ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit

Nunavut Court of Appeal Cour d'appel du Nunavut

Citation: Nunavut v Agnico-Eagle Mines Ltd., 2016 NUCA 02

Date: 2016-03-03

Docket: 08-14-009-CAC Registry: Iqaluit

Between:

Government of Nunavut as Represented by the Attorney General of Nunavut and the Minister of Finance

Appellant (Respondent)

-and-

Agnico-Eagle Mines Ltd. Respondent (Applicant)

_______________________________________________________

The Court:

The Honourable Mr. Justice Frans Slatter The Honourable Madam Justice Shannon Smallwood

The Honourable Madam Justice Frederica Schutz

Memorandum of Judgment

Appeal from the Judgment by

The Honourable Mr. Justice A. Mahar Dated the 30th day of October, 2014

(2014 NUCJ 30, Docket: 08-13-523-CVA)

Table of Contents MEMORANDUM OF JUDGMENT ...................................................................................... 3

I. OVERVIEW ................................................................................................................................ 3

II. BACKGROUND FACTS AND RELEVANT REGULATIONS ............................................ 3

III. REASONS OF THE TRIAL COURT .................................................................................... 6

A. The proper interpretation of ss 8(4) and (4.1) of the Regulations ............................... 6

B. Whether the Minister correctly denied all of Agnico’s claimed rebates ...................... 8

C. Whether the doctrine of promissory estoppel applied to lawfully preclude the Government from relying upon the deadline of March 31 found in s 8(4.1) to deny part of Agnico’s claimed rebates .................................................................................................... 8

V. ANALYSIS .............................................................................................................................. 10

A. Issues on appeal and standard of review ...................................................................... 10

B. The limits of promissory estoppel in the public law context ........................................ 11

C. Promissory estoppel is not available in this case ........................................................ 14

(i). Agnico did not rely on the 2012 Guidelines .................................................................. 15

(ii). Robitaille and Mount Sinai are complete answers ..................................................... 15

(iii). The rebate form was not part of the Regulations ...................................................... 17

VI. CONCLUSION ...................................................................................................................... 18

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MEMORANDUM OF JUDGMENT

(NOTE: This document may have been edited for publication)

I. OVERVIEW [1] This appeal arises in the public law context and concerns the interplay

between the doctrine of promissory estoppel and express statutory provisions.

II. BACKGROUND FACTS AND RELEVANT REGULATIONS

[2] In 2006, the Government implemented a Petroleum Product Tax Rebate Program and passed Tax Rebate Regulations, Nu Reg 012-2006, which permit certain entities to apply for a rebate of territorial taxes paid on petroleum products (fuel) used in the course of qualified activities.

[3] Agnico-Eagle Mines Ltd., is a mineral extraction corporation operating within the territorial boundaries of Nunavut that has entered into a development partnership agreement with the Government. Under s 5 of the Regulations, because Agnico is a “corporation incorporated or registered under the Business Corporations Act that engages in a particular mine development, mine extraction or mine reclamation,” Agnico

is eligible to apply for a tax rebate on eligible petroleum products used directly for the purposes of that mine development, mine extraction or mine reclamation if the corporation has entered into and is in compliance with a development partnership agreement with the Government of Nunavut.

At all material times Agnico was the only taxpayer captured by s 5.

[4] Before 2012, s 8(4) of the Regulations required that all tax rebate applications be submitted within one year from the date of purchase of eligible petroleum products. In May of 2012, the Regulations were amended to add s 8(4.1), which contained an additional application deadline specific to s 5 companies that required rebate applications to be submitted by March 31, in respect of “eligible petroleum products purchased in or brought into Nunavut in the preceding year.”

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[5] The filing deadline set out in s 8(4.1) was lawfully published in accordance with the Statutory Instruments Act, R.S.N.W.T. 1988, c S-13, s 9(1) (Nunavut), which stipulates that “[s]ubject to any regulations made under paragraph 19(a) or 19(b), every statutory instrument shall be published in the Nunavut Gazette within three months after being registered under section 5.” The Petroleum Product Tax Act; Tax Rebate Regulations, amendment, including s 8(4.1), was published in the Nunavut Gazette on May 25, 2012 (Nunavut Gazette, 2012-05-25, Part II, Vol. 14, No. 5, pages 17-18), and posted on the Government website on October 19, 2012.

[6] The Government did not update the Rebate Program Guidelines [Guidelines] to reflect the additional submission deadline date applicable to s 5 companies, despite having updated the Guidelines in the same month that s 8(4.1) of the Regulations was added to the rebate requirements. And, the rebate claim form did not include the additional deadline for s 5 corporations; rather, it said only that no rebate could be claimed for fuel purchased over one year before the application, thus mirroring and reflecting only the requirement found in s 8(4).

[7] The Finance Ministry did not advise Agnico of the changed deadline, even though it was the only taxpayer affected by the addition of s 8(4.1) to the Regulations.

[8] On May 23, 2013, Agnico submitted two rebate applications totalling $1.96 million for fuel purchased in June, July, and October of 2012. Application 1 claimed roughly $1.46 million in tax rebates relating to fuel purchased in June and July of 2012, and delivered to Nunavut in July and August of 2012. Agnico used roughly 40% of this fuel for qualified purposes within the 2012 calendar year. The remainder was consumed between January and mid-May of 2013. Application 2 claimed slightly more than $494,576 in tax rebates for fuel purchased and delivered to Nunavut in October 2012. This fuel was consumed for qualified purposes in the spring of 2013. Combined, the two applications represented Agnico’s purchase of over 63.4 million litres of fuel.

[9] On July 12, 2013, the Government’s Minister denied all tax rebates claimed because Agnico had failed to submit the rebate claims no later than the March 31, 2013, deadline contained in s 8(4.1) of the Regulations.

[10] Agnico sought judicial review of the Minister’s disallowance decision and the hearing judge overturned the Minister’s disallowance (Agnico Eagle v GN, 2014 NUCJ 30, 2014 Nu J No 29 (QL) [Agnico]).

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[11] The relevant sections of the Tax Rebate Regulations, Nu Reg 012-2006 are:

1(1) In these regulations, “eligible petroleum products” means petroleum products used in Nunavut in qualifying equipment and machinery; … “qualifying equipment and machinery” means any equipment or machinery that is used in harvesting activities, mine development, mine extraction, mine reclamation or mineral exploration, including the following equipment or machinery … 5. A corporation incorporated or registered under the Business Corporations Act that engages in a particular mine development, mine extraction or mine reclamation is eligible to apply for a tax rebate on eligible petroleum products used directly for the purposes of that mine development, mine extraction or mine reclamation if the corporation has entered into and is in compliance with a development partnership agreement with the Government of Nunavut. …

8. (1) An application for a tax rebate must be completed in the form approved by the Minister and must include receipts for petroleum products purchased in or brought into Nunavut and evidence showing that they were eligible petroleum products. (2) An application made by a person referred to in section 4 must also include the following:

(a) a copy of the licence to prospect; (b) documents, records or other evidence showing that the applicant

engaged in mineral exploration activities during the period; (c) documents, records or other evidence showing that the petroleum

products were used solely in qualifying equipment and machinery and directly in mineral exploration.

(3) An application made by a person referred to in section 5 must also include the following:

(a) a copy of the development partnership agreement; (b) a copy of the mining lease; (c) documents, records or other evidence showing that the applicant

engaged in mine development, mine extraction or mine reclamation activities during the period;

(d) documents, records or other evidence showing that the petroleum products were used solely in qualifying equipment and machinery and directly in mine development, mine extraction or mine reclamation.

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(4) An application for a tax rebate must be submitted within one year after the petroleum products were purchased in or brought into Nunavut, and may be submitted every six months. (4.1) Despite subsection (4), an application made by a person referred to in section 5 must be submitted on or before March 31 in respect of eligible petroleum products purchased in or brought into Nunavut in the preceding year.

[12] In quashing the Minister’s disallowance of Agnico’s claimed rebates, the hearing judge addressed three issues: the proper interpretation of ss 8(4) and (4.1) of the Regulations; whether the Minister correctly denied all of Agnico’s claimed rebates; and whether the doctrine of promissory estoppel applied to lawfully preclude the Government from relying upon the deadline of March 31 found in s 8(4.1) to deny part of Agnico’s claimed rebates.

III. REASONS OF THE TRIAL COURT

A. The proper interpretation of ss 8(4) and (4.1) of the Regulations

[13] Before the hearing judge, the Government asserted that s 8(4.1) had repealed s 8(4) as it applied to s 5 companies, unsuccessfully arguing that s 8(4.1) required s 5 companies to: (1) purchase and use fuel for eligible purposes in the same calendar year; and (2) submit applications by March 31 of the following year in order to be eligible for a rebate (Agnico at para 51). Applying the Government’s interpretation of s 8(4.1), the portion of petroleum purchased and put to qualified use in 2012 was eligible for a rebate only if Agnico submitted its application by March 31, 2013. Agnico’s failure to file its rebate claim by March 31, 2013, required the Minister to disallow this portion of the claimed rebate. As for the remaining two-thirds of fuel purchased in 2012, the Government contended that Agnico was not entitled to any rebate because the eligible petroleum products were consumed in the following calendar year and thus, were not ‘eligible’ at the time the rebate application was due.

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[14] The hearing judge rejected the Government’s interpretation because it created an absurd and undesirable requirement for s 5 companies to purchase and consume products in the same calendar year in order to be eligible for a tax rebate (Agnico at para 51). Since the “seasonal realities” of Nunavut dictate that fuel delivery can only take place by boat between June and October (Agnico at para 20), s 8(4) – which permits rebate application submissions within one year of the date of purchase – accounted for the short shipping season by permitting companies to purchase fuel near the end of one calendar year for use at the start of the next and still qualify for rebates. To read s 8(4.1) as eclipsing s 8(4) for s 5 companies would defy the simple logic of reality and “make otherwise claimable rebates impossible to claim because of the short shipping season in Nunavut” (Agnico at para 59).

[15] Instead, the hearing judge read ss 8(4) and (4.1) harmoniously, finding that s 5 companies such as Agnico are subject to both deadlines (Agnico at paras 63, 67). If a s 5 company purchases and uses fuel in the same calendar year, s 8(4.1) governs and the company must submit a rebate application for that fuel by March 31 of the following year. If, on the other hand, a s 5 company purchases fuel in one year and puts it to an eligible use in the following year, s 8(4) applies and a rebate can be claimed provided the requirements for a rebate claim are submitted within one year from the date of purchase. Under this harmonious reading of the two sections, s 5 companies must claim a tax rebate for all fuel used for an eligible defined purpose no later than the earliest of one year from the date of its purchase or import or March 31st of the year following the calendar year in which it was used (Agnico at para 62).

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B. Whether the Minister correctly denied all of Agnico’s claimed rebates [16] Given the Minister’s misinterpretation of ss 8(4) and (4.1) of the Regulations,

it followed that Agnico was unlawfully denied some portion of its claimed rebates. Agnico ought to have been rebated for the fuel purchased in 2012, and put to eligible use in the spring of 2013, because the rebate applications were submitted within a year of purchase, compliant with s 8(4) (Agnico at para 64). Since this portion of the fuel was purchased and consumed in different calendar years, s 8(4.1) did not apply and Agnico was not bound by the added March 31 deadline (Agnico at para 64). But, the fuel purchased and consumed in 2012, fell under the new deadline requirement of s 8(4.1). Accordingly, since Agnico missed the mandated March 31, 2013, application deadline, the hearing judge held at para 65:

The only fuel they could not claim a rebate for under the new deadline of March 31, 2013, is that portion of eligible petroleum products referenced in Application 1 which were consumed before December 31, 2012, as these clearly fall into the previous calendar year, which is also the year in which they were purchased. The amount of fuel subject to the March 31 missed deadline is 19,707,555 litres.

C. Whether the doctrine of promissory estoppel applied to lawfully preclude the Government from relying upon the deadline of March 31 found in s 8(4.1) to deny part of Agnico’s claimed rebates

[17] Despite Agnico admittedly missing the regulated deadline of March 31 found in s 8(4.1), the hearing judge decided that the doctrine of promissory estoppel came to Agnico’s rescue and its application precluded the Minister from relying upon the otherwise perfectly lawful and fully promulgated deadline found in s 8(4.1). He justified the application of promissory estoppel on three discrete bases.

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[18] First, he distinguished several authorities standing for the proposition that promissory estoppel does not apply where the induced error or the public official’s representation is the result of an incorrect interpretation of a statute, as opposed to a discretionary conferral of rights or entitlements (Agnico at paras 73-78). The hearing judge held that the issue before him was not the correct interpretation of the applicable Regulations. Rather, confronting him was a different issue that demanded judicial review and intervention; that is, what he viewed as the unfairness of the Government Minister’s disallowance of a rebate for tax paid on 19,707,555 litres of fuel by sheltering behind the statutory language of s 8(4.1), characterizing the Government’s “lack of reasonable steps to inform” as “essentially taxation by ambush” (Agnico at para 79).

[19] Second, Agnico was the only company under s 5 that was legally affected by the March 31 deadline in s 8(4.1), and Agnico had an active relationship with the Government through the development partnership agreement. The hearing judge found that “[i]f it was too much trouble to update the official Government of Nunavut Guidelines or the rebate claim forms, it would surely not have placed too great a burden on the Government of Nunavut for someone to send an email” (Agnico at para 80).

[20] Third, despite very similar facts, he distinguished Gemini Biochemical Research Ltd v R, [1997] 3 CTC 2664, [1996] TCJ No 1780 [Gemini]. In Gemini, the tax court upheld the Minister’s decision to deny deductible expenses to a taxpayer who missed the statutory filing deadline due to reliance on old Canada Revenue Agency [CRA] Guidelines that did not reflect the present deadline.

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[21] The hearing judge found that

[i]f the Government is going to go so far as to create guidelines and forms to assist taxpayers in complying with their obligations, then those guidelines and forms should be kept up to date. People can be expected to rely on them, and they should not be encouraged to do so to their detriment (Agnico at para 82).

Further, “[g]iven the dramatic change that has occurred in the distribution of information in the nearly 20 years since the Court’s decision in Gemini, . . .” and “[t]he most significant change since 1996 is the advent of the Internet and its impact on communication,” he decided that “[i]t is not unreasonable to expect that official information provided by the Government of Nunavut on important matters such as filing deadlines for taxation be kept up to date online” (Agnico at para 82). He further found that “[t]he obligation of the Government to keep the taxpayer informed was particularly stark in this case; the change to the deadline affected only one taxpayer, the impact was significant, the relationship between the taxpayer and the Government was ongoing, and the effort required to inform the taxpayer was minimal” (Agnico at para 83). And, even if he was wrong about the obligation of the Government to keep the taxpayer informed in this case, “[t]he failure to update the Guidelines was unreasonable” (Agnico at para 84).

[22] The hearing judge decided that, although the doctrine of promissory estoppel will be a “rare and unusual remedy in tax cases…”, in this particular case, on these unusual facts, it is made out. The combined effect of the misguiding Guidelines, the less than helpful forms, and a reasonable reliance on the ongoing relationship between Agnico and the Government leads to what is, in effect, a ‘“promise” that the regime was continuing as it had before” (Agnico at para 85).

V. ANALYSIS A. Issues on appeal and standard of review

[23] The Government does not appeal the hearing judge’s interpretation of relevant provisions of the Regulations, and does not appeal the decision to overturn part of the Minister of Finance’s initial disallowance.

[24] The Government appeals the hearing judge’s decision only as it relates to overturning the Minister’s disallowance of a rebate subject to the March 31 missed deadline concerning 19,707,555 litres of fuel on the basis of promissory estoppel (Agnico at paras 87-89).

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[25] The Government framed the issues on appeal in this order:

1. Can the doctrine of promissory estoppel ever serve to overcome an express statutory provision? 2. If promissory estoppel can apply, then what conditions must exist in order to justify the application of the doctrine of promissory estoppel?

[26] Incorrectly enunciating a legal test, applying an incorrect standard, or failing to consider a requisite factor constitute errors of law subject to review on the correctness standard (Housen v Nikolaisen, 2002 SCC 33 at paras 27, 36, [2002] 2 SCR 235 [Housen]). The hearing judge’s articulation of the elements or criteria required to establish promissory estoppel is reviewable for correctness.

[27] Within the confines of public law, whether the doctrine of promissory estoppel can overcome an express statutory provision is a pure question of law reviewable for correctness; on this question, the hearing judge’s decision attracts no deference.

[28] Findings of fact and the application of the correct legal test to a set of facts attract the deferential standard of review, for palpable and overriding error (Housen at para 26).

[29] The application of promissory estoppel so as to avoid the application of the clear legislative requirement found in s 8(4.1) is an extricable error of pure law (see Kenora (Town) Hydro Electric Commission v Vacationland Dairy Co-operative Ltd, [1994] 1 SCR 80 at 106, 110 DLR (4th) 449 [Kenora]), wherein the Supreme Court of Canada affirmed that the availability of the relief of estoppel given the legislative context is a “matter of law.”

B. The limits of promissory estoppel in the public law context

[30] The requirements for promissory estoppel were established in Maracle v Travelers Indemnity Co of Canada, [1991] 2 SCR 50 at 57, 80 DLR (4th) 652 [Maracle]:

The party relying on the doctrine must establish that the other party has, [1] by words or conduct, [2] made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, [3] in reliance on the representation, [4] he acted on it or in some way changed his position. . . . [T]he promise must be unambiguous but could be inferred from circumstances.

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[31] Promissory estoppel may be available against a public authority in narrow circumstances (Mount Sinai Hospital Center v Québec (Minister of Health and Social Services, 2001 SCC 41 at para 40, [2001] 2 SCR 281 [Mount Sinai]). The doctrine of promissory estoppel requires proof of a “clear and unambiguous promise made to a citizen by a public authority” that the citizen relies on (Immeubles Jacques Robitaille inc v Québec (City), 2014 SCC 34 at para 19, [2014] 1 SCR 784 [Robitaille]). In addition to the requirements in Maracle, the application of promissory estoppel in the public law context requires sensitivity to the factual and legal context, the wording of the statute, the “status of the decision-maker”, and “an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped” (Mount Sinai at paras 47, 51). Further, estoppel must yield in the face of an express statutory provision and, sometimes, to overriding public interest in the relevant legislation (Mount Sinai at para 47, citing St Ann’s Island Shooting & Fishing Club Ltd v R, [1950] SCR 211 at 220, 1950 SCJ No 2).

[32] In Kenora, the sole issue before the Supreme Court of Canada was whether the Ontario utilities legislation precluded a defence of promissory estoppel against the public utility company, Kenora Hydro, which supplied power to local customers. The Town of Kenora [Town] was responsible for collecting the accounts but in error a customer was under-billed. Attempts to recover the shortfall met the defence of promissory estoppel. Kenora Hydro argued in response that its governing legislation prohibited discriminatory pricing among power customers, and estopping it from claiming the shortfall would run contrary to this statutory prohibition by permitting the under-billed customer to pay less for its power. Furthermore, it would cause the Town to violate its positive statutory duty to ensure no customer is given preferential power rates. The Court affirmed that the doctrine of estoppel cannot apply where it would result in a public official acting in direct contravention of a statutory provision, or permit a party to escape its statutory obligation (Kenora at 108). A majority found that, although the legislation required the Town to prevent “deliberate unauthorized discrimination among power customers”, the provisions were not “directed against simple negligent mistakes” that result in some customers receiving power on better terms (Kenora at 111). Thus, there was no conflict between the constraining legislation and applying estoppel to prevent the Town from reclaiming the shortfall resulting from negligent accounting (Kenora at 112).

[33] Unlike the factual situation in Kenora, in this case the Government was not guilty of negligent accounting and was not attempting to collect a shortfall; rather, the Government was disallowing a rebate claim made too late.

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[34] The Supreme Court of Canada most recently addressed the doctrine of public promissory estoppel in Robitaille. A Quebec company had operated a parking lot for years despite the lot being situated in a zone where such use contravened the zoning by-law. The municipal court convicted the company of a by-law offence. On appeal, the company argued that promissory estoppel applied to preclude the municipality from enforcing the by-law, since for years it had acknowledged and acquiesced in the unlawful use. The superior court overturned the conviction; on further appeal, the Court of Appeal restored the conviction and the Supreme Court of Canada affirmed the decision of the Quebec Court of Appeal.

[35] The sole issue addressed by the Supreme Court of Canada was “the circumstances in which the doctrine of estoppel can be relied on in order to avoid penal liability” (Robitaille at para 2). The company asserted that the municipality was estopped from reneging on its implicit promise that authorized the company’s continuing contravention of the zoning by-law; in other words, the municipality could not resile from its implicit promise to exempt the company from its persistent contravention of the applicable by-law. The Supreme Court concluded that since a municipality “cannot deviate from its zoning by-laws or authorize such a deviation … it cannot be forced to do so by the means of the doctrine of estoppel” (Robitaille at para 26). The Court also held that “[e]stoppel is of no assistance to a litigant who wishes to avoid the application of a clear legislative provision” in both the penal and civil context (Robitaille at paras 4, 30).

[36] Robitaille stands for the proposition that promissory estoppel can apply against public officials, but it only applies where the “promise” made is not unlawful, and governmental officials possess actual statutory discretion or power to do what is promised (Robitaille at para 21). In obiter, the Supreme Court of Canada noted that if the municipality had injured the company in some way, perhaps more appropriate than recourse to public estoppel might have been an action in damages (Robitaille at para 38).

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[37] In Minister of National Revenue v Inland Industries Ltd, [1974] SCR 514, 23 DLR (3d) 677 [Inland], a corporation applied to the Minister for registration of a complex pension plan that provided for retroactive payments to members, with the objective of avoiding taxes otherwise owing. Ministerial officials mistakenly approved the plan when the plan did not meet the conditions for registration, as prescribed by law. To correct this mistake, the Minister issued reassessments; the affected corporation argued promissory estoppel. The Supreme Court of Canada held that “the Minister cannot be bound by an approval given where the conditions prescribed by the law [for that approval] were not met” (at 523), and refused to hold the Minister to its unambiguous, but mistaken promise because doing so would contravene the clear statutory conditions for approval and require the Minister to act beyond its statutory authority.

[38] In Nelson Consulting Services Ltd v R, [2002] GSTC 122 at para 5, 2003 GTC 506, the tax court considered itself bound by Inland, in that relying “upon bad advice from agents of the Minister cannot relieve a taxpayer from the application of the law.” In consequence of following incorrect advice from Canada Revenue officials, the taxpayer failed to collect HST remittances. Despite the taxpayers’ detrimental reliance on this wrong advice, the tax court upheld the reassessments and refused to estop the Minister from relying on and enforcing the unambiguous statutory obligations, which obligations it found to be well-known and publicized.

C. Promissory estoppel is not available in this case

[39] Section 8(4.1) of the Regulations employs mandatory language (“... an application made by a person referred to in section 5 must be submitted on or before March 31 in respect of eligible petroleum products purchased in or brought into Nunavut in the preceding year”) to establish a clear and unambiguous March 31 deadline for submission of s 5 company tax rebate applications.

[40] But, Agnico contends that by failing to update its Guidelines or its required rebate form, the Government made a “promise” to waive or not enforce this mandatory statutory deadline.

[41] There are three fatal obstacles to Agnico’s contention:

a) First, Agnico did not actually rely upon the 2012 Guidelines before it submitted its rebate form on May 23, 2013.

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b) Second, Robitaille and Mount Sinai are complete answers to Agnico’s argument that the out-of-date Guidelines create promissory estoppel that can rescue Agnico from its own failure to meet the s 8(4.1) deadline.

c) Third, the rebate form was not part of the Regulations.

[42] Each of these is discussed further below.

(i). Agnico did not rely on the 2012 Guidelines

[43] The record is clear that, in fact, Agnico did not rely upon the 2012 Guidelines before it submitted its rebate form on May 23, 2013. The affidavit evidence of Manon Lessard, sworn October 9, 2013, states at paras 50-53 that only the outdated 2006 and 2009 Guidelines were consulted in preparing the rebate applications (Appeal Book, Vol 1, Part II, 9-10).

[44] Since Agnico admitted that it had not reviewed the 2012 Guidelines prior to submitting its rebate forms in May of 2013, it is illogical to suggest that Agnico detrimentally relied upon those Guidelines. As detrimental reliance is a requisite element of promissory estoppel, any failure on the part of the Government to update the 2012 Guidelines to include the s 8(4.1) 2012 regulation amendment is, thus, a red herring.

(ii). Robitaille and Mount Sinai are complete answers

[45] The equitable doctrine of promissory estoppel cannot be invoked to force the Government to exempt Agnico from compliance with a regulated deadline when the constraining statute gives no such lawful authority; the “legislation is paramount” (Mount Sinai at para 47). The governing legislation stipulates that eligible s 5 companies are entitled to fuel tax rebates “[w]here the applicant meets all the requirements of these regulations and has paid tax on eligible petroleum products ...” (Regulations, s 7(1)). Agnico did not meet all the requirements of the Regulations.

[46] No one in Government possessed lawful discretion or authority under the Regulations to grant rebates despite Agnico’s failure to comply with a mandatory deadline. Public law promissory estoppel cannot come to the aid of the admittedly noncompliant Agnico because promissory estoppel is not available to compel the Government to allow the tax rebate on the affected 19,707,555 litres of fuel in the face of clear non-compliance with the regulatory deadline requirement of s 8(4.1).

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[47] The hearing judge did not have the benefit of Robitaille, and did not apply the ratio of Mount Sinai, both cases establishing pivotal considerations that must be brought to bear when determining the availability of promissory estoppel in the public law context. In Robitaille, although dealing with promissory estoppel in a regulatory offence situation, the Supreme Court of Canada clearly held that the doctrine cannot be used to estop a public official from applying a clear statutory provision, or from fulfilling a statutory mandate. The hearing judge erred in law by failing to recognize this clear limitation on the doctrine of promissory estoppel in the public law context, and by applying the doctrine of promissory estoppel in the face of the express legislative provision of s 8(4.1).

[48] Robitaille and Mount Sinai are binding authority and apply here. Agnico cannot shield itself from its continuing obligation to pay the Government of Nunavut taxes in the absence of a lawful entitlement to claimed tax rebates. Agnico cannot use promissory estoppel so as to avoid the application of s 8(4.1).

[49] Even assuming that the Government’s failure to update its Guidelines and rebate form and to personally inform or advise Agnico of the additional deadline contained in s 8(4.1) constituted a clear and unambiguous “promise” not to enforce s 8(4.1), nonetheless promissory estoppel is not available because the Minister has no statutory power to make such a promise; as such, any assumed promise would be unlawful and unenforceable.

[50] In attempting to extend the reach of promissory estoppel to this case, the lower court incorrectly distinguished Irving Oil Ltd v R, [1984] 1 FC 281 at para 3, 2 Admin LR 53, which held that estoppel and fairness arguments do not apply when the issue is “one of the correct interpretation of a statute as opposed to a decision on rights or entitlement by a statutory authority,” and erred in defining the issue in this case as the fairness of the Minister’s decision to confer or deny the tax rebate entitlements, rather than correctly recognizing that the proper interpretation of the express and mandatory language of s 8(4.1) constrained or limited the application of the doctrine of promissory estoppel (Agnico at para 75).

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[51] Under the Regulations, the Minister has no discretionary authority over the conferral of tax rebates; rather, rebate entitlement is conditional upon satisfaction of all the requirements and deadlines set out in the Regulations. The regulated requirements and deadlines are not simply flexible, or malleable, recommendations that the Minister may, or may choose not to, consider. The Regulations have been properly and legally published in accordance with the Nunavut Statutory Instruments Act, and notions of fairness cannot apply.

[52] Assuming, without deciding, that the act of disallowing the late-filed rebate claim is unfair because of limited dissemination of information concerning the s 8(4.1) deadline, and even if it could rightly be found that the Minister implicitly promised to respect only the s 8(4) deadline (and we do not), the Minister has no lawful ability to ignore or waive the mandatory statutory deadline in s 8(4.1) as it applied to Agnico.

(iii). The rebate form was not part of the Regulations

[53] Section 1 of the Statutory Instruments Act, R.S.N.W.T. 1988, c S-13 (Nunavut) provides as follows:

“regulation” means a statutory instrument

(a) made in the exercise of a legislative power conferred by or under an Act, or

(b) for the contravention of which a penalty, fine or imprisonment is imposed by or under an Act,

and includes a rule, order or regulation governing the practice or procedure in any proceedings before a judicial or quasi-judicial body established by or under an Act, but does not include a by-law, resolution, order or directive of a local authority.

[54] Even assuming there was the requisite detrimental reliance by Agnico on the rebate form, this rebate form was not passed by the “regulation-making authority”, nor was the rebate form promulgated (put into lawful effect by official proclamation) as part of the “statutory instrument made or established” by the Regulations. Neither the Guidelines nor the rebate form have the force of law; nor can these materials trump the express and mandatory statutory language of s 8(4.1). Neither amounts to a “promise” by the Government.

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[55] Finally, there was no authority offered, or of which we are aware, that validates the hearing judge’s determination that the Government had a positive obligation to warn or to personally advise Agnico of the deadline for s 5 companies contained within s 8(4.1). Moreover, there is no basis for the importation of such an obligation or duty into the public law domain, certainly not as an extension of the well-established requisite elements of the equitable doctrine of promissory estoppel.

VI. CONCLUSION

[56] In summary, the doctrine of promissory estoppel cannot apply to avoid the application of the clear legislative provision of s 8(4.1) of the Regulations. Moreover, given the binding authority of Robitaille, there is no room to extend, reinterpret, expand, or import additional requisite elements into the doctrine of promissory estoppel as would be necessary to spare Agnico the harsh reality of its missing the deadline.

[57] Given this conclusion, we need not specifically address the Government’s second ground of appeal.

[58] The appeal is allowed, with the result that Agnico is not entitled to a rebate for the 19,707,555 litres of fuel claimed in Application 1 which was consumed prior to December 31, 2012, because Agnico missed the legislated deadline for filing for a rebate with respect to these litres of fuel and promissory estoppel cannot come to Agnico’s aid.

Appeal heard on February 9, 2016 Memorandum filed at Iqaluit, Nunavut This 3rd day of March, 2016

______________________ Slatter J.A.

______________________ Smallwood J.A.

______________________ Schutz J.A.

19

Appearances: A. Silk

for the Appellant (Respondent) P. Mantas

for the Respondent (Appellant)