A-553-79
E.W. Bickle Ltd. (Applicant)
v.
Minister of National Revenue (Respondent)
Court of Appeal, Pratte, Heald and Urie JJ.—
Vancouver, December 9 and 11, 1980.
Judicial review Federal sales tax — Exemptions
Newspapers — Application to review and set aside Minister's
decision that certain publications are not "newspapers" and
therefore do not fall within exemption provided for in s. 3 of
Part III of Schedule III to Excise Tax Act — Whether this
Court can interfere with respondent's decision Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 Excise Tax
Act, R.S.C. 1970, c. E-13, ss. 27, 29(1), Schedule III, Part III,
s. 3.
This is a section 28 application to review and set aside a
decision of the respondent that certain publications are not
newspapers for the purpose of the exemption from federal sales
tax provided for in section 3, Part III of Schedule I11, of the
Excise Tax Act. That decision was rendered following a judg
ment of this Court rendered on a previous section 28 applica
tion dealing with this matter. In its judgment, this Court
referred the matter back to the respondent who held, inter alia,
that two of the publications in issue therein were not newspa
pers and hence, subject to federal sales tax. The question is
whether this Court can interfere with the respondent's decision.
Held, the application is dismissed. The final paragraph of
Part Ill of Schedule III of the Excise Tax Act requires the
Minister of National Revenue to, essentially, formulate an
opinion. Facts must be established to enable the opinion to be
reached. There is no question that on the record there was
evidence that the publications in issue here were not newspa
pers for the purpose of the exempting provisions of the Act.
That being so and it being clear that he had regard to the law
relating to the issue, this Court ought not to interfere with the
decision the Act calls upon him to make. If this Court were to
refer the matter back to the Minister requiring him to find that
the publications are newspapers, it would be substituting its
opinion for his. This the Court cannot do.
APPLICATION for judicial review.
COUNSEL:
M. Shepard for applicant.
W. Hohmann for respondent.
SOLICITORS:
Russell & DuMoulin, Vancouver, for appli
cant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside a decision of the respondent
made pursuant to the Excise Tax Act, R.S.C.
1970, c. E-13 (hereinafter called "the Act"),
wherein he held that two publications, The Cen
tury 21 Gold Post and Real Estate Victoria are
not "newspapers" for the purpose of the exemption
from federal sales tax provided in section 3 of Part
III of Schedule III of the Act.
This matter has been the subject of a previous
section 28 application by the same applicant. That
application resulted in a judgment of this Court
referring the matter back to the Minister for
reconsideration on the basis of the application of
the statute to the facts as disclosed in the material
submitted to the Minister. The reasons for judg
ment of the Court disclose that the respondent in
making the decision there under review, found the
two publications, which are the subject of this
application to be taxable on the following basis:
The weekly publication "Real Estate Victoria" ... has been
examined, as it contains over 95 percent advertising has also
been ruled to be a taxable publication.
The "Century 21 Gold Post", issued on a random basis, con
taining 100 percent advertising is a taxable publication ....
It is common ground that the descriptions accu
rately depict the contents of each publication at
issue herein.
In the impugned Ministerial decision in that
application two other of the applicant's publica
tions were also found not to be covered by the
exemption provisions of the Act. In that decision
the Minister made the following findings in respect
of all four publications:
I have examined these publications and have found that they
are essentially advertising circulars. Publications of this kind
have not been granted exempt status as newspapers, and I can
only confirm the previous decisions that they are subject to
sales tax.
I have noted your reference to the case of "The King v
Montreal Stock Exchange and Exchange Printing Co." and I
must tell you that, over the years, this case has been mentioned
by other persons writing to my Department. After reference to
legal counsel, our position is that it is not a precedent and does
not preclude the exercise of statutory discretion conveyed to the
Minister of National Revenue by the Excise Tax Act.
The authority for the Minister's decision both in
this case and in the previous case is found in
section 27 of the Act which imposes a sales tax on
goods produced or manufactured in, or imported
into, Canada and in section 29(1) thereof, which
exempts from that tax articles mentioned in
Schedule III to the Act. As previously noted,
section 3 of Part III of Schedule III mentions,
inter alia, "newspapers". It reads as follows:
3. College and school annuals; magazines and literary papers
unbound regularly issued at stated intervals not less frequently
than four times yearly; newspapers; sheet music; materials for
use exclusively in the manufacture thereof.
At the end of Part III appear the following
words:
The Minister shall be the sole judge as to whether any
printed material comes within any of the classes mentioned in
sections 1, 3, 5 and 8 of this Part.
In the reasons for judgment of the Court, deliv
ered by Jackett C.J., on March 27, 1979» appear
the following paragraphs:
Very briefly, as I understand it, there has been a long-stand
ing exemption of "newspapers" from sales tax under the Excise
Tax Act and, more recently, the Minister has been made the
"judge" of whether a particular publication falls within that
exemption. The Minister has not, however, as I understand the
statute, been empowered, arbitrarily or otherwise, to vary the
ambit of the exemption. In making a decision as to whether the
exemption applies, the Minister's duty as I conceive it, is to find
the facts and apply the exempting words. In this case, the vital
word—newspaper—has been the subject of a judgment of the
Supreme Court of Canada and, in making his decision, the
Minister has rejected that judgment and has laid claim to a
"statutory discretion", which he, apparently, regards as giving
him a power to vary the ambit of the exemption from what it
would be if the Supreme Court's view were applied. In taking
this view, 1 am of opinion that the Minister erred in law, as I
find nothing in the statute empowering him to do anything
other than be the "judge" as to whether the law contained in
the particular section of Part III applied to the facts before
him.
1 am further of opinion that it cannot be said that the
Minister's decision might not have been different if he had
applied the ordinary meaning of the word "newspaper" instead
of applying, as it seems probable that he did, the arbitrary
definition that had already been conveyed by his Department to
the applicant. While I recognize that opinions may differ, when
I read the publications that were the subject matter of the
decision attacked in the light of the Supreme Court's judgment
in the Montreal Stock Exchange case, I can see room for the
conclusion that they are "newspapers" even though they consist
exclusively, or almost exclusively of advertisements. As I under
stand them, they are not mere "advertising circulars" in the
sense of advertising by the person who distributes them. On the
[1979] 2 F.C. 448, at pp. 455-456.
contrary they contain information (news) as to what is avail
able in particular fields of commerce even though such infor
mation is conveyed by way of advertising by third parties who
have things to sell. [Emphasis added.]
The reference to the Supreme Court decision in
the Stock Exchange case is to The King v. Mon-
treal Stock Exchange. 2 That is also the case to
which reference was made in the excerpt from the
Minister's decision in the earlier section 28
application quoted above.
The relevant portion of the reasons for judgment
of that case read as follows [at pages 615-6171:
For some years the Montreal Stock Exchange and later the
Exchange Printing Company printed, about noon of each day
that the Exchange was in session, a sheet showing the transac
tions on the Exchange during the morning, and in the afternoon
a similar record of the transactions for the remainder of the
day. In like manner were published the transactions on the
Montreal Curb market. Each week was printed a "comparative
review of transactions" on the Exchange and a "comparative
review of transactions" on the Curb.
These sheets from time to time contained notices of divi
dends, annual meetings and the loss of certificates, in connec
tion with companies whose stock was listed on the Exchange.
The weekly publications besides summaries of the week's busi
ness, contained a tabulation comparing the business of that
particular week with the business of the corresponding week in
the previous year.
The members of the Exchange formed the greater bulk of the
users of these sheets for which they paid on a sliding scale but
copies were also exchanged with similar institutions in Canada
and the United States. Some were sold to outsiders and the
result of the evidence of the acting secretary-treasurer of the
Exchange is that any member of the public might become a
subscriber.
The term "newspapers" is not defined in the Act and while
we were referred to various definitions in other Dominion and
provincial statutes, the statement of the present Chief Justice,
in delivering the judgment of the Court in Milne-Bingham
Printing Co. Limited v. The King ([1930] S.C.R. 282, at 283)
is peculiarly appropriate.
The usage of that word in other statutes may be looked at,
if the other statute happens to be in pari materia, but it is
altogether a fallacy to suppose that because two statutes are
in pari materia, a definition in one can be bodily transferred
to the other. * * *
In the instant case, the word under discussion is not defined in
any statute in pari materia and it remains only to give to it the
ordinary meaning that it usually bears. Webster's New Interna
tional Dictionary may be taken as giving a definition of "news-
2 [1935] S.C.R. 614.
paper" which is expressed in corresponding terms in other well
recognized dictionaries:—
a paper printed and distributed at stated intervals * * * to
convey news * * * and other matters of public interest.
The sheets in question meet these requirements; the mere fact
that any particular publication is meant to interest only a
section of the public does not limit the meaning of the expres
sion as a reference to religious or fraternal publications will at
once make clear. The sheets in question contain not merely a
record of transactions on the Exchange or curb market but also
information to those desiring it as to such transactions; and the
other items from time to time included give "tidings, new
information, fresh events reported," (vide Concise Oxford Dic
tionary defining "news").
Being of opinion that the publications are newspapers for the
purposes of the Special War Revenue Act, the respondents have
brought themselves within the language of an exempting pro
viso. Dominion Press Limited v. Minister of Customs and
Excise ([19281 A.C. 340).
The matter having been remitted to the respond
ent was reconsidered by him as directed with the
result that a new decision was rendered in respect
of the four publications, the relevant portion of
which follows:
I have reviewed these publications in light of the judgment
rendered by the Federal Court of Appeal in "E.W. Bickle and
the Minister of National Revenue", and I have concluded that
the publications "Rapid Auto Mart Magazine" and "Buy Sell
& Trade" are newspapers for purposes of the Excise Tax Act.
By applying the same considerations to "The Century 21 Gold
Post" and "Real Estate Victoria", I have concluded these
publications not to be newspapers and therefore subject to
federal sales tax. [Emphasis added.]
It is that portion of the decision embodied in the
second paragraph above quoted which is the basis
of this section 28 application.
Counsel for the applicant first submitted that
the respondent was not entitled to rule that the two
publications at issue herein are not newspapers
because, in his view, that matter has been rendered
res judicata by virtue of this Court's decision in
the previous section 28 application. I cannot agree.
It is quite clear that all that the Court did in the
previous decision is to find that the Minister was
not entitled to hold, as he did, that "... it [the
Montreal Stock Exchange case] is not a precedent
and does not preclude the exercise of statutory
discretion conveyed to the Minister of National
Revenue by the Excise Tax Act." The Chief Jus
tice did say that "... I can see room for the
conclusion that they are `newspapers'..." but that
is not a finding which bound the Minister. In my
opinion, it only served to indicate to the Minister
that, in light of the Montreal Stock Exchange
case, he might form the opinion that the publica
tions were newspapers. That decision was one to be
made by him, not the Court, and the Court did not
decide the question. The question of whether or
not the publications which are the subject of this
application are newspapers is thus not res
judicata.
The question of the jurisdiction of this Court to
entertain an application to review the Minister's
decision in this case was raised by the Court but
both counsel agreed that since it was held in the
first Bickle case that such a decision was review-
able, that aspect of the matter was not in issue in
this proceeding. Because of that, I am assuming
for purposes of this application, that the Minister's
decision under review herein is amenable to such a
review under section 28 of the Federal Court Act.
Applicant counsel's next submission was that on
the basis of the Montreal Stock Exchange case,
supra, the Minister erred in failing to find that the
publications which are the subject-matter of this
application are newspapers because they meet the
criteria required by that case to be used by him in
judging their tax status for the purpose of the
exemption provided in Schedule III of the Act.
The short answer to that submission, it seems to
me, is that it is implicit from the excerpt from the
Minister's ruling which was quoted earlier herein
that, in accordance with the Court's direction, he
reconsidered his decision in light of the reasons for
judgment in that case. They required that he make
his ruling bearing in mind what had been said by
the Supreme Court of Canada in the Montreal
Stock Exchange case on the meaning of the word
"newspaper". Not only does his ruling make it
clear that he did so but, perhaps more importantly,
he demonstrated that he did so by reversing his
previous decision in respect of two of the appli
cant's publications by finding that they are news
papers within the meaning of the exempting provi
sions of the Act. He, thus, performed his duty of
finding the facts and applying the exempting
words. This is what is required of him by the final
paragraph of Part III of Schedule III of the Act.
Essentially what he has to do is formulate an
opinion. Facts must be established to enable the
opinion to be reached. There is no question that on
the record there was evidence upon which he could
properly have reached the conclusion that the pub
lications in issue in the case at bar were not
newspapers for the purpose of the exempting
provisions of the Act. That being so and it being
clear that he had regard to the law relating to the
issue we ought not to interfere with the decision
the Act calls upon him to make. If we were to give
effect to applicant counsel's submission, we would
have to refer the matter back to the Minister
requiring him to find that the publications are
newspapers. In effect, then, we would be substitut
ing our opinion for his. This we cannot do. 3
Accordingly, I would dismiss the section 28
application.
* * *
PRATTE J.: I agree.
* * *
HEALD J.: I concur.
3 Compare Canadian National Railways Co. v. The Bell
Telephone Co. of Canada [1939] S.C.R. 308, and Memorial
Gardens Association (Canada) Ltd. v. Colwood Cemetery Co.
[1958] S.C.R. 353 and Consumers' Association of Canada v.
The Hydra-Electric Power Commission of Ontario [1974] 1
F.C. 453 at p. 457.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.