Tambrands Canada Inc v. Minister of National Revenue, [1985] 2 CTC 154, 85 DTC 5323

Ryan, J:—This is an application by Tambrands Canada Inc (“Tambrands”) under subsection 44(7.3) of the Excise Tax Act (“the Act’’) and section 28 of the Federal Court Act to review and set aside a decision of the respondent, the Minister of National Revenue (“the Minister”), which denied in part Tambrands" claim, brought under section 44 of the Act, to refund of taxes paid under the Act. The Minister allowed Tambrands" claim in the amount of $5,455,156.36 covering the periods from May 29, 1978 to October 28, 1980; May 29, 1981 to May 28, 1982; and February 18, 1982 to February 17, 1983, but rejected the claim for taxes paid before May 29, 1978 and during the period from October 29, 1980 to May 28, 1981. For reasons that will appear, Tambrands chose to limit itself on this application to a submission that the Minister erred in denying its claim to refund of moneys paid before May 29; 1978. The original claim submitted to the Minister by Tambrands covered moneys paid during a period going back to 1936, but in the applicant’s Memorandum of Argument it was indicated, with respect to sums paid before May 29, 1978, that the applicant’s real complaint was that the Minister had rejected its claim for sums paid during the period from September 1, 1967 to May 29, 1978. The reason for limiting the claim to that particular period appears to be that the “health services products” amendment to the Act, the amendment on which Tambrands relied, became effective on September 1, 1967.

On the issue so framed and limited by the applicant, the critical question is whether Tambrands’ claim for refund falls within subsection 44(7.1) of the Act. Under that subsection no refund for moneys paid in error and taken into account as taxes can be granted under section 44 unless application is made to the Minister within four years after the time they were paid. Tambrands" case is that its claim is not subject to the limitation imposed by subsection (7.1). Counsel for the Minister, on the other hand, submitted that the claim is caught by the subsection.

It would appear that before September 1, 1967, tampons were subject to tax under the Act. The Act was, however, amended effective September 1, 1967 when the “health services products” exemption, the exemption provided in section 1 of Part VIII of Schedule III, came into force. I take it that the Department was of the view that tampons were not within the exemption. Apparently Tambrands (then known as “Canadian Tampax Corporation Ltd”) continued to pay the tax. In May 1982, however, it filed an application with the Tariff Board under section 59 of the Act for a declaration that tampons are exempt. Section 59 provides:

59. (1) Where any difference arises or where any doubt exists as to whether any or what rate of tax is payable on any article or on transportation by air under this Act, the Tariff Board constituted by the Tariff Board Act may declare what rate of tax is payable thereon or that the article or transportation by air is exempt from tax under this Act.

(2) Before making a declaration under subsection (1) the Tariff Board shall provide for a hearing and shall publish a notice thereof in the Canada Gazette at least twenty-one days prior to the day of the hearing; and any person who, on or before that day, enters an appearance with the Secretary of the Tariff Board may be heard at the hearing.

(3) A declaration by the Tariff Board under this section is final and conclusive, subject to appeal as provided in section 60.

(4) [Repealed, 1980-81-82-83, c 68, s 24.]

(5) An application to the Tariff Board for a declaration, or the entering of an appearance with the Secretary of the Tariff Board under subsection (2) of this section, shall, for the purposes of section 44, be deemed to be an application in writing.

Another taxpayer, Playtex Ltd, had sought a similar declaration. With the consent of the Tariff Board, Tambrands' application was held in abeyance pending a decision on the Playtex application. Tambrands entered an appearance, as an intervener, in the Playtex application, and its counsel participated in the argument in those proceedings.

On February 17, 1983, the Tariff Board declared in the Playtex proceedings that tampons are exempt from taxation by reason of section 1 of Part VIII, Schedule III to the Act. On March 29, 1983, Tambrands filed an application in writing for a refund of federal sales taxes. The letter, dated March 28, 1983, in which the refund claim was enclosed, stated:

. . . In view of the decision of the Tariff Board in Appeal No 1846 (Playtex Ltd) which held that tampons are health products within the meaning of paragraph 1 of Part VIII of Schedule III to the Excise Tax Act, this application is being submitted.

The actual amount claimed as a refund was $16,341,084.04. The period covered by the claim was from January 1, 1936 to January 31, 1983. On March 31, 1983, Tambrands filed two further applications. One was for taxes paid during February 1982, the other for taxes paid during March 1982. These two periods obviously overlap the period covered by the original claim. Actually, however, as indicated above, it appears that the sums paid between September 1, 1967 and May 29, 1978, are those which are truly in issue, not sums paid between 1936 and September 1, 1967; the sums in issue are, however, very large.

The decision on the claims, the decision under review, is set out in a letter, dated September 26, 1984, addressed to Canadian Tampax Corporation Ltd and signed by the District Manager of the Barrie Excise Office. The letter reads in part:

Claim 4180-0036 has been approved for $5,455,156.36 based on Tariff Board decisions for the periods outlined below:

Periods Approved: May 29, 1978 to Oct 28, 1980

May 29, 1981 to May 28, 1982

Feb 18, 1982 to Feb 17, 1983 (Note overlap of periods)

The rationale for the above periods is as follows:

1) May 28, 1978 to October 28, 1980

Prior to the budget of October 28, 1980, tax on Tariff Board Appeals was allowed back four years from the date the Tariff Board received the appeal. Accordingly, the receiving date of Canadian Tampax Corporation Ltd Appeal No 1876 was May 28, 1982. (Reference Sec 44(7) Excise Tax Act.)

2) May 29, 1981 to May 28, 1982

During this period, Tariff Board Appeals were allowed back one year from date of receipt. This again refers to Appeal No 1876. (Reference Sec 44(7) Excise Tax Act.)

3) February 18, 1982 to February 17, 1983

This is as a result of the Tariff Board’s decision in the “Playtex” case, Appeal No 1846 received February 17, 1983. Refund is allowed back one year in this time period.

We are unable to allow refund of tax for tax paid outside the periods shown above.

Tax paid for part months were confirmed by telephone with your Mr P Eplett on September 26, 1984 and are subject to adjustment at the time of our next audit Visit.

A detailed list of the amounts refunded shown by months and part months is attached.

In the Memorandum of Points to be Argued filed by the solicitors for Tambrands, this paragraph appears under the heading “PART I — FACTS”:

11. Subsequent to the commencement of this section 28 application, the respondent has agreed to refund the balance of any taxes paid in the four year period extending back to May 29, 1978.

In the Memorandum of Fact and Law filed by the solicitor for the Minister, this paragraph appears under the heading “PART I — FACTS”:

1. The facts, for the purposes of this application are as set out in paragraphs 1 to 11 of the Applicant’s Memorandum.

I will next quote from “PART II — POINTS TO BE ARGUED” appearing in Tambrands’ Memorandum of Points to be Argued:

12. The entitlement of the applicant to refund of taxes having been conceded by the respondent, the sole question in this application is whether the refund period extends back prior to May 29, 1978 to include the period from September 1, 1967 to May 28, 1978. It is the applicant’s submission that:

(a) its applications being specifically provided for pursuant to subsection (7)(a) of section 44 and having been made within the 12 month period stipulated therein, and, no other limitation to refund being provided for therein, it is entitled to a refund of the taxes paid during the period in issue; and,

(b) the limitations provided in subsections (6) and (7.1) have no application.

In the Memorandum of Fact and Law filed by the solicitor for the respondent paragraphs 2 and 3 read:

2. The issue before this Honourable Court is whether the Minister erred in law in the interpretation of Section 44 of the Excise Tax Act. The Respondent takes the position that the facts of this case are such that the Applicant falls within Section 44(1)(c) and 44(7.1) of the Act, and that the Applicant is only entitled to a refund of monies paid within four years prior to making an application for a refund.

3. Alternatively the Respondent takes the position that the Applicant falls within 44(7) and Section 44(7.1), and therefore the Applicant is entitled to a refund of monies paid four years prior to making an application for a refund.

Counsel for the respondent clearly relied on paragraph 44(1 )(c) and subsection 44(7.1) of the Act. He did not — as I understood his submissions — seek to support the decision of the Minister on the basis of the reasons given in the letter of September 26, 1984 containing the Minister’s decision. I confess I find it rather difficult to understand “the rationale” given in the letter; argument was not specifically directed to its precise content. The best I can make of paragraph 1 of “the rationale” is that the reference to “May 28, 1978” may be a reference to the date which was four years before the date of Tambrands’ application to the Tariff Board under section 59, and “October 28, 1980” may well have been referred to as what may have been considered the effective date of the amendments to the Act which repealed subsection 59(4) and replaced the previous subsections 44(6) and (7) with the present subsections 44(6), (7) and (7.1). Paragraph 2 of "the rationale” apparently refers to the twelve-month period before Tambrands’ application to the Tariff Board, while the period mentioned in paragraph 3 appears to be the one-year period before the Playtex decision by the Tariff Board. I would just recall that subsection 59(5) of the Act provides:

(5) An application to the Tariff Board for a declaration, or the entering of an appearance with the Secretary of the Tariff Board under subsection (2) of this section, shall, for the purposes of section 44, be deemed to be an application in writing.

To the extent that “the rationale” was based on the view that subsection 44(7) of the Act limited refunds to moneys paid during the period of twelve months prior to the date of application to the Tariff Board, it would appear to be inconsistent with Amoco Canada Petroleum Company Ltd v MNR, [1985] 1 CTC 240; 57 NR 274, as will be indicated later in these reasons. The Minister may well have been in error to the extent that he relied, as he appears at least in part to have done, on subsection 44(7) to deny recovery of certain of the sums paid after subsection 44(7), in its present form, came into effect. In respect of these sums, the applicant is, however, apparently satisfied to rely on the circumstance that the Minister has refunded or agreed to refund ". . . all taxes paid in the four year period prior to May 28, 1982”. I quote paragraph 25 of the applicant's Memorandum:

25. The impugned decision was, according to its stated rationale, on the basis that section 44(7) limited the refund to the taxes paid for 12 months prior to the date of application to the Tariff Board. The decision of this Court in Amoco establishes that there is no such 12 month limitation in section 44(7), and this has been recognized by the Minister in having refunded or agreed to refund all taxes paid in the four year period to May 28, 1982.

For purposes of this case, it is apparent that the critical statutory provisions are paragraph 44(1)(c) and subsections 44(6), (7) and (7.1) of the Act. I quote these provisions:

44. (1) A deduction from, or refund of, any of the taxes imposed by this Act may be granted

(c) where the tax was paid in error;

(6) Subject to subsections (7) and (7.1), no refund of or deduction from any of the taxes imposed by this Act shall be granted, and no payment of an amount equal to tax paid shall be made, under this section unless application in writing therefor is made to the Minister by the person entitled to the refund, deduction or amount within four years after the time the refund, deduction or amount first became payable under this section or the regulations.

(7) No refund of or deduction from any of the taxes imposed by this Act shall be granted, and no payment of an amount equal to tax paid shall be made, under this section as a result of

(a) a declaration under section 59,

(b) an order or judgment of the Federal Court or any other court of competent jurisdiction, or

(c) a decision of the Minister or other duly authorized officer respecting the interpretation or application of this Act,

in respect of taxes paid prior to such declaration, order, judgment or decision unless application in writing therefor is made to the Minister by the person entitled to the refund, deduction or amount within twelve months after the later of the time the taxes became payable or the time the refund, deduction or amount first became payable under this section or the regulations.

(7.1) Subject to subsection (7), no refund of moneys paid or overpaid in error, whether by reason of mistake of fact or law or otherwise, and taken into account as taxes imposed by this Act shall be granted under this section unless application in writing therefor is made to the Minister by the person entitled to the refund within four years after the time the moneys were paid or overpaid.

Tambrands’ position before us was that its claim for refund was made as a result of a declaration made by the Tariff Board under section 59 of the Act, the declaration made in the Playtex case. Its claim, it was submitted, thus fell within subsection (7) of section 44, not within subsection (7.1). The consequence was that the only time limit applicable to its claim was that specified in subsection (7). Relying on the judgment of this Court in Amoco, Tambrands submitted that subsection (7) merely required the applicant's claim for refund to be made within twelve months of the section 59 declaration on which it relied, and that this had been done. The four-year limitation period specified in subsection (7.1) was not, it was argued, applicable. There was thus no retrospective time limitation on its claim for refund of moneys paid prior to the declaration.

As indicated above, counsel for the Minister submitted that Tambrands' claim for refund was caught by subsection (7.1): it was, properly considered, a claim for the refund of moneys paid in error by reason of a mistake of law, moneys which had been taken into account as taxes. No refund could, therefore, be granted, so far as moneys paid before May 29, 1978 were concerned, because the application to the Minister, as it related to these sums, had not been made within four years after the time the moneys were paid. The respondent submitted that the claim for refund did not fall within subsection (7) because a refund, if granted, would be granted as a result of the taxes having been paid as a result of a mistake of law, not ‘as a result of a declaration under section 59. . . ." In the alternative, the respondent submitted that, even if the claim fell within subsection (7), it also fell within subsection (7.1) because it was a claim for the refund of moneys paid in error.

As I see it, refund of taxes imposed by the Excise Tax Act may be granted by virtue of section 44 of the Act in circumstances stipulated in subsections 44(1) to (4). Paragraph 44(1)(c) provides:

44. (1) A deduction from, or refund of, any of the taxes imposed by this Act may be granted

where the tax was paid in error;

Subsection 44 (7.1) makes it clear that "error" includes ".. . mistake of fact or law or otherwise."

Counsel for Tambrands submitted, however, if I understood his oral argument properly, that the right of Tambrands to claim a refund was a right established, not by paragraph 44(1)(c) of the Act, but a right established by subsection 44(7) itself. In the present case, the right of Tambrands to claim a refund was, it was argued, created by the declaration made by the Tariff Board in the section 59 proceeding initiated by Playtex. In support of this submission, counsel relied on subsections 44(7.2), (7.3) and (7.4). These subsections provide:

(7.2) An application under subsection (6), (7) or (7.1) shall be made in such form and in such manner as the Minister may prescribe.

(7.3) Where the Minister rejects in whole or in part an application under subsection (6), (7) or (7.1) for a refund, deduction or amount, the application ceases to have effect, for the purposes of determining whether the refund, or deduction may be granted or the amount may be paid, ninety days after notice of the rejection is sent to the applicant, unless, within that ninety day period, an application in respect of the refund, deduction or amount is made to the Tariff Board under section 59 or to the Federal Court under section 28 of the Federal Court Act.

(7.4) Where the Minister approves an application under subsection (6), (7) or (7.1) for a refund, deduction or amount, the application ceases to have effect, for the purposes of determining whether the refund or deduction may be granted or the amount may be paid, ninety days after payment of the refund, deduction or amount is sent to the applicant, unless, within that ninety day period, an application in respect of the refund, deduction or amount is made to the Tariff Board under section 59 or to the Federal Court under section 28 of the Federal Court Act.

In subsection (7.2), an application is referred to as “an application under subsections (6), (7) or (7.1)”. This, it was submitted, indicates that each of these subsections authorizes the making of a distinct application; this in turn indicates that the right asserted is a right created by the relevant subsection. Therefore an application brought pursuant to subsection (7) cannot be considered to be an application brought pursuant to subsection (7.1) and the limitation applicable to it is the limitation specified in subsection (7), not the limitation specified in subsection (7.1). It was also submitted that the wording of subsections (7.3) and (7.4) supports the submission that distinct substantive rights are created by subsections (7) and (7.1).

I confess that the wording of the three subsections referred to is rather puzzling. I cannot, however, conclude that the wording of subsections (7.2),

(7.3) and (7.4) has the effect of transforming what are essentially limitation provisions into “right creating” provisions. The function of each of subsections (6), (7) and (7.1) is to place limits on the time within which rights created elsewhere in the section can be asserted. Subsection (7) provides: “No refund of . . . any of the taxes imposed by this Act shall be granted . . . under this section as a result of . ..” any of the several stipulated circumstances unless the claim is made within a stipulated time; the reference is to a refund to be granted under “this section”, not under “this subsection”. Whatever rights are asserted by a taxpayer applying for a refund under section 44 of the Act must be rights created in subsections (1) to (4). It is hardly disputable that a section 59 declaration does not, in itself, create a right to a refund.

Counsel's submission, as developed in his Memorandum of Argument, is not, however, as I understand it (in contrast to his oral submission), really a submission that an independent right to recover refunds is inherent in subsection 44(7) as a right distinct from the right created by paragraph 44(1)(c). The submission in the Memorandum recognizes that subsections 44(1) to (4) “. . . provide for the circumstances under which refunds may be granted or not granted”. The submission in the Memorandum is very similar to counsel's oral submission except that he does not rely in his Memorandum on a submission that subsection 44(7), read in context, creates a distinct right. His submission is that each of subsections 44(6) to (7.1) provides in terms for an application in writing for refund and that no refund shall be granted under an application so submitted unless the application is made within the time specified. He emphasizes that subsection (7.2) provides for the form of “an application under subsection (6), (7) or (7.1)”. He also relies on the wording of subsections (7.3) and (7.4). He argues further that Tambrands’ application for refund was made “as a result of” the Tariff Board declaration in the Playtex case, so that the application falls squarely within paragraph 44(7)(a) of the Act. Basing himself on the reasons for judgment of Mr Justice Mac- Guigan in Amoco, he submits in the Memorandum that Tambrands’ refund first became payable on February 17, 1983, the date of the Playtex déclara- tion, and that Tambrands’ application for refund was filed within twelve months of that date; this satisfied the only time limitation imposed by the subsection. He also submits in the Memorandum that subsection 44(7.1) is “subject to subsection (7)"" so that the only relevant time limitation is that expressed in subsection (7), the subsection under which the application was made, a limitation which Tambrands satisfied.

Counsel's reliance in his Memorandum on the judgment of this Court in Amoco calls for a rather careful analysis of the reasons for judgment of the Court as expressed by Mr Justice MacGuigan.

In Amoco, the taxpayer, Amoco, applied in writing to the Minister for a refund of taxes paid in error under the Excise Tax Act. The taxes had been paid in respect of “goods" which the Federal Court of Appeal held in Shell Canada Resources Ltd v MNR, [1984] CTC 169; 52 NR 266, were exempt. Amoco had not been a party in that case. The Minister in effect limited recovery to sums paid by Amoco during the twelve-month period prior to the Shell Canada Resources judgment. The Minister's position was that the refund sought was a refund which, if granted, would be granted as a result of a judgment of the Federal Court; his position was that paragraph 44(7)(b) of the Act limited recovery to taxes paid within the twelve months prior to the judgment. This Court set aside the Minister's decision and referred the refund claim back to the Minister for decision on the basis that the applicant was entitled to the refund contemplated, not by subsection (7), but by subsection 44(7.1) of the Act. In the present case, counsel for the Minister submitted in contrast to what the Minister had submitted in Amoco that the applicable subsection is subsection 44(7.1), as it was held to be in Amoco.

In Amoco, in concurring reasons, I took the view that Amoco's right to refund rested squarely on paragraph 44(1 )(c) of the Act and that the applicable limitation period was the four-year period specified in subsection 44(7.1); for reasons I gave, I was of opinion that Amoco's claim for refund could not be held to be a claim resulting from the Federal Court judgment in Shell Canada Resources; I, therefore, did not find it necessary to consider what limitations might flow from subsection 44(7) were it applicable.

Mr Justice MacGuigan, with whom Mr Justice Heald concurred, did, however, address this question. He said at 244 (NR 278):

... Subsection (7) requires only that a refund application be made “within twelve months after the later of” two events. There is nothing in the subsection or in the context to restrict the period of the refund itself to one year. It is therefore only a limitation on the timing of a refund application.

Counsel for Tambrands obviously placed considerable reliance on this passage. But Mr Justice MacGuigan also said at 245 (NR 279):

In my view, what Parliament did intend was that, just as subsection (6) should establish a four-year limitation period for the situations covered by paragraphs (d)-(g) of subsection 44(1) (as the parties agree), so subsection (7.1) establishes a four-year claim period for the other paragraphs of subsection 44(1) where the tax was never truly exigible, viz paragraphs (a), (b) and (c). In fact, the parallelism in statutory language between these two subsections is striking. It is unnecessary for this case to decide whether the four-year period in both subsections should be read as substantive or procedural.

On this interpretation, subsection (7) could have application to taxpayers directly involved in contesting departmental interpretations before the Tariff Board or a Court or to those affected by an authoritative reinterpretation — this third group could include all taxpayers. Their refunds might be said to be payable as a result of these special circumstances, and in this context I would interpret the time at which “the refund, deduction or amount first became payable” to be the time of the declaration, order, judgment, or authoritative pronouncement. In some cases, these taxpayers might have already made an application for a refund, deduction or payment, but in every case they would have the advantage under subsection (7) of a further application in the light of the declaration, order, judgment or pronouncement. Such a result is in no way unreasonable or unfair.

Thus Mr Justice MacGuigan interpreted the subsection not merely as a limitation clause, but also as giving to persons who might fall within its terms the advantage of filing a further application even if they had already made an earlier application.

Reading the passages I have quoted from Amoco and Mr Justice MacGui- gan’s reasons as a whole, I take it that this Court has decided that subsection 44(7), if applicable, imposes a “procedural limitation" only and that the subsection does not limit recovery to sums paid within twelve months prior to the making of the declaration, order or judgment, or decision on which a party relies. The Court is also, I take it, of the view that subsection 44(6) has reference only to situations where taxes were properly paid but later became refundable and that subsection 44(7.1) establishes a four-year limitation period on claims made under paragraphs of subsection 44(1) which make it possible to claim refunds of taxes which were never, truly exigible, including claims made under paragraph 44(1)(c). The Court is also of the view that subsection (7) could have application in the circumstances mentioned in the paragraph quoted from Mr Justice MacGuigan’s reasons in Amoco, the paragraph beginnig with the words: “On this interpretation, subsection (7) could have application to taxpayers. . .." The consequences of its being so applicable are stated in the paragraph. Tambrands, having participated in the Playtex application, might, on the basis of the paragraph quoted, be within subsection (7). Even if it were, however, that would not, as I will later indicate, be decisive of the issue in this case.

I return to counsel’s written submissions as they relate to the alleged effect of subsections (7.2), (7.3) and (7.4). The submissions do have a certain persuasive force. But even after considering them in the light of my analysis of Amoco, I am unconvinced. My reasons for being unconvinced will appear in a moment when I summarize my own conclusions leading to my proposed disposition of the case.

Section 44 of the Act is a difficult section; its relationship with section 59 is particularly difficult. The amendments to both sections enacted in 1980 seem to me, if anything, to have added to the difficulties already involved in seeking to understand the sections, particularly as they relate to the recovery of moneys paid in error; the amendments I have in mind are those which repealed subsections (6).and (7) and substituted the present subsections (6), (7) and (7.1), and repealed subsection 59(4); I suppose, however, it can be said that the amendments may at least have the advantage of removing the limitation imposed by subsection 59(4), whatever its significance may have been.

I have, of course, considered carefully both the oral and written submissions of counsel, and I have reached the following conclusions:

The right of Tambrands to recover under section 44 of the Act the sums in issue would, in the circumstances of this case, have to be based on the right created by paragraph 44(1)(c): “A . . . refund of any of the taxes imposed by this Act may be granted where the tax was paid in error." The declaration of the Tariff Board in Playtex, the declaration invoked by Tambrands in support of its claim, could not, in itself, create a right to a refund. It was simply a declaration, though an important declaration, to the effect that tampons are exempt from tax under the Act; as such, it is “final and conclusive” of that issue. The declaration would obviously be very important to Tambrands as an element in establishing that it had paid in error the taxes of which refund is claimed, but that would be its role.

For purposes of this case, I will assume in favour of Tambrands that Tambrands paid in error the moneys in issue; if this were not so, in the circumstances a basis for recovery would be lacking. I am of the view that subsection (7.1) is, therefore, applicable to Tambrands’ claim for refund of the moneys in issue. The critical question then becomes whether Tambrands' recovery is limited “in a substantive way” by the subsection. The relevant words of the subsection are: “. .. no refund . . . shall be granted . . . unless application . . . therefor is made . . . within four years after the moneys were paid . . .”. I realize that in Amoco the question whether these words impose what was termed a “substantive” or a “procedural” limitation was left open, the sums there claimed having been paid within the limitation period. But the answer is to me clear. The limitation is “substantive” in the Amoco sense of the word. Only those moneys can be recovered which were paid in the relevant four-year period. I would simply add that (possibly because of subsection 59(5)) no issue was raised in respect of May 29, 1978 being the appropriate limitation date.

I do not see why the Tariff Board’s declaration in Playtex that tampons are exempt from tax should prevent the application of subsection (7.1) to Tambrands' claim for refund. It is true that Tambrands invoked the declaration in support of its application, but, as I have said, its claim could only have been based on the right created by paragraph 44(1)(c). Despite the circumstance that subsection (7.1) is expressed to be “subject to subsection (7)”, I really do not see why Tambrands should not be subject to the “substantive limitation” imposed by subsection (7.1) merely because it might also have been subject to a “procedural limitation” under subsection (7) or might possibly have obtained some advantage under that subsection. And, at any rate, even if Tambrands was subject to the limitation in subsection (7), it satisfied the requirement as interpreted in Amoco: It would, I think, be strange if a taxpayer who succeeded in establishing entitlement to a refund by virtue of paragraph 44(1)(c) on the basis that he had paid taxes in error should escape the limitation imposed by subsection (7.1) merely because he or another taxpayer had obtained a favourable Tariff Board declaration under section 59. My reading of the relevant statutory provisions does not persuade me that the Playtex declaration or Tambrands’ invocation of it should have had that consequence.

The applicant has failed to establish the submission of error on which it relied. I would, therefore, dismiss the section 28 application. This being a section 28 application, I would not award costs.

Application dismissed.