I am informed that that question has never been raised departmentally and I am afraid I am not in position to answer it offhand. One of the principal purposes of amending section 10 is to remove the word "war". The new act is to be known as the Excise Tax Act instead of the Excise War Tax Act. In section 115 the reference to the board of customs is deleted, because it was replaced a good many years ago by the tariff board.
I have become accustomed to seeing orders in council take on the power and effect of statutes, but it has never before
come to my attention that an independent irresponsible body named as the tariff board is named has the power to enact legislation which is the law of the land to the same extent as if a bill had been brought into the house, debated, read three times, passed and sent to the senate and finally given the royal assent. Of course I may not be fully informed, but this is a startling provision because it says that a declaration by the tariff board under this section shall have the same force and effect as if it had been sanctioned by statute. I am aware that a declaration by the board of customs had a somewhat similar effect, but the board of customs was a slightly different organization, and I believe there was always an appeal from that board.
Of course whatever remedies there are would lie here. The board of customs was replaced years ago by the tariff board. As my hon. friend will see on looking at the section, it relates largely to an interpretation of descriptions in the tariff schedule. The tariff board may declare what amount of tax is payable thereon, or that the article is exempt from tax under this act. Before the creation of the tariff board apparently that was the function of the board of customs, which consisted of officials in the government service. For many years past-since 1933 at any rate- the responsibility for performing these functions has been vested in the tariff board. I am informed that this is simply to bring the law into conformity with what has been the practice during those years.
I should like to know how this will work out in a practical way. As I understand it, when there is doubt or dispute with respect to the amount of duty to be paid on any article reference is made to the tariff board, which may in its uncontrolled discretion make a declaration as to the result, when-and I quote from the section:
-there is no previous decision upon the question by any competent tribunal binding throughout Canada.
I do not know what that means. It cannot mean any of our courts except the Supreme Court of Canada. I should like the minister to explain that.
Suppose I bring an article into Canada and I am told by the customs officers at the boundary that the duty is $100. I do not think it should be that, so I come within the section because there is disagreement as to the amount of
Excise Tax Act
the duty. The only way I can get the article into Canada is to pay the $100 on the barrelhead. I take it that I then go to the tariff board and say, "I have paid $100; I think the amount of duty should be only $50, and I want you to decide." I hope I am right as to the matter of procedure so far as I have gone. Is there any provision in the act which, granted that I succeed and the tariff board says the duty should be $50-
There should be a specific provision. I want to avoid the difficulty the ordinary man would have in dealing with the crown through his inability to bring an action to get his money back. Would the minister mind pointing out the section?
I had not read the section before. The section reads:
A deduction from, or refund of, any of the taxes imposed by this act may be granted:
(a) where an overpayment has been made by the taxpayer.
Just as a matter of historical information, may I say I am told that subsection 2, which we are now discussing, has been in the act since 1917. It was put in in 1917 and the only change here is that the tariff board was substituted in 1933, as the hon. member for Stanstead will recall, for the board pf cus-
toms. The tariff board is now the tribunal to decide whether refunds may be made.
I began my question by asking whether there was an appeal. I understood that there was not. I am going to ask the minister to bear with me just a moment while we consider section 115, which reads as follows:
Where any difference arises or where any doubt exists as to whether any or what rate of tax is payable on any article under this act and there is no previous decision upon the question by any competent tribunal binding throughout Canada, the tariff board constituted by the Tariff Board Act may declare what amount of tax is payable thereon or that the article is exempt from tax under this act.
Then follows the section which says that the declaration of the tariff board has the same effect as a statute. What happens when there is a dispute as to whether or not there is a previous decision? My hon. friend, who has spent long years before the courts, knows that sometimes lawyers cannot agree whether a case is pertinent or not, whether it applies or not. Even courts have been known to disagree as to whether or not they are bound by a certain decision. Who is to be the arbiter in these cases? Is the tariff board to determine once and for all, and beyond all possibility of appeal, that a case does not apply, when others, possibly entitled to an opinion equally respectable, feel that it does?