Date: 19980508
Docket: T-480-97
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
- and -
PACCAR OF CANADA LTD.
Defendant
REASONS FOR JUDGMENT
MacKAY J.:
[1] This is an appeal, brought under ss. 81.24 and 81.28 of the Excise Tax Act, R.S.C. 1985, c. E-15, as amended (the "Act"), from a decision of the Canadian International Trade Tribunal ("CITT"), dated November 22, 1996. The plaintiff, Her Majesty the Queen, commenced the appeal by statement of claim filed March 18, 1997, and asks the Court to reverse the CITT"s decision, to issue a declaration that a determination made by the Minister of National Revenue, disallowing the defendant's application for a refund of excise tax paid, is well founded in fact and law, and to grant pre-judgment and post-judgment interest and costs.
Background
[2] The defendant, Paccar of Canada Ltd., is an importer into Canada from the United States of what it calls "heavy duty highway tractors", for highway use in conjunction with semi-trailers. The defendant installs air conditioning units in its vehicles for the use and comfort of the driver, but not for maintaining the temperature in the semi-trailers attached to the "tractors".
[3] Since 1991, by virtue of s-s. 23(1) of the Act, and s.7 of Schedule I thereto, the plaintiff maintains that the defendant has been obliged to remit an excise tax of $100 for each air conditioning unit installed in its vehicles, and that tax was paid. These sections read as follows:
| The Act |
| 23. (1) Subject to subsections (6) to (8.3) and 23.2(6), whenever goods mentioned in Schedules I and II are imported into Canada or manufactured or produced in Canada and delivered to a purchaser thereof, there shall be imposed, levied and collected, in addition to any other duty or tax that may be payable under this or any other Act or law, an excise tax in respect of those goods at the applicable rate set out in the applicable section in whichever of those Schedules is applicable, computed, where that rate is specified as a percentage, on the duty paid value or the sale price, as the case may be. |
| Schedule I |
| s.7. Air conditioners designed for use in automobiles, station wagons, vans or trucks whether |
| (a) separate, or |
| (b) included as permanently installed equipment in an automobile, station wagon, van or truck at the time of sale or importation of the vehicle by the manufacturer or importer thereof, as the case may be, one hundred dollars |
| and, for purposes of this section and section 8, an evaporator unit designed for use with or as part of an automotive type air conditioning system shall be deemed to be an air conditioner described in this section except where the evaporator unit is used for repair or replacement purposes. |
[4] On June 25, 1993, the defendant submitted a Refund for Federal Sales Tax, No. 10029, covering the period from June 1991 to May 1993, requesting a refund of excise tax paid in the amount of $120,300.00. The defendant alleged overpayment in respect of the tax paid on the air conditioners installed in imported "heavy duty highway tractors".
[5] On October 21, 1993, the Minister of National Revenue, by Notice of Determination, disallowed the refund application, finding that the term "trucks" as used in s.7 of the Schedule I of the Act, included the defendant"s "highway truck tractors". The defendant objected to this determination by notice of objection dated January 19, 1994. This was rejected by the Minister by Notice of Decision, dated August 31, 1994. The Minister confirmed that "trucks", under s.7 of Schedule I, included the defendant"s vehicles.
[6] On January 12, 1996, the defendant appealed the Minister"s decision to the CITT under s.81.19 of the Act . This appeal was allowed by decision dated November 22, 1996 in which the CITT interpreted the word "trucks" in s.7 as excluding the defendant"s vehicles. In arriving at its decision, the Tribunal wrote in part:
| The Tribunal agrees with counsel for the plaintiff that Parliament must have intended the terms "trucks" and "highway truck tractors" to mean different things or else it would not have used both expressions in the same statute. The evidence is that provincial regulations governing road transport differentiate between trucks, tractors, trailers, and these distinctions are well understood by those engaged in, or knowledgable about, the trucking industry. It is reasonable to infer that those responsible for drafting the rather complex excise tax provisions that have applied at one time or another to trucks and their equipment, including air conditioners, were aware of these distinctions. |
| ... |
| The evidence adduced in this hearing clearly leads to the conclusion that a highway truck tractor is a tractor used on the highway to transport (or truck) goods from one place to another. The fact that the tractor must be combined with a semi-trailer to do its work of trucking does not mean that, by itself, it is a truck, nor would it be accurate to say that the semi-trailer alone is a truck. |
| ... |
| The Tribunal finds that the vehicles in issue are highway truck tractors, that they are a type of tractor rather than a type of truck and that the air conditioners installed in them at the time of importation are not subject to the $100 excise tax imposed by section 7 of Schedule I to the Act. |
| Accordingly, the appeal is allowed. |
[7] From that decision, Her Majesty appeals, arguing that the defendant"s "highway truck tractors" fall within the meaning of the word "trucks" found in s.7 of Schedule I of the Act . For this reason, it is urged that the Minister of National Revenue was correct in determining that the defendant was subject to the excise tax on air conditioners applied by virtue of s-s.23(1) of the Act. The defendant contends that the CITT was correct in fact and law in finding that the vehicles in question are tractors and not trucks, and that the air conditioners installed in these vehicles at the time of importation were not, as a result, subject to the $100 excise tax.
The Issue
[8] The key issue in the case at bar is whether the term "trucks" in s.7 of Schedule I includes the defendant's "highway truck tractors", i.e. whether "trucks" is a broad, general term, as argued by the plaintiff, or is a more refined expression limited strictly to smaller vehicles, as the defendant urges.
Analysis
[9] The parties" arguments concern statutory interpretation. In my view, the approach to be applied in the case at bar is that taught by the Federal Court of Appeal in Shaklee Canada Inc. v. Canada1. There, the Court summarized the approach to statutory interpretation to be taken in cases such as this one as follows:
| Courts have developed well-tested rules for interpreting statutes, many of which appear and reappear in the various cases. One such rule is that the words of a taxing statute must be interpreted in light of all the relevant contextual factors. This is the words-in-total-context approach articulated by MacGuigan J.A. in Lor-Wes Contracting Ltd. v. Minister of National Revenue (1985), 60 N.R. 321 (F.C.A.). It is a very important rule and has a significant bearing on cases like the present. Another rule, equally important to the present case, is that Parliament is presumed to use words in their ordinary and common meaning...Professor Côté (P.A. Côté, The Interpretation of Legislation in Canada (2nd Ed. 1991) at p. 219) put this rule as follows: |
| As it is presumed that the legislator wishes to be understood by the citizen, the law is deemed to have been drafted in accordance with rules of language in common use. |
| Statutes are presumed to be written for the people they affect, and Courts will strive for interpretations that respect as much as possible this presumption within the constraints of other competing, contextual factors. |
| The goal of all of these rules is to give effect to Parliament's intent. To aid this process, courts often refer to dictionaries. They may also consider the testimony given by expert witnesses, or other relevant aids such as academic and government publications. It is important to remember, however, that none of these aids are decisive. In the final analysis, a court must exercise its own judgment in weighing all the relevant factors in the factual and legislative context of the case. |
[10] In Lor-Wes Contracting Ltd. v. The Queen2, Mr. Justice MacGuigan wrote that "The only principle of interpretation now recognized is a words-in-total-context approach with a view to determining the object and spirit of the taxing provisions." In J.V. Marketing Inc. v. Canada3, the Federal Court of Appeal explained this approach as follows; "...this principle of statutory construction cautions that the meaning of a word or expression cannot be fairly grasped unless regard is given to the whole of which it is a constituent part."
[11] I note at the outset that the procedure on an appeal pursuant to sections 81.24 and 81.28 of the Excise Tax Act is in the nature of an action and a trial de novo.4 Typically in tax matters5, including claims arising under the Excise Tax Act, the party challenging the assessment bears the burden of proof. In Ford Motor Co. of Canada v. Canada6, the Federal Court of Appeal was asked to uphold a determination by the Trial Division that Ford fell within the expanded definition of "manufacturer or producer" in paragraph 2(1)(f) of the Excise Tax Act, as Ford urged. Linden and McDonald JJ., writing for the Court, listed the matters at issue in that case, noting that in order to be successful, Ford had to prove each of the elements viewed as necessary to bring it within the expanded definition. By analogy, in the case at bar, the onus is on the defendant Paccar to show that its vehicles fall outside the meaning of the word "trucks" as used in s.7 of Schedule I of the Act.
[12] The defendant submits that when the Act is read as a whole, it is clear that Parliament meant to distinguish vehicles it described as "trucks" from those known as "highway truck tractors". In particular, the vehicles in question are highway truck tractors referred to in the context of internal combustion tractors in s.1(f) of Schedule III, Part XIII of the Act which reads:
| s.1 All the following: |
| ... |
| (f) Internal combustion tractors, other than highway truck tractors, for use exclusively in the operation of logging, the operation to include the removal of the log from stump to skidway, log dump, or common or other carrier [emphasis added]. |
[13] The defendant also points to the use of both terms in s.1, Part XVII, Schedule III, of the Excise Tax Act:
| s.1 Highway truck tractors; highway trucks designed primarily for the carriage of freight with a gross vehicle mass rating, within the meaning given to that expression by regulation of the Governor in Council, of seven thousand two hundred and fifty kilograms (7250 kg) or more [emphasis added]. |
The defendant urges that Parliament is to be presumed to use different words to mean different things, in this case "trucks" and "highway truck tractors", and not to use different words in the same statute to describe the same vehicle, a point with which the CITT agreed in its decision.
[14] The defendant also argues that there should be coherence between the statutes enacted by the same legislature. Statutes that relate to the same subject matter, i.e. in pari materia, are to be read, construed and applied in similar fashion and the legislature"s intention can be gathered from the enactments as a whole. Thus, there is a presumption of coherence in the application of statutes relating to the same general subject matter. Relying upon the Supreme Court"s decision in The Queen v. York Marble, Tile and Terrazzo Ltd.7, the defendant argues that the Customs Tariff, R.S.C. 1985, c. C-54, as amended, is a statute in pari materia to the Excise Tax Act. Tariff Heading 87.01 of the Harmonized System under the former Act refers to tractors in Item 8701.20.00 as "road tractors for semi-trailers". Meanwhile, paragraph 2 of the Chapter Note to Chapter 87 of the Harmonized Commodity Description and Coding System defines "tractors" as
| vehicles constructed essentially for hauling or pushing another vehicle, appliance or load, whether or not they contain subsidiary provision for the transport, in connection with the main use of the tractor, of tools, seeds, fertilisers or other goods. |
[15] The defendant also relies upon regulation 4601 of the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.), as amended, which makes reference to "trucks" and "tractors" as distinct vehicles.
| 4601. For the purposes of the definition "qualified transportation equipment" in subsection 127(9) of the Act, the following depreciable property of a taxpayer (other than qualified property as defined by subsection 127(9) of the Act) is prescribed equipment: |
| ... |
| (c) property that is |
| (i) a truck, tractor or trailer that |
| (A) is included in Class 10 in Schedule II because of paragraph (e) of that Class or in Class 16 in Schedule II because of paragraph (g) of that Class, |
| (B) is designed for the purpose of carrying freight, or hauling a trailer that carries freight, on highways, and |
| (C) [Repealed, SOR/85-696, s. 12] |
| (D) in the case of a truck or tractor, has a "gross vehicle weight rating" (within the meaning assigned that expression by the Motor Vehicle Safety Regulations) of 26,001 pounds or more, and in the case of a trailer, is of a type designed to be hauled under normal operating conditions by a truck or tractor described in this subparagraph, |
| but for greater certainty, |
| (E) was not acquired principally for the purpose of carrying or hauling freight locally or making local pickups or deliveries |
[16] In regard to statutes other than those imposing taxes or duties, the defendant refers to the Commercial Vehicle Drivers Hours of Service Regulations, 1994, SOR/94-716, enacted under the Motor Vehicle Transport Act, R.S., 1985, c.29 (3rd Supp.). These regulations define "commercial vehicles" using the words "truck, tractor or trailer", inter alia, implying a distinction between a truck and a tractor. Under s.2 of those regulations, "commercial vehicle" is defined, in part, as "...a vehicle that
| ... |
| (b) is a truck, tractor or trailer, or any combination thereof, that has a registered gross vehicle weight in excess of 4 500 kg, or a bus that is designed and constructed to have a designated seating capacity of more than 10 person... |
[17] The Court, urges the defendant, may also consider provincial legislation as an aid in interpreting federal legislation. In this regard, the Ontario Highway Traffic Act, R.S.O. 1990, H.8 refers to both "truck" and "tractor", implicitly distinguishing between them. Section 1 of that Act defines "commercial motor vehicles" as
| a motor vehicle having permanently attached thereto a truck or delivery body and includes ambulances, hearses, casket wagons, fire apparatus, buses and tractors used for hauling purposes on the highways |
A distinction is also drawn between trucks and highway truck tractors in the Ontario Retail Sales Tax Act, R.S.O. 1990, R.31. Number 57 of Section 7 of that Act reads in part:
| Highway truck tractors having a gross vehicle mass rating, as defined by the Minister, of 11,778 kilograms or more, trucks designed for the carriage of goods or freight having a gross vehicle mass rating of 11,778 kilograms or more and truck trailers, tractor trailers and semi- trailers designed for the carriage of goods or freight having a gross vehicle mass rating of 11,778 kilograms or more... |
[18] With respect, in my view much of this argument goes to show that there is a category of vehicles known as "highway truck tractors", referred to within the Act, and within other legislation, but that is not determinative of whether highway truck tractors as a separate and unique category are a subset of "trucks" for the purposes of s.7 of Schedule I of the Act. For example, the use of "highway truck tractors" in s-s.1(f) of Schedule III, Part XIII of the Act , with respect to internal combustion tractors, does not signify that "highway truck tractors" are not a subset of trucks. I am in substantial agreement with counsel for the plaintiff that the expression "highway truck tractor" in this context, i.e. s-s.1(f) of that Schedule, is used simply to clarify the scope of the phrase "internal combustion tractor" and it provides no guidance to the Court in terms of determining the scope of "trucks" in s.7 of Schedule I.
[19] While the Customs Tariff and the Harmonized Commodity Description and Coding System use the term "road tractors for semi-trailers", describing a class of commodity, that does not address, let alone establish, whether these sorts of vehicles are to be considered a subset of "trucks" under the Excise Tax Act . Similarly, I do not find the definition of "commercial motor vehicle" in the Ontario Highway Traffic Act helpful in interpreting the term "trucks" as used in Schedule I of the Act.
[20] The Income Tax Act, the Commercial Vehicle Driver Hours of Service Regulations, 1994 and the Ontario Retail Sales Tax Act do refer to both "truck tractors" and "trucks", or "trucks" and "tractors and trailers", in the same section, implying that each is a different class of vehicle. At the same time, I am cognizant of the fact that while these authorities do refer to both trucks and tractors, they do so in specific contexts.
[21] I take note of Pierre André Côté"s view, in his discussion of the concept of statutes in pari materia, at 291 of his book The Interpretation of Legislation in Canada, 2d. ed. (Cowansville: Les Editions Yvon Blais, 1991), that "Because a word"s meaning is derived from its context, it is hazardous to shift from one law to another without making adjustments dictated by the new context." As Côté notes, Duff J., in Miln-Bingham Printing Co. v. The King8 wrote as follows:
| No doubt, for the purpose of ascertaining the meaning of any given words in a statute, the usage of that word in other statutes may be looked at, especially if the other statutes happen in to be in pari materia, but it is altogether a fallacy to suppose that because two statutes are in pari materia, a definition clause in one can be boldly transferred to the other. |
For this reason, while I agree with the defendant that there is a class of vehicles known as "highway truck tractors" which has, in some contexts, been distinguished from "trucks", I am not persuaded that should be determinative that s.7 of Schedule I of the Excise Tax Act does not include "highway truck tractors" as a subset of "trucks".
[22] I also do not find it determinative, in interpreting the scope of s.7 of Schedule I, that "highway truck tractors" is a term used in the industry, and by the defendant itself. Once again, while I accept that highway truck tractors is an accepted, descriptive term, I note evidence adduced by the plaintiff that the terms tractor, highway truck tractor and truck are used somewhat interchangeably in the industry, and that the term "truck" is the broadest term, including many sub-categories. The plaintiff points to testimony before the CITT suggesting that in the industry, "trucks" is understood to include highway truck tractors, when, for example, vehicles are requested to stop for inspections on the highway by signs reading "Trucks enter Inspection Station when signals are flashing", and to evidence that "truck tractors" are advertised often as "trucks".
[23] Both counsel made submissions on the plain meaning of the term "truck". The defendant urges that its vehicles are "tractors" and not "trucks" as they haul semi-trailers rather than carry freight. "Truck" is defined, in various dictionaries relied upon by the defendant as carrying items, whereas a tractor is for hauling loads. The Funk & Wagnalls Canadian College Dictionary (1989) defines "tractor" as "an automotive vehicle with a driver"s cab, used to haul trailers". The defendant also argues that the vehicles at issue in this case fulfil criteria established in the caselaw developed by the Tariff Board concerning the definition of tractors, which suggests that a "tractor" within the meaning of the Custom Tariff Act is not load carrying9, whereas a "truck" within the meaning of former s.1 of Part XVII of Schedule III of the Excise Tax Act is be construed as a strong motor vehicle for carrying heavy loads.10
[24] For its part, the plaintiff also relies on several dictionary definitions. Thus,
| in Webster"s Third New International Dictionary: |
| truck: 3. A wheeled vehicle used for moving heavy articles. 5(a): an automotive vehicle built for the transportation of goods on its own chassis, (b): a motorized vehicle equipped with a swivel for hauling a trailer. |
| tractor truck: a motive power unit in the form of a truck with a short chassis and no body used in a combination highway freight vehicle; |
| in McGraw-Hill Dictionary of Scientific and Technical Terms (4th Ed.): |
| truck: a self-propelled vehicle designed primarily to transport goods and heavy equipment; it may also be used to tow trailers or other mobile equipment; and, |
| in The Concise Oxford Dictionary (6th Ed.): |
| truck: ...open railway wagon; motor vehicle for transporting goods, troops, etc... |
[25] In my view, there is no compelling evidence that the common meaning of the term "truck" does not encompass "highway truck tractor". Some dictionary definitions of "truck" are broad enough to include a "highway truck tractor". The McGraw-Hill Dictionary of Scientific and Technical Terms includes under the heading and caption "truck", a photo which in all material respects depicts a vehicle similar to the defendant's "highway truck tractor". I find the defendant's contention that in common usage a truck includes only those vehicles that carry, as opposed to hauling, freight to be unconvincing. Further, I note that the vehicles here in question are not "pure" tractors where trailers are hauled exclusively and not carried. As the plaintiff notes, correctly in my view, the vehicles in question not only haul goods, they also carry them. The plaintiff points to testimony before the CITT that goods loaded at the front of the trailer hauled by a highway truck tractor transfer the weight of the load, or a portion of it, and of the weight of the trailer, onto the highway truck tractor body, which body stretches back from the cab in which the driver sits. I am not persuaded by arguments that a highway truck tractor, a class of vehicles specifically excluded from the class of "internal combustion tractors" in s.1(f), Schedule III, Part XII of the Excise Tax Act, cannot be a subset of "trucks" for the purposes of s.7 of Schedule I of the Act simply because it hauls a trailer.
[26] I turn now to arguments made by the parties focusing on the Act itself. It is urged by the defendant that an expression"s meaning may be revealed by its association with others, that is, its meaning is influenced by the words with which it is associated. This rule applies where two or more terms, linked by "and" or "or", serve analogous grammatical and logical functions within a provision. It is submitted that in the context of s.7 of Schedule I, the scope of the word "trucks" is coloured by the words that precede it, in particular, "automobiles", "station wagons" and "vans", all of which are passenger vehicles not akin to the defendant"s vehicles. As a consequence, it is urged, the taxing provisions should not be taken as applying to the defendant"s vehicles. I do not agree. With respect, if Parliament intended the section to apply strictly to passenger vehicles, it would have felt no need to specify the non-application of the section, in s-s.8(a), to ambulances and hearses in which air conditioners are permanently installed. These vehicles are no more "passenger vehicles" in the sense intended by the defendant than are its own vehicles.
[27] It is also submitted by the defendant that Parliament, when it enacted the taxing provision in s.7 of Schedule I of the Act knew the difference between a "truck" and a "highway truck tractor". If it had wanted to impose an excise tax on the latter, then it would have specifically mentioned these vehicles or used a broader term such as "motor vehicles". The defendant notes that Parliament was so specific in s.7 that it names station wagons, vehicles that otherwise would have been considered "automobiles". With respect, a similar argument could be made that if Parliament intended such specificity, it would have qualified the terms "trucks" in s.7 with adjectives, such as "light" or "small".
[28] I have little doubt that at the date of introduction of the provision in 1976, s.7 was applicable only to smaller vehicles, but the scope of the word "trucks" in the section was determined by exemptions under other sections of the Act. In this regard, I find persuasive the plaintiff"s arguments concerning the application of the Act between 1976 and 1991; namely, that larger trucks were excluded by virtue of s-s.8(c) of Schedule I. The plaintiff argues that Parliament was motivated to impose the tax with the objective of reducing excess fuel consumption, something augmented more significantly by the addition of air conditioners in more numerous smaller vehicles than in fewer, larger vehicles. Thus, it is said that prior to 1991, s-s.8(c) of Schedule I, as it then was, exempted from the tax, vehicles that were exempted from federal sales tax by virtue of s-s.51(1) of the Act, which in turn exempted from tax the goods included in Schedule III of the Act. Within that latter schedule, Part XVII, s.1 listed "highway truck tractors" and "trucks" of a particular "vehicle mass rating" as exempt goods. The plaintiff submits, on this basis, that where Parliament has intended to distinguish large and small trucks, it has done so by relying on such terms as "highway truck tractor", or by defining the size of the vehicle. Under the present Act , as amended in 1991, there is no longer a class exemption from tax for "highway truck tractors", or "trucks" over 7,250 kg. The relevant statutory provisions existing prior to 1991 read as follows:
| Schedule I |
| s.8 Section 7 does not apply in the case of any air conditioner described therein |
| ... |
| (c) that is included as permanently installed equipment in an automobile, station wagon, van or truck, which vehicle is sold under conditions for which relief from the consumption or sales tax is provided by virtue of any provision of the Act other than subsection 50(5). |
| The Act |
| 51.(1) The tax imposed by section 50 does not apply to the sale or importation of the goods mentioned in Schedule III, other than those goods mentioned in Part XIII of that Schedule that are sold to or imported by persons exempt from consumption or sales tax under subsection 54(2). |
| Schedule III, Part XVII |
| s.1 Highway truck tractors; trucks with a gross vehicle mass rating within the meaning given that expression by regulation of the Governor in Council, of seven thousand two hundred and fifty kilograms (7 250 kg) or more. |
Since 1991, there has been no comparable exemption for larger trucks or tractors. By amendment in 1991, s-s.8(c) of Schedule I was amended to provide
| ...(c) that is included as permanently installed equipment in an automobile, station wagon, van or truck that is sold under conditions that qualify the sale as a zero-rated supply for the purposes of Part IX of the Act |
[29] As I understand it, the argument of the defendant is that s.8 of Schedule I of the Act has nothing to do with the appeal and it contests the plaintiff"s interpretation of s.8, regarding exemptions from the Act . In particular, the defendant submits that the exemption in s.8(c) of Schedule I only applied to air conditioners permanently installed in automobiles, station wagons, vans or trucks sold under conditions for which relief from the consumption or sales tax is provided by virtue of any provision of the Act. Thus, it was not any vehicle that was exempted, as the plaintiff would suggest, but rather an automobile, station wagon, van or truck. As both ss. 7 and 8(c) refer to the same class of vehicles, it is urged that the plaintiff cannot tie the exemption in s-s.8(c) to the federal sales tax exemption for highway truck tractors and highway trucks found in Part XVII of Schedule III of the Excise Tax Act and thus, cannot argue that Parliament, through s.8, limited the scope of the tax on air conditioners to those in smaller trucks.
[30] With respect, I do not agree. I read s-s.8(c), as it existed up until 1991, as exempting from the tax on air conditioners, an "automobile, station wagon, van or truck" with permanently installed air conditioning equipment, sold in circumstances for which relief from consumption and sales tax was provided under any provision of the Act , other than s-s.50(5). "Any provision" included s-s.51(1), which incorporated, by reference to Schedule III, "highway truck tractors". Since these "highway truck tractors" cannot be understood to be a subset of automobile, station wagon or van, they must be a subset of "truck". I see no reason why this reasoning concerning the effect of s.51(1) in refining the scope of "trucks" in s-s.8(c) does not apply equally to s.7, where the listed classes of vehicles are identical to those in s-s.8(c).
[31] The defendant also relies on the legislative history of the taxing provision, referring to speeches made in the House of Commons in 1976 suggesting that the excise tax on air conditioners was to apply to smaller trucks, consuming gasoline and not diesel fuel. It is urged that these external sources can be used to establish the context of the statute"s adoption and the mischief it sought to remedy. I do not disagree that the Act as it existed after 1976 excluded larger trucks from the air conditioner tax. They were so excluded, not as a function of the definition of "trucks" per se in s.7, but through the operation of s-s.8(c), as it then applied. As the 1991 amendments to the Act changed the scope of s-s.8(c), any limitation on the scope of the word "trucks" that had been imposed to that date was removed. That change I take to reflect Parliament's intention that the tax be applied to all those vehicles falling within the ambit of the general term "trucks".
Conclusions
[32] I summarize my conclusions. In my view, evidence drawn from other provincial and federal statutes regarding the scope of the term "trucks" is not convincing evidence that "highway truck tractors" are not intended to be included in "trucks" in s.7, Schedule I. In the final analysis, I am not persuaded by the arguments of the defendant, upon whom the onus lies, to establish, to the satisfaction of the Court, that the interpretation it relies upon is that intended by Parliament.
[33] The meaning of the word "trucks", in light of the structure of the Act as it existed in 1976, indicates that the term in s.7 in the taxing provision does include "highway truck tractors", except those vehicles expressly exempted under other provisions of the Act. The exemptions under the legislation applicable in 1976, was eliminated by 1991 amendments to the Act.
[34] The appeal is allowed, the decision of the CITT here appealed from is set aside. The plaintiff sought pre-judgment and post-judgment interest pursuant to the Federal Court Act, and interest in both aspects is awarded in relation to any outstanding tax remaining unpaid. Costs are awarded, as asked, to the plaintiff, to be assessed on the normal party and party basis, unless the parties can settle on an amount for costs that is mutually acceptable.
JUDGE
OTTAWA, Ontario
May 8, 1998
__________________1 (1995), 191 N.R. 227 at 231 (F.C.A.).
2 [1986] 1 F.C. 346 at 352 (F.C.A.).
3 (1994), 178 N.R. 24 at 28 (F.C.A.).
4 Shaklee Canada Inc. v. Canada (1995), 93 F.T.R. 22, affirmed supra note 1 (F.C.A.); Sturdy Truck Body (1972) Ltd. v. Canada (1995), 95 F.T.R. 270.
5 Bosa Bros. Construction Ltd. v. Canada (1995), 106 F.T.R. 30, 96 D.T.C. 6193.
6 [1997] 3 F.C. 103, 212 N.R. 275 (F.C.A.).
9 Universal Go-tract Limited v. Deputy Minister of National Revenue for Customs and Excise (1981), 3 C.E.R. 239 (Tariff Board); MacLeod's Lawn Equipment Ltd. v. The Deputy Minister of National Revenue for Customs and Excise (1979), 1 C.E.R. 249 (Tariff Board); Rokon Distributors v. The Deputy Minister of National Revenue for Customs and Excise (1984), 7 C.E.R. 155 (Tariff Board).
10 General Motors of Canada Ltd. v. The Deputy Minister of National Revenue for Customs and Excise (1982), 4 C.E.R. 39 (Tariff Board).