CATTANACH,
J.:—The
suppliant
by
its
petition
of
right
seeks
to
recover
the
sum
of
$355,412.48
paid
by
it
to
Her
Majesty
under
protest
and
without
admission
of
liability
pursuant
to
demands
made
by
the
officers
of
the
Department
of
National
Revenue
as
tax
in
respect
of
the
sale
of
margarine
between
the
period
from
April
7,
1963
to
February
8,
1964.
The
fundamental
basis
of
the
suppliant’s
claim
for
relief
is
that
the
goods
in
question
were
exempt
from
sales
tax
and
accordingly
the
Crown
is
liable
to
return
to
the
suppliant
the
sum
of
money
which
was
so
paid
by
the
suppliant
under
protest
and
for
the
return
of
which
a
demand
was
made
in
writing
addressed
to
the
Deputy
Minister
of
National
Revenue,
Customs
and
Excise,
which
demand
has
not
been
complied
with.
Section
30
of
the
Excise
Tax
Act,
R.S.C.
1952,
c.
100
and
amendments
provides
that
there
shall
be
imposed,
levied
and
collected
a
consumption
or
sales
tax
on
the
sale
price
of
all
goods
produced
or
manufactured
in
Canada.
However
certain
articles
are
exempted
by
Section
32(1)
of
the
Act
which
reads
as
follows:
32.
(1)
The
tax
imposed
by
section
30
does
not
apply
to
the
sale
or
importation
of
the
articles
mentioned
in
Schedule
III.
Schedule
III
includes
a
large
number
of
articles
which
are
listed
and
classified
under
parts.
Part
V
of
Schedule
III
is
entitled
“Foodstuffs”
and
the
material
portion
of
item
7
thereof
reads
as
follows,
“Fish
and
edible
products
thereof
;
By
order
of
Thurlow,
J.
dated
October
3,
1968,
on
motion
made
by
counsel
for
the
respondent
in
the
presence
of
counsel
for
the
suppliant,
an
issue
was
defined
by
agreement
of
the
parties
for
the
purposes
of
Rule
164B(1)
in
the
following
terms:
Whether
the
goods
manufactured
by
the
Suppliant
and
sold
by
the
Suppliant
during
the
period
April
7,
1963
to
February
8,
1964
are
exempt
from
sales
tax
by
virtue
of
the
provisions
of
Section
32(1)
of
the
Excise
Tax
Act,
R.S.C.
1952,
Chapter
100
and
Schedule
III
thereof,
in
particular
under
the
heading
“foodstuffs”
and
the
item
reading
as
follows:
“Fish
and
Edible
products
thereof”
and/or
the
item
reading
as
follows:
“Materials
to
be
used
exclusively
in
the
manufacture
or
production
of
the
foregoing
foodstuffs.”
In
addition
the
parties
agreed
upon
a
statement
of
facts
which
reads
as
follows:
1.
The
parties
hereto,
for
the
purpose
only
of
this
cause,
agree
to
and
admit
the
facts
hereafter
stated
but
it
is
further
agreed
that
the
parties
shall
be
at
liberty
to
introduce
in
the
usual
manner
at
the
trial
of
this
action
evidence
of
additional
facts
not
inconsistent
with
any
of
the
facts
hereafter
stated.
2.
The
Suppliant
is
the
manufacturer
or
producer
of
the
goods
in
issue,
8.
The
Suppliant
has
been
granted
a
Sales
Tax
license
under
the
provisions
of
Part
VI
of
the
Excise
Tax
Act.
4,
Pursuant
to
general
demands
which
did
not
specify
any
particular
amount
of
tax,
made
by
officers
of
the
Department
of
National
Revenue,
Customs
and
Excise
Division,
the
Suppliant
paid
to
Her
Majesty
the
Queen,
under
protest
and
without
admission
of
liability
the
sum
of
$355,412.48
in
respect
of
the
sale
of
goods
in
issue
during
the
period
from
April
7,
1963
to
February
8,
1964
this
being
the
amount
of
tax
payable
as
calculated
by
the
Suppliant
if
the
goods
in
issue
are
taxable.
5.
The
Suppliant
has
requested
in
writing
to
the
Deputy
Minister
of
National
Revenue,
Customs
and
Excise,
that
these
monies
be
returned
but
to
date
the
said
monies
have
not
been
returned
to
the
Suppliant.
6.
If
the
goods
in
issue
or
any
part
thereof
are
exempt
from
sales
tax
as
set
out
in
the
statement
of
the
issue
herein,
the
Crown
is
liable
to
return
to
the
Suppliant
the
sum
of
money
so
held
or
that
portion
of
the
money
so
held
which
is
applicable
to
those
goods
which
are
exempt.
7.
The
goods
in
issue
are
foodstuffs
commonly
known
as
margarine.
Margarine
is
a
fatty
food
resembling
butter.
It
is
composed
of
oil
and
other
ingredients.
The
proportion
of
oil
and
other
ingredients
as
measured
by
weight
are
as
folllows:
oil—80%;
other
ingredients—20%.
8.
The
oil
which
is
used
is
a
mixture
of
herring
oil
and
vegetable
oil,
the
proportion
of
which
varies
depending
on
the
particular
formula
used
by
the
Suppliant.
9.
During
the
period
of
April
1963
the
Suppliant
also
used
some
whale
oil.
10.
The
other
ingredients
are
milk,
salt,
flavouring,
vitamins
and
small
quantities
of
colour,
emulsifier
and
antioxident.
11.
The
quality
and
quantity
of
each
ingredient
is
carefully
controlled
and
the
manufacture
of
margarine
from
its
various
ingredients
is
a
complex
process
requiring
extensive
and
expensive
processing
apparatus.
The
oil
used
must
first
be
made
suitable
for
use
in
food.
The
extent
of
the
treatment
required
for
this
purpose
depends
on
the
nature
of
the
oil
but
commonly
involves
refining,
bleaching
and
deodorizing
and
hydrogenation.
Fish
and
whale
oil
are,
subject
to
existing
market
conditions,
ordinarily
less
expensive
to
buy
than
vegetable
oil.
The
selection
of
vegetable
oil
on
the
one
hand
or
marine
oil
on
the
other
hand
is
governed
mainly
by
the
cost
of
using
one
as
opposed
to
the
other.
12.
Prior
to
May
1963
the
Suppliant
purchased
oils
in
a
refined
state
from
refiners
of
oil
but
in
May
1963
opened
its
own
refinery
and
has
since
purchased
crude
vegetable
oil
through
brokers
from
crushers
of
oil
and
has
since
purchased
crude
fish
oil
through
brokers
from
fish
reduction
plants.
The
crude
oil
is
then
refined
in
the
Suppliant’s
own
refinery.
13.
During
the
period
in
issue
the
Suppliant
used
three
formulations
in
the
manufacture
or
production
of
the
goods
in
issue
as
follows:
No.
35;
No.
42;
No.
63.
14.
The
contents
of
each
formula
are
as
follows:
(a)
No.
85
(1)
Up
to
May
22,
1963:
|
Oil
80%
|
I
|
Herring
oil
48%
|
|
Other
20%
J
|
Vegetable
oil
52%
|
(2)
From
May
22,
1963:
|
Oil
80%
|
)
|
Herring
oil
50%
|
|
Other
20%
}
|
Vegetable
oil
50%
|
(b)
No.
42
|
Oil
80%
|
)
|
Herring
oil
65%
|
|
Other
20%
J
|
Vegetable
oil
35%
|
|
(c)
No.
68
|
|
|
Oil
80%
|
)
|
Herring
oil
90%
|
|
Other
20%
J
|
Vegetable
oil
10%
|
15.
These
percentages
are
based
upon
proportions
of
ingredients
as
measured
by
weight.
Batches
of
ingredients
are
measured
in
4,000
lb.
portions.
Of
the
4,000
lb.
batch,
3,200
lbs.
are
oil.
16.
The
goods
in
issue
were
sold
by
the
Suppliant
under
brand
names.
The
formula
used
in
each
brand
name
during
the
period
in
issue
is
as
follows:
|
PERIOD
1
|
PERIOD
2
|
PERIOD
3
|
|
April
le
1963
|
April
25,
1963
|
December
2,
1963
|
|
to
|
to
|
to
|
|
BRAND
NAME
|
April
25,
1963
|
December
2,
1963
|
February
8,
1964
|
|
I.G.A.
Regular
|
63
|
63
|
35
|
|
I.G.A.
Quick.
Bag
|
63
|
63
|
35
|
|
Monarch
Quarters
|
42
|
35
|
—
|
|
Moms
Regular
|
63
|
63
|
35
|
|
Moms
Quick
Bag
|
63
|
63
|
35
|
|
Moms
Squares
|
63
|
63
|
35
|
|
Golden
Girl
|
42
|
35
|
35
|
|
Golden
Girl
Cartons
..
|
42
|
35
|
35
|
|
Golden
Girl
Quick
Bag
|
42
|
35
|
35
|
|
Silverdale
Squares
....
|
63
|
63
|
35
|
|
Buttercup
|
63
|
63
|
35
|
|
Top
Value
Regular
....
|
63
|
63
|
35
|
|
Top
Value
Quick
Bag
|
63
|
63
|
35
|
|
Top
Value
Squares
....
|
|
35
|
|
Monarch
Regular
|
42
|
35
|
—
|
|
JAYMAX
|
63
|
63
|
35
|
|
Moms
Family
Pack
....
|
63
|
63
|
35
|
|
Discount
Margarine
..
|
63
|
63
|
35
|
|
Golden
Gal
Squares
..
|
63
|
63
|
35
|
|
Monarch
Squares
|
|
35
|
—
|
|
Blue
Band
|
63
|
63
|
35
|
17.
The
Suppliant
did
not
record
the
composition
of
margarine
sold
and
now
in
issue.
However,
in
general
the
Suppliant
sold
during
the
material
period
margarine
made
according
to
the
formula
in
use
in
manufacture
approximately
one
month
prior
to
the
sale
of
margarine
by
the
Suppliant.
18.
The
alleged
taxable
sales
of
the
Suppliant
and
the
Sales
tax
paid
under
protest
by
the
Suppliant
to
the
Respondent
during
the
period
in
issue
in
respect
of
each
brand
name
are
set
out
in
detail
in
an
exhibit
annexed
hereto
and
identified
as
Exhibit
1.
19.
Margarine
like
that
in
issue
is
not
ordinarily
advertised,
displayed
or
sold
as
a
fish
product
but
always
shows
on
the
label
that
it
contains
fish
oil
or
marine
oil
and
may
usually
be
found
in
the
dairy
section
of
the
food
store.
Exhibit
1
attached
to
the
agreed
statement
of
facts
and
referred
to
in
paragraph
18
thereof
is
a
detailed
list
of
the
sales
made
by
the
suppliant
during
the
period
in
issue,
the
sales
tax
paid
thereon
under
protest
by
the
suppliant
in
respect:
of
each
brand
name
used
by
the
suppliant
for
its
products.
The
formulae
used
in
each
such
brand
name
are
set
forth
by
an
identifying
number
in
paragraph
16:of
the
agreed
statement
of
facts
and
the
content
of
each
such
numbered
formula
is
set
out
in
paragraph
14
of
the
agreed
statement
of
facts.
During
the
trial
it
was
stated
that
the
amount
of
$355,
412
48
is
the
accurate
computation
of
the
sales
tax
paid
by
the
suppliant
rather
than
the
amount
of
$361,114.46
as
alleged
1
in
the
petition
of
right.
Margarine
is
a
fatty
food
resembling
butter
in
appearance,
character
and
composition
and
is
used
as
a
substitute
for
or
an
alternative
to
butter.
The
difference
is
that,
in
margarine
the
fat
is
not,
or
is
only
to
a
minor
extent,
derived
from
milk
fat.
The
invention
of
margarine
was
the
result
of
the
search
for
a
substitute
for
butter,
which
in
the
middle
of
the
nineteenth
century
was
produced
in
insufficient
quantity
to
meet
the
demands
consequent
upon
the
steadily
growing
migration
of
population
from
country
to
town
with
change
of
occupation
from
agriculture
to
industry,
and
a
general
recession
in
farming
in
Europe.
Butter
production
in
oyerseas
countries,
such
as
Canada,
United
States,
New
Zealand
and
Australia,
was
still
in
its
infancy
and
could
not
do
much
to
relieve
the
shortage
in
Europe
where
butter
prices
soared.
Napoleon
III
offered
a
prize
for
a
suitable
substitute
for
butter
which
should
be
cheaper
and
keep
better
than
butter.
A.
French
chemist,
Mége-Mouriés,
who
was
already
engaged
in
this
and
other
problems
of
national
economy
won
the
prize
in
1896
and
was
granted
a
patent
for
his
process
and
a
concession
to
erect
a
plant
for
the
manufacture
of
his
product..
The
principal
ingredient
of
Mouriés’
product
was
animal
fat.
It
was
his
belief
that
the
soft
part
of
his
product
consisted
of
margarine
and
olein,
the
glycerides
of
margaric
and
oleie
acids,
respectively,
and
the
hard
parts
largely
of
the
glycerides
of
stearic
acid.
Hence
this
‘‘new
butter
fat”
was
called
oleomargarine.
As
the
demand
increased
new
and
more
efficient
processes
were
introduced.
The
supply
of
beef
fats
could
not
keep
pace
with
the
expansion
of
the
industry.
The
developing
refining
industry
produced
and
made
available
other
fats
and
oils
derived
from
vegetables
such
as
coconut
oil,
palm
oil,
soyabean.
oil,
sunflower
oil,
corn
oil,
rapeseed
oil,
peanut
oil
and
as
time
progressed
a
host
of
others.
Mouriés
first
described
his
product
as
‘‘a
variety
of
true
butter
taken
at
its
source’’,
“artificial
butter’’,
‘‘butterine’’
and
finally
oleomargarine,
but
the
name
margarine
has
now
become
accepted
and
is
generally
used
to
designate
this
butter
substitute
regardless
of
the
type
of
fats
or
oils
going
into
its
composition.
In
the
manufacture
of
margarine
in
Canada
the
proportions
of
edible
oils
and
other
ingredients
measured
by
weight
are
edible
oils
80%,
other
ingredients,
20%.
This
is
confirmed
in
paragraphs
13
and
14
of
the
agreed
statement
of
facts
wherein
the
three
formulae
(No.
35,
42
and
63)
for
the
production
of
the
goods
here
in
issue
are
described
as
containing
fat
or
oil
to
the
extent
of
80%
and
other
ingredients
to
the
extent
of
20%.
The
other
ingredients
consist
of
16%
water
and
the
remaining
4%
is
comprised
of
solids
being
milk
solids,
a
preservative
and
emulsifier.
Animal
fats
are
used
in
the
manufacture
of
margarine
in
Canada
to
a
very
limited
extent
for
economic
and
practical
reasons.
First
the
cost
of
animal
fats
is
higher
than
other
available
oils
and
secondly
the
product
so
manufactured
is
hard
and
not
considered
as
desirable
as
those
manufactured
with
other
oils.
For
all
practical
purposes
margarine
produced
in
Canada
is
either
vegetable
oil
margarine
or
fish
oil
margarine
or
a
combination
of
vegetable
and
fish
oil
margarine.
The
use
of
fish
oil
in
margarine
manufactured
in
Canada
has
increased.
However,
early
attempts
to
use
fish
oils
met
with
disappointed
because
the
average
consumer
exhibited
a
distinct
distrust
of
fish
oils
and
a
distinct
preference
for
all-vegetable
fatty
products.
The
fish
oils
used
in
the
manufacture
of
margarine
in
Canada
are
derived
from
the
herring,
menhaden,
whale
and
seal.
The
term
‘‘marine
oil’’
is
used
to
describe
the
oils
so
derived,
presumably
because
whales
and
seals
are
not
truly
fish
but
marine
creatures
but
in
any
event
the
terms
‘
marine
oil
’
’
and
‘
‘
fish
oil
’
’
are
used
interchangeably
in
the
industry.
The
oil
derived
from
herring
is
used
more
extensively
in
Canada
in
the
production
of
margarine,
most
likely
because
herring
is
more
plentiful
and
the
oil
from
this
fish
is
therefore
more
readily
available.
A
margarine
made
from
fish
oil
is
almost
always
less
costly
than
a
margarine
made
from
vegetable
oil,
for
the
reason
that
fish
oil
is
almost
always
less
costly
than
vegetable
oil.
As
a
practical
matter
the
oil
used
in
the
manufacture
of
margarine
is
never
exclusively
fish
oil.
Invariably
the
fish
oil
used
is
combined
with
vegetable
oil.
Most,
if
not
all,
provincial
jurisdictions
have
enacted
legislation
requiring
that.
margarine
containing
any
fish
oil
shall
not
be
sold
as
being
a
vegetable
oil
margarine
and
that
the
contents
shall
be
displayed
on
the
label.
It
is
my
understanding
that
any
margarine
40%
or
over
of
the
total
oil
content
of
which
is
fish
oil
is
referred
to
in
the
trade
as
a
fish
or
marine
oil
margarine.
In
the
formulae
for
the
production
of
the
goods
here
in
issue
it
will
be
observed
from
paragraph
14
of
the
agreed
statement
of
facts
that
in
formula
No.
35,
48%
of
the
80%
oil
content
was
herring
oil,
which
after
May
22,
1963
was
increased
to
50%,
in
formula
No.
42
the
herring
oil
content
was
65%
of
the
total
content
of
80%
and
in
formula
No.
63
the
herring
oil
content
was
90%
of
the
80%
oil
content
of
the
product.
Therefore
all
the
goods
here
in
issue
would
be
described
in
the
trade
as
a
fish
oil
margarine.
Prior
to
May
1963
the
suppliant
purchased
the
fish
oil
it
used
in
its
margarine
from
refiners
of
oil,
but
in
May
1963
it
opened
and
operated
its
own
refinery..
It
then
purchased
the
fish
oil
through
brokers
in
a
crude
state
from
fish
reduction
plants
and
subjected
the
crude
fish
oil
to
refining
in
its
own
refinery.
Crude
fish
oil
can
be
ingested
by
humans
but
is
unpalatable.
There
is
no
doubt
in
my
mind
that
crude
fish
oil
is
not
edible.
While
it
has
the
initial
advantage
of
being
cheap,
it
requires
extensive
processing
before
it
can
be
used
in
the
edible
product,
margarine.
The
processes
to
which
the
crude
fish
oil
is
subjected
are,
(1)
refining,
(2)
bleaching,
(3)
hydrogenation
and
(4)
deodorization.
The
desirable
characteristics
of
margarine,
which
stem
from
the
selection
and
processing
oil
ingredients
used,
are,
1.
good
resistance
to
oxidative
deterioration,
that
is
resistance
to
the
development
of
a
rancid
avour;
2.
good
physical
stability
in
its
resistance
to
heat;
3.
a
pleasant
eating
quality
and
feeling
in
the
mouth;
and
4.
an
adequate
spreadability.
These
characteristics
are
obtained
by
the
processes
to
which
the
crude
fish
oil
is
subjected.
The
refining
process
essentially
removes
from
the
crude
fish
oil
all
the
free
acids,
the
non-glyceride
oleoginous
material
and
the
carbohydrate
matter.
The
bleaching
process
is
the
method
by
which
colour
bodies
are
absorbed
and
the
colour
of
oil
is
lightened
to
the
desired
degree.
The
refined
and
bleached
oil
is
deodorized.
This
term
is
self-
explanatory
and
is
designed
to
make
the
oily
fully
acceptable
for
use
in
foods.
It
is
my
recollection
of
the
evidence
that
the
deodorization
process
is
the
last
following
hydrogenation
which
I
understood
to
be
the
most
important
process
of
the
four
mentioned.
Before
crude
fish
oil
can
be
used
for
margarine
it
must
be
hydrogenated.
This
is
done
to
control
the
extent
of
“unsaturation”
in
the
oil,
and
thus
its
hardness
and
to
make
it
more
“saturated”
by
the
chemical
addition
of
hydrogen.
If
this
were
not
done
the
rate
of
oxidation
would
be
much
greater
and
the
end
product
would
become
rancid
very
rapidly.
In
short
the
margarine
would
spoil
quickly.
Thus
hydrogenation
serves
a
two-fold
purpose,
(1)
to
provide
a
matrie
of
solid
fat
for
the
support
of
liquid
fat
and
(2)
to
increase
the
resistance
to
oxidative
rancidity.
Thorough
hydrogenation
is
required
to
eliminate
excessive
unsaturation
and
the
fishiness
of
a
fish
oil
must
be
destroyed
before
an
oil
originating
from
a
fish
can
be
used
in
margarine.
Evidence
was
introduced
on
behalf
of
Her
Majesty
to
show
that
margarine
is
invariably
displayed
to
the
public
in
the
dairy
cases
or
sections
of
retail
outlets
alongside
butter,
cheese
and
like
acknowledged
dairy
products.
Fresh
and
frozen
fish
are
displayed
for
sale
in
the
meat
section
and
canned
fish
is
included
in
the
grocery
section.
Efforts
made
by
retailers
to
tie
margarine
in
with
shortening
and
lard
proved
unsuccessful
because
the
public
expects
to
find
margarine
in
the
dairy
section
of
supermarkets.
However
it
was
elicited
in
cross-examination
that
margarine
requires
refrigeration
and
that
the
only
refrigerated
space
normally
available
is
the
dairy
cases.
The
purpose
of
the
introduction
of
such
evidence
is
undoubtedly
to
show
that
margarine
is
not
marketed
as
a
fish
product.
As
I
understood
the
argument
of
counsel
for
the
suppliant
it
basically
amounted
to
this.
He
puts
his
claim
exclusively
on
the
item
in
Schedule
III
to
the
Excise
Tax
Act
reading,
“Fish
and
edible
products
thereof
;’’.
The
words
to
be
construed
are
‘‘
edible
products
thereof;’’.
This
gives
rise
to
two
conditions,
(1)
the
product,
margarine,
is
edible,
with
respect
to
which
there
is
no
controversy
and
(2)
that
the
origin
or
source
of
the
product,
margarine,
is
fish.
He
argues
that,
having
regard
to
the
ordinary
meaning
of
the
words,
it
is
clear
that
if
the
source
of
the
product
is
fish,
the
intermediate
processes
are
immaterial
because
the
origin
of
the
end
product
is
fish
and
the
fish
oil
content
characterizes
that
product.
I
fully
agree
with
the
submission
of
counsel
for
the
suppliant
that
the
words
‘Fish
and
edible
products
thereof;”
must
be
given
their
ordinary
meaning.
The
words
of
an
Act
of
Parliament
which
are
not
applied
to
any
particular
science
or
art,
are
to
be
construed
as
they
are
understood
in
the
common
language.
However,
I
do
not
agree
with
his
submission
that
the
intermediate
processes
to
which
the
original
source
is
subjected
are
immaterial.
Neither
do
I
think
that
the
decisions
of
the
Supreme
Court
in
Townsend
v.
Northern
Crown
Bank,
49
8.C.R.
394
and
Universal
Fur
Dressers
and
Dyers
Ltd.
v.
The
Queen,
[1956]
S.C.R.
632;
[1963]
C.T.C.
435,
upon
which
he
strongly
relied
as
being
in
support
of
his
submission
that
the
processes
to
which
the
source
of
the
end
product
are
subjected
are
immaterial,
are
authorities
for
the
proposition
advanced
by
him.
In
Townsend
v.
Northern
Crown
Bank
(supra)
the
question
that
the
Supreme
Court
considered
was
whether
sawn
lumber
is
a
product
of
the
forest’’
within
the
meaning
of
those
words
in
the
Bank
Act.
Duff,
J.
(as
he
then
was)
said
at
page
397:
.
.
.
Is
lumber
then
a
“product
of
the
forest”
for
the
purposes
of
this
section?
According
to
the
narrow
construction
which
the
appellant
asks
us
to
give
effect
to
when
pressed
to
its
logical
conclusion,
timber
ceases
to
be
a
product
of
the
forest
as
soon
as
it
has
been
subjected
to
any
process
of
manufacture.
That
is
almost
a
reductio
ad
absurdum,
and
Mr.
Laidlaw,
of
course,
did
not
assume
any
such
untenable
position,
rather
he
tried
to
escape
from
it.
He
did
not,
as
I
understood
him
on
the
oral
argument
before
us,
dispute
that
what
are
commonly
known
as
saw-logs
would
be
“products
of
the
forest”,
within
the
meaning
of
the
Bank
Act.
But
why
draw
the
line
at
the
saw
logs?
Logs
are
frequently
reduced
to
lumber
at
the
very
place,
or
at
all
events,
within
a
short
distance
of
the
very
place
where
they
are
felled,
by
means
of
portable
sawmills.
The
appellant’s
answer,
of
course,
to
this
mode
of
argument
is
that
the
line
must
be
drawn
somewhere
and
that
if
you
admit
dressed
lumber
as
a
“product
of
the
forest”
you
cannot
logically
stop
short
of
admitting
the
articles
into
which
the
lumber
is
further
manufactured.
I
concur
with
much
that
is
said
as
to
the
difficulty
of
drawing
an
abstract
line.
This
is
only
one
example
of
the
class
of
cases
in
which
the
court
being
loath
and
refusing
to
attempt
to
draw
an
abstract
line,
finds
itself
compelled
to
decide
whether
a
particular
concrete
case
falls
on
one
side
or
on
the
other
side
of
the
line
which
theoretically
must
be
found
somewhere
within
given
limits.
In
this
particular
case
I
prefer
to
say
that
according
to
the
common
understanding
the
articles
in
question
would
fairly
be
comprised
within
the
description
“products
of
the
forest”,
and
I
think
they
are
within
the
contemplation
of
the
enactment
we
have
to
interpret.
It
is
apparent
from
the
language
above
quoted
that
there
is
some
point
in
the
various
processing
stages
beyond
which
the
original
source
ceases
to
be
used
as
descriptive
of
the
end
product
in
ordinary
parlance.
In
Universal
Fur
Dressers
and
Dyers
Ltd.
v.
The
Queen
(supra)
the
question
was
whether
the
raw
skins
of
shearlings
of
the
merino
type
which
had
been
processed
into
‘‘mouton’’
was
a
fur
and
therefore
subject
to
the
excise
tax
on
furs.
Cartwright,
J.
(as
he
then
was)
stated
that
the
merino
sheep
is
a
woolbearing
animal
and
not
a
fur-bearing
one,
that
its
skin
with
the
wool
attached
is
not
a
fur
and
could
not
be
transmuted
into
fur
no
matter
what
processes
it
was
subjected
to.
I
fail
to
see
how
that
decision
has
any
application
to
the
problem
that
I
have
to
resolve.
In
my
view,
in
order
to
determine
whether
a
particular
product
falls
within
an
expression
such
as
‘‘Fish
and
edible
products
thereof;”
resort
must
be
had
to
the
common
understanding
of
such
words
when
used
in
relation
to
articles
of
commerce.
The
question
here
is,
therefore,
whether,
in
the
ordinary
use
of
words,
margarine
may
be
fairly
regarded
as
falling
within
the
words,
“Fish
and
edible
products
thereof;”
or
more
specifically,
applying
such
a
test:
is
margarine
a
product
of
fish?
I
do
not
think
that,
in
common
parlance,
the
words
‘‘
product
of
fish’’
can
be
considered
as
comprehending
margarine,
even
though
it
contains
fish
oil
as
one
of
its
principal
ingredients.
Margarine
is
itself
a
well
known
article
of
commerce
and
is
neither
marketed,
purchased,
nor
thought
of
by
the
consumer
as
a
product
of
fish.
It
seems
to
me
that
the
fish
from
which
oil
has
been
extracted
and
which
is
used
in
the
manufacture
of
margarine,
which
is
by
no
means
the
sole
ingredient
of
the
end
product,
has
become
so
obscured
by
the
processes
to
which
it
and
the
oil
thereof
has
been
subjected
and
by
the
oil
being
intermingled
with
substantial
amounts
of
other
ingredients
from
other
sources,
the
whole
of
which
is
again
the
subject
of
an
extensive
manufacturing
process,
that
the
resultant
margarine
cannot
be
considered
as
a
product
of
fish,
even
though
the
fish
oil
content
may
make
the
margarine
a
fish
oil
margarine
and
the
labels
thereon
disclose
the
fish
oil
content.
Therefore,
the
suppliant
is
not
entitled
to
any
portion
of
the
relief
sought
by
its
petition
of
right
and
Her
Majesty
is
entitled
to
costs.
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