Double N Earth Movers Ltd. v. Canada
T-698-97
Campbell J.
17/7/98
25 pp.
Appeal by way of action from Canadian International Trade Tribunal's dismissal of plaintiff's claim for fuel rebate, although agreed Minister's decision under consideration-Excise Tax Act, s. 69(6) providing fuel tax rebate shall be paid where gasoline or diesel fuel sold or imported for use in mining-Definition of "mining" in s. 69(1) including "restoration of strip-mined land to a usable condition"-Plaintiff's gravel extraction activities involving mining procedure called progressive reclamation whereby topsoil, root zone, overburden salvaged from extraction area, moved directly to adjacent reclamation sites-All three layers of soil material stripped, handled separately from each other so that they can be replaced in same sequence in order to reclaim strip-mined land-Mature pit having within its boundaries fully reclaimed strip-mined areas as well as mined-out areas undergoing various stages of restoration-Plaintiff's claim based on fact diesel powered equipment consumed fuel performing following restoration activities at several locations throughout pit being mined: stripping uppermost layer of organic topsoil, carrying, placing topsoil directly onto stripmined area previously receiving two other layers; stripping root zone subsoil, carrying, placing root zone onto stripmined area previously receiving layer of clay; stripping clay, carrying placing clay onto floor of previously mined-out area-By definition "mining" in s. 69(1) concerning activity respecting "mineral resource"-In decision under appeal, even though gravel non-mineral resource, Minister finding restoration of land strip-mined for gravel considered "mining" for purposes of fuel tax rebate-For this finding to be lawful, Minister must be conceding in definition of "mining" in s. 69(1), "restoration of strip-mined land to a usable condition" to be read exclusive of other provisions in definition-Minister viewing process of mining as linear process involving number of sequential steps-Proceeded on basis distinct break points identified between development, processing, restoration activities-Submitting removing, hauling away overburden not part of restoration, but part of development, operation of gravel extraction process-Therefore, only last step restoration and rebate payable, in respect of fuel tax paid on fuel consumed to perform last step-Plaintiff arguing interpretation of "restoration" should be according to technical meaning-Plaintiff conducting operations within stringent regulatory regime established by Alberta legislation requiring reclamation of mined lands-Appeal allowed-S. 69 directed to specialized trade audience concerned with activities listed therein-Presumption in favour of giving ordinary meaning to terms used in section rebutted-While s. 69 federal legislation, opinions of those persons with precise expert knowledge of legal, practical context in which activity taking place given weight-As defined in evidence of expert in restoration of strip mined land, "restoration" beginning with picking up of topsoil-Minister conceding "restoration of strip-mined land to a usable condition" in definition of "mining" in s. 69(1) to be read exclusive of other provisions of definition-As result, plaintiff's activity not depending on exclusions of "exploration" or "development" listed in definition of "mining" in s. 69(1), but relating only to whether activity within definition of "restoration"-As it does, no conflict to consider-Plaintiff's activities which are subject of appeal constituting "restoration of strip-mined land to usable condition"; entitled to federal fuel tax rebate with respect to "restoration" activities-Excise Tax Act, R.S.C., 1985, c. E-15, s. 69(1) (as am. by R.S.C., 1985 (2nd Supp.), c. 7, s. 34), "mining", (6) (as am. idem; c. 42, s. 9; R.S.C., 1985 (3rd Supp.), c. 42, s. 1).