Quebec Hydro-Electric Commission v. 307 ; Deputy Minister of National Revenue, [1969] CTC 574, 69 DTC 5372

ABBOTT, J. (concurred in by Fauteux, Martland, Judson, Ritchie and Hall, JJ.) :—This appeal is from a judgment of the Exchequer Court which allowed an appeal under Section 58 of the Excise Tax Act, R.S.C. 1952, c. 100, as amended, by the Deputy Minister of National Revenue for Customs and Excise from a decision of the Tariff Board. The question of law, upon which leave to appeal was granted, is framed in the following terms :

Did the Tariff Board err as a matter of law in deciding that the transformers in issue are “machinery and apparatus sold to or imported by manufacturers or producers for use by them directly in the manufacture or production of goods” within the meaning of paragraph (a) of Schedule V of the Excise Tax Act?

The dispute arises under the Excise Tax Act and concerns the rate of sales tax payable under that Act upon certain transformers purchased and used by the appellant. The issue turns upon whether or not the transformers are ‘‘machinery and apparatus sold to or imported by manufacturers or producers for use by them directly in the manufacture or production of goods’’ within the meaning of paragraph (a) of Schedule V of the said Act. If they are, then they are subject to the lower rate of tax imposed by Section 32(3) rather than the higher rate imposed generally upon goods by Section 30(1).

It is common ground that “electricity” falls within the meaning of the word ‘‘goods’’ in the relevant provisions of the Excise Tax Act and that the appellant is a ‘‘manufacturer or producer of goods’’ for the purposes of the same provisions.

The function of the transformers in question is described by the Tariff Board in its Declaration, as follows :

The applicant’s principal business is the manufacture or production and the sale of electricity to municipalities, industries and individuals. The electricity sold to the customers is measured, by an appropriate meter, in kilowatt hours; for lighting and ordinary appliances, the electricity is generally sold to customers at 120-140 volts, though many customers, particularly municipalities and industries, may purchase electricity at considerably higher voltages.

The evidence reveals that, at its generating stations, the applicant produces electricity from a source of energy that is not electricity, for example water power or thermal energy; the electrical power generated at these stations is usually generated at a voltage considerably higher than that used by the applicant’s household customers and lower than that used by some of its other customers; for purposes of transmission over distances, the voltage of the electric power delivered by the generator is almost invariably transformed to a much higher voltage; at this very high voltage electric power is generally not of use to the great majority of the applicant’s customers; consequently, it is usually transformed to a lower voltage, frequently at one or more substations, and, in any event, at some point in the system in the proximity of the consuming customer, to the voltage normally purchased by him. Though this is the pattern for the greatest number of consumers, there are certain customers. who. require high voltages, for their. purposes the electricity may be transformed to higher instead of lower voltages. or, in very exceptional cases, there could be direct transmission from a generating station to such customers without any transformation.

The transformation of voltage, upwards or downwards, is performed by a device known as a transformer,

The appellant took the position that transformers used by it for the purposes described. in that portion of the Declaration of the Tariff Board, which I have quoted, are:so used “directly in the manufacture or production of goods’’ are requested a ruling that the transformers in question were subject to the lower rate of tax imposed by Section 32(3) of the Excise Tax Act.

The appellant’s request was rejected by the > Deputy Minister on the following grounds:

When the electricity leaves the generating station and enters the distribution system, the production process has ceased and, in our view, machinery and apparatus used beyond this point does not qualify as production machinery or apparatus. All transformers and ancillary equipment used beyond the generating station for transforming the electricity to voltage levels required by customers is subject to sales tax at the rate of 12%.

Pursuant to the provisions of Section 57 of the said Act, an appeal was taken by appellant to the Tariff Board, requesting the Board to make a declaration as to the, tax which was payable on the said transformers.

Evidence concerning the business of the appellant, the nature of electricity, the purpose and function of the transformers and other relevant matters was heard by the Tariff Board which, in its Declaration, made certain findings, amongst them to ‘the following : . /

From the evidence it appears that the current in the. primary coil of a transformer is electrically insulated from the core of the transformer and from the secondary winding of the transformer. By electromagnetic induction, initiated by the electrical energy of the primary alternating current, a new and separate alternating current is produced in the secondary winding of a transformer. The current in the secondary circuit usually differs, not in the number of watts or of cycles, but in the number of volts and of amperes. However the operation of a transformer is no mere transmission in the sense of causing the primary current to pass, go or be conveyed or conducted from the primary circuit to the secondary circuit.

The electrical energy produced by the applicant is not a commodity which is ordinarily used by or sold to its customer until it has been transformed; its exists, prior to such transformation, in a form which is not generally marketable because it is unsuited for the use of most customers.

Because it is the transformation in issue that turns the electrical energy into a form that can be used by the customer, this transformation must be considered to be part of the manufacture and production of electricity. Because the transformation of voltage is done exclusively in the transformers and by the transformers, they are apparatus sold to or imported by the applicant for use by it directly in the manufacture or production of goods.

The principal contention of the respondent before the Tariff Board, the Exchequer Court and this Court was that the words ‘manufacture or production’’, when applied to a commodity such as electricity, must be construed to mean manufacture or production in the sense of ‘‘generation’’. That contention was rejected by the Tariff Board, but was accepted by the learned President of the Exchequer Court.

As Duff, C.J. stated in The King v. Vandeweghe Limited, [1984] S.C.R. 244 at 248; [1928-34] C.T.C. 257 at 260: ‘‘The words ‘manufacture’ and ‘production’ are not words of any precise meaning and, consequently, we must look to the context for the purpose of ascertaining their meaning and application in the provisions we have to construe.’’ Nevertheless, taking these words in their natural and ordinary sense, there is nothing in the Excise Tax Act which would compel such a restrictive meaning as that contended for by the respondent. Moreover such a meaning would be contrary to evidence which was accepted by the Board. In my opinion the Board correctly construed paragraph (a) of Schedule V of the Excise Tax Act, and did not misdirect itself as to the law.

The Board found as a fact that the transformers in issue in this appeal are ‘‘apparatus sold to or imported by the appellant for use by it directly in the manufacture of goods’’. There was ample evidence to support that finding and, under the provisions of Section 57 of the Excise Tax Act, it is not subject to judicial review.

I would allow the appeal, set aside the Order of the Exchequer Court and restore the Declaration of the Tariff Board. The appellant is entitled to its costs throughout.

PIGEON, J. (dissenting) :—Under the Excise Tax Act, sales tax was, until March 31, 1968, payable at a reduced rate on items listed in Schedule V. Paragraph (a) of that schedule reads as follows:

(a) machinery and apparatus sold to or imported by manufacturers or producers for use by them directly in the manufacture or production of goods.

Appellant contends that the transformers it uses in connection with the production and distribution of electricity are apparatus used directly in the manufacture or production of goods ’ ’ within the meaning of that provision. The Tariff Board agreed with that contention. On appeal, the President of the Exchequer Court set aside that declaration as ill-founded in law, hence this appeal.

It is conceded that electricity is ‘‘goods’’ within the meaning of the Act in question because it is listed in paragraph 3, Part VI, Schedule III in which goods exempt from sales tax are enumerated. The whole question to be determined is therefore whether transformers should be considered as used in the “production” of electricity. It is not suggested that the word “manufacture” is applicable.

As Duff, C.J. pointed out in The King v. Vandeweghe Ltd., [1934] S.C.R. 244; [1928-34] C.T.C. 257, the words “produced” and manufactured ’ ’ are not words of any very precise meaning and, consequently, we must look to the context for the purpose of ascertaining their meaning. In this case, it seems to me, the context clearly shows that Parliament has established a distinction based on the main categories of economic activities generally recognized. A reduced rate of sales tax or a complete exemption (depending on the date), has been provided for apparatus used directly in the production of goods, but this privilege does not extend to what is used in transportation or distribution. Paragraph (d) of Schedule V mentions equipment for use . . . in carrying refuse or waste from machinery and apparatus’’ used in the manufacture or production of goods. This clearly indicates that, generally speaking, transportation equipment is not within the exemption. Similarly, in paragraph (e), trucks used exclusively off-highway at mines and quarries are mentioned, and in paragraph (f), internal combustion tractors for use in the operation of logging such operation to include only the removal of the log from the stump to a regular carrier.

Counsel for appellant relies essentially on the fact that in a transformer the coils carrying the electricity are insulated from each other so that the electric current coming out of it is not the same current that entered it. The alternating current coming out of a transformer is ordinarily of a voltage different from that of the current entering it and it is contended that this transformation gives to the commodity the form in which it is delivered to the customer. A witness went so far as to assert that technically or scientifically it could be said that a transformer “produces” electricity. Perhaps that could be said, but the fact is that it is never said and the reason it is not said is that, in usual language, the operation is considered from an economic standpoint and what is called ‘‘production of electricity” is only production of electrical energy from another source of energy.

Uncontradicted evidence shows that in usual language a transformer is never designated as an apparatus used in the production of electricity, but as an apparatus used in its transmission or distribution. It is true that, due to its special nature, electrical energy cannot ordinarily be transported and distributed without being transformed up and down and this is done by producing, through induction in transformers, a new current. However, because electricity is generated in the form of alternating current precisely to facilitate such transformations, such changes in voltage are not considered as part of the operation ‘‘production of electricity’’ but they are looked upon as an essential step in the transmission and distribution. This is how the expression ‘‘production of electricity’’ is understood in common parlance.

Such is the eriterion by which the Tariff Board should have been governed in its declaration. To construe and apply the law, it did not have to consider how the use of transformers is to be viewed from a scientific or technical standpoint. It had to ascertain how that use is considered and described in usual language. Under a well established rule of construction, laws must not be construed by reference to scientific or technical theories, but according to the usual meaning of the words (Continental Soya Co. Ltd. v. J. R. Short Milling Co. (Canada) Ltd., [1942] S.C.R. 187; Laboratoire Pentagone Limitée v. Parke Davis & Co., [1968] S.C.R. 307).

In my opinion, the Board erred in law in construing and applying paragraph (a) of Schedule V of the Excise Tax Act otherwise than by reference to the usual meaning of the word “production” as applied to electricity and in giving precedence over common usage to the scientist’s or technician’s view of the use of transformers. The common view expressed in the usual language should have prevailed.

In order to give effect to the intention of Parliament to limit the exemption in question to things used in the production of goods as opposed to things used in their transportation or distribution, account must be taken of the distinction made everywhere between the production of electricity that is effected only in power-houses and its transmission and distribution that are effected through a network of transformers connected by cables.

I am not overlooking the cases in which it was held that giving a commodity the form required to make it acceptable to the customer is an essential part of production irrespective of the extent of such transformation (The Queen v. York Marble Tile and Terrazzo Ltd., [1968] S.C.R. 130; [1968] C.T.C. 44). This principle cannot be applied beyond what is understood to be production of goods in the usual meaning of the term. In all the cases where this principle was applied, be it to marble, furs, watches or anything else, there always was ‘‘production’’ of an article of trade in the usual sense. This is what is lacking in the instant case.

I must add that, even from a technical or scientific point of view, it seems to me that the President of the Exchequer Court correctly found that the Tariff Board was in error. Indeed, I incline to think that he is right in saying that in Schedule V to the Excise Tax Act ‘‘electricity’’ means ‘‘electrical energy” because what the appellant sells is measured in kilowatt-hours, a unit of energy. Therefore, it is the electrical energy that is sold and delivered, not the current whereby it is transmitted. However, I am not sure that this aspect of the question is a point of law. On the other hand, it seems obvious to me that the meaning to be given to the provision to be applied in this case is exclusively a question of law (Canadian Lift Truck v. Deputy Minister of National Revenue for Customs and Excise (1956), 1 D.L.R. (2nd) 497).

I would dismiss the appeal with costs.