T-4157-74
British Columbia Railway Company (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Collier J.—Vancouver, June 29,
1979.
Practice — Supplementary reasons for judgment — Direc
tion that if counsel disagree on formal pronouncement counsel
should return to Court — Since the handing down of earlier
reasons, a Federal Court of Appeal decision was rendered that,
if applicable, raises the question as to whether a direction can
be made that the tax paid by plaintiff can be refunded —
Amending order should not be followed at this stage —
Pronouncement to issue in respect of point of law decided but
any final judgment ultimately disposing of the matter left
open.
ACTION.
SOLICITORS:
Thorsteinsson, Mitchell, Little, O'Keefe &
Davidson, Vancouver, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are supplementary reasons for
judgment rendered in English by
COLLIER J.: In my reasons for judgment dated
December 8, 1978 [[1979] 2 F.C. 122] I directed
that counsel could return to me if they could not
agree on the formal pronouncement. They have
been unable to agree.
It is necessary briefly to set out some of the
history of this litigation.
The statement of claim seeks declaratory relief
in respect of a number of matters, including the
refunding of sales tax paid by the plaintiff. After
pleadings closed, the parties agreed to apply to the
Court for directions as to the place and time for
argument of certain questions of law. My col
league Decary J. ordered the "matter" be heard on
November 8, 1978. The questions of law, previous
ly agreed upon by the parties, were set out in a
preamble to the order. I was then assigned to the
hearing of the determination of the questions.
Before embarking on the hearing, I indicated I felt
the original questions were too hypothetical and
should be more closely related to the facts in the
action. Counsel and I then met. The questions
were revised. They are set out in my earlier
reasons.
At that time, counsel and I felt that if the
answer to Question 1 was in the affirmative, it
seemed to follow the plaintiffs whole action would
succeed and a refund of tax should be ordered. It
was on that assumption the second paragraph was
added to the order of Decary J.
Since the hearing of the question of law and the
handing down of my earlier reasons, the Federal
Court of Appeal decision in The Queen v. Steven-
son Construction Co. Ltd.' has been handed down.
That decision, if applicable, raises a question as to
whether a direction can be made, in this action,
that the tax the plaintiff has paid be refunded. I
express no view, one way or the other.
But it is my opinion the amending order made
by me as to the disposition of the action on the
determination on the questions of law should not
be followed, at least at this stage. The plaintiff
may wish to amend its statement of claim in
respect of facts which may be necessary to obtain
an order against the defendant that the taxes paid
be refunded to it. Even if the plaintiff feels amend
ment is not necessary, it may wish to adduce
evidence to try and bring itself within whatever
law may be applicable as to the refunding of the
taxes.
With all those matters in mind I feel the wisest
course, at the moment, is to issue a pronouncement
in respect of the point of law which I decided, but
to leave open any final judgment ultimately dispos
ing of the action. Accordingly I will merely set out
in the formal pronouncement the essence of my
decision on Question 1. The defendant may wish to
appeal my decision on that question. If an appeal
is taken the parties may wish to leave the out
standing matters in abeyance until the appeal has
been decided.
1 [ 1979] CTC 86.
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.