McGillis,
J.
(orally):—The
defendant
Attorney
General
of
Canada
has
applied
for
summary
judgment
in
this
matter
under
Rule
341
of
the
Federal
Court
Rules
on
the
basis
that
the
action
raises
no
genuine
issue
to
be
tried.
A
review
of
the
materials
filed
on
this
application
on
behalf
of
the
plaintiff
and
defendant
confirms
that
controversy
exists
with
respect
to
the
relevance
of
evidence
to
be
considered
by
the
Court.
In
support
of
its
argument
that
the
goods
in
question
ought
to
be
exempt
from
federal
sales
tax,
the
plaintiff
seeks
to
rely
by
way
of
analogy
on
an
administrative
policy
of
Revenue
Canada,
Customs
and
Excise,
and
previous
rulings
made
by
Revenue
Canada,
Customs
and
Excise.
The
defendant
takes
the
position
that
this
evidence
is
not
relevant
in
the
proceedings.
The
plaintiff
has
also
tendered
a
previous
sales
tax
ruling
which
the
defendant
submits
cannot
be
extended
to
cover
the
situation
in
the
case
at
bar.
In
determining
whether
summary
judgment
ought
to
be
granted
under
the
provisions
of
Rule
341,
I
am
guided
by
the
principles
enunciated
in
The
Queen
v.
Garry
Bowl
Ltd.,
[1974]
C.T.C.
457,
74
D.T.C.
6401
(F.C.A.).
In
that
decision,
Thurlow,
J.
(as
he
then
was)
stated
as
follows
at
page
459
(D.T.C.
6402):
The
rule
is,
however,
limited,
as
the
passages
I
have
quoted
appear
to
me
to
indicate,
to
situations
where
as
a
result
of
the
admissions,
etc.
there
is
nothing
in
controversy
either
in
the
action
as
a
whole
or
in
a
particular
part
or
parts
of
it.
Even
when
all
the
necessary
facts
have
been
admitted
but
the
legal
result
of
them
is
still
in
controversy
the
rule
is
not
appropriate
if
the
legal
question
is
a
serious
or
fairly
arguable
one.
The
rule
as
I
understand
it
cannot
properly
be
invoked
as
an
alternative
to
setting
down
for
determination
before
trial
under
Rule
474
a
point
of
law
that
arises
on
the
pleadings.
Under
the
rule
it
is
for
the
Court
to
determine
whether
a
point
of
law
which
is
in
controversy
should
be
dealt
with
before
trial
or
not
and
a
party
is
not
entitled
to
circumvent
the
exercise
of
that
discretion
by
bringing
a
motion
for
judgment
on
admissions
and
seeking
to
have
the
point
argued
and
determined
on
the
hearing
of
that
motion.
On
the
other
hand
when
the
material
facts
are
clearly
admitted
and
the
result
of
the
application
of
the
law
to
them
is
not
in
doubt
so
that
it
is
apparent
that
a
plaintiff
is
entitled
ex
debito
justitiae
to
the
relief
which
he
claims
in
the
action
or
that
a
defendant
is
entitled
to
judgment
dismissing
the
action
against
him,
as
the
case
may
be,
a
motion
under
Rule
341
is
an
appropriate
procedure
to
obtain
such
relief
immediately
in
lieu
of
allowing
the
action
to
proceed
to
a
trial
which
in
the
end
can
have
no
other
result.
I
have
considered
this
matter
carefully
and
have
concluded
that
the
application
has
not
been
properly
brought
under
Rule
341
in
light
of
the
competing
views
of
the
parties
concerning
the
relevance
of
the
evidence.
The
application
is
therefore
dismissed
with
costs.
Application
dismissed.
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