Ellett Estate v. Attorney General of British Columbia and Attorneys General of Canada, Quebec, Nova Scotia and Manitoba, (1980) 32 N.R. 326 (SCC)

• Judge: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Chouinard, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 27, 1980
• Jurisdiction: Canada (Federal)
• Citations: (1980), 32 N.R. 326 (SCC);32 NR 326;[1980] CTC 338;1980 CanLII 221 (SCC);[1980] 5 WWR 591;23 BCLR 86;112 DLR (3d) 592;7 ETR 93;[1980] 2 SCR 466

Ellett Estate v. B.C. (A.G.) (1980), 32 N.R. 326 (SCC)

MLB headnote and full text

Ellett's Estate v. Attorney General of British Columbia and The Attorneys General of Canada, Quebec, Nova Scotia and Manitoba (Intervenors)

Indexed As: Ellett Estate v. Attorney General of British Columbia and Attorneys General of Canada, Quebec, Nova Scotia and Manitoba

Supreme Court of Canada

Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Chouinard, JJ.

June 27, 1980.

Summary:

This case arose out of an action by the executors of an estate for a declaration that 6A of the Succession Duty Act, R.S.B.C. 1960, c. 372, was ultra vires of the province. The deceased, a resident of Alberta, died leaving personal property located in Alberta to beneficiaries resident in British Columbia. The B.C. Minister of Finance subjected the beneficiaries to succession duties under 6A, which made liable to succession duties resident beneficiaries receiving property located outside the Province. The executors' action was allowed by the British Columbia Supreme Court in a judgment reported 86 D.L.R.(3d) 267, which found that section 6A was ultra vires the Province. The British Columbia Court of Appeal dismissed the Province's appeal in a judgment reported in [1979] 2 W.W.R. 683. The Province appealed.

The Supreme Court of Canada allowed the appeal and held that s. 6A was intra vires the Province and was valid direct taxation within the Province within the meaning of s. 92(2) of the British North America Act.

See also Jodrey's Estate v. Province of Nova Scotia et al. (1980), 32 N.R. 275; 40 N.S.R.(2d) 181; 76 A.P.R. 181.

Constitutional Law - Topic 1005

Interpretation of British North America Act - Principle of flexibility - The Supreme Court of Canada held that the British North America Act must be interpreted in a flexible and elastic manner - See paragraphs 28 to 30.

Constitutional Law - Topic 6826

Provincial jurisdiction - Direct taxation within the province - "Within the province" - What constitutes - British North America Act, 1867, s. 92(2) - The Supreme Court of Canada held that a province may directly tax any subject matter, including persons or property, physically found within the province - See paragraphs 11 to 16.

Constitutional Law - Topic 6830

Provincial jurisdiction - Direct taxation within the province - British North America Act, 1867, s. 92(2) - Succession duties - Validity of British Columbia taxation of resident beneficiaries to whom property situate outside the province passed on the death of a person domiciled outside the province - Section 6A of the Succession Duty Act, R.S.P.C. 1960, c. 372, subjected to succession duty resident beneficiaries who received property situated outside the province - The Supreme Court of Canada held that s. 6A was intra vires of the Province of British Columbia as a valid direct tax within the province - The Supreme Court of Canada held that the tax was imposed upon resident beneficiaries in personam and was not a tax on property outside the province.

Estate and Inheritance Taxes - Topic 110

Statutory interpretation - Identification of subject matter being taxed - The Supreme Court of Canada held that the correct approach to the identification of the subject matter of a taxing statute is to examine the act as a whole and not merely the charging section - See paragraphs 47 to 62.

Cases Noticed:

City of Halifax v. Fairbanks Estate, [1928] A.C. 117, appld. [para. 10].

Canadian Industrial Gas & Oil Ltd. v. The Government of Saskatchewan, [1978] 2 S.C.R. 545, appld. [para. 10].

Rex. v. Cotton (1912), 45 S.C.R. 469, appld. [para. 10].

Bank of Toronto v. Lambe (1887), 12 App. Cas. 575, appld. [para. 12].

Superintendent of Income Tax and Attorney-General for Alberta, [1942] S.C.R. 435, appld. [para. 13].

C.P.R. v. Provincial Treasurer of Manitoba, [1953] 4 D.L.R. 233 (Man. Q.B.), appld. [para. 14].

Alworth v. Minister of Finance, [1978] 1 S.C.R. 447; 15 N.R. 405, appld. [para. 14].

Alleyn-Sharples v. Barthe, [1922] 1 A.C. 215, dist. [para. 25].

Provincial Treasurer of Alberta v. Kerr, [1933] A.C. 710, dist. [para. 25].

Attorney General for British Columbia v. Kingcome Navigation Co., [1934] A.C. 45, consd. [para. 27].

Atlantic Smoke Shops Ltd. v. Conlon, [1943] A.C. 550, consd. [para. 27].

Edwards v. Attorney General of Canada, [1930] A.C. 124, appld. [para. 29].

Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310, consd. [para. 29].

Attorney General for British Columbia v. Attorney-General for Canada, [1937] A.C. 391, 403, consd. [para. 29].

Martin Service Station v. M.N.R., [1977] 2 S.C.R. 996; 1 N.R. 464, consd. [para. 29].

Harding v. Commissioner of Stamps for Queenland, [1898] A.C. 769, consd. [para. 30].

The King v. Lovitt, [1912] A.C. 212, consd. [para. 30].

Winans v. Attorney General, [1910] A.C. 27, consd. [para. 30].

Toronto General Trusts v. The King, [1919] A.C. 679, consd. [para. 30].

Royal Trust Company v. Minister of Finance of the Province of British Columbia, [1922] 1 A.C. 87, consd. [para. 30].

Statutes Noticed:

Succession Duty Act, R.S.P.C. 1960, c. 372, sect. 6(1), sect. 6A, sect. 9(1) [para. 44].

Authors and Works Noticed:

Advisory Committee on Succession Duties (Langford Committee) (1973), p. 48 [para. 23].

Anderson, J.R., Succession Duties - Double Taxation (1937), 15 Can. Bar Rev. 620, 624 [para. 19].

Bale, Succession Duties (1977), 55 Can. Bar Rev. 1; 56 Can. Bar Rev. 652; 4 E.T.R. 83 [para. 22].

Falconbridge, John, Administration and Succession in the Conflict of Laws (1934), 12 Can. Bar Rev. 67, 72 [para. 20].

Goodman, Succession Duties (1972), Canadian Tax Papers [para. 22].

LaForest, Succession Duties (1967), Canadian Tax Papers 86, 119 [para. 22].

Langford Committee (Advisory Committee on Succession Duties) (1973), p. 48 [para. 23].

Laskin, Succession Duties (1941), 19 Can. Bar Rev. 617, 618, 625 [para. 22].

MacDonald, Vincent C., Taxation Powers in Canada (1941), 19 Can. Bar Rev. 75 [para. 21].

Manning, Succession Duties, [1926] 3 D.L.R. 449, 452 [para. 18].

Ontario Committee on Taxation (Smith Report) (1967), vol. 3, p. 148 [para. 22].

Scott, Frank (1934), 12 Can. Bar Rev. 303, 305 [para. 27].

Smith Report (Ontario Committee on Taxation) (1967), vol. 3. p. 148 [para. 22].

Counsel:

H.L. Henderson, E.R.A. Edwards and Marilyn C. Nash, for the appellant;

R.B. Hutchison, for the respondents;

Derek H. Aylen, Q.C., and James Mabbutt, for the intervenant Attorney General of Canada;

Henri Brun and Jean-Francois Jobin, for the intervenant Attorney General of Quebec;

J.W. Kavanagh, Q.C., and Mollie Gallager, for the intervenant Attorney General of Nova Scotia;

Dirk Blevins, for intervenant Attorney General of Manitoba.

This case was heard on November 29, 1979, at Ottawa, Ontario, before MARTLAND, RITCHIE, PIGEON, DICKSON, BEETZ, ESTEY and CHOUINARD, JJ., of the Supreme Court of Canada.

On June 27, 1980, DICKSON, J., delivered the following judgment for the Supreme Court of Canada: