Maguire,
DJ:—The
plaintiff
appeals
from
the
decision
of
Roland
St
Onge,
QC,
a
member
of
the
Tax
Review
Board,
dated
January
7,
1980,
holding
that
certain
materials
used
by
plaintiff
in
its
construction
business
or
operations
came
within
Class
10,
Schedule
B,
of
the
Regulations
to
the
Income
Tax
Act
for
the
purpose
of
yearly
capital
cost
allowance,
and
not
within
Class
12
of
said
Regulations.
Plaintiff
is
in
the
business
of
constructing
concrete
basements
for
houses
and
other
buildings,
in
which
it
requires
forms
to
hold
the
wet
concrete
in
place
until
it
sets.
In
the
1977
taxation
year
plaintiff
purchased
aluminum
metal
panels
or
sheets
to
be
used
for
the
said
purpose,
at
a
cost
of
$45,700,
and
in
its
income
tax
return
for
that
year
it
included
this
cost
as
within
said
Class
12,
Schedule
B,
of
the
Regulations
thereby
claiming
capital
cost
allowance
at
the
rate
of
100
percent.
In
assessing
the
plaintiff,
the
Minister
of
National
Revenue
assumed,
inter
alia,
that:
(a)
metal
forms
consist
of
a
contractor’s
movable
equipment;
(b)
are
not
in
the
form
of
a
die,
jig,
pattern,
mould
or
last;
(c)
the
metal
forms
were
neither
hollow
nor
a
fixed
pattern
or
shape,
but
usually
consisted
of
metal
sheets
which
were
assembled
on
each
building
site
to
match
the
dimensions
of
a
particular
house
under
construction.
The
use
of
the
term
“forms”
cannot
be
interpreted
as
meaning
“forms”
in
a
permanent
form,
but
means
the
metal
panels
or
sheets
as
purchased.
There
is
no
dispute
on
this
point.
Class
10
(30%)
includes
(h)
contractor’s
movable
equipment
(including
portable
camp
buildings)
other
than
a
property
included
in
Class
22.
Class
22
has
no
application
here.
Class
12
(100%)
includes
(d)
a
die,
jig,
pattern,
mould
or
last.
As
set
forth
in
assumption
(c),
the
metal
sheets
or
panels
are
used
to
construct
a
form,
to
receive
the
wet
concrete.
This
form
following
use
is
taken
apart
following
the
hardening
of
the
concrete,
and
the
sheets
are
re-used
with
such
variations
as
required
in
the
next
construction
to
meet
the
variables
required
by
the
next
construction
project.
Counsel
for
plaintiff
submits
that
movable
equipment
usually
refers
to.
equipment
movable
under
its
own
power.
Movable
is
defined
in
general
dictionaries,
as
also
in
legal
words
and
phrases
dictionaries,
as
something
capable
of
being
moved.
I
cannot
give
the
meaning
to
these
words
as
submitted
by
said
counsel.
Plaintiff
asserts
that
the
sheets
as
so
used
constitute
a
mould
as
listed
in
Class
12(d).
In
other
words,
that
it
is
the
ultimate
use
made
which
determines
the
class.
It
is
further
submitted
that
the
“Ejusdem
Generis”
rule
has
here
no
application.
Assuming
for
the
moment
that
“mould”
is
a
general
term
it
is
apparent
that
all
other
descriptive
words
listed
in
said
Class
12(d)
are
particular
and
specific
words,
each
permanent
in
form,
and
in
use
yielding
a
product
identical
each
time
in
the
form
determined
by
the
die,
jig,
etc.
The
word
“mould”,
in
my
opinion,
falls
within
the
same
class
and
cannot
be
applied
to
such
as
metal
sheets
assembled
to
meet
the
particular
requirements
of
each
use.
“Mould”
must
be
interpreted
as
restricted
to
the
same
“genus”
as
the
other
words
in
this
subsection.
Plaintiff’s
counsel
further
submits
that
when
wood
sheets
with
other
wood
parts
were
used
previously
for
the
same
purpose
as
these
metal
sheets
that
100%
allowance
was
approved.
There
is
a
marked
distinction,
however,
in
that
the
wooden
sheets,
etc,
use
had
a
lifetime
of
only
some
three
months,
whereas
these
metal
sheets
have
an
estimated
lifetime
use
of
some
four
years.
Following
careful
consideration
of
all
issues
raised,
I
am
of
the
opinion
that
the
metal
sheets
are
“contractors’
equipment,
with
Class
10(h)”.
The
decision
of
the
Tax
Review
Board
contains
the
following
paragraph:
According
to
the
evidence
adduced
and
after
a
careful
scrutiny
of
the
different
classes
of
depreciation,
the
Board
believes
that,
in
trying
to
decide
in
which
class
an
asset
belongs
for
capital
cost
allowance
purposes,
the
priority
should
be
given
to
the
life
expectancy
of
an
asset.
In
the
case
at
bar,
it
is
obvious
that
the
life
expectancy
of
the
asset
is
from
three
to
four
years,
and
consequently
the
proper
rate
of
depreciation
would
be
that
of
Class
10(h)
at
30%.
There
is
authority
that
the
statutory
scheme
of
the
Income
Tax
Act
is
to
allow
depreciation
depending
upon
the
time
of
the
effective
usefulness
of
the
depreciable
asset.
In
view
of
the
decision
arrived
at,
I
need
not
review
this
basis
of
allowance.
The
action
is
dismissed,
and
the
decision
of
the
Tax
Review
Board
is
upheld.
Defendant
shall
have
its
costs
of
this
action
from
the
plaintiff.
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