MacPherson, J:—The Board of Revenue Commissioners achieved a certain amount of unjustified notoriety for appearing to hold in this matter that an aeroplane is a tractor and therefore exempt from provincial sales tax. The Minister, being dubious, appealed to this Court.
The present respondent and his brothers farm nine and one-half sections of land, of which the respondent owns two and one-half sections and rents another. Schmit bought the aircraft in question for use in this farming enterprise and particularly, of course, for spraying weeds and insects and seeding. It is designed and equipped and suitable only for agricultural purposes. It is unusable for pleasure flying. Its use is restricted to agricultural purposes and within 25 miles of Schmit’s home by its licence from the federal Department of Transport. The 25-mile limit has, on occasion, been lifted when Schmit has been required to use the aircraft for Government assistance in an emergency.
The evidence before the Board was that there are nearly 300 such aircraft in Saskatchewan and that almost all are owned by farmers. The amount of farm work done by them is very great. They are quick and efficient. They can, and do, apply weed killers or pesticides or seed. They can work when the time is right but when the soil is to wet for earth-bound equipment. The point of all this was properly accepted by the Board. The chairman said: “Oh, I think we are all very much aware that technology is moving so quickly that farming from the air is a fact of life.”
Schmit has a conventional aircraft which he uses for pleasure flying and upon which he has paid the tax.
The Education and Health Tax Act, RSS 1965, c 66 has been amended almost every year. In 1968, c 20, section 6, the former section 6 was replaced by the following:
6.(1) Subject to regulations made by the Lieutenant Governor in Council for the purpose of enlarging or restricting the meaning of any word or expression contained herein there are hereby specifically exempted from the provisions of this Act ... the following classes of tangible personal property sold at retail sales in Saskatchewan, that is to say:
19. farm implements and parts where they are purchased by a farmer for use solely in operation of his farm;
20. farm machinery and parts where they are purchased by a farmer for use solely in the operation of his farm;
(The emphasis is mine.)
The Regulation, Sask Reg 140/73, passed under the authority of section 6 [further am 1970, c 15, section 4; 1972, c 37, section 1; 1973, c 34, section 3; 1974-75, c 12, section 1; 1976, c 16, section 1] reads in part, as follows:
1. Pursuant to subsection (1) of section 6 of The Education and Health Tax Act, the following are the meanings to be given to the several of the words or expressions used in section 6:
(9) “farm implements” and “farm machinery” in paragraphs 19 and 20 of subsection (1) of section 6 of the Act means:
and here is a list of 59 implements and machinery including, for example, bale stookers, combines, cultivators, harrows and farm tractors. The difficulty faced by Schmit (and the Board) is that, although the aircraft in question is clearly and patently a farm implement or machine, it is not any one of the machines or implements listed. The Legislature specifically delegated the power of defining the meaning of the words to the Lieutenant-Governor in Council. With respect to farm implements and machines the effect of the Regulation is to restrict the meaning. There is no saving clause or other leeway in the interpretation of the Regulation.
The real problem is that the subject article, the aircraft, has wings and flies, and nothing in the Regulation possesses the same attributes.
The media have been having a little unfair fun with the Board. The Board did not say that the aircraft is a tractor. They said this: “Where the regulations do not specifically itemize an agricultural machine as is the case with regard to ‘sky tractors’, it is necessary to apply a reasonable interpretation.” The term “sky tractors” arose in the evidence before the Board. Some agricultural pilots, they were told, refer to their equipment as “sky tractors” and some manufacturers advertise their product as such.
In effect, the Board is saying this: Because the aircraft is so obviously a farm implement and because the Act says that farm implements are exempt from tax, therefore, the aircraft must by covered by the Regulation and therefore exempt. It is saying further, that because the aircraft does so much work that is done by a tractor in the fields, the logical category for it under the Regulation is “farm tractor”.
These are the points upon which the Minister takes issue with the Board’s decision.
I must agree with the Minister. It does not matter what “farm equipment” or “farm machinery” may mean in their widest or ordinary sense. Those phrases mean what the Regulation says they mean. Section 6 of the Act is clear in that respect. Thus the question is not whether the subject aircraft is a farm implement but whether it is a farm implement within the meaning of the Act and that, of course, means within the meaning of the Regulation.
Driedger, The Construction of Statutes (1974), puts it this way at p 5:
... there is a question whether a word does or does not in a particular context have a meaning it is capable of bearing in the abstract; this is a question of scope. A marriage abroad is a marriage, but is it a marriage within the meaning of the Royal Marriages Act? A woman is a person but is a woman a person within the meaning of the Senate provisions of the British North America Act? And words, however general, may be limited with respect to the subject-matter in relation to which they are used.
Then, too, there is the rule of interpretation usually shown in the Latin maxim expressio unius exclusio alterius. It means that the mention of one or more things of a particular class may be regarded as silently excluding all other members of the class: see Maxwell on Interpretation of Statutes, 12th ed (1976), p 293. In this instance, the application of the maxim results in the exclusion of all farm implements not specifically mentioned in the Regulation. Thus, agricultural aircrafts are excluded from the exemption.
If the law is wrong or unjust, it can only be set right by an amendment to the Act by the Legislature or to the Regulation by the Lieutentant-Governor in Council. The power to legislate is in those bodies, not in the Board or in this Court.
The appeal is therefore allowed.
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