Federated Co-Operatives Ltd. v. Canada
T-185-94
Dubé J.
25/6/99
12 pp.
Application by Crown for summary judgment dismissing plaintiff's action for refund of payment made to defendant under Excise Tax Act between June 1985 and June 1986-Minister's assessment erroneous as based on incorrect wording of Act, s. 27(1.1)(c): MacMillan Bloedel Ltd. v. Minister of National Revenue (1990), 38 F.T.R. 58 (F.C.T.D.) (decision dated 19/10/90)-However, plaintiff herein filed application for refund in December 1992, more than two years after that decision and some six years after payments-Original claim for $30,000,000-Application for summary judgment allowed-Principles governing summary judgment summarized by Tremblay-Lamer J. in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.): essentially, whether case so doubtful it does not deserve consideration by trier of fact at future trial-Party against which summary judgment motion launched required to produce sufficient evidence to show genuine issue for trial-Proper statutory provision in seeking redress in case of moneys paid in error obviously Act, s. 68, providing for two-year limitation period after payment of monies-Act, s. 81.1(6) relating to assessment process, has no relevance to application for refund made pursuant to Act, s. 68-Plaintiff outside statutory time limit under both sections-Excise Tax Act containing complete code applicable to repayment of amounts paid in error: Act, s. 71 (except as provided in this Act or any other Act of Parliament, no right of action against Crown for recovery of monies paid to Crown that are taken into account by Crown as taxes): Michelin Tires (Canada) Ltd. v. Canada, [1998] F.C.J. No. 1753 (T.D.) (QL)-Right to obtain equitable relief (restitution based on unjust enrichment) by virtue of Federal Court Act, s. 3 not rendering Excise Tax Act, s. 71 ineffective-Sufficient evidence before Court to conclude that plaintiff's application for refund made beyond two-year limitation period as set out in Act, s. 68-Court may not extend or abridge limitation period-Act providing complete code for all rights or recovery of monies paid in error to Crown-Therefore, no genuine issue for trial-Excise Tax Act, R.S.C. 1970, c. E-13, s. 27(1.1)(c) (as enacted by S.C. 1976-77, c. 15, s. 7)-Excise Tax Act, R.S.C., 1985, c. E-15, ss. 68 (as am. by R.S.C., 1985 (1st Supp.), c. 15, s. 24; (2nd Supp.), c. 1, s. 195; c. 7, ss. 23, 24), 71 (as am. idem, c. 7, ss. 26, 34), 81.1(6) (as enacted idem, s. 38)-Federal Court Act, R.S.C., 1985, c. F-7, s. 3.