McNair,
J.
[Orally]:—This
is
the
application
of
the
plaintiff
for
an
order
pursuant
to
Rule
474
of
the
Federal
Court
Rules
directing
a
preliminary
determination
of
certain
questions
of
law
said
to
be
relevant
to
the
decision
in
the
plaintiff’s
action.
On
July
11,
1986
the
plaintiff
filed
an
amended
statement
of
claim
in
the
action
seeking
a
declaration
that
by
virtue
of
section
87
of
the
Indian
Act
the
Saugeen
Indian
Band
and
the
goods
on
the
Reserve
of
the
Band
were
exempt
from
taxation
under
the
Excise
Tax
Act
because
the
Band
or
its
members
had
used
or
consumed
the
goods
on
the
Reserve
or,
alternatively,
by
reason
that
the
property
and
the
goods
had
passed
to
the
Band
on
the
Reserve
and
delivery
to
the
Band
of
the
goods
had
also
occurred
on
the
Reserve.
The
plaintiff
also
claimed
for
a
refund
of
the
tax
received
by
the
defendant
in
respect
of
the
goods
under
the
Excise
Tax
Act.
I
have
heard
the
submissions
of
counsel
for
the
plaintiff
and
for
the
defendant
advancing
their
respective
cases
and
I
have
also
read
and
considered
the
affidavit
of
plaintiffs
counsel
in
support
of
the
motion
and
the
pleadings
and
other
material
filed
herein,
including
the
briefs
and
authorities
submitted
by
counsel
on
both
sides.
As
I
understand
it,
the
claim
for
refund
is
determinable
on
two
grounds:
(1)
by
reference
to
the
invoices
themselves,
of
which
there
are
a
great
number,
and
(2)
on
the
basis
of
a
mathematical
calculation
according
to
a
formula
used
by
Revenue
Canada
to
calculate
refunds
of
tax
to
exempt
end
users.
It
seems
to
me
that
the
issue
raised
in
the
case
turns
on
the
matter
of
exempt
end
users,
appreciating
that
there
may
be
other
legal
issues
as
well.
Reliance
is
placed
on
Rule
474
of
the
Federal
Court
Rules,
and
more
particularly,
subrule
474(1),
which
reads:
474.(1)
The
Court
may,
upon
application,
if
it
deems
it
expedient
so
to
do,
(a)
determine
any
question
of
law
that
may
be
relevant
to
the
decision
of
a
matter,
or
(b)
determine
any
question
as
to
the
admissibility
of
any
evidence
(including
any
document
or
other
exhibit),
and
any
such
determination
shall
be
final
and
conclusive
for
the
purposes
of
the
action
subject
to
being
varied
upon
appeal.
In
my
view,
the
issue
is
whether
it
is
expedient
to
have
the
points
of
law,
that
is,
the
issue
of
Indian
exemption
from
taxation
under
the
Excise
Tax
Act,
determined
preliminarily
before
the
trial
of
the
action.
If
yes,
the
ques
tion
then
raised
is
whether
the
Band
and
its
members
are
exempt
from
sales
tax
under
the
Excise
Tax
Act.
I
have
given
the
matter
careful
consideration
in
the
time
that
was
available
to
me
and
it
is
my
opinion
that
it
would
not
be
expedient
to
attempt
to
substantially
dispose
of
the
action
by
way
of
a
preliminary
determination
of
the
question
or
questions
of
law.
My
reasons
for
coming
to
that
decision
are
as
follows.
A
preliminary
determination
at
this
juncture
would
foreclose
the
defendant
from
defending
an
action
where
the
legal
issues
are
at
least
fairly
arguable
and
the
facts
are
substantially
disputed.
It
seems
to
me
that
the
granting
of
the
motion
would
have
the
effect
of
determining
prematurely
an
important
case
in
which
taxation
issues
of
profound
importance
have
been
raised
in
something
analogous
to
a
factual
vacuum.
Counsel
for
the
plaintiff
fairly
cited
the
authorities
on
the
point,
most
or
all
of
which,
as
it
seems
to
me,
were
against
her.
Nonetheless,
she
submits
that
the
present
case
is
distinguishable
from
the
prevailing
trend
of
authority
because
the
defendant
has
pleaded
only
a
general
denial,
whereby
it
would
be
expedient
and
just
to
assume
the
facts
alleged
in
the
statement
of
claim
to
be
true
for
the
purpose
of
preliminarily
determining
the
legal
issues
involved.
I
know
of
no
authority
that
goes
that
far
and
the
plain
meaning
of
the
Rules
of
Court
militates
against
any
such
far-reaching
construction.
Each
party
is
entitled
to
have
his
or
her
day
in
court.
A
plaintiff
must
prove
a
prima
facie
case
and
a
defendant
is
entitled
to
assert
any
legitimate
grounds
of
defence
in
opposition
thereto.
In
the
case
of
C.G.E.
v.
Les
Armateurs
du
St-Laurent
Inc.,
[1977]
2
F.C.
503
the
Federal
Court
of
Appeal
held
that
the
trial
judge
erred
in
making
a
preliminary
determination
of
a
question
of
law
on
the
basis
only
of
the
pleadings
without
benefit
of
an
agreed
statement
of
facts.
Mr.
Justice
Urie
put
it
this
way
in
his
reasons
for
judgment
at
504-505:
The
question
of
the
very
existence,
as
a
bill
of
lading,
of
the
document
referred
to
in
the
question
before
the
motion
Judge,
had,
thus,
been
put
in
issue,
and,
for
the
proper
determination
of
that
issue,
evidence
of
such
matters
as
the
intention
of
the
parties,
the
authority
of
the
master
to
issue
and
the
circumstances
surrounding
the
delivery
of
the
document,
to
mention
only
three
of
possibly
a
number
of
material
matters,
ought
to
have
been
before
the
learned
Judge.
Normally
that
evidence,
on
a
preliminary
motion,
would
be
contained
in
an
agreed
statement
of
facts,
but
here
there
was
no
such
agreement
and
it
is
doubtful
if
there
ever
could
have
been
one
in
view
of
the
allegations
in
the
respective
pleadings
of
the
parties.
In
our
view,
therefore,
the
question
submitted
to
the
learned
motion
Judge
ought
not
to
have
been
answered
by
him
because
of
the
lack
of
agreed
facts
upon
which
to
make
such
determination.
Without
it
he
could
not
make
any
proper
determination
of
the
question
propounded.
It
is
my
opinion
that
the
C.G.E.
case
is
conclusive
of
the
selfsame
issue
that
arises
in
the
case
at
bar.
See
also
Anglophoto
Ltd.
v.
The
“Ikaros”,
[1974]
F.C.
327
per
Thurlow,
J.,
at
330.
The
plaintiff
complains
that
the
defence
is
nothing
more
than
a
general
denial.
There
is
some
justification
for
this
complaint.
A
party
is
not
entitled
to
dictate
how
his
opponent
must
plead,
but
the
better
practice
would
seem
to
look
askance
at
mere
general
denials.
If
the
defendant
contends
that
the
plaintiff
is
not
an
end
user
vis-a-vis
the
Excise
Tax
Act
then
it
should
plead
the
statutory
provision
or
provisions
on
which
it
relies
and
the
specific
facts
which
bring
the
case
within
the
purview
thereof.
A
party
is
entitled
to
know
with
reasonable
certainty
the
exactitude
of
the
case
made
against
him.
That
is
the
purpose
of
particulars.
If
the
defendant
persists
with
its
general
denial
then
the
plaintiff
can
demand
particulars.
Given
the
rigours
of
any
lawsuit,
counsel
should
endeavour
to
co-operate
as
much
as
possible
in
narrowing
the
issues,
dispensing
with
unnecessary
proof
and
expediting
the
preparation
of
the
case
for
trial
and
its
ultimate
trial.
Costs
are
always
discretionary
and
it
is
my
order
that
costs
in
this
case
be
in
the
cause.
Normally
costs
follow
the
event.
Here
the
application,
while
unsuccessful,
was
not
frivolous
and
raised
points
of
substance
and
importance.
An
order
will
therefore
go
dismissing
the
application,
with
costs
in
the
cause.
Application
dismissed.
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