Bedford Discount Meat & Grocery v. Nova Scotia (Finance)

Bedford Discount Meat & Grocery v. Nova Scotia (Finance) Court Court of Appeal Date 1993-09-14 Citation 1993 NSCA 162 Docket CA 02779 Judge/Registrar/Adjudicator Clarke, Lorne O. (Honourable Chief Justice); Hart, Gordon L.S. (Honourable Justice); Jones, Malachi C. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 02779 NOVA SCOTIA COURT OF APPEAL Clarke, C.J.N.S.; Hart and Jones, JJ.A. Cite as: Bedford Discount Meat & Grocery v. Nova Scotia (Finance), 1993 NSCA 162 BETWEEN: BEDFORD DISCOUNT MEAT & GROCERY ) Robert Murrant, Q.C. ) for the Appellant Appellant ) ) ) John D. Wood - and - ) for the Respondent ) ) THE MINISTER OF FINANCE FOR THE ) PROVINCE OF NOVA SCOTIA ) ) Respondent ) ) Appeal Heard: ) September 14, 1993 ) ) Judgment Delivered: ) September 14, 1993 ) ) THE COURT: There being diverse opinions from two members of the Nova Scotia Tax Review Board on an appeal from the Provincial Tax Commissioner, the Court allowed the appeal and remitted the matter to the Board for a rehearing before a properly constituted tribunal, per oral reasons for judgment of Clarke, C.J.N.S.; Hart and Jones, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: CLARKE, C.J.N.S.: An audit of the appellant pursuant to the Health Services Tax Act, R.S. 1989, chapter 198, resulted in an assessment of $34,257.37 including tax, interest and penalty. The appellant disputed the assessment and filed a notice of objection with the Provincial Tax Commissioner who confirmed it. Thereupon the appellant appealed to the Nova Scotia Tax Review Board (now the Nova Scotia Utility and Review Board). The appeal was heard by two members of the Board. Each member filed his opinion on October 23, 1992. Each reached a different result. One upheld that portion of the assessment relating to the tax liability of the appellant but reversed the Commissioner on certain aspects of the interest and penalty assessment. The second said the Commissioner erred in law and he reversed the decision of the Commissioner. The result is that the Board rendered two diverse opinions. Both parties now appeal to this Court for relief. Section 21 of the Act provides that either the Minister or the appellant may appeal to this Court from the "decision" of the Board "upon any point of law raised upon the hearing of the appeal". The point of law is, what is the decision of the Board? The parties are unsure. A decision bespeaks a judgment or an order or a finding of the Board. Under s. 20L(5) the Board shall affirm, vary or reverse the decision of the Commissioner. Both the appellant taxpayer and the Minister are entitled to a full adjudication of the issues on the appeal with a decision at the end of the process. These two opinions leave them uncertain and confused. In fairness to both parties, it is our unanimous decision that the appeal is allowed and the matter is remitted to the Board for a rehearing of the appeal before a properly constituted tribunal. We so order, without costs. C.J.N.S. Concurred in: Hart, J.A. Jones, J.A.