SPENCE, J. (concurred in by the Chief Justice, Abbott, Ritchie, JJ.) :—This is an appeal by the Deputy Minister from the decision of Noël, J. in the Exchequer Court in which he found that an item known as a rock bolt” was covered by the exemption in Schedule III of the Excise Tax Act and, therefore, not liable for consumption or sales tax. For this purpose, it is sufficient to quote Schedule III as it appears in the reasons for judgment of the Tariff Board : :
‘‘PROCESSING MATERIALS
Materials . . . consumed or expended directly in the process of manufacture or production of goods.
Secondly :
“MACHINERY AND APPARATUS TO BE USED IN MANUFACTURE OR PRODUCTION
Machinery and apparatus that, in the opinion of the Minister, are to be used directly in the process of manufacture or production of goods, and the following machinery or apparatus :
Safety devices and equipment for the prevention of accidents in the manufacturing or production of goods.’’
I deal first with the submission of counsel for the appellant, the Deputy Minister, that a ‘‘rock bolt’’ is not ‘‘machinery or apparatus’’ and that it is not a ‘‘device’’. I adopt the reasons of Noel, J. that the rock bolt is a piece of ‘‘apparatus’’ and is a “device” and I find it unnecessary to decide whether it is a piece of ‘‘machinery’’. Therefore, there remains to be determined whether the rock bolt is a “ safety device and equipment for the prevention of accidents in the manufacturing or production of goods’’ (the italics are to indicate the questions left to be considered). Noël, J. said:
‘ It seems to me that the proper way to interpret this exemption clause is to take it, not piecemeal, but in its entirety and when that is done it appears that the safety device or equipment which must also be either machinery or apparatus, is directed at those accidental happenings which are peculiar to the industry or manufacture involved due to the existence of some distinctive important hazard particular to the process of manufacture or production involved.”
It was urged upon this Court that the approach used by the learned Exchequer Court Judge was the one which should be adopted in order to reach the proper interpretation of the words for the determination of the exemption in question. I adopt that submission and turn to consider the ‘‘happenings which are peculiar to the industry or manufacture involved’’.
To simplify a description of mining, and certainly the simplification would shock those engaged in the industry, it is the delving of a hole in the ground until an ore body is reached and then the removal of that ore or other substance, such as salt, from the hole so delved. It is, of course, as has been stressed in both the Declaration of the Tariff Board ‘and the reasons of Noël, J., a fact. of nature that a hole will not continue to be a hole unless protected and that nature operates to close all holes under its surface. Therefore, there can be no mine, no removal of ore, and even no hole from which to remove it unless the limits of the hole are in some manner efficiently retained. For many centuries, that end was attained by the use of some kind of wooden timber and the words “pit props’’ were ordinary in the language. Later, the science of mining developed so that other means were used for the same end, and we have had reference to steel framing or arching, cement retaining structures, and rock bolts. All of those means are utilized for retaining in position the walls of a shaft or. tunnel, and so. permitting the ore to be removed therefrom. Now, of course; this entails the protection of those persons. who are carrying on the mining, and the retaining of the walls and roofs of the shafts and tunnels protects them in a fashion which makes their labour possible. But even if no human ever entered the shaft or the tunnel there would still have to be some method of retaining such shaft or tunnel in its position in order to remove the ore. Devices which are designed to accomplish that purpose are not devices or equipment ‘‘for the prevention of accidents in the manufacturing or production of goods’’ but are Simply devices to permit the manufacture or production of goods. I am, therefore, of the opinion that the definition was not intended by Parliament to include such. devices. The word “safety” together with the words ‘‘for (i. e. with the purpose of) the prevention of accidents in the manufacturing or production of goods ’ ’ imply that the purpose for which the device is designed and used is to prevent such accidents, while the purpose for which the rock bolt is designed and used is the retention of the contour. of the underground cavity and, therefore, the making possible. of mining which, of course, can only be possible if the formation of the cavity is retained and men can work safely therein. Therefore, I agree with the finding of the Tariff Board that these rock bolts were ‘ ‘ essentially structural devices d'T no safety devices”.
I would allow the appeal with costs.
CARTWRIGHT, J. (dissenting) :—The questions to be decided in this appeal are stated in the reasons of my brother Spence.
After a consideration of the record in the light of the full and helpful arguments of counsel I find myself so fully in agreement with. the reasons and conclusion of Noel, J. that I am content simply to adopt them. At the risk of repeating what he has already. said, I. am of opinion that, in view of the findings of fact made by the Tariff Board and accepted by Noël, J., the submission of the appellant as to the proper construction of the relevant words of the exempting clause necessitates the addition to that clause of words which it does not contain. It is sought to construe it as if it read :—
“Safety devices and equipment used solely for the prevention of accidents in the manufacturing or production of goods.”
The words which I have italicized do not appear in the exempting clause and for the reasons given by Noël, J. I agree that this is not a case in which the Court can add those words or words similar thereto.
I would dismiss the appeal with costs.
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