Hugessen
J.A.:—We
are
all
of
the
view
that
we,
like
the
learned
trial
judge
(Molson
Newfoundland
Brewery
Ltd.
v.
Canada,
[1993]
2
C.T.C.
141,
66
F.T.R.
115),
are
bound
by
the
decision
of
the
Supreme
Court
in
the
case
of
The
King
v.
Wampole,
[1931]
S.C.R.
494,
[1931]
3
D.L.R.
754.
That
decision
may
ring
curiously
to
modern
ears
and
it
might
be
doubted,
if
the
matter
were
tabula
rasa,
that
it
would
now
be
decided
the
same
way;
double
taxation,
if
not
the
norm,
is
certainly
not
unusual
and
both
the
finding
that
the
circumstances
in
Wampole
amounted
to
such
double
taxation
and
the
view
that
Parliament
could
not
have
intended
that
result
might
not
have
been
the
same
today.
The
decision
stands,
however,
and
the
legislation
which
it
interpreted
was
substantially
unchanged
from
that
which
the
trial
judge
had
to
interpret.
Indeed,
the
legislative
history
shows
that
after
Wampole
provisions
were
first
enacted
and
subsequently
repealed
with
the
specific
effect
and
purpose
of
imposing,
and
then
removing,
tax
on
free
samples
given
away
by
a
manufacturer
or
producer
for
promotional
or
advertising
purposes.
In
our
view,
such
history
positively
supports
the
conclusion
that
Parliament
had
decided
that
the
consumption
or
sales
tax
imposed
by
the
former
provisions
of
the
Excise
Tax
Act
should
not
attach
to
such
samples.
We
are
also
satisfied,
as
was
the
trial
judge,
that
the
addition
of
subparagraph
50(l)(a)(iii)
to
the
charging
provision,
made
in
1981
with
retroactive
effect
to
April
1,
1975
was
solely
for
the
purpose
of
filling
the
"gap”
identified
by
the
case
of
B.C.
Railway
Co.
v.
The
Queen,
[1979]
C.T.C.
56,
79
D.T.C.5020
(F.C.T.D.)
and
"to
establish
the
time
when
tax
was
payable
be
a
producer
or
manufacturer
who
used
his
own
goods.
It
was
not
intended
to,
and
did
not,
substantively
affect
the
liability
for
tax..."
(C.T.C.
145,
F.T.R.
120).
The
trial
judge
made
a
finding
that
the
facts
in
the
present
case
were
in
all
material
respects
"the
same
as
those
in
Wampole"
(C.T.C.
146,
F.T.R.
121).
That
finding
has
not
been
shown
to
us
to
be
in
error.
We
should
not
intervene.
The
appeal
will
be
dismissed
with
costs.
Appeal
dismissed.
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