Her Majesty the Queen v. British Columbia Railway Company, [1981] CTC 110, 81 DTC 5089

The Chief Justice:— This appeal is from a judgment of the Trial Division answering a question that had been set down for determination before trial under Rule 474. The action was brought by the respondent seeking declarations with respect to its liability under the Excise Tax Act for taxes on railroad ties, of which the respondent was admittedly the manufacturer or producer, manufactured or produced in Canada and used by the respondent in the repair and maintenance of its railroad. The question and the answer follow:

Question One: Did the Excise Tax Act fail to specify the time at which the consumption or sales tax was payable on the plaintiff’s railroad ties, and if so, is there any liability on the plaintiff for payment of the consumption or sales tax assessed by the Minister in this case?

Answer: The Excise Tax Act failed to specify the time at which the consumption or sales tax was payable on the plaintiff’s railroad ties. There is no liability on the plaintiff for payment of the consumption or sales tax assessed by the Minister of National Revenue in the following assessments:

(a) Assessment dated May 13, 1971 covering the period June 14, 1963 to April 30, 1969 of the plaintiff.

(b) Assessment dated June 17, 1971 covering the period May 1, 1969 to March 31, 1971 of the plaintiff.

(c) Assessment dated November 29, 1973 covering the period April 1, 1971 to June 30, 1973 of the plaintiff.

The material statutory provisions are subparagraph 27(1 )(a)(i) and subsection 28(1) of the Excise Tax Act. They read:

27. (1) There shall be imposed, levied and collected a consumption or sales tax of twelve per cent on the sale price of all goods

(a) produced or manufactured in Canada

(i) payable, in any case other than a case mentioned in subparagraph (il), by the producer or manufacturer at the time when the goods are delivered to the purchaser or at the time when the property in the goods passes, whichever is the earlier, and

28. (1) Whenever goods are manufactured or produced in Canada under such circumstances or conditions as render it difficult to determine the value thereof for the consumption or sales tax because

(d) such goods are for use by the manufacturer or producer and not for sale;

the Minister may determine the value for the tax under this Act and all such transactions shall for the purposes of this Act be regarded as sales.

These provisions have been in the Excise Tax Act for some 50 years without material change.

The learned trial judge reached his conclusion reluctantly, after considering these and other provisions carefully and at length. He did so notwithstanding the fact that on these same statutory provisions the Supreme Court had held on a number of occasions in closely similar situations that tax was payable. In none of these cases does it appear that the precise point which found favour with the learned trial judge was raised or determined but it was, in my opinion, involved in the Court’s conclusions and it appears to me that these decisions point to the proper approach to the construction of the particular statutory provisions.

In The King v Fraser Companies Limited, [1931] SCR 490 the issue was the liability of the respondent for tax in respect of lumber manufactured as part of the respondent’s stock in trade for sale in the course of its business but used by the respondent in the construction of buildings. The Supreme Court overruled the judgment of the President of the Exchequer Court who, by reading what is now paragraph 28(1 )(d) narrowly and as limited to the purpose of the manufacture, had held that the lumber did not fall within the wording regardless of the use to which the lumber had been put.

Smith, J for the majority said at page 492:

The learned President of the Exchequer Court, before whom the case was tried, dismissed the action (1), on the ground that the lumber so consumed was pro- duced in the ordinary course of business for sale, and not specifically for use by the manufacturer, within the meaning of the above quoted paragraph 87(d).

With great respect, I am unable to take this view of the meaning and effect of these provisions of the Act. To so construe them is to put a narrow and technical construction upon the precise words used in paragraph (d), without taking into consideration the meaning and intent of the statute as a whole. It seems to me clear that the real intention was to levy a consumption or sales tax of four per cent on the sale price of all goods produced or manufactured in Canada, whether the goods so produced should be sold by the manufacturer or consumed by himself for his own purposes.

The view taken in the court below would result in the introduction of an exception to the general rule that all goods produced or manufactured are to pay a tax, and would amount to a discrimination in favour of a particular consumer. As an example, it is not unusual for a manufacturer engaged in the production and manufacture of lumber for sale to engage at the same time in the business of a building contractor. He manufactures his lumber for sale, and, as a general rule, would not manufacture any specific lumber for use in connection with his building contracts, but would simply take lumber for these purposes from the general stock manufactured for sale, and might thus, under the view taken in the court below, escape taxation on all lumber thus diverted from the general stock manufactured for sale.

I am of opinion that, construing the provisions of the Act as a whole, the respondent is liable for taxes on the lumber consumed by him, as claimed.

In an earlier case, Bank of Nova Scotia v His Majesty the King, [1930] SCR 175 at 179, Anglin, CJC said with respect to the provision:

We cannot find anything in the statute to support the view put forward by counsel for the appellant that its application is confined to a manufacturer or producer whose business is manufacturing or producing for sale. That construction of the Act would involve the exclusion from our consideration of clause (d) of s 87, which, in our opinion, was introduced to remove any doubt that the statute was intended to apply to a case such as that at bar.

In The King v Henry K Warn pole & Company, Limited, [1931] SCR 494 at 496, Anglin, CJC speaking for the majority of the Court said:

I was, at the hearing of this appeal, strongly of the view that the sample goods in question were subject to the tax sought to be collected in this case. My construction of clause (d) of section 87 is that the “use” by the manufacturer or producer of goods not sold includes any use whatever that such manufacturer or producer may make of such goods, and is wide enough to cover their “use” for advertising purposes by the distribution of them as free samples, as is the case here. I am, therefore, with great respect, unable to agree in the reasons assigned by the learned trial judge for dismissing this petition.

In The King v Dominion Bridge Company Limited, [1940] SCR 487; [1940-41] CTC 99; 1 DTC 499-114, the question was whether the respondent was entitled to a refund of tax on bridge members manufactured by the respondent and incorporated into a bridge under a contract for its construction for the Crown in right of a province. Section 105 provided for such a refund of tax on goods “sold” to the Crown.

Duff, CUC said:

The contract in this case was a contract for building the superstructure of a bridge and the erection of it and the securing of it; and the contract price was an entire price for the entire job. It was not, in the ordinary sense of the words, a contract, I think, for the sale of the superstructure or for the sale of the members of the superstructure. The production, however, of the members of the superstructure for the purpose of fulfilling the contract would bring the case within section 87(d) (Special War Revenue Act, RSC 1927, c 179 and amendments).

In The King v Fraser Companies ((2) [1931] SCR 490) four judges of this Court, (Newcombe, Rinfret, Lamont and Smith, JJ) expressed the view touching the application of section 87(d) to the facts of that case which, I think, applies here, in the judgment of those learned judges delivered by Smith, J, it is said (p 493)

Then after citing a portion of the passage cited above the Chief Justice continued:

This passage in the reasons of my brother Smith was not part of the ratio decidendi but it was the considered opinion of the four judges who constituted the majority of the Court. They said that, if a building contractor is also a manufacturer of building materials, lumber or brick for example, and uses, for the purpose of executing a building contract, brick or lumber produced by himself, that is a case within section 87(d) and the transaction is, by force of that section, deemed to be a sale and he is chargeable accordingly. In the present case the members of the bridge produced were produced especially for the purposes of the contract.

I have fully considered the able argument addressed to us by Mr Forsyth and my conclusion is that, when sections 86 and 87 are read together, this transaction falls within the category of cases described by section 87(d) and that the view expressed by my brother Smith in Fraser’s case (1) ([1931] SCR 490) is the view which ought to govern us in the disposition of this appeal. I think, in this respect, the practice of the Department is right.

and after referring to and citing section 105:

The question to be decided is not without difficulty. I have come to the conclusion that “goods” are “sold” within the meaning of this section when there is a sale that is such solely by force of the statutory declaration that it shall be deemed to be a sale for the purposes of the statute. Section 105 is part of the statute and transactions within the declaration are, therefore, deemed to be sales for the purposes of the section 87(2), for example, would, if the other conditions were fulfilled, be a sale within the section 105.

Finally, in The Queen v Canadian Pacific Railway Company, [1971] SCR 821; [1971] CTC 163; 71 DTC 5078, Spence, J speaking for the Court, after citing the paragraph corresponding to the present 28(1 )(d) said:

It, therefore, matters not whether the goods are to be sold by the producer or manufacturer or be used for the purposes of such producer or manufacturer and in either case the goods are taxable.

In my view it is obvious that the wording of paragraph 28(1 )(d) presents problems if one seeks to construe it strictly in applying it to situations such as the present one and those in the cases I have cited. Under subparagraph 27(1 )(a)(i) tax is imposed on the price. In paragraph 28(1 )(d) the word used is “value”. But this did not prevent the Supreme Court from holding in effect that when the goods are used or consumed by the manufacturer the two words refer to the same thing. Nor did the fact that in their context the words “such goods are for use by the manufacturer or producer and not for sale” seem to refer to the purpose of production serve to defeat the tax when the goods, though manufactured for sale, were turned to the manufacturer’s use. Nor does the use of the word “transaction” appear to have raised any difficulty.

In ordinary language when the manufacturer of goods uses or consumes them there is no sale within the ordinary meaning of that term. Neither is there a delivery to a purchaser or a passing of property in the goods to a purchaser. The time for payment of tax on such goods thus cannot be determined by the ordinary meaning of subparagraph 27(1)(a)(i). Such wording Simply does not fit the situation where the goods are used or consumed by the manufacturer himself. But Parliament can deem, and, as it seems to me, it has by paragraph 28(1 )(d) deemed what occurs when a manufacuturer of goods uses them for his own purposes, to be a sale for the purposes of the Act, including, as it seems to be, subparagraph 27(1)(a)(i) of the Act. To make the statute workable it seems to me to be both necessary and permissible to treat the statutory sale as having the ordinary features of a sale, that is to say, delivery of the goods and transfer of title to a purchaser. Once it is accepted that for the purposes ofsubparagraph 27(1 )(a)(i) what is not a sale is to be regarded as a sale including a delivery and transfer of title, it does not seem to me to be difficult or to involve any broader interpretation of paragraph 28(1)(d) than was adopted by the Supreme Court in the cases I have mentioned to consider the sale and its incidents of delivery and passing of property as all occurring at the same time, that is to say, the time of the use of the goods by the manufacturer and to conclude that the time for payment of the tax is fixed by the statute as the time when the goods are so used.

I would allow the appeal with costs and return the matter to the Trial Division for determination on the basis that the answer to the question is: The Excise Tax Act does not fail to specify the time at which consumption or sales tax was payable on the plaintiff’s railway ties. The tax was payable by the plaintiff when the ties were used or consumed by the plaintiff by putting them to use in its railroad and the plaintiff is liable for tax accordingly.

Urie, J:—I have had the opportunity of reading the reasons for judgment of the Chief Justice but regret that I am unable to concur with them and, as a consequence, with his proposed disposition of the appeal.

I am of the opinion that the learned trial judge did not err in answering Question One of the preliminary questions of law by finding that because the Excise Tax Act failed to specify the time at which the consumption or sales tax was payable on the respondent’s railroad ties, no liability was imposed on the respondent for the payment of such tax notwithstanding the claim therefor by the Minister of National Revenue by virtue of the assessments placed in issue in this action. I am, moreover, in substantial agreement with his reasons for judgment dated December 8, 1978 and his supplementary reasons for judgment dated June 29, 1979.

Appellant’s counsel in his Memorandum of Fact and Law referred to Judgments of the Supreme Court of Canada, in The Queen v Canadian Pacific Railway Company (supra), Bank of Nova Scotia v His Majesty the King (supra), The King v Fraser Companies Limited (supra), and The King v Dominion Bridge Company Limited (supra), as well as decisions of the “Exchequer” Court of Canada, in support of his proposition that paragraph 28(1)(d) of the Act ought not to be construed in the manner found by the learned trial judge. With respect, I do not believe that those authorities are apposite in this case because it appears clear from my reading of them that the point raised in Question One was not one which was raised or considered therein. I am, therefore, of the view that the authorities cited are not determinative of the question posed for determination by the Court in this appeal. As a result, in my view, the learned trial judge in answering Question One correctly interpreted the relevant provisions of the Excise Tax Act and I cannot usefully add anything to his reasons for so deciding.

Accordingly, I would dismiss the appeal with costs.