Bonner,
T.C.J.:
—The
appellant
appeals
from
assessments
of
income
tax
for
the
1979
and
1980
taxation
years
of
its
predecessor
company,
Superior
Sanitation
Services
Inc.
The
appellant
operates
a
business
involving
the
collection,
removal
and
disposal
of
waste.
At
issue
in
these
appeals
is
the
classification
for
purposes
of
capital
cost
allowance
of
containers
used
by
the
appellant
in
carrying
on
that
business.
Those
containers
are
large
steel
bins.
In
making
the
disputed
assessments
the
respondent
acted
on
the
basis
that
the
appellant’s
containers
are
property
described
in
paragraph
(i)
of
Class
8
of
Schedule
II
to
the
Income
Tax
Regulations.
It
includes
"a
tangible
capital
property
that
is
not
included
in
another
class
in
this
Schedule
except
.
.
.”.
It
Was
not
suggested
that
the
containers
in
question
fall
in
any
of
the
exceptions.
That
provision
is
a
catch-all
or
basket
class
and
it
must
therefore
yield
to
any
other
class
which
contains
a
more
specific
description
of
the
property
in
question.
The
appellant's
position
is
that
the
containers
are
"included
in
another
class”.
Its
primary
position
is
that
they
are
"contractor's
movable
equipment"
within
the
meaning
of
paragraph
(h)
of
Class
10.
In
the
alternative
it
contends
that
they
are
"automotive
equipment"
and
thus
property
described
in
paragraph
(a)
of
Class
10
of
Schedule
II.
Class
10,
so
far
as
is
relevant,
reads:
Property
not
included
in
any
other
class
that
is
(a)
automotive
equipment,
including
a
trolley
bus,
(h)
contractor's
movable
equipment,
including
portable
camp
buildings
.
.
.
At
the
hearing
of
the
appeals
evidence
was
given
by
Gary
Lane,
an
official
of
Universal
Handling
Equipment
Company
Limited.
It
is
a
manufacturer
of
containers
of
the
type
in
question
and
of
the
equipment
which
is
attached
to
a
truck
chassis
to
permit
the
driver
of
the
truck
to
on-load,
off-load
and
dump
the
contents
of
the
containers.
Evidence
was
also
given
by
Bruce
Cook,
Regional
Vice-President
of
the
appellant.
The
dispute
in
this
case
is
not
one
of
fact
but
rather
involves
the
construction
of
Schedule
II.
A
brief
summary
of
the
evidence
will
therefore
suffice.
In
carrying
on
its
business,
the
appellant
enters
into
written
contracts
with
its
customers.
It
agrees
to
”.
.
.
provide
a
non
hazardous
waste
collection,
removal
and
disposal
service
.
.
.
and
containers
to
the
customer”.
The
containers
remain
the
property
of
the
appellant.
It
is
not
necessary
to
set
forth
the
terms
of
the
standard
form
contract
in
detail.
As
Mr.
Cook
put
it:
.
.
.
the
customer
is
satisfied
if
we
take
their
waste
and
make
it
disappear.
The
containers
in
issue
are
of
three
types.
Each
type
is
designed
for
use
as
part
of
a
system
intended
to
satisfy
a
particular
class
of
customer
demand.
One
type
of
container
is
designed
for
use
in
connection
with
front
loader
systems.
Such
systems
offer
to
commercial
customers
a
container
located
continuously
at
the
customer's
premises.
Refuse
can
be
placed
and
stored
in
it
pending
collection
and
removal.
Trucks
operated
by
the
appellant
visit
the
customer's
site
and
there
empty
the
container
by
means
of
a
hydraulic
mechanism
attached
to
the
truck
which
permits
the
raising
and
inverting
of
the
container
in
order
to
dump
its
contents
into
a
receptacle
attached
to
the
truck.
The
container,
once
emptied,
is
replaced
in
the
designated
location
at
the
customer's
site
for
purposes
of
refilling.
Maintenance
of
the
container
is
the
appellant's
responsibility.
Such
containers
vary
from
a
volume
of
two
cubic
yards
and
weight
of
600
pounds
to
a
volume
of
eight
cubic
yards
and
weight
in
excess
of
1500
pounds.
The
appellant's
front-loader
systems
are,
according
to
a
brochure
entered
in
evidence,
used
to
service
manufacturing
plants,
businesses,
hospitals,
airports,
restaurants,
apartment
buildings,
stores,
shopping
malls,
institutions
and
schools.
A
second
type
of
container
is
used
as
part
of
a
roll-off
system.
They
are
substantially
larger
than
containers
of
the
first
type.
Where
the
roll-off
system
is
used
the
container
is
delivered
to
the
customer's
site
by
a
truck
equipped
with
rails,
cables
and
a
hydraulic
system
which
permit
the
container
to
be
slid
off
the
back
of
the
truck
and
left
at
the
site.
When
the
container
has
been
filled
an
appropriately
equipped
truck
is
sent
to
pick
up
the
container
and
carry
it
to
the
dump
or
landfill
site
where
the
waste
is
to
be
discharged.
Systems
of
this
type
are
often
used
for
high
density
waste
which
cannot
readily
be
compressed
such
as
glass,
concrete
and
steel.
Containers
of
this
sort
are
often
seen
at
building
demolition
sites.
A
brochure
entered
into
evidence
states
that
the
following
industries
will
benefit
from
“roll-off”
systems,
namely:
.
.
.
manufacturers,
auto
industry,
glass
industry,
steel
or
metal
manufacturing,
construction,
large
retailers,
any
other
large
volume/high
density
producer.
A
brief
reference
was
made
to
a
third
type,
lugger
containers.
The
appellant
owns
a
relatively
small
number
of
such
containers
which
are
similar
to,
but
somewhat
smaller,
than
the
roll-off
containers
previously
described.
They
differ
from
roll-off
containers
in
that
they
are
not
tipped
during
the
loading
and
unloading
process
and
thus
can
be
used
for
liquid
waste.
Equipment
is
permanently
affixed
to
a
truck
chassis
for
the
purpose
of
allowing
lugger
containers
to
be
on-
and
off-loaded.
In
support
of
his
submission
that
the
containers
are
"contractor's
movable
equipment”,
Mr.
Stevenson,
counsel
for
the
appellant,
argued
that
the
appellant
is
to
be
regarded
as
a
contractor
because
it
enters
into
written
contracts
with
its
customers
for
the
provision
of
a
waste
disposal
service.
He
referred
to
a
number
of
dictionary
definitions
of
the
words
"contractor"
and
"equipment"
and,
as
well,
to
a
number
of
decisions
which
include
Les
Immeubles
Stanley
Tremblay
Ltée
v.
M.N.R.
(1963),
31
Tax
A.B.C.
1;
63
D.T.C.
91,
O.K.
Construction
and
Supply
Co.
Ltd.
v.
M.N.R.
(1958),
19
Tax
A.B.C.
232;
58
D.T.C.
316,
Halliburton
Services
Ltd.
v.
The
Queen,
[1985]
2
C.T.C.
52;
85
D.T.C.
5336
and
BXL
Explosives
v.
M.N.R.,
[1985]
2
C.T.C.
2256;
85
D.T.C.
579.
He
noted
that
in
the
Les
Immeubles
case
the
Tax
Appeal
Board
accepted
that
a
trucking
contractor
was
a
contractor
within
the
meaning
of
paragraph
(h)
of
Class
10
of
Schedule
B,
the
predecessor
to
Schedule
II.
He
pointed
as
well
to
the
following
passage
from
the
decision
of
the
Tax
Appeal
Board
in
O.K.
Construction,
supra,
at
page
321:
.
.
.
On
the
other
hand,
what
is
meant
by
"contractor's
movable
equipment”
is
equipment
set
up
in
one
place
and
which
could
be
moved
the
day
after
to
another
job.
The
situation
under
consideration
in
the
Halliburton,
supra,
case
was,
Mr.
Stevenson
said,
”.
.
.
closest
to
this
case”.
Counsel
for
the
respondent
acknowledged
that
the
containers
are
movable
and
are
equipment
but
he
submitted
that
the
appellant
is
not
a
contractor
and
that
the
containers
therefore
do
not
fall
within
paragraph
(h)
of
Class
10.
He
submitted
that
a
contractor
is
someone
who
does
something
to
real
estate
as
opposed
to
someone
who
does
something
on
real
estate.
He
sought
some
comfort
from
the
definition
of
the
word
"contractor"
contained
in
the
Canadian
Living
Webster
Encyclopedic
Dictionary
of
the
English
Language
as
follows;
"contractor",-One
who
or
that
which
contracts;
one
who
contracts
to
furnish
supplies
or
perform
work
at
a
certain
price
or
rate;
one
who
contracts
to
construct
building.
He
submitted
that
if
the
word
"contractor"
is
taken
to
mean
any
businessman
who
enters
into
contracts
in
carrying
on
his
business
the
ambit
of
Class
10(h)
would
be
almost
limitless.
He
did
not
assert
that
the
word
was
not
used
in
its
ordinary
sense
in
paragraph
(h)
of
the
class.
There
are
two
decisions
of
the
Federal
Court,
Trial
Division
bearing
on
the
meaning
to
be
attributed
to
paragraph
(h)
of
Class
10.
In
the
first,
Halliburton
Services
Ltd.
v.
The
Queen,
supra,
Reed,
J.
dealt
with
the
classification
of
truck
cabs
and
chassis
or
vans
to
which
have
been
attached
various
pieces
of
equipment
used
by
a
company
engaged
in
the
business
of
cementing,
fracturing
and
acidizing
oil
and
gas
wells.
Such
operations
appear
to
have
taken
place
at
the
well
site
and
to
have
required
equipment
bolted,
welded
or
otherwise
attached
to
the
truck
chassis.
Reed,
J.
found
that
the
cab
and
chassis
parts
were
automotive
equipment.
As
to
the
rest
of
the
equipment
mounted
on
the
truck
she
said:
(a)
"They
are
clearly
contractor's
movable
equipment.”
and
(b)
“It
would
be
a
travesty
of
logic
and
common
sense
to
classify
the
equipment
bolted
to
the
chassis
as
automotive
equipment."
In
Nowsco
Well
Service
Ltd.
v.
The
Queen,
[1988]
2
C.T.C.
24;
88
D.T.C.
6300,
Cullen,
J.
of
the
Federal
Court,
Trial
Division
arrived
at
a
different
conclusion
as
to
the
categorization
of
equipment
used
by
a
taxpayer
which
also
was
engaged
in
the
same
business,
namely
the
oil
well
service
business.
At
page
41
(D.T.C.
6313)
he
said:
I
note
in
passing
that
Reed
J.
in
Halliburton,
supra,
so
regarded
the
equipment
as
falling
into
Class
10
but
there
was
no
guidance
in
her
reasons
for
judgment
as
to
how
she
arrived
at
that
conclusion.
In
this
case,
I
looked
very
carefully
at
several
cases
advanced
by
the
plaintiff,
plus
interpretative
bulletins
directed
to
the
issue,
and
with
respect
cannot
agree
with
my
colleague
Reed
J.
As
stated
earlier,
I
accept
the
contention
of
the
plaintiff,
that
"for
the
purposes
of
Class
29,
one
includes
ancillary
to
the
processing
operation".
It
is
not
described
in
paragraph
10(a)
nor
19(h).
The
defendant
concedes
that
the
plaintiff
is
not
in
the
business
of
construction
and
upon
a
careful
examination
of
the
Interpretation
Bulletin
produced
there
is
a
clear
inference
that
what
is
intended
to
be
included
in
Class
10(h)
is
equipment
that
is
used
in
what
is
normally
regarded
as
construction.
The
Interpretation
Bulletin
to
which
Cullen,
J.
refers
is,
I
assume,
IT-306R
which
states
in
part:
.
.
.
the
term
'contractor's
movable
equipment'
has
a
wide
meaning
and,
subject
to
5
and
6
below,
is
intended
to
include
the
kind
of
equipment
that
normally
is
moved
from
place
to
place
in
the
course
of
construction
work.
That
kind
of
equipment
is
class
10
property
even
though
the
owner
is
not
a
construction
contractor;
for
example,
he
may
operate
an
equipment
rental
business.
I
have
some
reservations
as
to
the
weight
given
by
Cullen
J.
to
the
utterances
of
the
anonymous
author
of
the
Bulletin.
The
argument
advanced
by
counsel
for
the
respondent
is,
in
effect,
that
the
Bulletin
is
correct.
The
author
of
the
Bulletin
is,
I
imagine,
a
civil
servant
employed
by
the
respondent
who
after
all
is
one
of
the
parties
to
the
litigation.
There
is
no
indication
whether
the
author
of
the
Bulletin
is
qualified
to
interpret
legislation
or
whether
he
was
influenced
in
reaching
the
opinions
expressed
in
the
Bulletin
by
considerations
which
have
no
proper
place
in
the
process
of
statutory
interpretation.
It
is
one
thing
for
a
taxpayer
to
seek
comfort
from
a
Bulletin
in
support
of
a
contention
that
an
action
or
interpretation
of
the
respondent
is
in
conflict
with
some
administrative
interpretation
or
practice
which
has
stood
the
test
of
time.
It
is
quite
another
for
the
respondent
to
rely
on
the
writings
of
his
employees
in
an
attempt
to
restrict
the
language
of
a
statutory
or
regulatory
provision.
In
Nowegijick
v.
The
Queen
et
al.,
[1983]
1
S.C.R.
29;
[1983]
C.T.C.
20;
83
D.T.C.
5401,
Dickson,
J.,
as
he
then
was,
speaking
for
the
Supreme
Court,
dealt
with
the
use
of
Bulletins
at
page
24
(D.T.C.
5044)
as
follows:
Administrative
policy
and
interpretation
are
not
determinative
but
are
entitled
to
weight
and
can
be
an
"important
factor"
in
case
of
doubt
about
the
meaning
of
legislation:
per
de
Grandpré
J.
Hare/
v.
The
Deputy
Minister
of
Revenue
of
the
Province
of
Quebec,
[1978]
1
S.C.R.
851
at
p.
859.
During
argument
in
the
present
appeal
the
attention
of
the
Court
was
directed
to
Revenue
Canada
Interpretation
Bulletin
IT-62
dated
18
August
1972,
entitled:
"Indians".
Paragraph
1
of
the
Bulletin
reads:
This
bulletin
does
not
represent
a
change
in
either
law
or
assessing
policy
as
it
applies
to
the
taxation
of
Indians
but
is
intended
as
a
statement
of
the
Department's
interpretation
and
policies
that
have
been
established
for
several
years.
Two
observations
must
be
made:
(a)
the
Bulletin
in
question
stated
that
it
represented
long
standing
administrative
interpretation
and
policy
and
at
this
point
I
would
note
that
in
the
Harel
case
to
which
reference
is
made
by
Dickson,
J.,
stress
is
placed
on
the
fact
that
the
administrative
practice
in
question
was
one
of
long
standing;
(b)
it
was
the
taxpayer
in
that
case
and
not
the
respondent
who
sought
to
rely
on
the
Bulletin.
Neither
of
those
conditions
applies
in
this
case.
The
relevant
portions
of
the
French
version
of
Class
10,
paragraph
(h)
read:
Les
biens
non
compris
dans
aucune
autre
catégorie
constitués
par
a)
le
matériel
automobile,
y
compris
un
autobus
à
trolley,
mais
non
.
.
.
h)
le
matériel
mobile
d'entrepreneur,
y
compris
les
bâtiments
portatifs
de
chantier,
autre
que
des
biens
compris
dans
.
.
.
The
French
version
certainly
provides
no
basis
for
restricting
the
word
"contractor"
to
those
engaged
in
construction.
The
word
"entrepreneur"
is
defined
in
Robert
&
Collins,
Dictionnaire
Français-Anglais,
Nouvelle
Edition,
as
follows:
“entrepreneur,”
(en
menuiserie,
etc.)
contractor.
en
bâtiment)
building
contractor;
.
.
.
I
should
have
thought
that
if
the
objective
of
the
draftsman
was
to
restrict
the
meaning
of
"entrepreneur"
in
the
manner
suggested
by
counsel
for
the
respondent,
he
would
have
added
words
such
as:
"en
bâtiment".
In
my
view
it
does
no
violence
to
the
ordinary
meaning
of
the
word
"contractor"
to
speak
of
the
appellant
as
a
"waste
disposal
contractor".
In
deference
to
the
argument
advanced
by
Mr.
Dans,
I
will
observe
that
my
conclusion
is
not
intended
to
suggest
that
the
ordinary
meaning
is
broad
enough
to
encompass,
for
example,
every
merchant
who
forms
a
contract
with
a
customer
by
means
of
the
offer
and
acceptance
process
which
takes
place
at
the
checkout
counter.
However,
I
do
say
that
neither
the
English
nor
the
French
version
of
Class
10(h),
given
ordinary
usage
of
language
supports
a
reading
restricted
to
the
movable
equipment
of
a
person
who
enters
into
construction
contracts.
The
administrative
interpretation
to
be
found
in
a
bulletin
is
not
determinative
as
Dickson,
J.
made
clear
in
Nowegijick,
supra.
As
a
general
rule
I
am
obliged
to
follow
the
more
recent
of
two
conflicting
decisions
of
the
Federal
Court,
Trial
Division
on
any
point
of
law.
The
applicable
rule
is
set
forth
in
the
decision
of
this
Court
in
Bechthold
Resources
Ltd.
v.
M.N.R.,
[1986]
1
C.T.C.
2406,
at
2409;
86
D.T.C.
1296
at
1298
as
follows:
Judicial
authority
exists
for
the
proposition
that
where
a
judge
is
required
under
the
doctrine
of
stare
decisis
to
follow
decisions
of
another
court
and
there
is
conflict
within
that
court
on
a
question
of
law,
it
is
the
duty
of
the
judge
to
apply
the
latest
views
expressed
by
the
court
whose
decisions
are
an
imperative
precedent:
Fisken
and
Gordon
v.
Meehan,
(1876)
40
U.C.Q.B.
146.
However,
I
note
that
in
Nowsco,
supra,
Cullen,
J.
was
dealing
with
depreciable
property
which
he
characterized
as
a
“mobile
factory”.
At
page
38
(D.T.C.
6311)
His
Lordship
said:
To
me,
the
activities
at
the
well
head
are
conducted
by
a
“mobile
factory",
and
this
mobility
should
not
disentitle
the
plaintiff
to
the
tax
benefits
enjoyed
by
a
processing
plant
which
is
always
situated
at
one
location.
Reed,
J.
in
Halliburton
Services
Limited
v.
The
Queen,
[1985]
2
C.T.C.
52;
85
D.T.C.
336,
was
also
of
the
view
that
Halliburton,
a
large
well
service
operator,
was
entitled
to
treat
the
profits
it
received
from
processing
of
specialized
products
as
manufacturing
or
processing
profits.
However,
having
had
the
benefit
of
some
eight
days
of
evidence
and
argument,
I
have
reached
a
different
conclusion
about
the
said
operation.
In
my
view,
a
factory
exists
for
the
processing
of
goods
for
sale
or
lease
and
that
factory
is
a
combination
of
the
field
station
and
the
unit
or
units
that
operate
at
the
well
head.
In
light
of
that
characterization
the
decision
in
Nowsco
may
be
said
to
stand
for
the
proposition
that
the
depreciable
property
of
a
person
who
operates
a
mobile
factory
for
the
processing
of
goods
for
sale
or
lease
is
not
"contractor's
movable
equipment"
within
the
meaning
of
Class
10(h).
Obviously
it
was
not
necessary
in
arriving
at
that
conclusion
to
hold
that
the
word
"contractor"
is
to
be
confined
to
a
construction
contractor.
Thus
I
find
myself
at
liberty
to
follow
the
views
of
Reed,
J.
and
to
arrive
at
the
conclusion
that
the
appellant
is
a
contractor
within
the
meaning
of
paragraph
(h)
of
Class
10.
The
appeals
will
be
allowed,
with
costs,
and
the
assessments
referred
back
to
the
respondent
for
reconsideration
and
reassessment
on
the
basis
that
the
equipment
in
question
is
property
described
in
paragraph
(h)
of
Class
10
of
Schedule
II
to
the
Income
Tax
Regulations.
Appeals
allowed.
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