Ryan,
J:—This
is
an
application
by
Tambrands
Canada
Inc
(“Tambrands”)
under
subsection
44(7.3)
of
the
Excise
Tax
Act
(“the
Act’’)
and
section
28
of
the
Federal
Court
Act
to
review
and
set
aside
a
decision
of
the
respondent,
the
Minister
of
National
Revenue
(“the
Minister”),
which
denied
in
part
Tambrands"
claim,
brought
under
section
44
of
the
Act,
to
refund
of
taxes
paid
under
the
Act.
The
Minister
allowed
Tambrands"
claim
in
the
amount
of
$5,455,156.36
covering
the
periods
from
May
29,
1978
to
October
28,
1980;
May
29,
1981
to
May
28,
1982;
and
February
18,
1982
to
February
17,
1983,
but
rejected
the
claim
for
taxes
paid
before
May
29,
1978
and
during
the
period
from
October
29,
1980
to
May
28,
1981.
For
reasons
that
will
appear,
Tambrands
chose
to
limit
itself
on
this
application
to
a
submission
that
the
Minister
erred
in
denying
its
claim
to
refund
of
moneys
paid
before
May
29;
1978.
The
original
claim
submitted
to
the
Minister
by
Tambrands
covered
moneys
paid
during
a
period
going
back
to
1936,
but
in
the
applicant’s
Memorandum
of
Argument
it
was
indicated,
with
respect
to
sums
paid
before
May
29,
1978,
that
the
applicant’s
real
complaint
was
that
the
Minister
had
rejected
its
claim
for
sums
paid
during
the
period
from
September
1,
1967
to
May
29,
1978.
The
reason
for
limiting
the
claim
to
that
particular
period
appears
to
be
that
the
“health
services
products”
amendment
to
the
Act,
the
amendment
on
which
Tambrands
relied,
became
effective
on
September
1,
1967.
On
the
issue
so
framed
and
limited
by
the
applicant,
the
critical
question
is
whether
Tambrands’
claim
for
refund
falls
within
subsection
44(7.1)
of
the
Act.
Under
that
subsection
no
refund
for
moneys
paid
in
error
and
taken
into
account
as
taxes
can
be
granted
under
section
44
unless
application
is
made
to
the
Minister
within
four
years
after
the
time
they
were
paid.
Tambrands"
case
is
that
its
claim
is
not
subject
to
the
limitation
imposed
by
subsection
(7.1).
Counsel
for
the
Minister,
on
the
other
hand,
submitted
that
the
claim
is
caught
by
the
subsection.
It
would
appear
that
before
September
1,
1967,
tampons
were
subject
to
tax
under
the
Act.
The
Act
was,
however,
amended
effective
September
1,
1967
when
the
“health
services
products”
exemption,
the
exemption
provided
in
section
1
of
Part
VIII
of
Schedule
III,
came
into
force.
I
take
it
that
the
Department
was
of
the
view
that
tampons
were
not
within
the
exemption.
Apparently
Tambrands
(then
known
as
“Canadian
Tampax
Corporation
Ltd”)
continued
to
pay
the
tax.
In
May
1982,
however,
it
filed
an
application
with
the
Tariff
Board
under
section
59
of
the
Act
for
a
declaration
that
tampons
are
exempt.
Section
59
provides:
59.
(1)
Where
any
difference
arises
or
where
any
doubt
exists
as
to
whether
any
or
what
rate
of
tax
is
payable
on
any
article
or
on
transportation
by
air
under
this
Act,
the
Tariff
Board
constituted
by
the
Tariff
Board
Act
may
declare
what
rate
of
tax
is
payable
thereon
or
that
the
article
or
transportation
by
air
is
exempt
from
tax
under
this
Act.
(2)
Before
making
a
declaration
under
subsection
(1)
the
Tariff
Board
shall
provide
for
a
hearing
and
shall
publish
a
notice
thereof
in
the
Canada
Gazette
at
least
twenty-one
days
prior
to
the
day
of
the
hearing;
and
any
person
who,
on
or
before
that
day,
enters
an
appearance
with
the
Secretary
of
the
Tariff
Board
may
be
heard
at
the
hearing.
(3)
A
declaration
by
the
Tariff
Board
under
this
section
is
final
and
conclusive,
subject
to
appeal
as
provided
in
section
60.
(4)
[Repealed,
1980-81-82-83,
c
68,
s
24.]
(5)
An
application
to
the
Tariff
Board
for
a
declaration,
or
the
entering
of
an
appearance
with
the
Secretary
of
the
Tariff
Board
under
subsection
(2)
of
this
section,
shall,
for
the
purposes
of
section
44,
be
deemed
to
be
an
application
in
writing.
Another
taxpayer,
Playtex
Ltd,
had
sought
a
similar
declaration.
With
the
consent
of
the
Tariff
Board,
Tambrands'
application
was
held
in
abeyance
pending
a
decision
on
the
Playtex
application.
Tambrands
entered
an
appearance,
as
an
intervener,
in
the
Playtex
application,
and
its
counsel
participated
in
the
argument
in
those
proceedings.
On
February
17,
1983,
the
Tariff
Board
declared
in
the
Playtex
proceedings
that
tampons
are
exempt
from
taxation
by
reason
of
section
1
of
Part
VIII,
Schedule
III
to
the
Act.
On
March
29,
1983,
Tambrands
filed
an
application
in
writing
for
a
refund
of
federal
sales
taxes.
The
letter,
dated
March
28,
1983,
in
which
the
refund
claim
was
enclosed,
stated:
.
.
.
In
view
of
the
decision
of
the
Tariff
Board
in
Appeal
No
1846
(Playtex
Ltd)
which
held
that
tampons
are
health
products
within
the
meaning
of
paragraph
1
of
Part
VIII
of
Schedule
III
to
the
Excise
Tax
Act,
this
application
is
being
submitted.
The
actual
amount
claimed
as
a
refund
was
$16,341,084.04.
The
period
covered
by
the
claim
was
from
January
1,
1936
to
January
31,
1983.
On
March
31,
1983,
Tambrands
filed
two
further
applications.
One
was
for
taxes
paid
during
February
1982,
the
other
for
taxes
paid
during
March
1982.
These
two
periods
obviously
overlap
the
period
covered
by
the
original
claim.
Actually,
however,
as
indicated
above,
it
appears
that
the
sums
paid
between
September
1,
1967
and
May
29,
1978,
are
those
which
are
truly
in
issue,
not
sums
paid
between
1936
and
September
1,
1967;
the
sums
in
issue
are,
however,
very
large.
The
decision
on
the
claims,
the
decision
under
review,
is
set
out
in
a
letter,
dated
September
26,
1984,
addressed
to
Canadian
Tampax
Corporation
Ltd
and
signed
by
the
District
Manager
of
the
Barrie
Excise
Office.
The
letter
reads
in
part:
Re
Federal
Sales
Tax
Refund
Claims
|
|
Our
Claim
No
|
Your
date
|
Amount
claimed
|
Amount
approved
|
4180-0036
|
Mar
17/83
|
$16,341,084.04
|
$5,455,156.36
|
4180-0027
|
Mar
31/83
|
165,886.79
|
NIL
—
overlaps
4180-0036
|
4180-0028
|
Mar
31/83
|
243,236.55
|
NIL
—
overlaps
4180-0036
|
Claim
4180-0036
has
been
approved
for
$5,455,156.36
based
on
Tariff
Board
decisions
for
the
periods
outlined
below:
Periods
Approved:
May
29,
1978
to
Oct
28,
1980
May
29,
1981
to
May
28,
1982
Feb
18,
1982
to
Feb
17,
1983
(Note
overlap
of
periods)
The
rationale
for
the
above
periods
is
as
follows:
1)
May
28,
1978
to
October
28,
1980
Prior
to
the
budget
of
October
28,
1980,
tax
on
Tariff
Board
Appeals
was
allowed
back
four
years
from
the
date
the
Tariff
Board
received
the
appeal.
Accordingly,
the
receiving
date
of
Canadian
Tampax
Corporation
Ltd
Appeal
No
1876
was
May
28,
1982.
(Reference
Sec
44(7)
Excise
Tax
Act.)
2)
May
29,
1981
to
May
28,
1982
During
this
period,
Tariff
Board
Appeals
were
allowed
back
one
year
from
date
of
receipt.
This
again
refers
to
Appeal
No
1876.
(Reference
Sec
44(7)
Excise
Tax
Act.)
3)
February
18,
1982
to
February
17,
1983
This
is
as
a
result
of
the
Tariff
Board’s
decision
in
the
“Playtex”
case,
Appeal
No
1846
received
February
17,
1983.
Refund
is
allowed
back
one
year
in
this
time
period.
We
are
unable
to
allow
refund
of
tax
for
tax
paid
outside
the
periods
shown
above.
Tax
paid
for
part
months
were
confirmed
by
telephone
with
your
Mr
P
Eplett
on
September
26,
1984
and
are
subject
to
adjustment
at
the
time
of
our
next
audit
Visit.
A
detailed
list
of
the
amounts
refunded
shown
by
months
and
part
months
is
attached.
In
the
Memorandum
of
Points
to
be
Argued
filed
by
the
solicitors
for
Tambrands,
this
paragraph
appears
under
the
heading
“PART
I
—
FACTS”:
11.
Subsequent
to
the
commencement
of
this
section
28
application,
the
respondent
has
agreed
to
refund
the
balance
of
any
taxes
paid
in
the
four
year
period
extending
back
to
May
29,
1978.
In
the
Memorandum
of
Fact
and
Law
filed
by
the
solicitor
for
the
Minister,
this
paragraph
appears
under
the
heading
“PART
I
—
FACTS”:
1.
The
facts,
for
the
purposes
of
this
application
are
as
set
out
in
paragraphs
1
to
11
of
the
Applicant’s
Memorandum.
I
will
next
quote
from
“PART
II
—
POINTS
TO
BE
ARGUED”
appearing
in
Tambrands’
Memorandum
of
Points
to
be
Argued:
12.
The
entitlement
of
the
applicant
to
refund
of
taxes
having
been
conceded
by
the
respondent,
the
sole
question
in
this
application
is
whether
the
refund
period
extends
back
prior
to
May
29,
1978
to
include
the
period
from
September
1,
1967
to
May
28,
1978.
It
is
the
applicant’s
submission
that:
(a)
its
applications
being
specifically
provided
for
pursuant
to
subsection
(7)(a)
of
section
44
and
having
been
made
within
the
12
month
period
stipulated
therein,
and,
no
other
limitation
to
refund
being
provided
for
therein,
it
is
entitled
to
a
refund
of
the
taxes
paid
during
the
period
in
issue;
and,
(b)
the
limitations
provided
in
subsections
(6)
and
(7.1)
have
no
application.
In
the
Memorandum
of
Fact
and
Law
filed
by
the
solicitor
for
the
respondent
paragraphs
2
and
3
read:
2.
The
issue
before
this
Honourable
Court
is
whether
the
Minister
erred
in
law
in
the
interpretation
of
Section
44
of
the
Excise
Tax
Act.
The
Respondent
takes
the
position
that
the
facts
of
this
case
are
such
that
the
Applicant
falls
within
Section
44(1)(c)
and
44(7.1)
of
the
Act,
and
that
the
Applicant
is
only
entitled
to
a
refund
of
monies
paid
within
four
years
prior
to
making
an
application
for
a
refund.
3.
Alternatively
the
Respondent
takes
the
position
that
the
Applicant
falls
within
44(7)
and
Section
44(7.1),
and
therefore
the
Applicant
is
entitled
to
a
refund
of
monies
paid
four
years
prior
to
making
an
application
for
a
refund.
Counsel
for
the
respondent
clearly
relied
on
paragraph
44(1
)(c)
and
subsection
44(7.1)
of
the
Act.
He
did
not
—
as
I
understood
his
submissions
—
seek
to
support
the
decision
of
the
Minister
on
the
basis
of
the
reasons
given
in
the
letter
of
September
26,
1984
containing
the
Minister’s
decision.
I
confess
I
find
it
rather
difficult
to
understand
“the
rationale”
given
in
the
letter;
argument
was
not
specifically
directed
to
its
precise
content.
The
best
I
can
make
of
paragraph
1
of
“the
rationale”
is
that
the
reference
to
“May
28,
1978”
may
be
a
reference
to
the
date
which
was
four
years
before
the
date
of
Tambrands’
application
to
the
Tariff
Board
under
section
59,
and
“October
28,
1980”
may
well
have
been
referred
to
as
what
may
have
been
considered
the
effective
date
of
the
amendments
to
the
Act
which
repealed
subsection
59(4)
and
replaced
the
previous
subsections
44(6)
and
(7)
with
the
present
subsections
44(6),
(7)
and
(7.1).
Paragraph
2
of
"the
rationale”
apparently
refers
to
the
twelve-month
period
before
Tambrands’
application
to
the
Tariff
Board,
while
the
period
mentioned
in
paragraph
3
appears
to
be
the
one-year
period
before
the
Playtex
decision
by
the
Tariff
Board.
I
would
just
recall
that
subsection
59(5)
of
the
Act
provides:
(5)
An
application
to
the
Tariff
Board
for
a
declaration,
or
the
entering
of
an
appearance
with
the
Secretary
of
the
Tariff
Board
under
subsection
(2)
of
this
section,
shall,
for
the
purposes
of
section
44,
be
deemed
to
be
an
application
in
writing.
To
the
extent
that
“the
rationale”
was
based
on
the
view
that
subsection
44(7)
of
the
Act
limited
refunds
to
moneys
paid
during
the
period
of
twelve
months
prior
to
the
date
of
application
to
the
Tariff
Board,
it
would
appear
to
be
inconsistent
with
Amoco
Canada
Petroleum
Company
Ltd
v
MNR,
[1985]
1
CTC
240;
57
NR
274,
as
will
be
indicated
later
in
these
reasons.
The
Minister
may
well
have
been
in
error
to
the
extent
that
he
relied,
as
he
appears
at
least
in
part
to
have
done,
on
subsection
44(7)
to
deny
recovery
of
certain
of
the
sums
paid
after
subsection
44(7),
in
its
present
form,
came
into
effect.
In
respect
of
these
sums,
the
applicant
is,
however,
apparently
satisfied
to
rely
on
the
circumstance
that
the
Minister
has
refunded
or
agreed
to
refund
".
.
.
all
taxes
paid
in
the
four
year
period
prior
to
May
28,
1982”.
I
quote
paragraph
25
of
the
applicant's
Memorandum:
25.
The
impugned
decision
was,
according
to
its
stated
rationale,
on
the
basis
that
section
44(7)
limited
the
refund
to
the
taxes
paid
for
12
months
prior
to
the
date
of
application
to
the
Tariff
Board.
The
decision
of
this
Court
in
Amoco
establishes
that
there
is
no
such
12
month
limitation
in
section
44(7),
and
this
has
been
recognized
by
the
Minister
in
having
refunded
or
agreed
to
refund
all
taxes
paid
in
the
four
year
period
to
May
28,
1982.
For
purposes
of
this
case,
it
is
apparent
that
the
critical
statutory
provisions
are
paragraph
44(1)(c)
and
subsections
44(6),
(7)
and
(7.1)
of
the
Act.
I
quote
these
provisions:
44.
(1)
A
deduction
from,
or
refund
of,
any
of
the
taxes
imposed
by
this
Act
may
be
granted
(c)
where
the
tax
was
paid
in
error;
(6)
Subject
to
subsections
(7)
and
(7.1),
no
refund
of
or
deduction
from
any
of
the
taxes
imposed
by
this
Act
shall
be
granted,
and
no
payment
of
an
amount
equal
to
tax
paid
shall
be
made,
under
this
section
unless
application
in
writing
therefor
is
made
to
the
Minister
by
the
person
entitled
to
the
refund,
deduction
or
amount
within
four
years
after
the
time
the
refund,
deduction
or
amount
first
became
payable
under
this
section
or
the
regulations.
(7)
No
refund
of
or
deduction
from
any
of
the
taxes
imposed
by
this
Act
shall
be
granted,
and
no
payment
of
an
amount
equal
to
tax
paid
shall
be
made,
under
this
section
as
a
result
of
(a)
a
declaration
under
section
59,
(b)
an
order
or
judgment
of
the
Federal
Court
or
any
other
court
of
competent
jurisdiction,
or
(c)
a
decision
of
the
Minister
or
other
duly
authorized
officer
respecting
the
interpretation
or
application
of
this
Act,
in
respect
of
taxes
paid
prior
to
such
declaration,
order,
judgment
or
decision
unless
application
in
writing
therefor
is
made
to
the
Minister
by
the
person
entitled
to
the
refund,
deduction
or
amount
within
twelve
months
after
the
later
of
the
time
the
taxes
became
payable
or
the
time
the
refund,
deduction
or
amount
first
became
payable
under
this
section
or
the
regulations.
(7.1)
Subject
to
subsection
(7),
no
refund
of
moneys
paid
or
overpaid
in
error,
whether
by
reason
of
mistake
of
fact
or
law
or
otherwise,
and
taken
into
account
as
taxes
imposed
by
this
Act
shall
be
granted
under
this
section
unless
application
in
writing
therefor
is
made
to
the
Minister
by
the
person
entitled
to
the
refund
within
four
years
after
the
time
the
moneys
were
paid
or
overpaid.
Tambrands’
position
before
us
was
that
its
claim
for
refund
was
made
as
a
result
of
a
declaration
made
by
the
Tariff
Board
under
section
59
of
the
Act,
the
declaration
made
in
the
Playtex
case.
Its
claim,
it
was
submitted,
thus
fell
within
subsection
(7)
of
section
44,
not
within
subsection
(7.1).
The
consequence
was
that
the
only
time
limit
applicable
to
its
claim
was
that
specified
in
subsection
(7).
Relying
on
the
judgment
of
this
Court
in
Amoco,
Tambrands
submitted
that
subsection
(7)
merely
required
the
applicant's
claim
for
refund
to
be
made
within
twelve
months
of
the
section
59
declaration
on
which
it
relied,
and
that
this
had
been
done.
The
four-year
limitation
period
specified
in
subsection
(7.1)
was
not,
it
was
argued,
applicable.
There
was
thus
no
retrospective
time
limitation
on
its
claim
for
refund
of
moneys
paid
prior
to
the
declaration.
As
indicated
above,
counsel
for
the
Minister
submitted
that
Tambrands'
claim
for
refund
was
caught
by
subsection
(7.1):
it
was,
properly
considered,
a
claim
for
the
refund
of
moneys
paid
in
error
by
reason
of
a
mistake
of
law,
moneys
which
had
been
taken
into
account
as
taxes.
No
refund
could,
therefore,
be
granted,
so
far
as
moneys
paid
before
May
29,
1978
were
concerned,
because
the
application
to
the
Minister,
as
it
related
to
these
sums,
had
not
been
made
within
four
years
after
the
time
the
moneys
were
paid.
The
respondent
submitted
that
the
claim
for
refund
did
not
fall
within
subsection
(7)
because
a
refund,
if
granted,
would
be
granted
as
a
result
of
the
taxes
having
been
paid
as
a
result
of
a
mistake
of
law,
not
‘as
a
result
of
a
declaration
under
section
59.
.
.
."
In
the
alternative,
the
respondent
submitted
that,
even
if
the
claim
fell
within
subsection
(7),
it
also
fell
within
subsection
(7.1)
because
it
was
a
claim
for
the
refund
of
moneys
paid
in
error.
As
I
see
it,
refund
of
taxes
imposed
by
the
Excise
Tax
Act
may
be
granted
by
virtue
of
section
44
of
the
Act
in
circumstances
stipulated
in
subsections
44(1)
to
(4).
Paragraph
44(1)(c)
provides:
44.
(1)
A
deduction
from,
or
refund
of,
any
of
the
taxes
imposed
by
this
Act
may
be
granted
where
the
tax
was
paid
in
error;
Subsection
44
(7.1)
makes
it
clear
that
"error"
includes
"..
.
mistake
of
fact
or
law
or
otherwise."
Counsel
for
Tambrands
submitted,
however,
if
I
understood
his
oral
argument
properly,
that
the
right
of
Tambrands
to
claim
a
refund
was
a
right
established,
not
by
paragraph
44(1)(c)
of
the
Act,
but
a
right
established
by
subsection
44(7)
itself.
In
the
present
case,
the
right
of
Tambrands
to
claim
a
refund
was,
it
was
argued,
created
by
the
declaration
made
by
the
Tariff
Board
in
the
section
59
proceeding
initiated
by
Playtex.
In
support
of
this
submission,
counsel
relied
on
subsections
44(7.2),
(7.3)
and
(7.4).
These
subsections
provide:
(7.2)
An
application
under
subsection
(6),
(7)
or
(7.1)
shall
be
made
in
such
form
and
in
such
manner
as
the
Minister
may
prescribe.
(7.3)
Where
the
Minister
rejects
in
whole
or
in
part
an
application
under
subsection
(6),
(7)
or
(7.1)
for
a
refund,
deduction
or
amount,
the
application
ceases
to
have
effect,
for
the
purposes
of
determining
whether
the
refund,
or
deduction
may
be
granted
or
the
amount
may
be
paid,
ninety
days
after
notice
of
the
rejection
is
sent
to
the
applicant,
unless,
within
that
ninety
day
period,
an
application
in
respect
of
the
refund,
deduction
or
amount
is
made
to
the
Tariff
Board
under
section
59
or
to
the
Federal
Court
under
section
28
of
the
Federal
Court
Act.
(7.4)
Where
the
Minister
approves
an
application
under
subsection
(6),
(7)
or
(7.1)
for
a
refund,
deduction
or
amount,
the
application
ceases
to
have
effect,
for
the
purposes
of
determining
whether
the
refund
or
deduction
may
be
granted
or
the
amount
may
be
paid,
ninety
days
after
payment
of
the
refund,
deduction
or
amount
is
sent
to
the
applicant,
unless,
within
that
ninety
day
period,
an
application
in
respect
of
the
refund,
deduction
or
amount
is
made
to
the
Tariff
Board
under
section
59
or
to
the
Federal
Court
under
section
28
of
the
Federal
Court
Act.
In
subsection
(7.2),
an
application
is
referred
to
as
“an
application
under
subsections
(6),
(7)
or
(7.1)”.
This,
it
was
submitted,
indicates
that
each
of
these
subsections
authorizes
the
making
of
a
distinct
application;
this
in
turn
indicates
that
the
right
asserted
is
a
right
created
by
the
relevant
subsection.
Therefore
an
application
brought
pursuant
to
subsection
(7)
cannot
be
considered
to
be
an
application
brought
pursuant
to
subsection
(7.1)
and
the
limitation
applicable
to
it
is
the
limitation
specified
in
subsection
(7),
not
the
limitation
specified
in
subsection
(7.1).
It
was
also
submitted
that
the
wording
of
subsections
(7.3)
and
(7.4)
supports
the
submission
that
distinct
substantive
rights
are
created
by
subsections
(7)
and
(7.1).
I
confess
that
the
wording
of
the
three
subsections
referred
to
is
rather
puzzling.
I
cannot,
however,
conclude
that
the
wording
of
subsections
(7.2),
(7.3)
and
(7.4)
has
the
effect
of
transforming
what
are
essentially
limitation
provisions
into
“right
creating”
provisions.
The
function
of
each
of
subsections
(6),
(7)
and
(7.1)
is
to
place
limits
on
the
time
within
which
rights
created
elsewhere
in
the
section
can
be
asserted.
Subsection
(7)
provides:
“No
refund
of
.
.
.
any
of
the
taxes
imposed
by
this
Act
shall
be
granted
.
.
.
under
this
section
as
a
result
of
.
..”
any
of
the
several
stipulated
circumstances
unless
the
claim
is
made
within
a
stipulated
time;
the
reference
is
to
a
refund
to
be
granted
under
“this
section”,
not
under
“this
subsection”.
Whatever
rights
are
asserted
by
a
taxpayer
applying
for
a
refund
under
section
44
of
the
Act
must
be
rights
created
in
subsections
(1)
to
(4).
It
is
hardly
disputable
that
a
section
59
declaration
does
not,
in
itself,
create
a
right
to
a
refund.
Counsel's
submission,
as
developed
in
his
Memorandum
of
Argument,
is
not,
however,
as
I
understand
it
(in
contrast
to
his
oral
submission),
really
a
submission
that
an
independent
right
to
recover
refunds
is
inherent
in
subsection
44(7)
as
a
right
distinct
from
the
right
created
by
paragraph
44(1)(c).
The
submission
in
the
Memorandum
recognizes
that
subsections
44(1)
to
(4)
“.
.
.
provide
for
the
circumstances
under
which
refunds
may
be
granted
or
not
granted”.
The
submission
in
the
Memorandum
is
very
similar
to
counsel's
oral
submission
except
that
he
does
not
rely
in
his
Memorandum
on
a
submission
that
subsection
44(7),
read
in
context,
creates
a
distinct
right.
His
submission
is
that
each
of
subsections
44(6)
to
(7.1)
provides
in
terms
for
an
application
in
writing
for
refund
and
that
no
refund
shall
be
granted
under
an
application
so
submitted
unless
the
application
is
made
within
the
time
specified.
He
emphasizes
that
subsection
(7.2)
provides
for
the
form
of
“an
application
under
subsection
(6),
(7)
or
(7.1)”.
He
also
relies
on
the
wording
of
subsections
(7.3)
and
(7.4).
He
argues
further
that
Tambrands’
application
for
refund
was
made
“as
a
result
of”
the
Tariff
Board
declaration
in
the
Playtex
case,
so
that
the
application
falls
squarely
within
paragraph
44(7)(a)
of
the
Act.
Basing
himself
on
the
reasons
for
judgment
of
Mr
Justice
Mac-
Guigan
in
Amoco,
he
submits
in
the
Memorandum
that
Tambrands’
refund
first
became
payable
on
February
17,
1983,
the
date
of
the
Playtex
déclara-
tion,
and
that
Tambrands’
application
for
refund
was
filed
within
twelve
months
of
that
date;
this
satisfied
the
only
time
limitation
imposed
by
the
subsection.
He
also
submits
in
the
Memorandum
that
subsection
44(7.1)
is
“subject
to
subsection
(7)""
so
that
the
only
relevant
time
limitation
is
that
expressed
in
subsection
(7),
the
subsection
under
which
the
application
was
made,
a
limitation
which
Tambrands
satisfied.
Counsel's
reliance
in
his
Memorandum
on
the
judgment
of
this
Court
in
Amoco
calls
for
a
rather
careful
analysis
of
the
reasons
for
judgment
of
the
Court
as
expressed
by
Mr
Justice
MacGuigan.
In
Amoco,
the
taxpayer,
Amoco,
applied
in
writing
to
the
Minister
for
a
refund
of
taxes
paid
in
error
under
the
Excise
Tax
Act.
The
taxes
had
been
paid
in
respect
of
“goods"
which
the
Federal
Court
of
Appeal
held
in
Shell
Canada
Resources
Ltd
v
MNR,
[1984]
CTC
169;
52
NR
266,
were
exempt.
Amoco
had
not
been
a
party
in
that
case.
The
Minister
in
effect
limited
recovery
to
sums
paid
by
Amoco
during
the
twelve-month
period
prior
to
the
Shell
Canada
Resources
judgment.
The
Minister's
position
was
that
the
refund
sought
was
a
refund
which,
if
granted,
would
be
granted
as
a
result
of
a
judgment
of
the
Federal
Court;
his
position
was
that
paragraph
44(7)(b)
of
the
Act
limited
recovery
to
taxes
paid
within
the
twelve
months
prior
to
the
judgment.
This
Court
set
aside
the
Minister's
decision
and
referred
the
refund
claim
back
to
the
Minister
for
decision
on
the
basis
that
the
applicant
was
entitled
to
the
refund
contemplated,
not
by
subsection
(7),
but
by
subsection
44(7.1)
of
the
Act.
In
the
present
case,
counsel
for
the
Minister
submitted
in
contrast
to
what
the
Minister
had
submitted
in
Amoco
that
the
applicable
subsection
is
subsection
44(7.1),
as
it
was
held
to
be
in
Amoco.
In
Amoco,
in
concurring
reasons,
I
took
the
view
that
Amoco's
right
to
refund
rested
squarely
on
paragraph
44(1
)(c)
of
the
Act
and
that
the
applicable
limitation
period
was
the
four-year
period
specified
in
subsection
44(7.1);
for
reasons
I
gave,
I
was
of
opinion
that
Amoco's
claim
for
refund
could
not
be
held
to
be
a
claim
resulting
from
the
Federal
Court
judgment
in
Shell
Canada
Resources;
I,
therefore,
did
not
find
it
necessary
to
consider
what
limitations
might
flow
from
subsection
44(7)
were
it
applicable.
Mr
Justice
MacGuigan,
with
whom
Mr
Justice
Heald
concurred,
did,
however,
address
this
question.
He
said
at
244
(NR
278):
...
Subsection
(7)
requires
only
that
a
refund
application
be
made
“within
twelve
months
after
the
later
of”
two
events.
There
is
nothing
in
the
subsection
or
in
the
context
to
restrict
the
period
of
the
refund
itself
to
one
year.
It
is
therefore
only
a
limitation
on
the
timing
of
a
refund
application.
Counsel
for
Tambrands
obviously
placed
considerable
reliance
on
this
passage.
But
Mr
Justice
MacGuigan
also
said
at
245
(NR
279):
In
my
view,
what
Parliament
did
intend
was
that,
just
as
subsection
(6)
should
establish
a
four-year
limitation
period
for
the
situations
covered
by
paragraphs
(d)-(g)
of
subsection
44(1)
(as
the
parties
agree),
so
subsection
(7.1)
establishes
a
four-year
claim
period
for
the
other
paragraphs
of
subsection
44(1)
where
the
tax
was
never
truly
exigible,
viz
paragraphs
(a),
(b)
and
(c).
In
fact,
the
parallelism
in
statutory
language
between
these
two
subsections
is
striking.
It
is
unnecessary
for
this
case
to
decide
whether
the
four-year
period
in
both
subsections
should
be
read
as
substantive
or
procedural.
On
this
interpretation,
subsection
(7)
could
have
application
to
taxpayers
directly
involved
in
contesting
departmental
interpretations
before
the
Tariff
Board
or
a
Court
or
to
those
affected
by
an
authoritative
reinterpretation
—
this
third
group
could
include
all
taxpayers.
Their
refunds
might
be
said
to
be
payable
as
a
result
of
these
special
circumstances,
and
in
this
context
I
would
interpret
the
time
at
which
“the
refund,
deduction
or
amount
first
became
payable”
to
be
the
time
of
the
declaration,
order,
judgment,
or
authoritative
pronouncement.
In
some
cases,
these
taxpayers
might
have
already
made
an
application
for
a
refund,
deduction
or
payment,
but
in
every
case
they
would
have
the
advantage
under
subsection
(7)
of
a
further
application
in
the
light
of
the
declaration,
order,
judgment
or
pronouncement.
Such
a
result
is
in
no
way
unreasonable
or
unfair.
Thus
Mr
Justice
MacGuigan
interpreted
the
subsection
not
merely
as
a
limitation
clause,
but
also
as
giving
to
persons
who
might
fall
within
its
terms
the
advantage
of
filing
a
further
application
even
if
they
had
already
made
an
earlier
application.
Reading
the
passages
I
have
quoted
from
Amoco
and
Mr
Justice
MacGui-
gan’s
reasons
as
a
whole,
I
take
it
that
this
Court
has
decided
that
subsection
44(7),
if
applicable,
imposes
a
“procedural
limitation"
only
and
that
the
subsection
does
not
limit
recovery
to
sums
paid
within
twelve
months
prior
to
the
making
of
the
declaration,
order
or
judgment,
or
decision
on
which
a
party
relies.
The
Court
is
also,
I
take
it,
of
the
view
that
subsection
44(6)
has
reference
only
to
situations
where
taxes
were
properly
paid
but
later
became
refundable
and
that
subsection
44(7.1)
establishes
a
four-year
limitation
period
on
claims
made
under
paragraphs
of
subsection
44(1)
which
make
it
possible
to
claim
refunds
of
taxes
which
were
never,
truly
exigible,
including
claims
made
under
paragraph
44(1)(c).
The
Court
is
also
of
the
view
that
subsection
(7)
could
have
application
in
the
circumstances
mentioned
in
the
paragraph
quoted
from
Mr
Justice
MacGuigan’s
reasons
in
Amoco,
the
paragraph
beginnig
with
the
words:
“On
this
interpretation,
subsection
(7)
could
have
application
to
taxpayers.
.
.."
The
consequences
of
its
being
so
applicable
are
stated
in
the
paragraph.
Tambrands,
having
participated
in
the
Playtex
application,
might,
on
the
basis
of
the
paragraph
quoted,
be
within
subsection
(7).
Even
if
it
were,
however,
that
would
not,
as
I
will
later
indicate,
be
decisive
of
the
issue
in
this
case.
I
return
to
counsel’s
written
submissions
as
they
relate
to
the
alleged
effect
of
subsections
(7.2),
(7.3)
and
(7.4).
The
submissions
do
have
a
certain
persuasive
force.
But
even
after
considering
them
in
the
light
of
my
analysis
of
Amoco,
I
am
unconvinced.
My
reasons
for
being
unconvinced
will
appear
in
a
moment
when
I
summarize
my
own
conclusions
leading
to
my
proposed
disposition
of
the
case.
Section
44
of
the
Act
is
a
difficult
section;
its
relationship
with
section
59
is
particularly
difficult.
The
amendments
to
both
sections
enacted
in
1980
seem
to
me,
if
anything,
to
have
added
to
the
difficulties
already
involved
in
seeking
to
understand
the
sections,
particularly
as
they
relate
to
the
recovery
of
moneys
paid
in
error;
the
amendments
I
have
in
mind
are
those
which
repealed
subsections
(6).and
(7)
and
substituted
the
present
subsections
(6),
(7)
and
(7.1),
and
repealed
subsection
59(4);
I
suppose,
however,
it
can
be
said
that
the
amendments
may
at
least
have
the
advantage
of
removing
the
limitation
imposed
by
subsection
59(4),
whatever
its
significance
may
have
been.
I
have,
of
course,
considered
carefully
both
the
oral
and
written
submissions
of
counsel,
and
I
have
reached
the
following
conclusions:
The
right
of
Tambrands
to
recover
under
section
44
of
the
Act
the
sums
in
issue
would,
in
the
circumstances
of
this
case,
have
to
be
based
on
the
right
created
by
paragraph
44(1)(c):
“A
.
.
.
refund
of
any
of
the
taxes
imposed
by
this
Act
may
be
granted
where
the
tax
was
paid
in
error."
The
declaration
of
the
Tariff
Board
in
Playtex,
the
declaration
invoked
by
Tambrands
in
support
of
its
claim,
could
not,
in
itself,
create
a
right
to
a
refund.
It
was
simply
a
declaration,
though
an
important
declaration,
to
the
effect
that
tampons
are
exempt
from
tax
under
the
Act;
as
such,
it
is
“final
and
conclusive”
of
that
issue.
The
declaration
would
obviously
be
very
important
to
Tambrands
as
an
element
in
establishing
that
it
had
paid
in
error
the
taxes
of
which
refund
is
claimed,
but
that
would
be
its
role.
For
purposes
of
this
case,
I
will
assume
in
favour
of
Tambrands
that
Tambrands
paid
in
error
the
moneys
in
issue;
if
this
were
not
so,
in
the
circumstances
a
basis
for
recovery
would
be
lacking.
I
am
of
the
view
that
subsection
(7.1)
is,
therefore,
applicable
to
Tambrands’
claim
for
refund
of
the
moneys
in
issue.
The
critical
question
then
becomes
whether
Tambrands'
recovery
is
limited
“in
a
substantive
way”
by
the
subsection.
The
relevant
words
of
the
subsection
are:
“.
..
no
refund
.
.
.
shall
be
granted
.
.
.
unless
application
.
.
.
therefor
is
made
.
.
.
within
four
years
after
the
moneys
were
paid
.
.
.”.
I
realize
that
in
Amoco
the
question
whether
these
words
impose
what
was
termed
a
“substantive”
or
a
“procedural”
limitation
was
left
open,
the
sums
there
claimed
having
been
paid
within
the
limitation
period.
But
the
answer
is
to
me
clear.
The
limitation
is
“substantive”
in
the
Amoco
sense
of
the
word.
Only
those
moneys
can
be
recovered
which
were
paid
in
the
relevant
four-year
period.
I
would
simply
add
that
(possibly
because
of
subsection
59(5))
no
issue
was
raised
in
respect
of
May
29,
1978
being
the
appropriate
limitation
date.
I
do
not
see
why
the
Tariff
Board’s
declaration
in
Playtex
that
tampons
are
exempt
from
tax
should
prevent
the
application
of
subsection
(7.1)
to
Tambrands'
claim
for
refund.
It
is
true
that
Tambrands
invoked
the
declaration
in
support
of
its
application,
but,
as
I
have
said,
its
claim
could
only
have
been
based
on
the
right
created
by
paragraph
44(1)(c).
Despite
the
circumstance
that
subsection
(7.1)
is
expressed
to
be
“subject
to
subsection
(7)”,
I
really
do
not
see
why
Tambrands
should
not
be
subject
to
the
“substantive
limitation”
imposed
by
subsection
(7.1)
merely
because
it
might
also
have
been
subject
to
a
“procedural
limitation”
under
subsection
(7)
or
might
possibly
have
obtained
some
advantage
under
that
subsection.
And,
at
any
rate,
even
if
Tambrands
was
subject
to
the
limitation
in
subsection
(7),
it
satisfied
the
requirement
as
interpreted
in
Amoco:
It
would,
I
think,
be
strange
if
a
taxpayer
who
succeeded
in
establishing
entitlement
to
a
refund
by
virtue
of
paragraph
44(1)(c)
on
the
basis
that
he
had
paid
taxes
in
error
should
escape
the
limitation
imposed
by
subsection
(7.1)
merely
because
he
or
another
taxpayer
had
obtained
a
favourable
Tariff
Board
declaration
under
section
59.
My
reading
of
the
relevant
statutory
provisions
does
not
persuade
me
that
the
Playtex
declaration
or
Tambrands’
invocation
of
it
should
have
had
that
consequence.
The
applicant
has
failed
to
establish
the
submission
of
error
on
which
it
relied.
I
would,
therefore,
dismiss
the
section
28
application.
This
being
a
section
28
application,
I
would
not
award
costs.
Application
dismissed.