Bitumar Inc. v. Canada (Minister of Energy, Mines and Resources), (1986) 4 F.T.R. 98 (TD)

• Judge: McNair, J.
• Court: Federal Court (Canada)
• Case Date: October 24, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1986), 4 F.T.R. 98 (TD)

Bitumar Inc. v. Can. (1986), 4 F.T.R. 98 (TD)

MLB headnote and full text

Bitumar Inc. v. Minister of Energy, Mines and Resources and Attorney General of Canada

(No. T-28763-84)

Indexed As: Bitumar Inc. v. Canada (Minister of Energy, Mines and Resources)

Federal Court of Canada

Trial Division

McNair, J.

April 24, 1986.

Summary:

Bitumar exported asphalt products derived from petroleum supplied by refiners. The refiners paid all petroleum levies imposed under the Petroleum Administration Act (subsequently renamed the Energy Administration Act). Bitumar applied under s. 65.16(2) of the Energy Administration Act for a remission of petroleum levies. The Minister refused the rebate on the ground that s. 65.16(2) gave the Minister a discretionary, not obligatory, power to pay the monies and that government policy was against granting the remission where neither an export charge nor import compensation payment had been made. Bitumar applied for mandamus to compel the Minister to determine Bitumar's remittance in accordance with the law. Bitumar also sought a declaration that in determining the amount of the remittance it was irrelevant whether any export charges were levied and paid to the Minister in respect of exported asphalt or that any person had repaid to the Minister amounts of cost compensation paid under the Act. Bitumar also sought a declaration that the words "that is unpackaged and in bulk" in s. 3(1)(i) of the Petroleum Levy Regulations were ultra vires pursuant to s. 65.19 of the Act. The main issue in the case was whether use of the word "may" in the phrase "payment may be made" (s. 65.16(2)) was permissive or obligatory.

The Federal Court of Canada, Trial Division, allowed the application in part. The court determined that "may" was obligatory, but that Bitumar was entitled to a remittance for only a portion of the time it was claimed for. The court dismissed the action with respect to the declaratory relief sought.

Courts - Topic 10

Stare decisis - Obiter dicta - What constitutes and effect of - The Federal Court of Canada, Trial Division, in interpreting a statute, was referred to statements in a Federal Court of Appeal judgment - The court stated that "even if these statements can properly be characterized as dicta, and I am not so sure they can, they are nevertheless entitled to the utmost weight and consideration because they bear directly on the point in issue here." - See paragraph 36.

Mines and Minerals - Topic 7065

Regulation - Administrative powers - Interpretation of - An asphalt exporter applied for a remission of petroleum levies under s. 65.16(2) of the Energy Administration Act - Section 65.16(2) provided that the payment "may" be made to that person - The Federal Court of Canada, Trial Division, held that "may" was obligatory, not permissive - The court held that where the applicant met the condition precedents under the Act for the rebates, it was therefore entitled to the rebate - See paragraphs 6 to 32.

Statutes - Topic 516

Interpretation - Ordinary meaning of words - The Federal Court of Canada, Trial Division, applied the general rule that words of a statute are to be read in their grammatical and ordinary sense in reference to their context and the other parts of the statute in terms of its schemes and the object and intention of Parliament so far as the latter can be collected from the words of a statute - See paragraph 11.

Statutes - Topic 4988

Operation and effect - Enabling acts - Power coupled with duty - "May" construed as imperative - Section 65.16(2) of the Energy Administration Act provided that payment of a rebate "may" be made - The Federal Court of Canada, Trial Division, interpreted "may" as obligatory not permissive - The court stated that "may" was permissive unless the context clearly indicated a contrary intention; that whether words that are prima facie discretionary are construed as imperative must be solved from the context of the particular provisions and the general scope and objects of the enactment conferring the power - See paragraphs 6 to 32.

Words and Phrases

Unpackaged and in bulk - The Federal Court of Canada, Trial Division, referred to the meaning and validity of the phrase "unpackaged and in bulk", as found in s. 3(1)(i) of the Petroleum Levy Regulations (SOR/82975) - See paragraphs 41 to 47.

Cases Noticed:

Stubart Investments Limited v. Minister of National Revenue, [1984] 1 S.C.R. 536; 53 N.R. 241; 84 D.T.C. 6305, refd to. [para. 11].

Minister of National Revenue v. Cie Imm. BCN Ltee., [1979] 1 S.C.R. 865; 25 N.R. 361, refd to. [para. 11].

Borough of Ealing v. Race Relations Board, [1972] 1 All E.R. 105 (H.L.), refd to. [para. 12].

Maple Lodge Farms Ltd. v. Government of Canada, [1981] 1 F.C. 500; 42 N.R. 312; 114 D.L.R.(3d) 634 (F.C.A.), affg. [1980] 2 F.C. 458, refd to. [para. 13].

Julius v. Bishop of Oxford (1880), 4 App. Cas. 214, refd to. [para. 13].

Re Fisheries Act, 1914, [1928] 4 S.C.R. 190 (S.C.C.), refd to. [para. 13].

Re Falconbridge Nickel Mines and Ont. Min. of Revenue (1981), 121 D.L.R.(3d) 403 (C.A.), refd to. [para. 13].

Inglis v. Robertson, [1898] A.C. 616, refd to. [para. 28].

Bitumar Inc. v. Canada (1985), 56 N.R. 383 (Fed. C.A.), refd to. [para. 33].

Statutes Noticed:

Energy Administration Act, S.C. 1974-75-76, c. 47, as amended by S.C. 1976-77, c. 28, S.C. 1977-78, c. 24, S.C. 1980-81-82-83, c. 114, sect. [para. 18]; sect. 65.16(2) [para. 6]; sect. 65.16(3) [para. 7]; sect. 65.16(4) [para. 22]; sect. 65.19 [para. 41]; sect. 77(1)(a) [para. 8].

Petroleum Administration Act - see Energy Administration Act.

Petroleum Levy Regulations, SOR/82975, sect. 2 [para. 23]; sect. 3(1)(i) [para. 41]; sect. 5(2) [para. 24].

Authors and Works Noticed:

Shorter Oxford English Dictionary (3rd Ed.) [para. 38].

de Smith, Judicial Review of Administrative Action (4th Ed.), p. 284 [para. 15].

Driedger, E.A., Construction of Statutes (2nd Ed.), pp. 9-15 [para. 13]; 87 [para. 11].

Counsel:

F.R. Matthews, Q.C., for the plaintiff;

Terrence Joyce, Q.C., and Ian Donahoe, for the defendants.

Solicitors of Record:

MacKimmie, Matthews, Calgary, Alberta, for the plaintiff;

F. Iacobbuci, Q.C., Deputy Attorney General of Canada, for the defendants.

This application was heard on October 24, 1985, at Calgary, Alberta, before McNair, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on April 24, 1986.