A-292-81
Toronto Real Estate Board (Applicant)
v.
Minister of National Revenue (Respondent)
Court of Appeal, Heald, Urie JJ. and Kelly D.J.
Toronto, February 25 and March 15, 1982.
Judicial review — Applications to review — Federal sales
tax — Exemptions — Minister deciding publication not
exempt from tax, not being newspaper — Publication "Real
Estate News" aimed primarily at advertising properties and
promoting services of applicant's members — Whether "news-
paper" within ordinary meaning of word pursuant to decision
of Supreme Court of Canada in Montreal Stock Exchange
case — Minister erred in applying additional criteria to defi
nition — Publication "newspaper", i.e. 'paper printed and
distributed at stated intervals . to convey news . .. and other
matters of public interest" — Publication containing adver
tisements and "information" of interest to property owners,
from various sources — Meaning of term not limited because
publication aimed at particular group for benefit of another
Application allowed — Excise Tax Act, R.C.S. 1970, c. E-13,
ss. 27(1), 29(1), Schedule III, Part III, s. 3 — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Application to set aside the decision of the respondent that
the applicant's publication Real Estate News is not a newspa
per, hence not exempt from federal sales tax under section 3,
Schedule III, Part III of the Excise Tax Act. The respondent
ruled, in the light of the Montreal Stock Exchange and Bickle
cases, that the publication was an advertisement circular aimed
primarily at advertising properties listed on the Multiple List
ing Service and at promoting the services and goodwill of Board
members. The applicant argues that the Minister was in breach
of a rule of natural justice, that he exceeded his jurisdiction,
that his decision was unreasonable given the evidence and that
the word "newspaper" should be given its ordinary meaning
and, in particular, the meaning given to it by the Supreme
Court of Canada in the Montreal Stock Exchange case.
Held, the application is allowed on the last two grounds
urged. The Minister misdirected himself by applying additional
criteria with respect to the meaning of "newspaper" for which
neither the Montreal Stock Exchange case nor the Bickle case
are authority. The publication in question meets the require
ments of the definition of "newspaper" given its ordinary
meaning, i.e. "a paper printed and distributed at stated inter
vals ... to convey news ... and other matters of public inter
est". The fact that the publication is aimed at a particular
segment of the public for the benefit of another segment does
not limit the meaning of the term. The publication contains not
only advertisements in respect of properties listed on the Multi
ple Listing Service, but also "information" of interest to prop
erty owners, from various sources falling well within the phrase
"other matters of public interest". The publications in the
Bickle case of 1979 were held to be "newspapers" although
they contained advertisements almost exclusively. They differed
from mere "advertising circulars" known colloquially as "fly-
ers" in that they contained "information (news) as to what is
available in particular fields of commerce".
E.W. Bickle Ltd. v. Minister of National Revenue [1979]
2 F.C. 448, applied. E.W. Bickle Ltd. v. Minister of
National Revenue [1981] 2 F.C. 613; [1981] C.T.C. 25,
applied. R. v. Montreal Stock Exchange [1935] S.C.R.
614, followed.
APPLICATION for judicial review.
COUNSEL:
John G. Parkinson, Q.C. and David C. Poyn-
ton for applicant.
Graham R. Garton for respondent.
SOLICITORS:
Gardiner, Roberts, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: The applicant in this section 28
application seeks to set aside the decision of the
respondent that the applicant's publication Real
Estate News is not a "newspaper" within the
meaning of section 3 of Part III to Schedule III of
the Excise Tax Act, R.S.C. 1970, c. E-13, and
thus is not exempt from sales tax.
The relevant facts, which are undisputed, are set
out in the applicant's memorandum of points to be
argued as follows:
1. The Applicant, the Toronto Real Estate Board, is a corpora
tion without share capital, the members of which are real estate
brokers and salespersons in Metropolitan Toronto. The Appli
cant has 10,748 members of which 2,161 are brokers and 8,587
are salespersons.
2. Commencing in 1971, the Applicant began publication of a
newspaper called "Toronto Real Estate". The name of the
newspaper was subsequently changed to "Real Estate News" in
October, 1979.
3. On 20 March, 1973, a ruling was received from the Depart
ment of National Revenue regarding the Applicant's publica
tion, which ruling stated:
The sample submitted indicates that the publication is regu
larly issued at stated intervals with a masthead showing the
name of the publication and the date, month and year of
issue.
The "Toronto Real Estate" containing news items and
articles of general interest to the recipients, qualifies for
exemption from sales tax as a "newspaper" under Part III(3)
of Schedule III of the Excise Tax Act.
A copy of this ruling should be forwarded to Webb Offset
Publications Ltd. to claim exemption from the sales tax.
4. On October 11, 1978, a further communication was received
by the Applicant from Revenue Canada. That letter stated:
We have conducted a review of your publication, "Toronto
Real Estate" in recent months, regarding the classification of
this printed matter for purposes of the Excise Tax Act.
We have found, from the issues examined, that this publica
tion does not now qualify for exemption from sales tax as a
"newspaper" for purposes of section 3 of Part III of Schedule
III of the Excise Tax Act, as they contain insufficient
editorial content in comparison to the advertisements.
In view of the above, the previous ruling exempting this
publication dated March 20, 1973 ... is hereby revoked as of
November 1, 1978.
5. Submissions were then made and a written Brief forwarded
to the then Minister of National Revenue, Anthony C. Abbot.
However, the ruling of 11 October, 1978 of taxability was
confirmed by the Minister by letters dated 2 and 16 October,
1979.
6. The Applicant commenced proceedings in the Federal Court
of Canada, Appeal Division to set aside the decision of the
Minister on 25 October, 1979.
7. By Judgment dated the 7th day of November, 1980, the
Federal Court of Appeal gave the following judgment in the
case of The Toronto Real Estate Board v. The Minister of
National Revenue (Court File A-622-79):
The within Section 28 application is allowed. The decision of
the Respondent Minister herein that the publication "Toron-
to Real Estate News" is subject to tax under the Excise Tax
Act is set aside and the matter is referred back to the
Respondent Minister for a determination on the basis of the
application of the relevant statute and jurisprudence to the
facts of the case.
8. A further written Brief was forwarded to the Respondent
under cover of letter dated 24 February, 1981 and, on 10
March, 1981, representatives of the Applicant and its counsel
met with the Respondent at his office in Ottawa.
9. During the course of discussing the Brief with the Respond
ent, representatives of the Applicant orally advised the
Respondent that Real Estate News was not distributed to
homes by the Applicant but rather by way of demand pick-up
by the public from approximately 1,550 locations in and around
Toronto, comprising approximately 790 newspaper boxes, 360
stands (in malls and other enclosed areas) and 400 other
locations in the offices of broker members of the Applicant.
10. The Respondent was also shown a photograph as evidence
of the status of the Respondent's [sic] publication as a
newspaper.
I1. On 19 May, 1981, the solicitors for the Applicant received
a letter from the Respondent whereby the Respondent gave his
decision (the "Decision") that the Applicant's publication was
not a "newspaper" for the purposes of the Excise Tax Act, such
that the publication is subject to federal sales tax. The
Respondent stated, inter alia:
I have reviewed the Brief and the publication in light of the
judgments rendered by the Supreme Court of Canada in
"The King vs the Montreal Stock Exchange" and the Feder
al Court of Appeal in "E.W. Bickle Ltd. and the Minister of
National Revenue", and I have concluded that the publica
tion "Real Estate News" not to be a newspaper for purposes
of the Excise Tax Act.
Rather, I am of the opinion that this publication is an
advertisement circular in that it is aimed primarily at adver
tising properties listed in the Multiple Listing Service, a
commercial service provided by the Board, and promoting
the services and goodwill of members of the Board, and, as
such, is subject to federal sales tax.
It is from the last-mentioned decision that this
section 28 application is brought.
Subsection 27 (1) of the Excise Tax Act imposes
a consumption or sales tax on all goods produced
or manufactured in Canada. Subsection 29(1) pro
vides that the tax imposed by section 27 does not
apply to the sale or importation of the articles set
forth in Schedule III. Part III of that Schedule
provided inter alia, as at the relevant date, viz:
November 1, 1978 that:
3. College and school annuals; magazines and literary papers
unbound regularly issued at stated intervals not less frequently
than four times yearly; newspapers; sheet music; materials for
use exclusively in the manufacture thereof.
The Minister shall be the sole judge as to whether any
printed material comes within any of the classes mentioned in
sections 1, 3, 5 and 8 of this Part.
The applicant submitted that the Minister's
decision that the applicant's publication is subject
to tax, not being a "newspaper", ought to be set
aside on the following grounds:
(1) That in reaching his decision the Minister
had been in breach of a rule of natural justice in
that he failed to apprise the applicant of all of
the evidence and arguments upon which he
intended to base his decision;
(2) That the Minister acted beyond his jurisdic
tion in that the March 20, 1973 decision was a
final binding determination by him of the tax
status of the applicant's publication which,
absent either a change in the facts, the law or
statutory authorization, he could not reconsider;
(3) That the respondent's decision was unrea
sonable given the totality of the evidence; and
(4) That, in deciding whether or not a publica
tion is a "newspaper" for the purpose of the
Excise Tax Act, the word "newspaper" is to be
accorded the ordinary meaning of that word
and, in particular, the meaning given it in The
King v. Montreal Stock Exchange.'
I have not been persuaded that either of the first
two grounds of attack has sufficient merit to war
rant a finding that there has been reviewable error.
However, I have concluded that the fourth ground,
amplified as it was during the course of argument,
does disclose that the Minister erred in applying
the test laid down in the Montreal Stock Ex
change case (supra) with the result that his deci
sion as to the nature of the publication derived
from the totality of the evidence may not have
been reasonable, as alleged in ground three.
In E.W. Bickle Ltd. v. M.N.R. 2 this Court held
that the Minister's decision under Part III of
Schedule III of the Excise Tax Act was reviewable
pursuant to section 28 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10. The King v.
Montreal Stock Exchange, supra, dealt with the
scope of the word "newspapers" in Schedule III.
The publications in issue there were daily reports
showing the transactions on the Exchange during
its morning and afternoon sessions as well as a
weekly "comparative review of transactions"
thereon. From time to time they contained notices
of dividends, annual meetings and the loss of cer
tificates in connection with companies whose
securities were listed on the Exchange. Members
of the Exchange were the primary users of the
sheets although others were among the subscrib
ers. At pages 616-617 of the report, Kerwin J., as
he then was, had this to say:
' [1935] S.C.R. 614.
2 [1979] 2 F.C. 448 at p. 455.
The term "newspapers" is not defined in the Act and while
we were referred to various definitions in other Dominion and
provincial statutes, the statement of the present Chief Justice,
in delivering the judgment of the Court in Milne-Bingham
Printing Co. Limited v. The King ([1930] S.C.R. 282, at 283)
is peculiarly appropriate.
The usage of that word in other statutes may be looked at, if
the other statute happens to be in pari materia, but it is
altogether a fallacy to suppose that because two statutes are
in pari materia, a definition in one can be bodily transferred
to the other.* * *
In the instant case, the word under discussion is not defined in
any statute in pari materia and it remains only to give to it the
ordinary meaning that it usually bears. Webster's New Interna
tional Dictionary may be taken as giving a definition of "news-
paper" which is expressed in corresponding terms in other well
recognized dictionaries:
a paper printed and distributed at stated intervals * * * to
convey news * * * and other matters of public interest.
The sheets in question meet these requirements; the mere fact
that any particular publication is meant to interest only a
section of the public does not limit the meaning of the expres
sion as a reference to religious or fraternal publications will at
once make clear. The sheets in question contain not merely a
record of transactions on the Exchange or curb market but also
information to those desiring it as to such transactions; and the
other items from time to time included give "tidings, new
information, fresh events reported," (vide Concise Oxford Dic
tionary defining "news").
In a second E.W. Bickle Ltd. v. M.N.R. case'
this Court held that the Minister's task under Part
III of Schedule III to the Act is to formulate an
opinion. Facts must be established to enable the
formulation of the opinion. In that case it was held
that there was evidence in the record upon which
the Minister could properly have reached the con
clusion that the publications there in issue were
not "newspapers" within the meaning of the
exempting provisions of the Act and as that term
was interpreted in the Montreal Stock Exchange
case, (supra) with the result that the section 28
application was dismissed.
While an excerpt from the Minister's letter to
the applicant's solicitors, apparently dated May
14, 1981, has already been included earlier herein,
for convenience sake I will repeat that excerpt.
3 [1981] 2 F.C. 613 at pp. 617-619; [1981] C.T.C. 25 at
p. 29.
I have reviewed the Brief and the publication in light of the
judgments rendered by the Supreme Court of Canada in "The
King vs the Montreal Stock Exchange" and the Federal Court
of Appeal in "E.W. Bickle Ltd. and the Minister of National
Revenue", and I have concluded that the publication "Real
Estate News" not to be a newspaper for purposes of the Excise
Tax Act.
Rather, I am of the opinion that this publication is an adver
tisement circular in that it is aimed primarily at advertising
properties listed in the Multiple Listing Service, a commercial
service provided by the Board, and promoting the services and
goodwill of members of the Board, and, as such, is subject to
federal sales tax.
Clearly the first paragraph above quoted indi
cates that the respondent was cognizant of both
the Montreal Stock Exchange and the E.W.
Bickle cases, supra. Had he left it at that and
applied the test enunciated therein, counsel for the
applicant conceded that he would have had dif
ficulty in attacking the decision. However, the
second quoted paragraph makes it clear, in my
opinion, that the Minister expanded the test of
what is a "newspaper", formulated in the Mon-
treal Stock Exchange case. It appears that he
considered that because, in his view, the publica
tion was "aimed primarily at advertising properties
listed in the Multiple Listing Service, ... and
promoting the services and goodwill of members of
the Board ..." it could not be a "newspaper". The
employment of such criteria is clearly contrary, in
my view, to the ratio decidendi of the judgment in
the Montreal Stock Exchange case.
To paraphrase the words of Kerwin J. in that
case, the publication in issue here meets the
requirement of the definition of "newspaper" given
its ordinary meaning. The fact that it is aimed at a
particular segment of the public for the benefit of
another segment does not limit the meaning of the
term. The publication contains not only advertise
ments in respect of properties listed in the Multiple
Listing Service but also "information" of interest
to property owners, from various sources falling
well within the phrase "other matters of public
interest."
For these reasons I have concluded that the
respondent, in reaching his decision, did not con
fine himself to the test enunciated by Mr. Justice
Kerwin and that, therefore, the decision must be
set aside. In reaching that conclusion I have not
overlooked the submission of counsel for the
respondent that the opinion formulated by the
Minister accorded with the view of this Court that
a "newspaper" consisted of something more than a
mere "advertising circular" as expressed by Jack-
ett C.J. in the first E.W. Bickle case, supra, where
he said at page 456:
As I understand them, they are not mere "advertising circu
lars" in the sense of advertising by the person who distributes
them. On the contrary they contain information (news) as to
what is available in particular fields of commerce even though
such information is conveyed by way of advertising by third
parties who have things to sell.
I do not think that Chief Justice Jackett in the
above excerpt from his judgment intended in any
way to vary the ambit of the definition of "news-
paper" given by Mr. Justice Kerwin. As I interpret
his comment he distinguished the publications
which were before the Court in the Bickle case
from the "advertising circulars", colloquially
described as "flyers", which merchants, suppliers
of services and others distribute to households by
hand or perhaps even as newspaper inserts to
promote the sale of their goods and services. Those
"advertising circulars", in Jackett C.J.'s view,
differ from publications which "contain informa
tion (news) as to what is available in particular
fields of commerce ...." In my opinion the
respondent failed to apply only the appropriate
definition to the facts of the case. He misdirected
himself by applying additional criteria for which
neither the Montreal Stock Exchange nor the
E.W. Bickle cases are authority.
Accordingly, the section 28 application should
be allowed. The decision referred to therein should
be set aside and the matter should be referred back
for reconsideration on the basis of the application
of the statute as interpreted in the relevant juris
prudence, to the facts.
HEALD J.: I agree.
KELLY D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.