Gruen Watch Company of Canada Limited, Levy Brothers Co. Limited, Rolex Watch Company of Canada Limited, Canadian Elgin Watch Company Limited, Bulova Watch Company Limited, Goldsmiths, Company of Canada Limited, Cyma Watch Ltd., Lorie Limited, Longines-Wittnauer Co. Of Canada, Hatch and Company Ltd. v. Attorney-General of Canada, [1950] CTC 440, [1949-1950] DTC 784

MCRUER, C.J.H.C.:—The plaintiffs in this action have been engaged for many years in the importation of watch movements from abroad. They import or purchase in Canada watch cases adapted to the particular movements imported, and by a very simple operation performed by unskilled labour, taking only a very few minutes at an expense of from 1.25 to 3.6 cents each, the watch movement is placed in the case and a watch ready for sale is produced. In some eases wrist-bands, bracelets or brooches are attached to the watch case for the personal convenience of the purchasers. The plaintiffs do not manufacture either watch movements or watch cases.

At the opening of the trial counsel for the plaintiffs advised the Court that the Gruen Watch Co. of Can. Ltd., Canadian Elgin Watch Co. Ltd., Cyma Watch Ltd. and Longines-Witt- nauer Co. of Canada withdrew from further participation in the action. As to these plaintiffs the action will be dismissed without costs.

The relief claimed in this action is:

"(a) A Declaration . . . that there is no excise tax upon watch movements, watch cases, wrist-bands or bracelets or display cases ;

"‘(b) A Declaration that the Plaintiffs and each of them is entitled to have watch movements, watch cases, wrist-bands or bracelets or display cases shipped to them from abroad passed through Customs and delivered to the particular importer in each case without—

"‘(i) such importer taking out a manufacturer’s or excise license; or

(ii) such importer paying any excise tax at the time of the entry of watch movements, watch cases, wrist bands or bracelets, but upon payment of the eight per centum (8%) sales tax on the import price;

(c) A Declaration that there is no excise tax upon display cases ;

"(d) A Declaration that the Regulation set forth in Circular No. 906-C of the Department of National Revenue, which Circular is dated the nineteenth day of April, 1949, is made without any legal authority for the making and is invalid and not binding upon the Plaintiffs or any of them.”

The circumstances giving rise to this action are in some respects very unusual.

Under the Customs Tariff, R.S.C. 1927, c. 44, as amended, a customs duty of 15% is levied on the importation of watch movements, 25% on watch cases, and 30% on watches. Up to March 22, 1949, to this was added a sales tax of 8% on the duty-paid value which was payable by the importer on importation.

Under s. 140(1) of the Excise Tax Act, R.S.C. 1927, c. 179, as amended down to and including 1948, c. 50, provision was made for a retail purchase tax in respect of the goods mentioned in Sch. VI thereof at the rates set opposite the various items in the schedule. Where such goods were imported into Canada by the consumer or user the tax was computed on the duty-paid value and payable on importation. Whenever the goods were manufactured or produced in Canada or were imported into Canada, and delivered to the consumer or user, the tax was made payable computed on the sale price. Item 1 of Sch. VI

was as follows: ‘‘1. Clocks and watches adapted to household or personal use twenty-five per cent’’. To this item certain exceptions were made which are irrelevant to be considered in this action.

On the evening of March 22, 1949, the Minister of Finance introduced into the House of Commons the budget which contained the following resolution :

^Resolved that it is expedient to introduce a measure to amend The Excise Tax Act and to provide, effective on and after March 23, 1949 . . .

"‘2. That the retail purchase tax be repealed and replaced by an excise tax of 10 per cent payable by the manufacturer or importer, on all articles now subject to the retail purchase tax.’’ (The italics are mine.)

If the resolution had had the immediate effect of amending the law the result would have been that the retail purchase tax of 25% on "‘watches adapted to household or personal use”? would have been repealed and there would have been substituted therefor an excise tax of 10% payable by the manufacturer or importer of ‘‘watches adapted to household or personal use’’. But there was nothing in the budget resolution to indicate that alterations in the statute were contemplated to make the provisions of s. 80(1) applicable so that the tax would be payable upon delivery of the goods to the purchaser. The level on which the tax was to be imposed was left in some doubt.

It has been a custom of long standing according to British parliamentary practice to give effect to new taxes upon the introduction of the budget resolution, or a day named in the resolution. This is on the assumption that a bill embodying the resolution will become law by the concurrence of the two other branches of the Legislature. "‘If such concurrence be withheld, the resolution becomes inoperative, and the duties levied by anticipation must be repaid to the parties from whom they have been collected”: Todd 9 s Parliamentary Government in England, 2nd ed., vol. 1, p. 793. This matter was discussed in the British House of Commons on June 29, 1848 (^Hansard 9 s Parliamentary Debates, 3rd Series, vol. 99, p. 1316), where the Attorney-General stated that: "‘If the House of Commons resolved that a given duty should be imposed upon goods before they were entered for home consumption, it was fairly to be presumed (and the practice proceeded upon the presumption) that the House would pass a Bill founded upon that resolution, and, as the Bill related to a matter of money, it was not supposed that the other House would interfere with the resolution. The Government would therefore give an order to officers to act on that resolution. He admitted that an action would lie; but before it would be ready for investigation the Act of Parliament would have received Her Majesty’s assent that from and after the 5th of July such and such duties should be levied, and that would be a perfect answer to the action.” A member is recorded to have stated that he "‘recollected when no duty was payable upon corn for a day or two; and that the decision of the court in a case in which it had nevertheless been levied was, that not only the duty should be refunded, but all loss and detriment suffered by the party should be made good by the Government also’’. (I have been unable to find this case reported in the law reports.) The Attorney-General explained this case on the ground that there was a mistake in drawing up the resolution, by which an interval of one day had elapsed between the expiry of the old duties and the imposition of the new, and the Government having levied duty upon corn entered upon that one day was obliged by the Court to refund it. He went on to state that: ‘‘If the resolution had gone back to the moment when the old duty expired, that would have been a perfect defence.”

The matter was again discussed in the British House of Commons on February 17, 1860 (Hansard, 3rd Series, vol. 156, p. 1274). The question arose out of a treaty with France and a resolution agreeing not to impose export duties on coal. Sir Hugh Cairns raised the question as to what would be the position if the Emperor of France declined to accept the treaty. He stated :"In the meantime we should have repealed our duties, because we all know that the passing of Resolutions upon the Customs Act is, for all practical purposes, an immediate repeal of duties. By so doing we should have placed these trades, and all others dependent upon them, in a position from which it will be difficult to extricate themselves.’’

To this Lord John Russell replied: "‘I cannot suppose that the hon. and learned gentleman imagines that Resolutions of this House, so far as the levying of duties is concerned, have the power of an Act of Parliament.’’ Sir Hugh Cairns contended that "‘for all practical purposes’ they had, to which Lord John Russell replied:

"‘I cannot conceive that anyone, especially a constitutional lawyer, can suppose that, should Parliament be prorogued without any Bill being passed to alter these duties, a mere Resolution of this House could effect them. Should that be the case, the whole matter would fall to the ground, and the duties would not be reduced.’’

On April 23, 1863 (Hansard, 3rd Series, vol. 170, p. 636) the Chancellor of the Exchequer stated that the uniform course for many years had been that the reduction of duties should not be postponed beyond the time when the resolution was introduced into the House.

The Canadian Parliament was dissolved on April 30th without either adopting the budget resolution or passing any legislation with reference to the tax changes.

The immediate interpretation put on the budget resolution by the administrative officials of the Department of National Revenue was that there should be collected by the Collector of Customs from the importer of watch movements and watch cases, at the time of import, an excise tax of 10% calculated on the duty-paid value.

For at least 3 weeks following the introduction of the budget resolution the plaintiffs imported large quantities of watch movements and paid the excise tax of 10% thereon, but contended that they were not manufacturers of watches. There would not appear to be any authority, and it is not argued that there was any authority, by practice or otherwise for the departmental officials to demand an excise tax of 10% on the importation of watch movements.

On April 13th A. F. MacMillan, signing for the Deputy Minister, in a letter distributed to collectors and addressed to the Goldsmiths’ Co. of Can., Ltd. referred to the new excise tax of 10% as "‘moved back to the manufacturer’s level, or on importation, as applicable, but the tax will apply on sale by the manufacturer in Canada or on importation on the customs duty-paid value, as the case may be’’. The letter continued:

" With the change in the tax, the Department will hold that the person, firm or corporation purchasing or importing movements and/or cases and assembling them into watches is a ‘manufacturer or producer’, required to operate under both manufacturers’, excise and sales tax licences and to account for these taxes, 10% and 8% respectively, on the selling price to the purchaser in Canada.

"‘By operation of the above licences, however, it will be permissible to obtain the movements and/or cases without excise or sales taxes, on quotation of the registered numbers of these licences on purchase orders or Customs import entries, as the case may be, and the certificate that they are to be used in the manufacture of taxable goods for sale.’’

On April 19th the Minister of National Revenue, purporting to act under the provisions of s. 99 of the Excise Tax Act, made the following regulations effective on and after May 2nd:

"‘On and after May 2nd, 1949, any person who assembles clock or watch movements into cases therefor, and who adds any attachment, of metal, leather, plastic or any other material or combination thereof to a new watch, will be regarded as the manufacturer or producer of the clock or watch, as the case may be . . .

4 ‘Persons who become manufacturers or producers of the articles mentioned above will be required, as from the date mentioned, to account for the sales and excise taxes on these goods on the regular list selling price to ordinary retailers who do not obtain cash, quantity or other special discounts, less a discount of 20%, the respective taxes to apply on the remainder. Where sales are not made to retailers in the regular and ordinary course of business, but to users or consumers only, the taxes may be accounted for on the selling price to the consumer or user less a discount of 50%, the respective taxes to apply on the remainder.

" " Where watches . . . are placed in display or other cases by the manufacturer, the sales and excise taxes apply on the total selling price of the article including the case, whether the case be invoiced separately or not.”

Section 99(1) of the Excise Tax Act provides as follows:

“The Minister of Finance or the Minister of National Revenue, as the case may be, may make such regulations as he deems necessary or advisable for carrying out the provisions of this Act.”’

These regulations in effect attempted to establish a base of taxation which was different from that which had been in effect prior to March 28rd, as well as the base put into effect after March 23rd. They also purported to change the incidence of the tax.

The plaintiffs had imported and put into inventory large quantities of watch movements prior to March 23, 1949, upon which they had paid the lawful customs duty of 15%, and sales tax calculated on the duty-paid value, and had likewise on and after March 23, 1949, imported and put into inventory large quantities of watch movements on which they had paid on importation the customs duty and sales tax plus a 10% excise duty reckoned on the duty-paid value.

Following the effective date of the regulations the departmental officials required the plaintiffs to account for an excise tax of 10% and a sales tax of 8% on the regular list selling price to ordinary retailers and the selling price to the consumer or user, as the case might be, subject to the discounts set out, and to take out manufacturers’ and excise licences before they could pass watch movements through customs.

There are several terms of the regulations that require particular consideration:

(a) They purport to define "‘a manufacturer or producer”? for the purposes of taxation.

(b) The word ‘‘producer’’ is introduced although it is not to be found in the budget resolution.

(c) As I have stated they purport to establish a base of taxation for both sales tax and excise tax.

(d) Under the second paragraph above quoted they purport to require manufacturers or producers to account for excise and sales taxes according to list selling prices (subject to allowances for discount), but do not specify on what event the tax is to become payable (i.e., delivery to the consumer), while the third paragraph contemplates a sale before the tax becomes payable.

Under s. 80(1) of the Æxcise Tax Act certain taxes are imposed with respect to goods ‘‘manufactured or produced in Canada’’ and delivered to the purchaser thereof. These goods are set out in Schedules I and II of the Act but do not include 11 watches adapted to household or personal use’’. Subsection

(2) [am. 1940, c. 41, s. 6] of s. 80 provides that where goods shown on Schedules I and II are ‘‘manufactured or produced and sold in Canada, such excise tax shall be paid by the manufacturer or producer at the time of delivery of such goods to the purchaser thereof’’.

It would therefore appear that these regulations were made in an attempt to bridge a hiatus that existed between the budget resolution and the passing of supporting legislation, and in contemplation of the dissolution of Parliament.

After some negotiations with the Ministers of Finance and National Revenue, the plaintiffs issued a writ on May 7, 1949, for the relief claimed and on May 23rd the statement of claim was delivered. The statement of defence is dated in blank but purports to have been delivered in September, 1949. Issue was Joined on September 19, 1949, and the action was set down for trial on September 20, 1949.

The plaintiffs contend that their business was put in great confusion by reason of having paid an excise tax of 10% on watch movements imported between March 23rd and May 2nd and being faced with a regulation that purported to impose a tax on them based on the "‘regular list selling price to ordinary retailers’’ or the sale price to consumers or users, as the case might be, subject to certain discounts, as well as a similar tax on the sale of goods out of stock imported prior to March 23, 1949.

The confusing nature of the situation is best illustrated by a simple hypothetical example—On importation by a plaintiff importer of watch movements of a duty-paid value of $10,000, on April 1st, there would be levied a sales tax of $800 and an excise tax of $1,000. These goods would therefore have been taken into stock at $11,800. If there was a mark-up, after discounts, of 50%, the selling price would be $17,700. If the goods were kept in inventory until after May 2nd, the plaintiff would have to account for a further sales tax of $1,416 and a further excise tax of $1,770, or a total excise and sales tax of $4,986. Quite apart from the effect of the retroactive legislation, which I shall discuss later, it was not argued, nor can I see that it could be argued, that there was any legal basis for this pyramiding of taxation. In fairness, it was suggested in argument that there were some negotiations being carried on with the Department of National Revenue for adjustment. The exact nature of these negotiations was not disclosed in evidence but negotiations that are now in progress cannot affect the legal decision that I have to make.

After the publication of the regulation of April 9, 1949, the plaintiffs objected very strongly to taking out manufacturers’ or importers’ licences pursuant to the provisions of the Excise Tax Act, as the Department required them to do. Under the form supplied for this purpose a statutory declaration was required to be made on behalf of the applicant that he was a bona fide manufacturer or producer of the goods named therein. This, it was contended, they could not do as they took the position that the assembly of a watch movement into a watch case was neither manufacturing nor producing a watch. It was argued that the fact that these licences were required has some bearing on the question whether a declaratory judgment should be given, as has the fact that the budget resolution was interpreted in one way for a considerable period of time, followed by a regulation of no validity.

Counsel for the defendant did not argue that s. 99 of the Excise Tax Act gives to the Minister authority to impose taxes by regulation. In fact, I could not find in his argument any serious contention that these regulations had any validity whatever. The power conferred on the Minister is to make regulations confined to what ‘‘he deems necessary or advisable for carrying out the provisions of this Act’’ (the italics are mine). This does not give the Minister power to amplify the law, defining who are manufacturers of watches or who may be producers of watches adapted to household or personal use, nor does it give the Minister power to fix the base of taxation. This must be done by legislative authority. The Minister no doubt would have power to make a regulation requiring those who were in fact manufacturers or producers of articles subject to excise tax to take out excise or manufacturers ‘ licences. This would be a regulation which he might deem necessary for the carrying out of the provisions of the Act, but that is not the nature of the regulations of April 19th. I find the regulations were ultra vires of the Minister under the Act.

The Minister acting under s. 99 of the Excise Tax Act exercises delegated powers. It is for the legislative body to decide in every case what power is to be delegated to any administrative body, and in each case the administrative tribunal is confined to the express authority delegated to it and to the authority that may arise by necessary implication. In no ease is the exercise of the delegated authority more carefully scrutinized than in the case where it is claimed that it gives a right to impose any financial burden on the subject. This principle was stated with emphasis by Scrutton, L.J., in Attorney-General v. Wilts United Dairies Ltd. (1921), 37 T.L.R. 884 at p. 885: "It is conceivable that Parliament, which may pass legislation requiring the subject to pay money to the Crown, may also delegate its powers of imposing such payments to the Executive, but in my view the clearest words should be required before the Courts hold that such an unusual delegation has taken place . . . Particularly where the sums to be paid to the Crown are to be paid as a condition of obtaining a licence to exercise the ordinary right of a subject should the clearest words be required? ‘

It was also stated by Atkin, L.J., at p. 886, where he prefaced a discussion of the Bill of Rights by saying: "‘No power to make a charge upon the subject for the use of the Crown could arise except by virtue of the prerogative or by statute, and the alleged right under the prerogative was disposed of finally by the Bill of Rights (1 W. & M., sess. 2, c. 2).’’

The regulation of the Minister being invalid, it would seem clear that at the date of the close of the pleadings there was no liability on the plaintiffs to pay an excise tax on watches, watch movements, watch cases, wrist-bands, bracelets or display cases on importation or on any other transaction with respect to them, as there was in fact no statutory provision for such a tax. It is equally clear that at the time of the close of the pleadings the plaintiffs-were entitled to have watch movements, watch cases, wrist-bands or bracelets or display cases passed through customs and delivered to them as importers upon payment of the regular customs duties and sales tax and without taking out a manufacturers’ or excise licences under the provisions of the Excise Tax Act.

The business of the plaintiffs being greatly hampered by reason of the fact that they could not clear watch movements without taking out the manufacturers’ and excise licences required as they could not honestly make the declarations that the application for these licences required, the departmental officials finally compromised by permitting them to take out licences without making the offensive declarations.

The position taken by the defendant in the pleadings is that the plaintiffs were manufacturers of watches within the meaning of the Excise Tax Act, that the regulations of April 19th were validly enacted pursuant to the provisions of s. 99 of the Excise Tax Act, and that the sales tax was imposed on the sale price of watches manufactured by the plaintiffs under ss. 85 and 86 of the Excise Tax Act. This had not been the position taken prior to March 22nd. The question at once arises—by what authority was the status of the plaintiffs changed for the purpose of taxation between March 22nd and September 19, 1949 ?

Upon a new Parliament assembling in September there was introduced in due course An Act to Amend the Excise Tax Act, 1949 (2nd Sess.), ¢. 21. The effect of the amending statute as related to the issues in this action is:

(a) To bring watches adapted to household or personal use (with exceptions irrelevant to this issue) under Part XI of the Act and subject to the provisions of s. 80 imposing an excise tax of 10% where they are manufactured or produced in Canada and delivered to a purchaser.

(b) To make watches like all other goods, if produced or manufactured in Canada subject to an 8% sales tax when delivered to a purchaser, etc. (subject to the exceptions contained in s. 86 of the Excise Tax Act).

Section 5 and 7 of the amending Act define a manufacturer or producer for the purpose of levying the excise and sales taxes in identical terms :

" 5. Section eighty of the said Act is amended by renumbering subsection seven thereof as subsection five, by repealing subsection nine thereof and by adding thereto the following subsection :

" (6) Where a person has, in Canada,

‘ (a) put a clock or watch movement into a clock or watch case,

‘ (b) put a clock or watch movement into a clock or watch case and added a strap, bracelet, brooch, or other accessory thereto, or

"‘(c) set or mounted one or more diamonds or other precious or semi-precious stones, real or imitation, in a ring, brooch or other article of jewellery,

he shall, for the purposes of this Part, be deemed to have manufactured or produced the watch, clock, ring, brooch or other article of jewellery in Canada.’ ‘‘

Under the provisions of the Act the retail purchase tax of 25%, is repealed and the imposition of the tax of 10% on watches 4 ‘adapted to household or personal use’’ is made effective as of March 23, 1949.

Sections 5 and 7, defining a manufacturer or producer, are declared to come into force as of November 10, 1949.

I think the result of this legislation is to make those who manufactured or produced ‘‘watches adapted to household or personal use’’ (excluding certain exceptions) and delivered them. to a purchaser between March 22nd and November 10, 1949, liable to pay an excise tax of 10% and sales tax pursuant to the provisions of ss. 80 and 86 of the Excise Tax Act. The effect of the provision that ss. 5 and 7 should come into effect as of November 10, 1949, for the purposes of this case is to leave it open to the Court to decide whether the other retroactive provisions of the statute in fact apply to the plaintiffs. Although the plantiffs do not ask for such a declaration it is of first importance to consider whether they in fact manufactured or produced ‘‘watches adapted to household or personal use’’ from March 23rd to November 10th so as to be liable to pay the excise and sales tax according to the retroactive amendment of December, 1949.

The words ‘‘manufactured or produced’’ as used in ss. 80 and 86 of the Excise Tax Act are not exhaustively defined nor are the words ‘‘manufacturer or producer’’. Section 2(c) provides that ‘‘manufacturer or producer”? shall include certain persons, and s. 80(7) likewise provides that ‘‘manufactured’’ and “produced” shall apply to certain articles, but by no reading of the statute can it be implied that these definitions are all- inclusive.

In Robinson v. Local Bd. of Barton-Eccles (1883), 8 App. Cas. 798 at p. 801, Earl of Selborne, L.C., adopts the language of Baron Huddleston in Baker v. Mayor etc. of Portsmouth (1877), 3 Ex. D. 4 at p. 13, with respect to the words “shall apply to and include’’ as used in a certain statute, and said: “An interpretation clause of this kind is not meant to prevent the word receiving its ordinary, popular, and natural sense whenever that would be properly applicable; but to enable the word as used in the Act, when there is nothing in the context or the subject-matter to the contrary, to be applied to some things to which it would not ordinarily be applicable.’’

In Reg. v. Hermann (1879), 4 Q.B.D. 284 at p. 288 Lord Coleridge, C.J., said : ‘‘The words ‘shall include’ are not identical with, or put for, ‘shall mean.’ The definition does not purport to be complete or exhaustive. By no means does it exclude any interpretation which the sections of the Act would otherwise have, it merely provides that certain specified cases shall be included.”

See also Ricard v. Lord, [1941], 1 D.L.R. 536, 8.C.R. 1, and Craies on Statute Law, 4th ed., pp. 192-4.

Therefore, in deciding whether the plaintiffs during the period under consideration ‘‘manufactured’’ or “produced” in Canada ‘‘watches adapted to household or personal use’’, I must apply those words in their ‘‘ordinary, popular or natural sense’’.

In R. v. Vandeweghe Ltd., [1928-34] C.T.C. 257, [1934] 8.C.R. 244 at p. 248, Duff, C.J.C., said: ‘‘The words ‘produced’ and ‘manufactured’ are not words of any very precise meaning and, consequently, we must look to the context for the purpose of ascertaining their meaning and application in the provisions we have to construe.”

I cannot find that the simple operation of putting a watch movement into a watch case is "‘manufacturing’’ a watch in the "‘ordinary, popular and natural sense’’ of the word, but I feel clear that the plaintiffs "‘produced’’ watches "‘adapted to household or personal use’’. It may well be that, as counsel for the plaintiffs argued, the movement as imported in the tin or aluminum case will keep time and could be used as a watch. This would be, however, with great inconvenience. It is not a watch "‘adapted to household or personal use’’ as the term is used in its ordinary and popular sense, and the movement in the aluminum case would be quite unsalable as such. In fact, to give effect to this argument would be to hold that for the purpose of clearing the movements through the customs they should be considered for the purposes of the Customs Tariff and s. 86 of the Excise Tax Act to be watches. I therefore find that for the purposes of the Excise Tax Act the watch movements as imported were not watches. That being so, the inescapable conclusion is that the plantiffs, by importing the movements and placing them in watch cases so that they might be convenient and salable for personal use as watches, were producers of watches adapted to household or personal use and are therefore now liable to pay excise tax and sales tax, pursuant to the retroactive provisions of the amendment of December 10, 1949, on deliveries made to purchasers on and after March 23, 1949.

Counsel for the plaintiffs contends that the rights of the parties should be judged as of the date of the close of the pleadings and that the defendant should not be permitted to take advantage of the statute of December, 1949, because no application has been made to the Court for leave to amend the statement of defence, by pleading the statute. Quite irrespective of what I shall say as to other matters that I think should have been pleaded, I do not think there is any legal foundation for this contention. Apart from our Rules of Practice, the principles to be applied with reference to pleading a statute are set out with concise clarity in Dawkins v. Penrhyn (1878), 4 App. Cas. 51. In that case the question was whether the point could be taken on demurrer that the plaintiff’s title had been extinguished by reason of the Statute of Limitations applicable to real property. Lord Cairns distinguishes between those cases where a defendant desires to shelter himself behind the Statute of Frauds or the Statute of Limitations in personal actions and a statute extinguishing a right. In cases where the Statute of Limitations may be applicable the cause of action remains, although 6 years have passed, and it is not predicated that the defendant will appeal to the statute for his protection. In the case where the Statute of Frauds may be applicable the statute must be pleaded because it never can be predicated beforehand that a defendant who may shelter himself under the Statute of Frauds desires to do so. In the case of real property the plaintiff has to state his title and where on the face of the plaintiff’s pleading the law says that his title is extinguished the point can be taken on demurrer without pleading the Statute of Limitations.

At p. 66 Lord O’Hagan said: ‘‘It is also to be observed, as was mentioned by my noble and learned friend on the woolsack, that, at law, the pleading of the statute, in order to shew the suspension of liability, was a matter of discretion and of choice. It was quite a different thing from pleading it, with reference to real property, where it would operate as a complete transfer of title from one person to another, and as an absolute extinction of a right.”

In K.V.P. Co. v. McKie, [1949] S.C.R. 698, the Supreme Court of Canada was called upon to consider a statute passed following the judgment of the Court of Appeal for Ontario but before the hearing of the appeal in the Supreme Court. While the question was decided under the provisions of s. 46 of the Supreme Court Act which provides that the Court may dismiss an appeal or give the judgment which the Court whose decision appealed from should have given, and the Court held that the statute in question not having been in existence at the time the judgment of the Court of Appeal was given, the Supreme Court had no jurisdiction to give judgment based on the statute passed during the interval, it was not suggested that it would have been necessary to plead the statute. Kerwin, J., at p. 701 points out: 44 The 1949 Act is not an enactment declaratory of what the law was deemed to be.’’ I take it from this phrase that the Court would have felt compelled to apply the 1949 Act if it had been an enactment declaratory of what the law was deemed to have been at the time the Court of Appeal gave judgment.

The 1949 amendment to the Æxcise Tax Act is a declaration of the general law effective on and after March 23, 1949 (with the exception of ss. 5 and 7) and I think I must give full effect to it irrespective of the fact that it is not pleaded and irrespective of the fact that it was passed while this action was pending : Florence Mining Co. v. Cobalt Lake Mining Co. (1909), 18 O.L.R. 275, affirmed 43 O.L.R. 474.

In the light of these conclusions the question now arises as to whether any declaratory judgment ought to be given in the circumstances.

Section 15(b) of the Judicature Act, R.S.O. 1937, c. 100, provides: ""No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right, whether any consequential relief is or could be claimed or not.’’

The provisions of this statute were considered by my learned brother Hogg in a carefully reasoned judgment in an action against the Attorney-General for Canada, in Greenlees v. A.-G. Can., [1945] O.R. 411 at pp. 422 et seq. While this portion of the judgment may be obiter, it deals with and discusses the principles developed in many of the relevant cases, and the learned Judge concludes that if the facts of that case had warranted it a declaratory judgment against the Crown in the right of the Dominion might have been given. In the Court of Appeal, [1946] O.R. 90, the Chief Justice of Ontario at p. 96, appears to have expressed some doubt as to whether a declaratory judgment should have been given had the facts of that particular case warranted a finding that the plaintiff was a minister of the gospel (the question of fact in dispute). At p. 428, Hoge, J., holds that ss. 18 and 19 of the Exchequer Court Act apply to such actions as are the subject of a petition of right, and that it having been held that a petition of right is not an appropriate means of obtaining a merely declaratory judgment against the Crown, such a suit does not come within the Exchequer Court Act. That being so, to what Court might the plaintiffs in this case go? The Judges of the High Court of Justice for Ontario have inherited their jurisdiction as the Judges of the King’s Courts of justice as it was first exercised under British rule in Canada.

In Board v. Board, [1919] A.C. 956 at p. 962, Viscount Haldane said: ‘‘If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the King’s Courts of justice. In order to oust jurisdiction, it is necessary, in the absence of a special law excluding it altogether, to plead that jurisdiction exists in some other Court.”

In A.-G. Ont. v. A.-G. Can., [1931] O.R. 5, 55 Can. C.C. 346, Garrow, J., held that under s. 19 of the Judicature Act the Courts of Ontario have power to declare an Act of the Dominion of Canada ultra vires.

I think it necessarily follows that the conclusion of my brother Hogg is correct and that the jurisdiction given under s. 15 of the Judicature Act, taken together with the common law jurisdiction of the King’s Courts of justice, vests in me power to make a declaratory order or judgment in a proper case involving the rights of the subject with reference to the exercise of power not authorized by statute which is assumed to be exercised by those who hold office under the Crown in the right of the Dominion. Examples may be drawn from the facts of this case, e.g.: refusal of the officials of the Department of National Revenue of the right of the plantiffs as importers to pass watch movements through the customs without the payment of an excise tax of 10% (not authorized by law), or the right of the Minister of National Revenue to require the plaintiffs to account for sales tax and excise tax on a basis not authorized by law, or the right of the departmental officials to require that the plaintiffs take out manufacturers’ and excise licences before they could pass watch movements through the customs.

But a declaratory judgment where no incidental relief is sought is not a judgment which is given as of right in all cases where the circumstances might warrant it. It is a judgment given in the exercise of a judicial discretion. It is therefore necessary to consider the general principles governing the exercise of the discretion and the particular principles where a declaratory judgment is sought against the Crown.

Counsel for the plaintiffs relies very strongly on the much- discussed case of Dyson v. Attorney-General, [1911] 1 K.B. 410. In that case, the plaintiff, along with large numbers of other persons similarly affected, was required by certain notices issued by the Commissioners of Inland Revenue under the Finance (1909-10) Act, 1910, to make returns with respect to the value, etc., of property occupied by them. The Commissioners threatened to enforce a penalty for failure to make these returns. It was contended that the action taken by the Commissioners was ultra vires. The main judgment of the Court was given on a preliminary motion and the final judgment at the trial is reported in Dyson v. Attorney-General, [1912] 1 Ch. 158. The result was that it was held that this was a proper case for making a declaration that the action taken by the Commissioners was ultra vires. Subsequent decisions have been carefully guarded as to the extent of the application of this decision.

In Esquimalt c Nanaimo R. Co v. Wilson, [1920] A.C. 358 at pp. 367-8, Lord Buckmaster, after mentioning that the question of the jurisdiction of the Court of Exchequer was raised before the Court of Appeal in Dyson v. Attorney-General, supra, and that the Master of the Rolls pointed out that the equity jurisdiction of the Court of Exchequer on the Revenue side had nothing peculiar as distinguished from the Court of Chancery, proceeds as follows : ‘‘Their Lordships are of opinion that in making that statement the Master of the Rolls was perfectly accurate, and it is unnecessary to consider, and their Lordships pass no opinion upon, whether or no the ease of Dyson v. The Attorney-General, [1911] 1 K.B. 410, was in other respects properly decided. ‘ ‘

The decision in Guaranty Trust Co. of N.Y. v. Hannay & Co., [1915] 2 K.B. 536, is a leading case on the general principles applicable to declaratory judgments. Buckley, L.J., quotes at p. 553 from the judgment of the Master of the Rolls in Dyson v. Attorney‘General, [1911] 1 K.B. 410 at p. 417: " ‘I desire to guard myself against the supposition that I hold that a person who expects to be made defendant, and who prefers to be a plaintiff can, as a matter of right, attain his object by commencing an action to obtain a declaration that his opponent has no good cause of action against him. The Court may well say, "Wait until you are attacked and then raise your defence,” and may dismiss the action with costs.’ ‘‘

The learned Lord Justice goes on to point out that in Dyson v. Attorney‘General the Judges rely on the threat of penalties as a material element. He states: "‘If ever there was a case in which the Court would seek to find that it had jurisdiction this was one and there was, I conceive, a cause of accusation in the plaintiff, namely that of any one party to a document against the other parties to ascertain its true construction .. . . and the claim to protection against proceedings for penalties which, according to the plaintiff’s construction, had not been incurred. I do not think the case is an authority for the proposition that a plaintiff who has no cause of action can obtain a declaration as to the law applicable to a case in which the defendant has a cause of action against him.’’

The Dyson case was again discussed in Smeeton v. Attorney- General, [1920] 1 Ch. 85, where the plaintiff claimed that he was within an exception exempting him from excess profits duty and denied his liability to furnish a return or supply information to the Commissioners and commenced an action for a declaratory judgment to that effect. Peterson, J., held that the granting of a declaration is by no means a matter of course and that the plaintiff might have insisted upon what he considered to be his strict rights and raised his defence in any proceedings that might have been taken against him.

In Markwald v. Attorney-General, [1920] 1 Ch. 348, the plaintiff brought an action for a declaration that he was not an alien in England but a liege subject of His Majesty the King and entitled to the protection of His Majesty the King in all parts of His Majesty’s Kingdom and Dominions. At p. 357 Lord Sterndale, M.R., stated: "There is no doubt now that actions can be brought for declarations, and the Court can make declarations although no consequential relief is asked. That was so decided by Dyson v. Attorney-General, [1911] 1 K.B. 410; Burghes v. Attorney-General, [1912] 1 Ch. 173, and Guaranty Trust Co. of New York v. Hannay c Co., [1915] 2 K.B. 536. It is a very useful jurisdiction, and especially so in cases of a commercial character; but it does not at all follow that a declaration ought to be made in all cases. I think, speaking for myself, that there has been too great a tendency of late years to ask for declarations on every possible point. I have considerable doubts whether this was a case in which a declaration ought to have been made as a matter of discretion, even assuming the appellant to be correct in his contention.”

In Simmonds v. Newport Abercarn Black Vein Steam Coal Co., [1921] 1 K.B. 616 at pp. 626-7, Bankes, L.J., referring to his judgment in Guaranty Trust Co. v. Hannay, supra, said:

"There is also a passage in my judgment which seems appropriate and I therefore repeat it. After saying that in my opinion it is open to the Court to grant a declaration in any case in which the person claiming the declaration can be said to be seeking relief, I went on ([1915] 2 K.B. at p. 572) :—‘ What is meant by this word ‘‘relief’’? When once it is established, as I think it is established, that relief is not confined to relief in respect of a cause of action, it seems to follow that the word itself must be given its fullest meaning. There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the Court to grant or contrary to the accepted principles upon which the Court exercises its Jurisdiction. Subject to this limitation I see nothing to fetter the discretion of the Court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the Courts to the needs of suitors I think the rule should receive as liberal a construction as possible.’ ‘‘ (The italics are mine. )

At pp. 630-1 Lord Atkin said: “As to the form of the action, I have no hesitation in saying that this is precisely the kind of case in which the Court has power to grant relief by way of declaratory judgment, and I should be very sorry to cut down a jurisdiction which was a most valuable addition to the existing powers of the Court.’’

In Hanson v. Radcliffe Urban Dist. Council, [1922] 2 Ch. 490 at p. 508, Warrington, L.J., used these expressive words: "‘Here is a public body, entitled under certain circumstances to interfere with the rights of other persons. It does so with no authority. It seems to me it would be nothing short of a disaster if the Court had no power to make a declaration upholding the rights of those other parties, and restraining that wrongful interference. ‘ ‘

In k. v. Central R. Signal Co., [1933] S.C.R. 555 at p. 563, Duff, C.J.C., stated: “It is true that under modern procedure in certain cases a proceeding may be taken for a declaration of right by a subject against the Attorney-General and in other cases where the interests of the Crown appear to be involved in litigation the Attorney-General may be made a party (Dyson v. Attorney-General, [1911] 1 K.B. 410; Esquimalt & Nanaimo Ry Co. v. Wilson (1920), 50 D.L.R. 371) ; but the rule is absolute that no proceeding having for its purpose the issue of any process against His Majesty himself or against any of His Majesty’s property is competent in any of His Majesty’s Courts.”

In Bombay & Persia Steam Nav. Co. v. MacLay, [1920] 3 K.B. 402, an action was brought against His Majesty’s Shipping Controller claiming a declaration that the plaintiffs were entitled to compensation for loss sustained by the diversion of a ship from a voyage. Rowlatt, J., who was one of the counsel in the Dyson case, said at p. 408: ‘‘The machinery of Dyson v. Attorney-General, [1911] 1 K.B. 410; [1912] 1 Ch. 158, cannot be used to prejudge the issue of what may have to be adjudicated upon in a petition of right as to a money claim against the Treasury.”

In Russian Commercial & Industrial Bk. v. British Bk. for Foreign Trade Ltd., [1921] 2 A.C. 438 at p. 445, Viscount Finlay, referring to the power to give declaratory judgments, said : ‘‘This is a very wide power and it is obvious that it is one that should be exercised with the utmost caution.’’

Counsel for the defendant argued that in no case should a declaratory judgment be given where it affected the revenue of the Crown. I think an acceptance of the validity of this argument would be a dangerous invasion of the right of the subject to rely on the Courts for protection and would have no foundation in authority. In the case of China Nav. Co. v. Attorney- General, [1932] 2 K.B. 197, there is no suggestion that if the facts and law had warranted a declaration that charges made by the Crown for protective services were illegal it would not have been a proper remedy.

A close study of these cases reveals some variation in judicial thought as to the boundaries within which the judicial discretion to give declaratory judgments should be exercised, especially where the declaration is against the Crown. With this in mind I now deal in detail with the specific relief asked for in the prayer to the statement of claim.

Had I been trying the action prior to December 10, 1949, I would have made a declaratory order that the plaintiffs were not liable to pay excise tax in respect of the goods in question either on importation or delivery to purchasers and that they were entitled to have such goods pass through customs upon payment of the lawful taxes then in force. I also think that in such case the jurisdiction of the Court should have been exercised to declare the Regulations of April 19, 1949, ultra vires. The views expressed by Bankes, L.J., and Atkin, L.J., in Simmonds v. Newport Abercarn Black Vein Steam Coal Co., [1921] 1 K.B. 616, and by Warrington, L.J., in Hanson v. Radcliffe Urban Dist. Council, [1922] 2 Ch. 490, have special application to a case of this nature. This peculiar right of recourse to the Courts is a valuable safeguard for the subject against any arbitrary attempt to exercise administrative power not authorized by statute, and Judges ought not to be reluctant to exercise the discretion vested in them where a declaration of the Court will afford some protection to the subject against the invasion of his rights by unlawful administrative action.

Subject to what I shall say as to giving permission to amend the statement of defence, it is difficult for me to see, on the evidence put before me at the trial, what protection would now be afforded to the plaintiffs by a declaratory judgment with respect to the claims set out in para. (a) or para. (d) of the prayer (with the exception I discuss later). Having found that the plaintiffs were producers of watches adapted to household or personal use since March 22, 1949, under the state of the law as it now is they have been liable to pay the excise tax according to the terms of the statute since that time. No useful purpose could be served by making a declaration that they were not liable to pay the tax until the statute of 1949 with its retroactive effect had received the Royal Assent. It is true that the Regulations made by the Minister on April 19, 1949, were ultra vires and void, but I cannot see what useful purpose can be served by making a declaratory order to that effect except as to the attempt under para. 4 to impose an excise tax payable on transactions in display cases. All other rights of the plaintiffs that the Regulations purported to affect have been affected in a similar manner by reason of the retroactive terms of the subsequent legislation. Any declaratory order made now in respect of these Regulations, with the exception of para. 4, would mean nothing more than a statement by the Court that what had been done was illegal although notwithstanding that, the result attempted was later accomplished by enacting the retroactive provisions of the subsequent statute.

The declaration asked for in para, (b) of the prayer that the plaintiffs are entitled to have the goods in question passed through customs and delivered to the particular importer in each case, without the importer (1) taking out a manufacturer’s or excise licence; or (2) paying any excise tax at the time of entry, but upon payment of 8% sales tax on the import price, in some measure presents a more difficult problem. As I have said, the position taken by the departmental officials following the budget resolution was that the plaintiffs must pay an excise tax of 10% on watch movements when imported, and later that they must take out manufacturers’ or excise licences before they could clear watch movements through the customs. While the practice adopted after the promulgation of the Regulations of April 19, 1949, was that this excise tax should not be collected and that the excise and sales tax should be based on the manufacturer’s sale price, subject to discounts, the threat that the excise tax on importation would be reimposed was not entirely removed. There is no admission in the pleadings that the tax was unlawfully imposed nor is there any suggestion that there is no intention to reimpose it as soon as this action is over. The directive to the departmental officials issued on July 6th (ex. 30) before the pleadings were closed merely says: "‘For the time being the excise tax of 10% need not be collected on components or constituent parts of watches or clocks on importation or on domestic purchase as the case may be . . . You need make no demands on them for its payment pending further instructions from the Department.’’ As far as the evidence and the pleadings go the matter rests there.

This directive refers to a tax that did not exist at the time and does not exist now. I think the defendant should have taken the position in the pleadings that these taxes were illegal from their inception and that there is now no legal foundation for their collection, which, according to the directive, appears to be suspended "‘for the time being’’. I also think that the defendant ought to have pleaded that there was no intention to make demands on the plaintifs in the future for the payment of an excise tax on importation. The matter having been left in the position in which it was left, and having in mind the demands that had been made on the plaintiffs, subject to what I shall say as to leave to amend the pleadings, I think I would be denying the plaintiffs that protection to which they are entitled, against further effort to collect the excise tax on importation if I refused a declaratory judgment that each of the plaintiffs is entitled to have watch movements shipped to it from abroad and passed through customs and delivered to the particular importer without such importer paying an excise tax at the time of the entry of the goods.

The claim under para. (b)(i) is likewise made more difficult by reason of the failure of the defendant to make a frank statement in the statement of defence or at the trial. The position taken by the defendant is that by virtue of the 1949 amendment the plaintiffs are now, for the purposes of the Excise Tax Act, manufacturers, and therefore must take out manufacturers’ and excise licences if they wish to do business in the manner in which they have done business in the past, and they have in fact with one exception taken out those licences. It is argued that any declaration based on these facts would be merely hypothetical. The evidence on this branch of the case is quite unsatisfactory on both sides. There is no evidence that any of the plaintiffs’ wishes to import watch movements, etc., except as manufacturers or producers within the meaning of the statute as amended in 1949, nor is there any evidence that the departmental officials since the amendment of 1949 refused any of the plaintiffs their full rights of importation without taking out these licences. But there is evidence that Mr. MacMillan, signing for the Deputy Minister, on April 13, 1949, stated that the Department would hold "‘that the person, firm or corporation purchasing or importing movements and/or cases and assembling them into watches is a ‘manufacturer or producer’ required to operate under both manufacturers’, excise and sales tax licences’’. At the time of the close of the pleadings this matter was a serious contention between the parties and was by no means hypothetical. It is true this position has been altered by the 1949 Act but I think it was incumbent on the defendant to plead the facts to which the amended statute is to be applied, rendering a declaratory judgment unnecessary.

The claim set out in para. (c) was likewise an issue at the close of the pleadings. In the fourth paragraph of the Regulations an attempt was made to make provision for an excise tax in respect of display cases or other cases whether the case "‘be invoiced separately or not’’. On the argument counsel for the defendant said with reference to this paragraph: ‘‘Where the circumstances indicate a sale of the case separately from the watch I do not attempt to support para. 4.’’

And in another place in dealing with the relief claimed in para. (c), he said: ‘We have never taken a contrary position and don’t take it today . . . It never has been an issue at all.”

Upon its being pointed out that it was pleaded that the Regulations were valid, counsel stated: ‘‘Well, all I can say with respect to that, I have no objection to a declaration and I say it is of no value to anybody, but I have no objection to it.”

With these admissions made by counsel for the defendant I think such a declaration would have no value, but they are admissions that ought to have been made in the pleadings and not reserved to the conclusion of the trial.

This brings me to the proper disposition of this case having regard to the legal position of the parties at the time that the action was commenced and made ready for trial, the issues raised in the pleadings, and the subsequent change in the law. The general principle applicable in all cases, and a very sound principles for Judges to keep constantly in mind is found in the judgment of Scrutton, L.J., in Blay v. Pollard, [1930] 1 K.B. 628 at p. 634: “Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment.”

There is no provision in our Rules of Practice similar to O. 24, rr. 2 and 3 of the English Rules, which read as follows:

“2. Where any ground of defence arises after the defendant has delivered a defence, or after the time limited for his doing so has expired, the defendant may, and where any ground of defence to any set-off or counterclaim arises after reply, or after the time limited for delivering a reply has expired, the plaintiff may, within eight days after such ground of defence has arisen or at any subsequent time, by leave of the court or a judge, deliver a further defence or further reply, as the case may be, setting forth the same.

“3. Whenever any defendant, in his defence, or in any further defence as in the last rule mentioned, alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of such defence . . . and may thereupon sign judgment for his costs up to the time of the pleading of such defence, unless the court or a judge shall, either before or after the delivery of such confession, otherwise order.’’

Notwithstanding the absence of a provision similar to this in our Rules I think Rules 142, 143, 144 and 671 are sufficient to enable me to do justice in this case. They provide as follows:

"142. Each party shall admit such of the material allegations contained in the pleading of the opposite party as are true, and a defendant shall not deny generally the allegations contained in the statement of claim but shall set forth the facts upon which he relies even though this may involve the assertion of a negative.

" ‘143. A defendant to an action or counter-claim shall raise all matters which show the action or counter-claim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as for instance, fraud, the Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or the Statute of Frauds.

" " 144. Save as otherwise provided, the silence of a pleading as to any allegation contained in the previous pleading of the opposite party shall not be construed as an admission of the truth of such allegation.

" 671. When anything in the course of an action or reference which ought to have been admitted, has not been admitted, the party who neglected or refused to make the admission may be ordered to pay the costs occasioned by his neglect or refusal.??

In construing the Rule 144 English cases are to be applied with great care as*it is the exact reverse of English O. 19, r. 13. The result, however, is that where a material fact is alleged in pleading and the pleading of the opposite party is silent in respect thereto the fact must be considered in issue.

In the case of Re Robinson 9 s Settlement, [1912] 1 Ch. 717 at p. 728, Buckley, L.J., referring to O. 19, r. 15 which is similar in effect to the above Rule 143, said: ‘‘The effect of the rule is, I think, for reasons of practice and justice and convenience to require the party to tell his opponent what he is coming to the Court to prove. If he does not do that the Court will deal with it in one of two ways. It may say that it is not open to him, that he has not raised it and will not be allowed to rely on it; or it may give him leave to amend by raising it, and protect the other party if necessary by letting the case stand over. The rule is not one that excludes from the consideration of the Court the relevant subject-matter for decision simply on the ground that it is not pleaded. It leaves the party in mercy and the Court will deal with him as is just.”

While I place my judgment on the claim set out in para. (a) of the prayer on the footing that the retroactive provisions of the Act of 1949 apply to the plaintiffs because they were

° producers” of watches "‘adapted to household or personal use’’ and not ‘‘manufacturers’’ of watches, etc., as pleaded in the statement of defence, and hold that it was not necessary for the defendant expressly to plead the provisions of the Act of 1949, I nevertheless think that it was incumbent upon the defendant to plead the fact that the plaintiffs were ‘‘ producers of watches’’ so as to avail himself of the provisions of the 1949 statute. True, this defence could not have been raised until December 10, 1949, nevertheless it should have been raised by amendment. The very purpose as I see it of providing that ss. 5 and 7 should not come into effect until November 10, 1949, was to leave it open to have the issue decided in the Courts as to whether the plaintiffs were in fact manufacturers or producers of watches adapted to household or personal use. However, I think in view of the fact that a declaratory judgment only is asked I should still allow the amendment on terms so that the action may be disposed of in a rational way. I deal similarly with the claim under para. (b).

The defendant will have leave to amend by pleading that it is admitted that each of the plaintiffs is entitled to have watch movements, etc., passed through customs and delivered without

(1) taking out a manufacturer’s or excise licence; or (2) paying any excise tax at the time of entry of the goods in question; and admitting that there is no excise tax payable with respect to transactions solely in display cases.

The amendments may be made upon payment of the plaintiffs’ costs down to the date of the amendment, in which case the action will be dismissed without costs. If the defendant does not avail himself within 14 days of the leave to amend granted on the terms which I have set out judgment should go for the plaintiffs as prayed in paras. (b), (c) and (d) of the prayer to the statement of claim. The declaration under para. (a) should be that the plaintiffs were not liable to pay excise tax in respect of transactions in watch movements, watch cases, wrist bands or bracelets prior to November 10, 1949.

If there is any difficulty in working out the details of the formal judgment I may be spoken to.

I cannot part with this difficult case without expressing my appreciation of the great assistance I have had from counsel and complimenting counsel for the Crown on the meticulous manner in which he observed the traditional functions of counsel appearing for the Crown.

Judgment accordingly.