Amax Potash Ltd. et al. v. Province of Saskatchewan, (1976) 11 N.R. 222 (SCC)

• Judge: Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.
• Court: Supreme Court of Canada
• Case Date: Tuesday October 05, 1976
• Jurisdiction: Canada (Federal)
• Citations: (1976), 11 N.R. 222 (SCC);71 DLR (3d) 1;[1977] 2 SCR 576;[1976] ACS no 86;[1976] 6 WWR 61;11 NR 222;[1976] SCJ No 86 (QL);1976 CanLII 15 (SCC)

Amax Potash Ltd. v. Saskatchewan (1976), 11 N.R. 222 (SCC)

MLB headnote and full text

Amax Potash Ltd. et al. v. Province of Saskatchewan

Indexed As: Amax Potash Ltd. et al. v. Province of Saskatchewan

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.

October 5, 1976.

Summary:

This case arose out of the imposition of a mining tax on several mining companies by the Province of Saskatchewan. The tax was imposed pursuant to s. 25A of the Mineral Tax Act. The mining companies commenced an action against the Province of Saskatchewan to challenge the imposition of the tax. The Province of Saskatchewan pleaded s. 5(7) of the Proceedings Against the Crown Act which granted the Crown immunity from suit for acts done pursuant to a statute declared to be beyond the legislative competence of the Province of Saskatchewan. In an interlocutory proceeding the mining companies applied for an order with respect to their right to recover taxes paid in the event of the invalidity of s. 25A of the Mineral Taxation Act. The Court of Queen's Bench dismissed the application by the mining companies.

On appeal by the mining companies to the Saskatchewan Court of Appeal the appeal was dismissed.

On appeal to the Supreme Court of Canada the appeal was allowed. The Supreme Court of Canada declared that s. 5(7) of the Saskatchewan Proceedings Against the Crown Act was ultra vires the Province of Saskatchewan. The Supreme Court of Canada declared that s. 5(7) of the Proceedings Against the Crown Act did not bar the mining companies from recovering taxes paid before a declaration of invalidity with respect to s. 25A of the Mineral Taxation Act. The Supreme Court of Canada stated that where a statute is found to be ultra vires, then any statute, which attaches legal consequences to acts done pursuant to the invalid law, must equally be ultra vires - see paragraph 25.

Constitutional Law - Topic 2523

Determination of validity of statutes - Effect of invalidity - Validity of acts done pursuant to a statute prior to a declaration of invalidity - Several mining companies commenced an action against the Province of Saskatchewan to challenge a tax imposed pursuant to s. 25A of the Mineral Taxation Act - The Crown pleaded s. 5(7) of the Proceedings Against the Crown Act which granted the Crown immunity from suit for acts done pursuant to a statute declared to be beyond the legislative competence of the Province of Saskatchewan - The Supreme Court of Canada declared that s. 5(7) of the Proceedings Against the Crown Act was ultra vires and did not bar the mining companies from recovering taxes paid before any declaration of invalidity with respect to s. 25A of the Mineral Taxation Act - The Supreme Court of Canada stated that where a statute is found to be ultra vires, then any statute, which attaches legal consequences to acts done pursuant to the invalid law, must equally be ultra vires - See paragraph 25.

Crown - Topic 4544

Actions against the Crown in the right of a province - Capacity of the Crown to be sued - Statutory immunity of the Province of Saskatchewan respecting acts done pursuant to an ultra vires statute enacted by the Province of Saskatchewan - Several mining companies commenced an action against the Province of Saskatchewan to challenge a tax imposed pursuant to s. 25A of the Mineral Taxation Act - The Crown pleaded s. 5(7) of the Proceedings Against the Crown Act which granted the Crown immunity from suit for acts done pursuant to a statute declared to be beyond the legislative competence of the Province of Saskatchewan - The Supreme Court of Canada declared s. 5(7) of the Proceedings Against the Crown Act ultra vires the Province of Saskatchewan.

Practice - Topic 3371

Interim proceedings - Preservation of property - Saskatchewan Queen's Bench Rules 387 and 390 - The Supreme Court of Canada referred to the purpose of Rules 387 and 390 - See paragraphs 26 to 31 - The Supreme Court of Canada refused to make a preservation order with respect to money because money is in no way unique so as to require preservation - See paragraph 30.

Cases Noticed:

Cairns Construction v. Government of Saskatchewan (1959), 16 D.L.R.(2d) 465, refd to. [para. 17].

Attorney General of Alberta v. Attorney General of Canada, [1943] A.C. 356, folld. [para. 20].

British Columbia Power Corporation v. British Columbia Electric Company Limited, [1962] S.C.R. 642, folld. [para. 20].

Antill Ranger and Company Proprietary Ltd. v. Commissioner for Motor Transport (1955), 93 C.L.R. 83, folld. [para. 22].

Trustees of the Roman Catholic Separate Schools v. The Quebec Bank, [1920] A.C. 230, dist. [para. 24].

Vancouver Growers Ltd. v. McLenan and B.C. Coast Vegetable Marketing Board, [1937] 3 W.W.R. 119, dist. [para. 24].

Canadian Industrial Gas and Oil Ltd. v. Government of Saskatchewan and Attorney General for Saskatchewan, [1974] 4 W.W.R. 557, refd to. [para. 28].

Underhill v. Ministry of Food, [1950] 1 All E.R. 591, refd to. [para. 28].

International General Electric Company of New York Ltd. v. Commissioners of Customs and Excise, [1962] Ch.D. 784, refd to. [para. 28].

Statutes Noticed:

Mineral Taxation Act, R.S.S. 1965, c. 64, sect. 25A [para. 3].

Potash Reserve Tax Regulations, 1974 (Sask.), S.O.R. 1756/74, November 12, 1974; S.O.R. 801/75, June 2, 1975.

Proceedings Against the Crown Act, R.S.S. 1965, c. 87, sect. 5(7) [para. 5].

Queen's Bench Act, R.S.S. 1965, c. 73, sect. 44(17) [para. 15].

Queen's Bench Rules (Sask.), rule 387, rule 388, rule 389, rule 390 [para. 28].

Counsel:

J.J. Robinette, Q.C. and W.M. Elliott, Q.C., for the appellants;

G.W. Ainslie, Q.C. and H.L. Molot, for the intervenant the Attorney General of Canada;

George Taylor, Q.C. and Roy Meldrum, Q.C. and G.V. Peacock, for the respondent, Province of Saskatchewan;

W. Henkel, Q.C., for the intervenant the Attorney General of Alberta.

This appeal was heard by the Supreme Court of Canada at Ottawa, Ontario on June 10, 1976.

The judgment of the Supreme Court of Canada was delivered by DICKSON, J. on October 5, 1976.