Agnico-Eagle Mines v. Nunavut, 2016 NUCA 2

JudgeSlatter, Smallwood and Schutz, JJ.A.
CourtNunavut Court of Appeal (Canada)
Case DateFebruary 09, 2016
JurisdictionNunavut
Citations2016 NUCA 2;(2016), 612 A.R. 339

Agnico-Eagle Mines v. Nunavut (2016), 612 A.R. 339; 662 W.A.C. 339 (NUCA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. MR.052

Government of Nunavut as represented by the Attorney General of Nunavut and the Minister of Finance (appellant/respondent) v. Agnico-Eagle Mines Ltd. (respondent/applicant)

(08-14-009-CAC; 2016 NUCA 2)

Indexed As: Agnico-Eagle Mines Ltd. v. Nunavut

Nunavut Court of Appeal

Slatter, Smallwood and Schutz, JJ.A.

March 3, 2016.

Summary:

Agnico-Eagle Mines Ltd. (Agnico) was a mineral extraction corporation operating within the territorial boundaries of Nunavut. Agnico entered into a development partnership agreement with Nunavut. Under s. 5 of the Tax Rebate Regulations, Agnico was eligible to apply for a tax rebate on eligible petroleum products used directly for the purposes of a particular mine development, mine extraction or mine reclamation. At all material times, Agnico was the only taxpayer captured by s. 5. Section 8(4) of the Regulations required that all tax rebate applications be submitted within one year from the date of purchase of eligible petroleum products. In May of 2012, the Regulations were amended to add s. 8(4.1), which required rebate applications by s. 5 companies to be submitted by March 31 in respect of "eligible petroleum products purchased in or brought into Nunavut in the preceding year." Nunavut did not advise Agnico of the additional submission deadline applicable to s. 5 companies and did not update the rebate claim nor the Rebate Program Guidelines to reflect the additional deadline. On May 23, 2013, Agnico submitted two rebate applications representing Agnico's purchase of over 63.4 million litres of fuel. Nunavut denied all tax rebates claimed because Agnico had failed to submit the claims by the s. 8(4.1) deadline. Agnico applied for judicial review.

The Nunavut Court of Justice, in a decision reported at [2014] Nunavut Cases Uned. 30, interpreted ss. 8(4) and 8(4.1) so as to require s. 5 companies to claim a tax rebate for all fuel used for an eligible defined purpose no later than the earliest of one year from the date of its purchase or import or March 31st of the years following the calendar year in which it was used. Based on that interpretation, Agnico was entitled to claim a rebate for all the fuel except 19,707,555 litres of fuel which it had consumed prior to December 31, 2012. However, the court applied the doctrine of promissory estoppel to preclude Nunavut from relying upon the s. 8(4.1) deadline respecting the 19,707,555 litres. In the result, the court allowed Agnico's application. Nunavut appealed the overturning of the disallowance of the rebate for the 19,707,555 litres of fuel on the basis of promissory estoppel.

The Nunavut Court of Appeal allowed the appeal.

Estoppel - Topic 1004

Estoppel in pais (by conduct) - General - Against Crown - The Nunavut Court of Appeal reviewed the limits of promissory estoppel in the public law context - See paragraph 30 to 38.

Estoppel - Topic 1004

Estoppel in pais (by conduct) - General - Against Crown - Agnico-Eagle Mines Ltd. (Agnico) was a mineral extraction corporation operating within the territorial boundaries of Nunavut - Agnico entered into a development partnership agreement with Nunavut - Under s. 5 of the Tax Rebate Regulations, Agnico was eligible to apply for a tax rebate on eligible petroleum products used directly for the purposes of a particular mine development, mine extraction or mine reclamation - Agnico was the only taxpayer captured by s. 5 - Section 8(4) of the Regulations required that all tax rebate applications be submitted within one year from the date of purchase of eligible petroleum products - In May of 2012, the Regulations were amended to add s. 8(4.1), which required rebate applications by s. 5 companies to be submitted by March 31 in respect of "eligible petroleum products purchased in or brought into Nunavut in the preceding year." - On a judicial review application, the hearing judge held that Nunavut's failure to update its rebate claim form and the Rebate Program Guidelines, and to personally inform Agnico of the additional deadline constituted a "promise" not to enforce s. 8(4.1), and the doctrine of promissory estoppel precluded Nunavut from relying upon the s. 8(4.1) deadline to deny Agnico May 2013 application for a rebate for fuel that it had consumed prior to December 31, 2012 - The Nunavut Court of Appeal allowed Nunavut's appeal - Public law promissory estoppel could not be invoked to force Nunavut to exempt Agnico from compliance with s. 8(4.1) where the legislation gave no such lawful authority - The Regulations were properly and legally published in accordance with the Statutory Instruments Act, and notions of fairness did not apply - Assuming, without deciding, that the act of disallowing the late-filed rebate was unfair because of limited dissemination of information and if it could be found that there was an implicit "promise" not to enforce s. 8(4.1), Nunavut had no power to ignore or waive the mandatory s. 8(4.1) deadline - Any such promise would have been unlawful and unenforceable - See paragraphs 45 to 52.

Estoppel - Topic 1004

Estoppel in pais (by conduct) - General - Against Crown - Agnico-Eagle Mines Ltd. (Agnico) was a mineral extraction corporation operating within the territorial boundaries of Nunavut - Agnico entered into a development partnership agreement with Nunavut - Under s. 5 of the Tax Rebate Regulations, Agnico was eligible to apply for a tax rebate on eligible petroleum products used directly for the purposes of a particular mine development, mine extraction or mine reclamation - Agnico was the only taxpayer captured by s. 5 - Section 8(4) of the Regulations required that all tax rebate applications be submitted within one year from the date of purchase of eligible petroleum products - In May of 2012, the Regulations were amended to add s. 8(4.1), which required rebate applications by s. 5 companies to be submitted by March 31 in respect of "eligible petroleum products purchased in or brought into Nunavut in the preceding year." - On a judicial review application, the hearing judge held that Nunavut's failure to update its rebate claim form and the Rebate Program Guidelines, and to personally inform Agnico of the additional deadline constituted a "promise" not to enforce s. 8(4.1), and the doctrine of promissory estoppel precluded Nunavut from relying upon the s. 8(4.1) deadline to deny Agnico May 2013 application for a rebate for fuel that it had consumed prior to December 31, 2012 - The Nunavut Court of Appeal, in allowing Nunavut's appeal, stated that "Even assuming there was the requisite detrimental reliance by Agnico on the rebate form, this rebate form was not passed by the 'regulation-making authority', nor was the rebate form promulgated ... as part of the 'statutory instrument made or established' by the Regulations. Neither the Guidelines nor the rebate form have the force of law; nor can these materials trump the express and mandatory statutory language of s 8(4.1). Neither amounts to a 'promise' by the Government. ... Finally, there was no authority offered, or of which we are aware, that validates the hearing judge's determination that the Government had a positive obligation to warn or to personally advise Agnico of the deadline for s 5 companies contained within s 8(4.1). Moreover, there is no basis for the importation of such an obligation or duty into the public law domain, certainly not as an extension of the well-established requisite elements of the equitable doctrine of promissory estoppel." - See paragraphs 53 to 55.

Estoppel - Topic 1104

Estoppel in pais (by conduct) - Representation by statement - Representations which do not found estoppel - [See second and third Estoppel - Topic 1004 ].

Estoppel - Topic 1389

Estoppel in pais (by conduct) - Circumstances where doctrine not applicable - Lack of prejudice or detrimental reliance by person raising estoppel - Agnico-Eagle Mines Ltd. (Agnico) was a mineral extraction corporation operating within the territorial boundaries of Nunavut - Agnico entered into a development partnership agreement with Nunavut - Under s. 5 of the Tax Rebate Regulations, Agnico was eligible to apply for a tax rebate on eligible petroleum products used directly for the purposes of a particular mine development, mine extraction or mine reclamation - Agnico was the only taxpayer captured by s. 5 - Section 8(4) of the Regulations required that all tax rebate applications be submitted within one year from the date of purchase of eligible petroleum products - In May of 2012, the Regulations were amended to add s. 8(4.1), which required rebate applications by s. 5 companies to be submitted by March 31 in respect of "eligible petroleum products purchased in or brought into Nunavut in the preceding year." - On a judicial review application, the hearing judge held that Nunavut's failure to update its rebate claim form and the Rebate Program Guidelines, and to personally inform Agnico of the additional deadline constituted a "promise" not to enforce s. 8(4.1), and the doctrine of promissory estoppel precluded Nunavut from relying upon the s. 8(4.1) deadline to deny Agnico's May 2013 application for a rebate for fuel that it had consumed prior to December 31, 2012 - The Nunavut Court of Appeal, in allowing Nunavut's appeal, stated that since Agnico did not review the 2012 Guidelines prior to submitting its rebate forms, it was illogical to suggest that it detrimentally relied upon those Guidelines - Therefore, any failure by Nunavut to update the 2012 Guidelines to include the s. 8(4.1) deadline was a red herring - See paragraphs 43 and 44.

Estoppel - Topic 1394

Estoppel in pais (by conduct) - Circumstances where doctrine not applicable - To defeat statutory obligation or prohibition or to contravene public policy - [See second and third Estoppel - Topic 1004 ].

Statutes - Topic 1864

Interpretation - Intrinsic aids - Schedules, appendices and forms - Effect of - Whether schedule, etc., part of text of law - [See third Estoppel - Topic 1004 ].

Statutes - Topic 5359

Operation and effect - Delegated legislation - Regulations - Requirement of public notice - [See third Estoppel - Topic 1004 ].

Statutes - Topic 5385

Operation and effect - Delegated legislation - Regulations - Requirement of publication of - [See third Estoppel - Topic 1004 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 26].

Hydro Electric Commission of Kenora (Town) v. Vacationland Dairy Co-operative Ltd., [1994] 1 S.C.R. 80; 162 N.R. 241; 68 O.A.C. 241; 110 D.L.R.(4th) 449, refd to. [para. 29].

Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50; 125 N.R. 294; 47 O.A.C. 333; 80 D.L.R.(4th) 652, refd to. [para. 30].

Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281; 271 N.R. 104; 2001 SCC 41, folld. [para. 31].

Immeubles Jacques Robitaille Inc. v. Quebec (City), [2014] 1 S.C.R. 784; 457 N.R. 136; 2014 SCC 34, folld. [para. 31].

R. v. St. Ann's Island Shooting and Fishing Club Ltd., [1950] S.C.R. 211; 23 D.L.R.(3d) 677, refd to. [para. 31].

Nelson Consulting Services v. R., [2002] G.S.T.C. 122; 2003 G.T.C. 506, refd to. [para. 38].

Irving Oil Ltd. v. R., [1984] 1 F.C. 281 (T.D.), refd to. [para. 50].

Statutes Noticed:

Petroleum Products Tax Act (NU), Tax Rebate Regulations, Nu. Reg. 012-2006, sect. 8(4.1) [para. 11].

Tax Rebate Regulations - see Petroleum Products Tax Act (NU).

Counsel:

A. Silk, for the appellant/respondent;

P. Mantas, for the respondent/appellant.

This appeal was heard on February 9, 2016, by Slatter, Smallwood and Schutz, JJ.A., of the Nunavut Court of Appeal. The following memorandum of judgment was filed at Iqaluit, Nunavut, on March 3, 2016.

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