Total Oilfield Rentals Limited Partnership Appellant (Appellant) v. Her Majesty the Queen in Right of, 2021 SKCA 40

Court of Appeal for Saskatchewan Docket: CACV3157 Citation: Total Oilfield Rentals Limited Partnership v Saskatchewan (Finance) , 2021 SKCA 40 Date: 2021-03-17 Between: Total Oilfield Rentals Limited Partnership Appellant (Appellant) And Her Majesty the Queen in Right of the Province of Saskatchewan as represented by the Minister of Finance for Saskatchewan Respondent (Respondent) Before: Richards C.J.S., Ottenbreit and Ryan-Froslie JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Madam Justice Ryan-Froslie On appeal from: 2017 SKQB 317 , Regina Appeal heard: January 15, 2021 Counsel: Jonathan Milani and James Korpan, Q.C. for the Appellant Jared Biden for the Respondent Richards C.J.S. I. INTRODUCTION [ 1 ] The Provincial Sales Tax Act , RSS 1978, c P-34.1 [ Act ], requires a person who leases tangible personal property to pay a sales tax [PST]. [ 2 ] Total Oilfield Rentals Limited Partnership [Total] leased equipment to customers and, in some instances, transported the equipment to their job sites.

Total did not charge PST with respect to those transportation services. [ 3 ] The Minister of Finance [Minister] determined that, in light of the Act , PST was payable in relation to the transportation services. Total disagreed. The Board of Revenue Commissioners [Board] confirmed the Minister’s position. Total then appealed unsuccessfully to the Court of Queen’s Bench. [ 4 ] Total appeals from the Queen’s Bench decision. As explained below, its appeal must be dismissed. The Minister’s position is correct. II. BACKGROUND [ 5 ] Total leased equipment for use in the oil and gas industry.

It is a licensed vendor under the Act and it collected PST on the rental of equipment to Saskatchewan customers. [ 6 ] Total also transported leased equipment to its customers. This service was invoiced separately from any equipment lease. Customers who leased equipment were not required to hire Total to transport the equipment and they received no discount on the lease charges themselves if they also contracted for transportation services.

Total did not collect PST in relation to transportation services. [ 7 ] The Minister conducted an audit and concluded that Total had improperly failed to collect PST on transportation services. She estimated the amount of PST in issue to be $277,240.96. [ 8 ] Total appealed the Minister’s determination about the PST to the Board. III. THE BOARD DECISION [ 9 ] The Board considered the relevant provisions of the Act and agreed with the Minister that the transportation services provided in relation to the leased property were taxable. It appears to have reasoned along two tracks.

First, the Board seems to have found, at paragraph 22 of its decision, that the transportation services in issue were a “taxable service” within the meaning of s. 3(1)(

k) and attracted PST on that basis. This is not a reading of the Act that has been pursued by the Minister and, given the wording of s. 3(1)(k), her position in this regard is understandable. [ 10 ] The Board’s second line of reasoning was grounded on the wording of s. 5(7) of the Act . It provides that a person who leases tangible personal property shall pay PST on the use of the property based on the rent charged for it.

In light of the definition of rent , which includes consideration paid for related services including transportation services, the Board concluded that the services in issue attracted PST. [ 11 ] The Board went on to reject arguments by Total to the effect that the Minister was estopped from collecting PST because of

representations made to it by Ministry officials. It also rejected Total’s attempt to bring the doctrine of officially induced error into play. IV. THE DECISION UNDER APPEAL [12] Total appealed the Board’s decision to the Court of Queen’s Bench. See: 2017 SKQB 317. A Chambers judge concluded thatthe Board’s

interpretation of the Act was reasonable or, as he put it, “within the range of possible acceptable outcomes that are defensible,both on the facts and the legislative provisions” (at para 75). As a result, the Chambers judge rejected Total’s argument that PST was notpayable on the transportation services in question. [13] The Chambers judge also dismissed arguments made by Total to the effect that the Board had made findings of factunsupported by the evidence. Further, he was not persuaded by Total’s attempts to rely on the doctrines of estoppel and officially inducederror. V.

ANALYSIS [14] Total takes issue with the decision of the Chambers judge. The questions raised by its appeal concern: (

a) the standard orstandards of review to be applied; (

b) the proper

interpretation of the relevant provisions of the Act; and (

c) the doctrines of estoppel andofficially induced error. I will deal with each of these matters in turn. A. The standard of review [15] It is common ground that this Court must apply the correctness standard of review in its consideration of the decision of theChambers judge.

The required inquiries in this regard are whether the Chambers judge employed the proper standard of review in hisexamination of the Board’s decision and whether he applied that standard correctly. [16] That said, the question of the standard of review that the Chambers judge should have applied when considering the Board’sdecision requires some additional examination. Total appealed the Board’s decision to the Court of Queen’s Bench pursuant to thestatutory right of appeal set out in s. 21 of The Revenue and Financial Services Act, SS 1983, c R-22.01.

Relying on Dunsmuir v NewBrunswick, 2008 SCC 9, [2008] 1 SCR 190, the controlling authority at the time, the Chambers judge quite properly concluded that thereasonableness standard of review applied to his consideration of the Board’s decision. [17] The Supreme Court of Canada issued its ruling in Vavilov v Canada (Minister of Citizenship and Immigration), 2019 SCC 65,441 DLR (4th) 1 [Vavilov], after the Chambers judge rendered his decision. Vavilov makes it clear that, for statutory appeals, the appellatestandards of review apply.

Thus, in considering the Board’s decision, questions of law are to be reviewed for correctness. Questions offact and mixed fact and law are to be reviewed on the palpable and overriding error standard unless, with respect to matters of mixed factand law, there is an extricable error of law.

Both Total and the Minister agree that these are the standards of review that the Chambersjudge should have applied. [18] Before leaving this issue, I note that s. 21(11) of The Revenue and Financial Services Act provides that, on appeal, the Board’sfindings of fact are deemed to be “conclusively established” unless they are found to be unwarranted. This might, at least arguably, be seenas establishing a standard of review different than “palpable and overriding error” for findings of fact.

However, nothing turns on thatpossibility in this appeal and, as a result, I do no more than flag it as a matter that might warrant consideration in some future case. B. The

interpretation of the Act [19] The heart of this appeal concerns the

interpretation of the Act. The required analysis is best undertaken by (

a) considering theapproach to statutory

interpretation that is applicable here, (

b) reviewing the relevant provisions of the Act, (

c) turning to the argumentadvanced by Total, and (

d) considering the merits of Total’s position. 1. The proper approach [20] The Act is a provincial statute and, as a result, its

interpretation must respect s. 2-10 of The Legislation Act, SS 2019, c L-10.2.It reads as follows: 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that bestensures the attainment of its objects. [21] As is apparent, s. 2-10(2) is a codification of the principles of

interpretation endorsed by the Supreme Court in Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 SCR 27. There, the Court stated as follows: [21] Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997);Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislation alone.At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical

and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. … [22] The Supreme Court has repeatedly endorsed this approach to statutory

interpretation. However, at the same time, it has alsoheld that the particular nature of tax statutes warrants an emphasis on their actual wording so that taxpayers can safely rely on that wordingwhen structuring their business and personal affairs. A leading expression of this line of thinking is found in Canada Trustco MortgageCo. v Canada, 2005 SCC 54, [2005] 2 SCR 601: [11] As a result of the Duke of Westminster principle (Commissioners of Inland Revenue v. Duke of Westminster, [1936] A.C. 1 (H.L.))that taxpayers are entitled to arrange their affairs to minimize the amount of tax payable, Canadian tax legislation received a strictinterpretation in an era of more literal statutory

interpretation than the present. There is no doubt today that all statutes, including theIncome Tax Act, must be interpreted in a textual, contextual and purposive way. However, the particularity and detail of many taxprovisions have often led to an emphasis on textual

interpretation. Where Parliament has specified precisely what conditions must besatisfied to achieve a particular result, it is reasonable to assume that Parliament intended that taxpayers would rely on such provisions toachieve the result they prescribe. [23] Placer Dome Canada Ltd. v Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 SCR 715, should also be noted in this sameregard. There, the Supreme Court said this about the

interpretation of tax statutes: [21] In Stubart Investments Ltd. v. The Queen, (SCC), [1984] 1 S.C.R. 536, this Court rejected the strict approach tothe construction of taxation statutes and held that the modern approach applies to taxation statutes no less than it does to other statutes.That is, “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with thescheme of the Act, the object of the Act, and the intention of Parliament” (p. 578): see 65302 British Columbia Ltd. v. Canada, (SCC), [1999] 3 S.C.R. 804, at para. 50. However, because of the degree of precision and detail characteristic of many taxprovisions, a greater emphasis has often been placed on textual

interpretation where taxation statutes are concerned: Canada TrustcoMortgage Co. v. Canada, [2005] 2 S.C.R. 601, 2005 SCC 54, at para. 11. Taxpayers are entitled to rely on the clear meaning of taxationprovisions in structuring their affairs. Where the words of a statute are precise and unequivocal, those words will play a dominant role inthe interpretive process. [22] On the other hand, where the words of a statute give rise to more than one reasonable

interpretation, the ordinary meaning ofwords will play a lesser role, and greater recourse to the context and purpose of the Act may be necessary: Canada Trustco, at para. 10.Moreover, as McLachlin C.J. noted at para. 47, “[e]ven where the meaning of particular provisions may not appear to be ambiguous atfirst glance, statutory context and purpose may reveal or resolve latent ambiguities.” The Chief Justice went on to explain that in order toresolve explicit and latent ambiguities in taxation legislation, “the courts must undertake a unified textual, contextual and purposiveapproach to statutory

interpretation”. [23] The interpretive approach is thus informed by the level of precision and clarity with which a taxing provision is drafted. Wheresuch a provision admits of no ambiguity in its meaning or in its application to the facts, it must simply be applied. Reference to thepurpose of the provision “cannot be used to create an unexpressed exception to clear language”: see P. W. Hogg, J. E. Magee and J. Li,Principles of Canadian Income Tax Law (5th ed. 2005), at p. 569; Shell Canada Ltd. v. Canada, (SCC), [1999] 3 S.C.R.622. Where, as in this case, the provision admits of more than one reasonable

interpretation, greater emphasis must be placed on thecontext, scheme and purpose of the Act. Thus, legislative purpose may not be used to supplant clear statutory language, but to arrive at themost plausible

interpretation of an ambiguous statutory provision. [24] Although there is a residual presumption in favour of the taxpayer, it is residual only and applies in the exceptional case whereapplication of the ordinary principles of

interpretation does not resolve the issue: Notre-Dame de Bon-Secours, at p. 19. Any doubt aboutthe meaning of a taxation statute must be reasonable, and no recourse to the presumption lies unless the usual rules of

interpretation havebeen applied, to no avail, in an attempt to discern the meaning of the provision at issue. In my view, the residual presumption does notassist PDC in the present case because the ambiguity in the Mining Tax Act can be resolved through the application of the ordinaryprinciples of statutory

interpretation. I will say more on this below. 2. The provisions of the Act in issue [24] The central provision of the Act in issue here is s. 5(7). It imposes PST on the lease of tangible personal property by providingas follows:

(7) A person who leases tangible personal property or taxable services from a vendor shall pay to the Crown for the raising of a generalrevenue a tax with respect to the use of the property or services, and that tax is required to be: (

a) computed at the rate of 6% of the amount of the rent payable from time to time; and (

b) levied and collected at the time of payment of the rent. (Emphasis added) [25] The meaning of the terms used in s. 5(7) is self-evidently essential to its

interpretation. In this regard, rent is a key conceptbecause PST is computed on the basis of rent payable. Rent is defined as follows in s. 3(1)(

g) of the Act: (g) “rent” means consideration as defined in clause (

b) and includes any other consideration given or agreed to be given for any royalty,franchise, maintenance, service, installation, financing or insurance in respect of tangible personal property that is the subject of a leasewhether or not such other consideration is included in the lease or shown separately on any invoice or in the records of the lessor or

lessee[.] (Emphasis added) [ 26 ] It is apparent that, in turn, the notion of consideration is critical to the meaning of rent . It is defined in s. 3(1) (b): (b) “consideration” means money paid or agreed to be paid , property delivered or exchanged or agreed to be delivered or exchanged, things done or agreed to be done, rights or any other consideration whatsoever and includes a service charge, transportation charge , or any other cost, or a tax, levy or duty imposed by any level of government other than the tax imposed pursuant to

Part IX of the Excise Tax Act (Canada) in respect of the sale of a taxable service or t angible personal property whether or not the charge , cost, tax, levy or duty included is shown separately on any invoice or in the books of the seller or of the purchaser[.] (Emphasis added) [ 27 ] The

definitions of lease and sale , as found in ss. 3(1)(c.4) and (

i) of the Act , respectively, are also important to the resolution of this appeal: (c.4) “lease” means : (

i) when used in relation to tangible personal property, an agreement under which a person is given a right to use tangible personal property , either directly or indirectly, with or without possession or control, for a specified or indefinite period and, without limiting the generality of the foregoing, includes: … (i) “sale” means : (

i) any transfer, exchange, barter or lease , conditional or otherwise in any manner or by any means whatsoever, of tangible personal property for a consideration; … (Emphasis added) 3. Total’s arguments [ 28 ] Total submits that the Board read s. 5(7) of the Act too broadly and, as a result, incorrectly found that PST was payable with respect to the transportation services in issue here.

It contends that PST is payable only in circumstances where transportation services are included in a lease contract, i.e., where the lessee is obligated to obtain such services as part of the lease agreement. [ 29 ] Total’s argument is subtle and involves a multi-step reasoning process. It begins with the term consideration . Total notes that consideration is defined in s. 3(1) (

b) as meaning any consideration in respect of “the sale of…tangible personal property” and that sale is defined in s. 3(1) (

i) to include a lease. Total then notes that lease is in turn defined in s. 3(1) (c.4) to mean “when used in relation to tangible personal property, an agreement under which a person is given a right to use tangible personal property”. This leads Total to conclude that, properly interpreted, consideration is limited to the consideration giving rise to a lease and that a service charge or transportation charge is consideration within the meaning of s. 3(1)(

b) only if, in Total’s words, it is “part of the consideration for the lease”. [ 30 ] Total then goes on to say that the meaning of consideration informs the

interpretation of rent which, as noted above, is a key element of s. 5(7). Total observes that the definition of rent , as set out in s. 3(1) (g), has two dimensions. The first is “consideration as defined in clause (b)”. This is said by Total to be limited to consideration that brings a lease agreement into existence, as per the line of reasoning set out above. The second dimension of the definition of rent is “any other consideration given…for any…service…in respect of tangible personal property that is the subject of a lease”.

Total says that, because it is preceded by the words “and includes”, this language should be read as being only illustrative of consideration that is provided as part of a lease agreement. Thus, contends Total, when s. 5(7) speaks to the obligation to pay PST on “the rent payable”, it must be read as referring only to services that a lessee is obliged to purchase as a condition of a lease agreement. [ 31 ] Total argues that its view of the Act is supported by the legislative record.

It points out that, when the definition of rent was added to the Act in 1970, the Provincial Treasurer of the day explained the rationale for so doing and for making other amendments to the Act . With respect to the meaning of rent , the Minister stated as follows at Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) 16th Leg, 3rd Sess (19 March 1970) at 1054 (Mr. Steuart): 3. Rental charges are now subject to tax.

In recent years some lessors have attempted to reduce the rental charges for tax purposes by deducting there from consideration for royalty, finance, insurance, maintenance and similar charges, notwithstanding the fact the lessee is obligated to pay these charges as an element of the total rental. This will be changed and tightened up. 4. The merits of Total’s position [ 32 ] I am not persuaded by Total’s submissions.

They fail to give effect to the wording used by the Legislature in the Act and, ultimately, do not accord with the plain meaning of that language. [ 33 ] In my respectful view, Total’s argument breaks down at the beginning of its line of reasoning, i.e., with its treatment of consideration . Section 3(1) (

b) defines consideration to mean “money paid or agreed to be paid…and includes a service charge [or] transportation charge…in respect of the sale [which includes lease] of…tangible personal property whether or not the charge…is shown

separately on any invoice”. It is well settled that in respect of is a phrase of very broad scope. For example, in R v Nowegijick, (SCC), [1983] 1 SCR 29 at 39, Dickson J. (as he then was) observed that in respect of is “probably the widest of any expressionintended to convey some connection between two related subject matters”. See also: Markevich v Canada, 2003 SCC 9 at para 26, [2003]1 SCR 94. [34] Thus, when s. 3(1)(

b) refers to a “service charge [or] transportation charge…in respect of the [lease] of…tangible personalproperty”, it must be read as taking something other than the strict view of the required connection between that charge and the lease inissue contended for by Total. Significantly, the Legislature did not say that consideration includes a transportation charge where thecharge is part of a sale (lease) agreement or where the purchaser (lessee) is obligated to buy the service as a condition of entering the sale(lease) agreement.

Rather, the Legislature referred more broadly to a service charge or transportation charge in respect of a sale (lease) oftangible personal property. [35] Further, s. 3(1)(

b) expressly provides that a transportation charge in respect of the lease of tangible personal property isconsideration even if it is “shown separately on any invoice or in the books of the [lessor] or of the [lessee]”. This language also suggeststhat consideration can include service charges and transportation charges beyond those provided for as a term of a lease agreement itself. [36] The same sort of difficulty characterizes Total’s approach to the term rent. As noted above, s. 3(1)(

g) defines rent to include“any other consideration given or agreed to be given for any…service…in respect of tangible personal property that is the subject of alease whether or not such other consideration is included in the lease or shown separately on any invoice”. This indication that rentincludes consideration for any service in respect of tangible personal property, a broad conception of things, is also difficult to square withTotal’s strict view of rent. [37] Further, I note that the definition of rent does not refer to consideration paid in respect of a lease agreement.

That sort oflanguage might suggest that the consideration in issue has to be tied to the lease itself. Rather, the concept of rent in s. 3(1)(

g) is based onthe idea of consideration payable in respect of “tangible personal property that is the subject of a lease”.

This reference to the property inissue, as opposed to the legal agreement by which that property is made available to the lessee, does not support Total’s position that PSTis payable on transportation services only when the lessee obtains those services as part of a lease agreement itself. [38] Finally, on the question of the meaning of rent, the idea that rent includes consideration “whether or not such otherconsideration is included in the lease” is very unusual language for the Legislature to have employed if, as Total argues, rent covers theconsideration paid for transportation services only if those services are included as part of a lease agreement.

In other words, if rent relatesonly to payments made pursuant to a lease, why would the Legislature have said that PST is payable in circumstances when suchconsideration is not included in the lease? [39] Let me also add that I do not find the excerpt from Hansard relied on by Total to be particularly compelling.

In that excerpt, theProvincial Treasurer observed that some lessors had attempted to reduce rental charges for tax purposes by deducting finance,maintenance and similar charges “notwithstanding the fact the lessee is obligated to pay these charges as an element of the total rental”.The Provincial Treasurer then added, “This will be changed and tightened up”. I would observe, first, that these remarks must beappreciated for what they were – a very broad and introductory overview of the proposed amendments to the Act offered on secondreading.

As such, they cannot be taken to have been an exhaustive prescription of the full impact or scope of those amendments. TheProvincial Treasurer explained the overall purpose of the amendment as one of tightening up the Act.

It is entirely reasonable to think thatthis would include ensuring that PST was payable in relation to transportation services provided to a lessee in respect of the tangiblepersonal property in question regardless of whether those services are formally provided as part of the lease agreement itself or as part of aparallel agreement. [40] Total presents an artful argument but, in my respectful view and at the end of the day, s. 5(7) of the Act is not particularlydifficult to interpret and apply in the circumstances at hand.

The ordinary and grammatical meaning of the words used in it, read inaccordance with the dictates of s. 2-10 of The Legislation Act, say it all. A person who leases tangible personal property must pay a taxwith respect to the use of that property in the amount of six percent of the rent payable.

Rent, in this context and as per s. 3(1)(g), includesconsideration given for any service in respect of the property whether or not such consideration is included in the lease or shownseparately on any invoice. [41] Here, Total offered its customers both equipment for lease and transportation services to get that equipment to job sites from itsbases of operation in Midale and Carlyle. Those two lines of business apparently operated largely out of different buildings, at least inMidale, and the services in question were invoiced separately.

However, the lease of the equipment in issue and the transportation servicesin respect of them were hardly unrelated. They were provided by Total under a single corporate umbrella. The Midale buildings were inthe same yard and the workers involved in rental and transportation services were all overseen by the same manager. Moreover, customerscontacting Total would do so by speaking to a single dispatcher in Midale who would then, as appropriate, send out trucks and/orequipment. The operations in Carlyle were smaller and, as Walter Crawford, a Total manager, explained, “one guy gets to wear all thehats”.

The following exchange involving Mr. Crawford and Total’s counsel, is instructive: Q Did you ever communicate to customers that, “If you need any truckingdone or any hauling done in respect of our equipment, we want to be theones to do it and it’s a precondition of your lease that we have thatopportunity to do it”?A We always tried to. We weren’t always successful and we sort of had arule, probably from the fellow that taught me, not to push that too hard.If you -- because you might lose both sides, so if they don’t -- if theywant to rent it, great. If they want to rent it and truck it, better.

If theywant to just do one or the other, take what you can get. [42] In light of these realities, I conclude that the transportation services provided by Total were provided in respect of theequipment being leased by Total and that they attracted PST pursuant to s. 5(7) of the Act. If a lessor provides transportation services to alessee in respect of the tangible personal property that is the subject of a lease, those services attract PST regardless of whether the lessee

is bound to pay for those services as part of the lease agreement itself. C. Estoppel and officially induced error [ 43 ] Total also raised, but very appropriately did not press, arguments to the effect that the doctrines of estoppel and officially induced error operate to insulate it against the PST liability found by the Minister. On this front, Total argues that it contacted the Minister’s officials for guidance concerning the tax status of its transportation services and then collected PST in accordance with that advice.

There are two basic problems with this argument. [ 44 ] First, the Board’s findings of fact (which have not been appealed) do not support an argument to the effect that Total received inaccurate advice or information from the Minister’s officials. At paragraph 29 of its decision, the Board said that it believed “the information the Ministry provided was up to date and accurate”. Further, at paragraph 35 of its decision, the Board said that it found “the Ministry did not provide incorrect information; [Total’s] mistake lies in its incorrect

interpretation of the information the Ministry provided”. [ 45 ] Second, the law in this area runs strongly against Total. The doctrine of estoppel has little or no place to take root in the tax context. The Federal Court of Appeal made this point in Satinder v Canada (Attorney General) , 2002 FCA 491 : [9] …In a tax appeal, where the fundamental question is whether a person has been taxed in accordance with the taxing statute, the correct

interpretation of the taxing statute will always trump the principle of estoppel… [ 46 ] The doctrine of officially induced error also has no place in the present context. It is a criminal law defence and has been found to be simply inapplicable to appeals from tax assessments. Thus, for example, in R v Klassen , 2007 FCA 339 , the Federal Court of Appeal wrote as follows: [27] Finally, I see no basis in the appellant’s contention that the assessment should be varied based on an officially induced error.

It is trite law that the relief granted by the courts in an appeal against a reassessment under ITA must be based on the law. If in fact the appellant was misled through negligence, some other remedy may be available. However, no relief can be granted on this basis in the context of a tax appeal. [ 47 ] In the end, therefore, I find that Total’s arguments concerning estoppel and officially induced error cannot succeed. VI. CONCLUSION [ 48 ] For the reasons given above, I conclude that Total’s appeal must be dismissed. The Minister is entitled to costs in the usual way. “Richards C.J.S.” Richards C.J.S.

I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.