Santarsieri (Michele) Inc. et al. v. Manitoba Date:, 2015 MBCA 71

Citation: Santarsieri (Michele) Inc. et al. v. Manitoba Date: 20150723 (Minister of Finance), 2015 MBCA 71 Docket: AI14-30-08231 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : MICHELE SANTARSIERI INC., ) S. D. Boyd and PANINO VENTURES LTD., ANTOSANT ) M. K. N. Stonyk ENTERPRISES LTD. AND MACCHIA ) for the Appellant ENTERPRISES LTD. ) ) J. D. Pniowsky and (Applicants) Respondents ) A. D. F.

Sain ) for the Respondents - and - ) ) Appeal heard: THE DEPUTY MINISTER OF FINANCE ) March 4, 2015 (MANITOBA) ) ) Judgment delivered: (Respondent) Appellant ) July 23, 2015 CAMERON J.A.

Introduction [ 1 ] This appeal deals with the issue of whether an appeal to the Court of Queen’s Bench from a decision of the Tax Appeals Commission (the commission) is a hearing de novo or is to be based on the record that was before the commission. [ 2 ] The four corporate respondent taxpayers (the respondents) appealed a tax assessment decision of the commission made pursuant to The Health and Post Secondary Education Tax Levy Act , C.C.S.M., c. H24 ( HPSEA ) by filing an application in the Queen’s Bench. On a preliminary motion, the motion judge held that the appeal would proceed by way of a trial de novo .

The Deputy Minister of Finance (the appellant) appeals that decision arguing that the appeal must proceed on the record that was before the commission. [ 3 ] I am in agreement with the appellant that the respondents’ appeal in the Queen’s Bench should proceed on the record as opposed to the de novo hearing ordered by the motion judge. [ 4 ] Examination of the role and duties of the commission shows that it is a quasi-judicial tribunal with all the powers necessary to hold a full hearing prior to making a decision.

The legislated right of appeal of a decision of the commission is provided for in s. 58 and s. 59 of The Tax Administration and Miscellaneous Taxes Act , C.C.S.M., c. T2 ( TAMTA ). However, that legislation does not specify whether the appeal is to be by way of review of the decision of the commission on the record or whether it is by way of a de novo hearing. Consequently, a presumption arises that the appeal is to proceed on the record.

In this case, the presumption is supported by a contextual statutory analysis of TAMTA , including the language of s. 59 , the legislative evolution, and scheme of the legislation. It is also supported by strong policy reasons favouring the expertise of the commission and the need for an efficient process. Background and History of Proceedings [ 5 ] The appellant deemed the respondents to be a single employer for the purpose of tax exemptions regarding remuneration paid to employees pursuant to s. 2(4.1) of HPSEA . [ 6 ] The respondents appealed the assessment by the appellant to the commission.

The commission affirmed the assessment. [ 7 ] The respondents then appealed the decision of the commission by filing an application in the Queen’s Bench. Prior to

the commencement of their appeal, the respondents filed a notice of motion seeking a determination as to whether the appeal would be heard as a trial de novo , or based on the record that was before the commission. The motion judge ruled that the appeal should be heard on a de novo basis. It is from that decision that the appellant appeals. Decision of the Motion Judge [ 8 ] In reaching his decision, the motion judge recognized that Friesen (Brian Neil) Dental Corp. et al. v.

Director of Companies Office (Man.) et al. , 2011 MBCA 20 , 262 Man.R. (2d) 197 , is the leading case in Manitoba governing how to determine whether a statutory appeal in the Queen’s Bench is to be a hearing de novo or a hearing on the record. In that case, Steel J.A., writing for the court, held that where the provision itself is silent as to the possibility of a hearing de novo , as it is in this case, a presumption is raised in favour of a review on the record (see paras. 31-32). (Also see Guinn v.

Manitoba , 2009 MBCA 82 at paras. 10-14 , 245 Man.R. (2d) 57 .) [ 9 ] The motion judge acknowledged the applicability of the presumption. Nevertheless, he held that the respondents had rebutted it. In reaching his conclusion, he relied on the fact that the previous versions of the taxing statutes which preceded TAMTA allowed for a hearing de novo , regardless of whether the appeal was commenced by a statement of claim (as was the case for HPSEA ) or by way of application (as was the case in The Retail Sales Tax Act , R.S.M. 1987, c.

R130 (as it then was) (the RTA ). [ 10 ] The motion judge rejected the appellant’s argument that the legislative history, including significant amendments to TAMTA and the various other taxing statutes to which it applies, evidenced the intent of the Legislature to alter the appeal process.

He held that there was nothing in TAMTA itself that would indicate the Legislature’s intent to remove from the taxpayer the right to adduce evidence on an appeal. [ 11 ] Further, on the basis that the powers of the commission were unchanged by TAMTA , he found that there was nothing that would suggest that the Legislature intended to remove rights from the taxpayer. [ 12 ] The motion judge observed that historically, tax appeals were heard on a de novo basis similar to the federal tax structure.

Noting that provincial income tax is largely administered by the federal government, which allows for de novo appeals, and that The Income Tax Act , C.C.S.M., c.

I10, allows for appeals by way of statement of claim (and therefore a full civil proceeding), he found that there was no logical reason why appeals pursuant to TAMTA would create different processes. [ 13 ] Finally, the motion judge found that the fact that the commission was not required by statute to keep a record of the proceedings before it, nor give reasons for its decision, supported his conclusion that the appeal is intended to be a hearing de novo .

The Issue and Standard of Review [ 14 ] The issue in this case is whether an appeal of the decision of the commission to the Queen’s Bench is to proceed on the record that was before the commission or by a hearing de novo . Because TAMTA does not specify the nature of the proceedings in that court, the legislation must be interpreted to determine the intent of the Legislature. [ 15 ] The parties agree, as do I, that as this appeal involves a question of statutory

interpretation, which constitutes a question of law, it is to be reviewed on the standard of correctness. See Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 . Positions of the Parties [ 16 ] The appellant contends that the motion judge erred by incorrectly interpreting the appeal provisions found in TAMTA . It states that the modern approach to statutory

interpretation involves a contextual and purposive analysis when considering substantive changes that have been made by the Legislature to the tax appeals process. It argues that developments in administrative law require the court to recognize that the intent of the Legislature in creating administrative tribunals with independent decision-making authority, such as the commission, is deliberate and purposeful.

Finally, it submits that, unless specifically stated in the legislation, or supported by strong policy reasons, the court should not presume that the Legislature has intended to create an administrative appeal process that culminates in an appeal by way of a hearing de novo . [ 17 ] The respondents maintain that the motion judge made no error and that he properly considered the factors outlined in Friesen . They assert that, aside from the fact that the matter is an appeal, no other factors identified in Friesen favour the appellant’s position.

Contrary to the appellant, the respondents maintain that the legislative history supports the

interpretation accepted by the motion judge. Further, they state that the nature of the appeal in this case involves determinations over which the commission does not have expertise. Decision The Role and Powers of the Commission Pursuant to The Tax Appeals Commission Act [ 18 ] Prior to embarking on a statutory analysis of TAMTA , it is helpful to examine the role of the commission. The commission was created through the enactment of The Tax Appeals Commission Act , C.C.S.M., c. T3 ( TACA ), in 1992.

Originally, its mandate was to hear assessment appeals from three taxing statutes, the RTA , the HPSEA and The Corporation Capital Tax Act , R.S.M. 1988, c. C226 (as it then was). With the coming into force of TAMTA , the commission became responsible for hearing all assessment appeals for the taxing statutes to which TAMTA now applies.

[19] The respondents argue that the role of the commission is not quasi-judicial because, historically, part of its function wasto provide advice to the minister regarding assessment appeals. I do not agree. [20] In Minister of National Revenue v. Coopers and Lybrand, (SCC), [1979] 1 S.C.R. 495, the SupremeCourt of Canada set out non-exhaustive criteria to consider when determining whether a decision-making authority granted by statutewas judicial or quasi-judicial. They are (at p. 504):

(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggeststhat a hearing is contemplated before a decision is reached?

(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?

(3) Is the adversary process involved?

(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement socialand economic policy in a broad sense? (Also see 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool), (SCC), [1996] 3 S.C.R. 919 at paras. 22-25.) [21] In the case of the commission, all of the above can be answered in the affirmative. [22] Section 57(1) of TAMTA provides the power to the commission to hear appeals of assessments or reassessments madepursuant to the taxing statutes over which it has jurisdiction.

It provides that in hearing an appeal, the commission may exercise any ofits powers of investigation and inquiry. [23] The powers of investigation and inquiry are found in s. 6(1) of TACA: Powers of commission 6(1) The commission may with respect to a matter assigned to it (

a) in its discretion make such investigation and inquiry as it considers appropriate; (

b) by notice require any person or the government to give evidence or to produce documents in evidence or, if a document is stored inelectronic form, a copy of the document, within such time, not less than 10 days, as is specified in the notice; and (

c) require any evidence before it to be given under oath or affirmation. [24] Further, s. 7 of TACA provides the commission with the power to administer oaths.

Section 8 states that evidence maybe given before the commission and that the commission is not bound by the rules of law respecting evidence applicable in a judicialhearing. [25] The intent that the process be adversarial is evidenced by s. 59(3) of TAMTA which provides that either the taxpayer orthe director (the appellant) may appeal a decision of the commission to the Queen’s Bench. [26] Thus, the empowering legislation clearly envisions a hearing prior to a decision being reached, the decision is onewhich has the ability to significantly affect the rights and obligations of individual taxpayers, the process is adversarial and there is anobligation to apply substantive rules to many individual cases. [27] Prior to TAMTA coming into force, some of the taxing statutes to which it applies allowed for appeals to thecommission and then to the minister and then the court while others only allowed for appeals to the minister and then the court. [28] At the time TAMTA was enacted, all of the taxing statutes to which it applied were amended by repealing the ability toappeal to the minister (where one was allowed).

In the result, the abolishment of the ability to appeal to the minister conferred on thecommission the role of final administrative arbiter for the taxing statutes administered by TAMTA.

[29] In my view, the investigative and decision-making powers that existed prior to the expansion of the role of thecommission pursuant to TAMTA were sufficient for the commission to exercise its new function as the final administrative arbiter andnothing further was required.

Therefore, I would not draw the inference that the failure to change the powers at the time TAMTA wasenacted contradicts the intent of the Legislature that it assume a more robust, quasi-judicial role. [30] Understanding the quasi-judicial role of the commission aids in the endeavor to interpret contextually TAMTA, thestatute that the commission is mandated to administer, and the statute that governs appeals from its decisions. Statutory

Interpretation of TAMTA [31] Unlike typical taxation cases, in this case, we are not dealing with the

interpretation of a specific tax provision. Rather,we are dealing with a determination of the process for appeal as set out in TAMTA. In that regard, this case is the same as Friesen, a casewherein the determination was whether an appeal set out in The Business Names Registration Act, C.C.S.M., c. B110, was a hearing denovo or an appeal on the record. In that case, Steel J.A. applied a contextual and purposive approach to the

interpretation of thelegislation in question. That is, the

interpretation of words in a statute “should be ascertained by a consideration of their grammatical andordinary sense, the overall context, the object of the statute and the intention of the Legislature” (Friesen at para. 19 referencing Rizzo &Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at para. 21). [32] In Friesen, Steel J.A. outlined several factors to consider when determining the nature of an appeal right intended by theLegislature. [33] The first consideration is the provision itself.

Where the provision is silent as to the possibility of a hearing de novo, apresumption arises that the review is to be on the record (at para. 32). [34] A presumption having arisen, as it has in this case, Steel J.A. then identified other factors for the court to consider in itsanalysis. These include the nature of the decision appealed from, the statutory framework and legislative history of the legislation, andthe scheme of the legislation as a whole, including the duties and expertise of the original decision maker.

Other considerations includewhether or not there is a legislative requirement that the administrative entity being appealed from keep a record or give reasons for itsdecisions. [35] In order to understand the intent of the Legislature, an examination of the language of s. 59 of TAMTA, its legislativehistory, and the duties and expertise of the commission is crucial. After addressing this, I will address the other factors pertaining towhether there is a requirement to keep a record or give reasons. The Language of

Section 59 of TAMTA [36] Section 59(1) of TAMTA describes the process for an appeal from a decision of the commission to the Queen’s Bench. It states: How to appeal 59(1) An appeal to the court must be made by filing an application with the court for an order under this

section within 90 days after thedecision or order being appealed is served on the appellant. [emphasis added] [37] At the hearing of this appeal, counsel were asked whether there was any difference between the French and Englishversions of the legislation which could aid in its

interpretation. Both submitted that there was not such a difference and I agree. [38] The commencement of an appeal by filing an application can be contrasted with one started by filing a statement ofclaim. A statement of claim initiates a full action and includes many provisions for pleadings and discovery up to, and including a trial,which do not apply to an application. By its nature, a proceeding commenced by a statement of claim calls for a hearing de novo.

On theother hand, an application need not involve evidence, or the pleading of material facts, and is designed for use in situations like an appealon the record. [39] The requirement to commence an appeal to the Queen’s Bench by application suggests, but is not conclusive, that theLegislature intended that the appeal be on the record. This is because the previous versions of the taxing statutes to which TAMTAapplies, allowed for a de novo hearing regardless of whether the appeal was commenced by application or statement of claim. Thus, it ishelpful to examine the legislative evolution of TAMTA.

Legislative Evolution of TAMTA and Related Tax Acts [40] In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471,LeBel and Cromwell JJ. stated that, “The legislative evolution and history of a provision may often be important parts of the context to beexamined as part of the modern approach to statutory

interpretation” (at para. 43). [41] Prior to the amendments that are discussed below, HPSEA provided for an appeal by way of statement of claim (R.S.M.1987, c. H24, s. 23(2)).

[ 42 ] Historically, some of the other taxing statutes to which TAMTA applies, such as the RTA , provided for an appeal by application with a requirement to set the matter down for trial, and that the court hear evidence adduced by the parties. Indeed, the motion judge relied on that fact in reaching his determination that the amendments to the various taxing statutes read in conjunction with TAMTA did not evidence an intent to change the appeal process. [ 43 ] TAMTA is comprised of several distinct parts. Of import to this case is

Part I which constitutes a comprehensive administration and tax scheme governing compliance, inspections, assessment, appeals and collection of a number of taxes imposed by the Government of Manitoba. Section 1(1) defines the “tax Acts” to which TAMTA applies:

Definitions 1(1) The following

definitions apply in this Part …. “tax Act” means any of the following enactments: (

a) The Corporation Capital Tax Act ; (a.1) The Credit Unions and Caisses Populaires Profits Tax Act ; (a.2) The Emissions Tax on Coal and Petroleum Coke Act ; (

b) The Fuel Tax Act ; (

c) The Health and Post Secondary Education Tax Levy Act ; (

d) The Mining Tax Act ; (e) [repealed] S.M. 2010, c. 29, Sch. B , s. 39; (

f) The Retail Sales Tax Act ; (

g) The Tobacco Tax Act ; (

h) this Part; (

i) a regulation made under any enactment referred to in clauses (

a) to (h). [emphasis added] [ 44 ] Of note, as earlier mentioned, The Income Tax Act is not governed by TAMTA . Rather, it is administered by the Government of Canada in accordance with an agreement with the Government of Manitoba. The appeal process for that taxing statute is governed by different authority and, in my view, to draw an analogy to it or to rely on it in aid of the

interpretation of TAMTA is not of assistance. In fact, as was admitted by the respondents at the oral hearing of this appeal, the Minister of National Revenue does not have a right to appeal a decision of the appeals division of the Canadian Revenue Agency to the Tax Court of Canada. [ 45 ] Prior to the enactment of TAMTA , each of the taxing statutes contained its own separate process for administration, enforcement and appeals. The coming into force of TAMTA consolidated the administration, enforcement and appeal provisions of these various taxing statutes.

So, while each of the taxing statutes governs different taxes, they are now all uniformly administered and enforced in accordance with the provisions set out in TAMTA . An examination of the history of how this change came about is helpful. [ 46 ] In 2005 The Budget Implementation and Tax Statutes Amendment Act, 2005 , S.M. 2005, c. 40 ( ITSA ) was passed. In my view, the passage of this legislation substantively changed the appeal process for the taxing statutes to which it applied. It renamed The Revenue Act to TAMTA , and pursuant to

Part 1 of TAMTA , assumed jurisdiction of assessment, enforcement and appeals over all of the taxing statutes found in s. 1(1). [ 47 ] Additionally, ITSA amended all of the relevant taxing statutes by repealing not only the ability to appeal to the minister (where one was allowed) but also, all of the appeal provisions of the various taxing statutes in effect at the time. Importantly, it repealed the provision in HPSEA which provided for appeals to the Queen’s Bench by way of statement of claim.

Also noteworthy, it repealed provisions in other taxing statutes that provided for appeals by way of an application to a court of competent jurisdiction and the corresponding ability to have a trial and call evidence.

[48] ITSA replaced the former appeal provisions of the taxing statutes with s. 59 of TAMTA, the

section at issue in thisappeal.

Section 59 provides for an appeal process that does not include appeal by statement of claim or application with full trial rightsincluding the right to call evidence. In my view, failure to provide any such rights is significant.

If the Legislature had intended theappeal to be a de novo hearing, it could have easily carried forward one of the two appeal processes used in the earlier taxing statutesover which TAMTA assumed jurisdiction. [49] Thus, contrary to the finding of the motion judge that the only thing ITSA did of any note was remove the right ofappeal to the minister, it also repealed and replaced the provisions for appeal from a decision of the commission to the Queen’s Bench. The current provisions do not include the right to a trial in any form, nor the ability to call evidence on appeal.

This is a significantdevelopment in the legislative evolution of TAMTA. [50] In his analysis of the legislative evolution of TAMTA the motion judge relied, in part, on The

Interpretation Act,C.C.S.M., c. I80. He stated (at para. 81): In applying the

Interpretation Act and Friesen, plus the method in which the Legislature chose to implement the change as ahousekeeping measure, leads me to conclude that there was not, any substantial change set forth in TAMTA so that taxpayers appealsbecame true appeals on the record. [51] In particular, the motion judge relied on s. 48(2) of The

Interpretation Act which states: Amendment does not imply a change in the law 48(2) The amendment of

an Act or regulation does not imply a declaration that the law under that Act or regulation before theamendment was different — or was considered by the Legislature or other body or person who made it to have been different — fromthe law under the amendment. [52] I start by observing that, aside from s. 48(2), there is a presumption that amendments to the wording of legislation aremade with a purpose.

Among other things, amendments are made to clarify the meaning of a provision, to correct a mistake, or tochange the law. (See Ruth Sullivan, Sullivan On the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014) at 662.) [53] Other jurisdictions have legislation with similar language to that in s. 48.[1] Sullivan describes the effect of suchprovisions as follows (at p. 663): These provisions do not affect the presumption that changes to the wording of legislation are purposeful.

Nor do they preclude the courtfrom acknowledging that, in principle at least, the foremost purpose of amendment is to bring about a substantive change in the law. They do, however, remind the courts that amendments do not necessarily have this purpose. [54] This commentary is reflected in the jurisprudence. For example, in Demers et al. v. Davidson (B.R.) Mining &Development Ltd. et al., 2012 ONCA 384, 292 O.A.C. 164, the court considered the effect of an amendment on the

interpretation of astatute. Writing for the court, Laskin J.A. stated (at para. 43): I agree with the appellants that a mere amendment of a regulation does not imply anything about the previous state of the law, andespecially does not imply that the previous state of the law was different: see Legislation Act, 2006, S.O. 2006, C. 21, Sched. F, s. 56. Equally, however, the court should not presume the law is the same despite the amendment: see Vijeyekumar v. State Farm MutualAutomobile Insurance Co. (1998), (ON SC), 38 O.R. (3d) 590 (C.J. (Gen.

Div.)) at p. 610; aff'd (1999), (ON CA), 44 O.R. (3d) 545 (C.A.). …. [55] I recognize that ITSA also included the type of legislation which is often used to formally correct errors and clarifyunclear provisions and that such legislation is often enacted absent legislative debate and, to that extent, could be considered“housekeeping” legislation. Nonetheless, that does not mean that substantive change cannot be affected by the same legislation.

In thiscase, the Legislature has conducted a significant overhaul of the appeal provisions of a number of taxing statutes including repealing allof their respective appeal provisions. It introduced legislation with different procedures and rights. Importantly, it did not re-enact theability to initiate appeals by statement of claim, or application with the right to a trial and to call evidence. These changes must be givenmeaning. [56] The motion judge placed too much weight on the fact that historically tax appeals were de novo hearings and hisapplication of s. 48(2).

In the result, his analysis incorporated an unexpressed legislative intention that is not supported by the text of thelegislation or its legislative evolution. Rather, a review of the legislative evolution of TAMTA, and the corresponding taxing statutes to

which it applies, favours an

interpretation that does not include an appeal of a decision of the commission by way of hearing de novo. [57] However, that does not end the matter. As the court stated in Friesen, it is also important to consider and the duties andexpertise of the original decision maker. Duties and Expertise of the Decision Maker [58] Despite the respondents’ argument that the commission lacked expertise to decide the issues before it, I would repeatthat the commission is a quasi-judicial body.

With the enactment of TAMTA, the role of the commission became that of a general taxappeal tribunal for the many taxing statutes to which it applies. The legislative scheme of TAMTA suggests that the commission wouldestablish expertise in determining issues involving tax assessments and appeals involving those statutes. [59] Further, I agree with the appellant that the legislative scheme of TAMTA evidences intent to provide for a way ofdealing with tax appeals by a tribunal with expertise that is more cost effective than engaging in a trial in the Queen’s Bench.

A de novohearing before a judge derogates from the expertise and knowledge possessed by the commission. The Record and the Reasons of the Commission [60] The respondents assert that the intent of the Legislature that an appeal in the Queen’s Bench proceed by a hearing denovo is supported by the fact that the commission is not legislatively required to maintain a record and that it is not required to givereasons. The implication being that if there is no record and no requirement for reasons, review on the record cannot be the intent.

Idisagree. [61] First, it is important to note that in this case there is a record available and the commission did provide reasons. Practically speaking, the possibility of an appeal from the decision of the commission would require the maintenance of a record. [62] Second, in Friesen there was neither a legislative requirement for a record nor a requirement for reasons. Nonetheless,this was not sufficient to rebut the presumption that the appeal of the decision of the director was to be on the record.

Regarding the lackof reasons, Steel J.A. rejected the necessity for a statutory requirement stating (at para. 74): Even in the absence of a statutory requirement, tribunals and decision-makers may still be required to give reasons based on naturaljustice and fairness. In Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817,243 N.R. 22, the Supreme Court of Canada observed (at para. 43): “… [I]n certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision.

Thestrong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has importantsignificance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should berequired. …. [emphasis added] [63] I have already stated that the decisions of the commission made pursuant to its appeal authority are quasi-judicial innature. Legislative mandate aside, natural justice will require reasons to be given by the commission upon determination of a tax appeal.

Conclusion [64] The right of appeal created by s. 59 of TAMTA does not specify whether the appeal is to be a de novo hearing or areview of the decision of the commission on the record that was before it. Consequently, a presumption arises that the appeal is toproceed on the record.

The motion judge erred when he held the presumption was rebutted as a result of his consideration of TheInterpretation Act and his application of Friesen. [65] An examination of the nature of the commission shows that it is an administrative tribunal with quasi-judicial powersenabling it to conduct a full hearing, including receiving evidence, in making findings of fact and reaching a decision. Defining thenature of the tribunal aids in the contextual analysis of the provision which provides for appeals from the commission.

In this case, thepresumption is supported by a contextual statutory analysis of the language of the section, the legislative evolution of TAMTA, and thescheme of the legislation. [66] It is also supported by strong policy reasons favouring the expertise of the commission and the need for an efficientprocess. Appeals heard as de novo hearings tend to “be more protracted and costly” than appeals on the record (Friesen at para. 69).

Toallow further or fresh evidence at the Queen’s Bench level, when it could have been adduced before the commission is inefficient and “awaste of legal resources at both levels” (ibid.). [67] In the result, I conclude that the respondents’ appeal of the decision of the commissioner should proceed in the Queen’sBench on the record that was before the commission and not as a de novo hearing. [68] For all of the above reasons, I would allow the appeal with costs to the appellant.

J.A. I agree: J.A. I agree: J.A. [1] See, for example: Federal

Interpretation Act , R.S.C., 1985, c. I-21, s. 45; Alberta’s

Interpretation Act , R.S.A. 2000, c. I-8, s. 37; Ontario’s Legislation Act, 2006 , S.O. 2006, c. 21, Sch. F , s. 56 .