Cefer Designs Ltd. (Appellant)
v.
Deputy Minister of National Revenue for Cus
toms & Excise (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Sweet D.J.—Ottawa, June 12, 1972.
Tariff Board—Jurisdiction—Liability for sales tax on spe
cific goods—Excise Tax Act, R.S.C. 1952, c. 100, ss.
29(26), 57—Concrete modules assembled at water site—
Whether a "structure"—"Manufacturer or producer".
The Tariff Board does not have jurisdiction under section
57 of the Excise Tax Act to determine whether a manufac
turer or producer is not liable for sales tax on specific goods
by reason of the provisions of section 29 of the Excise Tax
Act, R.S.C. 1952, c. 100, in this case, whether concrete
modules constructed in a factory and assembled as a float
ing dock elsewhere constitute a "structure" manufactured
in competition with floating docks of wood, fiberglass,
Styrofoam, etc. so as to remove their manufacturer from the
category of "manufacturer or producer" under section
29(2b).
Goodyear Tire & Rubber Co. of Can. v. T. Eaton Co.
[1956] S.C.R. 610, applied.
APPEAL from Tariff Board.
Russell J. Anthony for appellant.
J. E. Smith for respondent.
JACKETT C.J. (orally)—This is an appeal from
a declaration of the Tariff Board dated Decem-
ber 14, 1970, dismissing an application by the
appellant under section 57 of the Excise Tax
Act for a declaration that sales tax does not
apply to certain floating concrete docks,
wharves and breakwaters made by the
appellant.'
The appellant, by its notice of appeal to this
Court, asks that the declaration of the Tariff
Board be set aside upon the following question
of law:
Did the Tariff Board err as a matter of law in not declaring
that the floating breakwaters and docks or wharves made by
the Appellant are exempt from tax or that no amount of tax
is payable thereon under the Excise Tax Act?
As I am of the view that the Tariff Board had
no jurisdiction to entertain the application made
to it by the appellant and, that, for that reason,
the appeal to this Court must be dismissed, it
becomes necessary for me to refer to the gener
al scheme of the Excise Tax Act, in so far as it
applies to consumption or sales tax, before I
outline the application made by the appellant to
the Tariff Board and before I explain why I
have concluded that the Board had no jurisdic
tion to entertain it.
Section 30(1) of the Excise Tax Act imposes,
inter alia, a consumption or sales tax of 9 per
cent. on the sale price of all goods produced or
manufactured in Canada payable, except in cer
tain exceptional cases, by the producer or
manufacturer at the time of delivery to the
purchaser. Section 30(1) is, however, subject to
section 32(1) which provides that the tax
imposed by section 30 does not apply to sales
of the "articles" mentioned in Schedule III, and
to section 32(2), which provides for only 50 per
cent. of the tax imposed by section 30 being
payable on the sale and delivery of the "arti-
cles" enumerated in Schedule IV. There are
various other special provisions that vary the
prima facie effect of section 30(1). It will be
sufficient, however, for present purposes, to
mention section 2(1)(aa), which defines "manu-
facturer or producer" to include, inter alia,
"any person, firm or corporation that owns,
holds, claims, or uses any patent, proprietary,
sales or other right to goods being manufac
tured ... ," and section 29(2b), which reads as
follows:
(2b) Where a person
(a) manufactures or produces a building or other structure
otherwise than at the site of construction or erection
thereof, in competition with persons who construct or
erect similar buildings or structures not so manufactured
or produced,
(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 incor
porate similar sections not so manufactured or produced,
(c) manufactures or produces concrete or cinder building
blocks, or
(d) manufactures or produces from steel that has been
purchased by or manufactured or produced by that
person, and in respect of which any tax under this Part
has become payable, fabricated structural steel for
buildings,
he shall, for the purposes of this Part, be deemed not to be
in relation to any such building, structure, building sections,
building blocks or fabricated steel so manufactured or pro
duced by him, the manufacturer or producer thereof.
Stopping at this point, it is apparent that among
the problems that may arise in determining lia
bility for this consumption or sales tax are the
following:
(a) Are the articles in question of one of the
classes of articles mentioned in Schedule III
so that they are, in effect, exempt from any
tax by section 32(1)?
(b) Are the articles in question of one of the
classes of articles enumerated in Schedule IV
so that they are in effect subject only to half
rates by virtue of section 32(2)?
(c) Is the de facto manufacturer or producer
of the articles in question deemed not to be
the manufacturer or producer by section
29(2b) so that he is not liable to pay the tax
imposed by section 30(1) in respect of such
articles?
(d) Is some person who is not otherwise the
manufacturer or producer of the articles in
question the manufacturer or producer there
of for the purposes of consumption or sales
tax by virtue of section 2(1)(aa) so that he is
liable to pay the tax imposed by section 30(1)
in respect of such articles?
Returning to the provisions of the legislation, it
would appear that the tax is recoverable as a
debt due to the Crown in the Federal Court or
in any other court of competent jurisdiction
under section 50(1) of the Excise Tax Act; and,
presumably, any dispute between a subject and
the Crown concerning liability for the tax can
be determined in such an action. There is, in
addition, section 57 of the Excise Tax Act
which is in question in this appeal and which
reads, in part, as follows:
57. (1) Where any difference arises or where any doubt
exists as to whether any or what rate of tax is payable on
any article under this Act and there is no previous decision
upon the question by any competent tribunal binding
throughout Canada, the Tariff Board constituted by the
Tariff Board Act may declare what amount of tax is payable
thereon or that the article is exempt from tax under this
Act.
(2) Before making a declaration under subsection (1) the
Tariff Board shall provide for a hearing and shall publish a
notice thereof in the Canada Gazette at least twenty-one
days prior to the day of the hearing; and any person who,
on or before that day, enters an appearance with the Secre
tary of the Tariff Board may be heard at the hearing.
(3) A declaration by the Tariff Board under this section is
final and conclusive, subject to appeal as provided in sec
tion 58.
I turn now to the application made by the
appellant to the Tariff Board. Reference should
first be made to certain correspondence
attached to the application. That correspond
ence is as follows:
(1) Letter from the appellant to the District
Excise Officer dated November 25, 1968:
For approximately two years the company of letter head
has been involved in the research and development of
cement flotation and allied products. For some of our
products the initial development stage is complete and are
now being marketed. Of recent, however, it has become
apparent that for one of the above mentioned product lines
the application of the 12% Federal Sales Tax on the total
manufactured sales price is not in keeping with the practice
of competition. Consequently we find that, from a `pricing'
standpoint we are placed in a disadvantageous position. We
suggest, in these instances, that Part VI, Section 29(2b)
paragraph (a), (b) of the Federal Excise Tax Act should
apply.
The product line in question is floating concrete docks or
wharfs used in the B.C. Marine industry for mooring of
boats and other types of vessels. The individual concrete
float modules are made at our plant but when joined or
coupled together at the customer's site form a floating
complex. From a product standpoint, the above mentioned
type of concrete flotation is in direct competition with
various other types of flotation material such as wood,
fiber-glass pontoon, styra foam, and so forth. We find that,
in these instances, competitors are not required to ask their
customers to bear the 12% Federal Excise Tax in the total
manufactured sales price. Consequently, therefore, our
view is that we fall within Part VI, Section 29, 2 (b) sub.
para. (a) (b) which reads in part
(2B) Where a person
(a) manufactures or produces a building or other structure
otherwise than at the site of construction or erection
thereof, in competition with persons who construct or
erect similar buildings or structures not so manufactured
or produced.
(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 incor
porate 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, structure, building sections,
building blocks or fabricated steel so manufactured or pro
duced by him, the manufacturer or producer thereof.
We request your thoughts on the above matter and respect
fully request a ruling as to whether our interpretation of
Section 29 is a correct one.
Should you wish further details or clarification on any of
the above points to assist in your decision, please call on us.
(2) Letter from the Department of National
Revenue to the appellant dated December 6,
1968:
This will acknowledge your letter of November 25, 1968,
concerning the application of sales tax to floating concrete
docks and wharves which are manufactured by your firm.
It is understood that the individual concrete float modules
are made in your plant and are subsequently joined or
coupled together at the customer's site to form a floating
complex. You have indicated that your competitors, who
construct floating docks at site from materials such as
wood, fibreglassed pontoons, styrafoam, etc., are required
to, account for tax only on materials used. Your firm, on the
other hand, is required to account for tax on your full
selling price less applicable allowances for transportation
and installation.
In this connection, you have requested that consideration be
given to application of the provisions of Section 29(2b)(a)
and (b) of the Excise Tax Act with respect to the floating
concrete docks of your manufacture.
Sections 29(2b)(a) and (b) deal only with "buildings" and
"structures". It is the Department's view that floating docks
and wharves are neither buildings nor structures within the
terms of the Excise Tax Act and, consequently, cannot be
dealt with under these Sections.
(3) Letter from the appellant to the Depart
ment of National Revenue dated May 22, 1969:
Further to my letter November 25, 1968 and in reply to
your letter December 6, 1968.
Considerable thought has been given to the question con
cerning what we feel our position is with respect to Section
29(2b),(a) of the Excise Tax Act. In your letter December 8,
1968 you state that the concrete floats of our manufacture
are not considered `structures' and therefore cannot be dealt
with under Section 29.
According to a recognized dictionary definition, `structure'
is taken to mean, among other things, "... manner in which
a building or organism or other complete whole is construct-
ed ... thing constructed ... complex whole". Surely, our
concrete flotation when coupled together to form one com
plete complex could be classed as a `structure' under the
foregoing definition. From your letter of December 8 it
appears as if the Excise Tax Act has taken the rather
limited usage of the words 'or other structure' as relevant to
structures affixed to land only. If this is the case, the intent
of Section 29(2b) appears to be legislation to preclude
unfair taxation between `contractors' and `manufacturers'
engaged in fabrication of competitive products.
Our argument is that, in some cases we are caught in the
same 'contractor'-`manufacturer' dilemma with regards to
Taxation. In other words, on occasion we find ourselves in
direct competition with persons who fabricate under con
tractors licence, `structurers' that are built to perform an
identical function as that of our product. The tax implica
tion on our competitive bid-pricing is self evident. Our view
is that the intent of Section 29(2b)(a) should apply in
situations where obvious conflict exists between ourselves
and persons operating under contractor licence. It should be
emphasized that it is the application of the Federal Tax that
is under contention and not the 12% Tax per se.
Because we feel rather strongly as to the interpretation and
application of Section 29(2b)(a) and how it applies to us
under certain circumstances, for two of our more recent
contracts we have acted in the capacity of `contractor'. The
contracts in question were for two concrete breakwater
complexes. In both cases our concrete breakwater was in
competition with contractors offering three alternative
types of breakwater, namely: rock fill, pile breakwater
and/or floating log.
Accordingly, to improve our competitive position, or at
least work from a common denominator, we acted as 'con-
tractors' for these specific jobs and have paid Federal Tax
on materials only.
This letter is submitted to amplify our previous letter of the
25 November, 1968. In the light of the foregoing we
respectfully request that your department reappraise our
situation with respect to Section 29(2b)(a) of the Excise
Tax Act.
(4) Letter from the Department of National
Revenue to the appellant dated September 30,
1969:
This will refer to previous correspondence and our meet
ing of Sept. 25, 1969 with Mr. L. J. Vetter regarding the
application of sales tax to floatable concrete products of
your manufacture.
As explained during the meeting, the Department holds
that with reference to Section 29(2b)(a) & (b) of the Excise
Tax Act, the persons who produce the goods concerned
must be in competition with persons who construct or erect
similar goods at site i.e. concrete in competition with con
crete, or wood in competition with wood. The floatable
concrete products of your manufacture cannot be said to be
produced in competition with similar goods produced at
site. Consequently, the floating concrete docks, wharves, or
walkways of your manufacture are held to be taxable on the
sale price. It was further confirmed that the floatable goods
named are not considered to be structures within the mean
ing of Section 29 (2b).
Your continued co-operation and patience is very much
appreciated and it is regretted that within the framework of
the legislation a favourable decision could not be given.
(5) Letter from Department of National
Revenue to the solicitors for the appellant dated
December 17, 1969:
This refers to your letter of December 10, 1969 requesting
our comments concerning the wording of a proposed state
ment of the differences existing between the Department
and yourselves regarding the interpretation of Section
29(2b),(a) and (b) of the Excise Tax Act.
It is considered that the wording as shown in your draft
statement correctly presents the points in issue.
The draft statement referred to in this latter
letter would appear to be that which appears on
page 52 of the case, which reads as follows:
THE TARIFF BOARD
STATEMENT OF APPEAL
POINTS IN ISSUE:
RE: SECTION 29(2b),(a) and (b), OF "EXCISE TAX
ACT", R.S.C. 1952, CHAPTER 100
(a) Whether the wording "in competition with persons
who construct or erect similar buildings or structures
." is confined to "similar" material, i.e., concrete in
competition with concrete, or wood in competition with
wood;
(b) Whether the word "structures" includes floating
docks, floating wharves, and floating breakwaters.
The application to the Tariff Board as amend
ed during the Tariff Board hearing bears date
April 15, 1970, and reads in part as follows:
NOTICE OF APPLICATION
TAKE NOTICE that an application will be made by
Cefer Designs Ltd. to the Tariff Board for a Declaration
that Floating Concrete Docks, Wharves and Breakwaters
manufactured by Cefer Designs Ltd. are exempt from sales
tax, pursuant to the provisions of the Excise Tax Act.
STATEMENTS OF FACTS
(a) Cefer Designs Ltd. is a body corporate duly incor
porated pursuant to the laws of the Province of British
Columbia having a registered office at Suite 1410-1075
West Georgia Street, in the City of Vancouver, Province
of British Columbia and having a place of business at 899
River Road, in the Municipality of Richmond, Province of
British Columbia.
(b) Cefer Designs Ltd. manufactures cement segments
for Floating Docks, Breakwaters and Wharves from its
plant in Richmond, British Columbia.
(c) Cefer Designs Ltd. manufactures or produces the said
Docks, Wharves and Breakwaters otherwise than at the
site of construction or erection thereof, in competition
with persons who construct or erect similar buildings or
structures not so manufactured or produced.
(d) Alternatively, Cefer Designs Ltd. manufactures or
produces, otherwise than at the site of construction or
erection of a building or other structure, the said Docks,
Wharves and Breakwaters for incorporation into such
building or structure, in competition with persons who
construct or erect buildings or other structures that incor
porate similar sections not so manufactured or produced.
DOUBT OR DIFFERENCE
(e) That the difference which exists between Cefer
Designs Ltd. and the Deputy Minister of National Reve
nue for Customs and Excise is:
(i) whether the wording "in competition with persons
who construct or erect similar buildings or structures
.." is confined to "similar" material, i.e., concrete,
or wood in competition with wood; and
(ii) whether the word "structures" includes cement
Docks, Wharves and Breakwaters, or segments thereof
of a size and design similar to those constructed by
Cefer Designs Ltd.
(h) Cefer Designs Ltd. ask for a Declaration that:
1. the word "structures" used in Section 29 2(b)(a) and
(b) of the Excise Tax Act includes Floating Cement
Wharves, Docks and Breakwaters or segments thereof, of
a type constructed by Cefer Designs Ltd.; and
2. that the wording "in competition with persons who
construct or erect similar buildings or structures ...
used in Section 29(2b)(a) and (b) of the Excise Tax Act is
not confined to "similar material; and
3. that for the purposes of Part VI of the Excise Tax
Act, Cefer Designs Ltd. is deemed not to be the manufac
turer or producer of Floating Concrete Docks, Wharves
and Breakwaters.
4. that the floating docks, wharves and breakwaters,
produced by CeFer Designs Ltd. are exempt from tax
under the Excise Tax Act.
The Tariff Board's findings as to the facts
read as follows:
The appellant makes long hollow parallelepipeds of con
crete, though the parallelepipedal form may, at times, be
somewhat varied to suit particular circumstances; in one
instance cited in evidence they measured, in feet, 20 x 4 x
80. These parallelepipeds are commonly known as segments
and will be thus designated.
These segments, in sizes appropriate to the particular use,
are made by the appellant in its drydock; they are then
floated and towed to the place where they will be used. At
this place they are appropriately secured to each other to
form a floating dock, wharf or breakwater. To keep the
floating dock, wharf or breakwater in place various methods
may be used; the outer ends of the complete device of
several segments may be made fast to a piling or dolphin
driven into the seabed; the device may be made fast by
heavy chains with anchors; it may be made fast by stiff
arms or legs, usually of wood or steel, which are fixed to
the shore. These methods are intended to allow the device
to rise and fall vertically with the tide, with little or no
movement in the horizontal plane.
When in place, the appellant's installations serve either as
breakwaters or as docks or wharves upon which persons or
vehicles may gain ready access to vessels secured along
side. They may have, upon their upper surfaces, decking
made of other material than concrete such as wood or steel.
There are competitive installations of concrete and com
petitive installations of wood the floatation of which is
maintained by wood, styrofoam, fibreglass or other means.
All these installations have different competitive advan
tages and disadvantages in suitability, in capital cost, in
maintenance cost and in durability or useful life.
The appellant's installations are each built to order for the
specific use of each customer and are designed for the
permanent use of the customer at the place indicated by the
customer.
In my view section 57 does not confer juris
diction on the Tariff Board in respect of the
class of problems into which the problem raised
by this application falls. Section 57 obviously
applies to any question as to whether articles of
a particular description fall within one of the
classes of articles mentioned in Schedule III so
that no tax is payable with regard thereto under
section 30(1) (section 32(1)) and to any ques
tion as to whether articles of a particular
description fall within one of the classes enume
rated in Schedule IV so that only 50 per cent. of
the tax imposed by section 30(1) is payable with
regard thereto (section 32(2)). Any such ques
tion may be raised, provided there is a suffi
ciently definite description of the articles in
question, as a question of general application.
Such a question does not, in other words, have
to be related to the goods involved in a particu-
lar transaction. Put another way, what section
57 does, when section 57(2) is read with section
57(1), is to authorize the Tariff Board to make a
declaration of general application as to whether
a particular class of articles is exempt or enti
tled to a special rate after having given all
persons interested in such a declaration an
opportunity to be heard.
Where, however, a question arises as to
whether any person was the manufacturer or
producer of certain goods, this must be decided
with reference to the facts of the particular
transaction. Obviously, this is so if the question
raised is a pure question. of fact as to whether
the defendant was the manufacturer or pro
ducer of the goods in question. The Supreme
Court of Canada, in Goodyear Tire & Rubber
Co. of Canada Ltd. v. T. Eaton Co. Ltd. [1956]
S.C.R. 610, has held that section 57 had no
application where the question was whether a
person was to be considered a manufacturer or
producer for the purposes of sales tax by virtue
of section 2(1)(aa) of the Excise Tax Act (which
at that time was section 2(a)(ii) of the Act). In
my view, essentially the same kind of problem
is involved in a question arising under section
29(2b). Such a question must be decided, in
relation to each transaction. Whether the condi
tions of section 29(2b) have been complied with
so that, while the appellant would otherwise be
the manufacturer or producer for purposes of
sales tax, that provision requires that he be
deemed not to be the manufacturer or producer
is of necessity a question that must be deter
mined with respect to specific goods.
The impossibility of having a question under
section 29(2b) decided by a proceeding involv
ing a class of articles such as is contemplated
by section 57 is illustrated by considering the
complexity of the sales tax legal problems that
can be involved in the erection of a wharf.
Consider the following possibilities:
1. If a contractor who has a contract to
erect a fixed wharf on site buys materials
manufactured or produced by somebody else
and incorporates them into the realty piece by
piece as he builds the structure on it, he
probably incurs no sales tax liability.
2. If a contractor who has a contract to
erect a fixed wharf on site manufactures or
produces materials or parts and incorporates
them into the realty as he builds the structure,
he will be deemed by section 31(1)(d) to have
sold such materials or parts and will have to
pay sales tax on them. See The King v.
Dominion Bridge Co. Ltd. [1940] S.C.R. 487.
3. If a contractor who has a contract for a
floating wharf such as the appellant contracts
for manufactures or produces parts and puts
them together and fixes them at the site as
the appellant does, it may well be a question
of fact and law, in each particular case, as to
whether
(a) the wharf never becomes part of the
realty so that the contractor is a manufac
turer of the parts and sells them under a
contract that calls for installation, or
(b) the wharf, though after installation it is
floating in a fixed spot, is nevertheless a
part of the realty so that liability to sales
tax is dependent upon section 31(1)(d).
The -answer to the latter question could, as it
seems to me, vary from particular case to par
ticular case, and I am inclined to think that the
question of whether the wharf is a "structure"
might vary likewise. My view on that is that,
just as an elevator or lift is ordinarily part of the
realty, so a floating wharf or other similar
installation that is so fixed that it is intended to
stay on the same site for the duration of its
economic "life", may be a part of the realty
and, if it is a part of the realty, then it seems to
me that it may be a "structure" within the
ordinary meaning of that word. 2 What I have
just said is, of course, obiter dicta and so is the
further opinion that I am prepared to express,
having regard to the unfortunate history of this
affair, that a section of a concrete dock may
well be "similar", as a section of a structure, to
a section made of some other material. This
again, however, must be a question that has to
be decided on the facts of a particular case and
cannot be decided by a "class" opinion such as
is contemplated by section 57.
Having expressed those tentative views, I
must refrain from expressing any opinion on the
correctness of the opinion contained in the
Tariff Board's declaration. Not only because, as
I have indicated already, it is not a matter that
can be determined apart from the facts of a
particular case, but because, if the Tariff Board
had no jurisdiction to make the declaration, this
Court is precluded "from entering upon a con
sideration of the merits of the issue", 3 and, in
my view, the Tariff Board had no jurisdiction to
make the declaration applied for. The dividing
line between the cases in which section 57
confers jurisdiction with reference to liability
(as opposed to quantum) and the cases in which
section 57 does not confer such jurisdiction is
made clear in the Goodyear Tire case per Fau-
teux J. (as he then was) delivering the judgment
of the majority of the Supreme Court of Canada
at page 615, where he said:
Whether or not a particular article is one in respect of which
a tax is imposed raises a question of general concern
throughout Canada and is a matter justifying notice being
given to third parties so that they may be heard if they so
elect. But whether a particular person is the person liable
for the payment of a tax imposed in respect of an article is
an issue between that person and the Crown.
The Tariff Board dismissed the application
under section 57 because it concluded that the
application should be dismissed on the merits.
In my view, the application was properly dis
missed but for the reason that the Tariff Board
had no jurisdiction to make the declaration
sought.
In my view, therefore, the appeal should be
dismissed because the Tariff Board's decision
was the correct decision although for the wrong
reasons.
* * *
THURLOW J. (orally)—Section 57(1) of the
Excise Tax Act, R.S.C. 1952, c. 100 has under
gone some amendment since 1956 when the
Goodyear Tire case (Goodyear Tire & Rubber
Co. of Canada Ltd. v. T. Eaton Co. Ltd. [1956]
S.C.R. 610) was decided but its general purview
and purpose have not changed and in respect of
articles of the kind here in question the class of
cases that may be decided pursuant to its provi
sions is no broader now than it was at that time.
At the time of the appellant's application to the
Tariff Board the subsection (S.C. 1967-68, c.
29, s. 8) read:
57. (1) Where any difference arises or where any doubt
exists as to whether any or what rate of tax is payable on
any article under this Act, the Tariff Board constituted by
the Tariff Board Act may declare what rate of tax is
payable thereon or that the article is exempt from tax under
this Act.
Goods of the kind produced by the appellant
are not exempt per se from the sales tax, nor is
the question raised in this appeal one as to the
rate applicable in respect of such goods. Rather
the question appears to me to be one as to the
liability of the appellant for tax.
By section 30 of the Act sales tax is imposed
on the sale price of all goods produced or
manufactured in Canada (which would include
goods of the kind here in question) payable,
save in certain exceptional situations, by the
producer or manufacturer thereof at defined
times.
What section 29, on which the appellant
relies, appears to me to achieve is to render the
manufacturer or producer not liable for the tax
when a particular situation therein defined,
exists. It accomplishes this by deeming the
manufacturer or producer not to be the manu
facturer or producer. But while the result may
be that no one is liable for the tax and, that in
that sense the goods as well are exempted, what
has been done is simply to exempt from liability
in a specified situation a particular person who
otherwise would be liable.
The scheme is thus not to exempt the goods
but to exempt the person and the question
whether the situation exists in which a particu
lar person is exempted is no more a question of
the rate applicable in respect of such goods or
whether such goods are exempt than was the
question raised in the Goodyear Tire case. In
my opinion the decision in that case governs the
present situation and leads to the conclusion
that the Tariff Board did not have jurisdiction
to entertain the application which resulted in
the decision from which the present appeal is
brought.
I would therefore dismiss the appeal. In
reaching this conclusion, however, I do not
wish to be taken as approving the view taken by
the Tariff Board that the installations made by
the appellant which are in question in these
proceedings are not "structures" within the
meaning of section 29 of the Excise Tax Act.
As I see it that question is not before us, and I
am content to leave it without an expression of
opinion.
* * *
SWEET D.J. concurred.
JACKETT C.J.:
1 As this declaration was made before the Revised Stat
utes of 1970 came into operation, I shall refer to the statute
as it was prior to the Revision.
2 In expressing this opinion, I am not pretending to
express any opinion as to the tests to be applied. What I am
saying is that I do not accept the position, as I understand
the correspondence, upon which the Department of Nation
al Revenue based its ruling.
3 Compare the Goodyear Tire case, supra, per Fauteux J.
(as he then was) delivering the judgment of the majority of
the Supreme Court of Canada at page 611.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.