Consumers Glass Co. v. Canada, (1988) 21 F.T.R. 131 (TD)

• Judge: Cullen, J.
• Court: Federal Court (Canada)
• Case Date: June 14, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 21 F.T.R. 131 (TD)

Consumers Glass Co. v. Can. (1988), 21 F.T.R. 131 (TD)

MLB headnote and full text

Consumers Glass Company Limited (plaintiff) v. Her Majesty the Queen in Right of Canada (defendant)

T-2639-85

Indexed As: Consumers Glass Co. v. Canada

Federal Court of Canada

Trial Division

Cullen, J.

June 29, 1988.

Summary:

Consumers Glass was a Canadian glass manufacturer. Consumers imported glass making machinery parts for many years. From 1979 to 1983 Consumers paid duty totalling $512,563.64 on the parts. Thereafter, Consumers realized that the goods could have been imported duty free. Consumers requested a refund. They received $190,000.00, but the Deputy Minister, Revenue Canada, was restrained by s. 46 of the Customs Act from redetermining the tariff classification for goods imported more than two years before. Consumers commenced an action to recover the remaining $322,563.64 on the basis of unjust enrichment.

The Federal Court of Canada, Trial Division, allowed Consumers' action.

Customs - Topic 6264

Payment of duty - Refund of duty paid - Where duty paid under mistake of law - A Canadian glass manufacturer imported glass-making machinery parts and paid customs duties - After four years and having paid $512,563.64, the manufacturer realized that the parts could have been imported duty free - The manufacturer sought to have the monies paid under what was admitted to be a mistake of law returned on the basis of unjust enrichment - The Federal Court of Canada, Trial Division, allowed the action and ordered that all duties be refunded - The court made its ruling, notwithstanding s. 46 of the Customs Act, which precluded the Deputy Minister of National Revenue from redetermining customs duties more than two years after the goods were imported - The court held that the Act did not preclude an action based on unjust enrichment.

Mistake - Topic 1701

Recovery of money paid under mistake - Mistake of law - General - The Federal Court of Canada, Trial Division, discussed the recoverability of monies paid under a mistake of law - See paragraphs 3 to 21.

Mistake - Topic 1710

Recovery of money paid under mistake - Mistake of law - Circumstances when recovery allowed - [See Customs - Topic 6264 above].

Restitution - Topic 61

Unjust enrichment - General - The Federal Court of Canada, Trial Division, opined that "the law in Canada is moving toward a revival of or a stronger emphasis on the law of restitution on the basis of unjust enrichment ... There is no question that the doctrine of unjust enrichment is firmly entrenched and accepted in Canadian law" - See paragraph 25.

Restitution - Topic 61

Unjust enrichment - General - The Federal Court of Canada, Trial Division, discussed generally the principle of unjust enrichment - See paragraphs 14 to 22.

Restitution - Topic 70

Unjust enrichment - Where money paid under mistake of law - [See Customs - Topic 6264 above].

Restitution - Topic 70

Unjust enrichment - Where money paid under mistake of law - The Federal Court of Canada, Trial Division, discussed how the principle of unjust enrichment might be used to avoid the harshness of the rules restricting the recoverability of monies paid under a mistake of law.

Cases Noticed:

Nepean Hydro Electric Commission v. Ontario Hydro, [1982] 1 S.C.R. 347; 41 N.R. 1, consd. [para. 2 et seq.].

Kasprzycki and Abel, Re (1986), 55 O.R.(2d) 536, consd. [paras. 3, 11].

George (Porky) Jacobs Enterprises Ltd. v. Regina, [1964] S.C.R. 326, refd to. [para. 4].

Cooper v. Phibbs (1867), L.R. 2 H.L. 149, refd to. [para. 4].

Kerri Cotton Co. Ltd. v. Dewanni, [1960] A.C. 192, refd to. [paras. 4, 8].

Peel (Regional Municipality) v. Canada, [1987] 3 F.C. 103; 7 F.T.R. 213 (T.D.), consd. [paras. 10, 22].

County of Carleton v. City of Ottawa, [1965] S.C.R. 663; 52 D.L.R.(2d) 220, consd. [paras. 12, 14, 25, 28].

Brook's Wharf and Bull Wharf v. Goodman Brothers, [1937] 1 K.B. 534, consd. [para. 14].

Fibrosa Spolka Akcyjna v. Fairbairn, Lawson Combe Barbour Ltd., [1943] A.C. 32 (H.L.), refd to. [paras. 15, 25].

Nicholson v. St-Denis (1975), 57 D.L.R.(3d) 599 (Ont. C.A.), consd. [para. 16].

McLaren v. R., [1984] 2 F.C. 899, consd. [paras. 17, 18].

Greenwood v. Bennett, [1972] 3 All E.R. 586 (C.A.), dist. [para. 19].

James Moore & Sons v. University of Ottawa (1974), 49 D.L.R.(3d) 666, consd. [para. 20].

Deglman v. Guaranty Trust Co. of Canada et al., [1954] 3 D.L.R. 785 (S.C.C.), refd to. [para. 25].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384; 19 R.F.L.(2d) 165; 117 D.L.R.(3d) 257 (S.C.C.), refd to. [para. 25].

White et al. v. Central Trust Co. et al. (1984), 54 N.B.R.(2d) 293; 140 A.P.R. 293; 7 D.L.R.(4th) 236 (N.B.C.A.), refd to. [para. 25].

Statutes Noticed:

Customs Act, R.S.C. 1970, c. C-40, sect. 46 [paras. 1, 36].

Authors and Works Noticed:

Gautreau, J.R. Maurice, The Renaissance of Restitution [para. 24].

Goff and Jones, Law of Restitution (1966) [para. 20].

Counsel:

John J. Morin, for the plaintiff;

Thomas L. James, for the defendant.

Solicitors of Record:

Campbell, Godfrey & Lewtas, Toronto, Ontario, for the plaintiff;

F. Iacobucci, Q.C., Deputy Attorney General of Canada, for the defendant.

This case was heard in Toronto, Ontario, on June 14, 1988, before Cullen, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on June 29, 1988: