MACLEAN,
J.:—The
suppliant
in
this
petition
of
right,
filed
on
December
14,
1934,
was
licensed
as
a
manufacturer
and
producer
under
Part
IV
of
the
Special
War
Revenue
Act,
1915,
and
was
licensed
also
as
a
distiller
under
Part
III
of
the
Inland
Revenue
Act,
e.
51,
R.S.C.
1906;
its
principal
place
of
business
was
at
Montreal,
Que.
The
suppliant
seeks
a
refund
of
the
sum
of
$121,401.61
paid
by
it
as
sales
tax
under
the
provisions
of
the
Special
War
Revenue
Act,
in
respect
of
a
certain
quantity
of
spirits
purchased
from
Hiram
Walker
&
Sons
Ltd.,
hereafter
to
be
referred
to
as
‘‘Walker,’’
licensed
distillers,
of
Walkerville,
Ont.;
the
suppliant
claims
that
such
spirits
were
purchased
for
export
and
were
in
fact
exported,
to
the
United
States.
The
suppliant
also
claims
a
refund
of
the
sum
of
$1,296,557.01,
which
it
paid
on
account
of
excise
duties
upon
the
identical
spirits,
under
the
provisions
of
the
Inland
Revenue
Act,
at
the
time
of
the
removal
of
the
same
from
Walker’s
warehouse
at
Walkerville.
The
suppliant
claims
it
is
entitled
to
the
benefit
of
certain
statutory
exemptions
from
both
the
sales
and
excise
taxes,
in
favour
of
goods
exported,
and
one
of
the
issues
raised
for
determination
relates
to
the
construction
of
the
statutory
provisions
as
to
the
exemptions,
and
also
there
is
the
issue
as
to
whether
the
dealings
with
the
goods
in
question
were
such
as
to
entitle
the
suppliant
to
the
benefit
of
the
exemptions.
Several
important
questions
are
raised
by
the
Crown
contesting
the
right
of
the
supyiant
to
recover
any
portion
of
the
taxes
so
paid,
even
if
export
of
the
goods
in
question
were
in
point
of
fact
established.
The
suppliant
in
its
petition
sets
forth
that
officers
of
the
Crown,
contrary
to
the
statute
and
any
regulations
made
thereunder,
illegally,
and
without
colour
of
right,
compelled
it
to
pay
the
said
excise
taxes
as
a
prerequisite
to
the
granting
of
a
permit
to
remove
the
spirits
in
question
from
the
bonding
warehouse
at
Walkerville,
for
export
from
Canada,
and
similarly
compelled
it
to
pay
the
sales
tax
upon
the
said
spirits;
and
it
claims
that
by
virtue
of
the
provisions
of
the
statutes
mentioned
it
is
entitled
to
recover
the
sums
respectively
paid
as
sales
tax
and
excise
tax.
As
the
suppliant’s
right
to
recover
the
moneys
in
question
is
dependent
upon
the
provisions
of
the
Special
War
Revenue
Act,
and
the
Excise
Act,
it
may
be
convenient
and
desirable
to
state
at
once
the
relevant
provisions
of
such
statutes.
Sec.
19BBB
of
the
Special
War
Revenue
Act
provides:
‘‘In
addition
to
any
duty
or
tax
that
may
be
payable
under
this
Part,
or
any
other
statute
or
law,
there
shall
be
imposed,
levied
and
collected
a
consumption
or
sales
tax
of
five
per
cent
on
the
sale
price
of
all
goods
produced
or
manufactured
in
Canada,
.
.
.
which
tax
shall
be
payable
by
the
producer
or
manufacturer
at
the
time
of
the
sale
thereof
by
him;
.
.
.
Provided
that
the
consumption
or
sales
tax
specified
in
this
section
shall
not
be
payable
on
goods
exported,
.
.
.’’
Subsee.
10
of
the
same
section
provides
:
cc'
and
a
refund
of
the
said
tax
may
be
granted
on
domestic
goods
exported,
under
regulations
prescribed
by
the
Minister
of
Customs
and
Excise.
‘
‘
Sec.
98
of
the
Inland
Revenue
Act
provides
:
"‘No
goods,
subject
to
a
duty
of
excise
under
this
Act,
shall
be
removed
from
.
.
.
any
warehouse
in
which
they
have
been
bonded
or
stored,
until
the
duty
on
such
goods
has
been
paid
or
secured
by
bond
in
the
manner
by
law
required.
‘
‘
See.
68
provides
that
"‘Goods
warehoused
under
this
Act
may
be
transferred
in
bond,
and
may
be
exported
or
removed
from
one
warehouse
to
another,
without
payment
of
duty,
under
such
restrictions
and
regulations
as
the
Governor
in
Council
deems
necessary.”
See.
73
states
that
"
"
No
goods
shall
be
removed
from
warehouse
for
consumption
unless
upon
the
payment
of
the
full
amount
of
duty
accruing
thereon.”
Sec.
140
provides:
"
"
The
Governor
in
Council
may
make
such
regulations
for
the
warehousing
and
for
the
ex-warehousing,
either
for
consumption,
for
removal,
for
exportation,
or
otherwise,
of
goods
subject
to
a
duty
of
excise,
and
for
giving
effect
to
any
of
the
provisions
of
this
Act,
and
declaring
the
true
intent
thereof
in
any
ease
of
doubt
as
to
him
seems
meet.
‘
‘
See.
174
provides:
"The
duty
paid
on
spirits
taken
out
of
warehouse
for
consumption,
or
which
have
gone
directly
into
consumption,
shall
not
be
refunded
by
way
of
drawback
or
otherwise
upon
the
exportation
of
such
spirits
out
of
Canada,
unless
when
specially
permitted
by
some
regulation
made
by
the
Governor
in
Council
in
that
behalf.
‘
‘
See.
177
provides
that
"No
spirits
shall
be
removed
from
any
distillery,
or
from
any
warehouse
in
which
they
have
been
bonded
or
stored,
until
a
permit
for
such
removal
has
been
granted
in
such
form
and
by
such
authority
as
the
Governor
in
Council,
from
time
to
time,
directs
and
determines.”’
There
are
sections
in
this
Act,
such
as
numbers
141
and
176,
which
provide
that
on
exportation
of
goods
manufactured
wholly
or
partially
from
articles
subject
to
a
duty
of
excise,
and
on
which
such
duty
of
excise
has
been
paid,
a
drawback
equal
to
the
excise
duty
so
paid
may
be
allowed,
and
similarly
upon
export
of
spirits
in
the
production
whereof
any
malt
is
used
and
upon
which
any
duty
of
excise
has
been
paid
;
but
such
provisions
for
drawback
are
not
applicable
here.
Coming
now
directly
to
the
facts
pertaining
to
the
transactions
from
which
arise
this
controversy,
and
which
perhaps
should
be
stated
rather
fully.
In
the
material
period,
from
January
31,
1924,
to
January
25,
1926,
the
suppliant
purchased
from
Walker
certain
quantities
of
spirits,
the
particulars
of
which
are
contained
in
a
schedule
to
the
petition.
For
the
greater
part,
these
transactions
originated
on
the
written
orders
of
the
suppliant
to
Walker,
to
ship
to
the
former
at
Montreal,
by
rail,
a
specified
quantity
of
spirits
(rye
whisky)
""duty
paid’’;
such
shipments
were
always
in
substantial
quantities,
rarely,
I
think,
being
less
than
1,000
cases.
These
orders
contained
no
reference
to
the
time,
place,
or
manner
of
payment
for
such
goods,
but
Walker’s
terms
of
sale
were
said
to
be
‘‘net
cash.
’’
In
the
invoices
rendered
by
Walker
to
the
suppliant,
the
excise
duties
paid
the
Crown
by
Walker
did
not
appear
as
a
separate
item
and
outwardly
constituted
a
part
of
the
sales
price
to
the
suppliant
;
the
sales
tax,
also
paid
by
Walker
as
manufacturer
or
producer
of
the
spirits,
in
accordance
with
the
statute,
always
appeared
on
the
invoices
rendered
the
suppliant
as
a
separate
item.
Walker
was
paid
at
its
place
of
business
the
amount
of
any
invoice
rendered,
ordinarily,
I
think,
prior
to
shipment,
though
subsequent
thereto
on
many
occasions,
usually
by
one
Cooper,
president
of
the
suppliant
company,
who,
in
the
material
period,
lived
at
Walkerville
or
in
that
vicinity.
Walkerville,
and
such
places
as
Sandwich,
Ford,
Belle
River,
La
Salle
and
Amherstburg,
are
situated
rather
closely
together
on
the
Canadian
side
of
the
Detroit
river,
and
are
outports
of
the
customs
port
of
Windsor,
and
within
the
Customs
Division
of
Windsor,
Ont.
One
or
other
of
these
ports,
it
is
claimed,
was
the
port
of
export
of
the
goods
in
question,
to
Detroit,
U.S.A.,
on
the
opposite
side
of
the
Detroit
river,
a
comparatively
short
distance
away.
In
the
early
stages
of
the
transactions
in
question,
covering
a
period
of
about
three
months,
any
spirits
purchased
from
Walker
by
the
suppliant
would
be
moved
by
motor
trucks
from
the
bonding
warehouse
either
directly
to
a
boat
for
export
to
the
United
States,
or
to
a
warehouse—doubtless
subject
to
customs
supervision—on
a
certain
dock
for
temporary
storage,
at
the
port
of
Walkerville.
During
this
limited
period,
it
may
be
assumed
that
customs
was
aware
that
the
suppliant
was
exporting,
or
attempting
to
export,
from
Walkerville,
such
spirits
to
the
United
States;
they
were
there
entered
at
customs
for
export
to
that
country.
On
April
26,
1924,
instructions
were
issued
by
Mr.
Taylor,
Assistant
Commissioner
of
Customs
at
Ottawa,
to
Walker,
in
respect
of
future
shipments
of
spirits
to
the
suppliant,
in
the
following
terms
:
"I
am
directed
to
inform
you
that
the
officer
in
charge
of
your
distillery
is
being
instructed,
by
means
of
a
copy
of
this
letter,
to
refuse
delivery
or
issue
of
permit
for
the
removal
of
duty-paid
spirits
from
your
distillery
to
the
Dominion
Distillery
Products
Company
Limited,
unless
the
goods
are
shipped
direct
to
their
licensed
premises
in
Montreal.
0
‘
Henceforward
all
shipments
of
spirits
were
made
by
Walker
directly
by
rail
to
Montreal,
and
from
there
the
same
would
be
promptly
reshipped
by
rail
to
one
of
the
mentioned
Canadian
ports
on
the
Detroit
river,
in
the
Windsor
Customs
District,
in
the
Province
of
Ontario;
in
practically
all
cases
the
spirits,
as
I
understand
it,
would
not
actually
be
removed
from
the
cars
to
the
suppliant’s
warehouse
but
would
be
routed
to
the
port
of
export
in
the
same
car
or
cars
after
examination
by,
and
with
the
permission
of,
Montreal
customs
authorities.
The
procedure
in
such
cases
throughout
would
be
about
as
follows:
On
receipt
of
an
order
from
the
suppliant
for
a
specified
quantity
of
duty
paid
spirits,
Walker
would
procure
from
the
Collector
of
Customs
and
Inland
Revenue
at
Walkerville,
a
permit
to
remove
the
same
in
bond
from
the
Walkerville
bonding
warehouse
to
Montreal,
and
the
same
would
then
be
forwarded
by
rail,
consigned
to
the
order
of
the
Collector
of
Customs
and
Excise
at
Montreal,
who
would
in
due
course
notify
the
suppliant
of
their
arrival.
On
application
of
the
suppliant,
another
permit
would
then
issue
from
Customs
and
Excise
at
Montreal
permitting
the
shipment
of
the
same
goods
by
rail
to
one
of
the
Detroit
River
points
mentioned,
and
always,
we
may
assume
for
the
purposes
of
this
case,
by
the
same
cars,
after
the
same
were
opened,
the
contents
checked,
and
the
cars
resealed,
all
by
customs.
The
bill
of
lading
accompanying
the
rail
ship-.
ment
would
usually
name
one
Scherer
of
Detroit,
sometimes
one
Kemp
of
the
same
place,
as
consignee,
and
one
of
the
Detroit
River
ports
mentioned
would
be
named
as
the
Canadian
destination
of
the
rail
shipment;
the
bill
of
lading
would
also
contain
the
name
of
the
boat
by
which
the
goods
were
to
be
exported
from
the
designated
Canadian
port
to
Detroit.
The
prescribed
customs
form
B
13,
an
export
entry
for
articles
of
domestic
production
and
foreign
articles
not
subject
to
customs
or
excise
duties,
containing
the
name
of
the
shipper,
the
name
and
address
of
the
consignee,
the
number
of
packages,
a
description
of
the
goods
together
with
their
quantity
and
value,
and
the
name
of
the
Canadian
port
and
the
boat
at
and
to
which
the
goods
were
to
be
delivered
for
exportation,
would
accompany
the
shipping
documents;
the
Montreal
customs
permit
would
not
issue
until
a
B
13,
covering
the
entire
shipment,
was
supplied
by
the
suppliant.
After
the
shipment
reached
the
designated
Canadian
port
of
export,
and
when
the
goods,
or
a
portion
of
them,
were
placed
on
board
a
boat
and
examined
by
customs,
a
B
13
would
then
be
tendered
on
behalf
of
the
suppliant
to
the
customs
office
nearest
the
port
of
exit,
and
if
found
satisfactory,
customs
would
affix
thereon
its
stamp
on
the
lower
left
hand
corner,
and
this
would
also
indicate
the
date
of
the
export
entry
;
in
some
cases
the
stamp
would
bear
the
words
‘‘for
exportation.”
The
master
of
any
boat,
before
his
departure
outwards,
would
make
at
customs
the
required
entry
outwards,
for
Detroit
in
these
cases,
therein
declaring
his
cargo
content;
thereupon
a
clearance
certificate
would
be
granted
by
customs
to
the
master
and
in
due
course
he
would
depart
from
port
with
his
cargo.
I
should
perhaps
explain
that
the
boats,
in
the
large
majority
of
cases
at
least,
would
receive
the
goods
in
fulfilment
of
sub-sales
made
to
purchasers
by
Scherer
or
Kemp,
and
generally
at
an
advanced
price,
I
might
add.
Therefore
the
goods
designated
in
any
single
export
entry
would
vary
according
to
the
capacity
of
the
boat,
or
the
requirements
of
the
sub-purchaser.
The
total
quantity
of
goods
shown
in
these
B
13’s
would
in
the
result
be
the
equivalent
of
the
quantities
shown
in
the
B
13
‘s
accompanying
the
rail
shipments
from
Montreal.
This
practice
seems
to
have
been
allowed
by
customs
during
the
period
in
question
but
I
believe
the
practice
was
later
discontinued.
In
case
this
matter
be
further
considered,
and
for
the
moment
disregarding
all
other
grounds
of
defence
which
have
been
raised,
it
may
be
desirable
that
I
express
my
opinion
upon
the
question
as
to
whether
or
not
the
goods
in
question,
or
a
substantial
portion
of
them,
were
in
fact
exported
to
the
United
States.
Upon
this
point,
the
judgment
of
the
Judicial
Committee
of
the
Privy
Council
in
the
case
of
Carling
Export
Brewing
and
Malting
Co.
Ltd.
v.
The
King
[1931]
A.C.
435,
was
relied
upon
by
each
party
as
conclusive
of
that
issue.
In
that
case
the
Crown
proceeded
against
the
Carling
company
for
the
recovery
of
a
considerable
sum
of
money
in
respect
of
gallonage
and
sales
tax
levied
under
the
provisions
of
the
Special
War
Revenue
Act,
1915,
in
respect
of
lager
manufactured
and
sold
by
that
company,
between
April
1,
1924,
and
May
1,
1927.
The
Carling
Co.
claimed
the
benefit
ot
exemption
from
such
taxes
on
the
ground
that
the
beer
had
been
manufactured
for
export
to
the
United
States,
and
had
been
actually
exported
to
that
country.
The
Special
War
Revenue
Act,
1915,
imposed
a
gallonage
tax
and
a
sales
tax
upon
specified
goods,
including
beer,
manufactured
in
Canada.
It
provided,
however,
that
the
gallonage
tax
in
respect
of
beer
should
not
be
payable
"‘when
such
goods
are
manufactured
for
export,
under
regulations
prescribed
by
the
Minister
of
Customs
and
Excise,”
and
that
the
sales
tax
should
not
be
payable
on
‘‘
goods
exported,
‘
‘
with
a
provision
for
a
refund
on
‘
4
domestic
goods
exported
under
regulations’’
similarly
provided.
It
was
held
by
their
Lordships
that
the
exemption
from
gallonage
tax,
like
that
from
sales
tax,
applied
only
to
goods
actually
exported,
and
that
it
operated
although
no
regulations
had
been
prescribed,
and
that
an
export
of
beer
to
the
United
States
was
within
the
exemption
provisions
although
the
import
was
contrary
to
the
law
of
that
country.
It
was
also
held
that
beer
sold
to
a
purchaser
in
the
United
States
was
within
the
exemptions
where
it
had
been
consigned
to
him
at
a
Canadian
port,
and
was
proved
to
have
been
shipped
from
there
into
the
United
States
in
smaller
consignments,
mostly
to
sub-purchasers.
The
provisions
in
sec.
19B
that
the
excise
tax
there
imposed
shall
not
be
payable
where
the
goods
are
"manufactured
for
export,”
does
not
enter
into
this
case,
because
the
words
‘‘manufactured
for
export’’
are
not
to
be
found
in
sec.
19BBB
of
the
same
statute
or
in
the
Inland
Revenue
Act.
As
already
stated,
sec.
19BBB
of
the
Special
War
Revenue
Act
provides
that
the
sales
tax
shall
not
be
payable
on
goods
exported,
and
subsec.
10
thereof
provides
that
a
refund
of
the
sales
tax
"may
be
granted
on
domestic
goods
exported’’
under
regulations
prescribed
by
the
Minister
of
Customs
and
Excise,
and
their
Lordships,
in
the
Carling
case,
were
of
the
opinion
that
this
proviso,
in
respect
of
the
refund
of
the
sales
tax,
would
apply
to
goods
which,
“though
not
manufactured
for
export,’’
were
subsequently
exported.
Therefore,
as
I
understand
their
Lordships’
decision
in
the
Carling
ease,
it
is
not
a
requirement
in
the
case
under
discussion
that
the
goods
be
‘‘manufactured
for
export’’
in
order
to
become
entitled
to
the
exemption
from
the
sales
tax,
or
to
a
refund
of
the
same
if
paid
;
the
only
requirement
is
that
the
goods
be
actually
exported.
As
to
the
proof
of
export
in
the
Carling
case
their
Lordships
held
that
the
most
important
evidence
was
to
be
found
in
the
bills
of
lading,
and
the
customs
forms
known
as
B
13’s
whieh
accompanied
each
consignment
of
beer,
the
latter
of
which
were
presented
to
and
stamped
by
the
customs
officers
at
the
port
of
exit;
further
proof
of
export
they
held
to
be
found
in
the
fact
that
on
shipment
of
the
goods
on
board
a
boat
a
report
outwards
was
signed
by
the
master,
which
stated
the
Carling
company
to
be
the
shipper
of
the
goods
and
a
port
in
the
United
States
as
the
destination,
and
on
this
report
a
clearance
certificate
was
granted
by
the
customs
officer
at
the
port
of
exit
;
and
further,
it
was
held,
that
the
supervision
by
one
Low
of
the
Carling
company
at
the
riverside
up
to
the
shipment
of
the
goods
on
board
the
boats,
along
with
the
documentary
evidence,
and
the
fact
that
the
beer
had
been
manufactured
for
export,
sufficiently
proved
that
the
Carling
company
saw
that
the
arrangement
for
export
to
the
United
States
was,
in
fact,
carried
out.
There
having
been
no
B
13’s
produced
for
a
certain
percentage
of
the
consignments
their
Lordships
sustained
the
finding
of
the
learned
trial
Judge
who
held
that
in
respect
of
such
percentage
the
Carling
Company
was
liable
for
both
the
gallonage
and
sales
tax,
and
was
also
liable
for
the
same
taxes
on
account
of
any
sales
made
from
such
consignments
in
Canada
to
one
Bannon,
a
resident
of
Canada,
and
which
goods
Bannon
resold
in
Canada.
On
the
assumption
that
there
was
here
involved
but
the
one
question
for
determination,
that
is,
whether
or
not
the
goods
in
question
were
in
fact
exported
to
the
United
States,
I
would
feel
bound
by
the
Carling
case
to
hold
that
in
the
main
they
were
so
exported,
and
that
the
suppliant
was
entitled
to
recover
back
the
greater
portion
of
the
taxes
paid.
The
facts
-here
as
to
exportation
are
not
to
be
seriously
distinguished
from
those
of
the
Carling
case,
and
the
proof
of
export
in
this
case,
I
think,
is
equally
as
strong
as
in
the
Carling
case.
I
entertain
no
doubt
whatever
but
that
the
goods
in
question
were
purchased
by
the
suppliant
for
the
purpose
and
with
the
intention
of
exporting
the
same
to
the
United
States,
and
that
they
were
exported
to
that
country
with
the
exception
of
a
limited
quantity
sold
and
delivered
to
residents
of
Canada,
at
one
or
more
of
the
Canadian
export
points,
and
by
them
relanded
or
resold
in
Canada,
corresponding
exactly
to
the
sales
made
to
Bannon
in
the
Carling
ease,
and
which
transactions
were
not
held
to
taint
in
any
way
the
balance
of
the
export
transactions;
in
fact
the
same
Bannon
was
one
of
such
Canadian
sub-purchasers
in
this
case.
The
shipments
here
were
supervised
on
behalf
of
the
suppliant
by
its
officers
or
servants,
and
most
of
the
B
13‘s
have
been
reasonably
accounted
for.
That
the
spirits
in
question
were
not
shown
to
have
been
expressly
manufactured
by
Walker
for
the
suppliant,
for
export
to
the
United
States,
is,
as
I
have
already
pointed
out,
of
no
importance
here.
There
were
obvious
reasons
why
persons
willing
to
risk
engagement
in
this
class
of
exports
to
the
United
States,
during
its
prohibition
period,
should
attempt
to
carry
out
their
intentions,
and,
in
fact,
in
this
case
it
would
not
appear
to
have
been
very
difficult
to
do
so.
It
is
not
a
mere
fiction
to
assume
that
in
the
United
States
there
were
to
be
found,
during
the
period
in
question,
many
persons
whose
requirements
for
alcoholic
beverages
would
be
as
amply
satisfied
with
rye
whisky,
as
with
rice
beer.
If
I
were
pronouncing
judgment
in
this
case,
upon
the
assumption
mentioned,
I
would
feel
obliged
to
hold
that
the
suppliant
was
entitled
to
recover
the
amount
sued
upon,
less
the
taxes
paid
upon
goods
for
which
there
was
no
reasonable
accounting
for
the
B
13
‘s
and
also
upon
any
of
the
goods
shown
to
have
been
sold
and
relanded
in
Canada.
In
view
of
what
I
am
later
to
say
I
need
not
now
take
time
to
discuss
how
the
resulting
calculation
should
be
arrived
at,
or
estimated.
The
result
may
be
determined
if
and
when
it
is
held
by
any
court
reviewing
this
judgment
that
the
suppliant
is
entitled
to
recover
back
the
taxes
paid
on
goods
proven
to
have
been
exported,
either
by
that
court
of
review,
or
by
this
court,
if
counsel
themselves
were
unable
to
agree
upon
the
amount.
The
suppliant’s
right
to
recover
is
however
contested
upon
grounds
other
than
those
emerging
from
the
decision
in
the
Carling
case.
First
it
is
contended
that
the
claim
for
recovery
of
the
sales
tax
is
barred
by
sec.
117
of
the
Special
War
Revenue
Act.
See.
17
of
the
Special
War
Revenue
Act,
as
enacted
by
e.
54
of
the
Statutes
of
Canada
1931,
provided
that
:
"‘No
refund
or
deduction
from
any
of
the
taxes
imposed
by
this
Act
shall
be
paid
unless
application
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
any
regulations
made
thereunder.
‘
‘
By
c.
50,
sec.
24,
of
the
Statutes
of
Canada
1932-33,
this
section
of
the
Special
War
Revenue
Act
was
repealed
but
reenacted
in
precisely
the
same
terms,
but
with
the
addition
of
the
following
subsection
:
(2)
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
sales
taxes
here
in
question
were
paid
on
goods
sold
and
exported
at
least
sometime
prior
to
January
26,
1926,
and
it
was
not
till
December
14,
1934,
nearly
eight
years
thereafter,
that
this
petition
of
right
was
filed;
and
it
does
not
appear
from
the
evidence
that
any
application
in
writing
was
ever
made
for
a
refund
of
such
taxes
prior
thereto,
or,
at
least,
within
two
years
of
the
time
when
any
such
refund
or
deduction
first
became
payable
under
the
Act.
See.
117
of
the
Act
was
obviously
intended
to
be
retroactive,
and
it
is
not
unusual
for
similar
taxing
statutes
to
contain
some
such
provision.
I
have
read
this
section
many
times
and
I
can
only
interpret
it
as
meaning
that
if
one
has
paid
or
overpaid
to
the
Crown
any
taxes
imposed
by
this
Act,
the
same
shall
not
be
refunded
unless
application
has
been
made
in
writing
within
two
years
of
the
time
when
any
such
refund
or
deduction
became
payable,
which
would
be
within
two
years
after
such
moneys
were
paid
or
overpaid.
On
this
ground
alone
I
think
the
suppliant
must
fail
in
respect
of
its
claim
for
a
refund
of
the
sales
tax.
On
a
motion
made
on
behalf
of
the
respondent,
which
was
adjourned
to
the
trial,
it
was
sought
to
dismiss
the
petition
upon
the
ground
that
the
suppliant
company
had,
prior
to
the
filing
of
this
petition,
sold
and
transferred
its
business
and
undertaking
as
a
going
concern
to
another
corporation,
Dominion
Distillers
Ltd.,
and
that
thereafter
the
suppliant
company
had
ceased
to
exist
and
its
charter
had
become
forfeited
under
the
provisions
of
the
Companies
Act,
R.S.C.,
c.
27,
sec.
29,
and
amending
Act,
and
that
consequently
this
petition
could
not
have
been
authorized
by
the
suppliant.
In
May,
1926,
just
four
months
after
the
last
of
the
transactions
with
which
we
are
here
concered
took
place,
the
suppliant
company
by
an
agreement
in
writing,
sold
and
transferred
to
Dominion
Distillers
Ltd.
its
business
and
undertaking
as
a
going
concern,
and
‘‘as
the
same
existed
at
the
close
of
business
on
the
30th
of
June,
1925,’’
including
all
property
movable
and
im-
movable,
stock
in
trade,
plant,
equipment,
goods,
cash
in
hand
and
at
the
bank,
and
all
bills
and
notes
in
connection
with
the
said
business,
and
"
"
all
the
book
or
other
debts
due
to
the
party
of
the
first
part,
(suppliant)
in
connection
with
the
said
business,
and
the
full
benefit
of
all
securities
for
such
debts,
together
with
the
full
benefit
of
all
pending
contracts
and
engagements
to
which
the
party
of
the
first
part
may
be
entitled
in
connection
with
the
said
business
.’’
The
consideration
for
the
sale
was
the
issue
by
the
purchasing
corporation
to
the
vendor,
the
suppliant
company,
of
the
sum
of
$1,200,000
payable
in
the
fully
paid
preference
stock
and
common
shares
of
the
purchasing
corporation,
and
which
stock
and
Shares
were
distributed
among
the
shareholders
of
the
suppliant
company,
four
or
five
in
number,
I
believe,
and
who
alone
thereafter
held
all
the
stock
and
shares
of
the
Dominion
Distillers
Ltd.
On
the
motion,
to
dismiss
the
petition,
upon
this
and
another
ground,
Mr.
Gagnon,
of
counsel
for
the
suppliant
company,
submitted
an
affidavit
to
the
effect
that
in
August,
1933,
he
had
been
consulted
by
Mr.
Leo
George,
president
of
the
Dominion
Distillery
Products
Co.,
regarding
the
matter
of
the
initiation
of
this
petition
of
right
proceeding
against
the
Crown;
that
in
May,
1934,
this
petition
of
right
was
drafted
by
him;
that
frequent
meetings
of
directors
of
that
company
had
been
held
since
August,
1933,
for
the
purpose
of
discussing
the
proposed
petition
of
right
proceeding
;
that
he
had
been
verbally
instructed
by
the
directors
to
launch
a
petition
of
right
proceeding;
and
that
a
careful
search
failed
to
reveal
any
written
assignment
by
Dominion
Distillery
Product
Co.,
to
Dominion
Distillers
Ltd.,
of
the
claims
mentioned
in
the
petition
of
right
herein,
other
than
the
agreement
of
May,
1926,
already
mentioned.
Mr.
George,
who
had
been
president
of
the
suppliant
company
since
1923
or
1924,
also
filed
an
affidavit
but
he
merely
confirmed
the
statements
contained
in
the
affidavit
of
Mr.
Gagnon.
Both
Mr.
Gagnon
and
Mr.
George
were
examined
upon
their
affidavits
but
nothing
that
will
assist
us
here
was
disclosed
on
the
examination
of
the
former.
Mr.
George
testified
that
the
suppliant
had
not
been
manufacturing
or
exporting
liquor,
or
carrying
on
any
business,
since
1925
or
1926;
that
the
assets
of
the
suppliant
company
had
been
transferred
to
Dominion
Distillers
Ltd.
in
conformity
with
the
agreement
of
May,
1926;
that
the
office
of
the
suppliant
was
closed
in
1926
and
it
was
no
longer
listed
in
the
Montreal
City
Directory
or
in
the
Montreal
Telephone
Directory
;
that
no
meeting
of
the
suppliant
company
was
held
between
March
9,
1926,
and
February
16,
1935,
and
that
there
was
no
election
of
directors
or
of
any
auditor
during
that
period;
that
the
suppliant
had
no
assets
except
possibly
the
amounts
claimed
from
the
Crown
in
this
petition;
and
that
no
return
had
been
made
by
the
suppliant
to
the
Department
of
the
Secretary
of
State
since
April
4,
1925,
and
no
company
fees
had
been
paid
to
that
Department
since
that
date.
I
might
add
that
on
June
26,
1926,
Dominion
Distillers
Ltd.
forwarded
to
the
Secretary
of
State
a
letter
in
the
following
terms
:
‘““We
take
this
opportunity
of
advising
you
that
with
the
reorganization
of
the
Dominion
Distillery
Products
Company
Limited,
to
the
Dominion
Distillers,
Limited,
that
the
office
which
was
formerly
used
by
the
first
above
mentioned
company
has
been
discontinued.
So
therefore
all
correspondence
which
you
will
have
in
the
future
should
be
addressed
Dominion
Distillers
Limited,
P.O.
670,
Montreal,
Can.
There
is
no
longer
any
office
at
1185
St.
James
St.
So
we
would
consider
it
a
great
favour
if
you
would
advise
your
office
as
to
this
change.’’
The
Companies
Act,
R.S.C.
1927,
c.
27,
sec.
29,
provided
that:
“In
case
of
non-user
by
the
company
of
its
charter
for
three
consecutive
years
or
in
case
the
company
does
not
go
into
actual
operation
within
three
years
after
the
charter
is
granted,
such
charter
shall
be
and
become
forfeited.
‘
‘
Sec.
29
of
the
Act
was
amended
by
e.
9,
sec.
12,
of
the
Statutes
of
Canada,
1930,
by
adding
thereto
the
following
subsection
:
"
"
In
any
case
of
doubt
whether
a
charter
has
become
forfeited
under
this
section,
if
the
Secretary
of
State
is
satisfied
by
such
evidence
as
he
may
require
that
the
charter
is
subsisting
and
valid,
he
may
by
supplementary
letters
patent
so
declare.’’
I
might
add
that
the
Companies
Act
was
re-enacted
by
c.
33,
of
the
Statutes
of
Canada,
1934,
assented
to
June
28,
1934,
and
sec.
28
formerly
sec.
29,
is
now
as
follows:
""
(1)
If
a
company
does
not
go
into
actual
bona
fide
operation
within
three
years
after
incorporation
or
for
three
consecutive
years
does
not
use
its
corporate
powers
its
charter
shall
be
and
become
forfeited.
(2)
In
any
action
or
proceeding
where
such
non-user
is
alleged
proof
of
user
shall
lie
upon
the
company.
(3)
The
Secretary
of
State
may
upon
application
of
any
person
interested
revive
any
charter
so
forfeited
upon
compliance
with
such
conditions
as
be
may
prescribe.
‘
‘
It
was
contended
by
Mr.
Tilley
that
the
suppliant’s
charter
had
become
forfeited
because
of
non-user
for
three
consecutive
years;
that
the
sale
of
the
suppliant’s
business
and
assets
carried
with
it
every
right
the
suppliant
possessed,
even
the
claim
against
the
Crown;
and
that,
in
any
event,
the
authorization
of
Mr.
George
to
initiate
this
petition
of
right
proceeding
was
given
as
an
individual
and
not
as
president
or
as
a
director
of
the
suppliant
company,
all
of
which
grounds
were
contested
by
Mr.
Forsyth.
In
my
view
of
the
first
ground
of
attack,
that
is,
whether
the
suppliant’s
charter
had
become
forfeited,
it
is
not
necessary
to
pronounce
any
opinion
upon
the
last
two
mentioned
points.
The
intention
and
purpose
of
sec.
29
of
the
Companies
Act,
as
found
in
the
Revised
Statutes
of
1927,
and
as
amended
in
1930,
seems
to
me
to
be
quite
clear,
and
there
is
much
to
be
said
for
the
existence
of
such
a
legislative
provision.
It
seems
to
me
that
the
statute
automatically,
and
without
any
preliminary
procedure,
operates
a
forfeiture
of
a
charter,
if
in
fact
there
has
been
non-user
of
the
corporate
powers
for
three
consecutive
years.
Any
doubt
as
to
this
seems
to
be
put
at
rest
by
the
amending
enactment,
c.
9,
sec.
12,
of
the
Statutes
of
1930.
From
the
section
as
thus
amended,
I
think,
it
is
clear
that
the
legislature
intended
that
forfeiture
for
non-user
would
take
place
automatically,
without
any
procedure
previously
taken
by
any
publie
authority
responsible
for
the
administration
of
the
Companies
Act,
or
by
the
company
concerned,
but
if
any
doubt
existed
as
to
whether
upon
the
facts
forfeiture
occurred,
machinery
was
provided
for
removing
that
doubt,
and
if
the
Secretary
of
State
were
satisfied,
on
the
application
of
the
company
no
doubt,
that
the
charter
was
in
point
of
fact
subsisting
and
valid
he
might
by
supplementary
letters
patent
so
declare.
This
means,
I
think,
that
a
charter
prima
facie
forfeited,
might,
upon
cause
shown,
be
declared
valid,
and
unless
automatic
forfeiture
for
non-user
were
intended
by
the
statute
no
purpose
would
be
served
by
providing
a
procedure
whereby
such
a
charter
might
be
declared
valid
by
supplementary
letters
patent.
There
can
be
no
doubt
upon
the
facts
here
that
for
three
and
more
consecutive
years,
after
some
month
in
1926,
there
was
non-user
of
the
suppliant’s
corporate
powers,
for
any
purpose
whatever,
and
the
facts
clearly
indicate,
I
think,
that
the
directors
and
shareholders
of
the
suppliant
company
regarded
the
charter
as
having
lapsed.
And
the
suppliant
never
applied
to
the
Secretary
of
State
for
a
declaration
validating
the
charter.
There
may
be
doubt
as
to
whether
see.
28
of
the
Companies
Act,
1934,
may
be
referred
to
here
and
I
am
not
therefore
relying
upon
it.
It
is
my
view
that
the
suppliant
company
had
ceased
to
exist
by
reason
of
the
forfeiture
of
its
charter
for
non-user;
the
petition
herein
was
therefore
unauthorized
and
is
a
nullity,
and
upon
this
ground
the
suppliant
fails.
The
Exchequer
Court
Act
provides
that
the
laws
relating
to
prescription
and
the
limitations
of
actions
in
force
in
any
province
between
subject
and
subject,
shall,
subject
to
the
provisions
of
any
Act
of
the
Parliament
of
Canada,
apply
to
any
proceeding
against
the
Crown
in
respect
of
any
cause
of
action
arising
in
such
province.
This
cause
of
action,
I
think,
arose
in
the
Province
of
Ontario.
The
Ontario
Limitation
Act,
R.S.O.,
c.
106,
sec.
48,
subsec.
1(b)
provides
that
an
action
upon
a
‘‘bond,
or
other
specialty”
shall
be
commenced
within
twenty
years
after
the
cause
of
action
arose,
and
by
subsec.
1(g),
within
six
years
in
the
case
of
an
action
for
‘‘trespass
to
goods
or
land,
simple
contract
or
debt
grounded
upon
any
lending
or
contract
without
specialty,
debt
for
arrears
of
rent,
detinue,
replevin
or
upon
the
case
other
than
for
slander.’’
It
is
pleaded
by
the
suppliant
that
under
the
provisions
of
the
Inland
Revenue
Act.
and
the
Special
War
Revenue
Act,
as
in
force
at
the
material
time,
it
is
entitled
to
the
return
of
the
moneys
in
question,
and
that
under
the
said
statutes
the
said
moneys
are
due
and
payable,
and
to
be
refunded
by
the
Crown
to
the
suppliant.
The
contention
is
therefore
advanced
that
the
suppliant’s
claim,
being
founded
upon
these
two
statutes,
is
a
specialty
debt,
and
not
barred
until
the
lapse
of
twenty
years
after
the
accrual
of
the
cause
of
action.
The
Crown
contests
this
proposition
and
urges
that
the
claim
is
one
for
money
had
and
received,
or,
in
an
action
upon
the
case,
and
therefore
barred
by
the
lapse
of
more
than
six
years
from
the
time
the
cause
of
action
arose.
It
seems
to
be
established
by
the
authorities
that
an
action
for
a
statutory
debt,
or
an
action
brought
upon
a
statute,
is
an
action
upon
a
specialty,
but
that
there
is
a
distinction
between
an
action
given
by
a
statute,
and
an
action
on
the
statute.
Illustrative
of
this
point
there
are
certain
well
known
authorities
and
they
are
discussed
by
Romer,
J.
in
the
case
of
Aylott
v.
West
Ham
Corporation
[1927]
1
Ch.
30,
and
in
referring
to
such
authorities
I
shall
employ
almost
the
precise
language
of
Romer,
J.
In
Cork
and
Bandon
Railway
Co.
v.
Goode
(1853)
13
C.B.
826,
an
action
to
recover
calls
on
shares
was
brought
by
the
railway
company
which
was
subject
to
the
provisions
of
the
Companies
Clauses
Act,
1845.
The
declaration
stated
that
the
defendant
was
the
holder
of
thirty
shares
in
the
plaintiff
company
and
was
indebted
to
the
company
in
a
certain
sum
in
respect
of
certain
calls,
whereby
an
action
had
accrued
to
the
said
company
by
virtue
of
the
Companies
Clauses
Act,
1845,
and
the
company’s
private
Act.
The
defendant
pleaded
that
the
action
was
founded
upon
contracts
without
specialty
and
that
the
cause
of
action
did
not
accrue
within
six
years
before
the
suit.
lit
was
held
that
the
plea
was
bad,
as
the
action
was
founded
upon
the
statute
and
therefore
upon
a
specialty;
that
but
for
the
Act
of
Parliament,
no
action
could
be
brought
by
the
company
against
one
of
its
members;
and
that
the
action
was
brought
in
respect
of
a
liability
entirely
created
by
statute
and
therefore
was
an
action
founded
upon
the
statute.
Maule,
J.
after
stating
that
it
was
manifest
upon
reading
the
declaration
that
it
was
a
declaration
in
debt
founded
upon
the
two
statutes
said
(p.
835)
:
"‘Now,
a
declaration
in
debt
upon
a
statute,
is
a
declaration
upon
a
specialty;
and
it
is
not
the
less
so
because
the
facts
which
bring
the
defendant
within
the
liability,
are
facts
dehors
the
statute
;
that
must
constantly
arise
in
actions
for
liabilities
arising
out
of
statutes
.
.
.
There
may,
undoubtedly,
be
cases
where
a
statute
enables
an
action
to
be
brought,
which
nevertheless
is
not
an
action
on
the
act
of
parliament.
But
the
question
is,
whether
that
state
of
facts
exists
here.
I
think
it
manifestly
appears
that
this
in
an
action
of
debt,
and
upon
the
statute,
and
therefore
an
action
upon
a
specialty.’’
In
the
case
of
In
re
Cornwall
Minerals
Ry.
Co.
[1897]
2
Ch.
74
the
question
was
as
to
whether
the
liability
of
a
railway
company
to
pay
interest
on
debenture
stock
issued
under
the
Companies
Clauses
Act,
1863,
was
a
statutory
liability,
and
there
it
was
held,
by
Vaughan
Williams,
J.
on
the
principle
laid
down
in
the
Cork
and
Bandon
Railway
case,
that
the
liability
to
pay
the
interest
was
to
be
found
in
the
statute
alone.
But,
again
it
is
to
be
observed,
the
fact
that
a
liability
to
make
a
payment
is
imposed
by
statute
does
not
necessarily
lead
to
the
conclusion
that
an
action
brought
to
enforce
such
liability
is
an
action
upon
a
specialty.
In
the
case
of
Thomson
v.
Lord
Clanmorris
[1900]
1
Ch.
718
an
action
was
brought
against
certain
directors
to
recover
compensation
under
the
Directors
Liability
Act,
1890,
for
alleged
untrue
statements
in
a
prospectus,
and
which
Act
was
passed
to
obviate
the
conclusion
arrived
at
as
to
the
liability
of
directors
in
Derry
v.
Peek
(1889)
14
App.
Cas.
337.
It
was
contended
by
the
directors
that
the
action
was
one
for
"'penalties,
damages
or
sums
of
money
given
to
the
party
grieved
by
any
statute”
within
the
meaning
of
sec.
3
of
the
Civil
Procedure
Act,
1833,
and
that,
inasmuch
as
the
action
had
not
been
commenced
within
two
years
after
the
plaintiff’s
cause
of
action
arose,
his
claim
was
barred
by
that
section.
This
contention
was
held
unsound,
and,
as
the
action
was
commenced
within
six
years
of
the
accrual
of
the
cause
of
action,
it
did
not
become
necessary
to
determine
whether
the
action
was
governed
by
the
Civil
Procedure
Act,
or
21
Jac.
1,
c.
16.
But
in
giving
judgment
Vaughan
Williams,
J.
expressly
dealt
with
that
point.
He
said
(p.
727)
:
"One
must
consider
what
is
really
the
nature
of
the
enactment
contained
in
s.
3
of
the
Directors
Liability
Act,
1890.
And
it
seems
to
me
that,
though
that
section
does
not
in
form
give
a
new
action
though
it
only
says
that
directors
and
others
'shall
be
liable
to
pay
compensation
to
all
persons
who
shall
subscribe
for
any
shares
on
the
faith
of
the
prospectus
for
the
loss
or
damage
they
may
have
sustained
by
reason
of
any
untrue
statement
in
the
prospectus,’
yet
what
the
section
really
does
is
to
give
a
new
action
on
the
case.
It
creates
a
new
negative
duty.
The
directors
or
promoters,
or
whatever
other
class
is
included
in
this
section,
have
cast
upon
them
a
new
duty
in
respect
of
prospectuses
and
similar
documents.
Speaking
generally,
one
may
say
that
the
Act
creates
a
new
statutory
duty
of
accuracy—a
new
statutory
duty
to
abstain
from
inaccurate
and
untrue
statements,
and
then
in
effect
gives
a
new
action
on
the
case
to
those
persons
who
may
have
been
injured
by
the
neglect
of
that
statutory
duty.
It
seems
to
me,
therefore,
that
this
case
is
provided
for
by
the
statute
21
Jac.
1,
e.
16.
The
action
is
an
action
on
the
case,
and
if
so
of
course
the
six
years’
limitation
would
apply.
But
it
is
said
that
this
is
not
an
action
on
the
case,
but
an
action
on
the
statute,
and
Cork
and
Bandon
Ry.
Co.
v.
Goode
(supra)
is
relied
on.
But
it
must
be
remembered
that
there
the
action
was
for
a
statutory
debt,
and
the
sole
question
was
whether
that
debt
was,
within
the
terms
of
s.
3
of
the
statute
of
James,
‘grounded
on
a
contract
without
specialty.’
It
does
not
seem
to
me
that
that
decision
is
really
material
to
the
case
now
before
us.
Maule
J.
pointed
out
that
there
is
a
difference
between
an
action
which
is
given
by
a
statute
and
an
action
on
the
statute.
Cork
and
Bandon
Ry.
Co.
v.
Goode
(supra)
was
an
action
of
debt
on
the
statute.
And,
as
I
have
already
said,
the
only
question
there
really
was
whether
the
action
came
within
the
words
of
s.
3
of
the
statute
of
James.
In
the
present
case
it
seems
to
me
that
a
new
duty
of
accuracy
in
respect
of
the
preparation
and
issue
of
prospectuses
is
created,
and
an
action
on
the
case
is
given
to
those
persons
who
are
injured
by
the
breach
of
that
duty.
It
is
said
that
this
is
a
new
form
of
statute.
But
I
do
not
think
that
in
substance
this
statute
differs
from
the
Statute
of
Marlbridge
(52
Hen.
3,
e.
1
and
c.
4),
by
which,
in
respect
of
not
only
illegal
but
irregular
and
excessive
distresses,
it
is
provided
that,
notwithstanding
the
liability
to
punishment,
‘nevertheless
sufficient
and
full
amends
shall
be
made
to
them
that
have
sustained
loss
by
such
distress.’
So
here
it
seems
to
me
that
the
effect
of
s.
3
of
the
Act
of
1890
is
that
amends
shall
be
made
to
those
who
have
sustained
loss
by
being
induced
to
subscribe
for
shares
by
reason
of
misstatements
in
the
prospectus.
‘
‘
By
the
statute
a
liability
was
imposed
upon
the
directors
to
pay
compensation.
Apart
from
the
statute
they
were
not
liable.
But
the
Lord
Justice
treated
the
action
not
as
one
brought
on
the
statute,
but
as
an
action
given
by
the
statute,
although
in
terms
the
statute
did
not
purport
to
give
any
right
of
action.
I
have
earlier
quoted
all
the
provisions
of
the
Inland
Revenue
Act,
and
the
Special
War
Revenue
Act,
which
are
at
all
relevant
to
this
point.
Those
provisions,
it
seems
to
me,
are
far
from
creating
a
statutory
liability,
or
giving
an
action
for
a
statutory
debt,
or
an
action
on
the
statute;
and
they
do
not
even,
in
express
terms,
purport
to
give
any
right
of
action.
As
a
matter
of
fact
the
only
relief
available
to
the
defendant
is
by
way
of
petition
of
right.
Therefore,
in
my
opinion
this
is
not
an
action
upon
a
specialty,
and
the
limitation
period
of
twenty
years
does
not
apply
here.
It
was
contended
on
behalf
of
the
Crown
that
the
claim
here
was
one
falling
within
sec.
48,
subsec.
1(g)
of
the
Ontario
Limitation
Act,
and
that
it
was
one
for
money
had
and
received,
or,
an
action
on
the
case.
The
forms
of
action
have
now
been
abolished,
and
therefore
the
suppliant’s
claim
is
not
specifically
laid
in
simple
contract,
debt,
money
had
and
received
or
on
the
case;
all
that
is
now
required
is
that
every
pleading
shall
contain
a
statement
in
summary
form
of
the
material
facts
on
which
the
party
pleading
relies.
But
it
is
still
often
of
importance,
in
considering
the
question
whether
a
plaintiff
has
a
cause
of
action
under
particular
circumstances,
and
in
determining
the
period
of
limitation
prescribed
for
the
particular
ground
of
complaint
in
question,
to
inquire
what
should
have
been
the
form
of
action
under
the
old
practice.
‘‘Relief’’
in
the
Petition
of
Right
Act
includes
every
species
of
relief
claimed
or
prayed
for,
whether
a
restitution
of
any
incorporeal
right,
or
a
return
of
lands
or
chattles,
or
payment
of
money,
or
damages,
or
otherwise.
Simple
contracts
include
all
contracts
which
are
not
contracts
of
record
or
contracts
under
seal,
or
specialties,
and
they
may
be
either
wholly
or
partly
implied.
A
contract
is
in
some
cases
said
to
be
implied
by
law,
which
really
is
an
obligation
imposed
by
law
independently
of
any
actual
agreement
between
the
parties,
and
may
even
be
imposed
notwithstanding
an
expressed
intention
by
one
of
the
parties
to
the
contrary;
it
is
an
obligation
of
the
class
known
in
the
civil
law
as
quasi-contracts.
As
already
mentioned,
in
the
ease
of
simple
contract
or
debt
grounded
on
any
contract
without
specialty,
the
period
of
limitation
is
six
years
under
the
Ontario
Limitation
Act.
It
was
particularly
contended
by
Mr.
Tilley
that
the
form
of
the
suppliant’s
form
of
claim
or
action
was
one
for
money
had
and
received
under
an
implied
contract.
The
historic
basis
of
such
a
claim
or
action
is
a
promise
implied
by
law.
While
the
basis
of
such
a
claim
or
action
is
a
contract
implied
in
law,
yet
that
principle
is
not
to
be
confused
with
the
separate
question
of
when
a
court
will
imply
a
contract.
The
count
for
money
had
and
received
belongs
to
the
field
of
quasi-contracts,
or
contract
implied
by
law,
other
common
counts
belong
to
the
field
of
promises
implied
by
fact.
It
was
laid
down
by
Lord
Mansfield
in
the
much
debated
case
of
Moses
v.
Macferlan
(1760)
2
Burr.
1005
at
p.
1009,
where
any
notion
of
an
actual
contract
was
excluded,
that
""
where
a
defendant
has
received
money
which
in
justice
and
equity
belongs
to
the
plaintiff,
under
circumstances
which
render
the
receipt
a
receipt
by
the
defendant
for
the
use
of
the
plaintiff,
‘
‘
an
action
for
money
had
and
received
may
be
maintained.
Lord
Mansfield
explained
how
in
such
circumstances
the
law
treated
the
defendant
as
being
in
the
same
position
as
if
he
had
ineurred
a
debt:
“If
the
defendant
be
under
an
obligation,
from
the
ties
of
natural
justice,
to
refund;
the
law
implies
a
debt,
and
gives
this
action,
founded
in
the
equity
of
the
plaintiff’s
case,
as
if
it
were
upon
a
contract.
’
’
This
principle
was
held
in
many
later
cases
to
have
been
too
widely
expressed.
It
was
said
that
to
ask
what
course
would
be
ex
aequo
et
bono
to
both
sides
never
was
a
very
precise
guide
and
the
weight
of
authority
seems
to
be
that
there
is
no
ground
for
suggesting
as
a
recognized
equity
the
right
to
recover
money
merely
because
it
would
be
the
right
and
fair
thing
that
it
should
be
refunded
to
the
payer.
However,
I
understand
the
authorities
now
to
hold
that
the
law
will
not
refuse
to
imply
a
promise
to
repay
money
received
where
the
law
can
consistently
impute
to
the
defendant
at
least
the
fiction
of
a
promise.
The
doctrine
enunciated
by
Lord
Mansfield
was
discussed
at
considerable
length
in
the
speeches
of
Lord
Haldane
and
Lord
Sumner
in
the
important
case
of
Sinclair
v.
Brougham
[1914]
A.C,
398,
and
one
of
the
effects
of
the
decision
in
that
case
is
that
in
many
cases
a
contract
may
be
implied
as
a
basis
for
an
action
for
money
had
and
received,
regardless
of
any
moral
obligation.
For
a
very
considerable
time
many
entertained
the
view
that
Lord
Mansfield
in
Moses
v.
Macferlan
(supra)
altered
the
basis
of
the
action
by
introducing
a
theory
of
aequum
et
bonum
to
replace
the
theory
of
a
contract
implied
by
law,
and
that
view
more
or
less
held
the
field
until,
in
1914,
Sinclair
v.
Brougham
(supra)
marked
a
return
to
the
theory
of
implied
contract,
and
that
a
promise
to
repay
money
on
the
part
of
the
recipient
will
be
implied
unless
for
some
reason
the
very
fiction
of
contract
is
excluded
by
law.
In
that
case
the
court
had
to
decide
whether
a
promise
to
pay
could
be
imputed
where
moneys
had
been
deposited
with
the
"‘Burbeck
Bank,’’
under
a
contract
that
was
ultra
vires,
and
it
was
held
that
a
promise
could
not
be
imputed,
and
that
the
courts
will
not
imply
a
contract
in
circumstances
where
an
express
promise
could
not
be
valid.
The
effect
of
this
decision,
as
I
construe
it,
is
to
establish
the
rule
that
the
court
will
not
imply
a
contract
in
circumstances
where
an
express
promise
could
not
be
valid,
but
where
there
is
debt
a
promise
to
repay
on
the
part
of
the
recipient
will
be
implied,
unless
for
some
reason
the
very
fiction
of
a
contract
is
excluded
by
law.
Assuming
then
that
upon
the
facts
disclosed
and
the
statutes
involved,
and
without
having
regard
to
the
Limitation
Act,
the
suppliant
is
entitled
to
the
relief
claimed,
it
seems
to
me
that
the
ground
of
the
suppliant’s
claim
is
in
the
nature
of
a
debt,
and
rests
upon
an
implied
promise
that
the
moneys
in
question
would
be
refunded
if
the
goods
were
shown
to
have
been
exported;
that,
I
think,
is
the
form
of
the
action,
and
it
may
be
said
therefore
to
be
one
for
money
had
and
received,
and
if
not
then
it
is
one
on
the
case.
If
I
be
correct
in
this
view,
then
the
suppliant’s
claim
is
barred
by
sec.
48,
subsec.
1(g)
of
the
Ontario
Limitation
Act
because
the
petition
was
laid
more
than
six
years
after
the
cause
of
action
arose.
I
might
well
conclude
here
but
in
fairness
to
counsel
I
perhaps
should
briefly
refer
to
some
other
points
that
were
raised
and
pressed
upon
me,
even
though
they
be
of
no
ultimate
consequence
in
view
of
the
conclusions
which
I
have
already
expressed.
It
was
contended
by
Mr.
Tilley
that
Walker,
and
not
the
suppliant,
would
be
the
proper
party,
if
any,
to
enforce
a
claim
for
a
refund
of
the
excise
duties
paid.
I
do
not
think
this
contention
is
sound.
The
moneys
paid
over
as
excise
duties
by
Walker
were
those
of
the
suppliant,
and
in
doing
so,
Walker,
I
think,
must
be
held
to
have
acted
merely
as
the
agent
of
the
suppliant.
Because
of
want
of
interest
I
do
not
think
Walker
could
be
heard
to
claim
a
refund
of
such
duties.
If
a
cause
of
action
lies
for
the
recovery
of
the
excise
duties,
then,
it
appears
to
me
it
must
be
with
the
suppliant.
I
do
not
understand
the
same
contention
to
be
advanced
in
respect
of
the
sales
tax.
Mr.
Tilley
also
urged
that
the
Inland
Revenue
Act
does
not
contemplate
a
refund
of
excise
duties
paid
upon
spirits
where
the
same
were
subsequently
sold
and
exported
at
an
advanced
price,
and
so
calculated
as
to
absorb
the
amount
of
such
duties
so
paid.
I
know
of
no
principle
which
would
limit
the
price
the
suppliant,
the
exporter
here,
might
charge
the
United
States
importer,
and
I
cannot
think
there
is
any
substance
in
this
point,
even
if
it
were
conceded
that
the
advanced
price
was
expressly
calculated
to
include
the
excise
duties
paid.
It
was
also
contended
that
there
was
no
proof
that
Walker
sold
the
goods
to
the
suppliant
under
the
arrangement
that
they
were
to
be
exported,
and
that
it
saw
to
it
that
they
were
exported
in
any
event;
this
contention
could
only
be
applicable
to
the
sales
tax.
In
the
Carling
case
it
is
true
that
the
Privy
Council
held
that
the
sales
tax
was
not
payable
if
it
were
established
(a)
that
the
goods
were
sold
under
the
arrangement
that
they
were
to
be
exported,
and
(b)
that
the
Carling
Co.
saw
to
it
that
they
were
so
exported.
But
there
the
Carling
Co.
was
the
exporter.
In
the
Carling
case,
the
goods
were
manufactured
and
sold
by
the
Carling
Co.
for
export,
to
the
United
States,
and
proof
of
export
was
necessary
to
secure
the
exemption;
it
was
hardly
necessary
to
say
that
it
had
to
be
established
that
the
arrangement
was
that
the
goods
were
to
be
exported,
and
that
the
Carling
Co.
was
to
see
that
the
goods
were
in
fact
exported
;
all
that
would
be
implied
in
any
sale
of
goods
for
export.
I
assume
that
if
some
unquestioned
proof
of
export
had
been
made,
and
there
was
entirely
lacking
any
evidence
of
any
specific
engagement
on
the
part
of
the
Carling
Co.
to
see
that
the
goods
were
in
fact
exported,
that
the
Crown
would
have
failed
in
its
action,
as
it
did.
The
Carling
case
held
that
an
export
of
beer
to
the
United
States
was
within
the
exempting
provisions,
although
the
import
was
contrary
to
the
law
of
that
country,
and
that
the
prohibitory
laws
of
the
United
States
only
affected
the
quantum
of
proof
of
export;
and
the
Judicial
Committee’s
notion
of
proof
of
export
was
satisfied
by
that
series
of
facts
mentioned
in
their
judgment.
Once
it
is
conceded
that
at
the
material
time
a
Canadian
might
export
beer
or
spirits
to
the
United
States,
and
be
entitled
to
exemption
from
the
sales
taxes,
then,
in
my
opinion,
only
the
fact
of
export
is
to
be
established,
and
that
may
be
done
in
the
same
way
as
any
other
question
of
fact
is
established,
that
is
to
say,
it
must
be
done
to
the
satisfaction
of
the
tribunal
trying
the
issue
of
fact;
and
in
the
case
of
the
sales
tax
it
is
not,
I
think,
a
requirement
that
the
manufacturer
be
the
exporter,
nor
do
I
understand
that
such
was
decided
in
the
Carling
case.
Subsec.
10
of
sec.
19BBB
could
never
have
contemplated
that
only
the
manufacturer
of
domestic
goods
was
entitled
to
the
exemption
on
exported
goods.
Therefore
I
do
not
think
it
ean
be
successfully
contended
that
when
Walker
sold
the
goods
In
question
to
the
suppliant
here,
it
was
a
necessary
condition
of
the
sale
that
the
goods
were
to
be
exported,
before
the
suppliant
would
be
entitled
to
the
exemption.
The
next
point
is
one
of
general
importance,
and
its
application
here
is
subject
to
many
difficulties.
It
is
contended
that
the
spirits
were
released
for
domestic
consumption
from
Walker’s
bonding
warehouse
and
that
the
excise
duties
having
been
so
paid
they
cannot
now
be
refunded.
All
the
circumstances
attending
the
transactions
in
question
clearly
indicate,
I
think,
that
the
suppliant
purchased
the
spirits
with
the
intention
and
for
the
purpose
of
exporting
the
same;
in
the
circumstances
of
the
time
any
other
suggestion
would
seem
altogether
improbable.
It
is
difficult
to
understand
why,
in
the
circumstances,
the
excise
taxes
were
exacted
or
paid
and
there
is
practically
no
evidence
to
enlighten
one
upon
the
point.
The
spirits
might,
under
the
statute,
have
been
removed
from
Walker’s
bonding
warehouse
to
that
of
the
suppliant
without
payment
of
duty;
in
fact
I
am
unable
to
see
how
the
suppliant,
as
an
exporter,
could
lawfully
be
denied
the
right
of
shipping
the
same
directly
from
the
former
warehouse,
without
payment
of
duty,
to
a
designated
port
of
export,
if
it
were
to
be
permitted
at
all
to
export
to
the
United
States;
that,
I
think,
is
now
made
more
clear
by
the
decision
in
the
Carling
case.
The
goods
apparently
were
not
removed
from
the
Walkerville
warehouse
for
domestic
consumption,
otherwise
such
an
entry
would
have
been
made
on
the
form
prescribed
by
the
regulation,
and
it
would
have
been
in
evidence.
Again,
they
were
not
entered
for
consumption
at
Montreal,
but
on
the
contrary
were
there
entered
for
export,
and
up
to
that
time
the
goods
had
never
been
released
from
customs.
If
the
goods
were
in
fact
intended
to
be
entered
for
consumption,
either
at
Walkerville
or
Montreal,
then
it
would
appear
that
the
statute
and
regulations
were
not
observed,
and
it
is
difficult
to
attribute
this
to
error
or
oversight.
If
excisable
goods
are
removed
from
a
warehouse
for
consumption,
that
would
be
a
matter
of
record,
and
sec.
73
of
the
Inland
Revenue
Act
requires
payment
of
the
excise
duty
thereon
before
the
removal;
in
this
case
it
is
only
by
reason
of
the
payment
of
the
excise
duty
before
removal
from
the
Walkerville
warehouse
that
removal
for
consumption
might
be
inferred,
but
otherwise
there
is
no
evidence
upon
this
point.
Sec.
174
of
the
Act
provides
that
the
duty
paid
on
spirits
taken
out
of
warehouse
"‘for
consumption,
or
which
have
gone
directly
into
consumption/’
shall
not
be
refunded
upon
the
exportation
of
such
spirits
out
of
Canada,
unless
specially
permitted
by
some
regulation
made
by
the
Governor
in
Council
in
that
behalf.
It
is
difficult
to
say
just
what
was
the
intended
purpose
of
this
section,
or
why
it
is
found
just
where
it
is
in
the
Act.
It
is
arguable
that
the
section
was
intended
to
apply
only
to
spirits
removed
to
a
bonded
manufactory,
for
a
bonded
manufacturer.
Having
provided
by
sec.
73
for
the
payment
of
duty
in
the
ordinary
case
of
removal
of
goods
from
a
warehouse
for
consumption,
it
is
difficult
to
conclude
that
the
words
"‘or
which
have
gone
directly
into
consumption”
in
sec.
174
could
have
been
intended
to
refer
to
spirits
other
than
that
which
had
gone
into
consumption
in
the
manufacture
of
other
goods,
in
a
bonded
manufactory.
However,
reading
the
section
literally,
there
is
no
evidence
that
the
spirits
were
removed
for
consumption,
or
that
they
went
directly
into
consumption
in
any
way.
See.
174
provides
for
a
refund
being
made
upon
exportation,
but
only
when
specially
permitted
by
regulation;
there
then
arises
the
question
whether,
in
the
absence
of
such
regulations,
the
statutory
right
to
a
refund
is
thereby
rendered
nugatory;
this
would
seem
to
impose
a
hardship,
not
intended
by
the
legislature,
upon
a
bona
fide
exporter,
and
the
authorities
would
seem
to
be
to
the
effect
that
the
exporter
in
such
a
case
was
not
to
be
prejudiced
by
reason
of
the
failure
to
make
the
necessary
regulations
applicable
thereto,
and
as
authorized
by
statute.
If
it
appeared
from
the
evidence
that
the
suppliant
was
a
willing
party
to
the
payment
of
the
duties
on
the
basis
of
their
removal
from
warehouse
for
domestic
consumption,
for
its
own
convenience,
protection
or
advantage,
though
actually
export
was
intended,
the
question
for
determination
might
then
be
a
different
one.
The
facts
and
the
statute
relating
to
this
point
are
so
difficult
and
confusing,
and
the
whole
procedure
attending
the
transactions
involved
is
so
unusual,
that
I
refrain
from
pronouncing
any
definite
opinion
upon
this
point
until
it
arises
under
a
more
definite
state
of
facts;
and
it
is
unlikely
that
the
point
will
arise
again
in
quite
the
same
state
of
facts
and
circumstances.
I
therefore
rest
my
Judgment
upon
the
defences
already
discussed.
Before
concluding
I
might
make
a
brief
but
inconclusive
reference
to
the
contention
advanced
by
Mr.
Tilley
that
the
transfer
of
the
suppliant’s
undertaking
as
a
going
concern,
to
Dominion
Distillers
Ltd.,
included
any
right
which
the
suppliant
had
in
the
claim
here
sued
upon,
and
that
the
suppliant
had
no
further
interest
in
the
said
claim.
At
the
moment
I
am
rather
im-
pressed
with
this
view.
The
claim
which
is
sought
to
be
recovered
here
is
in
the
nature
of
a
debt,
and
claims
for
a
refund
of
duties
paid
the
Crown
must
be
quite
common
in
the
experience
of
business
concerns
who
are
importers
of
goods,
or
dealers
in
excisable
goods
;
in
the
event
of
the
sale
or
transfer
of
the
undertaking
of
such
a
business,
as
a
going
concern,
it
seems
to
me
that
the
transfer
should
be
interpreted
to
include
debts
or
claims
of
the
nature
mentioned
unless
there
was
a
specific
reservation
of
the
same.
The
assignment
here
was
not
one
of
a
right
of
action
which
offends
against
the
law
relating
to
champerty,
nor
does
it
seem
to
fall
within
any
other
exception
applicable
to
assignments
of
debts,
and
choses
in
action.
There
may
be
some
doubt,
as
contended,
as
to
whether
a
petition
of
right
would
lie
against
the
Crown
by
an
assignee
in
a
matter
of
this
kind.
It
was
urged
on
behalf
of
the
suppliant
that
because
the
claim
in
question
was
not
one
enforceable
by
an
assignee,
against
the
Crown,
that
it
therefore
remained
an
asset
belonging
to
the
suppliant
company
and
that
this
fact
was
evidence
of
the
continued
corporate
existence
of
the
suppliant.
Robertson,
Civil
Proceedings
By
and
Against
the
Crown,
chapter
3,
states
that
there
seems
to
be
no
reason
why,
subject
to
limitations
of
general
application,
any
person
or
persons
should
not
present
a
petition
of
right
who
would
be
entitled
to
bring
an
action
against
a
subject,
whether
jointly
or
severally,
by
assignment,
representation,
or
succession.
While
I
am
presently
inclined
to
the
view
that
a
claim
of
the
nature
in
question,
against
the
Crown,
is
one
that
is
assignable,
yet
I
do
not
propose
expressing
any
definite
opinion
upon
the
point.
I
omitted
earlier
to
explain
that
the
title
of
the
Inland
Revenue
Act,
R.S.C.
1906,
c.
51,
was,
by
c.
26
of
the
Statutes
of
Canada,
1921,
changed
to
the
i(
Excise
Act,’’
but
I
thought
it
more
convenient
and
less
susceptible
to
confusion
to
refer
to
the
Act
under
its
former
title.
The
petition
is
therefore
dismissed
and
costs
will
follow
the
event.
Petition
dismissed.
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