Tenneco Canada Inc. (Formerly Tenneco Canada Corp., Formerly Speedy Muffler King Corporation, Formerly Discoverer Services Limited) v. Her Majesty the Queen, [1987] 2 CTC 231, 87 DTC 5434

Dubé, J.: —By this income tax appeal the plaintiff (at times referred to as "Speedy Muffler”) claims that its activities in assembling and installing exhaust systems on motor vehicles constituted an active business of manufacturing and processing goods for sale in Canada. A favourable decision would entitle the plaintiff to capital cost allowances, deductions and investment tax credits for the taxation years 1975, 1976, 1977 and 1978 under three provisions of the Income Tax Act and Regulations, namely Class 29 of Schedule 11, paragraph 125.1(1)(a) and subsection 127(5) of the Act.

The Income Tax Act does not define the terms "manufacturing" or "processing", but subsection 125.1(3) defines "Canadian manufacturing and processing profits" as follows:

125.1(3) In this section,

(a) “Canadian manufacturing and processing profits" of a corporation for a taxation year means such portion of the aggregate of all amounts each of which is the income of the corporation for the year from an active business carried on in Canada as is determined under rules prescribed for that purpose by regulation made on the recommendation of the Minister of Finance to be applicable to the manufacturing or processing in Canada of goods for sale or lease; and

(b) “manufacturing or processing" does not include

(x) any manufacturing or processing of goods for sale or lease, if, for any taxation year of a corporation in respect of which the expression is being applied, less than 10% of its gross revenue from all active businesse carried on in Canada was from

(A) the selling or leasing of goods manufactured or processed in Canada by it, and

(B) the manufacturing or processing in Canada of goods for sale or lease, other than goods for sale or lease by it.

According to its own statement of claim, during the years 1975 through 1978, the plaintiff was in the business of assembling and installing exhaust and suspension systems in motor vehicles (the installation of suspension systems is not included in this action).

Exhaust systems are generally made up of three major components: the exhaust pipe connected to the engine, the muffler itself which is the central component, and the tail pipe leading to the rear of the vehicle. Some of the systems include three additional major components, namely the resonator, the connector and the catalytic converter. However, in many instances, only one or two major parts are replaced. For the years in question the average number of major components replaced was 2.31 per vehicle.

Smaller standard parts are used to connect, or to link, or to attach the major components to one another or to the body of the car. They are gaskets, clamps, hangers and brackets. Assorted nuts and bolts complete the basic inventory at Speedy Muffler's garages.

All the major components are obtained from Walker Exhausts Limited of Cambridge, Ontario, ("Walker"), a subsidiary of the plaintiff Tenneco Canada Inc. Walker publishes a master catalogue for all exhaust systems. All Speedy Muffler garages keep in stock a sufficient inventory of the major component parts to satisfy the demand. All the major component parts are made for specific models and specific years of vehicles. The smaller attachment parts are also obtained from Walker. No components are made or created in Speedy Muffler’s garages.

A video presentation of the installation of an exhaust system was shown by the plaintiff on a television screen at the hearing. The vehicle involved was a 1975 Ford LTD stationwagon. The vehicle is raised on a jack and a Speedy Muffler employee (not a licensed mechanic, but a person trained by Speedy Muffler) first proceeds to take down the used parts which have to be replaced, in that case the entire exhaust system. A torch was used to remove a rusted stud which was replaced by a new bolt. The major components are not assembled on the floor and lifted under the car; they are installed one by one, commencing with the exhaust pipe which is connected to the manifold. Then the muffler itself, which is linked to the exhaust pipe with the assistance of a muffler clamp. Finally the tail pipe which is connected to the muffler and attached to the body of the car by a hanger.

Various tools of the trade are used by the attendants: the expected hammers, screwdrivers and wrenches, and more specialized tools, such as Spee-D expanders (to remove grooves and dents from pipes) and Spee-D pipe shapers (to reshape pipes and bushing ends). Generally, it would take about five minutes to dismantle an old exhaust system and 15 minutes to install a new one. In the course of the installation of the new component parts, some of the pipes may have to be flared, so as to be properly mated to other parts, or compressed as a result of being attached by the clamps. No substantial alterations of parts are effected in the garages. In most cases, the major components, including the pipes, fit into one another without alterations as they are all made by Walker to fit vehicles of specific models and years.

The invoices handed to the customers at the completion of the installations do not include any charges for labour, merely for parts. It is common ground that the sales prices for the parts include the cost of labour. The customers also get a written guarantee for all exhaust system parts and workmanship for one year. All heavy duty mufflers for North American cars are guaranteed “for as long as you own the car upon which it is installed”.

As already mentioned, the Income Tax Act does not provide a definition for "manufacturing" or “processing”. There is, however, extensive jurisprudence in the matter. It has been held that the technical meaning attributed to the word processing by expert testimony ought to be rejected in favour of the ordinary, or dictionary meaning of the word. [1] The following dictionary definition of "process" has been quoted with approval: [2] "to subject to a particular method, system or technique of preparation, handling or other treatment designed to effect a particular result". [3]

Finishing operations on slabs of raw marble were found to constitute “manufacturing”: the marble slabs had “by work, both by hand and machinery, received new form, new qualtiy and new properties" [4] It has also been held "that the installation of radios by the plaintiff on the cars which it had imported for sale to its dealers did not constitute it a manufacturer or producer". [5]

There are two criteria to define “processing”. First, that the treatment must make the goods more marketable and, second, that there must be some change in the appearance or the nature of the goods. [6]

Some decisions stress the wholesale aspect of manufacturing, it being "the making of articles . . . on a large scale by physical labour or mechanical power". [7] It has been held that "developing or producing by mechanical contrivances, in a wholesale way, a definite, controlled, vendible product, seems to me to connote 'manufacture'". [8] And also that manufacturing connotes "large quantities to be placed upon the market for general sale". [9]

The British Columbia Court of Appeal found in Rex. v. Sutherland, [1930] 4 D.L.R. 183, (B.C.C.A., at 187), that "a modern conception of a manufacturer is one who on a reasonably large scale turns out a finished or partly finished product by the application of labour or mechanical power for general use. He has not a known customer for every article produced". In The Deputy Minister of National Revenue for Customs and Excise and Research-Cottrell (Canada) Limited et al., [1968] S.C.R. 684, the Court was dealing with a company which assembled and erected eight precipitators and imported domestically fabricated components. Martland, J. said at page 693 that "the assembly of parts may, in certain circumstances, constitute manufacture, but I do not agree that this must be so in all circumstances”. In my view, assembly can be “manufacture”, but not when it is merely limited to the installation of replacement parts: the assembly must create a new product.

The only witness, called by the plaintiff, had on some occasions visited a major automobile manufacturing plant. He viewed it as an assembly of parts, yet constituting a manufacture of cars. The major distinction, of course, is that those large assembly plants create a new product, an automobile, which is then distributed wholesale, whereas Speedy Muffler merely assembles a few component parts, already custom built by another manufacturer (Walker) and attaches them to a vehicle. As I see it, Speedy Muffler does not really create new goods for sale: it merely installs on cars goods already manufactured elsewhere.

Under paragraph 125.1(3)(a) of the Act the “manufacturing” or "processing" must be “of goods for sale”. The defendant's position is that the plaintiff's business was not the production of goods for sale but was essentially a service operation: Speedy Muffler either repairs or replaces exhaust components as a service to individual customers and the components are not sold to the customers, but attached to their vehicles and ownership of the component parts passes to them by way of accession.

In Crown Tire Service Ltd. v. The Queen, [1983] C.T.C. 412; 83 D.T.C. 5426 (F.C.T.D.), Strayer, J. of the Trial Division held, with reference to the retreading of tires owned by customers, that the manufacturing or processing in which the taxpayer was engaged was not in respect of goods for sale: the contracts involved with such tires were for work and materials. The Court referred to Benjamin's Sale of Goods: [10]

Where work is to be done on the land of the employer or on a chattel belonging to him, which involves the use of affixing of materials belonging to the person employed, the contract will ordinarily be one for work and materials, the property in the latter passing to the employer by accession and not under any contract of sale.

Strayer, J. concluded as follows:

I believe that the situation here fits within the general principle as stated in Benjamin. With respect to the retreading of tires owned by customers, it appears to me that the customers retain ownership throughout the process. [11]

However, in Halliburton Services Ltd. v. The Queen, [1985] 2 C.T.C. 52; 85 D.T.C. 5336 (F.C.T.D.), Reed, J., also of this Court, dealt with a taxpayer corporation which was engaged in activities related to the drilling of oil and gas wells requiring a specialized product which the taxpayer would produce in addition to providing the related services. The Court found that the taxpayer was engaged in manufacturing and, in that case, there was no need to draw a distinction between goods sold pursuant to a contract for the sale of goods and those sold pursuant to a contract for services. She distinguished her case from the decision of Strayer, J. as follows:

It should first of all be noted that while Mr. Justice Strayer relied on the distinction between contracts for the sale of goods and contracts for work, labour and materials as described in Benjamin's Sale of Goods, he expressly noted that the application of that principle was "always a matter for interpretation in each case". Secondly the processing with which he was concerned did not involve the creation of a good antecedent to its use in the provision of a service. Thirdly, the significant factor in that case was the fact that "the work was done to a tire casing which the customer owned throughout.^ [12] [My emphasis.]

Suffice it to say that in the case at bar the third distinction does not apply, as the work was done by Speedy Muffler to a vehicle which the customer owned throughout.

It is noted in Benjamin [13] at paragraph 41, entitled “Sale distinguished from contract for work and materials” that it is sometimes extremely difficult to decide whether a particular agreement is more properly described as a contract of sale of goods, or a contract for the performance of work or service and he points out that the distinction "now appears to be of little significance”, but, as he continues to say, “except in relation to other statutory provisions which apply only to a ‘sale’ or a 'contract of sale'". Subsection 125.1(3) of the Income Tax Act applies only to goods for sale or lease). The author goes on at paragraph 43 to deal with chattel to be affixed to land or another chattel:

Chattel to be affixed to land or another chattel. Where work is to be done on the land of the employer or on a chattel belonging to him, which involves the use of affixing of materials belonging to the person employed, the contract will ordinarily be one for work and materials, the property in the latter passing to the employer by accession and not under any contract of sale. Sometimes, however, there may instead be a sale of an article with an additional and subsidiary agreement to affix it. The property then passes before the article is affixed, by virtue of the contract of sale itself or an appropriation made under it. Obviously, the question whether the intention of the parties is substantially one of improving the land or principal chattel (to which the furnishing of materials is incidental) on the one hand or one of making a sale (to which the agreement to affix is incidental) on the other hand is a matter of degree, which may be difficult to determine in practice; but there is no theoretical difficulty. In decided cases, the following have been held contracts for work and materials: to supply and install machinery in a building, to renew and alter the engines and other machinery in a ship, to erect a building, to construct a built-in cocktail cabinet in a house, to fit new brake-linings to a car. In contrast, a contract to supply black-out curtains and rails and to fit them in premises has been held a sale of goods, and so has a contract to manufacture a bulk food hopper and (for an additional charge) to deliver and erect it.

A final quote bears reproduction. In Sterling Engine Works v. Red Deer Lumber Co. (1920), 51 D.L.R. 509 (Man. C.A.), the Manitoba Court of Appeal held that a contract made to furnish a machine or movable thing of any kind and (before the property in it passes) affix it to land or to another chattel is not a contract for the sale of goods. Dennistoun, JJ.A. said as follows at page 513:

With great respect I am of opinion that the ownership of each plate, rivet or other particle of material built into the defendant's engine by the plaintiff passed to the defendant at the time it was affixed to that engine and not otherwise.

Summing up, the work carried out by Speedy Muffler on the vehicles of its customers, whether it be repair to the exhaust system in place, or the replacement of some of its components, or the total replacement of the whole exhaust system, does not constitute the manufacturing or processing of goods for sale, but constitutes services.

Furthermore, even if I considered such work to constitute manufacturing or processing, such activities would not be in respect of goods for sale within the meaning of the Act, as in my view the exhaust parts installed under the vehicles of the customers are not sold to the customers, but have become the property of the customers by accession.

The action of the plaintiff is therefore dismissed with costs.

Action dismissed.