In this case the New Brunswick Court of Appeal determined that "boom trucks" qualify as "special mobile equipment" under s. 1 of the Motor Vehicle Act, R.S.N.B. 1973, c. M-17 (MVA) and s. 7(6) of its General Regulation 83-42. Robertson J.A., writing for the court, noted an apparent discrepancy between the definitions in the statutory provision and the regulation and held that the statutory definition must therefore prevail. If any doubt remained as to how to resolve the apparent inconsistency, Justice Robertson was prepared to invoke the residual presumption in favour of the taxpayer.
After applying for and obtaining class "M" registration plates for its boom trucks for almost twenty years, the appellant was informed by the Registrar of Motor Vehicles that it must instead obtain more expensive class "L" plates. Justice Robertson held that the Registrar's legal interpretation of "special mobile equipment", as a question of law, was owed no deference by the court. Finding that there was "no obvious correlation" between the definition in the MVA and its regulations, he concluded that the simplest approach to resolving the inconsistency was to determine if boom trucks meet the criteria set out in the statutory definition. If so, nothing in the regulations should be able to undermine that conclusion. The MVA specifically refers to "concrete mixers" and "ditch digging apparatus" in its definition of special mobile equipment and Justice Robertson found that boom trucks fall in the same general class as those vehicles. His conclusion was aided by the residual presumption in favour of the taxpayer, which "should not be lost in future cases where the Attorney General is called upon to defend the government’s interpretation of fiscal legislation."
September 22, 2011
Link to Decision
Marc Gibson & Daniel Lo
*
No comments:
Post a Comment