ANGERS,
J.:—The
plaintiff,
by
his
action,
seeks
to
recover
from
the
defendant
the
sum
of
$68,182.54,
made
up
as
follows:
$67,632.54
allegedly
collected
by
the
defendant,
under
colour
of
the
Special
War
Revenue
Act,
in
excess
of
the
sum
it
was
required
to
pay
to
His
Majesty
as
consumption
or
sales
tax
and
$500
penalty.
The
action
is
brought
under
the
provisions
of
s.
119
of
the
Act.
The
information
says
in
substance
as
follows
:—
By
s.
86
of
the
Special
War
Revenue
Act,
R.S.C.
1927,
c.
179,
it
is
enacted
that,
since
April
7,
1932,
"‘there
shall
be
imposed,
levied
and
collected
a
consumption
or
sales
tax
of
six
per
cent.
on
the
sale
price
of
all
goods,
produced
or
manufactured
in
Canada,
payable
by
the
producer
or
manufacturer
at
the
time
of
the
delivery
of
such
goods
to
the
purchaser
thereof,’’
of
goods
‘‘imported
into
Canada,
payable
by
the
importer
or
transferee
who
takes
the
goods
out
of
bond
for
consumption,’’
and
of
goods
‘‘sold
by
a
licensed
wholesaler,
payable
by
the
vendor
at
the
time
of
delivery
by
him.”
By
s.
119
enacted
and
effective
as
and
from
June
28,
1934
(c.
42,
s.
14),
it
is
provided
that
‘‘Everyone
liable
under
this
Act
to
pay
to
His
Majesty
any
of
the
taxes
hereby
imposed,
or
to
collect
the
same
on
His
Majesty’s
behalf,
who
collects,
under
colour
of
this
Act,
any
sum
of
money
in
excess
of
such
sum
as
he
is
hereby
required
to
pay
to
His
Majesty,
shall
pay
to
His
Majesty
all
moneys
so
collected,
and
shall
in
addition
be
liable
to
a
penalty
not
exceeding
five
hundred
dollars.”
Prior
to
April
7,
1932,
there
had
been
imposed
by
similar
legislation
to
that
contained
in
s.
86
a
consumption
or
sales
tax
of
4%
instead
of
6%.
The
defendant
for
many
years
prior
to
April
7,
1932,
and
since
that
time
has
carried
on
business
as
manufacturer
of
cigars,
cigarettes,
tobaccos
and
accessories
and
as
such
was
and
is
at
all
times
in
question
herein
required
to
pay
to
plaintiff
a
consumption
or
sales
tax
on
the
goods
manufactured
and
sold
by
it.
Prior
to
April
7,
1932,
during
the
period
when
the
sales
tax
was
at
the
rate
of
4%,
the
defendant
did
not
charge
the
sales
tax
as
a
separate
item
on
its
invoices
but
charged
its
customers
a
composite
price
which
included
the
said
tax.
After
April
7,
1932,
when
the
rate
was
increased
from
4%
to
6%,
the
defendant
continued
to
charge
its
customers
the
composite
prices
prevailing
prior
to
the
said
date,
adding
thereto
2%
of
such
composite
prices
on
account
of
sales
tax
and
the
said
2%
was
shown
as
a
separate
item
on
every
invoice.
The
said
item
of
2%
was
collected
from
customers
as
being
the
increase
in
the
rate
of
sales
tax
imposed
from
the
7th
of
April,
1932,
but
actually
represented
more
than
the
said
increase
inasmuch
as
the
said
2%
was
computed
on
the
whole
of
the
composite
price,
including
the
sales
tax
theretofore
charged.
By
this
means
the
defendant,
under
colour
of
the
statute,
collected
during
the
period
from
July
1,
1934,
to
December
31,
1935,
the
sum
of
$67,632.54
in
excess
of
the
amount
which
it
was
required
to
pay
to
His
Majesty.
The
Attorney-General,
on
behalf
of
His
Majesty,
claims
:
judgment
in
the
said
sum
of
$67,632.54;
judgment
in
the
penal
sum
of
$500;
such
further
relief
as
shall
seem
meet;
the
costs
of
the
action.
The
defendant,
in
its
defence,
admits
that
as
and
from
June
28,
1934,
it
has
carried
on
business
in
Canada
as
a
manufacturer
of
various
tobacco
products
and
that
as
and
from
that
date
His
Majesty
has
been
entitled
to
receive
from
it
payment
of
consumption
or
sales
tax
as
provided
by
the
Special
War
Revenue
Act,
denies
the
other
allegations
of
the
information
and
says
that
the
same
are
unfounded
in
law
and
irrelevant
and
pleads
in
substance
as
follows
:—
The
defendant,
as
and
from
June
28,
1934,
has
accounted
for
and
paid
to
His
Majesty
all
sums
exigible
from
it
for
consumption
or
sales
tax.
No
sum
or
sums
of
money
in
excess
of
those
required
to
be
paid
by
the
defendant
to
His
Majesty
have
been
collected
by
the
defendant,
under
colour
of
the
Special
War
Revenue
Act,
by
the
means
alleged
in
the
information
or
otherwise,
during
the
period
from
July
1,
1934,
to
December
31,
1935,
or
at
any
time.
The
defendant
has
during
the
said
period,
at
all
times,
furnished
quotations
and
made
sales
of
its
products
to
its
customers
upon
an
unequivocal
and
unambiguous
statement
of
the
price
of
such
products
and
has
received
no
moneys
from
its
customers,
either
under
colour
of
the
Special
War
Revenue
Act
or
otherwise,
which
it
was
not
entitled
to
receive
in
accordance
with
the
prices
quoted
to
and
accepted
by
such
customers.
The
obligation
which
s.
119
purports
to
impose
constitutes
an
interference
with
property
and
civil
rights,
a
matter
coming
within
the
classes
of
subjects
concerning
which
the
legislature
in
each
Province
has
exclusive
power
to
make
laws
by
virtue
of
s.
92
of
the
B.N.A.
Act;
the
Parliament
of
Canada
has
no
authority,
under
any
of
the
classes
of
subjects
enumerated
in
s.
91
of
the
B.N.A.
Act,
to
impose
the
obligation
which
s.
119
purports
to
impose
;
s.
119
is
ultra
vires
of
the
Dominion
of
Canada
and
is
illegal,
null
and
void.
The
claims
made
by
His
Majesty
are
unfounded
in
fact
and
in
law.
A
reply
was
filed
by
the
plaintiff
praying
acte
of
the
admissions
contained
in
the
statement
of
defence
and
denying
the
other
allegations
thereof.
The
section
of
the
Act
imposing
the
consumption
or
sales
tax
is
s.
86;
the
only
tax
imposed
by
this
section
is
a
tax
of
4,
6
or
8%,
as
the
case
may
be,
according
to
the
period
of
taxation
in
question:
see
R.S.C.
1927,
c.
179,
s.
86;
1931,
c.
54,
s.
11;
1932,
c.
54,
s.
11
;
1936,
c.
45,
s.
5.
Counsel
for
plaintiff
submitted
that
s.
119
creates
an
extension
of
the
tax.
His
claim
is
that
by
s.
86
the
tax
is
made
6%—
or
4
or
8%
depending
on
the
taxation
period—but
that,
if
a
manufacturer
or
producer
collects
more
than
the
tax
imposed
by
s.
86,
he
must
remit
to
the
Government
the
entire
amount
so
collected.
According
to
him,
the
tax,
in
that
case,
is
more
than
the
rate
fixed
by
s.
86
;
it
is
that
plus
the
sum
collected
in
excess
of
the
rate
stipulated
in
the
said
section.
I
must
admit
that
I
cannot
follow
this
mode
of
reasoning.
Section
119
is
not,
in
my
opinion,
a
taxing
section.
It
is
apparently
intended
to
prevent
or
at
least
dissuade
the
producer
or
manufacturer
from
collecting
from
a
purchaser,
under
colour
of
the
Act,
a
sum
exceeding
that
which,
under
s.
86,
he
is
required
to
pay
to
the
Crown
and
from
appropriating
it.
Its
object
is
to
take
away
from
the
manufacturer
or
producer
the
sum
which
he
has
exacted
from
a
customer
in
excess
of
the
amount
which
he
is
obliged
to
pay
to
His
Majesty
and
to
penalize
the
manufacturer
or
producer
guilty
of
such
exaction;
a
further
object
is
to
vest
the
ownership
of
the
sum
thus
illegally
exacted
in
His
Majesty.
Section
119
is,
to
say
the
least,
an
uncommon
piece
of
legislation.
Taxes,
I
may
say
in
passing,
are
imposed
by
statute
and
the
provision
imposing
them
must
be
categorical
and
unambiguous:
Maxwell
on
Interpretation
of
Statutes,
7th
ed.,
p.
246;
Cox
v.
Rabbits
(1878),
3
App.
Cas.
473,
at
p.
478;
Tennant
v.
Smith,
[1892]
A.C.
150,
at
p.
154;
Harris
Co.
Ltd.
v.
Rur.
Mun.
Bjork-
dale,
[1929]
2
D.L.R.
507,
at
p.
512.
It
was
argued
on
behalf
of
the
defendant
that
s.
119,
inasmuch
as
it
purports
to
make
the
taxpayer
liable
to
pay
to
the
Crown
moneys,
which
he
either
deliberately
or
by
mistake
has
collected
from
a
purchaser
in
excess
of
the
amount
which
he
is
bound
to
pay
as
consumption
or
sales
tax,
is
ultra
vires
of
the
Parliament
of
Canada.
The
legislative
powers
of
the
Parliament
of
Canada
and
of
the
Provincial
Legislatures,
apart
from
those
concerning
education
and
agriculture
which
form
the
subject
of
ss.
93
and
95
respectively,
are
governed
by
ss.
91
and
92
of
the
B.N.A.
Act,
1867.
It
seems
to
me
convenient
to
quote
from
these
sections
the
provision
which
are
relevant
to
the
matter
at
issue
:—
"91.
It
shall
be
lawful
for
the
Queen,
by
and
with
the
Advice
and
Consent
of
the
Senate
and
House
of
Commons,
to
make
Laws
for
the
Peace,
Order,
and
good
Government
of
Canada,
in
relation
to
all
Matters
not
coming
within
the
Classes
of
Subjects
by
this
Act
assigned
exclusively
to
the
Legislatures
of
the
Prov-
inces;
and
for
greater
Certainty,
but
not
so
as
to
restrict
the
Generality
of
the
foregoing
Terms
of
this
Section,
it
is
hereby
declared
that
(notwithstanding
anything
in
this
Act)
the
exclusive
Legislative
Authority
of
the
Parliament
of
Canada
extends
to
all
Matters
coming
within
the
Classes
of
Subjects
next
hereinafter
enumerated;
that
is
to
say,—
.
.
.
.
"3.
The
raising
of
Money
by
any
Mode
or
System
of
Taxation
.
.
.
.
41
29.
Such
Classes
of
Subjects
as
are
expressly
excepted
in
the
Enumeration
of
the
Classes
of
Subjects
by
this
Act
assigned
exclusively
to
the
Legislatures
of
the
Provinces.
4
"
And
any
Matter
coming
within
any
of
the
Classes
of
Subjects
enumerated
in
this
Section
shall
not
be
deemed
to
come
within
the
Class
of
Matters
of
a
local
or
private
Nature
comprised
in
the
Enumeration
of
the
Classes
of
Subjects
by
this
Act
assigned
exclusively
to
the
Legislatures
of
the
Provinces.
‘
"‘92.
In
each
Province
the
Legislature
may
exclusively
make
Laws
in
relation
to
Matters
coming
within
the
Classes
of
Subjects
next
hereinafter
enumerated;
that
is
to
say,—
.
.
.
.
‘13.
Property
and
Civil
Rights
in
the
Province.’’
To
determine
whether
an
enactment
is
ultra
vires
of
the
Parliament
of
Canada
one
must
find
out
if
the
subject
thereof
comes
within
the
scope
of
s.
92.
If
the
subject
appears
prima
facie
to
come
within
that
section,
it
is
necessary
to
ascertain
whether
the
subject
also
falls
under
one
of
the
enumerated
heads
in
s.
91.
If
it
does,
the
Dominion
Parliament
has
the
paramount
power
of
legislation
in
relation
thereto.
If
the
subject
does
not
fall
within
either
of
the
sets
of
the
enumerated
heads
in
ss.
91
and
92,
then
the
Dominion
may
have
power
to
legislate
under
the
general
words
contained
in
the
first
paragraph
of
s.
91.
This
method
of
determining
the
respective
powers
of
the
Dominion
Parliament
and
of
the
Provincial
Legislatures
is
laid
down
clearly
in,
among
others,
the
following
decisions
of
the
Judicial
Committee
of
the
Privy
Council,
namely:
Toronto
Electric
Com’rs
v.
Snider,
[1925]
2
D.L.R.
5;
John
Deere
Plow
Co.
v.
Wharton
(1914),
18
D.L.R.
353.
In
the
first
case
above
cited,
Viscount
Haldane
said
(p.
10)
:—
“The
Dominion
Parliament
has,
under
the
initial
words
of
s.
91,
a
general
power
to
make
laws
for
Canada.
But
these
laws
are
not
to
relate
to
the
classes
of
subjects
assigned
to
the
Provinces
by
s.
92,
unless
their
enactment
falls
under
heads
specifically
assigned
to
the
Dominion
Parliament
by
the
enumeration
in
s.
91.
When
there
is
a
question
as
to
which
legislative
authority
has
the
power
to
pass
an
Act,
the
first
question
must
therefore
be
whether
the
subject
falls
within
s.
92.
Even
if
it
does,
the
further
question
must
be
answered,
whether
is
falls
also
under
an
enumerated
head
in
s.
91.
If
so,
the
Dominion
has
the
paramount
power
of
legislating
in
relation
to
it.
If
the
subject
falls
within
neither
of
the
sets
of
enumerated
heads,
then
the
Dominion
may
have
power
to
legislate
under
the
general
words
at
the
beginning
of
s.
91.1
In
the
case
of
John
Deere
Plow
Co.
v.
Wharton
(ubi
supra)
Viscount
Haldane,
L.C.,
expressed
a
similar
opinion
(p.
357)
:—
"‘The
distribution
of
powers
under
the
B.N.A.
Act,
the
interpretation
of
which
is
raised
by
this
appeal,
has
been
often
discussed
before
the
Judicial
Committee
and
the
tribunals
of
Canada
and
certain
principles
are
now
well
settled.
The
general
power
conferred
on
the
Dominion
by
sec.
91
to
make
laws
for
the
peace,
order,
and
good
government
of
Canada,
extends
in
terms
only
to
matters
not
coming
within
the
classes
of
subjects
assigned
by
the
Act
exclusively
to
the
Legislatures
of
the
provinces.
But
if
the
subject
matter
falls
within
any
of
the
heads
of
sec.
92,
it
becomes
necessary
to
see
whether
it
also
falls
within
any
of
the
enumerated
heads
of
sec.
91,
for
if
so,
by
the
concluding
words
of
that
section
it
is
excluded
from
the
powers
conferred
by
sec.
92."’
See
also
Russell
v.
The
Queen
(1882),
7
App.
Cas.
829,
and
Citizens
Ins.
Co.
v.
Parsons
(1881),
7
App.
Cas.
96.
In
the
case
of
Russell
v.
The
Queen,
Sir
Montague
E.
Smith,
who
delivered
the
judgment
of
the
Judicial
Committee
of
the
Privy
Council,
said
(p.
836)
:—
‘
"
The
general
scheme
of
the
British
North
America
Act
with
regard
to
the
distribution
of
legislative
powers,
and
the
general
scope
and
effect
of
sects.
91
and
92,
and
their
relation
to
each
other,
were
fully
considered
and
commented
on
by
this
Board
in
the
case
of
the
Citizens
Insurance
Company
v.
Parsons
(7
App.
Cas.
96).
According
to
the
principle
of
construction
there
pointed
out,
the
first
question
to
be
determined
is,
whether
the
Act
now
in
question
falls
within
any
of
the
classes
of
subjects
enumerated
in
sect.
92,
and
assigned
exclusively
to
the
Legislatures
of
the
Provinces.
If
it
does,
then
the
further
question
would
arise,
viz.,
whether
the
subject
of
the
Act
does
not
also
fall
within
one
of
the
enumerated
classes
of
subjects
in
sect.
91,
and
so
does
not
still
belong
to
the
Dominion
Parliament.
But
if
the
Act
does
not
fall
within
any
of
the
classes
of
subjects
in
sect.
92,
no
further
question
will
remain,
for
it
cannot
be
con-
tended,
and
indeed
was
not
contended
at
their
Lordships’
bar,
that,
if
the
Act
does
not
come
within
one
of
the
classes
of
subjects
assigned
to
the
Provincial
Legislatures,
the
Parliament
of
Canada
had
not,
by
its
general
power
‘to
make
laws
for
the
peace,
order,
and
good
government
of
Canada,”
full
legislative
authority
to
pass
it.”
It
was
argued
for
the
defendant
that
s.
119
interferes
with
property
and
civil
rights,
respecting
which,
under
ss.
91
and
92
of
the
B.N.A.
Act,
Provincial
Legislatures
alone
have
the
right
to
legislate.
This
contention
appears
to
me
well
founded.
The
words
‘‘property
and
civil
rights’’
must
be
interpreted
broadly:
Citizens
Ins.
Co.
v.
Parsons
(ubi
supra),
wherein
Sir
Montague
E.
Smith,
delivering
the
judgment
of
the
Judicial
Committee,
says
(pp.
110-11)
:—
“By
that
section
(94
of
the
British
North
America
Act)
the
parliament
of
Canada
is
empowered
to
make
provision
for
the
uniformity
of
any
laws
relative
to
‘property
and
civil
rights’
in
Ontario,
Nova
Scotia,
and
New
Brunswick,
and
to
the
procedure
of
the
Courts
in
these
three
provinces,
if
the
provincial
legislatures
choose
to
adopt
the
provision
so
made.
The
province
of
Quebee
is
omitted
from
this
section
for
the
obvious
reason
that
the
law
which
governs
property
and
civil
rights
in
Quebec
is
in
the
main
the
French
law
as
it
existed
at
the
time
of
the
cession
of
Canada,
and
not
the
English
law
which
prevails
in
the
other
provinces.
The
words
‘property
and
civil
rights.’
are,
obviously,
used
in
the
same
sense
in
this
section
as
in
No.
13
of
sect.
92,
and
there
seems
no
reason
for
presuming
that
contracts
and
the
rights
arising
from
them
were
not
intended
to
be
included
in
this
provision
for
uniformity.
If,
however,
the
narrow
construction
of
the
words
‘civil
rights,’
contended
for
by
the
appellants
were
to
prevail,
the
dominion
parliament
could,
under
its
general
power,
legislate
in
regard
to
contracts
in
all
and
each
of
the
provinces
and
as
a
consequence
of
this
the
province
of
Quebec,
though
now
governed
by
its
own
Civil
Code,
founded
on
the
French
law,
as
regards
contracts
and
their
incidents,
would
be
subject
to
have
its
law
on
that
subject
altered
by
the
dominion
legislature,
and
brought
into
uniformity
with
the
English
law
prevailing
in
the
other
three
provinces,
notwithstanding
that
Quebec
has
been
carefully
left
out
of
the
uniformity
section
of
the
Act.
“It
is
to
be
observed
that
the
same
words,
‘civil
rights,’
are
employed
in
the
Act
of
14
Geo.
3,
c.
83,
which
made
provision
for
the
Government
of
the
province
of
Quebec.
Sect.
8
of
that
Act
enacted
that
His
Majesty’s
Canadian
subjects
within
the
Prov-
ince
of
Quebec
should
enjoy
their
property,
usages,
and
other
civil
rights,
as
they
had
before
done,
and
that
in
all
matters
of
controversy
relative
to
property
and
civil
rights
resort
should
be
had
to
the
laws
of
Canada,
and
be
determined
agreeably
to
the
said
laws.
In
this
statute
the
words
‘property’
and
‘civil
rights’
are
plainly
used
in
their
largest
sense;
and
there
is
no
reason
for
holding
that
in
the
statute
under
discussion
they
are
used
in
a
different
and
narrower
one.’’
It
was
urged
on
behalf
of
plaintiff
that
the
authority
exercised
by
section
119
is
ancillary
to
the
raising
of
money
by
the
system
of
sales
tax;
in
support
of
his
contention
counsel
relied
upon
the
following
cases:
A.-G.
Ont.
v.
A.-G,
Can.,
[1894]
A.C.
189;
G.T.R.
Co.
v.
A.-G.
Can.,
[1907]
A.C.
65;
Toronto
v.
C.P.R.
Co.,
[1908]
A.C.
54;
Montreal
v.
Montreal
Street
R.
Co.
(1912),
1
D.L.R.
681;
Montreal
v.
Montreal
Harbour
Com’rs,
[1926]
1
D.L.R.
840;
A.-G.
Que.
v.
Larue,
[1928]
1
D.L.R.
945.
After
carefully
considering
the
arguments
and
authorities
submitted
by
counsel,
I
have
come
to
the
conclusion
that
s.
119
cannot
be
considered
as
ancillary
or
incidental
to
the
collection
of
the
tax
imposed
by
s.
86.
It
was
submitted
by
counsel
for
defendant
that,
where
a
power
not
enumerated
in
s.
91
of
the
B.N.A.
Act
is
utilized
by
the
Dominion
Parliament,
it
is
ultra
vires
unless
it
can
be
shown
that
it
is
not
only
helpful
but
absolutely
necessary
to
the
exercise
of
such
power.
This
principle
was
affirmed
in
the
following
case:
Re
Fisheries
Act,
1914
(A.-G.
Can.
v.
A.-G.
B.C.),
[1930]
1
D.L.R.
194,
where
Lord
Tomlin
said
(p.
197)
:—
“It
is
within
the
competence
of
the
Dominion
Parliament
to
provide
for
matters
which,
though
otherwise
within
the
legislative
competence
of
the
provincial
legislature,
are
necessarily
incidental
to
effective
legislation
by
the
Parliament
of
the
Dominion
upon
a
subject
of
legislation
expressly
enumerated
in
s.
91
(see
A.-G.
Ont.
v.
A.-G.
Can.
(the
Assignments
&
Preferences
Case),
[1894]
A.C.
189,
and
A.-G.
Ont.
v.
A.-G.
Dom.,
[1896]
A.C.
348).”
Lord
Sankey
expressed
a
similar
opinion
in
Re
Aerial
Navigation,
A.-G.
Can.
v.
A.-G.
Ont.,
[1932]
1
D.L.R.
58,
39
C.R.C.
108.
Reference
may
also
be
had
to
the
case
of
Montreal
v.
Montreal
Street
R.
Co.
(ubi
supra),
in
which
Lord
Atkinson,
dealing
with
the
legislative
powers
of
the
Dominion
Parliament
and
of
the
Provincial
Legislatures,
said
(p.
688)
:—
“It
has,
no
doubt,
been
decided
many
times
by
this
board
that
the
two
sections
91
and
92
are
not
mutually
exclusive,
that
their
provisions
may
overlap,
and
that
where
the
legislation
of
the
Dominion
Parliament
comes
into
conflict
with
that
of
a
provincial
Legislature
over
a
field
of
jurisdiction
common
to
both
the
former
must
prevail;
but,
on
the
other
hand,
it
was
laid
down
in
Attorney-General
of
Ontario
v.
Attorney-General
of
the
Dominion,
[1896]
A.C.
348:—(1)
that
the
exception
contained
in
sec.
91,
near
its
end,
was
not
meant
to
derogate
from
the
legislative
authority
given
to
provincial
Legislatures
by
the
16th
sub-section
of
sec.
92,
save
to
the
extent
of
enabling
the
Parliament
of
Canada
to.
deal
with
matters,
local
or
private,
in
those
cases
where
such
legislation
is
necessarily
incidental
to
the
exercise
of
the
power
conferred
upon
that
Parliament
under
the
heads
enumerated
in
sec.
91
;
(2)
that
to
those
matters
which
are
not
specified
amongst
the
enumerated
subjects
of
legislation
in
sec.
91
the
exception
at
its
end
has
no
application,
and
that
in
legislating
with
respect
to
matters
not
so
enumerated
the
Dominion
Parliament
has
no
authority
to
encroach
upon
any
class
of
subjects
which
is
exclusively
assigned
to
the
provincial
Legislature
by
sec.
92;
(3)
that
these
enactments,
secs.
91
and
92,
indicate
that
the
exercise
of
legislative
power
by
the
Parliament
of
Canada
in
regard
to
all
matters
not
enumerated
in
sec.
91
ought
to
be
strictly
confined
to
such
matters
as
are
unquestionably
of
Canadian
interest
and
importance,
and
ought
not
to
trench
upon
provincial
legislation
with
respect
to
any
classes
of
subjects
enumerated
in
sec.
92;
(4)
that
to
attach
any
other
construction
to
the
general
powers
which,
in
supplement
of
its
enumerated
powers,
are
conferred
upon
the
Parliament
of
Canada
by
sec.
91
would
not
only
be
contrary
to
the
intendment
of
the
Act,
but
would
practically
destroy
the
autonomy
of
the
provinces;
.
.
.
‘‘
See
also
A.-G.
Ont.
v.
A.-G.
Dom.,
[1896]
A.C.
348,
at
p.
399.
It
was
incumbent
upon
the
plaintiff
to
show
that
s.
119
of
the
Special
War
Revenue
Act
comes
within
the
powers
given
by
s.
91
of
the
B.N.A.
Act
or
that
it
is
ancillary
to
the
exercise
of
some
power
set
forth
in
said
s.
91:
L
9
TJnion
St.
Jacques
de
Montréal
v.
Belisle
(1874),
20
L.C.J.
29,
at
p.
47;
L.R.
6
P.C.
31,
at
p.
36.
The
plaintiff
has
not,
in
my
opinion,
fulfilled
this
obligation.
I
believe
that
the
defendant
has
collected,
under
colour
of
the
Act,
possibly
by
mistake
which
to
my
mind
is
not
material,
sums
of
money
in
excess
of
the
sums
which
it
was
required
to
pay
to
His
Majesty,
in
connection
with
goods
produced
or
manufactured
in
Canada
as
well
as
in
connection
with
goods
imported
into
Canada
;
I
am
not
satisfied,
however,
that
the
defendant
has
done
so
with
regard
to
samples.
With
the
evidence
before
me,
I
am
not
in
a
position
to
determine
the
amount
of
the
sums
so
collected.
At
the
close
of
the
evidence
it
was
agreed
that
the
defendant
would
put
its
books
at
plaintiff’s
disposal
and
that
the
latter
would
have
a
statement
prepared
by
auditors
to
take
the
place
of
the
evidence
which
regularly
should
have
been
adduced
at
the
trial.
The
case
was
accordingly
adjourned
for
the
production
of
this
statement
and
for
argument.
When
Court
resumed,
counsel
stated
that,
in
view
of
the
considerable
amount
of
work
required
to
prepare
the
statement
in
question,
the
parties
had
agreed
that,
pending
a
decision
on
the
question
of
liability
of
the
defendant,
the
quantum
might
be
left
in
abeyance
subject
to
further
directions
of
the
Court.
Section
119
of
the
Special
War
Revenue
Act,
except
the
provision
imposing
a
penalty
of
$500
or
less,
is,
in
my
opinion
ultra
vires
of
the
Parliament
of
Canada
and
consequently
null
and
void.
For
this
reason
the
action
fails
with
regard
to
the
claim
for
$67,632.54;
it
can
only
be
maintained
with
regard
to
the
penal
sum
of
$500.
There
will
accordingly
be
judgment
in
favour
of
plaintiff
against
the
defendant
for
$500,
with
interest
from
the
date
of
service
of
the
information.
The
defendant
having
seen
fit
to
contest
the
action
for
the
whole
instead
of
admitting
its
liability
for
the
penalty
as,
in
my
opinion,
it
should
have
done,
the
plaintiff
is
entitled
to
costs
against
the
defendant;
seeing,
however,
that
the
plaintiff
succeeds
only
for
a
trifling
part
of
his
claim,
the
costs
should
be
reduced
;
in
fixing
the
amount
at
$250
I
think
that
I
will
render
justice
to
both
parties.
Judgment
accordingly.
Email this Content