CONSTITUTIONAL LAW
Fundamental Principles
Taxation—Motion for determination of two questions of law: whether Broadcasting Licence Fee Regulations, Part II ultra vires Broadcasting Act, if fees imposed thereunder considered to be tax; whether Broadcasting Act constituting ineffective delegation of Parliament’s taxation authority if fees imposed thereunder considered to be tax—Both questions answered in affirmative—Plaintiffs contest validity of charges levied under Regulations on basis not “fees” at all as bearing no necessary relationship to cost or value of what licensee obtains from privilege of having licence; in reality charges “tax”—Crown arguing charges “fees”, not “taxes”, but even if “taxes”, authorized by Act, s. 11, therefore not improper delegation of Parliament’s taxing power—However, both questions assume charges “tax”—Real difference between “tax”, “fee”—Levy considered tax where: (1) enforceable in law; (2) imposed under authority of legislature; (3) levied by public body; (4) intended for public purpose: Eurig Estate (Re), [1998] 2 S.C.R. 565—Fee requiring nexus between quantum charged, cost of service provided: Eurig Estate (Re)—Ordinary, grammatical reading of statutory, regulatory sections in question herein disclosing power to charge “fees”, not “taxes”—Tax levy to raise revenue for general purpose, while fee levy to charge for services directly rendered; third category of levy, regulatory charge, levy to finance or constitute regulatory scheme, or ancillary or adhesive to regulatory scheme: Westbank First Nation v. British Columbia Hydro and Power Authority, [1999] 3 S.C.R. 134—For first question, if fees under Regulations, Part II considered “tax”, then Part II “fees”, as taxes, ultra vires of Broadcasting Act, s. 11—Act expressly providing for charging of fees, not taxes— Therefore not strictly necessary to answer second question as, if delegated power not including power to tax, requirements for valid delegation of taxing power not relevant—Case law (Eurig Estate; Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), [2001] 1 S.C.R. 470) making it clear any delegation of taxing power by elected legislature must be clear, specific, explicit—Even assuming regulatory provision herein intra vires statute, above criteria not met— Broadcasting Licence Fee Regulations, 1997, SOR/97-144, Part II—Broadcasting Act, S.C. 1991, c. 11, s. 11.
Canadian Assn. of Broadcasters v. Canada (T‑2277‑03, T-276-04, 2005 FC 1217, Hugessen J., order dated 9/9/05, 8 pp.)