THE
CHIEF
JUSTICE
:—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,
R.S.C.
1927,
¢
179
and
amendments).
In
The
King
v.
Fraser
Companies,
[1931]
S.C.R.
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)
:
*
*
*
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
the
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.
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
material,
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
specially
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,
[1931]
S.C.R.
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.
Then
comes
the
question,
the
real
question
I
think
on
the
appeal,
whether
in
such
circumstances
section
105
applies.
Section
105
is
in
these
words
:
105.
A
refund
of
the
amount
of
taxes
paid
under
Parts
X,
XI,
XII
and
XIII
of
this
Act
may
be
granted
to
a
manufacturer,
producer,
wholesaler,
jobber
or
other
dealer
on
goods
sold
to
His
Majesty
in
the
right
of
the
Government
of
any
province
of
Canada,
if
the
said
goods
are
purchased
by
His
Majesty,
for
any
purpose
other
than
purposes
of
resale
or
of
any
railway,
commission,
board
or
public
utility
which
is
operated
by
or
under
the
authority
of
the
Legislature
or
the
Lieutenant-Governor
in
Council
of
the
province.
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
foree
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.
A
transaction
within
section
87(2),
for
example,
would,
if
the
other
conditions
were
fulfilled,
be
a
sale
within
section
105.
Mr.
Vareoe’s
argument
is
that
here,
while
the
transaction
(the
production
of
the
goods
in
question
for
the
use
of
the
producer
in
fulfilling
this
contract)
is
deemed
to
be
a
sale
by
force
of
the
statute,
the
goods
produced
are
not
"‘sold’’
to
the
provincial
government.
This
argument
has
force
and
I
have
given
it
attentive
consideration.
The
"‘use’’
of
these
goods
for
the
purposes
of
the
respondents
in
fulfilling
the
contract
involves
a
translation
of
the
property
in
them
to
the
provincial
government
by
force
of
the
contract
under
which
the
entire
consideration
for
the
whole
work
is
payable
by
the
provincial
government
to
the
respondents.
Our
duty,
as
Lord
Hailsham
said
in
Dominion
Press
v.
Minister
of
Customs,
[1928]
A.C.
340
at
342,
is
to
ascertain
whether
the
goods
are
"
"
sold
‘
to
the
provincial
government
within
the
meaning
of
those
words
as
employed
in
the
statute.
I
think,
in
view
of
the
fact
mentioned,
that
the
‘‘transaction’’
involves
translation
of
the
property
in
the
goods
to
the
provincial
government,
the
proper
view,
when
the
provisions
of
sections
86
and
87
are
taken
into
account
as
a
whole,
is
that
it
falls
within
section
105.
The
appeal
should
be
dismissed
with
costs.
Appeal
dismissed
with
costs.
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