E W Bickle LTD v. The Minister of National Revenue, [1981] CTC 25, 81 DTC 5013

Urie, J:—This is a section 28 application to review and set aside a decision of the respondent made pursuant to the Excise Tax Act, RSC (1970) c E-13 (hereinafter called “the Act”), wherein he held that two publications, The Century 21 Gold Post and Real Estate Victoria are not “newspapers for the purpose of the exemption from federal sales tax provided in section 3 of Part III of Schedule III of that Act.

This matter has been the subject of a previous section 28 application by the same applicant. That application resulted in a judgment of this Court referring the matter back to the Minister for reconsideration on the basis of the application of the statute to the facts as disclosed in the material submitted to the Minister. The reasons for judgment of the Court disclose that the respondent in making the decision there under review, found the two publications, which are the subject of this application to be taxable on the following basis:

The weekly publication Real Estate Victoria . .. has been examined, as it contains over 95% advertising has also been ruled to be a taxable publication.

The Century 21 Gold Post, issued on a random basis, containing 100% advertising is a taxable publication . ..

It is common ground that the descriptions accurately depict the contents of each publication at issue herein.

In the impugned Ministerial decision in that application two other of the applicant’s publications were also fount not to be covered by the exemption provisions of the Act. In that decision the Minister made the following findings in respect of all four publications:

I have examined these publications and have found that they are essentially advertising circulars. Publications of this kind have not been granted exempt status as newspapers, and I can only confirm the previous decisions that they are subjec to sales tax.

I have noted your reference to the case of “The King v Montreal Stock Exchange and Exchange Printing Co” and I must tell you that, over the years, this case has been mentioned by other persons writing to my Department. After reference to legal counsel, our position is that it is not a precedent and does not preclude the exercise of statutory discretion conveyed to the Minister of National Revenue by the Excise Tax Act.

The authority for the Minister’s decision both in this case and in the previous case is found in section 27 of the Act which imposes a sales tax on goods produced or manufactured in, or imported into, Canada and in subsection 29(1) thereof, which exempts from that tax articles mentioned in Schedule III to the Act. As previously noted, section 3 of Part III of Schedule III mentions, inter alia, “newspapers”. It reads as follows:

3. College and school annuals; magazine and literary papers unbound regularly issued at stated intervals not less frequently than four times yearly; newspapers; sheet music; materials for the use exclusively in the manufacture thereof.

At the end of Part III appear the following words:

The Minister shall be the sole judge as to whether any printed material comes within any of the classes mentioned in sections 1, 3, 5 and 8 of this Part.

In the reasons for judgment of the Court, delivered by Jackett, CJ, as he then was, on March 27, 1979, [1979] CTC 228 at 232, appear the following paragraphs:

Very briefly, as I understand it, there has been a long standing exemption of “newspapers” from sales tax under the Excise Tax Act and, more recently, the Minister has been made the “judge” of whether a particular publication falls within the exemption. The Minister has not, however, as I understand the statute, been empowered, arbitrarily or otherwise, to vary the ambit of the exemption. In making a decision as to whether the exemption applies, the Minister’s duty as I conceive it, is to find the facts and apply the exempting words. In this case, the vital word—newspaper—has been the subject of a judgment of the Supreme Court of Canada and, in making his decision, the Minister had rejected that judgment and has laid claim to a “statutory discretion”, which he apparently, regards as giving him a power to vary the ambit of the exemption from what it would be if the Supreme Court’s view were applied. In taking this view, I am of opinion that the Minister erred in law, as I find nothing in the statute empowering him to do anything other than be the “judge” as to whether the law contained in the particular section of Part III applied to the facts before him.

I am further of opinion that it cannot be said that the Minister’s decision might not have been different if he had applied the ordinary meaning of the word “newspaper” instead of applying, as it seems probable that he did, the arbitrary definition that had already been conveyed by his Department to the Applicant. While I recognize the opinions may differ, when I read the publications that were the subject matter of the decision attacked in the light of the Supreme Court’s judgment in the Montreal Stock Exchange case, I can see room for the conclusion that they are “newspapers” even though they consist exclusively, or almost exclusively of advertisements. As I understand them, they are not mere “advertising circulars” in the sense of advertising by the person who distributes them. On the contrary they contain information (news) as to what is available in particular fields of commerce even though such information is conveyed by way of advertising by third parties who have things to sell. (emphasis added).

The reference to the Supreme Court decision in the Stock Exchange case is to The King v Montreal Stock Exchange Printing Co, [1935] SCR 614; [1935-37] CTC 107; 1 DTC 307. That is also the case to which reference was made in the excerpt from the Minister’s decision in the earlier section 28 application quoted above.

The relevant portion of the reasons for judgment of that case read as follows:

For some years the Montreal Stock Exchange and later the Exchange Printing Company printed, about noon of each day that the Exchange was in session, a sheet showing the transactions on the Exchange during the morning, and in the afternoon a similar record of the transactions for the remainder of the day. In like manner were published the transactions on the Montreal Curb market. Each week was printed a “comparative review of transactions” on the Exchange and a “comparative review of transactions” on the curb.

These sheets from time to time contained notices of dividends, annual meeti and the loss of certificates, in connection with companies whose stock was listed on the Exchange. The weekly publications besides summaries of the week’s business, contained a tabulation comparing the business of that particular week with the business of the corresponding week in the previous year.

The members of the Exchange formed the greater bulk of the users of these sheets for which they paid on a sliding scale but copies were also exchanged with similar institutions in Canada and the United States. Some were sold to outsiders and the result of the evidence of the acting secretary-treasurer of the Exchange is that any member of the public might become a subscriber.

The term “newspaper” is not defined in the Act and while we were referred to various definitions in other Dominion and provincial statutes, the statement of the present Chief Justice, in delivering the judgment of the Court in Milne-Bingham Printing Co Limited v The King, ([1930] SCR 282, at 283) is peculiarly appropriate.

The usage of that word in other statutes may be looked at, if the other statute happens to be in para materia, but it is altogether a fallacy to suppose that because two statutes are in para materia, a definition in one can be bodily transfered to the other . ..

In the instant case, the word under discussion is not defined in any statute in pari materia and it remains only to give to it the ordinary meaning that it usually bears. Webster’s New International Dictionary may be taken as giving definition of “newspaper” which is expressed in corresponding terms in other well recognized dictionaries:

a paper printed and distributed at stated intervals . . . to convey news . . . and other matters of public interest.

The sheets in question meet these requirements; the mere fact that any particular publication is meant to interest only a section of the public does not limit the meaning of the expression as a reference to religious or fraternal publications will at once make clear. The sheets in question contain not merely a record of transactions on the Exchange or curb market but also information to those desiring it as to such transactions; and the other items from time to time included give “tidings, new information, fresh events reported,” (vide Concise Oxford Dictionary defining “news”).

Being of opinion that the publications are newspapers for the purposes of the Special War Revenue Act, the respondents have brought themselves within the language of an exempting proviso. Dominion Press Limited v Minister of Customs and Excise. ([1928] AC 340.)

The matter having been remitted to the respondent was considered by him as directed with the result that a new decision was rendered in respect of the four publications, the relevant portion of which follows:

I have reviewed these publications in light of the judgment rendered by the Federal Court of Appeal in “E W Bickle and the Minister of National Revenue”, and I have concluded that the publications “Rapid Auto Mart Magazine” and “Buy Sell & Trade” are newspapers for purposes of the Excise Tax Act.

By applying the same considerations to “The Century 21 Gold Post” and “Real Estate Victoria” I have concluded these publications not to be newspapers and therefore subject to federal sales tax. (emphasis added)

It is that portion of the decision embodied in the second paragraph above quoted which is the basis of this section 28 application.

Counsel for the applicant first submitted that the Respondent was not entitled to rule that the two publications at issue herein are not newspapers because, in his view, that matter had been rendered res judicata by virtue of this Court’s decision in the previous section 28 application. I cannot agree. It is quite clear that all that the Court did in the previous decision is to find that the Minister was not entitled to hold, as he did, that .. it [the Montreal Stock Exchange case] is not a precedent and does not preclude the exercise of statutory discretion conveyed to the Minister of National Revenue by the Excise Tax Act.” The Chief Justice did say that . . . I can see room for the conclusion that they are newspapers. . . but that is not a finding which bound the Minister. In my opinion, it only served to indicate to the Minister that, in light of the Montreal Stock Exchange case, he might form the opinion that the publications were newspapers. That decision was one to be made by him, not the Court, and the Court did not decide the question. The question of whether or not the publications which are the subject of this application are newspapers is thus not res judicata.

The question of the jurisdiction of this Court to entertain an application to review the Minister’s decision in this case was raised by the Court but both counsel agreed that since it was held in the first Bickle case that such a decision was reviewable, that aspect of the matter was not in issue in this proceeding. Because of that, I am assuming for purposes of htis application, that the Minister’s decision under review herein is amenable to such a review under section 28 of the Federal Court Act.

Respondent counsel’s next submission was that on the basis of the Montreal Stock Exchange case, supra, the Minister erred in failing to find that the publications which are the subject matter of this application are newspapers because they meet the criteria required by that case to be used by him in judging their tax status for the purpose of the exemption provided in Schedule III of the Act.

The short answer to that submission, it seems to me, is that it is implicit from the excerpt from the Minister’s ruling which was quoted earlier herein that, in accordance with the Court’s direction, he reconsidered his decision in light of the reasons for judgment in that case. They required that he make his ruling bearing in mind what had been said by the Supreme Court of Canada in the Montreal Stock Exchange case on the meaning of the word “newspaper”. Not only does his ruling make it clear that he did so but, perhaps more importantly, he demonstrated that he did so by reversing his previous decision in respect of two of the applicant’s publications by finding that they are newspapers within the meaning of the exempting provisions of the Act. He, thus, performed his duty of finding the facts and applying the exempting words. This is what is required of him by the final paragraph of Part III of Schedule III to the Act.

Essentially what he had to do is formulate an opinion. Facts must be established to enable the opinion to be reached. There is no question that on the record there was evidence upon which he could properly have reached the conclusion that the publications in issue in the case at bar were not newspapers for the purpose of the exempting provisions of the Act. That being so and it being clear that he had regard to the law relating to the issue we ought not to interfere with the decision the Act calls upon him to make. If we were to give effect to appellant counsel’s submission, we would have to refer the matter back to the Minister requiring him to find that the publications are newspapers. In effect, then, we would be substituting our opinion for his. This we cannot do.* [1]

Accordingly, I would dismiss the section 28 application.