Citation: 2011 TCC 554
Date: 20111219
Docket: 2007-4997(EA)G
BETWEEN:
GRAND RIVER ENTERPRISES SIX NATIONS LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
AMENDED REASONS FOR JUDGMENT
Bowie J.
[1] There are a total of 23 appeals before me,
all from assessments for excise duty, and related interest. The assessments
were made pursuant to section 188 of the Excise Act, 2001 (the Act),
in respect of tobacco products manufactured by the appellant between September
2005 and July 2007. The appeals are brought pursuant to section 198 of the Act.
[2] The appellant manufactures and sells
tobacco products at its manufacturing plant on the Six Nations of the Grand
River Reserve in Ontario. In assessing the duty in question, the
Minister of National Revenue relied on paragraph 42(1)(a) of the Act,
the definition of the word “packaged” (« emballé ») found in section 2 of the Act (insofar
as it pertains to tobacco), and paragraph 2(b) of the Stamping and
Marking of Tobacco Products Regulations
(the Regulations). These read as follows:
|
Excise Act,
2001
42(1) Duty is imposed on tobacco
products manufactured in Canada or imported and on imported raw leaf tobacco
at the rates set out in Schedule 1 and is payable
(a) in the case of tobacco products manufactured
in Canada, by the tobacco licensee who manufactured the
tobacco products, at the time they are packaged; and
(b) in the case of imported tobacco products or
raw leaf tobacco, by the importer, owner or other person who is liable under
the Customs Act to
pay duty levied under section 20 of the Customs
Tariff or who would be liable to pay that duty on the tobacco
or products if they were subject to that duty.
2
The definitions in
this section apply in this Act
…
“packaged” means
(a) in respect of raw leaf tobacco or a tobacco
product, packaged in a prescribed package; …
Stamping and Marking of Tobacco Products
Regulations
2 For the purpose
of paragraph (a) of the definition “packaged” in section 2 of the
Act,
(a) raw
leaf tobacco is packaged in a prescribed package when it is formed into a
hand for sale or when a hand of raw leaf tobacco or broken portions of the
leaf are packaged for sale; and
(b) a tobacco
product is packaged in a prescribed package when it is packaged in the
smallest package — including any outer wrapping that is customarily displayed
to the consumer — in which it is normally offered for sale to the general
public.
|
Loi de 2001 sur l’accise
442(1) Un droit sur les
produits du tabac fabriqués au Canada ou importés et sur le tabac en feuilles
importé est imposé aux taux figurant à l’annexe 1 et est exigible :
a) dans le cas de produits
du tabac fabriqués au Canada, du titulaire de licence de tabac qui les a
fabriqués, au moment de leur emballage;
b) dans le cas de produits du
tabac ou de tabac en feuilles importés, de l’importateur, du propriétaire ou
d’une autre personne qui est tenue, aux termes de la Loi sur les douanes, de payer
les droits perçus en vertu de l’article 20 du Tarif des douanes ou qui serait tenue de payer ces
droits sur les produits ou le tabac s’ils y étaient assujettis.
2
Les définitions
qui suivent s’appliquent à la présente loi.
…
« emballé »
a) Se dit du tabac en
feuilles ou des produits du tabac qui sont présentés dans un emballage
réglementaire; …
Règlement sur l’estampillage et le marquage
des produits du tabac
2 Pour
l’application de l’alinéa a)
de la définition de « emballé »
à l’article 2 de la Loi, est un emballage réglementaire :
a) dans le cas du tabac en
feuilles, toute manoque préparée pour la vente ou tout contenant dans lequel
une manoque ou les parties brisées de la feuille sont empaquetées pour la
vente;
b) dans le cas d’un produit du tabac, le plus petit
emballage dans lequel il est normalement offert en vente au public, y compris
l’enveloppe extérieure habituellement présentée au consommateur.
|
[3] The appellant’s position, simply put, is
that the Act and the Regulations, in the context of its business,
do not impose any excise duty on its product. Because the law of Ontario and the
terms of the permits under which the appellant operates its business provide
that the product may only be sold to Indians on Indian reserves, it cannot be
and is not “offered for sale to the general public” («offert en vente au public»). Therefore, the appellant argues, it is never “packaged” («emballé») within the meaning of that word as it is defined in
paragraph 2(b) of the Regulations. Duty therefore can never
become payable.
[4] The appellant does not invoke section 87 of
the Indian Act
or any aboriginal or treaty right in support of its claim to immunity from the
section 42 tax. Its argument would, presumably, be equally available to any
other manufacturer of tobacco products who could show that its products are
marketed only to a small and discrete group of people - for example senior
citizens living in retirement residences, or soldiers in the Canadian army.
[5] The parties are in agreement that if the
appellant is required by the Act and the Regulations to pay duty
then that duty, and the interest on it, have been correctly computed by the
Minister in the assessments under appeal, and the appeals must be dismissed. If
the appellant does not come within the charging provisions of the Act
and the Regulations then the appeals must be allowed and the assessments
vacated.
[6] The parties have entered into an Agreed
Statement of Facts which, along with copies of a number of documents referred
to in it, became Exhibit A-1. The only other evidence was one unmarked pack and
one unmarked bag of cigarettes that the parties agreed were illustrative of
those described in paragraphs 12 and 13 of the Agreed Statement of Facts. The
operative paragraphs of that Agreed Statement of Facts, numbers 1 to 22, are as
follows:
1.
Grand River Enterprises Six Nations Ltd. (“GRE”)
manufactures and sells tobacco products at its principal place of business
located on the Six Nations of the Grand River Reserve located in the Province of Ontario.
2.
The Reserve is a “reserve” within the meaning of
the Indian Act, R.S.C. 1985, c. I-5 (the “Indian Act”),
3.
GRE was incorporated on April 29, 1996 pursuant
to the Canada Business Corporations Act, R.S.C, 1985, c. C-44.
4.
GRE’s shareholders, directors and officers are
all “Indians” within the meaning of the Indian Act, are members of the Six
Nations, and are aboriginal peoples of Canada within the meaning of the Constitution Act, 1982 being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
5.
GRE has held a federal tobacco licence since May
29, 1997. A copy of the federal tobacco license is attached as Exhibit “A”.
No material restrictions or conditions specific to GRE were attached to the
federal tobacco licence it held during the Period.
6.
On November 3, 1997, GRE submitted an
application to the Ontario Ministry of Finance for provincial permit to sell
tobacco products on reserve and off reserve. A copy of the application is
attached as Exhibit “B”.
7.
In 1998, GRE was issued a Registration
Certificate[4],
and a Wholesale Dealer’s Permit.[5]
The 1998 Registration Certificate was expressly made subject to an October 6,
1998 agreement (the “Agreement”`), entered into between the GRE and the Ontario
Minister of Finance pursuant to which GRE was restricted to only selling its
Tobacco Products on the Reserve to First Nation retailers located on reserves.
The Registration Certificate, the Wholesale Dealer’s Permit and the Agreements
are attached as Exhibit “C”, “D” and E” respectively.
8.
During the period from September 2005 to July
2007 (the “Period”), GRE held an Ontario manufacturer’s registration certificate an Ontario wholesale
dealer’s permit and an Ontario
unmarked cigarette dealer’s permit[6]
(the “Provincial Authorizations”). The Ontario unmarked cigarette dealers’ permits for the period are attached as
Exhibit “F”.
9.
There is an ongoing dispute between the
Government of Ontario and GRE in connection with the Agreement. GRE takes the
position that the Minister breached the terms of the Agreement when it denied
GRE permission to sell tobacco products off reserve. GRE has outstanding constitutional
challenges respecting the validity of the allocation system, which GRE
challenges, inter alia, on the basis that it is ultra vires the
Province of Ontario as it impairs the status, capacities and rights of Indians
on reserves in Ontario, which is a matter exclusively within the jurisdiction
of the federal government pursuant to section 91(24) of the Constitution Act.
10.
GRE also takes the position that as it did not
receive a provincial permit to sell tobacco products off reserve it is not
bound by the terms of the Agreement relating to the allocation system. During
the period GRE sold cigarettes only to First Nation retailers on reserve, but
without reference to the allocation system. These sales were made subject to
GRE’s capacity to supply the demands of the First Nation retailers.
11.
GRE’s registrations and permits issued pursuant
to the Tobacco Tax Act remain in effect, and GRE has never been charged
with breaching the Tobacco Tax Act or its regulations.
12.
During the Period, the tobacco products that are
the subject of this appeal (the “Tobacco Products”) were manufactured by GRE on
the Reserve and sold by GRE at the Reserve to First Nation retailers located on
reserves located within the Province of Ontario and
were:
1) packs and bags of cigarettes that were not
marked or stamped with an indicium under the Ontario Tobacco Tax Act,
R.S.O. 1990, Chapter T.10 (the “Unmarked Cigarettes”);
and
2) unmarked bags of fine cut tobacco.
13.
The Unmarked Cigarettes had a federal peach
coloured tear tape (stamp) around the sealed package[7] and
the fine cut tobacco had a peach coloured stamp on the sealed bag both showing
that the excise duty was paid. Scanned copies of these packs and bag are
attached as Exhibits “G” and “H”. GRE will bring to trial the actual packages.
14.
GRE does not monitor retail sales by the First
Nation retailers and as such does not know to whom retailers sell Tobacco
Products.
15.
During the period, the smallest packages in
which the Unmarked Cigarettes were normally offered for sale to consumers were:
1) a sealed bag containing 200 cigarettes; and
2)
a sealed pack containing 20 or 25 cigarettes.
16.
Additional packaging steps were taken forthwith
by GRE in respect of the Unmarked Cigarettes:
1) putting 8 sealed packs of 25 cigarettes
each or 10 sealed packs of 20 cigarettes each in a package called “carton”
which was foil wrapped;
2)
putting 50 cartons in a case which was sealed
up;
3)
putting 32 cases of “King Size 25” cigarettes,
36 cases of regular size cigarettes, or 40 cases of “King Size 20” cigarettes
on a skid which were wrapped together in cellophane; and
4)
storing the skid in GRE’s warehouse.
17. During the period, the smallest package
in which the fine cut tobacco was normally offered for sale by First Nations
retailers was a sealed bag of 200 grams.
18. Additional packaging steps were taken
forthwith by GRE in respect of the fine cut tobacco:
1) putting 30 sealed bags in a case which
was sealed up;
2) putting 48 cases on a skid which were
wrapped together in cellophane; and
3) storing the skid in GRE’s warehouse.
19. GRE appeals from 23 assessments of excise duty plus
interest (the “Assessments”) made under the Excise Act, 2001,
S.C. 2002, c. 22, (the “Act”) relating to each monthly period from and
including September 2005 to and including July 2007 (the “Period”).
20. Up to and including August 2005, GRE remitted excise duty
on its manufactured tobacco products.
21. During the Period, GRE remitted partial excise duty for
each of the monthly periods.
22. In each of the Notices of Decision denying the objections,
the Ministry of National Revenue (the “Ministry”) made the following statement:
“Your
objection is disallowed and your assessment is confirmed on the basis that
pursuant to sections 42 and 43 of the [Excise] Act. [2001] Grand River
Enterprises Six Nations Ltd. (GRE), as a tobacco licensee who manufactures
tobacco products in Canada, is required to pay a duties [sic] at the
rates set out in Schedule 1. The fact that GRE is an on-reserve manufacturer
provides no relief in respect of federal duties.
[7] In advancing the argument that the charging
section of the Act does not reach the appellant, counsel relied on the
proposition that the phrase “the general public” is not capable of denoting a
relatively small and discrete group of people such as native people on
reserves. Since native people on reserves are the only people to whom the
appellant’s products may be sold, those products can never be offered for sale
to the general public. This proposition was supported by reference to about a
dozen or more cases dealing with the words “public” or “general public” in
quite unrelated contexts. A great many of these are cases, primarily in the
context of prosecution under provincial highway traffic laws, where the issue
before the courts was whether a roadway on an Indian reserve was open to the
public, and therefore was a highway for purposes of the provincial legislation.
[8] Typical of this line of cases is the
decision of the Saskatchewan Court of Appeal in R. v. Bigeagle. Chief Justice
Culliton, writing for the Court, concluded that a road constructed on an Indian
reserve for the use and benefit of the Indians living on the reserve did not
come within the definition of a “road” in the Vehicles Act because it
was not “… open to the public for the passage of vehicles.” Numerous other
cases decided by courts at various levels reach a similar conclusion in a
similar context.
[9] Two other cases relied on by the appellant
require special mention. Canadian
Wireless Telecommunications Assn. v. Society of Composers, Authors and Music
Publishers of Canada concerned whether certain transmissions of ringtones
by a cellular wireless carrier to various of its customers was a transmission
“to the public”. In the course of giving the unanimous reasons of the Court,
Sharlow J.A. said this at paragraph 32:
The group consisting of all of
the customers of a wireless carrier is a group that is sufficiently large and
diverse that it may fairly be characterized as “the public.”
From this the appellant argues that Indians on a
reserve, not being a group that is large and diverse, can never be “the public”
or, a fortiori, “the general public”.
[10] In Johnson v. Nova Scotia (Attorney General) the Nova Scotia Court of Appeal considered
the entitlement of the appellant retailers to a rebate of tobacco tax paid. In
the course of giving the unanimous judgment of the Court, Flinn J.A. contrasted
sales to Indians on a reserve with sales to the general public at
paragraph 46:
While status
Indians may purchase tobacco products, on a Reserve, for their own consumption
and use, without being required to pay health services tax, the appellants did
not purchase the tobacco products in question for their own consumption and
use. The tobacco products were purchased for resale, and were sold to the
general public.
[11] On the basis of these authorities the
appellant argues that the words “… offered for sale to the general public” have
a plain meaning that is not ambiguous, and therefore are not susceptible of interpretation.
They must be given their plain meaning, which does not include being offered
for sale only to Indians on a reserve. Therefore the time for payment of the
duty imposed by section 42 of the Act can, in the appellant’s view of
it, never arrive.
[12] This “words and phrases” approach to the
statutory language simply disregards the evolution of the principles of
statutory interpretation that is to be found in three decades of Supreme Court
of Canada jurisprudence beginning with the adoption by Estey J. in Stubart
Investments Ltd. v. The Queen
of Professor Driedger’s modern approach to statutory interpretation.
Specifically, it ignores both context and purpose. The appellant seeks to
justify this purely textual approach on the basis that the words in question
are incapable of bearing any meaning other than that of a large and diverse
population. In particular they are said to be incapable of applying to a group
consisting only of Indians on a reserve – the market for the appellant’s
products.
[13] In University of British Columbia v. Berg,
Lamer C.J.C., writing for the majority, discussed at length the meaning to
be applied to the word “public” as it appears in the Canadian Human Rights
Act
and the analogous statutes of most of the provinces and territories. He rejected the notion that for a service
to be available to the public it must be available to every member of the
public, preferring a relational approach that defines the public in terms of
those members for whom the service is intended. He concluded that:
[u]nder the
relational approach, the “public” may turn out to contain a very large or very
small number of people.
[14] In Placer Dome Canada Ltd. v. Ontario (Minister of Finance), LeBel J., writing for a unanimous Court,
explained the evolution of statutory interpretation since Stubart at
paragraphs 21 to 24.
B. Interpretation of Tax Statutes
(1) General Principles
21 In
Stubart Investments Ltd. v. The Queen, 1984 CanLII 20 (SCC), [1984] 1 S.C.R. 536,
this Court rejected the strict approach to the construction of taxation
statutes and held that the modern approach applies to taxation statutes no less
than it does to other statutes. That is, “the words of an Act are
to be read in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament” (p. 578): see 65302 British Columbia Ltd. v. Canada,
1999 CanLII 639 (SCC), [1999] 3 S.C.R. 804,
at para. 50. However, because of the degree of precision and detail
characteristic of many tax provisions, a greater emphasis has often been placed
on textual interpretation where taxation statutes are concerned: Canada
Trustco Mortgage Co. v. Canada, 2005 SCC 54 (CanLII), [2005] 2 S.C.R. 601,
2005 SCC 54, at para. 11. Taxpayers are entitled to rely on the clear
meaning of taxation provisions in structuring their affairs. Where the
words of a statute are precise and unequivocal, those words will play a
dominant role in the interpretive process.
22 On
the other hand, where the words of a statute give rise to more than one
reasonable interpretation, the ordinary meaning of words will play a lesser
role, and greater recourse to the context and purpose of the Act may be
necessary: Canada Trustco, at para. 10. Moreover, as McLachlin
C.J. noted at para. 47, “[e]ven where the meaning of particular provisions may
not appear to be ambiguous at first glance, statutory context and purpose may
reveal or resolve latent ambiguities.” The Chief Justice went on to explain
that in order to resolve explicit and latent ambiguities in taxation
legislation, “the courts must undertake a unified textual, contextual and
purposive approach to statutory interpretation”.
23 The
interpretive approach is thus informed by the level of precision and clarity
with which a taxing provision is drafted. Where such a provision admits
of no ambiguity in its meaning or in its application to the facts, it must
simply be applied. Reference to the purpose of the provision “cannot be
used to create an unexpressed exception to clear language”: see P. W. Hogg, J.
E. Magee and J. Li, Principles of Canadian Income Tax Law (5th ed.
2005), at p. 569; Shell Canada Ltd. v. Canada, 1999 CanLII 647 (SCC), [1999] 3 S.C.R.
622. Where, as in this case, the provision admits of more than one
reasonable interpretation, greater emphasis must be placed on the context,
scheme and purpose of the Act. Thus, legislative purpose may not
be used to supplant clear statutory language, but to arrive at the most
plausible interpretation of an ambiguous statutory provision.
24 Although
there is a residual presumption in favour of the taxpayer, it is residual only
and applies in the exceptional case where application of the ordinary
principles of interpretation does not resolve the issue: Notre-Dame de
Bon-Secours, at p. 19. Any doubt about the meaning of a taxation
statute must be reasonable, and no recourse to the presumption lies unless the
usual rules of interpretation have been applied, to no avail, in an attempt to
discern the meaning of the provision at issue. In my view, the residual
presumption does not assist PDC in the present case because the ambiguity in
the Mining Tax Act can be resolved through the application of the
ordinary principles of statutory interpretation. I will say more on this
below.
[15] The
appellant relies on the majority judgment of the Supreme Court of Canada in
R. v. McIntosh
for the proposition that courts have no licence to interpret legislation,
however harsh or absurd a result it may lead to, until it is first shown that
the words in question are capable, in the context in which they are used, of
having more than one meaning. That principle may be found repeated in the
unanimous judgment of the Court in Bell ExpressVu Limited Partnership v. Rex. Iacobucci J.
referred to the adoption by the Court in Stubart
of Professor Driedger’s modern approach to the interpretation of statutes, and
went on to say at paragraphs 27 to 30:
27 The preferred approach recognizes the
important role that context must inevitably play when a court construes the
written words of a statute: as Professor John Willis incisively noted in
his seminal article “Statute Interpretation in a Nutshell” (1938), 16 Can.
Bar Rev. 1, at p. 6, “words, like people, take their colour from their
surroundings”. This being the case, where the provision under
consideration is found in an Act that is itself a component of a larger
statutory scheme, the surroundings that colour the words and the scheme of the
Act are more expansive. In such an instance, the application of
Driedger’s principle gives rise to what was described in R. v. Ulybel
Enterprises Ltd., 2001
SCC 56 (CanLII), [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as “the
principle of interpretation that presumes a harmony, coherence, and consistency
between statutes dealing with the same subject matter”. (See also Stoddard
v. Watson, 1993
CanLII 59 (SCC), [1993] 2 S.C.R. 1069, at p. 1079; Pointe-Claire (City)
v. Quebec (Labour Court), 1997
CanLII 390 (SCC), [1997] 1 S.C.R. 1015, at para. 61, per Lamer C.J.)
28 Other
principles of interpretation — such as the strict construction of penal
statutes and the “Charter values” presumption — only receive application
where there is ambiguity as to the meaning of a provision. (On strict
construction, see: Marcotte v. Deputy Attorney General for Canada, 1974
CanLII 1 (SCC), [1976] 1 S.C.R. 108, at p. 115, per Dickson J. (as
he then was); R. v. Goulis (1981), 33 O.R. (2d) 55 (C.A.), at pp. 59-60;
R. v. Hasselwander, 1993
CanLII 90 (SCC), [1993] 2 S.C.R. 398, at p. 413; R. v. Russell, 2001
SCC 53 (CanLII), [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 46. I
shall discuss the “Charter values” principle later in these reasons.)
29 What, then, in law is an
ambiguity? To answer, an ambiguity must be “real” (Marcotte,
supra, at p. 115). The words of the provision must be “reasonably
capable of more than one meaning” (Westminster Bank Ltd. v. Zang, [1966]
A.C. 182 (H.L.), at p. 222, per Lord Reid). By necessity, however,
one must consider the “entire context” of a provision before one can determine
if it is reasonably capable of multiple interpretations. In this regard,
Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney
General), 1999
CanLII 680 (SCC), [1999] 1 S.C.R. 743, at para. 14, is apposite: “It
is only when genuine ambiguity arises between two or more plausible readings, each
equally in accordance with the intentions of the statute, that the courts
need to resort to external interpretive aids” (emphasis added), to which I
would add, “including other principles of interpretation”.
30 For this reason, ambiguity cannot
reside in the mere fact that several courts -- or, for that matter, several
doctrinal writers -- have come to differing conclusions on the interpretation
of a given provision. Just as it would be improper for one to engage in a
preliminary tallying of the number of decisions supporting competing
interpretations and then apply that which receives the “higher score”, it is
not appropriate to take as one’s starting point the premise that differing
interpretations reveal an ambiguity. It is necessary, in every case, for
the court charged with interpreting a provision to undertake the contextual and
purposive approach set out by Driedger, and thereafter to determine if
“the words are ambiguous enough to induce two people to spend good money in
backing two opposing views as to their meaning” (Willis, supra, at pp.
4-5).
[16] The judgments of the Federal Court of Appeal in Wireless
Telecommunications Assn. and of the Supreme
Court in Berg demonstrate that the word “public” is capable of conveying
very different meanings, depending upon the context in which it appears. The
same may be said of the expression “general public”. It therefore becomes
necessary to consider the expression in the light of the purpose of the
regulation and the whole statutory context in which the expression appears.
[17] The purpose of the Act is to raise revenue through the
imposition of duties on wine, spirits and tobacco products. The majority of its
provisions are oriented towards regulating the importation and manufacture of
these, and the handling and distribution of them, with a view to ensuring that
the duties are assessed and collected. Section 42, as we have seen, imposes the
duty on tobacco; it is made payable when the products are packaged, with the
definition of when the product is packaged left to be determined by the
Governor in Council. The purpose of the definition of the word “packaged” in
section 2 of the Regulations is simply to define the point in time at
which the duty, which has been imposed by subsection 42(1) of the Act, becomes
payable. It would be beyond the purpose of section 2, and beyond the regulation
making authority of the Governor in Council, to confer exemptions from the duty
that subsection 42(1) imposes.
[18] The authority of the Governor in Council to make regulations is
found in section 304 of the Act. Nothing there, or elsewhere in the Act,
suggests that Parliament intended that the governor in Council should have the
power to exempt any manufacturer from the duty imposed by the Act. Certainly
section 42 does not suggest that. It is unequivocal in imposing the duty at the
time of packaging; it leaves to the Governor in Council only the determination
of the point in time at which the product is to be considered packaged.
Significantly, sections 45, 46, 47 and 48 specifically provide relief from the
duty imposed by section 42 in carefully defined circumstances. It is
inconceivable that Parliament intended to empower the Governor in Council to
confer an exemption from duty by the exercise of the power to define the time
at which duty would be payable. It is equally inconceivable that the Governor
in Council by the use of the phrase “the general public” intended to confer any
such exemption.
[19] Considered only textually, the expression “the general public”
might be taken to mean everyone in North America, or everyone in Canada, or simply a large and diverse group of persons. It
was known to Parliament and to the Governor in Council at the time the Act
and the Regulations were enacted that tobacco products could not legally
be offered for sale to everyone in Canada. For example,
section 8 of the Tobacco Act
prohibits their sale to persons under the age of 18, which excludes a large
segment of what might, in another context, be considered the general public.
When the Act and the Regulations are considered as a whole, and
paragraph 2(b) of the Regulations is considered in light of its
purpose, it is evident that the expression “offered for sale to the general
public” is intended simply to mean “offered for sale to those members of the
general public to whom they may legally be offered”, or to put it another way,
‘offered for sale at the retail level”, or, as the parties expressed it in
paragraph 15 of their Agreed Statement of Facts, “… offered for sale to
consumers …”.
[20] It follows from this conclusion that duty became
payable on the appellant’s products when they were packaged in bags of 200 or
packs of 20 or 25 cigarettes, as described in paragraph 15 of the Agreed Statement
of Facts. The appeals must therefore be dismissed. The respondent is entitled
to costs, including the costs of the motion before Mr. Justice Archambault
which he reserved to be dealt with by the trial judge.
Signed at Ottawa, Canada, this 19th of December, 2011.
“E.A. Bowie”
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