Citation: 2008TCC36
Date: 20080117
Docket: 2007-1055(IT)G
BETWEEN:
WEYERHAEUSER COMPANY LIMITED,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
and
HER MAJESTY THE QUEEN IN RIGHT OF
THE PROVINCE OF BRITISH COLUMBIA
Intervenor.
REASONS FOR ORDER AND ORDER
Beaubier, D.J.
[1] This is a motion by
the Province of British Columbia to intervene in this
appeal. The motion is made under Rule 28 of this Court’s Rules of
General Procedure, which reads:
28. (1) Where it is claimed
by a person who is not a party to a proceeding
(a) that such person has an
interest in the subject matter of the proceeding,
(b) that such person may be
adversely affected by a judgment in the proceeding, or
(c) that there exists between such
person and any one or more parties to the proceeding a question of law or fact
or mixed law and fact in common with one or more of the questions in issue in
the proceeding,
such person may move for leave to
intervene.
(2) On the motion, the Court shall
consider whether the intervention will unduly delay or prejudice the determination
of the rights of the parties to the proceeding, and the Court may,
(a) allow the person to intervene
as a friend of the Court and without being a party to the proceeding, for the
purpose of rendering assistance to the Court by way of evidence or argument,
and
(b) give such direction for
pleadings, discovery or costs as is just.
The Appellant consents to the
intervention. The Respondent objects.
[2] This appeal and the
Notice of Intervention arise from the wording of three statutes:
1. Subsection 127(1) of
Canada’s Income Tax Act provides a credit against tax otherwise payable
for the lesser of (a) 2/3 of any logging tax paid to a province in respect of
income for the year from “logging operations” in the province, and (b) 6 2/3 of
the taxpayer’s income therefrom. Regulation 700(i)(d) excludes from
income from those logging operations “income from sources other than logging
operations.”
2. Section 15 of British Columbia’s Income Tax Act
provides a credit of “1/3 of the logging tax payable and paid to the
government.”
3. British Columbia’s Logging
Tax Act levies a tax of the lesser of (a) 10% of the taxpayer’s “income
derived from logging operations in British Columbia”, or (b) 150% of the tax
credit that would have been allowed under subsection 127(1) of the Income
Tax Act if the tax described in (a) had been paid.
[3] Thus, British
Columbia’s Logging Tax Act and Income Tax Act refer to income “derived”
from logging operations, while Canada’s Income Tax Act refers to income from logging
operations.
[4] The actual appeal
arises from a federal logging tax credit for 1999 which did not include a
credit for taxes from taxable capital gains of the Appellant from the sale of
two saw mills in British Columbia and some houses in Ontario which it acquired
as part of the purchase of a pulp and paper complex in 1998.
[5] British Columbia’s Logging Tax Act
has its own appeal system to the British Columbia Supreme Court. It is
calculated in part with reference to Canada’s Income Tax Act which gives British Columbia a direct interest in this
proceeding.
[6] This Court agrees
that British Columbia has an interest in this appeal so as to minimize any possible
double taxation on the Appellant, the result of which might affect its
operations and income in British Columbia, and thereby adversely affect British Columbia both
respecting tax and the effect on business operations of the Appellant and
others in British
Columbia.
Moreover, the question in issue is common to British Columbia and the Appellant both
as to fact and law. To allow the intervention would prove more efficient and
would better put forward the position of British Columbia, which is integral to
the matter in appeal. As a consequence, the interests of justice would be
better served by the intervention of British Columbia. It is clear from British Columbia’s written argument that
its intervention may render assistance to the Court, particularly by way of
argument. Finally, this motion was heard on January 15, 2008 at the
same time as a Status Hearing which was ordered by this Court because the Court
record did not show that the proceedings were moving forward with sufficient
speed. Therefore, it does not lie with either party to object to any undue
delay.
[7] Therefore, as to
the proposed intervention and as to the Status Hearing, it is ordered:
1. The Queen in the Right of
British Columbia is granted the status of Intervenor in this appeal for the
purposes of argument.
2. Counsel for the Intervenor
shall have delivered to him by counsel for the Appellant copies of all
pleadings, statements of documents, examinations for discovery, undertakings
and any other documents or Orders of this Court. Counsel for the Intervenor
shall be entitled to attend all proceedings of this appeal henceforth, but shall
not be entitled to intervene or engage in the proceeding to submit evidence
itself or to examine witnesses in the hearing. Counsel for the Intervenor shall
be entitled to participate in the argument and to present argument to the Court
at the conclusion of the hearing and in the event that a Pre-Hearing Conference
might occur.
3. As a result, the
Intervenor shall be added to the style of cause of the proceeding and shall henceforth
be served with copies of all documents filed in this matter. The address of the
Intervenor for these purposes is:
David R. Poore
Ministry of the Attorney
General of British
Columbia
P.O. Box 9289, STN PROV GOVT
6th Floor – 1175 Douglas Street
Victoria, BC V8W 9J7
Telephone: (250)
356-0020
Facsimile: (250)
387-0700
4. With respect to the Status
Hearing itself, it is further ordered that:
The Appellant shall file
an Amended Notice of Appeal on or before February 7, 2008, an Amended Reply to
which shall be filed on or before February 28, 2008.
The parties are directed to prepare a list of
documents pursuant to the Tax Court of Canada Rules (General Procedure)
and to file and serve the list on the opposing party no later than March 15,
2008.
The examinations for discovery shall be completed by
April 15, 2008.
Undertakings
given at the examinations for discovery shall be satisfied by May 15, 2008.
The parties shall communicate with the Hearings
Coordinator in writing on or before June 15, 2008 to advise the Court whether
the case will settle, whether a pre-hearing conference would be beneficial or
whether a hearing date should be set. In the latter event, the parties may
file a joint application to fix a time and place for the hearing in accordance
with section 123 of the Tax Court of Canada Rules (General Procedure).
[8] There is no order as to costs.
Signed
at Vancouver, British
Columbia this 17th day of January,
2008.
“D.W. Beaubier”
Beaubier, D.J.
CITATION: 2008TCC36
COURT FILE NO.: 2007-1055(IT)G
STYLE OF CAUSE: Weyerhaeuser Company Limited v. The Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 15, 2008
REASONS FOR ORDER
BY: The Honourable Justice D.W. Beaubier
DATE OF ORDER: January 17, 2008
APPEARANCES:
|
Counsel for the
Appellant:
|
Wendy A. King
|
|
Counsel for the
Respondent:
|
David Jacyk
|
|
Counsel for the
Intervenor:
|
David R. Poore
|
COUNSEL OF RECORD:
For the Appellant: Wendy A. King
Name: Wendy A. King
Firm: Weyerhaeuser Company Limited
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa, Canada
For the Intervenor: David
R. Poore
The Attorney General of British Columbia
Email this Content