A definition of "hedging" was introduced, first by way of Regulation and, subsequently by amendment to the Mining Tax Act (Ontario), which had the effect of expanding the concept of mine production to include profits from related cash-settled derivative contracts. Respecting the intra vires of the introduction by Regulation, LeBel J. stated (at para. 38):
PDC raised several arguments, based on the statutory and constitutional limits on the power of the Lieutenant Governor in Council at the time, about the meaning of “hedging” when it was first introduced in the Regulation. Specifically, PDC argues that no power had been vested in the Lieutenant Governor in Council to make regulations imposing a new tax or expanding the existing tax base, and that any such attempt would have been contrary to s. 53 of the Constitution Act, 1867 , which requires that bills imposing any tax originate in the House of Commons. Both of these arguments depend for their validity on the proposition that the 1975 Regulation created a new tax or expanded the tax base. I am not satisfied that the 1975 Regulation can be so construed — it did not alter the primary definition of “gross receipts” in the Act, but merely clarified the method by which a subsidiary, discretionary amount was to be assessed. This does not, in my view, constitute a change of the radical nature that PDC suggests.