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A-123-78
Eastern Provincial Airways (1963) Limited (Appellant) (Defendant)
v.
The Queen (Respondent) (Plaintiff)
Court of Appeal, Pratte, Heald and Ryan JJ.— Ottawa, May 1 and 4, 1979.
Excise tax — Federal sales tax — Remission of tax pursu ant to Aircraft (Combined Services) Remission Order — Com mercial aircraft purchased by importer with fleet providing both domestic and foreign service — Whether importer's fleet, for purposes of Order, composed only of qualifying aircraft actually used in both kinds of services or whether fleet com posed of all its qualifying aircraft irrespective of fact that some aircraft flown exclusively on domestic or international routes — Excise Tax Act, R.S.C. 1970, c. E-13, ss. 27, 54 — Aircraft (Combined Services) Remission Order, SOR/70-87 as amended by SOR/71-50, ss. 2, 3(1),(2).
This is an appeal from a judgment of the Trial Division ordering appellant to pay the respondent the unpaid balance of sales tax in respect of the importation by appellant of aircraft into Canada. The Aircraft (Combined Services) Remission Order provides that, on certain conditions, the air carrier who imports an aircraft "for use in combined international and domestic service" is entitled to a remission of a portion of the sales tax "equal to the international usage percentage of the fleet of the importer during the year of importation". The sole issue between the parties is whether, for purposes of the Order, an importer's fleet which provides both domestic and interna tional services is composed only of its qualifying aircraft which were actually used in both kinds of services or whether it is composed of all its qualifying aircraft irrespective of the fact that some of these aircraft may have been used exclusively on international or domestic routes.
Held, the appeal is dismissed. The word "service" is used in the singular in the phrase "combined international and domes tic service" and, in the French version of the Order, the same expression is translated by the words "un service combiné international et national"; this supports respondent's view that the fleet is composed of all its qualifying aircraft irrespective of the fact that some of these aircraft may have been used exclusively on international and domestic routes. This fact also suggests that, for the drafter of the Order, the international and domestic services operated by an air carrier constituted only one service. If that is so, it is clear that an aircraft is used in such a service irrespective of the fact that it might have been used in only one of its branches. The Trial Judge's conclusion is also supported by the absurd consequences which would flow from the interpretation suggested by the appellant: the sales tax on identical imported aircraft serving identical fleets would be different merely by reason of one carrier choosing to use all his
aircraft on both domestic and international routes while the other used some equipment exclusively on domestic routes.
APPEAL. COUNSEL:
John M. Coyne, Q.C. and Kenneth L. W. Boland for appellant (defendant).
Edward R. Sojonky and J. P. Malette for respondent (plaintiff).
SOLICITORS:
Herridge, Tolmie, Ottawa, for appellant (defendant).
Deputy Attorney General of Canada for respondent (plaintiff).
The following are the reasons for judgment rendered in English by
PRATTE J.: This is an appeal from a judgment of the Trial Division [[1979] 1 F.C. 831] ordering the appellant to pay the respondent the sum of $587,769.63 together with the penalty prescribed by section 50(4) of the Excise Tax Act and the costs of the action. That sum of $587,769.63 is the unpaid balance of the sales tax which the Trial Division held to be payable in respect of the importation by the respondent of an aircraft into Canada.
In 1973, the appellant, which already owned and used four Boeing 737 aircraft, imported into Canada another aircraft of the same type which it had purchased for the sum of $5,331,683.19. Sales tax in the amount of $639,801.98 would normally have been payable by the appellant on the sale price of that aircraft pursuant to section 27 of the Excise Tax Act, R.S.C. 1970, c. E-13 (as amended in section 24 of the Old Age Security Act, R.S.C. 1970, c. O-6, as amended). But the appellant was entitled to a remission of a portion of that tax under the provisions of the Aircraft (Combined Services) Remission Order (P.C. 1970-356 [SOR/ 70-87] as amended by P.C. 1971-142 [SOR/71- 50]). The appellant claimed to be entitled, under that Order, to the remission of the sum of $601,- 238.98 and paid to the respondent the sum of $38,563 as representing the unremitted portion of the sales tax. According to the respondent's inter-
pretation of the Order, the amount of tax remitted to the appellant was the sum of $13,469.35, and the unremitted portion of the tax amounted to $626,332.63. The respondent sued the appellant claiming the unpaid balance of the tax and the penalty prescribed by section 50(4) of the Excise Tax Act. This is the action that was found to be well founded by the judgment against which this appeal is directed.
The sole issue in these proceedings relates to the interpretation of the Aircraft (Combined Services) Remission Order.' That Order provides that, on certain conditions, the air carrier who imports an aircraft "for use in combined international and domestic service" is entitled to a remission of a portion of the sales tax "equal to the international usage percentage of the fleet of the importer during the year of importation." (Section 3(2).)
It is sufficient, for the purposes of this case, to be familiar with section 3 of the Order and with certain definitions con tained in section 2. Those provisions read as follows:
3. (1) Subject to this Part and subsection 15(3), remission is hereby granted to an importer of that portion, determined in accordance with subsection (2), of the sales tax payable under the Excise Tax Act and the Old Age Security Act, in respect of
(a) qualifying aircraft, and
(b) engines designed to propel qualifying aircraft
that are imported by him on or after January 1, 1970, for use in combined international and domestic service.
(2) The portion of the sales tax referred to in subsection (1) is a percentage of the sales tax equal to the international usage percentage of the fleet of the importer during the year of importation.
2. In this Order,
"available ton miles" means the revenue miles flown by an aircraft multiplied by the payload capacity in tons of that aircraft;
"eligible carrier" means a common air carrier that is incor porated under the laws of Canada or a province and licensed by the Canadian Transport Commission to pro vide international service to the public;
"fleet" means all qualifying aircraft that are owned or leased by an eligible carrier and are used in combined interna tional and domestic service;
"importer" means an eligible carrier;
In order to know the portion of the tax that, under the Order, is remitted to an importer, it is therefore necessary to calculate the "international usage percentage of the fleet of the importer". That calculation cannot be made without first determining what constitutes the importer's fleet. It is that determination which is at the source of the dispute between the parties.
The word "fleet" is defined as follows in section 2 of the Order:
"fleet" means all qualifying aircraft that are owned or leased by an eligible carrier and are used in combined international and domestic service;
The sole issue between the parties is whether, for the purposes of the Order, an importer's fleet which provides both domestic and international services is composed only of its qualifying aircraft which were actually used in both kinds of services or whether it is composed of all its qualifying aircraft irrespective of the fact that some of these aircraft may have been used exclusively on inter national or domestic routes. If, as the appellant contends, the first interpretation were to prevail, it is common ground that the appellant's fleet for the year here in question included only one aircraft which flew both on international and domestic flights and that the appellant was, as a conse quence, entitled to the remission of the whole amount of the tax that it failed to pay. If, on the other hand, the second interpretation were to be adopted, it is also common ground that the judg ment of the Trial Division was well founded.
"international flight" means any flight other than a flight originating and terminating in Canada;
"international usage percentage" means the percentage that the available ton miles flown by a fleet on international flights is of the total available ton miles flown by the fleet during a year;
"qualifying aircraft" means an aircraft whose gross allow able weight for take-off as prescribed by the Canadian Transport Commission is not less than 64,500 pounds;
The expression "combined international and domestic service" has no technical meaning. As held by the Trial Judge, those words are used in the Order in their usual sense which, I must confess, is not too clear. According to the appel lant, an aircraft is not used in "combined interna tional and domestic service" unless it is used in both international and domestic services. Accord ing to the respondent, the air carrier which oper ates both an international and a domestic service must be said to operate a "combined international and domestic service" and all the aircraft that he uses in either branch of that combined service must be held to be used in the combined service.
In my view, the learned Trial Judge was right in adopting the respondent's interpretation of the Order. The word "service" is used in the singular in the phrase "combined international and domes tic service" and, in the French version of the Order, the same expression is translated by the words "un service combing international et natio nal" [emphasis mine]; this, in my view, supports the respondent's view and suggests that, for the drafter of the Order, the international and domes tic services operated by an air carrier constituted only one service. If that is so, then it is clear that an aircraft is used in such a service irrespective of the fact that it might have been used only in one of its branches.
The conclusion reached by the learned Trial Judge is also supported, in my view, by the absurd consequences which would flow from the interpre tation proposed by the appellant. Indeed, following that interpretation, the amount of sales tax pay able, on the importation of identical aircraft by two air carriers providing exactly the same services with two identical fleets, would be different merely by reason of the fact that one of those air carriers would have chosen to use all his aircraft on both international and domestic routes while the other would have used some of his equipment on domes tic routes exclusively.
For these reasons, I would dismiss the appeal with costs.
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HEALD J.: I concur.
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RYAN J.: I concur.
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