Addy,
J:—The
issue
in
the
present
case
is
a
very
narrow
one.
It
turns
entirely
on
whether
the
words
“structural
building
sections’’
as
found
in
subsection
26(4)
of
the
Excise
Tax
Act,
RSC
1970,
c
E-13,
are
applicable
to
certain
metal
door
frames
manufactured
and
sold
by
the
defendant
company
in
1971.
The
relevant
portions
of
subsection
26(4)
read
as
follows:
26.
(4)
Where
a
person
(b)
manufactures
or
produces
otherwise
than
at
the
site
of
construction
or
erection
of
a
building
or
other
structure,
structural
building
sections
for
incorporation
into
such
building
or
structure,
in
competition
with
persons
who
construct
or
erect
buildings
or
other
structures
that
incorporate
Similar
sections
not
so
manufactured
or
produced,
he
shall,
for
the
purposes
of
this
Part,
be
deemed
not
to
be,
in
relation
to
any
such
.
.
.
building
sections
.
..
so
manufactured
or
produced
by
him,
the
manufacturer
or
producer
thereof.
If
the
door
frames
in
question
are
“structural
building
sections”
within
the
meaning
of
paragraph
26(4)(b)
then
the
defendant
would
be
exempt
from
the
tax
claimed,
otherwise
he
would
be
liable
therefor.
The
actual
amount
is
not
in
dispute
nor
is
the
interest
which
would
be
payable
thereon
should
there
be
liability.
In
the
context
of
paragraph
(b)
above
it
is
clear
that
the
word
“structural”
in
the
expression
“structural
building
sections”
does
not
bear
its
usual
general
meaning
of
“pertaining
to
a
structure”
as
the
latter
word
is
used
in
the
same
paragraph
in
the
expression
“any
building
or
structure”:
it
does
not
merely
qualify
a
component
as
forming
part
of
a
structure
or
building
but,
much
more
restrictively,
as
being
one
of
the
components
which
interconnected,
ensure
that
a
building
has
a
certain
weight
or
load-bearing
capacity
or
which,
in
other
words,
contribute
substantially
to
its
strength
and
solidity
and
permit
it
to
resist
the
various
forces
created
by
man
and
nature
to
which
it
might
be
subjected.
Structural
building
sections
might
be
contrasted
with
mere
fixtures
or
other
integral
components,
systems
or
elements
which
contribute
primarily
to
the
proper
use
or
enjoyment
of
the
building
or
structure,
such
as
doors,
windows,
non-weight-bearing
walls,
insulation,
or
its
heating,
plumbing
and
electrical
systems
or
which
enhance
it
aesthetically
such
as
plaster
walls,
wallpaper,
finished
flooring
and
other
such
decorative
additions.
This
concept
of
the
word
“structural”
in
the
context
of
that
subsection
was
not
disputed
at
trial
but,
on
the
contrary,
it
was
confirmed
by
the
expert
engineers
called
on
behalf
of
both
parties
who
testified
that
such
was
the
interpretation
given
to
that
word
in
the
building
trade
generally
as
well
as
in
the
engineering
profession.
Furthermore
the
meaning
of
“structural
building
sections”
becomes
clear
beyond
any
shadow
of
a
doubt
when
one
considers
the
French
version
of
those
words
in
the
French
text
which
reads
quite
simply
“des
elements
porteurs”.
This
expression
might
be
literally
translated
as
“load-bearing
elements”,
the
word
“structural”
having
been
completely
omitted
from
the
French
version.
The
defendant
manufactured
two
types
of
metal
door
frames:
one
type
was
designed
primarily
for
use
in
dry-wall
construction
and
the
other
type
designed
primarily
for
use
in
masonry
and
plaster
walls.
However,
it
was
possible
to
use
the
first
type
in
a
masonry
construction
although
it
was
not
usual
to
do
so
as
special
connections
would
have
to
be
provided
to
anchor
the
frame
to
the
masonry.
Both
types
of
frame
were
manufactured
from
satin-coated
galvanized
steel
purchased
in
sheet
form,
the
thickness
being
either
14,
16,
18
or
22
gauge,
depending
on
the
width
of
the
door
opening
and
on
the
estimated
amount
of
traffic
or
intended
use
to
be
made
of
the
door.
The
manufacturing
was
carried
out
by
what
is
termed
the
cold
form
process,
as
no
heating
was
involved.
The
metal
sheets
were
cut
into
strips
and
then
put
in
a
press
to
form
the
elements
of
the
frame.
They
were
then
put
through
a
punch
press
to
punch
out
the
holes
for
the
lock
and
hinges.
The
frames
when
completed
each
had
a
certain
total
load-bearing
capacity
varying
roughly
between
350
and
1,150
pounds
depending
on
the
gauge
of
the
meta!
used
and
on
the
width
of
the
head
or
door
opening.
To
constitute
a
section
manufactured
for
use
in
a
building
or
other
Structure
a
“structural
building
section”
not
only
must
the
material
composing
the
section
possess
a
load-bearing
capacity
but
the
section
itself
must
be
designed
and
manufactured
with
the
principal
object
of
its
being
used
ultimately
as
an
integral
or
constitutional
element
of
the
load-bearing
system
or
body
of
the
building,
erection
or
structure.
To
be
load-bearing
in
this
context
it
must
necessarily
be
substantially
loadbearing
to
the
extent
that
it
is
commonly
used
for
that
purpose
because
all
matter,
even
gaseous
matter,
possesses
a
certain
strength
or
loadbearing
capacity
as
it
can
withstand
certain
forces
exerted
on
it.
An
ordinary
wooden
door
frame
is
not
a
“structural
building
section”
because
the
material
has
really
no
substantial
load-bearing
capacity
but
more
importantly
because
it
is
designed
to
act
merely
as
trim
and
to
close
the
space
between
the
wall
opening
and
a
door
and
act
as
a
support
for
and
a
means
of
properly
closing
the
door,
which
itself
is
not
a
structural
part
of
the
building.
In
the
case
at
bar
however,
because
of
the
fact
that
the
frames
manufactured
by
the
defendant
possessed
a
certain
load-bearing
capacity
and
because
both
types
of
frame
were
capable
of
being
incorporated
in
a
load-bearing
masonry
wall
during
the
construction
of
a
building,
the
defendant
claims
the
exemption
under
the
above
quoted
portion
of
section
26.
The
defendant’s
manager
who
was
for
some
seven
years
its
shop
foreman
testified
that
he
had
several
times
observed
both
types
of
frames
being
installed
in
masonry
walls
without
any
other
reinforcement
over
the
head
or
opening.
He
also
testified
that
he
never
noticed
any
being
installed
with
additional
support
over
them.
Counsel
for
the
defendant
on
this
evidence
invited
the
Court
to
conclude
that
the
frames
were
customarily
used
by
the
building
trade
as
“structural
building
sections”
and
that
this
indicated
that
it
was
one
of
the
primary
uses
for
which
they
were
manufactured
and
sold.
The
manager
in
his
evidence
however
did
not
state
whether
the
walls
which
he
inspected
were
load-bearing
or
support
walls
or
were
merely
division
or
partition
walls.
He
did
not
state
how
many
inspections
were
made
by
him
nor
whether
any
other
similar
frames
were
generally
used
by
the
building
industry
as
structural
building
sections.
It
is
to
be
noted
also
that
the
defendant
company
never
at
any
time
dealt
with
the
building
industry.
All
of
its
frames
were
purchased
by
an
affiliated
company
at
that
time
ADKA
and
now
WACO,
for
distribution
to
the
building
trade.
Under
those
circumstances
there
is
not
much
likelihood
of
the
manager
of
the
defendant
being
too
conversant
with
the
custom
of
the
building
trade
generally
in
this
regard.
In
any
event
there
was
no
evidence
to
that
effect.
More
importantly
the
manager
testified
that
he
knew
of
no
instance
where
the
load-bearing
capacity
of
the
door
frames
had
ever
been
requested
of
the
defendant.
It
is
of
course
possible
that
the
load-bearing
capacity
might
have
been
requested
from
the
affiliated
company
which
was
distributing
the
frames,
but
in
any
event
no
evidence
was
adduced
by
any
officer
or
employee
of
the
distributing
company
to
that
effect.
It
would
seem
to
me
that,
over
the
period
of
eight
years
during
which
the
witness
was
either
shop
foreman
or
manager,
inevitably
some
inquiry
would
have
been
made
of
the
manufacturer
by
either
some
building
contractor,
architect
or
structural
engineer
regarding
the
specifications
covering
load-bearing
capabilities
of
the
door
frames,
and
that
any
such
inquiry
would
have
come
to
the
attention
of
the
witness.
Two
professional
engineers
with
considerable
experience
in
structural
designing
and
in
the
supervision
of
construction
of
buildings
were
called
on
behalf
of
the
plaintiff.
Both
testified
that
in
the
case
of
masonry
walls
additional
steel
support
would
always
have
been
specified
over
the
opening
or
head
of
the
door
frames
of
the
defendant.
This
evidence
remained
uncontradicted
by
the
expert
engineer
called
on
behalf
of
the
defendant.
The
latter
witness,
a
university
professor,
also
apparently
possessed
considerable
experience
as
a
consultant
in
the
design
field
and
in
investigating
engineering
projects.
In
so
far
as
establishing
that
the
door
frames
were
commonly
used
by
the
building
trade
without
additional
support,
as
part
of
the
structural
load-bearing
system
of
buildings,
I
must
conclude
that
not
only
has
the
defendant
failed
to
satisfy
the
onus
placed
upon
it
to
do
so
but
the
plaintiff
has
affirmatively
established
the
opposite
to
be
true.
This
proposition
therefore
cannot
be
advanced
by
the
defendant
to
establish
the
purpose
for
which
the
door
frames
were
manufactured.
As
to
the
purpose
of
the
design,
the
examination
for
discovery
of
the
authorized
officer
of
the
defendant
contains
the
following
questions
and
answers:
(1)
With
regard
to
the
dry-wall
type
frames
(the
drawings
and
specifications
of
which
were
marked
Exhibit
3
on
discovery
and
Exhibit
2-1
at
trial):
124
Q.
It
says
here,
“Fits
securely
over
dry
wall
after
opening
is
completed’’.
Does
that
indicate
to
you
that
it
isn't
a
load
bearing
frame
at
all,
it
says
“fits
securely
over
dry
wall
after
opening
is
completed’’?
A.
That
would
be
one
application
of
that,
again
referring
to
the
multiple
applications
that
can
be
used.
The
technical
sheet
isn’t
produced
for
one
particular
application
of
this
frame,
and
there
may
be
a
subsequent
data
sheet,
modified
a
little
bit,
to
do
other
particular
jobs.
125
Q.
The
door
frames
sold
between
the
two
dates,
July
to
September,
1971,
are
not
door
frames
sold
with
that
feature
of
being
load
bearing
to
any
specific
extent?
A.
I
can’t
answer
that,
I
have
no
knowledge.
(Off
the
record
discussion)
MR
MACINTOSH:
During
the
recess,
I
discussed
this
with
Mr
Newhouse,
and
Mr
Newhouse
pointed
out
that
discussions
on
weight
and
weight
requirements
are
requested
by
architects
and
engineers
in
certain
cases,
but
we
don’t
have
information
as
to
whether
or
not
there
were
sales
based
on
the
weight
bearing
capacity
of
the
door
in
1971.
(2)
With
regard
to
the
masonry
frames
(designs
and
specifications
marked
Exhibit
4
on
discovery
and
Exhibit
2-2
at
trial):
MR
CARRUTHERS:
126
Q.
Presumably
you
would
give
the
same
answer
with
respect
to
the
door
frames
shown
in
Exhibit
4?
A.
Yes,
I
would
have
to.
There
was
also
evidence
that
the
masonry
frame
was
designed
so
that
it
could
be
installed
after
the
masonry
wall
had
been
completed.
Although
the
frames
are
capable
of
being
used
as
forms
to
hold
the
masonry
while
a
wall
is
being
erected
and
although
they
do
possess
some
load-bearing
capacity,
!t
is
evident
from
their
design,
from
the
actual
use
being
made
of
them
and
from
their
somewhat
limited
weight-
bearing
capacity
that
they
were
not
designed
or
manufactured
primarily
for
the
purpose
of
resisting
loads
and
that
their
primary
function
is
not
to
form
part
of
the
structural
components
of
a
building
but
rather
to
fulfil
the
same
function
as
ordinary
wooden
door
frames,
namely
to
serve
as
finish
or
trim,
to
fill
in
the
space
and
cover
any
irregularities
which
might
exist
between
the
wall
opening
and
the
door
and
to
provide
a
ready
means
of
hanging
and
properly
closing
a
door.
I
therefore
conclude
that
the
defendant
has
failed
to
establish
that
the
door
frames
fall
within
the
exemption
provided
in
paragraph
26(4)(b)
of
the
Excise
Tax
Act
and
that
liability
to
pay
the
tax
must
follow.
Judgment
will
issue
with
costs
against
the
defendant
in
the
amount
of
tax
and
interest
agreed
upon
in
the
Statement
of
Facts.
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