Décary,
J.A.:—This
is
an
application
for
judicial
review
pursuant
to
section
18.24
of
the
Tax
Court
of
Canada
Act
of
a
decision
rendered
on
November
18,
1991,
by
the
Chief
Judge
of
the
Tax
Court
of
Canada.
The
facts
and
the
issue
can
be
put
simply.
The
respondent's
first
fiscal
year
ended
February
1,
1990.
The
federal
tax
payable
by
the
respondent
for
its
first
fiscal
year
amounted
to
$16,350.28
(the
"excess").
The
respondent
actually
paid
the
excess
on
June
4,
1990.
By
notice
of
assessment
dated
July
20,
1990,
the
Minister
of
National
Revenue
(the
"Minister")
assessed
the
respondent
a
total
of
$235.36
for
arrears
interest
with
respect
to
the
excess.
The
parties
agree
that
the
Minister
correctly
assessed
the
respondent
arrears
interest
in
the
amount
of
$20.16
for
the
period
June
1,
1990
to
June
4,
1990.
The
only
question
before
us
is
whether
the
respondent
was
liable
to
pay
interest
for
the
period
from
May
2,
1990
to
June
1,
1990.
The
learned
Chief
Judge
held
that
it
was
not.
At
issue
is
the
interpretation
of
the
phrase
"the
end
of
the
third
month
following
the
end
of
the
year"
in
subparagraph
157(1
)(b)(i)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
Subsection
157(1)
reads
as
follows:
157(1)
Corporations.
—
Every
corporation
shall,
in
respect
of
each
of
its
taxation
years,
pay
to
the
Receiver
General
(a)
either
(i)
on
or
before
the
last
day
of
each
month
in
the
year,
an
amount
equal
to
'/12
of
the
aggregate
of
the
amounts
estimated
by
it
to
be
the
taxes
payable
under
this
Part
and
Part
VI.1
by
it
for
the
year,
(ii)
on
or
before
the
last
day
of
each
month
in
the
year,
an
amount
equal
to
V12
of
its
first
instalment
base
for
the
year,
or
(iii)
on
or
before
the
last
day
of
each
of
the
first
two
months
in
the
year,
an
amount
equal
to
‘/12
of
its
second
instalment
base
for
the
year,
and
on
or
before
the
last
day
of
each
of
the
following
months
in
the
year,
an
amount
equal
to
‘0
of
the
amount
remaining
after
deducting
the
amount
computed
pursuant
to
this
subparagraph
in
respect
of
the
first
two
months
from
its
first
instalment
base
for
the
year;
and
(b)
the
remainder
of
the
taxes
payable
by
it
under
this
Part
and
Part
VI.1
for
the
year
(i)
on
or
before
the
end
of
the
third
month
following
the
end
of
the
year,
where
(A)
an
amount
was
deducted
by
virtue
of
section
125
in
computing
the
tax
payable
under
this
Part
by
the
corporation
for
the
year
or
its
immediately
preceding
taxation
year,
and
(B)
the
corporation
is,
throughout
the
year,
a
Canadian-controlled
private
corporation
whose
taxable
income
for
the
immediately
preceding
taxation
year
together
with
the
taxable
incomes
of
all
corporations
with
which
it
was
associated
in
the
year
for
their
taxation
years
ending
in
the
calendar
year
immediately
preceding
the
calendar
year
in
which
the
taxation
year
of
the
corporation
ended
does
not
exceed
the
aggregate
of
the
business
limits
(as
determined
under
section
125)
of
the
corporation
and
the
associated
corporations
for
those
preceding
years,
or
(ii)
on
or
before
the
end
of
the
second
month
following
the
end
of
the
year,
in
any
other
case.
The
submission
of
counsel
for
the
respondent,
which
was
accepted
by
the
Chief
Judge,
is
to
the
effect
that
since
respondent's
fiscal
year
ended
on
February
1,
1990,
the
end
of
the
third
month
following
the
end
of
that
year
would
then
have
been
May
31,
the
month
of
March
being
the
first
month
following
the
month
of
February.
While
I
have
some
sympathy
with
respondent's
view
which
is
based
on
a
very
literal
interpretation
of
a
provision
Parliament
could
surely
have
drafted
in
a
more
appropriate
form,
I
have
not
been
persuaded
that
its
interpretation
meets
the
“words-in-total-context
approach”
test
formulated
by
MacGuigan,
J.A.
in
Lor-Wes
Contracting
v.
The
Queen,
[1985]
2
C.T.C.
79,
85
D.T.C.
5310,
at
page
83
(D.T.C.
5313),
"with
a
view
to
determining
the
object
and
spirit
of
the
taxing
provisions.”
With
respect,
I
think
the
solution
lies
in
a
plain
reading
of
the
whole
phrase
"on
or
before
the
end
of
the
third
month
following
the
end
of
the
year”.
"The
end
of
the
year"
means
the
end
of
the
fiscal
year,
not
the
end
of
the
calendar
year.
A
fiscal
year
ends
at
the
moment
determined
by
the
corporation.
That
moment
may
be
any
day
of
any
month;
it
need
not
be
the
last
day
of
the
chosen
month.
In
the
present
case,
the
moment
chosen
was
February
1.
I
note
that
the
term
“calendar
year"
is
expressly
used
in
clause
157(1
)(b)(i)(B).
"The
end
of
the
third
month"
does
not
mean
the
end
of
the
third
calendar
month.
Since
the
"year"
which
is
referred
to
in
the
phrase
here
in
issue
is
the
fiscal
year
and
since
the
end
of
that
fiscal
year
is
not
necessarily
the
last
day
of
the
last
month
of
that
year,
the
end
of
the
third
month
referred
to
in
subparagraph
157(1
)(b)(i)
need
not
be
the
last
day
of
a
given
month
and
can
be
any
day
during
a
given
month.
The
basis
employed
for
the
calculation
of
the
"year"
should
also
be
used
for
the
calculation
of
the
"month".
“Following”
is,
in
my
view,
the
pivotal
word.
As
noted
by
the
Chief
Judge,
it
means,
in
the
Shorter
Oxford
English
Dictionary:
"that
comes
next
or
after;
succeeding,
ensuing".
A
"following"
(which
is
translated
by
"suivant"
in
the
French
text)
period
of
time
cannot
but
mean
a
period
which
starts
as
soon
as
the
preceding
period
has
ended.
The
end
of
the
fiscal
year
being
any
given
day
of
a
given
month,
the
period
"following"
the
end
of
the
fiscal
year
cannot
but
start
the
moment
that
period
ends,
i.e.,
in
the
present
case
as
soon
as
February
2.
The
interpretation
given
to
the
phrase
by
the
Chief
Judge,
which
has
the
"following"
period
start
28
days
after
the
end
of
the
fiscal
year,
ignores
the
very
existence
and
meaning
of
the
word
“following”.
I
have
therefore
reached
the
conclusion
that
in
subparagraph
157(1)(b)(i),
the
word
"month"
in
the
phrase
“on
or
before
the
end
of
the
third
month
following
the
end
of
the
year"
means
a
period
to
be
calculated
from
the
day
the
fiscal
year
ends
to
the
day
numerically
corresponding
to
that
day
three
months
later
less
one.
In
the
case
at
bar,
the
last
day
being
February
1,
the
period
starts
on
February
2
and
ends
three
months
later
less
a
day,
i.e.,
on
May
1.
I
am
comforted
in
this
interpretation
by
the
fact
that
it
is
the
only
one
which,
in
my
respectful
view,
does
not
lead
to
an
absurd
result.
As
noted
by
Mr.
Justice
Cartwright
in
Vandekerckhove
v.
Middleton
(Township),
[1962]
S.C.R.
75,
31
D.L.R.
(2d)
304,
at
pages
78-9
(D.L.R.
307):
There
is
ample
authority
for
the
proposition
that
when
the
language
used
by
the
legislature
admits
of
two
constructions
one
of
which
would
lead
to
obvious
injustice
or
absurdity
the
courts
act
on
the
view
that
such
a
result
could
not
have
been
intended.
One
can
fairly
assume
that
Parliament
had
intended
that
the
delay
prescribed
for
the
payment
of
the
remainder
of
taxes
be
the
same
for
all
corporations.
It
would
be
awkward
indeed
if
in
choosing
the
date
of
February
1
a
corporation
would
automatically,
by
statute,
be
entitled
to
a
longer
delay
than
the
corporation
which
had
selected,
for
example,
February
28.
If
the
respondent's
interpretation
is
correct,
both
corporations
would
have
until
May
31
to
remit
their
taxes.
Parliament
can
simply
not
be
presumed
to
have
intended
to
give
such
a
windfall
to
the
corporation
that
picked
the
date
of
February
1
for
the
end
of
its
fiscal
year
(see
Sheaffer
Pen
Co.
v.
M.N.R.,
[1953]
C.T.C.
345,
53
D.T.C.
1223
(Ex.
Ct.),
at
page
351
(D.T.C.
1227).
The
respondent
has
relied
on
section
28
and
subsection
35(1)
of
the
Interpretation
Act'.
Subsection
35(1)
obviously
is
not
applicable
to
an
enactment
such
as
subparagraph
157(1
)(b)(i)
where
the
intention
of
Parliament
is
precisely
not
to
use
a
calendar
month.
Subsection
3(1)
of
the
Interpretation
Act
provides
that
the
Act
only
applies
where
the
statute
in
issue
does
not
suggest
a
contrary
interpretation.
The
same
logic
holds
true
for
section
28.
If
a
particular
meaning
can
be
ascribed
to
section
157
of
the
Income
Tax
Act
apart
from
section
28,
then
that
meaning
cannot
be
defeated
by
the
Interpretation
Act.
Further,
insofar
as
section
28,
by
virtue
of
subsection
35(1),
contemplates
calendar
months
only,
it
cannot
apply
to
subparagraph
157(1
)(b)(i).
28.
Where
there
is
a
reference
to
a
period
of
time
consisting
of
a
number
of
months
after
or
before
a
specified
day,
the
period
is
calculated
by
(a)
counting
forward
or
backward
from
the
specified
day
the
number
of
months,
without
including
the
month
in
which
that
day
falls;
(b)
excluding
the
specified
day;
and
(c)
including
in
the
last
month
counted
under
paragraph
(a)
the
day
that
has
the
same
calendar
number
as
the
specified
day
or,
if
that
month
has
no
day
with
that
number,
the
last
day
of
that
month.
35(1)
In
every
enactment.
.
."month"
means
a
calendar
month.
.
.
Even
if
I
were
to
find
that
section
28
is
applicable,
it
is
not
inconsistent
with
the
appellant’s
position.
Here,
the
period
of
time
to
be
calculated
is
"the
end
of
the
third
month
following”
February
1,
1990.
Under
paragraph
28(a),
one
counts
forward
three
months
without
including
February,
which
leads
to
May;
and
under
paragraph
28(c),
the
corresponding
day
in
May
that
has
the
same
calendar
day
as
February
1
is
May
1.
For
the
above
reasons
I
would
allow
this
application
for
judicial
review,
set
aside
the
decision
of
the
Tax
Court
of
Canada
and
return
the
matter
to
that
Court
for
redetermination
in
accordance
with
these
reasons.
As
directed
by
section
18.25
of
the
Tax
Court
of
Canada
Act,
"the
reasonable
and
proper
costs
of
the
taxpayer"
should
be
paid
by
the
applicant.
Application
allowed.
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