Bitumar Inc. v. Canada (Minister of Energy, Mines and Resources), (1987) 78 N.R. 18 (FCA)

• Judge: Thurlow, C.J., Pratte and Heald, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 11, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 78 N.R. 18 (FCA)

Bitumar Inc. v. Can. (1987), 78 N.R. 18 (FCA)

MLB headnote and full text

Bitumar Inc. (appellant) v. Minister of Energy, Mines and Resources and Attorney General of Canada (respondents)

(No. A-385-86)

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

Federal Court of Appeal

Thurlow, C.J., Pratte and Heald, JJ.

March 26, 1987.

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, in a decision reported at (1986), 4 F.T.R. 98, 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. Bitumar appealed and the Minister cross-appealed.

The Federal Court of Appeal allowed Bitumar's appeal and the Minister's cross-appeal. The court held that Bitumar was entitled to remittance for the entire period claimed. The court also held that the words "unpackaged and in bulk" in s. 3(1)(i) of the Petroleum Levy Regulations was ultra vires. The court referred the matter back to the Trial Division for determination of the amount of repayment.

Constitutional Law - Topic 2761

Determination of validity of statutes - Severability - General - The Federal Court of Appeal discussed the test for determining whether impugned words of a statute should be severed from the section, when they are declared ultra vires - See paragraphs 44 to 47.

Mines and Minerals - Topic 8590

Oil and gas - Petroleum levies - Reimbursement or payment - Bitumar exported asphalt products derived from petroleum supplied by refiners - Petroleum levies were paid by the refiners - Bitumar applied under s. 65.16(2) of the Energy Administration Act, for remission of the levies for a particular period - The Act originally provided for a "reimbursement" and was amended to read "payment" - The Federal Court of Appeal allowed Bitumar's appeal for remission of funds over the entire period claimed - The court discussed the distinction between the words "reimbursement" and "payment" as they appear in the Act.

Statutes - Topic 1623

Interpretation - Extrinsic aids - Other statutes - Prior statutes respecting same subject matter - [See Mines and Minerals - Topic 8590 above].

Cases Noticed:

Attorney General for Alberta v. Attorney General for Canada, [1947] A.C. 503, appld. [para. 45].

Roy and Attorney General of Alberta v. Plourde, [1943] S.C.R. 262, refd to. [para. 47].

Statutes Noticed:

Energy Administration Act, S.C. 1974-75-76, c. 47, sect. 15 [paras. 9, 34]; sect. 24(1) [para. 19]; sect. 65(1) [para. 12]; sect. 65.11 [para. 38]; sect. 65.13 [para. 12]; sect. 65.16 [paras. 13, 17, 26, 30, 35]; sect. 65.16(1) [paras. 24, 34]; sect. 65.16(2) [paras. 20 to 30, 48]; sect. 65.19(a) [paras. 37, 40, 42]; sect. 65.26(3)(a) [paras. 16, 26, 30]; sect. 77(1)(a) [paras. 18, 30].

Petroleum Levy Regulations, SOR/82975, sect. 3(1)(i) [paras. 37, 41].

Authors and Works Noticed:

Dictionnaire Quillet de la Langue Française [para. 23].

Shorter Oxford Dictionary [para. 23].

Counsel:

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

Terrence Joyce, Q.C., and Stephen Faulknor, for the respondents.

Solicitors of Record:

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

F. Iacobucci, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This appeal was heard on February 11, 1987, at Calgary, Alberta, before Thurlow, C.J., Pratte and Heald, JJ., of the Federal Court of Appeal. The decision of the Court of Appeal was delivered on March 26, 1987, by Thurlow, C.J.