Nunavunmi Apiqhuidjutainut Uuktuffaarutit

Nunavut Court of Appeal

Cour d'appel du Nunavut
Citation: Nunavut v Agnico-Eagle Mines Ltd., 2016 NUCA 02
Date: 2016-03-03
Docket: 08-14-009-CAC
Registry: Iqaluit
Between:

Government of Nunavut as Represented by the

Attorney General of Nunavut and the Minister of Finance
Appellant
(Respondent)

-and-

Agnico-Eagle Mines Ltd.

Respondent
(Applicant)

_______________________________________________________
The Court:
The Honourable Mr. Justice Frans Slatter
The Honourable Madam Justice Shannon Smallwood
The Honourable Madam Justice Frederica Schutz

Memorandum of Judgment
Appeal from the Judgment by
The Honourable Mr. Justice A. Mahar
Dated the 30th day of October, 2014
(2014 NUCJ 30, Docket: 08-13-523-CVA)

Table of Contents
MEMORANDUM OF JUDGMENT ...................................................................................... 3
I. OVERVIEW ................................................................................................................................ 3
II. BACKGROUND FACTS AND RELEVANT REGULATIONS............................................ 3
III. REASONS OF THE TRIAL COURT .................................................................................... 6
A. The proper interpretation of ss 8(4) and (4.1) of the Regulations ............................... 6
B. Whether the Minister correctly denied all of Agnicos claimed rebates ...................... 8
C. Whether the doctrine of promissory estoppel applied to lawfully preclude the
Government from relying upon the deadline of March 31 found in s 8(4.1) to deny part
of Agnicos claimed rebates.................................................................................................... 8
V. ANALYSIS .............................................................................................................................. 10
A. Issues on appeal and standard of review ...................................................................... 10
B. The limits of promissory estoppel in the public law context........................................ 11
C. Promissory estoppel is not available in this case ........................................................ 14
(i). Agnico did not rely on the 2012 Guidelines.................................................................. 15
(ii). Robitaille and Mount Sinai are complete answers ..................................................... 15
(iii). The rebate form was not part of the Regulations ...................................................... 17
VI. CONCLUSION ...................................................................................................................... 18

MEMORANDUM OF JUDGMENT
(NOTE: This document may have been edited for publication)

I. OVERVIEW
[1]

This appeal arises in the public law context and concerns the interplay
between the doctrine of promissory estoppel and express statutory
provisions.

II. BACKGROUND FACTS AND RELEVANT REGULATIONS

[2]

In 2006, the Government implemented a Petroleum Product Tax Rebate

Program and passed Tax Rebate Regulations, Nu Reg 012-2006, which
permit certain entities to apply for a rebate of territorial taxes paid on
petroleum products (fuel) used in the course of qualified activities.

[3]

Agnico-Eagle Mines Ltd., is a mineral extraction corporation operating within

the territorial boundaries of Nunavut that has entered into a development
partnership agreement with the Government. Under s 5 of the Regulations,
because Agnico is a corporation incorporated or registered under the
Business Corporations Act that engages in a particular mine development,
mine extraction or mine reclamation, Agnico
is eligible to apply for a tax rebate on eligible petroleum products used
directly for the purposes of that mine development, mine extraction or mine
reclamation if the corporation has entered into and is in compliance with a
development partnership agreement with the Government of Nunavut.

At all material times Agnico was the only taxpayer captured by s 5.

[4]

Before 2012, s 8(4) of the Regulations required that all tax rebate
applications be submitted within one year from the date of purchase of
eligible petroleum products. In May of 2012, the Regulations were amended
to add s 8(4.1), which contained an additional application deadline specific
to s 5 companies that required rebate applications to be submitted by March
31, in respect of eligible petroleum products purchased in or brought into
Nunavut in the preceding year.

[5]

The filing deadline set out in s 8(4.1) was lawfully published in accordance
with the Statutory Instruments Act, R.S.N.W.T. 1988, c S-13, s 9(1)
(Nunavut), which stipulates that [s]ubject to any regulations made under
paragraph 19(a) or 19(b), every statutory instrument shall be published in
the Nunavut Gazette within three months after being registered under
section 5. The Petroleum Product Tax Act; Tax Rebate Regulations,
amendment, including s 8(4.1), was published in the Nunavut Gazette on
May 25, 2012 (Nunavut Gazette, 2012-05-25, Part II, Vol. 14, No. 5, pages
17-18), and posted on the Government website on October 19, 2012.

[6]

The Government did not update the Rebate Program Guidelines

[Guidelines] to reflect the additional submission deadline date applicable to
s 5 companies, despite having updated the Guidelines in the same month
that s 8(4.1) of the Regulations was added to the rebate requirements. And,
the rebate claim form did not include the additional deadline for s 5
corporations; rather, it said only that no rebate could be claimed for fuel
purchased over one year before the application, thus mirroring and
reflecting only the requirement found in s 8(4).

[7]

The Finance Ministry did not advise Agnico of the changed deadline, even
though it was the only taxpayer affected by the addition of s 8(4.1) to the
Regulations.

[8]

On May 23, 2013, Agnico submitted two rebate applications totalling $1.96
million for fuel purchased in June, July, and October of 2012. Application 1
claimed roughly $1.46 million in tax rebates relating to fuel purchased in
June and July of 2012, and delivered to Nunavut in July and August of 2012.
Agnico used roughly 40% of this fuel for qualified purposes within the 2012
calendar year. The remainder was consumed between January and midMay of 2013. Application 2 claimed slightly more than $494,576 in tax
rebates for fuel purchased and delivered to Nunavut in October 2012. This
fuel was consumed for qualified purposes in the spring of 2013. Combined,
the two applications represented Agnicos purchase of over 63.4 million
litres of fuel.

[9]

On July 12, 2013, the Governments Minister denied all tax rebates claimed
because Agnico had failed to submit the rebate claims no later than the
March 31, 2013, deadline contained in s 8(4.1) of the Regulations.

[10] Agnico sought judicial review of the Ministers disallowance decision and
the hearing judge overturned the Ministers disallowance (Agnico Eagle v
GN, 2014 NUCJ 30, 2014 Nu J No 29 (QL) [Agnico]).

[11] The relevant sections of the Tax Rebate Regulations, Nu Reg 012-2006 are:
1(1) In these regulations,
eligible petroleum products means petroleum products used in Nunavut in
qualifying equipment and machinery;

qualifying equipment and machinery means any equipment or machinery

that is used in harvesting activities, mine development, mine extraction, mine
reclamation or mineral exploration, including the following equipment or
machinery

5. A corporation incorporated or registered under the Business Corporations

Act that engages in a particular mine development, mine extraction or mine
reclamation is eligible to apply for a tax rebate on eligible petroleum products
used directly for the purposes of that mine development, mine extraction or
mine reclamation if the corporation has entered into and is in compliance with
a development partnership agreement with the Government of Nunavut.

8. (1) An application for a tax rebate must be completed in the form approved
by the Minister and must include receipts for petroleum products purchased in
or brought into Nunavut and evidence showing that they were eligible
petroleum products.
(2) An application made by a person referred to in section 4 must also include
the following:
(a)
a copy of the licence to prospect;
(b)
documents, records or other evidence showing that the applicant
engaged in mineral exploration activities during the period;
(c)
documents, records or other evidence showing that the petroleum
products were used solely in qualifying equipment and machinery
and directly in mineral exploration.
(3) An application made by a person referred to in section 5 must also include
the following:
(a)
a copy of the development partnership agreement;
(b)
a copy of the mining lease;
(c)
documents, records or other evidence showing that the applicant
engaged in mine development, mine extraction or mine
reclamation activities during the period;
(d)
documents, records or other evidence showing that the petroleum
products were used solely in qualifying equipment and machinery
and directly in mine development, mine extraction or mine
reclamation.

6
(4) An application for a tax rebate must be submitted within one year after the
petroleum products were purchased in or brought into Nunavut, and may be
submitted every six months.
(4.1) Despite subsection (4), an application made by a person referred to in
section 5 must be submitted on or before March 31 in respect of eligible
petroleum products purchased in or brought into Nunavut in the preceding
year.

[12] In quashing the Ministers disallowance of Agnicos claimed rebates, the

hearing judge addressed three issues: the proper interpretation of ss 8(4)
and (4.1) of the Regulations; whether the Minister correctly denied all of
Agnicos claimed rebates; and whether the doctrine of promissory estoppel
applied to lawfully preclude the Government from relying upon the deadline
of March 31 found in s 8(4.1) to deny part of Agnicos claimed rebates.
III. REASONS OF THE TRIAL COURT
A. The proper interpretation of ss 8(4) and (4.1) of the Regulations
[13] Before the hearing judge, the Government asserted that s 8(4.1) had
repealed s 8(4) as it applied to s 5 companies, unsuccessfully arguing that s
8(4.1) required s 5 companies to: (1) purchase and use fuel for eligible
purposes in the same calendar year; and (2) submit applications by March
31 of the following year in order to be eligible for a rebate (Agnico at para
51). Applying the Governments interpretation of s 8(4.1), the portion of
petroleum purchased and put to qualified use in 2012 was eligible for a
rebate only if Agnico submitted its application by March 31, 2013. Agnicos
failure to file its rebate claim by March 31, 2013, required the Minister to
disallow this portion of the claimed rebate. As for the remaining two-thirds of
fuel purchased in 2012, the Government contended that Agnico was not
entitled to any rebate because the eligible petroleum products were
consumed in the following calendar year and thus, were not eligible at the
time the rebate application was due.

[14] The hearing judge rejected the Governments interpretation because it

created an absurd and undesirable requirement for s 5 companies to
purchase and consume products in the same calendar year in order to be
eligible for a tax rebate (Agnico at para 51). Since the seasonal realities of
Nunavut dictate that fuel delivery can only take place by boat between June
and October (Agnico at para 20), s 8(4) which permits rebate application
submissions within one year of the date of purchase accounted for the
short shipping season by permitting companies to purchase fuel near the
end of one calendar year for use at the start of the next and still qualify for
rebates. To read s 8(4.1) as eclipsing s 8(4) for s 5 companies would defy
the simple logic of reality and make otherwise claimable rebates impossible
to claim because of the short shipping season in Nunavut (Agnico at para
59).
[15] Instead, the hearing judge read ss 8(4) and (4.1) harmoniously, finding that
s 5 companies such as Agnico are subject to both deadlines (Agnico at
paras 63, 67). If a s 5 company purchases and uses fuel in the same
calendar year, s 8(4.1) governs and the company must submit a rebate
application for that fuel by March 31 of the following year. If, on the other
hand, a s 5 company purchases fuel in one year and puts it to an eligible
use in the following year, s 8(4) applies and a rebate can be claimed
provided the requirements for a rebate claim are submitted within one year
from the date of purchase. Under this harmonious reading of the two
sections, s 5 companies must claim a tax rebate for all fuel used for an
eligible defined purpose no later than the earliest of one year from the date
of its purchase or import or March 31st of the year following the calendar
year in which it was used (Agnico at para 62).

B. Whether the Minister correctly denied all of Agnicos claimed rebates

[16] Given the Ministers misinterpretation of ss 8(4) and (4.1) of the Regulations,
it followed that Agnico was unlawfully denied some portion of its claimed
rebates. Agnico ought to have been rebated for the fuel purchased in 2012,
and put to eligible use in the spring of 2013, because the rebate applications
were submitted within a year of purchase, compliant with s 8(4) (Agnico at
para 64). Since this portion of the fuel was purchased and consumed in
different calendar years, s 8(4.1) did not apply and Agnico was not bound by
the added March 31 deadline (Agnico at para 64). But, the fuel purchased
and consumed in 2012, fell under the new deadline requirement of s 8(4.1).
Accordingly, since Agnico missed the mandated March 31, 2013, application
deadline, the hearing judge held at para 65:
The only fuel they could not claim a rebate for under the new deadline of
March 31, 2013, is that portion of eligible petroleum products referenced in
Application 1 which were consumed before December 31, 2012, as these
clearly fall into the previous calendar year, which is also the year in which
they were purchased. The amount of fuel subject to the March 31 missed
deadline is 19,707,555 litres.

C. Whether the doctrine of promissory estoppel applied to lawfully

preclude the Government from relying upon the deadline of March 31 found
in s 8(4.1) to deny part of Agnicos claimed rebates
[17] Despite Agnico admittedly missing the regulated deadline of March 31 found
in s 8(4.1), the hearing judge decided that the doctrine of promissory
estoppel came to Agnicos rescue and its application precluded the Minister
from relying upon the otherwise perfectly lawful and fully promulgated
deadline found in s 8(4.1). He justified the application of promissory
estoppel on three discrete bases.

[18] First, he distinguished several authorities standing for the proposition that
promissory estoppel does not apply where the induced error or the public
officials representation is the result of an incorrect interpretation of a
statute, as opposed to a discretionary conferral of rights or entitlements
(Agnico at paras 73-78). The hearing judge held that the issue before him
was not the correct interpretation of the applicable Regulations. Rather,
confronting him was a different issue that demanded judicial review and
intervention; that is, what he viewed as the unfairness of the Government
Ministers disallowance of a rebate for tax paid on 19,707,555 litres of fuel
by sheltering behind the statutory language of s 8(4.1), characterizing the
Governments lack of reasonable steps to inform as essentially taxation
by ambush (Agnico at para 79).
[19] Second, Agnico was the only company under s 5 that was legally affected
by the March 31 deadline in s 8(4.1), and Agnico had an active relationship
with the Government through the development partnership agreement. The
hearing judge found that [i]f it was too much trouble to update the official
Government of Nunavut Guidelines or the rebate claim forms, it would
surely not have placed too great a burden on the Government of Nunavut
for someone to send an email (Agnico at para 80).
[20] Third, despite very similar facts, he distinguished Gemini Biochemical
Research Ltd v R, [1997] 3 CTC 2664, [1996] TCJ No 1780 [Gemini]. In
Gemini, the tax court upheld the Ministers decision to deny deductible
expenses to a taxpayer who missed the statutory filing deadline due to
reliance on old Canada Revenue Agency [CRA] Guidelines that did not
reflect the present deadline.

10

[21] The hearing judge found that

[i]f the Government is going to go so far as to create guidelines and forms to
assist taxpayers in complying with their obligations, then those guidelines and
forms should be kept up to date. People can be expected to rely on them, and
they should not be encouraged to do so to their detriment (Agnico at para 82).

Further, [g]iven the dramatic change that has occurred in the distribution of
information in the nearly 20 years since the Courts decision in Gemini, . . .
and [t]he most significant change since 1996 is the advent of the Internet
and its impact on communication, he decided that [i]t is not unreasonable
to expect that official information provided by the Government of Nunavut on
important matters such as filing deadlines for taxation be kept up to date
online (Agnico at para 82). He further found that [t]he obligation of the
Government to keep the taxpayer informed was particularly stark in this
case; the change to the deadline affected only one taxpayer, the impact was
significant, the relationship between the taxpayer and the Government was
ongoing, and the effort required to inform the taxpayer was minimal (Agnico
at para 83). And, even if he was wrong about the obligation of the
Government to keep the taxpayer informed in this case, [t]he failure to
update the Guidelines was unreasonable (Agnico at para 84).
[22] The hearing judge decided that, although the doctrine of promissory
estoppel will be a rare and unusual remedy in tax cases, in this
particular case, on these unusual facts, it is made out. The combined effect
of the misguiding Guidelines, the less than helpful forms, and a reasonable
reliance on the ongoing relationship between Agnico and the Government
leads to what is, in effect, a promise that the regime was continuing as it
had before (Agnico at para 85).

V. ANALYSIS
A. Issues on appeal and standard of review
[23] The Government does not appeal the hearing judges interpretation of
relevant provisions of the Regulations, and does not appeal the decision to
overturn part of the Minister of Finances initial disallowance.
[24] The Government appeals the hearing judges decision only as it relates to
overturning the Ministers disallowance of a rebate subject to the March 31
missed deadline concerning 19,707,555 litres of fuel on the basis of
promissory estoppel (Agnico at paras 87-89).

11

[25] The Government framed the issues on appeal in this order:

1. Can the doctrine of promissory estoppel ever serve to
overcome an express statutory provision?
2. If promissory estoppel can apply, then what conditions must
exist in order to justify the application of the doctrine of
promissory estoppel?
[26] Incorrectly enunciating a legal test, applying an incorrect standard, or failing
to consider a requisite factor constitute errors of law subject to review on the
correctness standard (Housen v Nikolaisen, 2002 SCC 33 at paras 27, 36,
[2002] 2 SCR 235 [Housen]). The hearing judges articulation of the
elements or criteria required to establish promissory estoppel is reviewable
for correctness.
[27] Within the confines of public law, whether the doctrine of promissory
estoppel can overcome an express statutory provision is a pure question of
law reviewable for correctness; on this question, the hearing judges
decision attracts no deference.
[28] Findings of fact and the application of the correct legal test to a set of facts
attract the deferential standard of review, for palpable and overriding error
(Housen at para 26).
[29] The application of promissory estoppel so as to avoid the application of the
clear legislative requirement found in s 8(4.1) is an extricable error of pure
law (see Kenora (Town) Hydro Electric Commission v Vacationland Dairy
Co-operative Ltd, [1994] 1 SCR 80 at 106, 110 DLR (4th) 449 [Kenora]),
wherein the Supreme Court of Canada affirmed that the availability of the
relief of estoppel given the legislative context is a matter of law.
B. The limits of promissory estoppel in the public law context
[30] The requirements for promissory estoppel were established in Maracle v
Travelers Indemnity Co of Canada, [1991] 2 SCR 50 at 57, 80 DLR (4th)
652 [Maracle]:
The party relying on the doctrine must establish that the other party has, [1] by
words or conduct, [2] made a promise or assurance which was intended to
affect their legal relationship and to be acted on. Furthermore, the representee
must establish that, [3] in reliance on the representation, [4] he acted on it or
in some way changed his position. . . . [T]he promise must be unambiguous
but could be inferred from circumstances.

12

[31] Promissory estoppel may be available against a public authority in narrow

circumstances (Mount Sinai Hospital Center v Qubec (Minister of Health
and Social Services, 2001 SCC 41 at para 40, [2001] 2 SCR 281 [Mount
Sinai]). The doctrine of promissory estoppel requires proof of a clear and
unambiguous promise made to a citizen by a public authority that the
citizen relies on (Immeubles Jacques Robitaille inc v Qubec (City), 2014
SCC 34 at para 19, [2014] 1 SCR 784 [Robitaille]). In addition to the
requirements in Maracle, the application of promissory estoppel in the public
law context requires sensitivity to the factual and legal context, the wording
of the statute, the status of the decision-maker, and an appreciation of the
legislative intent embodied in the power whose exercise is sought to be
estopped (Mount Sinai at paras 47, 51). Further, estoppel must yield in the
face of an express statutory provision and, sometimes, to overriding public
interest in the relevant legislation (Mount Sinai at para 47, citing St Anns
Island Shooting & Fishing Club Ltd v R, [1950] SCR 211 at 220, 1950 SCJ
No 2).
[32] In Kenora, the sole issue before the Supreme Court of Canada was whether
the Ontario utilities legislation precluded a defence of promissory estoppel
against the public utility company, Kenora Hydro, which supplied power to
local customers. The Town of Kenora [Town] was responsible for collecting
the accounts but in error a customer was under-billed. Attempts to recover
the shortfall met the defence of promissory estoppel. Kenora Hydro argued
in response that its governing legislation prohibited discriminatory pricing
among power customers, and estopping it from claiming the shortfall would
run contrary to this statutory prohibition by permitting the under-billed
customer to pay less for its power. Furthermore, it would cause the Town to
violate its positive statutory duty to ensure no customer is given preferential
power rates. The Court affirmed that the doctrine of estoppel cannot apply
where it would result in a public official acting in direct contravention of a
statutory provision, or permit a party to escape its statutory obligation
(Kenora at 108). A majority found that, although the legislation required the
Town to prevent deliberate unauthorized discrimination among power
customers, the provisions were not directed against simple negligent
mistakes that result in some customers receiving power on better terms
(Kenora at 111). Thus, there was no conflict between the constraining
legislation and applying estoppel to prevent the Town from reclaiming the
shortfall resulting from negligent accounting (Kenora at 112).
[33] Unlike the factual situation in Kenora, in this case the Government was not
guilty of negligent accounting and was not attempting to collect a shortfall;
rather, the Government was disallowing a rebate claim made too late.

13

[34] The Supreme Court of Canada most recently addressed the doctrine of
public promissory estoppel in Robitaille. A Quebec company had operated a
parking lot for years despite the lot being situated in a zone where such use
contravened the zoning by-law. The municipal court convicted the company
of a by-law offence. On appeal, the company argued that promissory
estoppel applied to preclude the municipality from enforcing the by-law,
since for years it had acknowledged and acquiesced in the unlawful use.
The superior court overturned the conviction; on further appeal, the Court of
Appeal restored the conviction and the Supreme Court of Canada affirmed
the decision of the Quebec Court of Appeal.
[35] The sole issue addressed by the Supreme Court of Canada was the
circumstances in which the doctrine of estoppel can be relied on in order to
avoid penal liability (Robitaille at para 2). The company asserted that the
municipality was estopped from reneging on its implicit promise that
authorized the companys continuing contravention of the zoning by-law; in
other words, the municipality could not resile from its implicit promise to
exempt the company from its persistent contravention of the applicable bylaw. The Supreme Court concluded that since a municipality cannot deviate
from its zoning by-laws or authorize such a deviation it cannot be forced
to do so by the means of the doctrine of estoppel (Robitaille at para 26).
The Court also held that [e]stoppel is of no assistance to a litigant who
wishes to avoid the application of a clear legislative provision in both the
penal and civil context (Robitaille at paras 4, 30).
[36] Robitaille stands for the proposition that promissory estoppel can apply
against public officials, but it only applies where the promise made is not
unlawful, and governmental officials possess actual statutory discretion or
power to do what is promised (Robitaille at para 21). In obiter, the Supreme
Court of Canada noted that if the municipality had injured the company in
some way, perhaps more appropriate than recourse to public estoppel might
have been an action in damages (Robitaille at para 38).

14

[37] In Minister of National Revenue v Inland Industries Ltd, [1974] SCR 514, 23
DLR (3d) 677 [Inland], a corporation applied to the Minister for registration of
a complex pension plan that provided for retroactive payments to members,
with the objective of avoiding taxes otherwise owing. Ministerial officials
mistakenly approved the plan when the plan did not meet the conditions for
registration, as prescribed by law. To correct this mistake, the Minister
issued reassessments; the affected corporation argued promissory
estoppel. The Supreme Court of Canada held that the Minister cannot be
bound by an approval given where the conditions prescribed by the law [for
that approval] were not met (at 523), and refused to hold the Minister to its
unambiguous, but mistaken promise because doing so would contravene
the clear statutory conditions for approval and require the Minister to act
beyond its statutory authority.
[38] In Nelson Consulting Services Ltd v R, [2002] GSTC 122 at para 5, 2003
GTC 506, the tax court considered itself bound by Inland, in that relying
upon bad advice from agents of the Minister cannot relieve a taxpayer from
the application of the law. In consequence of following incorrect advice from
Canada Revenue officials, the taxpayer failed to collect HST remittances.
Despite the taxpayers detrimental reliance on this wrong advice, the tax
court upheld the reassessments and refused to estop the Minister from
relying on and enforcing the unambiguous statutory obligations, which
obligations it found to be well-known and publicized.
C. Promissory estoppel is not available in this case
[39] Section 8(4.1) of the Regulations employs mandatory language (... an
application made by a person referred to in section 5 must be submitted on
or before March 31 in respect of eligible petroleum products purchased in or
brought into Nunavut in the preceding year) to establish a clear and
unambiguous March 31 deadline for submission of s 5 company tax rebate
applications.
[40] But, Agnico contends that by failing to update its Guidelines or its required
rebate form, the Government made a promise to waive or not enforce this
mandatory statutory deadline.
[41] There are three fatal obstacles to Agnicos contention:
a) First, Agnico did not actually rely upon the 2012 Guidelines
before it submitted its rebate form on May 23, 2013.

15

b) Second, Robitaille and Mount Sinai are complete answers to

Agnicos argument that the out-of-date Guidelines create
promissory estoppel that can rescue Agnico from its own failure
to meet the s 8(4.1) deadline.
c) Third, the rebate form was not part of the Regulations.
[42] Each of these is discussed further below.
(i). Agnico did not rely on the 2012 Guidelines
[43] The record is clear that, in fact, Agnico did not rely upon the 2012
Guidelines before it submitted its rebate form on May 23, 2013. The affidavit
evidence of Manon Lessard, sworn October 9, 2013, states at paras 50-53
that only the outdated 2006 and 2009 Guidelines were consulted in
preparing the rebate applications (Appeal Book, Vol 1, Part II, 9-10).
[44] Since Agnico admitted that it had not reviewed the 2012 Guidelines prior to
submitting its rebate forms in May of 2013, it is illogical to suggest that
Agnico detrimentally relied upon those Guidelines. As detrimental reliance is
a requisite element of promissory estoppel, any failure on the part of the
Government to update the 2012 Guidelines to include the s 8(4.1) 2012
regulation amendment is, thus, a red herring.
(ii). Robitaille and Mount Sinai are complete answers
[45] The equitable doctrine of promissory estoppel cannot be invoked to force
the Government to exempt Agnico from compliance with a regulated
deadline when the constraining statute gives no such lawful authority; the
legislation is paramount (Mount Sinai at para 47). The governing
legislation stipulates that eligible s 5 companies are entitled to fuel tax
rebates [w]here the applicant meets all the requirements of these
regulations and has paid tax on eligible petroleum products ... (Regulations,
s 7(1)). Agnico did not meet all the requirements of the Regulations.
[46] No one in Government possessed lawful discretion or authority under the
Regulations to grant rebates despite Agnicos failure to comply with a
mandatory deadline. Public law promissory estoppel cannot come to the aid
of the admittedly noncompliant Agnico because promissory estoppel is not
available to compel the Government to allow the tax rebate on the affected
19,707,555 litres of fuel in the face of clear non-compliance with the
regulatory deadline requirement of s 8(4.1).

16

[47] The hearing judge did not have the benefit of Robitaille, and did not apply
the ratio of Mount Sinai, both cases establishing pivotal considerations that
must be brought to bear when determining the availability of promissory
estoppel in the public law context. In Robitaille, although dealing with
promissory estoppel in a regulatory offence situation, the Supreme Court of
Canada clearly held that the doctrine cannot be used to estop a public
official from applying a clear statutory provision, or from fulfilling a statutory
mandate. The hearing judge erred in law by failing to recognize this clear
limitation on the doctrine of promissory estoppel in the public law context,
and by applying the doctrine of promissory estoppel in the face of the
express legislative provision of s 8(4.1).
[48] Robitaille and Mount Sinai are binding authority and apply here. Agnico
cannot shield itself from its continuing obligation to pay the Government of
Nunavut taxes in the absence of a lawful entitlement to claimed tax rebates.
Agnico cannot use promissory estoppel so as to avoid the application of s
8(4.1).
[49] Even assuming that the Governments failure to update its Guidelines and
rebate form and to personally inform or advise Agnico of the additional
deadline contained in s 8(4.1) constituted a clear and unambiguous
promise not to enforce s 8(4.1), nonetheless promissory estoppel is not
available because the Minister has no statutory power to make such a
promise; as such, any assumed promise would be unlawful and
unenforceable.
[50] In attempting to extend the reach of promissory estoppel to this case, the
lower court incorrectly distinguished Irving Oil Ltd v R, [1984] 1 FC 281 at
para 3, 2 Admin LR 53, which held that estoppel and fairness arguments do
not apply when the issue is one of the correct interpretation of a statute as
opposed to a decision on rights or entitlement by a statutory authority, and
erred in defining the issue in this case as the fairness of the Ministers
decision to confer or deny the tax rebate entitlements, rather than correctly
recognizing that the proper interpretation of the express and mandatory
language of s 8(4.1) constrained or limited the application of the doctrine of
promissory estoppel (Agnico at para 75).

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[51] Under the Regulations, the Minister has no discretionary authority over the
conferral of tax rebates; rather, rebate entitlement is conditional upon
satisfaction of all the requirements and deadlines set out in the Regulations.
The regulated requirements and deadlines are not simply flexible, or
malleable, recommendations that the Minister may, or may choose not to,
consider. The Regulations have been properly and legally published in
accordance with the Nunavut Statutory Instruments Act, and notions of
fairness cannot apply.
[52] Assuming, without deciding, that the act of disallowing the late-filed rebate
claim is unfair because of limited dissemination of information concerning
the s 8(4.1) deadline, and even if it could rightly be found that the Minister
implicitly promised to respect only the s 8(4) deadline (and we do not), the
Minister has no lawful ability to ignore or waive the mandatory statutory
deadline in s 8(4.1) as it applied to Agnico.
(iii). The rebate form was not part of the Regulations
[53] Section 1 of the Statutory Instruments Act, R.S.N.W.T. 1988, c S-13
(Nunavut) provides as follows:
regulation means a statutory instrument
(a)
made in the exercise of a legislative power conferred by or under
an Act, or
(b)
for the contravention of which a penalty, fine or imprisonment is
imposed by or under an Act,
and includes a rule, order or regulation governing the practice or procedure in
any proceedings before a judicial or quasi-judicial body established by or
under an Act, but does not include a by-law, resolution, order or directive of a
local authority.

[54] Even assuming there was the requisite detrimental reliance by Agnico on
the rebate form, this rebate form was not passed by the regulation-making
authority, nor was the rebate form promulgated (put into lawful effect by
official proclamation) as part of the statutory instrument made or
established by the Regulations. Neither the Guidelines nor the rebate form
have the force of law; nor can these materials trump the express and
mandatory statutory language of s 8(4.1). Neither amounts to a promise by
the Government.

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[55] Finally, there was no authority offered, or of which we are aware, that
validates the hearing judges determination that the Government had a
positive obligation to warn or to personally advise Agnico of the deadline for
s 5 companies contained within s 8(4.1). Moreover, there is no basis for the
importation of such an obligation or duty into the public law domain, certainly
not as an extension of the well-established requisite elements of the
equitable doctrine of promissory estoppel.

VI. CONCLUSION
[56] In summary, the doctrine of promissory estoppel cannot apply to avoid the
application of the clear legislative provision of s 8(4.1) of the Regulations.
Moreover, given the binding authority of Robitaille, there is no room to
extend, reinterpret, expand, or import additional requisite elements into the
doctrine of promissory estoppel as would be necessary to spare Agnico the
harsh reality of its missing the deadline.
[57] Given this conclusion, we need not specifically address the Governments
second ground of appeal.
[58] The appeal is allowed, with the result that Agnico is not entitled to a rebate
for the 19,707,555 litres of fuel claimed in Application 1 which was
consumed prior to December 31, 2012, because Agnico missed the
legislated deadline for filing for a rebate with respect to these litres of fuel
and promissory estoppel cannot come to Agnicos aid.

Appeal heard on February 9, 2016

Memorandum filed at Iqaluit, Nunavut
This 3rd day of March, 2016

______________________
Slatter J.A.
______________________
Smallwood J.A.
______________________
Schutz J.A.

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Appearances:
A. Silk
for the Appellant (Respondent)
P. Mantas
for the Respondent (Appellant)