Judgments

Decision Information

Decision Content

T-351-87
Extendicare Health Services Inc. (Applicant) v.
Minister of National Health and Welfare (Respondent)
INDEXED AS: EXTENDICARE HEALTH SERVICES INC. V. CANADA (MINISTER OF NATIONAL HEALTH AND WELFARE)
Trial Division, Jerome A.C.J.—Toronto, May 25; Ottawa, September 18, 1987.
Customs and excise — Excise Tax Act — S. 44.25 certifi cate — "Bona fide public institution" — Applicant operating homes providing long-term nursing care for aged, infirm or incapacitated persons — Services available to anyone needing them provided residency requirements met — Homes run for profit — Applicant satisfying conditions of government aid and providing care for aged in Excise Tax Act, s. 44.25 — Not "bona fide public institution" — Tax exemptions reserved for organizations which, in addition to providing health care to public, either publicly owned or operated — Object of s. 44.25 to relieve organizations supported entirely by tax money from paying further taxes — Excise Tax Act, R.S.C. 1970, c. E-13, s. 44.25 (as added by S.C. 1986, c. 9, s. 34) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Construction of statutes — Excise Tax Act, s. 44.25 "Bona fide public institution" — Statute to be construed to prevent any clause, sentence or word from being superfluous — When legislature enacting particular phrase in statute, presumption that saying something not said immediately before — Parliament intending to emphasize tax exemptions reserved for organizations which, in addition to providing health care to public, either publicly owned or operated — Excise Tax Act, R.S.C. 1970, c. E-13, s. 44.25 (as added by S.0 1986, c. 9, s. 34).
This is an application for mandamus requiring the respon dent to issue certificates pursuant to section 44.25 of the Excise Tax Act. The applicant operates nursing homes, which provide long-term care for aged, infirm or incapacitated persons. Each home receives provincial aid and operates under provincial nursing home legislation. Services are available to anyone who needs them provided certain residency requirements are satis fied. The homes are, however, run for profit. The Department refused certification on the ground that the term "bona fide public institution", used to define "certified institution", meant one which derives its operational authority and support from public sources, as opposed to one which is owned and operated for private purposes or personal gain. There are three prerequi sites for an institution to be certified under section 44.25: 1) it must be a bona fide public institution 2) it must provide care
for children or aged, infirm or incapacitated persons; and 3) it must be in receipt annually of aid from the Government of Canada or a province. The Extendicare homes satisfy the second and third requirements, so the issue is whether they are "bona fide public institutions".
Held, the application should be dismissed.
The applicant argues that by meeting two conditions, it also meets the third condition. To accept that interpretation would be to conclude that the first condition is superfluous and adds nothing to the law. The words "bona fide" cannot be ignored. After considering the canon of construction that no word shall be superfluous, the meaning given to "institution" in Re Attor- ney-General of Ontario and Tufford Rest Home et al. (1980), 30 O.R. (2d) 636 (Co.Ct.), and dictionary definitions of "pub- lic", "public institution", and "bona fide", it is clear that Parliament used these specific words to emphasize that tax exemptions should be reserved for organizations which, in addition to providing health care to the public, are either publicly owned or operated. That appears to be the only interpretation which would accomplish the statute's purpose. The object of section 44.25 is to relieve organizations which are supported entirely by tax money from paying further taxes. There is no reason to conclude that Parliament intended by section 44.25 to improve the profit picture of a privately owned company, even if it does provide health care services to the public.
CASES JUDICIALLY CONSIDERED
APPLIED:
Reg. v. Bishop of Oxford (1879), 4 Q.B.D. 245; Hill v. William Hill (Park Lane), Ld., [1949] A.C. 530 (H.L.); Re Attorney-General of Ontario and Tufford Rest Home et al. (1980), 30 O.R. (2d) 636 (Co.Ct.).
CONSIDERED:
Struthers v. Town of Sudbury (1900), 27 O.A.R. 217 (C.A.).
REFERRED TO:
In re C.P.R. and Lac Pelletier R.M., [1944] 3 W.W.R. 637 (Sask. C.A.).
COUNSEL:
Michael J. W. Round and John T. Morin,
Q.C. for applicant.
Marilyn Doering-Steffen for respondent.
SOLICITORS:
Campbell, Godfrey & Lewtas, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order ren dered in English by
JEROME A.C.J.: The applicant seeks an order by way of mandamus under section 18 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] requiring the respondent to issue certificates pur suant to section 44.25 of the Excise Tax Act, R.S.C. 1970, c. E-13 [as added by S.C. 1986, c. 9, s. 34]. The matter came on for hearing in Toronto, Ontario, on May 25, 1987.
The application is supported by the affidavit of Douglas J. Harris, Extendicare's Controller. It reveals that the applicant, an incorporated com pany, operates a large number of institutions across Canada, under the name "Extendicare". The Extendicare homes are all owned by incorpo rated companies controlled by the applicant. They all provide long-term nursing care for aged, infirm or incapacitated persons. Each home is in receipt of aid from the government of the province in which it is located and operates under provincial nursing home legislation. Services are available to anyone who needs them and who satisfies certain residency requirements. The provincial govern ments pay between 50 and 80% of the total per diem ward rate and the residents pay the remain der. The applicant admits that the homes are run for profit, which presumably is distributed as divi dends to shareholders.
On June 3, 1985, Extendicare submitted applications to Health and Welfare Canada for certification of two of its homes under the prede cessor to section 44.25 of the Excise Tax Act. That section reads as follows:
44.25 (1) In this section,
"certified institution" means an institution that by a certificate issued by the Minister of National Health and Welfare is certified to be, as of the day specified in the certificate,
(a) a bona fide public institution whose principal purpose is to provide care for children or aged, infirm or incapacitated persons, and
(b) in receipt annually of aid from the Government of Canada or the government of a province for the care of persons described in paragraph (a);
"specified day" in relation to an institution, means the later of
(a) the day specified in a certificate referred to in the definition "certified institution" as the day on which the institution became an institution as described in paragraphs
(a) and (b) of that definition, and
(b) the first day of the fiscal year in which the application for a certificate referred to in the definition "certified institu tion" was made.
(2) Where tax under Part V has been paid in respect of any goods and a certified institution has purchased the goods on or after the specified day for the sole use of the institution and not for resale, an amount equal to the amount of that tax shall, subject to this Part, be paid to that institution if it applies therefor within two years after it purchased the goods.
(3) Where tax under Part V has been paid in respect of any goods and an institution under construction that subsequently becomes a certified institution, or a person acting on behalf of such an institution, has purchased the goods within two years before the specified day for the sole use of the institution and not for resale, an amount equal to the amount of that tax shall, subject to this Part, be paid to that institution if it applies therefor within two years after the day on which the certificate was issued in respect of the institution.
Applications for the other homes were submitted thereafter. An official of the respondent Depart ment replied to these applications, indicating that the term "bona fide public institution" had been defined in Department guidelines as being one which derives its operational authority and support from public sources as opposed to one which is owned and operated for private purposes or per sonal gain. Because the applicant's institutions are profit-making, they fall outside this definition.
Extendicare's argument on this application is that profit is irrelevant and that since Extendicare has fulfilled all conditions set out in the Act, the Minister is under a duty to issue the certificates. I must therefore consider whether the Extendicare homes qualify for certification under section 44.25. There is no question that they satisfy the require ments of government aid and providing care for aged or infirm persons. The remaining question is
whether they constitute "bona fide public institu tions".
There is no definition of the term in the statute, so the search for meaning must begin elsewhere. I was referred during the hearing to a decision of the Ontario Court of Appeal which deals with the definition of a "public hospital". In Struthers v. Town of Sudbury (1900), 27 O.A.R. 217, the Court of Appeal considered a section of The Assessment Act, R.S.O. 1887, c. 193, s. 7, which exempted from taxation "Every ... public hospital ...". The issue was whether Sudbury General Hospital, which was privately owned and managed for profit, qualified for the exemption. The appli cants here laid great stress on the following pas sage from this decision (at page 221):
That an institution is established for private gain or is held in a private hand is not necessarily inconsistent with its being in its nature of a public character.
It is important, however, to put this statement in context. The Court prefaced its holding in this matter by noting [at page 220]:
Other clauses of the exemption section do not throw much, if any, light on the subject.
and [at page 222]:
In the absence of any legislative declaration on the subject, and the words "public hospital" having no technical meaning or any precise legal meaning, it seems more reasonable to hold that they are used in their popular sense and that any institution which, though not in a strictly legal right, in a popular sense may be called a public hospital, may claim exemption ....
We are more fortunate in this case in that the other paragraphs of section 44.25 serve to cast considerable light on the meaning of a "bona fide public institution". There are three prerequisites for an institution to be certified under this section:
1. it must be a bona fide public institution;
2. it must provide care for children or aged, infirm or incapacitated persons; and
3. it must be in receipt annually of aid from the Government of Canada or a province.
There is no disagreement that Extendicare meets conditions 2 and 3. Essentially, the appli cant's argument is that by doing so it also meets condition number 1. To accept that interpretation is to conclude that the first condition is superfluous and adds nothing to the law. Since Parliament has taken the trouble to confine the benefit of these provisions, not just to public institutions, but to bona fide public institutions, those words cannot be ignored.
It has been recognized as a "settled canon of construction" that
... a statute ought to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. (Reg. v. Bishop of Oxford (1879), 4 Q.B.D. 245, at page 261).
This principle was given even clearer articulation by Viscount Simon in Hill v. William Hill (Park Lane), Ld., [ 1949] A.C. 530 (H.L.), at pages 546-547:
... it is to be observed that though a Parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in the case of an Act of Parlia ment is not to be assumed. When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out.
This doctrine of construction has also found approval in Canada. (See, for example, In re C.P.R. and Lac Pelletier R.M., [1944] 3 W.W.R. 637 (Sask. C.A.).)
What, then, is a bona fide public institution? The word "institution" was given careful consider ation by Kovacs Co.Ct.J. in Re Attorney-General of Ontario and Tufford Rest Home et al. (1980), 30 O.R. (2d) 636 (Co.Ct.). In that case he was deciding whether a privately-owned nursing home was subject to inspection under the The Public Institutions Inspection Act, 1974, S.O. 1974, c. 64. He began with dictionary definitions (at pages 639-640):
I was given various definitions of "institution". The New Oxford Dictionary defines "institution" as:
3. Organization for promotion of some public object, reli gious, charitable, reformatory, etc.; building used by this;
(esp. pop.) building used by benevolent or educational institution.
The Oxford English Dictionary gives the definition:
7. An establishment, organization, or association, instituted for the promotion of some object, esp. one of public or general utility, religious, charitable, educational, etc., e.g., a church, school, college, hospital, asylum, reformatory, mis sion, or the like.
It would appear that the connotation of "institution" bears with it the concept of it having a public object. The evidence was that the private company operating the nursing home in this instance had the object of operating a nursing home for private profit. I hold that the concept of private profit is alien to the generally-accepted meaning of an institution. I note as well that the Act is entitled, in s. 9, as "The Public Institutions Inspection Act, 1974". (Emphasis added.) Accordingly, the concept of "institution" having a connotation of a public object, as distinguished from a private enterprise, is reinforced by the adjective "public" used in the title to the Act.
I accordingly hold that privately operated nursing homes are not "institutions" within the meaning of s. 4 of the Public Institutions Inspection Act, 1974.
I find this analysis very appropriate to the problem we are considering in this case. I would observe that, as in the statute before Kovacs Co.Ct.J., section 44.25 reinforces the word "institution" with the adjective "public". Black's Law Diction ary [Fifth Edition] defines a "public institution" as:
Institution ... .
Public institution. One which is created and exists by law or public authority, for benefit of public in general; e.g., a public hospital, charity, college, university, etc.
The Shorter Oxford English Dictionary [Third Edition] gives the adjective "public" as meaning:
1. Of or pertaining to the people as a whole; ... 2. Done or made by or on behalf of the community as a whole; ... 3. That is open to may be used by, or may or must be shared by, all members of the community; generally accessible or available ... Also (in narrower sense), That may be used, enjoyed, shared or competed for, by all persons legally or properly qualified; ... 4. Open to general observation; ... 5. Of, pertain ing to, or engaged in the affairs or service of the community .... 6. Of or pertaining to a person in the capacity in which he comes in contact with the community; ... 7. Devoted or directed to the promotion of the general welfare; public-spirited, patriotic. Now chiefly in phr. p. spirit ... .
Finally, the term "bona fide", when used as an adjective, is generally taken to mean "honestly", "genuinely" or "in good faith". (See Stroud's Judicial Dictionary, 4th Ed., (London, 1971), at
pages 302-305). It seems obvious that Parliament used these specific words to emphasize that tax exemptions should be reserved for organizations which, in addition to providing health care to the public, are either publicly owned or publicly operated.
Indeed, that appears to be the only interpreta tion which would accomplish the statute's purpose. The object of section 44.25 is to relieve organiza tions which are supported entirely by tax money from paying further taxes. If an institution is created and supported by the taxpayers through one taxing authority, it doesn't make sense for it to pay taxes to another. There is no reason to con clude, however, that, Parliament intended by sec tion 44.25 to improve the profit picture of a pri- vately-owned company even if it does provide health care services to the public.
I therefore find that the Extendicare homes are not entitled to be granted certificates under section 44.25 of the Excise Tax Act. The application will be dismissed with costs.
 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.