'.
TASCHEREAU,
J.:—During
the
relevant
periods,
the
respondent
was
engaged
in
the
processing
of
raw
sheepskin
which
it
transformed
into
finished
mouton
skins
and
shearling.
It
alleges
in
its
petition
that
from
March
30,
1950
to
January
29,
1952,
it
was
called
upon
and
forced
to
pay
to
the
Department
of
National
Revenue
a
total
excise
tax
amounting
to
$25,269.76,
which
it
did
not
owe.
It
was
its
contention
that
sheepskins,
as
processed
and
sold
to
its
clients,
were
not
subject
to
the
excise
tax
claimed
by
the
appellant.
The
Exchequer
Court
allowed
the
petition
and
held
that
the
respondent
had
the
right
to
claim
from
the
appellant
$24,681.00
with
costs.
The
tax
is
imposed
by
the
Excise
Tax
Act
(R.S.C.
1952,
e.
100,
Section
24)
(formerly
R.S.C.
1927,
c.
179,
Section
80A)
which
reads
as
follows
:
24.
(1)
There
shall
be
imposed,
levied
and
collected,
an
excise
tax
equal
to
fifteen
per
cent
of
the
current
market
value
of
all
dressed
furs,
dyed
furs
and
dressed
and
dyed
furs,
(i)
imported
into
Canada,
payable
by
the
importer
or
transferee
of
such
goods
before
they
are
removed
from
the
custody
of
the
proper
customs
officer
;
or
(ii)
dressed,
dyed,
or
dressed
and
dyed
in
Canada,
payable
by
the
dresser
or
dyer
at
the
time
of
delivery
by
him.”’
In
Universal
Fur
Dressers
and
Dyers
Limited
v.
The
Queen,
[1956]
S.C.R.
632,
it
was
held
that
sheepskin
cannot
be
described
as
a
fur,
and
that
therefore,
in
that
case,
Section
80A
of
the
Excise
Tax
Act
could
not
find
its
application.
In
the
present
case,
the
appellant
admits
that
mouton
is
not
a
fur
and
that
no
tax
is
payable
on
the
processing
of
sheepskin
into
mouton
products.
The
grounds
on
which
the
appellant
relies
are
the
following,
with
which
I
will
presently
deal.
It
is
first
submitted
on
behalf
of
the
appellant
that
the
respondent
is
barred
from
claiming
any
refund
as
it
failed
to
make
any
application
in
writing
within
two
years
after
the
moneys
were
paid
or
overpaid
(Section
46(6),
of
the
Act,
1952
R.S.C.,
e.
100).
This
section
applies,
when
the
payment
has
been
made
by
mistake
of
law
or
fact,
but
I
do
not
think
that
such
is
the
case
here.
The
officers
of
the
company
were
not
mistaken
as
to
the
law
or
the
facts.
They
had
been
in
the
fur
business
since
many
years,
and
it
was
in
1950
that
they
commenced
the
processing
of
raw
sheepskins.
When
they
started
that
business,
they
immediately
received
the
visit
of
two
inspectors
of
the
Excise
Department,
with
whom
they
had
numerous
discussions
in
the
course
of
which
they
continuously
maintained
that
mouton
was
not
a
fur,
and
therefore
not
subject
to
the
tax.
After
being
told
that
they
would
be
“closed
up’’
if
they
did
not
pay,
they
decided,
with
the
agreement
of
the
inspectors,
to
pay
‘‘under
protest’’.
This
was
done
from
March
23,
1950
until
September
7,
1951,
and
all
the
fiftyeight
cheques
were
endorsed
“paid
under
protest”
or
‘‘tax
paid
under
protest”’.
The
evidence
is
clear
to
me
that
there
was
on
the
part
of
the
officers
of
the
company
no
error
of
law.
They
had
the
conviction
that
they
did
not
owe
the
tax,
and
their
numerous
discussions
with
the
departmental
officers,
and
the
payments
made
under
protest,
negative
any
suggestion
of
a
mistake
of
law.
At
that
time,
other
firms
engaged
in
the
same
business
as
the
respondent
had
contested
the
validity
of
this
tax
and
had
refused
to
pay
it.
A
test
case
was
made,
and
a
few
years
later
this
Court,
in
Universal
Fur
Dressers
v.
The
Queen,
[1956]
S.C.R.
632,
held
that
the
tax
was
not
payable.
The
respondent’s
officers
were
aware
of
the
position
taken
by
the
others
operating
in
the
same
field,
and
of
their
refusal
to
comply
with
the
request
of
the
Department.
When
the
respondent
finally
decided
to
pay
under
protest,
I
am
quite
satisfied
that
it
was
not
because
the
officers
were
mistaken
as
to
the
law;
they
were
fully
aware
of
their
legal
position,
and
had
repeatedly
set
forth
their
contentions
to
the
Department’s
officers
from
the
beginning
of
the
discussions
in
1950.
There
being
no
mistake
of
law
or
fact,
Section
46(6)
does
not
apply,
and
therefore
the
failure
by
the
respondent
to
give
a
written
notice
is
not
a
bar
to
the
present
proceedings.
I
do
not
agree
with
the
trial
judge
who
says
in
his
reasons,
although
he
allows
the
claim,
that
the
respondent
paid
as
a
result
of
a
mistake
of
law.
The
respondent
is
not
bound
by
this
pronouncement,
and
is
of
course
entitled
to
have
the
judgment
upheld
for
reasons
other
than
those
given
in
the
court
below.
The
true
reason
why
the
payments
were
made
under
protest,
is
that
the
respondent
wished
to
continue
its
business
and
feared
that
if
it
did
not
follow
the
course
that
is
adopted,
it
would
be
“closed”.
Eli
Abramson,
one
of
the
officers
of
the
respondent
says
in
his
evidence
:
“Q.
What
were
you
told
by
the
officers
of
the
Department
with
whom
you
were
discussing
this?
A.
Well,
they
told
me
I
have
to
pay
the
tax.
So,
I
says,
Why
do
I
have
to
pay
the
tax?’
They
said
‘If
you
don’t
pay
the
tax
we
will
close
you
up,
because
that
is
the
law,
and
you
must
pay
the
tax.’
”’
This
statement
is
not
denied
by
the
two
inspectors
who
were
called
as
witnesses.
Instead
of
seeing
their
business
ruined,
which
would
have
been
the
inevitable
result
of
their
refusal
to
pay
this
illegal
levy,
they
preferred,
as
there
w
as
no
other
alternative,
to
comply
with
the
threatening
summons
of
ii
e
inspectors.
As
Abramson
says:
“Well,
if
I
have
to
pay,
I
feel
I
am
going
to
pay
it
under
protest.”
This
is
what
was
done,
and
I
am
satisfied
that
the
payments
made
were
not
prompted
by
the
desire
to
discharge
a
legal
obligation,
or
to
settle
definitely
a
contested
claim.
The
pressure
that
was
exercised
is
sufficient,
I
think,
to
negative
the
expression
of
the
free
will
of
the
respondent’s
officers,
with
the
result
that
the
alleged
agreement
to
pay
the
tax
has
no
legal
effect
and
may
be
avoided.
The
payment
was
not
made
voluntarily
to
close
the
transaction.
Vide:
Maskell
v.
Horner,
[1915]
K.B.
106
at
page
118,
also
Atlee
v.
Backhouse,
3
M.
&
W.
633
at
pages
646
and
650
;
Knutson
v.
Bourkes
Syndicate,
[1941]
S.C.R.
419;
The
Municipality
of
the
City
and
County
of
St.
John
et
al.
v.
Fraser-Brace
Overseas
Corporation
et
al.,
[1958]
S.C.R.
263.
As
it
was
said
in
Valpy
v.
Manley,
1
C.B.
594
at
pages
602
and
603,
the
payment
was
made
for
the
purpose
of
averting
the
threatened
evil,
and
not
with
the
intention
of
giving
up
a
right,
but
with
the
intention
of
preserving
the
right
to
dispute
the
legality
of
the
demand.
The
threats
and
the
payments
made
under
protest
support
this
contention
of
the
respondent.
Vide
:
The
City
of
London
v.
London
Club
Ltd.,
[1952]
O.R.
177.
Of
course,
the
mere
fact
that
the
payment
was
made
‘under
protest’’
is
not
conclusive
but,
when
all
the
circumstances
of
the
case
are
considered,
it
flows
that
the
respondent
clearly
intended
to
keep
alive
its
right
to
recover
the
sum
paid
(vide
supra).
In
Her
Majesty
the
Queen
v.
Beaver
Lamb
and
Shearling
Co.
Lid.,
decided
by
this
Court,
[1960]
S.C.R.
505,
the
situation
was
entirely
different.
The
majority
of
the
Court
reached
the
conclusion
that
the
company
paid
as
a
result
of
a
compromise
and
that
there
was
no
relation
between
the
agreement
that
was
reached
and
the
threats
that
had
been
made.
The
payment
was
made
voluntarily
to
prevent
all
possible
litigation,
and
to
bring
the
matter
to
an
end.
I
must
add
that
in
the
province
of
Quebec,
the
law
is
substantially
in
harmony
with
the
authorities
that
I
have
already
cited.
The
consent
to
an
agreement
must
be
legally
and
freely
given.
This
is
an
essential
requisite
to
the
validity
of
a
contract.
Moreover,
I
think
that
Section
998
of
the
Civil
Code
applies,
as
the
respondent
who
did
not
owe
any
amount
to
the
appellant
was
unjustly
and
illegally
threatened
in
order
to
obtain
its
consent.
Sections
1047
and
1048
of
the
Civil
Code
do
not
apply,
and
are
not
a
bar
to
respondent’s
claim.
These
sections
suppose
the
existence
of
an
error
of
law
or
of
fact,
which
does
not
exist
here.
It
has
been
submitted
by
counsel
for
the
appellant
that
the
pleadings
are
insufficient
and
not
specific
enough
to
justify
a
finding
of
duress
or
compulsion.
In
paragraph
6
of
its
petition,
the
respondent
alleges
that
it
was
“called
upon
and
forced
to
pay"
the
tax.
The
respondent
could
have
been
asked
to
furnish
particulars,
but
the
appellant
did
not
choose
to
follow
that
course
of
action.
I
am,
therefore,
of
the
opinion
that
this
allegation
is
sufficient
to
allow
the
evidence
that
was
adduced
at
trial.
I
would
dismiss
the
appeal
with
costs.
CARTWRIGHT,
J.
:—For
the
reasons
given
by
my
brother
Taschereau
and
those
given
by
my
brother
Fauteux
I
would
dismiss
the
appeal
with
costs.
FAUTEUX,
J.:—This
is
an
appeal
from
a
judgment
of
the
Exchequer
Court
maintaining
respondent’s
claim
and
declaring
that
it
is
entitled
to
recover
from
appellant
the
sum
of
$24,681.
It
is
admitted
that
this
amount
was
paid
by
respondent
to
appellant,
between
March
1950
and
January
1952;
that
the
payment
of
that
sum
was
exacted
from
the
former
by
the
latter
as
excise
tax
purported
to
be
imposed,
under
the
Excise
Tax
Act,
1927
R.S.C.,
c.
179
and
its
amendments,
on
the
processing
of
sheepskins
into
mouton
products;
that
these
moneys
were
paid
by
means
of
a
number
of
cheques
issued
every
month
throughout
the
period,
all
of
these
cheques,
with
very
few
exceptions,
bearing
on
the
back
the
words
“paid
under
protest”
or
‘‘tax
paid
under
protest’’;
and
that,
at
all
relevant
times,
no
such
tax
was
imposed
by
the
Excise
Tax
Act
on
the
processing
of
sheepskins
into
mouton
products,
as
it
was
indeed
eventually
decided
by
this
Court
in
Universal
Fur
Dressers
and
Dyers
Limited
v.
Her
Majesty
the
Queen,
[1956]
S.C.R.
632.
The
only
question
in
issue
is
as
to
the
right
of
respondent
to
obtain
reimbursement
of
these
moneys.
It
is
convenient
to
say
immediately
that
the
claim
of
respondent
is
not
that
it
paid
these
moneys
by
mistake
of
either
law
or
fact,
but
under
illegal
constraint
giving
a
right
of
reimbursement.
That
this
is
really
the
true
nature
of
the
claim
appears
from
the
petition
of
right.
It
is
therein
alleged
that
from
the
beginning
and
throughout
the
period
during
which
these
moneys
were
exacted,
there
were,
between
the
officers
of
the
Department
of
National
Revenue
and
those
of
the
respondent
company,
numerous
discussions
in
the
course
of
which
the
latter
(i)
claimed
that
no
excise
tax
could
be
imposed
on
these
sheepskins;
(ii)
demanded
that
the
officers
of
the
Department
alter
their
illegal
attitude;
(iii)
opposed
the
payment
of
such
tax
which
it
was
“forced”
to
pay
and
which
it
did
pay
under
protest
at
the
suggestion
of
the
officers
of
the
Department.
Surely,
one
who
makes
such
allegations
and
says
that
he
did
pay
under
protest
does
not
indicate
that
he
was
under
the
impression
that
he
owed
the
money
and
that
he
paid
through
error.
As
was
said
by
Taschereau,
J.,
in
Bain
v.
City
of
Montreal,
8
S.C.R.
252,
at
the
bottom
of
page
289:
“Of
course,
one
who
pays
through
error,
cannot
protest:
he
is
under
the
impression
that
he
owes,
and
has
nothing
to
protest
against,
or
no
reasons
to
protest
at
all.”
Furthermore,
the
evidence
adduced
by
respondent
is
consistent
with
this
view
as
to
the
nature
of
the
claim.
Indeed
the
evidence
accepted
by
the
trial
judge
shows
that,
to
the
knowledge
of
the
officers
of
the
Department,
other
processors
in
the
trade
entertained
the
view
that
such
a
tax
was
not
authorized
under
the
Act.
It
also
shows
that
respondent,
who
was
opposed
to
its
payment,
would
not
have
paid
it,
as
it
did
under
protest,
had
not
its
officers
been
intimidated,
threatened
by
those
of
the
Department,
and
in
fear
of
the
greater
evil
of
having
their
business
closed
up.
The
trial
judge
so
found
and,
in
this
respect,
expresses
himself
as
follows:
“Il
n’y
a
pas
de
doute
qu’elle
ne
les
aurait
pas
payés
si
elle
n’avait
pas
été
intimidée
par
les
remarques
et
informations
des
officiers
du
Ministère
du
Revenu
National,
à
l’effet
qu’elle
devait
payer
parce
que
c’était
la
loi
et
qu’au
cas
de
refus,
elle
pourrait
voir
son
entreprise
close.”
Having
said
this,
the
trial
judge
continues:
“La
preuve
m’autorise,
je
crois,
à
conclure
qu’elle
a
réellement
pensé
qu’elle
davit
payer
et
que
la
taxe
était
exigible;
le
paiement
a
done
été
fait
par
erreur.
Dans
ces
circonstances,
il
est
logique
le
croire
que
son
consentement
au
paiement
a
été
vicié
par
les
représentants
de
l’autorité
et
que
les
paiements
n’ont
pas
été
faits
volontairement
mais
par
suite
d’erreur
et
de
crainte
d’un
mal
sérieux.”
(The
italics
are
mine.)
I
agree
with
the
trial
judge
that
these
payments
were
not
voluntary
payments,
but
involuntary
payments
made
because
of
fear
of
the
serious
consequences
threatened.
I
must
say,
however,
that
I
find
it
difficult
to
reconcile
that
conclusion,
which
is
supported
by
the
evidence,
with
the
statement
that
these
payments
were
made
through
error.
And
if
the
trial
judge
really
meant
that
the
payments
were
made
through
error,
in
the
sense
that
respondent
officers
really
thought
that
they
owed
these
moneys
to
the
appellant,
I
must
say,
with
deference,
that
such
an
inference
is
not
supported
by
the
evidence.
The
right
of
respondent
to
be
reimbursed
these
moneys,
which
it
paid
to
appellant,
involves
the
consideration
of
two
questions:
(i)
Whether,
under
the
general
law,
there
is,
in
like
circumstances,
a
right
to
recover
moneys
paid,
and,
in
the
affirmative,
(ii)
Whether
this
right
to
recover,
under
the
general
law,
is
barred,
in
the
present
instance,
by
any
of
the
statutory
provisions
of
the
Excise
Tax
Act.
The
first
question
must
be
decided
according
to
the
principles
of
the
civil
law
of
the
province
of
Quebec
where
the
facts
leading
to
this
litigation
took
place
and
where,
in
particular,
these
payments
were
made.
Section
998
of
the
Civil
Code,
relating
to
the
incidence
of
constraint
as
affecting
consent,
reads
as
follows:
“If
the
violence
be
only
legal
constraint
or
the
fear
only
of
a
party
doing
that
which
he
has
a
right
to
do,
it
is
not
a
ground
of
nullity,
but
it
is,
if
the
forms
of
law
be
used
or
threatened
for
an
injust
and
illegal
cause
to
extort
consent.’’
In
Wilson
et
al.
v.
The
City
of
Montreal,
1
Legal
News
242,
the
Superior
Court
condemned
respondent
to
repay
the
appellants
moneys
it
had
collected
from
them
under
an
illegal
assessment
roll
made
to
defray
the
costs
of
certain
municipal
improvements.
These
moneys
were
paid
under
protest,
as
evidenced
by
the
receipt
obtained
from
the
city
and
which
read:
“Received
from
the
Hon.
Charles
Wilson,
the
above
amount
which
he
declares
he
pays
under
protest
and
to
save
the
proceedings
in
execution
with
which
he
says
he
is
threatened.”
This
judgment,
being
appealed,
was
confirmed
by
the
Court
of
Appeal,
3
Legal
News
282.
In
The
Corporation
of
Quebec
v.
Caron,
10
Lower
Canada
Jurist
317,
the
Court
of
Appeal
again
confirmed
a
judgment
condemning
the
city
to
reimburse
a
payment
made,
not
by
error,
but
“sciemment”
by
Caron,
under
protest.
The
claim
of
the
city
was
for
arrears
of
water
rate
and
it
had,
in
like
eases,
the
power
to
shut
off
the
w
ater.
The
claim,
however,
was
prescribed.
Caron
was
threatened,
on
the
one
hand,
by
his
tenant,
to
be
sued
in
damages
in
the
event
of
a
stoppage
of
water
and
was
threatened,
on
the
other,
by
the
city,
of
a
stoppage
of
w
ater
unless
payment
was
made.
The
Court
of
Appeal
said:
“It
is
true
that
there
was
no
physical
force
employed
to
compel
the
payment
but
there
was
a
moral
force
employed
which
compelled
the
respondent
to
choose
one
of
two
evils,
either
to
pay
a
debt
which
he
could
not
by
law
be
forced
to
pay,
or
to
pay
damages
which
he
desired
to
avoid;
in
neither
case
could
the
payment
have
been
voluntary;
it
was
the
effect
of
moral
pressure,
and
would
not
have
been
made
without
it.
It
was
an
influence
which
took
away
the
voluntary
character
from
the
payment
and
yet
which
could
not
be
ranked
with
*
crainte
et
violence’.
Under
these
circumstances,
this
payment
was
not
being
voluntary
but
was
made
under
pressure;
the
plaintiff’s
action
must
stand
and
the
appeal
be
dismissed.”
Baylis
v.
The
Mayor
of
Montreal
et
al.,
23
L.C.J.
301.
This
was
an
action
brought
to
recover
from
the
city
an
amount
collected
from
the
appellant
for
assessment
not
legally
due,
the
assessment
roll,
under
which
the
payment
was
exacted,
being
a
nullity.
The
appellant
did
not
protest
or
make
any
reserve
when
he
paid.
He
paid
only
when
compelled
to
do
so
by
warrant
of
distress.
Sir
A.
A.
Dorion,
C.J.,
said,
at
the
bottom
of
page
304
:
‘‘And
it
has
repeatedly
been
been
held
that
a
payment
made
under
such
circumstances
is
not
a
voluntary
payment
and
did
not
require
that
the
party
making
it
should
pay,
under
protest,
to
enable
him
to
recover
back
what
has
been
illegally
claimed
from
him.”
In
Bain
v.
City
of
Montreal
(supra),
the
above
decisions
are
referred
to,
with
virtual
approval,
by
Taschereau,
J.,
at
page
286,
where
he
makes
the
following
comments
as
to
the
significance
and
necessity,
or
non
necessity,
of
protest:
“I
cannot
help
but
thinking
that,
that
when
a
party
pays
a
debt
which
he
believes
he
does
not
owe,
but
has
to
pay
it
under
contrainte
or
fear,
he
ought
to
accompany
this
payment
with
a
protest,
if
not
ander
the
impossibility
to
make
one,
and
so
put
the
party
whom
he
pays
under
his
guard,
and
notify
him
that
he
does
not
pay
voluntarily,
if
this
party
is
in
good
faith.
If
he
is
in
bad
faith
and
receives
what
he
knows
is
not
due
to
him,
he
is,
perhaps,
not
entitled
to
this
protection.
A
distinction
might
also
perhaps
be
made
between
the
case
of
a
payment
under
actual
contrainte,
and
one
made
under
a
threat
only
of
contrainte,
or
through
fear.
If
there
is
an
actual
contrainte,
a
protest
may
not
be
necessary,
and
in
some
cases,
it
is
obvious,
may
be
impossible,
but
if
there
is
a
notice
of
threat
only
of
contrainte,
then,
if
the
party
pays
before
there
is
an
actual
contrainte,
he
should
pay
under
protest.
Demolombe
Vol.
29
No.
77
seems,
at
first
sight,
to
say
that
a
protest
is
not
absolutely
necessary,
but
he
speaks,
it
must
be
remarked,
of
the
case
of
an
actual
contrainte.
Of
course,
each
case
has
to
be
decided
on
its
own
facts.
It
is
not
as
a
rule
of
law
that
a
protest
may
be
said
to
be
required.
For
a
protest
is
of
no
avail
when
the
payment
or
execution
of
the
obligation
is
otherwise
voluntary.
Favard
de
Langlade,
Rép.
Vo.
Acquiescement,
Par.
XIII;
Solon,
2
Des
Nullités,
No.
436;
Bédarride
De
La
Fraude,
Vol.
2,
No.
609.’’
Being
of
opinion
that,
under
the
general
law,
respondent
is
entitled
to
be
reimbursed
of
the
moneys
it
paid
to
appellant,
there
remains
to
consider
the
contention
of
the
Crown
that
this
right
is
barred
under
the
provisions
of
Section
105
of
the
Excise
Tax
Act.
Appellant
relies
on
Section
105(6)
:
“6.
If
any
person,
whether
by
mistake
of
law
or
fact,
has
paid
or
overpaid
to
His
Majesty,
any
moneys
which
have
been
taken
to
account,
as
taxes
imposed
by
this
Act,
such
moneys
shall
not
be
refunded
unless
application
has
been
made
in
writing
within
two
years
after
such
moneys
were
paid
or
overpaid.”
The
French
version
of
Section
105(6)
reads:
“(6)
Si
quelqu’un,
par
erreur
de
droit
ou
de
fait,
a
payé
ou
a
payé
en
trop
à
Sa
Majesté
des
deniers
dont
il
a
été
tenu
compte
à
titre
de
taxes
imposées
par
la
présente
loi,
ces
deniers
ne
doivent
pas
être
remboursés
à
moins
que
demande
n’ait
été
faite
par
écrit
dans
les
deux
ans
qui
suivent
le
payement
ou
le
payement
en
trop
de
ces
deniers.’
The
two
texts
make
it
clear
that
these
provisions
apply
only
where
the
refund
claimed
is
for
moneys
paid
under
a
mistake
of
law
or
fact.
They
have
no
application
in
this
case.
The
other
provisions
of
the
Act,
which
may
be
referred
to,
are
in
Section
105(5)
reading:
“5.
No
refund
or
deduction
from
any
of
the
taxes
imposed
by
this
Act
shall
be
paid
unless
application
in
writing
for
the
same
is
made
by
the
person
entitled
thereto
within
two
years
of
the
time
when
any
such
refund
or
deduction
first
became
payable
under
this
Act
or
under
any
regulation
made
thereunder.
’
These
provisions
are
also
inapplicable
to
the
present
case.
The
refund
claimed
is
not
for
“taxes
imposed
by
this
Act’’
but
for.
moneys
exacted
without
legal
justification.
It
was
further
conceded
that
Section
105
is
not
exhaustive
of
the
cases
where
refund
may
be
made.
Indeed
one
would
not
expect
the
Act
to
provide
that
moneys
exacted
under
threat
as
a
tax
not
imposed
under
the
Act,
may
be
reimbursed.
For
these
reasons,
I
am
of
the
opinion
that
the
respondent?
S
petition
of
right
is
well
founded.
I
may
add
that
this
case
is
entirely
different
from
the
case
of
The
Queen
v.
Beaver
Lamb
&
Shearling
Co.
Ltd.,
[1960]
S.C.R.
505.
In
that
case,
the
payments
of
the
moneys
claimed
were
found
to
have
been
made
long
after
and
not
consequential
to
the
alleged
duress,
but
under
a
mistake
of
law.
I
would
dismiss
the
appeal
with
costs.
ABBOTT,
J.:—Respondent
is
a
processor
of
sheepskins,
and
during
a
period
between
March
1950
and
January
1952,
was
engaged
in
the
city
of
Montreal,
in
processing
such
skins
into
what
are
known
in
the
trade
as
mouton
products,
which
in
their
finished
state
closely
resemble
certain
types
of
fur
such
as
beaver
or
seal.
During
the
period
referred
to,
respondent
paid
to
the
Department
of
National
Revenue,
as
tax
claimed
on
the
processing
of
sheepskins
into
mouton
products,
sums
totalling
$24,681.
These
amounts
were
claimed
by
the
Department
under
the
provisions
of
Section
80A
of
the
Excise
Tax
Act,
R.S.C.
1927,
c.
179,
as
amended
(now
R.S.C.
1952,
e.
100,
Section
24),
which
imposes
an
excise
tax
calculated
upon
the
current
market
value
of
‘‘all
dressed
furs,
dyed
furs,
and
dressed
and
dyed
furs
..
.
dressed,
dyed,
or
dressed
and
dyed
in
Canada,
payable
by
the
dresser
or
dyer
at
the
time
of
delivery
by
him”.
The
said
payments,
totalling
$24,681,
were
so
paid
by
respondent
by
means
of
cheques
bearing
on
the
back
thereof,
in
almost
every
case,
such
words
as
“paid
under
protest’’
or
“tax
paid
under
protest’’,
and
the
total
amount
so
paid
is
not
in
issue.
No
further
objection,
verbal
or
written,
was
made
to
payment
of
the
tax
claimed
until
the
present
proceedings
were
taken
some
five
years
later.
These
payments
‘‘under
protest’’
implied
a
reservation
by
respondent
of
its
right
to
claim
repayment
of
the
amounts
paid.
In
the
circumstances
here,
in
my
view,
they
also
implied
a
doubt
on
the
part
of
respondent
as
to
its
right
to
recover
these
amounts.
The
circumstances
under
which
these
payments
were
thus
made
were
found
by
the
learned
trial
judge
to
have
been
as
follows:
“Lorsque
la
requérante
commença
ses
opérations,
en
1950,
elle
recut
la
visite
de
deux
inspecteurs
du
ministère
qui
venaient
faire
l’évaluation
ou
l’estimation
de
ces
marchandises
pour
fin
d’imposition
de
la
taxe
d’accise.
Il
y
eut
discussion
entre
les
inspecteurs
et
un
représentant
de
la
requérante.
Ce
dernier
a
exprimé
l’opinion
que
les
peaux
de
mouton
n’étaient
pas
soumises
à
la
taxe
d’accise
sur
les
fourrures.
L’inspecteur
lui
aurait
répondu
qu’il
fallait
payer
cette
taxe,
que
c’était
la
loi’.
‘S’il
faut
payer,
nous
paierons
sous-
protét.’
“Très
bien,
payez
comme
vous
voudrez,
mais
payez.’
L’inspecteur
se
rappelle
avoir
discuté
avec
les
représentants
de
la
requérante,
mais
il
ne
peut
se
souvenir
si
ces
derniers
lui
ont
dit
que
la
taxe
n’était
pas
exigible.
Toutefois,
vers
ce
temps-là,
il
avait
entendu
dire
par
des
personnes
intéressées
dans
l’industrie
et
le
commerce
de
fourrures
que
les
peaux
de
mouton
séchées,
apprêtées
et
transformées
n’étaient
pas
imposables.
Un
autre
directeur
de
la
requérante
a
souvent
pris
part
aux
discussions
avec
les
officiers
du
ministère.
Il
prétend
qu’il
y
était
question
des
évaluations
et
cotisations
et
de
la
taxe.
Dès
les
débuts,
les
paiements
ont
été
faits
sous
protêt
parce
que
la
requérante
croyait
que
les
peaux
de
mouton
apprêtées
n’étaient
pas
des
fourrures
et
qu’elles
étaient,
par
conséquent,
non
imposables.
Les
gens
du
métier
partagaient
cette
opinion.
Même
les
inspecteurs
auraient
entendu
des
remarques
à
ce
sujet.
A
la
suite
de
ces
discussions
et
après
avoir
été
informée
que
ses
permits
pourraient
être
annulées
si
elle
ne
se
conformait
pas
à
la
loi,
la
requérante
décida
de
payer
les
montants
cotisés,
mais
par
chèques
endossés
‘Taxe
payée
sous
protêt’
ou
‘Payé
sous
protêt’.
La
requérante
a
produit
une
liasse
de
chèques
comme
pièce
P-1,
lesquels
portent
l’endos
susdit,
sauf
quelques
exceptions.
D’ailleurs,
l’intimée
dans
sa
défense
admet
que
le
montant
payé
par
la
requérante
pour
taxe,
du
30
mars
1950
au
29
janvier
1952,
s’élève
à
$24,681.”’
In
April
1953
an
action—apparently
in
the
nature
of
a
test
case—was
brought
in
the
Exchequer
Court
in
which
the
Crown
claimed
from
Universal
Fur
Dressers
and
Dyers
Limited,
a
sum
of
$573.08
as
taxes
under
Section
80A
of
the
Excise
Tax
Act,
together
with
certain
penalties.
The
purpose
of
this
litigation
appears
to
have
been
to
determine
whether
the
product
described
as
‘‘mouton’’
was
to
be
considered
as
a
fur,
and
therefore
subject
to
tax
under
the
Act.
That
question
was
decided
in
the
affirmative
in
the
Exchequer
Court
in
1954
(The
Queen
v.
Universal
Fur
Dressers
and
Dyers
Limited,
[1954]
Ex.
C.R.
247
;
[1954]
C.T.C.
78),
but
on
June
11,
1956,
that
judgment
was
reversed
by
this
Court
(Universal
Fur
Dressers
and
Dyers
Limited
v.
The
Queen,
[1956]
S.C.R.
632).
More
than
a
year
later,
on
October
8,
1957,
respondent
instituted
these
proceedings,
to
recover
the
amounts
paid
by
it
as
aforesaid.
Before
this
Court
it
was
conceded
by
counsel
for
appellant
that,
in
view
of
the
decision
rendered
in
The
Queen
v.
Universal
Fur
Dressers
and
Dyers
Limited,
supra,
the
respondent
was
not
legally
liable
for
the
amounts
paid
by
it,
and
the
sole
question
in
issue
here
is
as
to
the
right
of
respondent
to
be
reimbursed
the
amounts
so
paid.
The
relevant
statutory
provision
is
subsection
(6)
of
Section
46
of
the
Excise
Tax
Act,
R.S.C.
1952,
e.
100,
which
reads
as
follows:
(6)
If
any
person,
whether
by
mistake
of
law
or
fact,
has
paid
or
overpaid
to
Her
Majesty,
any
moneys
which
have
been
taken
to
account,
as
taxes
imposed
by
this
Act,
such
moneys
shall
not
be
refunded
unless
application
has
been
made
in
writing
within
two
years
after
such
moneys
were
paid
or
overpaid.’’
The
learned
trial
judge
found
that
the
payments
made
by
appellant
were
so
made
in
error,
but
that
Section
46
had
no
application
because
it
applied
only
in
the
case
of
the
payment
of
taxes
validly
imposed.
Relying
upon
the
provisions
of
the
Civil
Code
and
more
particularly
upon
Articles
1047
and
1048
he
maintained
the
petition
of
right
and
declared
respondent
entitled
to
recover
the
sum
of
$24,681.00.
With
respect,
I
am
unable
to
agree
with
the
finding
that
Section
46(6)
had
no
application.
In
my
view,
the
payments
made
by
respondent
clearly
fall
within
the
terms
of
that
section.
The
amounts
paid
were
claimed
by
the
Crown
as
taxes
due
by
respondent,
were
accepted
and
dealt
with
by
the
Department
as
such,
and
with
great
respect
for
the
view
expressed
by
the
learned
trial
judge,
I
am
unable
to
limit
the
operation
of
the
said
section
to
claims
for
the
repayment
of
taxes
validly
imposed.
Moreover,
I
think
it
is
clear
from
the
decision
of
this
Court
in
The
Queen
v.
Beaver
Lamb
and
Shearling
Co.
Ltd.,
[1960]
S.C.R.
508,
that
no
such
limitation
exists.
Before
this
Court,
counsel
for
respondent
also
urged
that
the
payments
in
question
were
made
under
duress
and
for
that
reason
recoverable.
This
ground
does
not
appear
to
have
been
raised
or
argued
in
the
Court
below,
and
I
question
whether
it
is
open
to
respondent
on
the
pleadings.
However,
in
any
event,
I
am
satisfied
that
these
payments
were
not
so
made
by
respondent.
As
found
by
the
learned
trial
judge:
‘
Sa
décision
de
payer
résulte
du
fait
que
les
autorités
l’ont
convaincue
que
c’était
la
loi
et
qu’elle
craint
de
voir
ses
opérations
industrielles
et
commerciales
mises
en
danger.’’
Whether
or
not
mouton
products
were
liable
to
tax
as
fur
under
Section
80A
of
the
Excise
Tax
Act,
remained
in
doubt
until
judgment
was
rendered
by
this
Court
in
the
Universal
Fur
Dressers
and
Dyers
Limited
case
supra,
reversing
the
judgment
of
the
Exchequer
Court
which
had
held
that
they
were
so
liable,
and
in
my
opinion
the
respondent
paid
the
tax
claimed
in
the
mistaken
belief
that
it
was
obliged
to
do
so.
There
is
no
doubt
that
the
officers
of
the
Department
were
in
good
faith
in
claiming
payment
of
the
tax
from
respondent
and
the
trial
judge
so
found.
They
were
doing
no
more
than
their
duty
in
insisting
upon
payment
of
a
tax,
which
they
believed
to
be
exigible
from
respondent
as
well
as
from
all
other
like
processors.
To
have
allowed
those
who
were
unwilling
to
pay,
to
postpone
or
avoid
payment
of
the
tax,
while
receiving
payment
from
those
who
did
not
dispute
liability,
would
have
been
manifestly
unfair,
since
it
is
a
reasonable
inference
that
those
who
paid
would
be
obliged
to
try
to
recover
the
tax
paid
in
the
resale
price
of
the
finished
product.
The
distinction
made
in
the
common
law
between
a
voluntary
payment
which
is
not
recoverable
and
an
involuntary
payment
which
is,
does
not
exist
in
the
civil
law
of
Quebec.
Under
Article
1047
of
the
Civil
Code,
he
who
receives
what
is
not
due
to
him
through
error
of
law
or
of
fact
is
bound
to
restore
it.
Generally
speaking,
the
payment
of
any
sum
claimed
as
tax
is
made
under
compulsion
of
the
taxing
statute
which
usually
contains
an
appropriate
penalty
for
non-payment,
and
in
my
opinion
respondent
paid
the
amount
claimed
as
tax
here
because
it
found
it
expedient
to
do
so,
under
the
circumstances
found
by
the
learned
trial
judge,
and
not
under
duress
or
through
fear
within
the
meaning
of
Articles
994
et
seq.
of
the
Civil
Code.
At
any
time
within
two
years
after
the
payments
were
made,
appellant
could
have
taken
advantage
of
the
provisions
of
Section
46(6)
of
the
Excise
Tax
Act
and
made
written
application
for
a
refund
of
the
amounts
so
paid.
It
failed
to
do
so
and
first
claimed
repayment
some
five
years
later,
when
it
instituted
these
proceedings.
I
would
allow
the
appeal
and
dismiss
the
petition
of
right
with
costs
throughout.
Appeal
dismissed.