Clement, J:—In this action the appellant Company claims that a certificate, given by the Deputy Minister of National Revenue pursuant to subsection 52(4) of the Excise Tax Act (herein called the Act) as to the amount of tax and penalties payable by the Company on transactions going back to February 1, 1972, is invalid to the extent that it includes amounts that became due and owing prior to the appropriate limitation period prescribed by The Limitations of Actions Act of Manitoba. The Crown by its defence denies that any period of limitation exists for the collection of excise tax under the Act, or if it does, on the facts of the case the time has not yet run out on any part of its claim. It moved under Rule 474(1 )(a) of the Federal Court Rules for determination of questions of law:
(1) Is there a limitation period applicable to an action for collection of taxes and penalties under the Excise Tax Act, 1970, RSC Cap E-13;
(2) If the answer to (1) above is yes, whatis is the limitation period applicable; and
(3) If the answer to (1) above is yes, what was the date from which the limitation period commenced for the taxes and penalties claimed?
The application was heard by Smith D J on an agreed statement of facts.He concluded that “During all the period relevant to the issues in this case there was no limitation period applicable to an action for the collection of taxes and penalties” under the Act. This answered the first question and abrogated the remaining contingent questions. The Company has appealed.
The Company carries on a manufacturing business in Winnipeg and the claim or cause of action against it for taxes lies in Manitoba. The Department of National Revenue, Customs and Excise, audited the business operations of the Company and, on August 28, 1975, sent it a registered notice claiming taxes exigible under Part V of the Act on sales of its manufactured products, on a continuing basis from February 1, 1972 of $63,127.21. On January 31, 1980 the Deputy Minister issued his certificate that
... the following amounts are now due, owing and unpaid by the said E.H. PRICE LIMITED:
| Sales tax due and accruing for the period from February 1st, 1973 to | |
| November 30th, 1974 | $63,127.61 |
| Penalty accrued to January 31st, 1980 | $31,988.45 |
| $95,116.06 |
together with additional penalty at the rate of two-thirds of one percent per month on the said sum of $63,127.61 from February 1st, 1980 to date of payment, in accordance with subsection 50(4) of the Excise Tax Act.
It was addressed to the Federal Court of Canada, Trial Division, and filed on February 7, 1980. These two instruments were authorized as a procedure for the recovery of taxes by subsection 52(4) of the Act, to which I will come shortly. The statement of claim of the Company is dated October 22, 1979. At that time it asserted invalidity in respect of the registered notice; and after the Deputy Minister had issued his certificate the statement of claim was amended to assert the invalidity in respect of any amount therein certified arising more than six years prior to January 31,1980. At some unstated date the Company made an application to the Tariff Board, but it is common ground that the jurisdiction of the Board does not extend to the matter in issue here. Indeed, the application is held in abeyance pending final determination of the question before this Court.
The agreed statement of facts records narrative that is not essential to the adjudication of the issue and, although it was expatiated on in argument, I will not review it.
The point of commencement for consideration of the relevant law is section 38 of the Federal Court Act:
(1) Except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions in force in any province and the limitation of actions in force in any province between subject and subject apply to any proceedings in the Court in respect of any cause of action arising in such province
(2) Except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions referred to in subsection (1) apply to any proceedings brought by or against the Crown.
It is subsection (2) that is of initial interest: there is here involved proceedings brought both by and against the Crown. Then the subsection, by its reference to subsection (1), applies to such proceedings the laws relating to prescription and the limitations of actions in force — in this case in Manitoba and for the present purposes taken to be six years. But this derogation of historical Crown prerogative is stated in subsection (1) to be limited “to any proceedings in the Court” which by statutory definition is the Federal Court of Canada; and it does not apply at all where express provision in the premises is made in another Act. This exclusion is also made in subsection (2).
The second primal statutory component of the problem lies in subsections 52(1) and (4) of the Act:
52 (1) All taxes or sums payable under this Act shall be recoverable at any time after the same ought to have been accounted for and paid, and all such taxes and sums shall be recoverable, and all rights of Her Majesty hereunder enforced, with full costs of suit, as a debt due to or as a right enforceable by Her Majesty, in the Federal Court of Canada or in any other court of competent jurisdiction.
(4) Any amount payable in respect of taxes, interest and penalties under Part II or Parts III to VI, remaining unpaid whether in whole or in part after fifteen days from the date of the sending by registered mail of a notice of arrears addressed to the licensed air carrier or taxpayer, as the case may be, may be certified by the Deputy Minister of National Revenue for Customs and Excise and on the production to the Federal Court of Canada or a judge thereof or such officer as the Court or a judge thereof may direct, the certificate shall be registered in that Court and shall, from the date of such registration, be of the same force and effect, and all proceedings may be taken thereon, as if the certificate were a judgment obtained in that Court for the recovery of a debt of the amount specified in the certificate, including penalties to date of payment as provided for in Part II or Parts III to VI, and entered upon the date of such registration, and all reasonable costs and charges attendant upon the registration of such certificate are recoverable in like manner as if they were part of such judgment.
I am here referring to the provisions of the Act as they stood in 1979 at the time of commencement by the Company of this action. Subsequent amendments to the Act in 1980-81, particularly to section 52, cannot be applied here but were noted by the learned trial judge in the course of considering the interpretation to be given to the two subsections. The Crown in its memorandum of fact and law anchors its position to a progression of argument to the following effect:
(1) A certificate issued under s. 52(4) of the Act and filed in the Federal Court is not a proceeding in court in respect of a cause of action to which s 38(1) of the Federal Court Act could apply.
(2) Alternatively, if it is held to be a proceeding in court to which s 38(1) applies, then s 52(1) of the Act by the words “at any time” in its opening phrase “recoverable at any time after the same ought to have been accounted for and paid” is excluded from the operation of s 38(1) because those words expressly provide against any limitation of time in a suit for excise tax, and so come within the exclusion from operation with which s 38(1) of the Federal Court Act opens. It is contended that those words are plain and must be given their plain meaning, viz without limitation in time.
(3) In further alternative, if the certificate is held to be a proceeding, and so a period of limitation is applicable, the time did not begin to run under s 52(4) of the Act until 15 days after the date of the registered notice I have above referred to, that is to say, 15 days after August 28, 1975.
These propositions seem to some extent ill adapted to furnishing an answer to the first question the Crown is seeking to have answered, but the argument at Bar was wide-ranging and I will try to reflect its scope hereunder.
It is clear that a certificate issued and filed under section 52(4) is a proceeding for the recovery of taxes, interest and penalties which of itself is within the meaning of that word in subsection 38(1) of the Federal Court Act. I adopt the words of Perdue, J A in Royce v Municipality of Macdonald, [1909] 12 WLR 347 at 350:
The word “proceeding” has a very wide meaning; and includes steps or measures which are not in any way connected with actions or suits.
The contest is whether upon filing it became a proceeding in court. This has been decided adversely to the Company in a series of judgments in the Trial Division of this Court, of which the latest is Fl v T H Parker, [1981] 2 CER 181. At 182 Cattanach, J said:
That certificate is not a judgment nor does it become a judgment of the Court when registered but it remains merely a certificate of the Minister even though such a certificate when registered has the same force and effect, and all proceedings may be taken thereon as if the certificate were a judgment obtained in the Court (see MNR v Bolduc, [1961] Ex CR 115 at 118 and Queen v Star Treck Holdings Limited, [1978] 1 FC 61 at 64.
And later at 183:
There is no action in this Court. There is no judgment of this Court. There is a certificate signed on behalf of the Minister by his deputy.
I respectfully agree, and venture only a little further elaboration. A proceeding in court contemplates the assertion of a cause of action and an opportunity to raise defences against it in fact and law, which could include a plea of prescription by statutory limitation. Subsection 52(4) of the Act gives no such opportunity to a taxpayer to assert defences to the bald claim of the Deputy Minister. Upon defences being raised, a court must hear and determine the issues and deliver judgment. Subsection 52(4) is antithetic to such normal court process. When a certificate is filed it is not in any respect in the nature of a judgment. It remains a certificate of the Deputy Minister which serves to invoke and take advantage of some subsequent administrative processes adjunct to the court for the collection of a judgment.
But the foregoing only clears away some underbrush in coming to an answer to the first question posed in the Crown’s application. The decisive matters lie in the interpretation to be put on the phrase “at any time”, in subsection 52(1) of the Act, and whether a proceeding under that subsection is distinguishable from a proceeding under subsection (4) for the purposes of prescription. Counsel for the Crown very fairly, and in my view quite rightly, observed that it would be incongruous, even ridiculous, to have such a distinction drawn. This in effect is also the position of the Company: the divergence is in the interpretation and application of the phrase. Indeed, the first question posed for this Court refers to an action, but we are here dealing with a certificate. I will turn first to the matter of comity between the two subsections.
I have noted above that a proceeding to which subsection 38(1) of the Federal Court Act refers, is equally a proceeding to which subsection (2) refers; so that a proceeding under subsection 52(4) of the Act comes within the phrase “any proceedings” used in both subsections. But subsection (1) limits the availability of the laws there described to “any proceedings in court”. No such limitation is expressed on their availability for the purposes of subsection (2), and I am of opinion that this clearly discloses the legislative intent of Parliament. Subsection (2) does not limit the nature of the proceedings in which such laws are made available, and specifically makes them available to any proceedings brought by or against the Crown. Subject to other considerations, such laws are, in my view, made as fully available to a taxpayer in respect of an amount certified by the Deputy Minister under subsection 52(4) of the Act as they are in proceedings in the Court. The difference is that subsection 52(4) provides the taxpayer with no means of asserting such laws against the Crown: he is obliged to come to court to pray for relief as is done here. In analogous circumstances in Twinriver Timber Ltd v R in Right of British Columbia (1890), 15 BCLR 38, Taylor, J approved such a course, and his opinion was affirmed by the British Columbia Court of Appeal in (1981), 25 BCLR 175 at 180.
The phrase in contention, “at any time”, occurs in subsection 52(1) of the Act and must be construed before turning to subsection (4) in which it does not appear. In argument the Court was urged to view subsection 52(1) historically as an aid to interpretation of the subsection as it stood in 1979. It is right to take this into account in the present circumstances for that purpose. It was, for example, taken into account in similar circumstances by Sankey, J in Attorney-General v Brown, [1920] 1 KB 773 where he said in part at 791:
The case turns upon the construction of s. 43, and in construing an Act of Parliament it is, in my view, legitimate to consider the state of law at the time the Act of Parliament was passed, and the changes it was passed to effect; the sections and structure of the Act of Parliament as a whole;
The antecedent of subsection 52(1) of the Act for this purpose is found in subsection 20(1) of the Special War Revenue Act, 1915 which is in identical terms to subsection 52(1) of the Act save for reference to the Exchequer Court which was the predecessor of this Court. Throughout the years from 1915 to 1980-81 there has been no other change in this subsection. At the time of its enactment there was, as is noted at page 39 in Twinriver Timber Ltd v R in Right of British Columbia, supra, a “common law presumption of Crown exemption from statutory burdens and disabilities”. More imperative is the provision in the Interpretation Act (Can.) which by section 16 provided then, and still provides:
16 No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except only as therein mentioned or referred to.
From this premise the Crown urges, in effect, that the phrase “at any time” as used in subsection 20(1) of the 1915 statute is couched in plain words and has the plain meaning set out in its alternative argument (2), supra. Of the authorities cited in support of such an interpretative approach it is sufficient to refer only to The Canadian Northern Railway Co et al v The King (1922), 44 SCR 264 wherein at 270 Duff, J (later CJC) adopted the familiar canon of construction enunciated by Lord Wensleydale in Grey v Pearson (1857), 6 HL Cas 61 at 106:
In construing wills, and, indeed, statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to absurdity or some repugnance or inconsistency with the rest of the instrument; in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity, repugnancy, or inconsistency, but no further.
Further on he says:
There might of course be something in the context excluding that meaning; to attribute such meaning to the words might give rise to some repugnancy to the declared or apparent object of the statute and if so, then the literal meaning would give way to an interpretation more in harmony with the ascertained purpose of the legislature.
For the Company it is pointed out that since prescription did not then apply to the Crown, the phrase “at any time” should not be given a meaning that would be merely a vague affirmation of the Crown’s prerogative — that would be an absurdity — but should be assigned a meaning that would give it some reasonable function in the operation of the 1915 statute. That statute, as does the Act, imposed taxes on various operations and products and in each case makes provision for payment or collection. It is submitted that in such context the phrase is designed to affirm the specific due date designated for payment of the various imposts, and should be so interpreted both then and now. If this interpretation is applied to subsection 52(1) of the Act, it provides no ground for the operation of the exclusion in subsection 38(1) of the Federal Court Act. As I have noted, the phrase does not appear at all in subsection 52(4): but there is imposed a time lapse on a further administrative step that is not relevant to the present point although it will require comment later.
The purpose of the 1915 statute was to raise revenue, a purpose which the Act continues in an expanded and more detailed way. Thus, it will be more to the point to deal with the contention of the Company on the basis of the Act. There are six categories of tax specified. Part I makes special provisions in respect of designated insurances and has no application here. Part II imposes a tax on air transportation payable (section 12) when the transportation is paid for “and in any case prior to the provision of the transportation”. Part III imposes excise on cosmetics, jewellery or radios and other designated goods both imported and manufactured or produced in Canada. The duty is made payable, generally speaking, when imported goods are taken out of bond for consumption, or when Canadian goods are delivered to the purchaser. Part IV levies a tax on playing cards and wine, payable at times analogous to those stipulated under Part III. Part IV.I imposes natural gas and gas liquids taxes as an element of the National Energy Programme. They are made payable also at varying times, dependent upon the stage of production or distribution. Part V exacts a consumption or sales tax, under which the Company is taxed. In respect of the goods it refers to that are produced or manufactured in Canada, the tax is, broadly speaking, payable at the time of delivery to the purchaser, or when title passes, whichever is earlier; and on imported goods when they are taken out of bond.
There follows Part VI which bears the rubric “General”, and it is in this part that section 52 occurs. It is directed to procedures for the recovery of taxes and other sums payable under the Act. In the context in which the phrase “at any time” is used in subsection (1) I am of opinion that the contention of the Crown is right.
The subsection has two operative parts, both general in nature. The first contains the phrase in question:
All taxes or sums payable under this Act shall be recoverable at any time after the same ought to have been accounted for and paid.
The application of this provision is comprehensive: the opening words embrace all amounts made exigible by the Act, by whatever means are provided for their recovery by the Crown. One of the means for recovery is provided by subsection 52(4). Linked inseparably to this inclusive opening are the words “shall be recoverable at any time after the same ought to have been accounted for and paid”. Here is found a clear recognition of the various times at which the obligations to pay the imposts arise. In my opinion it would put too severe a strain on the normal canons of construction to say, as contended by the company, that the phrase “at any time” draws its meaning only as an emphasis of the words following which deal with a different matter, namely, the due dates for payment of the imposts. Grammatically, it is an adjectival phrase giving dimension to the word “recoverable”. Understood in this sense, its operation makes clear the intent of Parliament that time shall not run against a claim of the Crown for any excise taxes imposed by the Act. I am of opinion that this amounts to an express provision within the exceptions contemplated by section 38 of the Federal Court Act.
The second operative part of the subsection gives the Crown generally a cause of action in debt for the recovery of all taxes and sums, in addition to such other remedies as the Act provides. To all such proceedings the first operative part of the subsection has application.
In the result, I respectfully agree with the learned trial judge that no statute of limitation bars any claim for taxes involved in these proceedings.
There are two further points which must be disposed of, both relating to interpretation of statutory provisions. Both counsel referred to a wide assortment of statutes that employ the phrase “at any time” in a variety of contexts. Construing the phrase in the context of its use in other statutes is merely an exercise in the production of irrelevancies unless the project can be fairly said to come within the canon of construction known as in pari materia. I accept the following passage in Craies on Statute Law, 7th Edition, page 134:
Where Acts of Parliament are in pari materia, that is to say, are so far related as to form a system or code of legislation, the rule as laid down by the twelve judges in Palmer’s Case, is that such Acts “are to be taken together as forming one system, and as interpreting and enforcing each other”.
If such relation does not exist between the statutes, then the passage at page 133 is applicable:
In the interpretation of statutes the courts decline to consider other statutes proceeding on different lines and including different provisions, or the judicial decisions thereon.
There has been no discernible effort at Bar to show that the assortment of statutes brought to the notice of this Court are in pari materia, nor do their disparate titles and legislative sources inspire hope that such an effort would avail.
Then it is urged that the learned trial judge was right in looking at the 1980-81 amendment to subsection 52(1) of the Act as an aid to interpreting its meaning as it stood in 1979. The canon of construction which appears to arise on this submission is established authoritatively in Heydon’s Case 76 ER 637:
That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: (1) What was the common law before the making of the Act (2) What was the mischief and defect for which the common law did not provide (3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth (4) The true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro private commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico.
I am of opinion that it would amount to an inversion of the canon to apply it backwards as is here proposed. It would apply if a dispute should arise as to the interpretation of the 1980-81 amendment: but I would not wish to venture on obiter dicta as to the interpretation and operation of the amendments to section 52, in order to determine what was the law before their enactment. Those amendments are complex and deserve full argument and their own chapter when they are themselves properly before the Court for construction.
I conclude that the appeal must be dismissed and the answer given by the learned trial judge to the first question is affirmed namely:
During all the period relevant to the issues in this case there was no limitation period applicable to an action for the collection of taxes and penalties under the Excise Tax Act.
Questions 2 and 3, based on a contingency that has not arisen, are not answerable.
The respondent will have his costs of appeal.
Appeal dismissed.
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