Dockets: A-325-15
A-326-15
Citation:
2016 FCA 223
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CORAM:
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NADON J.A.
DAWSON J.A.
WEBB J.A.
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Docket:
A-325-15
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BETWEEN:
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CHIEF JOHN
ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART LITTLECHILD, MAURICE WOLFE,
CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL ERMINESKIN, RICK WOLFE, KEN CUTARM,
BRIAN LEE, LESTER FRAYNN, THE ELECTED CHIEF AND COUNCILORS OF THE ERMINESKIN
INDIAN BAND AND NATION SUING ON BEHALF OF ALL THE OTHER MEMBERS OF THE
ERMINESKIN INDIAN BAND AND NATION
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Appellants
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN
DEVELOPMENT, AND THE MINISTER OF FINANCE
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Respondents
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and
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ATTORNEY
GENERAL OF ALBERTA
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Intervener
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Docket:
A-326-15
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AND BETWEEN:
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CHIEF VICTOR
BUFFALO ACTING ON HIS OWN BEHALF AND ON BEHALF OF ALL THE OTHER MEMBERS OF
THE SAMSON INDIAN NATION AND BAND, AND THE SAMSON INDIAN BAND AND NATION
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Appellants
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN
DEVELOPMENT, AND THE MINISTER OF FINANCE
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Respondents
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and
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ATTORNEY
GENERAL OF ALBERTA
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Intervener
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
Ermineskin Cree Nation and Samson Cree Nation
are Indian Bands within the meaning of the Indian Act, R.S.C. 1985, c.
I-5. Each adhered to Treaty No. 6, a Treaty made between the Crown and the Cree
of central Alberta. In 1896, the Pigeon Lake Indian Reserve No. 138A was set
aside for the use of the Indians of the Hobbema Agency, including Ermineskin
and Samson (together, the appellants).
[2]
In 1946, the appellants surrendered their
mineral interests in the Pigeon Lake Reserve to the Crown. This surrender
permitted the Crown to grant leases to oil and gas companies which allowed these
companies to explore and to extract oil and gas from the Reserve lands and to
sell the oil and gas commercially. In exchange for such leases, a royalty
interest was paid by the companies to the Crown in trust for the appellants.
[3]
In 1989, Samson initiated a complex action
against Canada in the Federal Court asserting a number of claims arising out of
their ongoing relationship. Ermineskin commenced a similar action in 1992.
[4]
Due to the complexity of the litigation, the
parties agreed that the trial would proceed in phased stages. In 2002, the
Federal Court issued an order setting out the planned staging of four phases of
the litigation that would proceed after the first two phases were heard. Only
one of these phases is directly relevant to this appeal: the phase which the
plaintiffs referred to as the “Tax Claim” and which the defendants referred to
as the “Regulated Price Regime”. Like the Federal Court, in these reasons I
refer to this issue as the “Regulated Price Regime” issue.
[5]
Briefly stated, this issue relates to a national
strategy developed to deal with the effects of rapidly rising international oil
prices in late 1973 and early 1974 resulting from an oil embargo implemented by
members of the Organization of Arab Petroleum Exporting Countries. The national
strategy included a decision by the federal government to implement a price
freeze on oil sold domestically and to implement a tax, later a charge, upon
export sales of oil.
[6]
While initially the price freeze on oil sold
domestically was one voluntarily agreed to by the oil companies, ultimately the
ability of the government to regulate the price of oil sold domestically was
legislated in the Petroleum Administration Act, S.C. 1974-75-76, c. 47.
[7]
The tax and later the charge were imposed,
respectively, pursuant to the Oil Export Tax Act, S.C. 1973-74, c. 53
and the Petroleum Administration Act. The tax or charge equaled the
difference between Canada’s domestic price and the export price of oil. Monies
received by Canada on account of the tax or charge were used to subsidize
consumers in Eastern Canada who would otherwise have had to pay the full world
price on imported oil. Like the Federal Court, in these reasons I will refer to
the oil price program constituted by the Oil Export Tax Act and the Petroleum
Administration Act as the “Program”.
[8]
The Regulated Price Regime issue never proceeded
to trial. Ultimately, Canada moved for summary judgment dismissing the
plaintiffs’ claims related to the Regulated Price Regime issue.
[9]
For thorough and thoughtful reasons contained in
270 paragraphs cited as 2015 FC 836, a judge of the Federal Court dismissed
these claims on the ground they were barred by application of the relevant
statute of limitations.
[10]
These are appeals from the judgment of the
Federal Court. By order dated October 15, 2015 the appeals were consolidated,
with Court file A-325-15 being the lead file. In accordance with the
consolidation order, a copy of these reasons shall be filed in Court file
A-326-15.
The Issues
[11]
On these appeals, the appellants re-assert a
number of issues argued, and lost, in the Federal Court.
[12]
Ermineskin raises three arguments. First, it
argues that the Federal Court erred in determining that the issues before it
were suitable for determination by way of summary judgment. It argues that
Canada’s motion raised a novel question of law or mixed fact and law concerning
the constitutional applicability of limitations statutes to its claims because
its claims are based on an asserted breach of treaty rights.
[13]
Next, Ermineskin argues that the Federal Court
erred in determining that section 39 of the Federal Courts Act, R.S.C.,
1985, c. F-7 and paragraph 4(1)(e) of the Alberta Limitation of
Actions Act, R.S.A. 1980, c. L-15, are constitutionally applicable and
operable with respect to its claims. Subsection 39(1) of the Federal Courts
Act provides that, in the absence of an express provision in any other Act,
the laws relating to the limitations of actions in force in a province between
subject and subject apply to proceedings in the Federal Court in respect of any
cause of action arising in that province. Paragraph 4(1)(e) of the
Alberta Limitation of Actions Act prescribes a limitation period of six
years from the discovery of the cause of action in respect of actions “grounded on accident, mistake or other equitable ground of
relief not hereinbefore specifically dealt with”.
[14]
Finally, Ermineskin argues that the Federal
Court erred by finding that Canada was not acting as an express trustee of
Ermineskin’s oil and gas revenues for the purposes of the Alberta Limitation
of Actions Act, and by failing to apply sections 40 and 41 of the Alberta
Limitation of Actions Act and section 14 of the Alberta Judicature Act,
R.S.A. 1980, c. J-1.
[15]
Samson also advances these arguments. To them,
it adds three additional issues. First, Samson argues that the Federal Court
erred by summarily dismissing a portion of its claim when there is a risk that
a finding with respect to limitation periods made with respect to the Regulated
Price Regime issue will impact upon later phases of the trial.
[16]
Next, Samson argues that the Federal Court
misapprehended the nature of the claims at issue in the summary judgment
motion, and wrongly “included the regulated pricing
issue with the application of the oil export tax” (Samson’s memorandum of
fact and law, at paragraph 9).
[17]
Finally, Samson argues that if the Alberta
Limitation of Actions Act is constitutionally applicable to its claims, and
if sections 40 and 41 of that legislation are not applicable, the Federal Court
erred by finding there was no genuine issue with respect to whether the entirety
of Samson’s claims related to the Regulated Price Regime issue were statute barred
by operation of paragraph 4(1)(e) of the Alberta Limitation of
Actions Act. Samson asserts its claim is not barred for the six years
preceding the filing of its statement of claim.
Standard of Review
[18]
Samson and Canada submit that the appellate
standard of review to be applied is that set out in Housen v. Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R. 235. Samson states that this requires it to
demonstrate that the Federal Court committed a palpable and overriding error
when it concluded that there was no genuine issue for trial with respect to the
applicability of a statutory limitation period to its claims (Samson’s memorandum
of fact and law, at paragraph 16).
[19]
Ermineskin makes no submissions about the
standard of review.
[20]
I agree that Housen applies so that in
the absence of an error of law the judgment of the Federal Court may only be
set aside if a palpable and overriding error is demonstrated (Manitoba v.
Canada, 2015 FCA 57, 470 N.R. 187, at paragraph 7).
Application of the Standard of Review
[21]
I begin by observing that at paragraphs 90
through 99 of its reasons, the Federal Court articulated the legal principles
that are to guide a court when adjudicating a motion for summary judgment. The
appellants do not argue that the Federal Court erred in its articulation of
these principles. As well, throughout its reasons the Federal Court made
numerous findings of fact. The appellants do not argue that any finding of fact
is vitiated by a palpable and overriding error.
[22]
I now turn to the specific errors asserted by
the appellants. It is convenient to deal with the three common issues and the
first separate issue advanced by Samson together. These issues require this
Court to consider whether the Federal Court erred by determining that:
i.
the Crown’s motion raised issues which were
suitable for summary judgment;
ii.
section 39 of the Federal Courts Act and
paragraph 4(1)(e) of the Alberta Limitation of Actions Act were
constitutionally applicable and operable with respect to the claims in issue;
iii.
the claims are not for property held on an
express trust; and,
iv.
there is no linkage between these claims and the
other remaining claims advanced by the appellants.
[23]
As mentioned above, on this appeal the
appellants reargue a number of points which were rejected by the Federal Court.
This is the case with respect to the above four issues.
[24]
In my view, the appellants have not demonstrated
any error of law or any palpable and overriding error of fact or mixed fact and
law in the Federal Court’s reasons. I reach this conclusion substantially for
the reasons given by the Federal Court. Thus, I would dismiss the appeal as it
relates to the above issues.
[25]
This leaves for consideration the remaining two
issues advanced by Samson.
[26]
I turn first to consider whether the Federal
Court erred by including the “regulated pricing issue
with the application of the oil export tax”.
[27]
Samson argues that it must be determined which
of its specific claims were severed from the main oil and gas issues by the
2002 order of the Federal Court. It argues that the Regulated Price Regime
issue is “the oil export tax and the resulting de
facto (‘made in Canada’) price regime on oil exported to the United States”
(footnotes omitted) (Samson’s memorandum of fact and law, at paragraph 24).
[28]
The corollary of this is said to be that the
Restricted Price Regime phase of the trial does not
include Canada’s obligations relating to the monthly calculation,
collection and crediting of royalties in respect of Samson’s oil sold domestically
within Canada (Samson’s memorandum of fact and law, at paragraph 26).
[29]
As explained above, there were two components to
the national strategy developed to deal with the effects of rapidly rising
international oil prices beginning in late 1973: a freeze on the cost of oil
sold domestically and a tax, later a charge, on export sales of oil. The
consequence of the price freeze on domestic sales of oil and gas was that the
appellants received lower royalty payments on oil sold domestically than they
would have if prices had been allowed to rise to international levels. It
follows that the consequence of Samson’s argument is to bifurcate the impact of
the Program. The impact of the Program on export sales would be decided in the
current phase of the trial; the impact of the Program on domestic sales would
be decided in the general oil and gas phase.
[30]
I reject the notion that the Restricted Price
Regime issue does not include Canada’s obligations related to Samson’s
royalties earned on account of oil sold domestically within Canada. I reject
this notion for the following reasons.
[31]
First, in its pleadings, Samson draws no
distinction between royalties owed to it in respect of oil sold domestically
and that sold internationally. In its Amended Statement of Claim (No. 4),
Samson frames the issues as follows:
36. Defendant Her Majesty has breached
Her trust or fiduciary, treaty or equitable and other obligations and duties to
Plaintiffs referred to in paragraph 18 hereof, or alternatively Defendant Her
Majesty was negligent, in respect to the administration, management and
supervision of the natural resources of the said reserves and of the foregoing
oil and gas leases, particularly:
…
k) in failing to give full and
proper effect to the tax exemptions of Plaintiffs and in failing to give
full and proper effect to the status of Plaintiffs and their interests with
respect to taxes, levies and other impositions purportedly imposed on or with
respect to oil and gas, revenues and royalties derived from the reserves;
…
w) in failing to adopt particular
legislative, regulatory or other measures for the benefit of Plaintiffs and in
their best interests, to properly protect and preserve the rights interests and
property of Plaintiffs, to maximize the economic returns to Plaintiffs and to
deal with the reserves and natural resources in the way most beneficial to
Plaintiffs.
(emphasis added)
[32]
Second, the 2002 order of the Federal Court that
prescribed the stages in which the action would be litigated described the
current phase to be the “‘Tax’ or the ‘Regulated Price
Regime’ phase”. The Federal Court was careful in its judgment dismissing
the claims to state that “the Plaintiffs’ claims … related
to the Regulated Price Regime issue are dismissed as being statute-barred”.
It is clear that the Federal Court intended to dismiss the entirety of the
claims advanced during this phase of the litigation.
[33]
This makes sense because the national strategy
implemented in response to the actions of the Organization of Arab Petroleum
Exporting Countries included both the domestic price restriction and the tax or
charge on export sales. This is expressly evidenced in the Petroleum
Administration Act, whose long title is “An Act to
impose a charge on the export of crude oil and certain petroleum products … and
to regulate the price of Canadian crude oil and natural gas in interprovincial
and export trade”. Part II of the Act deals with “Domestic Oil”. Section
21 of the Act sets out the purpose of Part II, which included enabling the
Government of Canada “to achieve a uniform price,
exclusive of transportation costs, for crude oil used in Canada outside its
province of production” and to “protect
consumers in Canada from instability of prices for petroleum in the international
markets”.
[34]
Given this and the obvious evidentiary linkage
between the impact on royalties caused by the domestic price restriction and
the impact caused by the tax or charge on export sales, at the time the 2002
order was made the parties cannot have intended or understood that these
impacts would be dealt with in separate phases of the trial. Nor did Canada’s
summary judgment motion deal only with the impact of the Regulated Price Regime
(as implemented through the Petroleum Administration Act) upon export
sales of oil. It follows that the Federal Court did not misapprehend the nature
of the claims at issue in the summary judgment issue.
[35]
This conclusion is, in my view, supported by the
fact that this is not an argument advanced by Ermineskin.
[36]
I now turn to the final issue advanced by
Samson: did the Federal Court err when it found that there was no genuine issue
for trial with respect to whether the entirety of Samson’s claims in this phase
of the litigation are barred by the application of paragraph 4(1)(e) of
the Alberta Limitation of Actions Act?
[37]
In Samson’s Amended Statement of Claim (No. 4)
at paragraphs 31A(i) and 36(k) it alleges Canada:
31A. i) has taxed and has permitted
Her Majesty the Queen in Right of the Province of Alberta to illegally tax, the
Reserves, including the oil and gas, through various legislative and price
regulatory mechanisms and federal/provincial agreements;
and that:
36. Defendant Her Majesty has breached
Her trust or fiduciary, treaty or equitable and other obligations and duties to
Plaintiffs referred to in paragraph 18 hereof, or alternatively Defendant Her
Majesty was negligent, in respect to the administration, management and
supervision of the natural resources of the said reserves and of the foregoing
oil and gas leases particularly:
…
k) in failing to give full and
proper effect to the tax exemptions of Plaintiffs and in failing to give
full and proper effect to the status of Plaintiffs and their interests with
respect to taxes, levies and other impositions purportedly imposed on or with
respect to oil and gas, revenues and royalties derived from the reserves;
(emphasis added)
[38]
Samson argues that “each
month in which there was a discrepancy in the royalties reserved to the Crown
as a result of the application of the oil export tax to royalty oil exported
during the previous month, gave rise to a new cause of action falling within
[the current phase of the trial]. The [Federal Court] made an error of law in
not recognizing this.” (Samson’s memorandum of fact and law, at paragraph
25).
[39]
Samson states that it is entitled to “recover damages for those royalties that were subjected to
the oil export tax that were credited to Samson for the six years preceding the
filing of its Claim” (Samson’s memorandum of fact and law, at paragraph
116).
[40]
In advancing this argument, Samson relies upon Kingstreet
Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3
where the Supreme Court held, at paragraph 13, that subject to limitation
periods and remedial legislation, taxes paid pursuant to legislation later
found to be ultra vires must be returned. It followed that because the
taxpayer’s cause of action was complete at the moment the province illegally
received payment, in the face of a six year limitation period, taxes paid
during the six years preceding the filing date of the initiating judicial
process could be recovered.
[41]
The Federal Court was mindful of the need to
accurately characterize the appellants’ claims for limitations purposes. From
paragraph 137 to paragraph 145, and at paragraph 248 of its reasons, the
Federal Court carefully considered the characterization issue, concluding that:
139. … Samson is asserting Aboriginal
and treaty rights to royalties from the oil and gas produced on Samson’s
Reserve lands at the material time, and Samson claims that “the price or value
of oil exported from Pigeon Lake on which the Indian Oil and Gas royalty was
calculated was incorrect for the years 1973 to 1985, years when the
international market price of oil rose substantially” (Samson Memorandum at
para 23, footnote omitted). Samson says that “the oil export tax should only
have been levied after the Plaintiffs [sic] royalty share had been
calculated” (Samson Memorandum at para 25, emphasis removed). It is the levying
of the export tax, and then the charge, before the Plaintiffs’ royalties were
calculated that is the basis of their claims. The cause of action pled is a
breach of trust or fiduciary duty for permitting the Plaintiffs’ royalty
revenues to be reduced as an indirect impact of the Program, that is the heart
of the claim. …
…
141. As Samson points out, the interests
that Samson seeks to protect enjoy special recognition under the Indian Oil
and Gas Act which provides that monies paid to Canada as royalty monies on
oil and gas production have to be held in trust for the use and benefit of
Samson. In essence, I think it is clear that the claims are based upon the
breach by Canada of some kind of sui generis fiduciary or trust-like
obligations (arising from statute or otherwise) that required Canada to
exempt the Plaintiffs from the indirect impact of the program upon their
royalty entitlement from oil and gas produced on their reserves.
(emphasis added)
[42]
The characterization of the appellants’ claim is
a question of mixed fact and law. Based on my review of the pleadings and the
record, the appellants have not demonstrated any extricable error of law or any
palpable and overriding error of fact or mixed fact and law in the Federal
Court’s characterization of the appellants’ claims.
[43]
Having so characterized the claims, the Federal
Court then dealt with Samson’s argument that there was a recurring breach of
duties owed to it so that the cause of action arose on a monthly basis. The
Federal Court did so at paragraphs 185 to 188 of its reasons.
[44]
There, the Federal Court found that the
appellants’ Program related claims crystallized no later than 1978 when they
became aware of the impact of the Program on their royalty entitlements and
when they were advised that oil and gas production from their Reserve would not
be exempted from the Program. Samson’s claim, commenced in 1989, was therefore
statute barred as it was commenced more than six years after the cause of
action accrued.
[45]
The question of whether a claim is statute
barred is a question of mixed fact and law. Samson has not shown any extricable
error of law or any palpable and overriding error of fact or mixed fact and law
in the reasons of the Federal Court.
[46]
Moreover, this is not a motion to strike a
pleading where one must presume the truth of the material facts as pleaded.
Rather, on a motion for summary judgment a court is required, among other
things, to make necessary findings of fact (Hryniak v. Mauldin, 2014 SCC
7, [2014] 1 S.C.R. 87, at paragraph 49).
[47]
Further, accepting the truth of the facts as
pled would be contrary to the established jurisprudence that while, on a motion
for summary judgment the onus is on the moving party to establish the absence
of a genuine issue for trial, there is an evidentiary burden on the responding
party to present evidence showing there is a genuine issue for trial. In
meeting this burden, the responding party may not rest on the allegations in
its pleadings (see, for example, Collins v. Canada, 2015 FCA 281, 480
N.R. 274, at paragraphs 70 to 71).
[48]
Here, the record does not support the allegation
that Samson’s royalty interests in oil were subjected to the oil export tax.
The tax was levied at Canada’s border upon the oil and gas companies that
exported oil. At this time, and at this place, all exported oil had lost its
identity of origin. The tax was therefore not levied on Samson or its
royalties. The tax was more akin to a levy on American purchasers, collected by
the oil and gas companies and remitted to Canada, to ensure Canada received the
same price for its exported oil that it paid for its imported oil.
[49]
Put another way, the Program was not directed at
the appellants. It was a national program that applied to oil produced anywhere
in Canada. The Program impacted the appellants only indirectly.
[50]
It follows that there is no genuine issue as to
whether Samson’s royalties were subjected to the oil export tax.
[51]
It follows that Samson’s argument must fail.
Conclusion
[52]
For these reasons, I would dismiss the appeals
with costs payable from the appellants to the respondents in each appeal.
“Eleanor R. Dawson”
“I agree.
Marc Nadon J.A.”
WEBB J.A. (Dissenting Reasons)
[53]
I agree with the proposed disposition of
Ermineskin’s appeal. However, I am unable to agree with the proposed
disposition of Samson’s appeal as it relates to the tax issue. I would allow
Samson’s appeal in relation to the issue of whether Canada has improperly or
illegally taxed the property of Samson. This claim would be restricted to only
the amounts collected by Canada within the six year period prior to the
commencement of the within action by Samson.
[54]
The Federal Court Judge noted in paragraph 1 of
his reasons that the basis for the motion for summary judgment was that the
claims were time-barred. As a result, the only issue before the Federal Court
was whether the claims were made within the applicable limitation period. The
merits of the particular claims were not before the Federal Court Judge. He
confirmed this in paragraph 89:
89 It should always be borne in mind
that in deciding whether summary judgment based upon the expiry of a limitation
period is appropriate, the Court is not pronouncing upon the merits of the
underlying claims. In the present case, the Plaintiffs may well have legitimate
complaints, in both fact and law, about the impact of the Program upon their
royalty entitlement and Canada’s handling of the royalties arising from oil and
gas extraction on the Plaintiffs’ Reserves. But the law of limitations provides
that, generally speaking, even a legitimate claim must be brought within a
prescribed period of time unless, of course, the claim is one that is not
subject to a limitations defence. It may be necessary at times to look at the
merits in order to understand what is at stake in these motions and the role
that a limitations defence should play given the nature of the claims in
question but, in the end, the Court is deciding whether or not there is a
genuine issue for trial on the limitations defence and not whether the claims
have merit.
[55]
The Judge confirmed this in paragraph 93:
93 The governing jurisprudence
clearly establishes that, in order to succeed on this motion, Canada must
demonstrate to the Court that there is no genuine issue for trial which, in
this instance, means no genuine issue regarding the existence and application
of a limitations defence to time-bar the Program-related claims. See Lameman
SCC, above at para 11; Manitoba v Canada, above, at para 15.
[56]
As a result, in my view, the only issues that
were before the Federal Court were:
(a)
What claims were being made?
(b)
What is the limitation period applicable to each
claim?
(c)
When did the applicable limitation period for
each claim commence?
(d)
Was the claim made within the applicable
limitation period for that claim?
[57]
Whether Samson would be successful in its claim
that the amounts imposed under the Program were a tax was not the issue that
was before the Federal Court. The only issue was whether Samson had made the
claim that it was a tax within the applicable limitation period.
[58]
In addition to the claims made by Samson at
paragraphs 31A(i) and 36(k) of its Amended Statement of Claim (No. 4) referred
to in paragraph 37 above, in this Statement of Claim Samson claimed, in part,
the following relief:
WHEREFORE Plaintiffs claim the following
relief against Defendants:
1. A declaration that Defendant Her
Majesty breached Her trust, fiduciary, treaty, constitutional, statutory,
common law, equitable or other obligations and duties to Plaintiffs:
…
c) in failing to give full effect to
the tax exemptions of Plaintiffs in respect to oil and gas royalties from the
Pigeon Lake Indian Reserve and Samson Indian Reserve No. 137, and by improperly
levying taxation against the Plaintiffs’ royalty interests in oil and gas
production and land use in violation of s. 87 of the Indian Act and the
treaty and aboriginal rights and powers of Plaintiffs.
[59]
Included in the appeal book is a document
entitled “Defendants’ Position on the Issues”. In this document, after
describing the Program in general terms, the Defendants to the action stated,
in part, that:
The issues would appear to the Crown to be
as follows:
…
2. Did the above scheme constitute a
tax contrary to law? (See Indian Act, SS 87 and 90.)
[60]
As a result, in my view, Samson did raise the
issue of whether the Program resulted in a tax being imposed on Samson and the
Crown acknowledged that this issue had been raised. For the purposes of the
motion that was before the Federal Court, the only remaining issue would be
whether this claim was made within the applicable limitation period.
[61]
In Kingstreet Investments Ltd. the
Supreme Court concluded that a claim for taxes that were illegally collected
were subject to the general limitation period in the New Brunswick Limitation
of Actions Act, R.S.N.B. 1973, c. L-8, s. 9. The corresponding provision in
the Alberta Limitation of Actions Act is paragraph 4(1)(g) which
provides for a six year limitation period after the cause of action arose.
[62]
In Kingstreet Investments Ltd., the
Supreme Court also noted that:
61 Finally, the point at which time will
begin to run must be determined. The cause of action was complete at the moment
the Province illegally received the payment. For this reason, the appellants
can only recover the user charges paid during the six years preceding the
filing date of their Notice of Application (May 25, 2001).
[63]
Therefore, in my view, the applicable limitation
period for the claim that Canada had improperly collected taxes would begin
when the particular amounts were collected by Canada. The application of this
limitation period would result in Samson’s claims for any amounts collected
more than six years prior to the commencement of its action being dismissed.
Since, however, there were some amounts that were collected by Canada during
the six years immediately prior to Samson commencing its action, Samson’s claim
that Canada had improperly collected a tax should be allowed to continue in
relation to these amounts.
[64]
I would, therefore, allow Samson’s appeal but
only with respect to the issue of whether Canada had improperly imposed a tax
in relation to any amounts collected by Canada during the six year period
immediately preceding the date that Samson commenced its action against Canada.
“Wyman W. Webb”
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