Continental Seafoods Ltd. v. Nova Scotia (Minister of Finance), (1992) 112 N.S.R.(2d) 361 (TD)

• Judge: Kelly, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 05, 1991
• Jurisdiction: Nova Scotia
• Citations: (1992), 112 N.S.R.(2d) 361 (TD)

Continental Seafoods Ltd. v. N.S. (1992), 112 N.S.R.(2d) 361 (TD);

  307 A.P.R. 361

MLB headnote and full text

Continental Seafoods Limited (appellant) v. The Minister of Finance (respondent)

(1992 S.H. 72115)

Indexed As: Continental Seafoods Ltd. v. Nova Scotia (Minister of Finance)

Nova Scotia Supreme Court

Trial Division

Kelly, J.

March 25, 1992.

Summary:

The plaintiff's application for refund of health services tax on refrigeration equip­ment was denied in part by the Provincial Tax Commission. The plaintiff appealed to the Minister of Finance. The Minister dis­missed the appeal. The plaintiff appealed.

The Nova Scotia Supreme Court, Trial Division, allowed the appeal.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not raised on application or at trial or in pleadings or in prior proceedings - The Provincial Tax Commission and the Minister of Finance allowed a processor of pickled herring a part exemption from tax for refrigeration equipment on the ground that the equip­ment was used in part of the process - On appeal, the Minister sought to raise an additional ground, namely, that the sales tax was paid directly by the contractors who installed the equipment and not by the processor - The Nova Scotia Supreme Court, Trial Division, declined to consider the new ground of appeal - See para­graphs 19 to 23.

Sales and Service Taxes - Topic 543

Sales tax - Exemptions - Manufacture or production of goods - An applicant sought an exemption from tax under s. 10(1)(h) of the Health Services Tax Act, R.S.N.S. 1967, c. 126, for refrigeration equipment used in the processing of pickled salted herring - The Minister allowed a part exemption - The Nova Scotia Supreme Court, Trial Division, allowed the exemp­tion in full - The court stated that there was no power under the Act for prorating the tax to the extent the machinery was used in the manufacturing or production - See paragraphs 1 to 18.

Cases Noticed:

Silver Spoon Desserts Enterprises Ltd. v. Nova Scotia (Minister of Finance) (1989), 89 N.S.R.(2d) 363; 227 A.P.R. 363 (C.A.), consd. [para. 14].

Forest Products Terminal Corp. Ltd. v. New Brunswick (1985), 58 N.B.R.(2d) 371; 151 A.P.R. 371, refd to. [para. 14].

Northland Fisheries Ltd. v. Nova Scotia (Minister of Finance) (1986), 77 N.S.R.(2d) 361; 191 A.P.R. 361, consd. [para. 15].

Installations Electriques, G. Bradley Ltée v. Nova Scotia (Attorney General) (1987), 77 N.S.R.(2d) 327; 191 A.P.R. 327 (T.D.), leave to appeal refused 89 N.S.R.(2d) 270; 227 A.P.R. 270, refd to. [para. 19].

Ponnamma v. Arumogam, [1905] A.C. 383 (C.P.C.), refd to. [para. 23].

National Telephone Co. Ltd. v. Postmaster General, [1913] A.C. 546 (H.L.), refd to. [para. 23].

United Dominions Trust Ltd. v. Bycroft, [1954] 1 W.L.R. 1345 (M.R.), refd to. [para. 23].

Statutes Noticed:

Health Act, R.S.N.S. 1967, c. 126, sect. 1(ca), sect. 10(1)(h), sect. 10(1)(i), sect. 10(1)(j) [para. 8]; sect. 18(5) [para. 12]; sect. 19 [para. 1]; sect. 19(4) [para. 21].

Counsel:

Harvey Morrison, for the applicant;

Duncan Beveridge, for the respondent.

This appeal was heard in Chambers on September 5, 1991, at Halifax, Nova Scotia, before Kelly, J., of the Nova Scotia Supreme Court, Trial Division, who released the following decision orally on March 25, 1992.