Case information
Conduct a refined search of the Supreme Court of Canada database to obtain details on the status of a matter before the Court.
31057
Kingstreet Investments Ltd., et al. v. Province of New Brunswick as represented by the Department of Finance, et al.
(New Brunswick) (Civil) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2007-11-19 | Payment out cheque issued, ($534.22) | |
| 2007-11-01 | Approved order for payment out, with consent (sent to Finance) | |
| 2007-03-26 | Record returned to the Registrar of the Court of Appeal | |
| 2007-01-22 | Appeal closed | |
| 2007-01-12 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2007-01-12 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2007-01-11 |
Judgment on the appeal rendered, CJ Ba Bi LeB De F Abe Cha Ro, The appeal from the judgment of the Court of Appeal of New Brunswick, Number 38/04/CA, 2005 NBCA 56, dated May 26, 2005, heard on June 20, 2006, is allowed in part and the cross-appeal is dismissed. The appellants are entitled to recover all user charges paid on or after May 25, 1995, with interest. The appellants are also entitled to their costs in this Court and in the courts below. Allowed in part, costs in this Court and courts below |
|
| 2006-07-10 | Transcript received, (90 pages) | |
| 2006-06-20 | Judgment reserved OR rendered with reasons to follow | |
| 2006-06-20 | Supplemental document, Condensed book submitted in Court (14 copies) | Attorney General of British Columbia |
| 2006-06-20 | Appellant's condensed book, Submitted in Court (14 copies) | Kingstreet Investments Ltd. |
| 2006-06-20 | Acknowledgement and consent for video taping of proceedings, From all parties | |
| 2006-06-20 |
Hearing of the appeal, 2006-06-20, CJ Ba Bi LeB De F Abe Cha Ro Judgment reserved |
|
| 2006-06-19 | Correspondence received from, Shrore, Davis dated June 18/06 re: request that Mr. Arvay be permitted to leave after his submissions. | Consumers' Association of Canada |
| 2006-06-14 | Correspondence received from, A. Neal dated June 14, 2006 (fax copy) re: errors in case law reference in the factum (new CD room requested) (sent to the judges June 16/06) | Kingstreet Investments Ltd. |
| 2006-06-14 | Notice of appearance, Joseph J. Arvay and Brent B. Olthuis will be present at the hearing. | Consumers' Association of Canada |
| 2006-06-08 | Notice of appearance, Eugene Szach and Stewart J. Pierce will be present at the hearing. | Attorney General of Manitoba |
| 2006-06-08 | Notice of appearance, Barbara A. McIsaac, Q.C. and Howard Fohr will be present at the hearing. | Canadian Constitution Foundation |
| 2006-06-06 | Notice of appearance, Eugene J. Mockler, Q.C. and Adam B. Neal will be present at the hearing. | Kingstreet Investments Ltd. |
| 2006-05-31 | Book of authorities, (service on B&R missing - Rec'd on June 2, 2006), Completed on: 2006-06-02 | Attorney General of Alberta |
| 2006-05-31 | Intervener's factum, (service on B&R missing - 23 copies rec'd - Rec'd on June 2, 2006), new CD rec'd June 8/06, Completed on: 2006-06-12 | Attorney General of Alberta |
| 2006-05-31 | Book of authorities, (Service of B&R missing - Rec'd on June 2, 2006), Completed on: 2006-06-02 | Attorney General of Manitoba |
| 2006-05-31 | Intervener's factum, (service on B&R missing - Rec'd on June 2, 2006), Completed on: 2006-06-02 | Attorney General of Manitoba |
| 2006-05-31 | Book of authorities, (Vol. I and II), Completed on: 2006-05-31 | Canadian Constitution Foundation |
| 2006-05-31 | Intervener's factum, Completed on: 2006-05-31 | Canadian Constitution Foundation |
| 2006-05-31 | Book of authorities, (missing service rec'd June 1/06), Completed on: 2006-06-01 | Attorney General of British Columbia |
| 2006-05-31 | Intervener's factum, (service on McCathy and Shore Davis rec'd June1/06 and motion for late service requested), Completed on: 2006-06-01 | Attorney General of British Columbia |
| 2006-05-31 | Book of authorities, Completed on: 2006-05-31 | Consumers' Association of Canada |
| 2006-05-31 | Intervener's factum, (new CD rec'd June 13/06), Completed on: 2006-06-13 | Consumers' Association of Canada |
| 2006-05-31 |
Order by, LeB, FURTHER TO THE ORDER of LeBel J. dated May 15, 2006, granting leave to intervene to the Attorney General of Alberta, the Attorney General of Manitoba, the Attorney General of British Columbia, the Canadian Constitution Foundation and the Consumers' Association of Canada; IT IS HEREBY FURTHER ORDERED THAT the said interveners are each granted permission to present oral argument not exceeding fifteen (15) minutes at the hearing of the appeal. Granted |
|
| 2006-05-23 | Notice of appearance, Nancy E. Brown and Jonathan Penner will be present at the hearing. | Attorney General of British Columbia |
| 2006-05-15 | Letter sent to Intervener(s) | |
| 2006-05-15 | Order on motion for leave to intervene, (BY LEBEL J.) | |
| 2006-05-15 |
Decision on the motion for leave to intervene, LeB, The motion for leave to intervene of the applicant, the Attorney General of Alberta, is granted and the applicant shall be entitled to serve and file a factum not to exceed 20 pages in length on or before May 31, 2006. The motion for leave to intervene of the applicant, the Attorney General of Manitoba, is granted and the applicant shall be entitled to serve and file a factum not to exceed 20 pages in length on or before May 31, 2006. The motion for leave to intervene of the applicant, the Attorney General of British Columbia, is granted and the applicant shall be entitled to serve and file a factum not to exceed 20 pages in length on or before May 31, 2006. The motion for leave to intervene of the applicant, the Canadian Constitution Foundation, is granted and the applicant shall be entitled to serve and file a factum not to exceed 20 pages in length on or before May 31, 2006. The motion for leave to intervene of the applicant, the Consumers' Association of Canada, is granted and the applicant shall be entitled to serve and file a factum not to exceed 20 pages in length on or before May 31, 2006. The requests to present oral argument are deferred to a date following receipt and consideration of the written arguments of the parties and the interveners. The interveners shall not be entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada the interveners shall pay to the appellants and respondents any additional disbursements occasioned to the appellants and respondents by their intervention. Granted |
|
| 2006-05-12 | Submission of motion for leave to intervene, LeB | |
| 2006-05-11 | Reply to the motion for leave to intervene, (Letter Form), from J. J. Arvay, Q.C. (by fax), Completed on: 2006-05-11 | Consumers' Association of Canada |
| 2006-05-10 | Respondent's factum - cross appeal, Completed on: 2006-05-10 | Kingstreet Investments Ltd. |
| 2006-05-10 | Response to the motion for leave to intervene, (by all interveners), Completed on: 2006-05-10 | Kingstreet Investments Ltd. |
| 2006-05-04 | Response to the motion for leave to intervene, (Letter Form), from David Eidt dated May 3/06 re: consent to the 5 motions to intervene, Completed on: 2006-05-04 | Province of New Brunswick as represented by the Department of Finance |
| 2006-05-01 | Motion for leave to intervene, Completed on: 2006-05-01 | Attorney General of Alberta |
| 2006-04-28 | Motion for leave to intervene, (Book Form), Completed on: 2006-04-28 | Canadian Constitution Foundation |
| 2006-04-28 | Motion for leave to intervene, Completed on: 2006-04-28 | Attorney General of British Columbia |
| 2006-04-28 | Motion for leave to intervene, Completed on: 2006-05-01 | Consumers' Association of Canada |
| 2006-04-28 | Appeal perfected for hearing | |
| 2006-04-26 | Correspondence received from, Clarification of Appellant's Record (sent to the Court Apr. 28/06) | Kingstreet Investments Ltd. |
| 2006-04-25 | Appellant's book of authorities - cross appeal, included in respondent's authorities, Completed on: 2006-04-25 | Province of New Brunswick as represented by the Department of Finance |
| 2006-04-25 | Respondent's book of authorities, Authorities on cross-appeal included, Completed on: 2006-04-25 | Province of New Brunswick as represented by the Department of Finance |
| 2006-04-25 | Appellant's record - cross appeal, included in respondent's recod | Province of New Brunswick as represented by the Department of Finance |
| 2006-04-25 | Respondent's record, Record on cross-appeal included, Completed on: 2006-04-25 | Province of New Brunswick as represented by the Department of Finance |
| 2006-04-25 | Appellant's factum - cross appeal, included in Respondent's factum (CD rec'd Apr. 27/06), Completed on: 2006-05-04 | Province of New Brunswick as represented by the Department of Finance |
| 2006-04-25 | Respondent's factum, Cross-Appeal included (CD rec'd Apr. 27/06), Completed on: 2006-04-27 | Province of New Brunswick as represented by the Department of Finance |
| 2006-04-24 | Motion for leave to intervene, Completed on: 2006-04-24 | Attorney General of Manitoba |
| 2006-03-31 | Appellant's book of authorities, (2 volumes), Completed on: 2006-03-31 | Kingstreet Investments Ltd. |
| 2006-03-31 | Appellant's record, (2 volumes), Completed on: 2006-03-31 | Kingstreet Investments Ltd. |
| 2006-03-31 | Appellant's factum, Completed on: 2006-03-31 | Kingstreet Investments Ltd. |
| 2006-03-13 | Notice of hearing sent to parties | |
| 2006-03-13 |
Appeal hearing scheduled, 2006-06-20 Judgment reserved |
|
| 2006-02-21 | Appeal court record, 1 box | |
| 2006-02-06 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2006-01-13 | Notice of cross appeal, Completed on: 2006-01-13 | Province of New Brunswick as represented by the Department of Finance |
| 2006-01-12 | Notice of deposit for security | Kingstreet Investments Ltd. |
| 2006-01-12 | Notice of appeal, Completed on: 2006-01-12 | Kingstreet Investments Ltd. |
| 2005-12-16 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2005-12-16 | Judgment on leave sent to the parties | |
| 2005-12-15 |
Judgment of the Court on the application for leave to cross-appeal, see judgment on leave. Granted, without costs |
|
| 2005-12-15 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal and the application for leave to cross-appeal from the judgment of the Court of Appeal of New Brunswick, Number 38/04/CA, 2005 NBCA 56, dated May 26, 2005, are granted without costs. Granted, without costs |
|
| 2005-11-21 | All materials on application for leave submitted to the Judges, Ba LeB De | |
| 2005-11-21 | All material on the application for leave to cross-appeal submitted to the Judges, Ba LeB De | |
| 2005-10-31 | Reply to the memorandum in response to the argument on cross-appeal, Completed on: 2005-10-31 | Province of New Brunswick as represented by the Department of Finance |
| 2005-10-20 | Memorandum of argument in response to the cross-appeal, (joint with reply), Completed on: 2005-10-20 | Kingstreet Investments Ltd. |
| 2005-10-20 | Applicant's reply to respondent's argument, (joint with response to cross appeal), Completed on: 2005-10-20 | Kingstreet Investments Ltd. |
| 2005-09-20 | Book of authorities | Province of New Brunswick as represented by the Department of Finance |
| 2005-09-20 | Application for leave to cross-appeal, (joint with response to leave application), Completed on: 2005-09-20 | Province of New Brunswick as represented by the Department of Finance |
| 2005-09-20 | Respondent's response on the application for leave to appeal, (joint with cross-appeal), Completed on: 2005-09-20 | Province of New Brunswick as represented by the Department of Finance |
| 2005-08-26 | Letter acknowledging receipt of a complete application for leave to appeal | |
| 2005-08-24 | Book of authorities | Kingstreet Investments Ltd. |
| 2005-08-24 | Application for leave to appeal, Completed on: 2005-08-24 | Kingstreet Investments Ltd. |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Kingstreet Investments Ltd. | Appellant / Respondent on cross-appeal | Active |
| 501638 NB Ltd. | Appellant / Respondent on cross-appeal | Active |
v.
| Name | Role | Status |
|---|---|---|
| Province of New Brunswick as represented by the Department of Finance | Respondent / Appellant on cross-appeal | Active |
| New Brunswick Liquor Corporation | Respondent / Appellant on cross-appeal | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Attorney General of Manitoba | Intervener | Active |
| Attorney General of British Columbia | Intervener | Active |
| Canadian Constitution Foundation | Intervener | Active |
| Consumers' Association of Canada | Intervener | Active |
| Attorney General of Alberta | Intervener | Active |
Counsel
Party: Kingstreet Investments Ltd.
Counsel
Adam B. Neal
839 Aberdeen Street.
P.O. Box 547
Fredericton, New Brunswick
E3B 5A6
Telephone: (506) 444-6589
FAX: (506) 444-6550
Agent
1420 - 99 Bank Street
Ottawa, Ontario
K1P 1H4
Telephone: (613) 783-9600
FAX: (613) 783-9690
Email: scott.mclean@fmc-law.com
Party: 501638 NB Ltd.
Counsel
839 Aberdeen Street.
P.O. Box 547
Fredericton, New Brunswick
E3B 5A6
Telephone: (506) 444-6589
FAX: (506) 444-6550
Agent
1420 - 99 Bank Street
Ottawa, Ontario
K1P 1H4
Telephone: (613) 783-9600
FAX: (613) 783-9690
Email: scott.mclean@fmc-law.com
Party: Province of New Brunswick as represented by the Department of Finance
Counsel
P.O Box 6000, Station A
Fredericton, New Brunswick
E3B 5H1
Telephone: (506) 453-2222
FAX: (506) 453-3275
Agent
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com
Party: New Brunswick Liquor Corporation
Counsel
P.O Box 6000, Station A
Fredericton, New Brunswick
E3B 5H1
Telephone: (506) 453-2222
FAX: (506) 453-3275
Agent
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com
Party: Attorney General of Manitoba
Counsel
Stewart J. Pierce
Constitutional Law Branch
1205 - 405 Broadway
Winnipeg, Manitoba
R3C 3L6
Telephone: (204) 945-0679
FAX: (204) 945-0053
Email: eszach@gov.mb.ca
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Attorney General of British Columbia
Counsel
Jonathan Penner
1001 Douglas Street
P.O. Box 9280 Stn Prov Govt
Victoria, British Columbia
V8W 9J7
Telephone: (250) 356-5597
FAX: (250) 356-9154
Email: nancy.ag.brown@gov.bc.ca
Agent
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: Canadian Constitution Foundation
Counsel
M. Philip Tunley
Howard R. Fohr
R. Benjamin Mills
40 Elgin Street
Suite 1400
Ottawa, Ontario
K1P 5K6
Telephone: (613) 238-2000
FAX: (613) 563-9386
Party: Consumers' Association of Canada
Counsel
Brent B. Olthuis
1350 - 355 Burrard Street
Vancouver, British Columbia
V6C 2G8
Telephone: (604) 689-4421
FAX: (888) 575-3281
Email: jarvay@arvayfinlay.com
Agent
200 Elgin Street
Suite 800
Ottawa, Ontario
K2P 1L5
Telephone: (613) 233-7747
FAX: (613) 233-2374
Party: Attorney General of Alberta
Counsel
David Kamal
9833 - 109 Street
Edmonton, Alberta
T5K 2E8
Telephone: (780) 427-7885
FAX: (780) 425-0307
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The Appellants operate several night clubs in the Province of New Brunswick and are licenced by the New Brunswick Liquor Corporation (“NBLC”) to sell alcoholic beverages which they purchase from NBLC’s retail stores. In addition to the retail price, they are required to pay a “user charge” which has varied over the years from 11% to the current 5% of the retail price.
The Appellants argued that this user charge is not a regulatory fee but an indirect tax, and as such, ultra vires the provinces or an illegal direct tax imposed by Regulation and not originating in the Legislature, and therefore ultra vires in the administrative sense. The Respondents maintained that it is a user charge intended to defray the costs of the regulatory scheme set out in the Liquor Control Act, R.S.N.B. 1973, c. L-10 (the “Act”).
The Appellants sought reimbursement of all amounts paid pursuant to this scheme together with compound interest. The Respondents raised the “passing on” defence as the Appellants had passed on the costs of the user charge to their patrons. Further, the Respondents stated that they should be immune from actions for the recovery of illegal taxes, and that any liability for same should be limited by the provincial prescription
The trial judge held that the impugned Regulations were ultra vires the Province, rendering the user charges invalid. He declined to grant the Appellants any recovery for payment of the illegal tax, citing the immunity rule. The Court of Appeal granted the Appellants partial recovery of the monies paid, calculated from the date the action was filed.The Appellants operate several night clubs in the Province of New Brunswick and are licenced by the New Brunswick Liquor Corporation (“NBLC”) to sell alcoholic beverages which they purchase from NBLC’s retail stores. In addition to the retail price, they are required to pay a “user charge” which has varied over the years from 11% to the current 5% of the retail price.
The Appellants argued that this user charge is not a regulatory fee but an indirect tax, and as such, ultra vires the provinces or an illegal direct tax imposed by Regulation and not originating in the Legislature, and therefore ultra vires in the administrative sense. The Respondents maintained that it is a user charge intended to defray the costs of the regulatory scheme set out in the Liquor Control Act, R.S.N.B. 1973, c. L-10 (the “Act”).
The Appellants sought reimbursement of all amounts paid pursuant to this scheme together with compound interest. The Respondents raised the “passing on” defence as the Appellants had passed on the costs of the user charge to their patrons. Further, the Respondents stated that they should be immune from actions for the recovery of illegal taxes, and that any liability for same should be limited by the provincial prescription
The trial judge held that the impugned Regulations were ultra vires the Province, rendering the user charges invalid. He declined to grant the Appellants any recovery for payment of the illegal tax, citing the immunity rule. The Court of Appeal granted the Appellants partial recovery of the monies paid, calculated from the date the action was filed.
Lower court rulings
Court of Queen’s Bench of New Brunswick
F/C/483/01, 2004 NBQB 084
Applicants' claim for a declaration that ss.5(1) and (2) of Regulation 89-167 under the Liquor Contral Act are ultra vires allowed; Applicant's claim for an order that all surcharges paid to the Respondents be repaid together with interest dismissed
Court of Appeal of New Brunswick
38/04/CA
Appeal allowed in part: Applicants' granted repayment of surcharges paid on and after may 25, 2001 together with interest; Assessment remitted to trial judge
Filed documents
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available
Related links
The condensed books of the appellant, the respondent and the intervener will be posted here upon receipt of the electronic version, 2 days prior to the scheduled appeal hearing. You may also obtain copies of condensed books by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a condensed book or want permission to use a condensed book, please contact the author of the condensed book directly. Their contact information appears on the first page of each condensed book.
Downloadable PDFs
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