Date: 20000519
Docket: T-1270-92
IN RE the Excise Tax Act
Between:
HER MAJESTY THE QUEEN,
acting for the Minister of National Revenue,
Plaintiff,
- and -
LES INDUSTRIES VOGUE LTÉE, legally
incorporated, having its head office at
9031 rue Salley, Lasalle, Quebec H8R 2C8;
Defendant.
REASONS FOR JUDGMENT
PINARD J.:
[1] The action at bar is an appeal de novo filed pursuant to s. 81.24 of the Excise Tax Act, R.S.C. 1985, c. E-15, as amended by R.S.C. 1985 (2d Supp.), c. 7, s. 38 (hereinafter "the Act"), from a decision of the Canadian International Trade Tribunal (hereinafter "the Tribunal") on February 7, 1992.
[2] The defendant works primarily in the field of manufacturing above-ground swimming pools, especially the manufacture of various metal components and sheets of vinyl. In January 1979 the Department of National Revenue, Customs and Excise ("Revenue Canada"), informed the defendant that the vinyl sheets made in the plant were subject to a sales tax on their selling price.
[3] On July 13, 1984 the defendant filed an initial claim for reimbursement of $20,859.46 sales tax allegedly overpaid in respect of vinyl sheets for above-ground pools, sold between June 1980 and August 1983. On June 9, 1986 it filed a second claim for reimbursement of taxes allegedly overpaid for similar earnings in the amount of $352,038 for the period from 1982 to May 31, 1986. Two notices of determination were issued by Revenue Canada on March 20, 1987, disallowing these claims for reimbursement.
[4] On June 16, 1987 the defendant filed two notices of objection to these notices of determination. On January 15, 1988 Revenue Canada dismissed these notices of objection on the ground that vinyl sheets for above-ground pools did not meet the requirements to be classified under s. 26(4)(b) of the Act, or after July 1, 1985 under s. 32 of the Act.
[5] The defendant appealed the latter decision by Revenue Canada to the Tribunal, which allowed the appeal by the decision of February 7, 1992 from which the action at bar results.
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[6] The relevant legislation reads as follows:
| (a) the Excise Tax Act, R.S.C. 1985, c. E-15, ss. 81.24, 81.28 and 81.31, as amended by R.S.C. 1985 (2d Supp.), c. 7, s. 38: |
| 81.24 Any party to an appeal to the Tribunal under section 81.19, 81.21, 81.22 or 81.23 may, within one hundred and twenty days after the day on which the decision of the Tribunal is sent to that party, appeal the decision to the Federal Court - Trial Division. 81.28 (1) An appeal to the Federal Court - Trial Division under section 81.2, 81.22 or 81.24 shall be instituted,
. . . . . (3) An appeal to the Federal Court - Trial Division under this Part shall be deemed to be an action in the Federal Court to which the Federal Court Act and the rules made pursuant thereto applicable to an ordinary action apply, except as varied by special rules made in respect of such appeals and except that . . . . . . . . 81.31 (1) After hearing an appeal under this Part, the Federal Court - Trial Division may dispose of the appeal by making such order, judgment, finding or declaration as the nature of the matter may require including, without limiting the generality of the foregoing, an order
(2) Subject to subsection (3), on the disposition of an appeal, the Federal Court - Trial Division may order payment or repayment of any tax, penalty, interest, sum or costs. (3) Where the amount in dispute on an appeal by the Minister, other than by way of counter-claim or cross-demand, from a decision of the Tribunal does not exceed ten thousand dollars, the Minister, on disposition of the appeal, shall pay all reasonable and proper costs of the other party to the appeal in connection therewith. (4) Where the Federal Court - Trial Division disposes of an appeal in respect of an assessment or where such an appeal to the Court is discontinued or dismissed without a hearing, the Court may, on application by the Minister and whether or not the Court awards costs, order the person instituting the appeal to pay to the Receiver General an amount not exceeding ten per cent of the amount that was in controversy, if the Court determines that there were no reasonable grounds for the appeal and that one of the main purposes for instituting or maintaining the appeal was to defer the payment of any tax, penalty, interest or other sum payable under this Act. |
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| 81.24 Toute partie à un appel entendu par le Tribunal en vertu de l'article 81.19, 81.21, 81.22 ou 81.23 peut, dans un délai de cent vingt jours suivant la date d'envoi de la décision du Tribunal, en appeler de cette décision à la Section de première instance de la Cour fédérale. 81.28 (1) Un appel à la Section de première instance de la Cour fédérale en vertu des articles 81.2, 81.22 ou 81.24 doit être interjeté :
. . . . . (3) Un appel à la Section de première instance de la Cour fédérale en vertu de la présente partie est réputé être une action devant la Cour fédérale à laquelle la Loi sur la Cour fédérale et les règles établies conformément à cette loi s'appliquent comme pour une action ordinaire, sauf dans la mesure où l'appel est modifié par des règles spéciales établies à l'égard de tels appels, sauf que . . . . . . . . 81.31 (1) Après avoir entendu un appel prévu à la présente partie, la Section de première instance de la Cour fédérale peut statuer en rendant une ordonnance, un jugement, une décision ou une déclaration, selon la nature de l'affaire, y compris, sans préjudice de la portée générale de ce qui précède, une ordonnance :
(2) Sous réserve du paragraphe (3), en statuant sur un appel, la Section de première instance de la Cour fédérale peut ordonner le paiement ou le remboursement de taxes, pénalités, intérêts, sommes ou frais. (3) Lorsque le montant en litige dans un appel d'une décision du Tribunal interjeté par le ministre, autrement que par voie de demande reconventionnelle, ne dépasse pas dix mille dollars, le ministre, une fois qu'il a été statué sur l'appel, doit payer à l'autre partie à l'appel tous les frais opportuns et raisonnables qui s'y rapportent. (4) Lorsque la Section de première instance de la Cour fédérale statue sur un appel à l'égard d'une cotisation ou lorsqu'un tel appel à ce tribunal est abandonné ou rejeté sans audition, celui-ci peut, à la demande du ministre, qu'il alloue ou non des dépens, ordonner à la personne qui a interjeté l'appel de verser au receveur général un montant ne dépassant pas dix pour cent du montant en litige, s'il détermine qu'il n'existait aucun motif raisonnable pour interjeter l'appel et que l'une des principales raisons de l'introduction ou du maintien de l'appel consistait à retarder le paiement de taxes, pénalités, intérêts ou autres sommes payables en application de la présente loi. |
| (b) The Excise Tax Act, R.S.C. 1970, c. E-13, s. 26(4)(a) and (b). Section 26(4) was in effect until July 1, 1985, the date on which it was repealed by s. 15(3) of the Act to amend the Excise Tax Act and the Excise Act and to amend other Acts in consequence thereof , S.C. 1986, c. 9: |
| 26. (4) Where a person
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 produced by him, the manufacturer or producer thereof. |
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| 26. (4) Lorsqu'une personne
elle est réputée, aux fins de la présente Partie, relativement à tous semblables bâtiments, structures, éléments, parpaings ou agglomérés ou acier de construction qu'elle a ainsi fabriqués ou produits, ne pas en être le fabricant ou le producteur. |
| (c) As of July 1, 1985 the relevant sections are ss. 31 and 32 of Part I of Schedule V of the Act (S.C. 1986, c. 9, s. 52): |
| 31. Buildings or other structures manufactured or produced by a person 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. 32. Structural building sections, for incorporation into buildings or other structures manufactured or produced by a person otherwise than at the site of construction or erection of the building or other structure in competition with persons who construct or erect buildings or other structures that incorporate similar sections not so manufactured or produced. |
31. Les bâtiments et autres structures fabriqués ou produits par une personne, ailleurs qu'à pied d'oeuvre, en concurrence avec des personnes qui construisent ou érigent des bâtiments ou structures analogues non ainsi fabriqués ou produits. 32. Les éléments porteurs destinés à être incorporés à des bâtiments ou autres structures, fabriqués ou produits par une personne, ailleurs qu'à pied d'oeuvre, en concurrence avec des personnes qui construisent ou érigent des bâtiments ou d'autres structures qui incorporent des éléments analogues non ainsi fabriqués ou produits. |
* * * * * * * * * * * *
[7] The Tribunal concluded that vinyl sheets are structural building sections (and are thus covered by s. 26(4), and as of July 1, 1985 by s. 32, of the Act) because together with the metal components they support the pressure created by the contents of the above-ground pools. It was further held that the competition requirement imposed by these provisions in the Act was met because of the competition existing in the market between above-ground pools and poured concrete pools, and this was not disputed in the action at bar.
[8] Before the Tribunal, the plaintiff called no witnesses and filed no expert reports. The evidence presented by the defendant at the hearing rested on the testimony of Christian Monbourquette, an engineer by training who is director of production for the defendant, Zoltan Ganyu, an engineer developing products for the company Canadian General Tower, Richard Bonny, a dealer in swimming pools, Jules Houde, an engineer and teacher at the École polytechnique, University of Montréal campus, and finally, David Pounder, also an engineer.
[9] At the hearing in this Court the parties stated that they were agreed on all questions relating to the quantum of reimbursement for the sales taxes at issue, so that the specific argument of prescription raised by the plaintiff in its action might be disregarded.
[10] The case at bar thus involves only the following questions: were the vinyl sheets for above-ground pools manufactured by the defendant "structural building sections" within the meaning of s. 26(4)(b) of the Act, and as of July 1, 1985 s. 32, of the Act? If not, do they meet the requirements of s. 26(4)(a) of the Act, and as of July 1, 1985 of s. 31, of the Act?
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[11] In addition to the evidence submitted to the Tribunal, which except for photographs numbered A-6 and A-7, was filed by consent, I have also had the benefit inter alia of expert reports written by two expert witnesses for the plaintiff, the engineers David C. K. Tay and Andres Tork, expert reports written by the engineer J. David Pounder for the defendant, and the testimony of two of these last three expert witnesses, namely the engineers Tay and Pounder.
[12] As I indicated at the hearing, the relevant qualifications and credibility of the parties' expert witnesses is not at issue. I need only say with respect to those who testified before me that in the case of the engineer Tay, first of all, his academic and professional record make him an expert witness who is eminently qualified for the purposes of this case, although he has not had occasion to participate in the design of an above-ground swimming pool himself; in the case of the engineer Pounder, the fact that he only has a B.A. in engineering does not detract from the importance of his opinion in view of his special experience in designing above-ground pools for a business similar to that of the defendant. The case at bar may thus be decided without any adverse reflexions on the relevant qualifications or credibility of any expert witness whatever.
[13] In the case at bar the burden of showing that the defendant's vinyl sheets are not structural building sections within the meaning of ss. 26(4)(b) and 32 of the Act (or that they do not meet the requirements of ss. 26(4)(a) and 31 of the Act) rests on the plaintiff, who has appealed the decision of a tribunal which effectively quashed or invalidated the notices of determination issued by Revenue Canada. In my opinion, she has been successful.
[14] Christian Monbourquette, director of production for the defendant, described the metal components and vinyl sheet in the above-ground pool in question. Referring to a standard model of such a pool, he first referred to the group of metal components:
[TRANSLATION]
| Q. . . . You have here, first, this component here: what is that? |
| A. They are posts, what we call posts, vertical sections. |
| Q. At what intervals do these posts usually occur? |
| A. In a round pool, they generally occur every four and a half feet. |
| Q. In your production, what are the principal sizes or principal diameters for round pools? |
| A. It varies from 15 to 27 feet in diameter. |
| Q. And your principal production is . . . |
| A. It is 24-foot, which is 40 per cent of the volume. |
| Q. Right. And then, this piece here? |
| A. It is the horizontal section: it is what makes the edge of the pool, what makes it possible to attach the posts at the top by grooved plates that can be seen here on the side, which are screwed onto each end of the pole, and the horizontal section which is seen here is also screwed onto the grooved plate at the top. |
| Q. At the foot, the support is from these plates here? |
| A. These plates, which are called grooved plates. |
| Q. And the small rail . . . |
| A. And the groove -- the rail as such -- makes it possible to guide the wall above and below which is attached to the grooved plates below. |
| Q. What you call the wall, perhaps you could show me by turning it . . . |
| A. The wall, that is the sheet metal you see here, both sides: it is the steel sheet which is corrugated; that is what is regarded as the pool's steel wall. |
| Q. It is a sheet of metal which is generally of what size? |
| A. Forty-eight inches high, which is the total height of the pool. |
| Q. Are we generally talking about pools four feet high? |
| A. Yes, with steel of various thicknesses, depending on supply and demand. |
| Q. Is there a general thickness that can be given? |
| A. Yes, sixteen thousandths of steel. |
| Q. Sixteen thousandths: when you say "sixteen thousandths", you mean sixteen thousandths of an inch? |
| A. Yes. |
[15] Also in his testimony before the Tribunal Mr. Monbourquette, using an example of a standard vinyl sheet, the thickness of which is generally some eighteen thousandths and a half of an inch, described the two operations involving the latter:
[TRANSLATION]
| There are two operations in a pool sheet: there is the base of the sheet and the wall. What we call the wall is the vertical portion and the base is the horizontal portion. |
| To manufacture the base we take 72-inch material which is laid out on a cutting table and cut according to a given pattern, depending on the diameter of the pool, in much the same way as people who cut clothing do with linen -- it is somewhat the same idea; we lay out several thicknesses of vinyl, trace the pattern and, with an electric knife, cut the components of the sheet, which will form the base of the sheet. For example, if the pool is 24 feet in diameter and the material is 6 feet, it takes four strips to make the base, including two symmetrical ones twice -- I am not sure if you understand me -- two half moons which will be the two ends and the other two pieces which will be the centre, with rounded ends. |
| These pieces of vinyl will then be assembled by special vinyl welders to make the base of the sheet. |
. . . . .
| Q. Are there other products besides vinyl that go into it, or simply the two vinyl sheets? |
| A. Only the two sheets of vinyl which are welded together, and then the wall of the sheet, as we call it, is assembled around the base. That is where we use 52-inch material. |
. . . . .
| Q. The upper portion -- to go back to that -- here, the sheet is held how in this process, what is the main process? |
| A. There are three different ways. As I was saying, the most commonly used method is overlap: the sheet will then overlap the wall and, with a small plastic extrusion, it is clipped there. There is also this system, which is called a bead, which is a piece of extruded plastic which is welded on the sheet, which hangs directly on the wall; or there is another system with another extrusion which the sheet introduces with another of piece of bead welded on. |
[16] At the hearing in this Court the engineer Pounder admitted that the sheet was assembled so that, under pressure from water in the pool, it could ordinarily be supported at all points on a surface consisting of harder material, namely the floor (the ground itself or, sometimes, a flooring of wood or concrete), the cove (in French "la doucine", a substance such as compressed sand used as a cushion to support the junction of the flooring sheet and of the wall of the pool) and the metal wall. Although the sheet is thus wedged between, on the one hand, the water and, on the other, the floor, the cove and the wall described above, Mr. Pounder nonetheless maintained that from the pressure of the water the sheet was stretched from top to bottom along the wall of the pool, and so stretched it redistributed the energy generated by the usual weight, movements and activities of bathers. The expert witness for the defendant further argued that the sheet sometimes offsets imperfections in the ground, and combined with the water is necessary to allow the pool to stand up to bad weather, and concluded that the sheet was a component part of the load-bearing system or body of the pool.
[17] The engineers for the plaintiff, for their part, did not deny that the sheet should ordinarily stand up to certain forces and support a certain weight. However, because of the nature of the other materials used in constructing an above-ground pool and the way in which the latter is ordinarily assembled and installed, they considered that the contribution of the sheet to the load-bearing system or body of the pool generally used is insignificant. They therefore concluded that the sheet is not really a "structural building section", but simply has the function still an important one, of ensuring that the pool does not leak. In view of the applicable law, they are right.
[18] In The Queen v. Monarch Steelcraft Limited, [1977] 2 F.C. 560, Addy J. of this Court clearly explained at 561 and 562 the test applicable for determining what constitutes a "structural building section" within the meaning of s. 26(4)(b) of the Act:
| In the context of paragraph (b) above it is clear that the word "structural" in the expression "structural building sections" does not bear its usual general meaning of "pertaining to a structure" as the latter word is used in the same paragraph in the expression "any . . . building or structure": it does not merely qualify a component as forming part of a structure or building but, much more restrictively, as being one of the components which inter-connected, ensure that a building has a certain weight or load-bearing capacity or which, in other words, contribute substantially to its strength and solidity and permit it to resist the various forces created by man and nature to which it might be subjected . . . |
| To constitute a section manufactured for use in a building or other structure a [sic] "structural building section", not only must the material composing the section possess a load-bearing capacity, but the section itself must be designed and manufactured with the principal object of its being used ultimately as an integral or constitutional element of the load-bearing system or body of the building, erection or structure. To be load-bearing in this context it must necessarily be substantially load-bearing to the extent that it is commonly used for that purpose because all matter, even gaseous matter, possesses a certain strength or load-bearing capacity as it can withstand certain forces exerted on it. |
| (My emphasis.) |
[19] In Harris Steel Group Inc. v. The Minister of National Revenue, 85 D.T.C. 5140, the Court of Appeal endorsed the reasoning of Addy J. in Monarch, supra, MacGuigan J.A. noting at 5142:
| . . . The point he makes is that the article in question must have as its principal object the characteristic of load-bearing, not that it must do so by itself. It is because the principal purpose of an ordinary wooden door frame is not to bear loads at all that it does not qualify under paragraph 26(4)(b), and he reaches the same conclusion with respect to the metal door frames in litigation in that case . . . |
[20] In the case at bar the evidence showed clearly that the sheet was not designed and manufactured "with the principal object" (in French "dans le but ultime") of forming an integral or constitutional part of the load-bearing system or body of the above-ground pool, but rather "with the principal object" of ensuring that the pool was watertight. It is well settled that the strength and rigidity or durability of the wall of a pool and the ground on which it is installed are much greater than that of the thin vinyl sheet. Bearing in mind also the way in which the pool is assembled and installed, the demonstration by the defendant's expert witnesses that the sheet can support a weight, withstand pressure or even redistribute energy certainly does not thereby establish that the sheet is designed and manufactured with the principal object of forming an integral or constitutional part of the load-bearing system or body of the above-ground pool. This was indeed admitted by Christian Monbourquette himself, the defendant company's director of production, when asked to describe the various functions of the sheet in the above-ground pool:
[TRANSLATION]
| A. Of course, its primary function is, as you said, preventing leaks . . . |
That being so, I entirely concur in the following conclusion stated by the engineer Andres Tork, now deceased, in his report entered in evidence by consent of the parties, a report entirely endorsed by the engineer David C. K. Tay:
| The floor, the walls and the cove resist the forces due to the intended use of the pool. They provide the required strength and stiffness for the pool. They also provide a continuous supporting surface for the pool liner. |
| The purpose of the liner is to provide a waterproof membrane in order to make the pool water tight. The liner is made of relatively weak and soft unreinforced sheet vinyl, and is in no way relied upon for strength under intended service conditions. |
| Thus the structural load bearing components are the earthen floor, the metal walls and the cove, while the liner provides the impermeability. All these components must be present for the pool to function as intended; if one is absent, the pool will not work properly. |
| The designers of this type of pool have carefully provided full and continuous support to the liner. It is quite clear that the intent of the design is that the floor, walls and the cove meet the strength or "load bearing" function and the "impermeability" function is met by the liner. A fully supported liner has no structural function. |
| To summarize, it is our opinion that the pool liner clearly serves no structural or "load bearing" function under the intended service conditions. Its sole intended purpose is to make the pool watertight. |
[21] It accordingly appears from the evidence that the vinyl sheet in question does not meet the test as defined above by the courts to be regarded as a "structural building section" within the meaning of s. 26(4)(b), and as of July 1, 1985 s. 32, of the Act.
[22] As to the question of whether the vinyl sheet meets the requirements of s. 26(4)(a), and as of July 1, 1985 s. 31, of the Act, I indicated at the trial that this was not the case.
[23] In M.N.R. et al. v. Plastibeton Inc., 86 D.T.C. 6400, where the same question was raised, MacGuigan J.A. set forth the following tests for determining the existence of a structure within the meaning of s. 26(4)(a): (1) it must be built or constructed; (2) it must rest on or in the ground; (3) it must not be a part of another structure. In that context he held that the item in question, the median of a highway, was part of the highway. Accordingly, it was not an "other structure" in relation to the highway for purposes of s. 26(4)(a). In the case at bar, it is clear that the vinyl sheet is part of another structure, the above-ground pool.
[24] For all these reasons, the plaintiff's action is allowed, the decision of the Canadian International Trade Tribunal on February 7, 1992 in case AP-2983 is reversed and the two notices of determination of the Minister of National Revenue dated January 15, 1988, disallowing the defendant's claims for reimbursement, are affirmed: the whole with costs, including the costs of the expert witness David C. K. Tay, against the defendant.
| YVON PINARD JUDGE |
OTTAWA, ONTARIO
May 19, 2000
Certified true translation
Martine Brunet, LL. B.
Date: 20000519
Docket: T-1270-92
Ottawa, Ontario, May 19, 2000
Before: Pinard J.
IN RE the Excise Tax Act
Between:
HER MAJESTY THE QUEEN,
acting for the Minister of National Revenue,
Plaintiff,
- and -
LES INDUSTRIES VOGUE LTÉE, legally
incorporated, having its head office at
9031 rue Salley, Lasalle, Quebec H8R 2C8;
Defendant.
JUDGMENT
The plaintiff's action is allowed. The decision of the Canadian International Trade Tribunal on February 7, 1992 in case AP-2983 is reversed and the two notices of decision by the Minister of National Revenue dated January 15, 1988, disallowing the defendant's claims for reimbursement, are affirmed. Costs, including the expenses of the expert witness David C. K. Tay, are awarded to the plaintiff and against the defendant.
YVON PINARD
JUDGE
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-1270-92 |
STYLE OF CAUSE: Her Majesty The Queen v. Les Industries Vogue Ltée.
PLACE OF HEARING: Montréal, Quebec
DATES OF HEARING: April 25, 2000
April 26, 2000
REASONS FOR JUDGMENT BY: PINARD J.
DATED: May 19, 2000
APPEARANCES:
Chantal Sauriol FOR THE PLAINTIFF
Louis Sébastien
Christopher Mostovac FOR THE DEFENDANT
Joe Starnino
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE PLAINTIFF
Deputy Attorney General of Canada
Ottawa, Ontario
Ravinsky, Ryan FOR THE DEFENDANT
Montréal, Quebec