Date: 20010215
Docket: A-594-99
Neutral citation: 2001 FCA 23
CORAM: RICHARD C.J.
BETWEEN:
FEDERATED CO-OPERATIVES LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Ottawa, Ontario, on Thursday, February 15, 2001.
Judgment delivered from the Bench on Thursday, February 15, 2001.
REASONS FOR JUDGMENT
OF THE COURT DELIVERED BY: EVANS J.A.
Date: 20010215
Docket: A-594-99
Neutral citation: 2001 FCA 23
CORAM: RICHARD C.J.
NOËL J.A.
EVANS J.A.
BETWEEN:
FEDERATED CO-OPERATIVES LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
(Delivered from the Bench at Ottawa, Ontario
on Thursday, February 15, 2001)
[1] This is an appeal from a judgment of Dubé J. of the Trial Division of this Court ([1999] F.C.J. No. 1028 (F.C.T.D.)) granting summary judgment dismissing the statement of claim of Federated Co-operatives Limited ("the appellant") for the recovery of the amount of federal sales tax that it had overpaid in the years 1985 and 1986. The original claim was for $30,000,000, although it has been much reduced since then.
[2] Despite the thorough and able presentation of counsel for the appellant, we are all of the opinion that this appeal must fail. We do not need to decide for the purpose of this appeal whether, prior to their amendment in 1985 and 1986, the provisions respecting the refund of overpaid tax in the Excise Tax Act, R.S.C. 1970, c. E-13, constituted a complete code so as to preclude non-statutory claims for the repayment of taxes paid in error.
[3] Even if the appellant had a non-statutory right to recover the amount of taxes that it had overpaid in 1985 and 1986, we agree with the respondent that its claim is barred by the Federal Court Act, R.S.C. 1985, c. F-2, subsection 39(2), and by the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, section 32. Under these provisions, proceedings in this Court, and against the federal Crown, must be instituted within six years after the cause of action arose. It was not alleged that the appellant's claim arose under the law of a province and was subject to the limitation period prescribed by the law of that province.
[4] The appellant's cause of action arose when it overpaid its taxes between August 1985 and April 1986, and hence expired at the end of April 1992 at the latest. The appellant issued its statement of claim in the present proceeding on January 31, 1994, nearly two years outside the limitation period. Counsel made two principal submissions on this issue.
[5] First, he submitted that the statutory limitation periods do not apply to claims for equitable relief. However, even if he is right in this submission, which we do not decide, the appellant's claim to recover the amount paid under a mistake as to its tax liability is not a request for an equitable remedy. The assertion in the statement of claim that the amount claimed is "on the basis of unjust enrichment" is not in itself the invocation of equitable relief. Further, while the facts pleaded in the appellant's amended statement of claim may support a personal common law right to be paid an amount equal to the mistaken overpayments, they are not sufficient to establish an equitable proprietary claim, by way of a constructive trust, to funds in the hands of the Crown that are identifiable as the money paid in error by the appellant.
[6] In the alternative, counsel for the appellant submitted that the "discoverability principle" applies to the facts of this case, with the result that the limitation period did not commence until October 19, 1990, the date when the Federal Court rendered its decision in MacMillan Bloedel Ltd. v. Minister of National Revenue, (1991) 38 F.T.R. 58 (F.C.T.D.). This case held that Revenue Canada had misinterpreted provisions of the Excise Tax Act that are also relevant to this case. On the basis of this decision, it became clear that the appellant had paid more in taxes in 1985 and 1986 than was legally due.
[7] In our opinion, the discoverability principle is inapplicable in this case. First, there is no authority for the proposition that a court decision on the interpretation of a statute constitutes a "new material fact" enabling a plaintiff to file a statement of claim outside a statutorily prescribed limitation period.
[8] Second, the fact that another tax payer, MacMillan Bloedel Ltd., was able successfully to challenge Revenue Canada's understanding of the law within the applicable time period indicates that the appellant could have done so as well. After all, the appellant is a corporation employing professional staff to take care of the financial aspects of its business, including its tax liability.
[9] Third, we reject the appellant's argument that the Crown was guilty of fraudulent concealment in failing to alert the appellant to the decision in MacMillan Bloedel Ltd., supra, when it was rendered in October 1990. This decision was, of course, a matter of public record. Again, the appellant was well placed, through its professional staff and advisers, to become aware of this decision and to assess its significance to the appellant very soon after it was released.
[10] I would only add that the appellant had ample time after the MacMillan Bloedel decision was rendered to issue a statement of claim for the taxes that it had overpaid. The limitation period for the earliest overpayment expired on August 31, 1991, and on April 30, 1992 for the last overpayment. The fact that the appellant did not learn of the decision until September 30, 1992 cannot justify a judicial extension of the statutory limitation period, especially since the appellant waited another 15 months before issuing its statement of claim.
[11] Accordingly, we agree with the written submissions made on behalf of the Crown that the appellant's claim is time-barred. The Crown's motion for summary judgment was therefore correctly granted and the appellant's statement of claim dismissed.
[12] For these reasons, the appeal will be dismissed with costs.
"John M. Evans"
J.A.