative power is delegated, is capable of receiving a meaning according to which its operation is restricted to matters within the power of the enacting body it shall be interpreted accordingly. An alternative form in which the rule is expressed is that if words in a statute are fairly susceptible of two constructions of which one will result in the statute being intra vires and the other will have the contrary result the former is to be adopted.

Bowie J went on to find (at para. 13) that even if such a narrow construction of the Regulation was not possible, he would have "read down" the Regulation to accord with what was contemplated under the authorizing provision (ITA s. 153(1)(g)), as was done in analogous circumstances in the B.C. Ferry case (2001 FCA 146).