Thurlow, J (per curiam):
1 This appeal is from a judgment of the Trial Division which dismissed the appellant's claim for repayment of money paid by Dominion Engineering Works Limited as taxes in respect of the sale price of a paper making machine constructed by Dominion Engineering Works Limited for the appellant and installed in the appellant's premises by an engineering firm known as Rust Associates Ltd.
2 In the Trial Division the claim was heard jointly with a similar claim by The Price Company Limited on some evidence common to both and on an agreed statement of facts which is set out in full in the reasons for judgment of the learned trial judge. For present purposes a brief outline will be sufficient.
3 The contract for the construction and sale of the machine by Dominion Engineering Works Limited was made in June 1966. It provided for payment of the purchase price of some five million dollars in twelve specified instalments on various dates extending over the period from December 31, 1965 to September 30, 1967 and that all applicable sales taxes should be payable by the purchaser. It also provided that title to the machine should not pass to the purchaser until the price was fully paid. At the time when the petition of right was brought the machine had been installed and was in operation but some $58,000 of the purchase price had not yet been paid.
4 Between December 23, 1965 and March 8, 1967 nine instalments of the purchase price totalling some $4,000,000 were paid, as required by the contract, together with the amounts necessary to pay the sales taxes in effect as they accrued due and amounts totalling $440,000 were paid by Dominion Engineering Works Limited to the Receiver General for Canada in payment of the sales tax on such instalments. Of this some $172,539 was later remitted to Dominion Engineering Works Limited as a result of changes in the tax rate during the period. The appellant's claim is for payment of the remainder of the $440,000, that is to say, $267,460.62.
5 Shortly put, the basis of the claim is that no tax was payable in respect of the instalments of the purchase price because before the contract for the sale of the machine matured into a sale, sales of such machinery had been exempted from tax and so no tax was imposed in respect of the sale of the machine in question. The Crown does not accept this position and also challenges the right of the appellant to reimbursement from the Crown even if no tax was payable.
6 Subsection 30(1) of the Excise Tax Act, which was in effect with no material change throughout the relevant period, provided as follows:
30. (1) There shall be imposed, levied and collected a consumption or sales tax of nine per cent[FN1: <p>The rate has varied from time to time and in addition there is a 3% oldage security tax collected with it.</p>] on the sale price of all goods- (a) produced or manufactured in Canada
(i) payable, in any case other than a case mentioned in subparagraph (ii) or (iii), by the producer or manufacturer at the time when the goods are delivered to the purchaser or at the time when the property in the goods passes, whichever is the earlier
(ii) payable, in a case where the contract for the sale of the goods (including a hire-purchase contract and any other contract under which property in the goods passes upon satisfaction of a condition) provides that the sale price or other consideration shall be paid to the manufacturer or producer by instalments (whether the contract provides that the goods are to be delivered or property in the goods is to pass before or after payment of any or all instalments), by the producer or manufacturer pro tanto at the time each of the instalments becomes payable in accordance with the terms of the contract, and
Subsection 32(1) which was also in the Act at all relevant times read as follows:32. (1) The tax imposed by section 30 does not apply to the sale or importation of the articles mentioned in Schedule III.
7 Machines of the kind in question were not mentioned in Schedule III at the time when the contract was made but by Statutes of Canada 1967–68, c 29, subsection 11(1), Schedule III was amended so as to include:
and by subsection 13(1) it was provided that13. (1) Sections 5 and 12 and subsections (1) (3), (4), (6) and (10) of section 11 of this Act shall be deemed to have come into force on June 2, 1967, and to have applied to all goods mentioned therein imported or taken out of warehouse for consumption on or after that day and to have applied to goods previously imported for which no entry for consumption was made before that day.
8 The appellant's contention with respect to the meaning of subparagraph 30(1)(a)(ii) was founded largely on a passage in the judgment of Rand, J in The King v Dominion Engineering Company Limited, [1944] S.C.R. 371 at 375, where, in discussing the statutory provision then in effect, the learned judge referred to the total tax payable thereunder in an instalment sale contract situation as being inchoate pending completion of the contract and as depending for its efficacy upon the maturing contract, and counsel went on to point out that in that statute there was a provision deeming the transactions to be sales, which does not appear in subparagraph 30(1)(a)(ii). In my opinion there are manifest differences between the legislation interpreted in the Dominion Engineering case and that applicable to the pre sent case and it is a wrong approach to the interpretation of the applicable provision to seek its meaning by a search for differences in it from former legislation. The correct approach, as I understand it, is to read the section to be construed to see what it says and if the meaning is plain that is the end of the matter.
9 So approaching subsection 30(1) it appears to me that the meaning of subparagraph (ii) of paragraph (a) is not influenced by subparagraph (i) because subparagraph (i) applies only to situations not included in subparagraphs (ii) and (iii) and that what subparagraph (ii) does is to identify the person upon whom the tax is imposed in cases of transactions of the kinds therein described and to prescribe the events upon which tax becomes payable. The events so prescribed are the accruals of instalments in accordance with the terms of the contract and neither the time when the contract matures into a sale nor the time of delivery of the goods nor the time when title passes is of any significance. The effect, in my opinion, is to impose tax immediately and unconditionally upon each instalment of the price of goods sold on an instalment payment basis as the instalment falls due. It may be that liability for tax on the remainder of the price remains inchoate in the sense that it is dependent on the future instalments becoming due under the agreement and it may also be that even tax paid on accrued instalments may become refundable if a total rescission of the agreement of sale occurs but it appears to me to be plain from the language of the subparagraph that (subject to such possible exigencies) liability for the tax attaches once and for all on the instalment of price as it accrues due. The liability, as I see it, is not one to make an advance or payment on account of a total tax on the total price, to become final upon the contract maturing into an actual sale. So long as there is a “maturing contract” or a continuing executory agreement for a sale or other transaction referred to in the subparagraph the tax so imposed on the instalment of the price is final as to that portion of the price and no actual sale is necessary to support it.
10 Moreover, so far as the reasoning of Rand, J in the Dominion Engineering case may be applicable there is nothing in the foregoing which in my view is not in accord with it.
11 On the facts of the present case there was at all material times up to and including the date of the presentation of the appellant's petition of right a subsisting executory contract for the sale of the machine to support the imposition of the tax which had accrued and had been paid on the instalments which became due prior to the amendment of the statute which provided that from June 2, 1967 the tax imposed by section 30 should not apply to the sale of the goods in question. The effect of this was that no tax became payable on instalments of the price which became payable after that date but the provision of a particular date for commencement of the amendment[FN2: <p>The amending Act was assented to March 7, 1968.</p>] in my opinion makes clear that it was to have no further retroactive effect. The tax payments of which recovery is sought all became payable under the statute as it existed when they were made and in my opinion the amendment placing such goods on the exempt list from that date has not had the effect of making the instalments in question not subject to tax or the tax paid in respect of them repayable.
12 With respect to the other point, even if it is accepted that the tax already paid became non-exigible and therefore returnable, that recovery is not barred by any of the limitation provisions in section 46 of the Excise Tax Act and that for that reason the decision of the Supreme Court in The Queen v M Geller Inc, [1963] S.C.R. 629, on which the learned trial judge relied, is not strictly applicable (which it is not necessary to decide) the appellant in my opinion has established no right against the Crown to recover the amount claimed. The fact as asserted by counsel that the appellant was the only person interested in obtaining reimbursement of the money is not, in my opinion, sufficient to afford the appellant a right of action therefor against the Crown because no tax was imposed upon or received from the appellant, and in my view it cannot be affirmed that as against the Crown the appellant was ever the owner of the money which the Crown received from Dominion Engineering Works Limited as payments of the tax.
13 I would dismiss the appeal with costs.
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