Bulova Watch Company Limited v. Attorney-General for Canada, [1951] CTC 94, [1951] DTC 462

AYLEWORTH, J.A.:—This is an appeal by the plaintiff Bulova Watch Company Limited from a judgment pronounced by the Chief Justice of the High Court on the 15th May, 1950, dismissing the plaintiff’s action without costs: Gruen Watch Company of Canada Limited et al. v. The Attorney-General of Canada, [1950] C.T.C. 440, [1950] O.R. 429, [1950] 4 D.L.R. 156. The action as to several plaintiffs was discontinued at trial. Certain of the plaintiffs filed and served notice of appeal to this Court; the plaintiff Bulova Watch Company Limited is now the sole remaining appellant.

It is necessary to relate in some detail, and in chronological order, the events leading up to the appeal. The action is brought for certain declarations: The Judicature Act, R.S.O. 1937, c. 100 (now R.S.O. 1950, c. 190), s. 15(b). The learned Chief Justice of the High Court, after a careful review of the authorities, concluded that had it not been for certain amendments to The Excise Tax Act, R.S.C. 1927, c. 179, which came into force in December, 1949, some months after the issue of the writ, the plaintiffs would have been entitled to judgment, with some amendment of the precise wording of the declarations as claimed. He further considered that, giving effect to those amendments of the statute, the plaintiffs’ claims might well be satisfied by admissions to be made in the statement of defence, really as an alternative to judgment for the plaintiffs, and in his reasons for judgment gave leave to the defendant to amend its statement of defence by pleading the amending statute and by making admissions following somewhat closely the form of certain of the declarations as sought by the plaintiffs. Leave to amend was granted upon the condition that the defendant pay the plaintiffs’ costs to the date of the making of the amendments forthwith after taxation. The reasons further provided that in the event the costs were not paid and the amendments were not made the plaintiffs should have judgment substantially as prayed. The judgment, therefore, was really in the alternative ; upon the defendant electing to do certain things the action was to be dismissed without costs; failing such election the plaintiffs were to have judgment with costs.

This aspect of the reasons for judgment is ignored in the actual judgment itself as settled and issued. The formal judgment in effect provides leave to the defendant to amend upon the term as to payment of costs already mentioned, and that upon such amendment and payment the action be dismissed without costs. There the matter is left. The actual position, which cannot be ascertained from a perusal of the judgment itself, is that the amendments in fact were made by the defendant and the plaintiffs’ costs were taxed and paid.

The appellant submits that any relief to which it is entitled should be reflected in the judgment itself by way of declarations and that it is wholly unsatisfactory, and really not a judicial disposition of its case, for the appellant to be left to attempt to demonstrate its rights by reference to the statement of defence as amended and to the reasons for judgment.

At the opening of the appeal a preliminary objection, really by way of motion to quash, was taken by the respondent on the ground that the appellant and other of the plaintiffs had taken the benefit of the judgment appealed from and could not now, having taken such benefit (payment of their taxed costs te the date of the amendment of the statement of defence), continue the appeal. After this motion had been argued at some length counsel for the respondent, on further reflection as to the effect of certain correspondence passing between the parties after delivery of the reasons for judgment, and in view of the somewhat peculiar course of proceedings leading to amendment of the statement of defence, settlement and issue of the judgment and taxation and payment of the plaintiffs’ costs, frankly stated to the Court that he considered it unfair to rely, in any way, upon what the appellant had done as a ground for quashing the appeal, and, with leave of the Court, withdrew his motion entirely.

The appeal itself was argued also at some length, including the right of the defendant to plead and rely upon the subsequent amending legislation. With respect, I think the learned Chief Justice of the High Court was correct in the effect he gave to this legislation, and upon that view the real remaining issue between the parties can be stated quite simply. It is this : Is it a sufficient and judicial answer to the appellant’s action that its position as outlined in its claim is vindicated by, the reasons for judgment and by the admissions made in the statement of defence as amended? With respect, I do not think it is. I think that the case is clearly one in which the appellant is entitled to the formal declaration of the Court as to its rights. So far as now relevant the declarations sought, in essence, would assert that the appellant is entitled to secure entry through customs of certain component parts for watches without payment of excise tax upon such entry and without the issue of a manufacturer’s and an excise licence for that purpose. It is, I think, a fair inference from the evidence that the appellant’s rights in this respect were not acceded to unequivocally, at least until the amendments to the statement of defence were made as permitted by the reasons for judgment. If I am right in this, then it is but poor comfort to the appellant to leave it to assert its rights by presenting a brief, as it were, consisting of the pleadings and the reasons for judgment, to the customs collectors at ports of entry or to others having authority in such matters. Those rights, in my opinion, should have been and ought now to be stated by way of formal declaration in the judgment itself.

I would therefore allow the appeal with costs, set aside the Judgment appealed from, and direct that judgment be entered for the appellant :

(1) Reciting leave upon terms to the defendant to amend its statement of defence, taxation and payment of the plaintiff’s costs in compliance with such terms and that the amendments (setting them out) have been made accordingly.

(2) Declaring that:

(a) There is no excise tax payable upon watch movements, watch cases, wrist bands, bracelets or display cases as such except where such cases, wrist bands or bracelets are goldsmiths’ or silversmiths’ products under item 14(c) of schedule 1 of The Excise Tax Act as enacted by 1949, 2nd sess., e. 21, s. 10.

(b) The appellant is entitled to have watch movements, watch cases, wrist bands or bracelets or display cases, shipped to it from abroad, passed through customs and delivered to it without taking out a manufacturer’s or excise licence or paying any excise tax at the time of entry of the said goods except where such cases, wrist bands or bracelets are goldsmiths’ or silversmiths’ products under item 14(c) of schedule 1 of The Excise Tax Act as amended.

(3) Making no further order as to costs of the action.

If there is any difficulty as to the form which the Court’s order should take, the matter may be spoken to in chambers.

Appeal allowed with costs.