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T-3826-74
The Queen (Plaintiff)
v.
Stuart House Canada Limited (Defendant)
Trial Division, Addy J.—Toronto, January 12; Ottawa, January 19, 1976.
Customs and excise—Defendant cutting aluminum foil into shorter lengths, re-rolling and packaging—Whether "produc- tion" of foil—Excise Tax Act, R.S.C. 1970, c. E-13.
Defendant receives rolls of aluminum foil which it cuts into shorter lengths and re-rolls on cardboard tubes. The boxes in which the rolls are packed are received by defendant already printed, precreased, and equipped with a cutting edge. Defend ant forms the boxes, glues the flaps, and seals them. A roll of foil is inserted into each, and the product is marketed. The issue is whether these operations constitute production.
Held, the action is dismissed. The expression which has been applied in similar cases is "new forms, qualities and properties or combinations." Defendant has not altered the form, qualities or properties of the foil. These words should be considered conjunctively; they are applicable in all of the jurisprudence where an activity has been held to constitute production or manufacturing within the meaning of the Excise Tax Act. The only two words in the expression which may be considered as alternatives are "properties" and "combinations". Thus, there must be some change in the form, qualities and properties or in the form, qualities and combinations to constitute either manu facture or production in their ordinary meaning. It would be violating the use of the word "produces" in its usual sense to hold that defendant is producing foil because it is packing it in smaller, handier packages thus rendering it more marketable. Nor is the minor operation of repacking large, uncut rolls with a rod inserted, for sale to restaurants, production, since less work is involved and the foil is not cut.
The King v. Vandeweghe Limited [1934] S.C.R. 244; The Queen v. York Marble, Tile and Terrazzo Limited [1968] S.C.R. 140; Quebec Hydro-Electric Commission v. Dep. M.N.R. [1970] S.C.R. 30; The Queen v. E. J. Piggott Enterprises Ltd. 73 DTC 5013; The Queen v. Canadian Pacific Railway Company [1971] S.C.R. 821 and Con sumers' Gas Company v. Dep. M.N.R. (1975) 6 N.R. 602, applied. Gruen Watch Company of Canada Limited v. Attorney-General of Canada [1950] O.R. 429, agreed with.
ACTION. COUNSEL:
G. R. Garton for plaintiff. C. Campbell for defendant.
SOLICITORS:
Deputy Attorney General of Canada for plaintiff.
McCarthy & McCarthy, Toronto, for defendant.
The following are the reasons for judgment rendered in English by
ADDY J.: The issue in this case is the liability of the defendant for payment of excise tax as a manufacturer or a producer of aluminum foil. There is no question as to the amount due if liability is found to exist, the parties being agreed as to the total amount of tax which, together with penalty to the 31st of January 1976, would amount to $19,974.26 representing tax in the amount of $17,263.05 and penalties in the amount of $2,711.21.
No oral evidence was adduced at the trial, the parties having filed an agreed statement of facts which is annexed hereto*. There is therefore no requirement for any finding of fact.
On examining the agreed statement of facts, it is evident that the only thing which the defendant does to the aluminum foil itself is to cut it into shorter lengths and re-roll it on cardboard tubes. The boxes, in which these tubes with the foil on them are packed, are received by the defendant already printed, precreased for folding and equipped with a cutting edge. The defendant bends the flattened boxes along the creases, forms them into boxes and puts glue on the flaps at each end to seal them. A roll of foil is then inserted into each box and the completed product is marketed.
It is important to note here that the aluminum foil is delivered to the defendant in rolls of two widths, that is, twelve inches and eighteen inches, and that the width of the foil is not altered in any way, but merely its length.
It has been settled that the words "produced" and "manufactured" are not words of any precise meaning and that an article may be considered as having been produced without having been manu factured. Refer The King v. Vandeweghe Limited' and, more particularly, Gruen Watch Company of
*[The agreed statement of facts is not reproduced. Ed.] ' [1934] S.C.R. 244 at 248.
Canada Limited v. Attorney-General of Canada 2 where McRuer C.J.H.C. stated at page 442:
I cannot find that the simple operation of putting a watch movement into a watch case is "manufacturing" a watch in the "ordinary, popular and natural sense" of the word, but I feel clear that the plaintiffs "produced" watches "adapted to household or personal use". It may well be that, as counsel for the plaintiffs argued, the movement as imported in the tin or aluminum case will keep time and could be used as a watch. This would be, however, with great inconvenience. It is not a watch "adapted to household or personal use" as the term is used in its ordinary and popular sense, and the movement in the aluminum case would be quite unsaleable as such.
This statement was approved by the Supreme Court of Canada in The Queen v. York Marble, Tile and Terrazzo Limited' where Spence J., in delivering the judgment of the Court, stated at
page 147 of the report:
... I adopt the course of McRuer C.J.H.C., in Gruen Watch Co. v. Attorney-General of Canada in holding that an article may be "produced" although it is not "manufactured". In that case, although he was unable to come to the conclusion that the mere insertion of the movement into the watch case was the manufacture of the watch, he found no difficulty in determin ing that such a process was the production of a watch.
There can be no question of the defendant in the case at bar having manufactured the foil but there is an issue as between the parties whether or not it might be producing foil.
The simple question therefore is whether or not the operations performed by the defendant consti tute the production of foil. Several cases were cited by counsel for the plaintiff. In the Gruen Watch Co. case (supra) watchworks were imported and were inserted into watchcases by the plaintiff and it was held that this constituted the production of watches. It is to be noted however that what the plaintiff received was not watches but watchworks and watchcases and what resulted from its inter vention were different articles, that is, completed watches. McRuer C.J.H.C. at page 442 of the above-mentioned report stated:
I therefore find that for the purposes of The Excise Tax Act the watch movements as imported were not watches.
z [1950] O.R.429.
3 [1968] S.C.R. 140.
This, of course, cannot be said of the aluminum foil: what was received was foil and what was sold was the same foil.
Similarly, in the case of The King v. Van- deweghe Limited (supra) at 248, what was received were raw furs or skins and what was produced were dressed and dyed furs. In the York Marble case (supra) the following operations were performed on marble slabs by the taxpayer: book matching, grouting, rodding, gluing, grinding, rough polishing, fine polishing, cutting and edge finishing. These operations are described in full on pages 143 and 144 of the above-mentioned report of the case. There is not the slightest doubt that, on the facts, the taxpayer was, at the very least, producing something quite different from the raw marble.
In the case of Quebec Hydro-Electric Commis sion v. Dep. M.N.R. 4 electricity was transformed from one type of alternating current to what was described in the findings of fact by the Tariff Board at pages 33 and 34 as follows:
By electromagnetic induction, initiated by the electrical energy of the primary alternating current, a new and separate alternat ing current is produced in the secondary winding of a trans former. The current in the secondary circuit usually differs, not in the number of watts or of cyles, but in the number of volts and of amperes.
This finding of fact was evidently relied on by the Supreme Court of Canada in allowing the appeal from the Exchequer Court and reinstating the decision of the Tariff Board. Abbott J., in deliver ing the opinion of the majority of the Court (Pigeon J. having dissented), stated at page 34:
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. [The underlining is mine.]
The word "form" here, in my view, goes to the very nature of the product which before being "transformed" could not be used by the ordinary consumer. This fundamental distinction becomes more evident when one considers the very recent and as yet unreported decision of the Supreme
[1970] S.C.R. 30.
Court of Canada, in the case of The Consumers' Gas Company v. Dep. M.N.R. 5 , where that Court, in agreeing with the finding of the Tariff Board and of the Federal Court of Appeal, felt that the Hydro-Quebec case (supra) was not applicable. The grounds for the distinction were that there was merely a change of pressure in the gas-pipe and all the appellant company did was to "... merely cause the gas to pass, go, be conveyed or conducted from the higher pressure pipes to lower pressure pipes, instead of producing a new current at a different voltage which was the function of the transformers as it was seen in the Hydro-Quebec case." (Per Pigeon J. at page 2 of the reasons.) In other words, there was no difference in the nature of the gas itself or in its form, properties and qualities following the operation performed by the appellant.
Another case in point is the case of The Queen v. E. J. Piggott Enterprises Ltd.' This case dealt with the production of audio-tape cartridges. The tape was purchased separately as well as the vari ous components of the container cartridges. These components consisted of a top and a bottom of the container, a spool, a pressure pad and a spring. The parts were then fixed together with a screw. After assembly of the cartridge parts, the tape was wound on the cartridge spool and the whole was sold as a Ferropak cartridge. The defendant engaged in another operation which consisted of registering music from a master tape onto blank tapes for background music purposes, in other words, reproducing copies from the master tape. In the first operation, the tape could not be used unless it was in a cartridge and in the second, it is evident that a tape with music on it is quite different from a blank tape. In both of these operations something new was produced, possess ing new form, qualities and properties.
In the same manner, in the case of The Queen v. Canadian Pacific Railway Company', ties were
5 (1975) 6 N.R. 602.
6 73 DTC 5013.
7 [1971] S.C.R. 821.
creosoted by the respondent to increase their life span by approximately twenty-five years. Ties were also bored in order to receive spikes. The Court held that the ties were given new form, qualities and properties and were therefore prod ucts which were manufactured or, if not manufac tured, then produced in the ordinary sense in which that word is used.
The expression "new form, qualities and proper ties or combinations" has been used not only in this case but in other cases such as the case of The Queen v. Piggott Enterprises Ltd. (supra) at page 5019 and in the York Marble Tile case (supra) at page 145.
I do not agree with counsel for the plaintiff that all these words are to be used disjunctively nor can I consider that the cutting of aluminum foil into shorter lengths can be considered as giving new form to the foil. There certainly has been no change in the quality or in the properties of the foil. Because of my finding that the plaintiff has neither changed the form, the qualities nor the properties of the material, it is perhaps not neces sary for me to determine whether the words in that expression are to be considered disjunctively or conjunctively. I wish, nevertheless, to state that, in my view, they should be considered conjunctively: they are all applicable in all of the cases which were referred to me and which I was able to discover, where it has been held that the taxpayer was either manufacturing or producing something within the meaning of the Excise Tax Acts. The only two words in that expression, which may be considered as alternatives, are the words "proper- ties" and "combinations," thus, there must be some change in the form, in the qualities and in the properties of the material or in the form, in the qualities and in the combinations of the materials used in order to constitute either manufacture or production in the ordinary meaning of these words. I am not referring of course to cases where the Act might specifically define a certain operation as being taxable.
It is trite to say that a taxing statute should be strictly interpreted against the taxing authority and, although the word "produced" must be con
8 R.S.C. 1970, c. E-13.
sidered as having been used in its ordinary mean ing, it would be, I feel, grossly violating the use of the word when employed in its usual sense to hold that in the case at bar, the defendant is producing aluminum foil, merely because he is packaging it in smaller and handier packages which are capable of cutting it without the use of scissors, and has thus made the product more marketable or more saleable to the ordinary consumer than if it were sold in the original 450-foot or 900-foot rolls weighing approximately 100 pounds.
As to the other and comparatively minor part (about 5 per cent) of the defendant's operation mentioned in the agreed statement of facts, where in large uncut rolls of foil are repacked in single boxes with a rod inserted in the roll, for sale to the restaurant trade, since even less work was per formed and the foil was not cut, the operation can certainly not, in my view, be classified as the production of aluminum foil.
For the above reasons, the action is dismissed with costs.
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