2013 MBCA 88, 2013 MBCA 88

Citation: TransCanada Pipelines Ltd. v. Manitoba, Date: 20131001 2013 MBCA 88 Docket: AI 12-30-07762 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard BETWEEN : ) J. M. Woolley and TRANSCANADA PIPELINES ) S. Pustogorodsky LIMITED ) for the Appellant ) (Plaintiff) Appellant ) D. G. Hill and ) M. J.

Weinstein - and - ) for the Respondent ) ) Appeal heard: THE GOVERNMENT OF MANITOBA ) November 7, 2012 ) (Defendant) Respondent ) Judgment delivered: ) October 1, 2013 MacINNES J.A. [ 1 ] TransCanada Pipelines Limited (TCPL) appeals the decision of the trial judge wherein the judge determined that certain inspection services purchased by TCPL were taxable services under The Retail Sales Tax Act , R.S.M. 1987, c. R130 (the RSTA ), and that the amounts owing by TCPL pursuant to the assessment by the Government of Manitoba (Manitoba) were not assessed in error.

Background [ 2 ] TCPL owns and operates a pipeline to transport natural gas through the Province of Manitoba. Between 1990 and 1996, TCPL expanded its pipeline in Manitoba by constructing new sections of pipeline in various areas of the province. [ 3 ] Sections of pipe are welded together in the construction of a pipeline. To ensure the integrity of the pipeline, certain procedures are used to evaluate the quality of the welds.

In this case, the procedures included visual inspections, radiographic (x-ray or gamma-ray) inspections, ultrasonic inspections, and hydrostatic tests. [ 4 ] The subject matter of the retail sales tax assessment and this litigation pertain only to the radiographic and ultrasonic inspections (the Inspection Services) purchased by TCPL from third-party independent contractors. [ 5 ] On December 11, 1998, Manitoba issued TCPL a notice of assessment (the Assessment) pertaining to the Inspection Services. TCPL appealed the Assessment to the Tax Appeals Commission (the Commission) which upheld the Assessment.

TCPL then appealed the Commission’s decision to the Minister of Finance, who upheld the Commission’s decision. [ 6 ] On September 16, 2002, TCPL appealed the decision of the Minister of Finance pursuant to s. 19(1) of the RSTA (as repealed by The Budget Implementation and Tax Statutes Amendment Act, 2005 , S.M. 2005, c. 40, s. 77(2)). It did so by issuing a statement of claim seeking declarations that its purchases of the Inspection Services were not purchases of taxable services under the

RSTA and that the amounts assessed as owing by it under the Assessment were assessed in error. The trial judge dismissed TCPL’s action in respect of both declarations sought. It is from that judgment that TCPL appeals. Relevant Statutory Provisions [ 7 ] At the material time, the statutory provisions relevant to this litigation were ss. 4(1) (

d) and 29(1) (

k) of the RSTA , and s. 2(8) of the Retail Sales Tax Regulation , Man. Reg. 75/88R, (since repealed and replaced by Man. Reg. 307/88) (the Regulation), which provide as follows: The RSTA : Taxable services . 4(1) The following classes of accommodations, facilities, or functions are declared to be services in respect of which the purchaser is required to pay the tax: . . . . . (

d) the repairing, maintaining, testing, cleaning, washing, polishing, painting, decorating, refitting, refinishing, reconstituting, remodelling, altering, adjusting, modifying, updating, upholstering, or re-upholstering, of tangible personal property other than tangible personal property mentioned in clauses 3(1)(f), (g), (h), (i), (

p) or (nn) or subsection 3(24); … Regulations . 29(1) For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation and order made under, and in accordance with the authority granted by, this

section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations and orders (

k) describing any tangible personal property mentioned in

section 3, or any service mentioned in

section 4, for the purposes of clarifying the

interpretation of those sections: The Regulation: 2(8) In clause 4(1)(

d) of the Act, “testing” includes inspecting and testing in connection with the maintenance of tangible personal property, but does not include testing that is of a research nature. The Appeal [ 8 ] The parties agree that there is one issue for determination on this appeal, an issue of statutory

interpretation, namely, whether the term “inspection” falls within the meaning of “testing” as set out in s. 4(1) (

d) of the RSTA such that the Inspection Services are taxable. [ 9 ] TCPL asserts that it does not and that the judge erred in concluding the opposite. Manitoba argues that it does and that the trial judge committed no error in so deciding. Submission of TCPL [ 10 ] TCPL argues that the scheme of the RSTA is to tax all purchases of tangible property. Tax will be imposed upon the purchase or consumption of goods unless a specific exemption is expressed. However, the reverse applies as regards the taxation of services; that is, only those services specifically listed in s. 4(1) of the RSTA will be subject to taxation. [ 11 ] Section 4(1) specifically lists, in cls. (

a) through (g), the classes of accommodations, facilities or functions which are declared to be services in respect of which sales tax is payable.

[ 12 ] Section 4(1)(

d) lists many different services, one of which is the “testing” of “tangible personal property.” Because “inspection” is not a listed service under s. 4(1)(d), TCPL submits that it does not fall within the meaning of “testing.” It argues that, in concluding that the Inspection Services were “testing” within the meaning of the RSTA , the trial judge erred by failing to conduct a proper contextual analysis and to take into account the words of s. 4(1) (

d) and the scheme and object of the RSTA as a whole. [ 13 ] As well, TCPL argues that the trial judge’s

interpretation fails to comply with several presumptions of legislative drafting and

interpretation. These presumptions were described by Ruth Sullivan, Sullivan on the Construction of Statutes , 5th ed. (Markham: LexisNexis Canada Inc., 2008), as follows: [at p. 223]: The Presumption of Coherence Governing Principle . It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole. …. [at p. 210]: The Presumption Against Tautology Governing Principle . It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain.

Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose. …. [at pp. 207-8]: Presumption of straightforward expression. It is presumed that in so far as possible legislatures will adopt a simple, straightforward and concise way of expressing themselves. …. [ 14 ] TCPL argues that these presumptions are essential to the

interpretation of the legislative scheme under the RSTA . It points out that s. 29 of the RSTA empowers the Lieutenant Governor in Council to make regulations and refers specifically to cl. (

k) which empowers regulations to be made describing any service mentioned in s. 4 of the RSTA for the purpose of clarifying the

interpretation of the section. [ 15 ] It asserts that this is precisely what s. 2(8) of the Regulation does, that is, it clarifies the very limited purpose for which “inspection” is included in the meaning of “testing” and the fact that testing of a research nature is not included in the meaning of testing under s. 4(1) (

d) of the RSTA so as to be taxable. [ 16 ] TCPL argues that, given the presumption of coherence, s. 4(1)(

d) of the RSTA and s. 2(8) of the Regulation must be read together. [ 17 ] Moreover, TCPL argues that, if all the words of s. 2(8) of the Regulation are to be given meaning, clearly “inspection” and “testing” must have a different and not a synonymous meaning.

It says that, if “testing” were synonymous with “inspection,” there would be no need to use the word “inspection” and that to conclude that all forms of “inspection” are included in “testing” offends the presumption against tautology. [ 18 ] TCPL submits that the purpose of the Regulation is twofold; firstly, to make a very specific type of inspection taxable, namely, only an inspection that is undertaken along with testing in connection with the maintenance of tangible personal property; and secondly, to exclude from taxation any testing which is of a research nature. It asserts that this

interpretation of the Regulation requires no manipulation of the wording or speculation as to the intention of the legislature. Rather, it gives an ordinary, straightforward meaning to the words chosen by the legislature. [ 19 ] TCPL says that the judge erred in adopting the

interpretation suggested by Manitoba, namely, that the sole purpose of the Regulation was to exclude testing of a research nature from taxation and that the reference to “inspection” in the Regulation was simply an example or illustration of “testing.” TCPL argues that, if the legislature had intended the Regulation to merely exclude testing that was of a research nature, the Regulation would simply have read: in clause 4(1)(

d) of the Act, testing does not include testing that is of a research nature. [ 20 ] Rather, TCPL asserts that the reference to an “inspection” undertaken along with “testing” in connection with the

maintenance of tangible personal property evidenced the legislature’s intention to single out a very particular type of inspection to be included in the definition of “testing” and to leave other forms of inspection outside of the term “testing.” [ 21 ] TCPL also argues that the trial judge erred in concluding that the use of the word “includes” immediately after the word “testing” in the Regulation meant that the definition of “testing” in the Regulation was non-exhaustive.

It says that finding runs contrary to the exerpt from Sullivan, which states (at p. 64): .… To appreciate the intended meaning or scope of the word, reference must be made to its conventional meaning which is not set out in the text.

However, what is set out in the text – whatever is mentioned after “includes” or “does not include” – is normally understood to be exhaustive. …. [ 22 ] In s. 2(8) of the Regulation, the words that immediately follow “includes” are “inspecting and testing in connection with the maintenance of tangible personal property.” Thus, argues TCPL, the term “testing” includes everything that would fall within the conventional meaning of “testing,” but the only inspections that are included in the definition of “testing” are those which are undertaken along with testing in connection with the maintenance of tangible personal property.

All other forms of inspection are outside of the definition. [ 23 ] TCPL asserts that the trial judge erred in relying upon industry-specific documents and testimony from representatives of the pipeline construction industry in order to support her conclusion that the terms “test” and “inspect” can be used interchangeably. It refers to the evidence of the witness Refvik, a representative of Manitoba, who testified that in making a decision as to whether to tax a service, Manitoba does not rely upon what a party calls a service, but upon what the service actually is. [ 24 ] TCPL argues that the RSTA is

an Act of general application. It is not particular to the pipeline industry or any other. As a result, evidence as to what the Inspection Services were called within the pipeline industry is not relevant to the determination of the ordinary meaning of “testing” within the scope of the RSTA . [ 25 ] TCPL thus submits that the trial judge erred in concluding that the Inspection Services were “testing” within the meaning of s. 4(1)(

d) of the RSTA and asks that its appeal be allowed, that the trial judgment be set aside and that it be awarded judgment and costs. Submission of Manitoba [ 26 ] Manitoba argues that the trial judge was required to assess and weigh evidence put before her by two witnesses for TCPL and one for Manitoba, which included documentary evidence.

It says that the agreed statement of facts in the case only summarized the history of the tax assessment procedure, and that there were no agreed facts respecting the nature of the services or the meaning of the terms “testing” and “inspection.” [ 27 ] Manitoba asserts that, in determining whether or not the meaning of “inspection” falls within the meaning of “testing” under the RSTA , the trial judge was required to review evidence of what the ordinary, technical and dictionary meaning of those terms are, as well as the usage of those terms in the industry, and then apply those meanings to the statutory language.

It asserts that the issue before her was one of mixed fact and law, that deference was owed, that she did not commit palpable and overriding error and that TCPL’s appeal should therefore be dismissed with costs. [ 28 ] Manitoba refers to the evidence of the two witnesses who testified on behalf of TCPL and to the language of the contracts pertaining to the Inspection Services in question, as well as the dictionary

definitions referred to by the trial judge, all of which, it asserts, were sufficient to permit the trial judge to conclude, as she did, that “inspection” and “testing” were synonymous terms such that the Inspection Services in question fall within the meaning of “testing” in s. 4(1) (

d) of the RSTA . [ 29 ] In addition, Manitoba asserts that, pursuant to s. 2(8) of the Regulation, the phrase “includes inspecting and testing in connection with the maintenance of tangible personal property” is a non-exhaustive definition of “testing.” It says that the phrase is thus used as an example of that which falls within the definition of testing, as distinct from the expressed exemption from “testing,” namely, testing that is of a research nature. [ 30 ] Manitoba submits that TCPL has failed to demonstrate any palpable and overriding error in the trial judge’s decision and thus asks that the appeal be dismissed with costs.

Standard of Review Should the trial judge have conducted a standard of review analysis with respect to the decision of the Minister of Finance? [ 31 ] TCPL argues that the trial judge should have conducted a standard of review analysis with respect to the decision of the Minister of Finance.

It says that, had she done so, she would have concluded that the Minister’s decision ought to have been reviewed by her on a standard of correctness. [ 32 ] TCPL submits, however, that while no standard of review analysis was undertaken, it appears clear from the trial judge’s decision that she did proceed pursuant to a correctness standard and that, accordingly, her failure to conduct a standard of review analysis is of no moment in the circumstances. [ 33 ] Manitoba asserts that no standard of review analysis was required by the trial judge in respect of the decision of the Minister of Finance.

It says that TCPL’s right of appeal from the Minister’s decision arose pursuant to subss. 19(1) and (4) of the RSTA

which provide: Appeal to court. 19(1) Where a person, other than the director, is dissatisfied with the decision of the minister given under

section 18, he may appeal therefrom by application to a court of competent jurisdiction.

Hearing of appeal. 19(4) Upon an appeal under this section, the court shall hear evidence adduced by the appellant and the minister, and may affirm, set aside, or vary the decision appealed. [ 34 ] Thus, argues Manitoba, the right of appeal provided in the RSTA was by way of an application and a fresh hearing before the court with an unfettered discretion to decide the matter on the evidence adduced before it on the hearing of the application. [ 35 ] In my view, the trial judge ought to have conducted a standard of review analysis of the decision of the Minister of Finance.

I note, however, that neither counsel raised this before the trial judge, and the appeal was brought by way of an action commenced by statement of claim.

Had the matter come before the court as an application, which s. 19(1) requires, it is more likely, in my view, that counsel and the trial judge would have considered and concluded that a standard of review analysis was required. [ 36 ] In the end, however, nothing turns on this point because, given the statutory scheme relevant to the appeal, a correct standard of review analysis would have resulted in the trial judge applying a correctness standard to the Minister’s decision, which in fact the trial judge effectively did in her decision. See Sheldon Inwentash and Lynn Factor Charitable Foundation v.

Minister of National Revenue , 2012 FCA 136 at paras. 18-23 , 432 N.R. 338 ; and Bartlett v. Canada (Attorney General) , 2012 FCA 230 at para. 46 , 434 N.R. 241 . Standard of Review on this Appeal [ 37 ] TCPL submits that the standard of review to be applied by this court to the decision of the trial judge is one of correctness in that the issue is one of statutory

interpretation which is a question of law. Thus, no deference is owed to the decision of the trial judge and the question for this court is, was the judge correct in her

interpretation of the meaning of the word “testing” in s. 4(1) (

d) of the RSTA and her conclusion that the word “testing” includes “inspection” in the circumstances of this case. [ 38 ] Manitoba argues that, although the issue on this appeal is one of statutory

interpretation, the question raised is one of mixed fact and law. Thus, it says that this court owes deference to the trial judge’s decision and may interfere with it only if the judge has committed palpable and overriding error. [ 39 ] While there was evidence adduced before the trial judge, there was no disagreement or issue in respect of the facts. Being a question of statutory

interpretation with no factual dispute, the question is one of law. The standard of review is, thus, correctness and no deference is owed to the judge’s decision. See Kiddie Kampus Inc. v. Winnipeg City Assessor , 2005 MBCA 86 at para. 25 , 195 Man.R. (2d) 100 ; Winnipeg Airports Authority Inc. v. EllisDon Corp. , 2011 MBCA 51 at para. 14 , 268 Man.R. (2d) 66 ; and Dias v. Manitoba Public Insurance Corp. , 2005 MBCA 60 at para. 6 . Analysis and Decision [ 40 ] What is known as the “modern rule” of statutory

interpretation is that enunciated by Elmer Driedger in Sullivan’s text (at p. 1): Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [ 41 ] Provincial sales tax was first introduced in Manitoba in 1967. At the beginning of the Bill’s second reading in the Legislature, the Provincial Treasurer, the Hon.

Gurney Evans, described “the principles and application of the Bill” (Manitoba, Legislative Assembly, Debates and Proceedings (Hansard) , 28th Leg., 1st Sess., Vol. 56 (23 February 1967) at 1309) as follows ( ibid ): It’s a taxation measure on the purchase or consumption of goods; it’s popularly known as a sales tax ....

There will be an imposition of a … tax upon the purchase or consumption of a wide range of goods and certain services. …. [ 42 ] Later in the debate, when asked whether employment agencies would be subject to the tax, he replied (Manitoba, Legislative Assembly, Debates and Proceedings (Hansard) , 28th Leg., 1st Sess., Vol. 87 (28 March 1967) at 2051):

…. My honourable friends will have noted that in the Act the tax is opposed [ sic ] to all tangible personal property in that exemptions are mentioned; but the reverse treatment is given to services – the services to be taxed are mentioned in the Act, and that is the reference here that such things as employment agencies being a service, not having been mentioned in the Act, are not taxable. This intention expressed by the Provincial Treasurer is borne out by the Act’s

long title, “an Act to provide for the Imposition of a Tax on Purchasers of Tangible Personal Property and Certain Services.” [ 43 ] The RSTA is

an Act of general application whose object is the raising of revenue by Manitoba. The scheme of the Act is that tax will be imposed upon the purchase or consumption of goods unless a specific exemption is expressed, whereas, as regards services, only those services specifically listed will be subject to taxation. [ 44 ] In that regard, s. 4 of the RSTA provides expressly for the services which are to be taxable under the RSTA . Section 4(1) provides: The following classes of accommodations, facilities, or functions are declared to be services in respect of which the purchaser is required to pay the tax. Section 4(1) then specifically lists, in cls. (

a) through (g), the various classes of services which, having been expressly listed, are then subject to the tax. [ 45 ] Clause (

d) of s. 4(1) is the relevant provision for purposes of this case. As previously seen (see para. 7), cl. (

d) provides that the following services are taxable, namely: (

d) the repairing, maintaining, testing, cleaning, washing, polishing, painting, decorating, refitting, refinishing, reconstituting, remodelling, altering, adjusting, modifying, updating, upholstering, or re-upholstering, of tangible personal property …. [ 46 ] The services which form the subject matter of this litigation are the Inspection Services.

As “inspection” is not a listed service under s. 4(1)(d), the only way that the Inspection Services could be subject to tax under the RSTA is if “inspection” were included within the meaning of one of the services expressly listed in the subsection, in this case “testing,” or if, by way of some other provision within the RSTA or a regulation made pursuant thereto, “testing” was defined to mean or include “inspection” or was judicially interpreted to do so. [ 47 ] Section 29(1) empowers the Lieutenant Governor in Council to make regulations and orders for the purpose of carrying out the provisions of the RSTA according to their intent.

Of specific application to the issue on appeal is s. 29(1) (k), which empowers the Lieutenant Governor in Council to make regulations and orders “describing … any service mentioned in

section 4 , for the purposes of clarifying the

interpretation of” the section. [ 48 ] Pursuant thereto, the Regulation was enacted. As seen, it provides: 2(8) In clause 4(1)(

d) of the Act, “testing” includes inspecting and testing in connection with the maintenance of tangible personal property, but does not include testing that is of a research nature. [ 49 ] The trial judge received viva voce evidence from two witnesses called by TCPL and one called by Manitoba, together with documentary evidence. She considered dictionary

definitions of the word “test” and “inspect” and heard the arguments of counsel for the parties. She then concluded that, in the circumstances of this case, the words “test” and “inspect” were used in an interchangeable and synonymous manner.

Thus, she concluded that “the ordinary meaning of the term ‘testing’ includes ‘inspection’ in the context and circumstances of this case” (at para. 42). [ 50 ] In my respectful opinion, she erred in so concluding. [ 51 ] The evidence of the witnesses who testified on behalf of TCPL was relevant for the purpose of giving the trial judge an understanding of what the Inspection Services were and how they were carried out.

But, as the witness for Manitoba testified, the government does not impose tax under the RSTA on the basis of what a party calls a service, but upon what a service actually is. [ 52 ] The evidence of the witnesses who testified on behalf of TCPL and the documentary evidence introduced, pertained to a specific industry. But this was not the

interpretation of a contract, for example, where one is attempting to establish the intention of the parties. Rather, it is the

interpretation of

an Act of the Legislature which is

an Act of general application. Thus, the purpose is to

determine the meaning of the legislation in question, giving the words their ordinary, non-technical meaning so as to be understood by all taxpayers, not just those associated with a particular industry, trade or profession. [ 53 ] While dictionary meanings may be used to assist in determining the meaning of a word or words in legislation, they are useful only, perhaps, as a starting point or as an aid to assist in

interpretation. In and of themselves, however, dictionary

definitions cannot be conclusive, because the meaning of a word or words in legislation must be determined with reference to the context in which they are used, the scheme of the Act, the object of the Act and the intention of the Legislature in enacting the legislation (see Stuart v. Toth , 2011 MBCA 42 at para. 17 , 268 Man.R. (2d) 50), which of course is not the context in which a dictionary definition is given. [ 54 ] The meaning of a word or words in

an Act should, if possible, be found with reference to the Act itself. To assist in

interpretation, there are several well-known presumptions of legislative drafting and

interpretation. [ 55 ] As I have already stated in these reasons (at para. 13), it is presumed that the Legislature avoids superfluous or meaningless words and that every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose (the presumption against tautology). As well, it is presumed that, insofar as possible, legislatures will adopt a simple, straightforward and concise way of expressing themselves (the presumption of straightforward expression).

In my view, the trial judge’s conclusion falls offside both of these presumptions. [ 56 ] The scheme of the RSTA is that, to be taxable, services are to be mentioned in the Act. Clearly, “inspection” or “inspecting” is not mentioned in s. 4(1) (

d) of the RSTA . Section 2(8) of the Regulation, enacted for the purpose of providing clarification in respect of the

interpretation of any services mentioned in s. 4 of the RSTA , provides that “testing” “includes inspecting and testing in connection with the maintenance of tangible personal property.” Consistent with the presumption against tautology, “inspecting” must mean something.

Moreover, it must have a different meaning than “testing.” If it did not, that is, if “inspecting” meant the same as “testing,” there would be no need to mention “inspecting.” Moreover, the words “in connection with the maintenance of tangible personal property” must also have a meaning. [ 57 ] In my view, the purpose of s. 2(8) of the Regulation is not, as was argued, to exempt testing of a research nature from sales tax. If that were the purpose, the Regulation would simply have read, for example, “in clause 4(1)(

d) of the Act, ‘testing’ does not include testing that is of a research nature.” [ 58 ] Nor, in my view, is the phrase “includes ‘inspecting and testing in connection with the maintenance of tangible personal property,’” intended as an example of testing, as has been argued. [ 59 ] Rather, in my opinion, “inspecting” and “testing” have different meanings and, as “inspecting” or “inspection” is not included in s. 4(1)(d), it is not a service for which retail sales tax is assessable.

The only instance where “inspecting” or “inspection” is a taxable service is when it and testing are done in connection with the maintenance of tangible personal property, in which case “inspecting” is included in “testing.” Here, however, the Inspection Services were not provided in the maintenance of tangible personal property. Rather, the Inspection Services performed here were in respect of new construction. [ 60 ] Consistent with the presumption of straightforward expression, this conclusion requires no manipulation of the wording of the RSTA or the Regulation.

Rather, it gives a clear and ordinary meaning to the words chosen by the Legislature. [ 61 ] I am fortified in this conclusion by reference to the fact that the Manitoba Legislature in numerous other pieces of legislation has expressly used the words “inspection” and “testing.” See The Gas and Oil Burner Act , R.S.M. 1987, c.

G30, s. 5(1)(a); The Livestock Industry Diversification Act , S.M. 1996, c. 37, ss. 28(1) and (2) ; The Livestock and Livestock Products Act , S.M. 1997, c. 31, s. 25 ; The Dairy Act , S.M. 1996, c. 36, s. 16; The Animal Diseases Amendment Act , S.M. 2002, c. 11, s. 13; and, more recently The Non-Smokers Health Protection Act , C.C.S.M., c.

N92, s. 7.5(2), The Water Protection Act , S.M. 2005, c. 26, s. 32(1)(b). [ 62 ] Furthermore, while I appreciate that subsequent legislative amendment must be treated with caution as it is usually difficult to ascertain the precise intention of the Legislature in passing the amendment, I note that, in 2008, the word “inspecting” was added as a taxable service under s. 4(1)(d).

Without regard to its purpose, this amendment clearly highlights that, if the Legislature had intended to include “inspecting” in the list of taxable services in s. 4(1)(d), it could have done so and, in my view, would have done so expressly. I also note that, at the same time the term “inspecting” was added by amendment to s. 4(1) (

d) of the RSTA , the provision in s. 2(8) of the Regulation pertaining to the exemption of testing for research purposes was incorporated into the RSTA as s. 4(10) , which provides that no tax was payable “in respect of the testing of tangible personal property for research purposes.” [ 63 ] I would therefore allow TCPL’s appeal.

I would set aside the trial judgment and order the granting of the declarations sought by TCPL, namely, that its purchases of the Inspection Services were not purchases of taxable services under the RSTA and that the amounts assessed as owing by it under the assessment were assessed in error. TCPL will have its costs in this court and at trial. J.A. I agree: J.A. I agree: J.A.