Judgments

Decision Information

Decision Content

T-1142-73
The Queen (Plaintiff)
v.
Monarch Steelcraft Limited (Defendant)
Trial Division, Addy J.—Vancouver, March 8, 9 and 11, 1977.
Excise tax — Whether door frames made and sold by defendant are "structural building sections" within the mean ing of s. 26(4) of Excise Tax Act so as to be exempt from tax — Excise Tax Act, R.S.C. 1970, c. E-13, s. 26(4).
ACTION. COUNSEL:
S. J. Hardinge, Q.C., and Alan D. Louie for plaintiff.
George K. Macintosh and R. W. V. Dickerson for defendant.
SOLICITORS:
Deputy Attorney General of Canada for plaintiff.
Farris, Vaughan, Wills & Murphy, Vancou- ver, for defendant.
The following are the reasons for judgment rendered in English by
ADDY J.: The issue in the present case is a very narrow one. It turns entirely on whether the words "structural building sections" as found in section 26(4) of the Excise Tax Act, R.S.C. 1970, c. E-13, are applicable to certain metal door frames manu factured and sold by the defendant company in 1971.
The relevant portions of section 26(4) read as follows:
26. (4) Where a person
(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 build ing or structure, in competition with persons who construct or erect buildings or other structures that incorporate 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 sections, ... so manufactured or produced by him, the manufacturer or producer thereof.
If the door frames in question are "structural building sections" within the meaning of section 26(4)(b) then the defendant would be exempt from the tax claimed, otherwise he would be liable therefor. The actual amount is not in dispute nor is the interest which would be payable thereon should there be liability.
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 struc ture" 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 com ponents which inter-connected, ensure that a building has a certain weight or load-bearing capacity or which, in other words, contribute sub stantially to its strength and solidity and permit it to resist the various forces created by man and nature to which it might be subjected. Structural building sections might be contrasted with mere fixtures or other integral components, systems or elements which contribute primarily to the proper use or enjoyment of the building or structure, such as doors, windows, non weight-bearing walls, insu lation, or its heating, plumbing and electrical sys tems or which enhance it aesthetically, such as plaster walls, wallpaper, finished flooring and other such decorative additions. This concept of the word "structural" in the context of that para graph was not disputed at trial but, on the con trary, it was confirmed by the expert engineers called on behalf of both parties who testified that such was the interpretation given to that word in the building trade generally as well as in the engineering profession. Furthermore the meaning of "structural building sections" becomes clear beyond any shadow of a doubt when one considers the French version of those words in the French text which reads quite simply des éléments por- teurs. This expression might be literally translated as "load-bearing elements", the word "structural" having been completely omitted from the French version.
The defendant manufactured two types of metal door frames: one type was designed primarily for use in dry-wall construction and the other type designed primarily for use in masonry and plaster walls. However, it was possible to use the first type in a masonry construction although it was not usual to do so as special connections would have to be provided to anchor the frame to the masonry. Both types of frame were manufactured from satin-coated galvanized steel purchased in sheet form, the thickness being either 14, 16, 18 or 22 gauge, depending on the width of the door opening and on the estimated amount of traffic or intended use to be made of the door. The manufacturing was carried out by what is termed the cold form process, as no heating was involved. The metal sheets were cut into strips and then put in a press to form the elements of the frame. They were then put through a punch press to punch out the holes for the lock and hinges. The frames when com pleted each had a certain total load-bearing capacity varying roughly between 350 and 1150 pounds depending on the gauge of the metal used and on the width of the head or door opening.
To constitute a section manufactured for use in a building or other structure a "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 ultimate ly as an integral or constitutional element of the load-bearing system or body of the building, erec tion or structure. To be load-bearing in this con text it must necessarily be substantially load-bear ing to the extent that it is commonly used for that purpose because all matter, even gaseous matter, possesses a certain strength or load-bearing capaci ty as it can withstand certain forces exerted on it.
An ordinary wooden door frame is not a "struc- tural building section" because the material has really no substantial load-bearing capacity but more importantly because it is designed to act merely as trim and to close the space between the wall opening and a door and act as a support for and a means of properly closing the door, which
itself is not a structural part of the building. In the case at bar however, because of the fact that the frames manufactured by the defendant possessed a certain load-bearing capacity and because both types of frame were capable of being incorporated in a load-bearing masonry wall during the con struction of a building, the defendant claims the exemption under the above quoted portion of section 26.
The defendant's manager who was for some seven years its shop foreman testified that he had several times observed both types of frames being installed in masonry walls without any other rein forcement over the head or opening. He also testi fied that he never noticed any being installed with additional support over them. Counsel for the defendant on this evidence invited the Court to conclude that the frames were customarily used by the building trade as "structural building sections" and that this indicated that it was one of the primary uses for which they were manufactured and sold.
The manager in his evidence however did not state whether the walls which he inspected were load-bearing or support walls or were merely divi sion or partition walls. He did not state how many inspections were made by him nor whether any other similar frames were generally used by the building industry as structural building sections. It is to be noted also that the defendant company never at any time dealt with the building industry. All of its frames were purchased by an affiliated company at that time ADKA and now WACO, for distribution to the building trade. Under those circumstances there is not much likelihood of the manager of the defendant being too conversant with the custom of the building trade generally in this regard. In any event there was no evidence to that effect. More importantly the manager testi fied that he knew of no instance where the load- bearing capacity of the door frames had ever been requested of the defendant. It is of course possible that the load-bearing capacity might have been requested from the affiliated company which was distributing the frames, but in any event no evi dence was adduced by any officer or employee of
the distributing company to that effect. It would seem to me that, over the period of eight years during which the witness was either shop foreman or manager inevitably some inquiry would have been made of the manufacturer by either some building contractor, architect or structural engi neer regarding the specifications covering load- bearing capabilities of the door frames, and that any such inquiry would have come to the attention of the witness.
Two professional engineers with considerable experience in structural designing and in the supervision of construction of buildings were called on behalf of the plaintiff. Both testified that in the case of masonry walls additional steel support would always have been specified over the opening or head of the door frames of the defendant. This evidence remained uncontradicted by the expert engineer called on behalf of the defendant. The latter witness, a university professor, also appar ently possessed considerable experience as a con sultant in the design field and in investigating engineering projects.
In so far as establishing that the door frames were commonly used by the building trade without additional support, as part of the structural load- bearing system of buldings I must conclude that not only has the defendant failed to satisfy the onus placed upon it to do so but the plaintiff has affirmatively established the opposite to be true. This proposition therefore cannot be advanced by the defendant to establish the purpose for which the door frames were manufactured.
As to the purpose of the design, the examination for discovery of the authorized officer of the defendant contains the following questions and answers:
(1) With regard to the dry-wall type frames (the drawings and specifications of which were marked Exhibit 3 on discovery and Exhibit 2-1 at trial):
124 Q. It says here, "Fits securely over dry wall after opening is completed". Does that indicate to you that it isn't a load bearing frame at all, it says "fits securely over dry wall after opening is completed".
A. That would be one application of that, again referring to the mûltiple applications that can be used. The technical sheet isn't produced for one particular application of this frame, and there may be a subsequent data sheet, modified a little bit, to do other particular jobs.
125 Q. The door frames sold between the two dates, July to September, 1971, are not door frames sold with that feature of being load bearing to any specific extent?
A. I can't answer that, I have no knowledge. (OFF THE RECORD DISCUSSION)
MR. MACINTOSH: During the recess, I discussed this with Mr. Newhouse, and Mr. Newhouse pointed out that discus sions on weight and weight requirements are requested by architects and engineers in certain cases, but we don't have information as to whether or not there were sales based on the weight bearing capacity of the door in 1971.
(2) With regard to the masonry frames (designs and specifications marked Exhibit 4 on discov ery and Exhibit 2-2 at trial):
MR. CARRUTHERS:
126 Q. Presumably you would give the same answer with
respect to the door frames shown in Exhibit 4?
A. Yes, I would have to.
There was also evidence that the masonry frame was designed so that it could be installed after the masonry wall had been completed.
Although the frames are capable of being used as forms to hold the masonry while a wall is being erected and although they do possess some load- bearing capacity, it is evident from their design, from the actual use being made of them and from their somewhat limited weight-bearing capacity that they were not designed or manufactured primarily for the purpose of resisting loads and that their primary function is not to form part of the structural components of a building but rather to fulfil the same function as ordinary wooden door frames, namely to serve as finish or trim, to fill in the space and cover any irregularities which might exist between the wall opening and the door and to provide a ready means of hanging and properly closing a door.
I therefore conclude that the defendant has failed to establish that the door frames fall within the exemption provided in section 26(4)(b) of the Excise Tax Act and that liability to pay the tax must follow.
Judgment will issue with costs against the defendant in the amount of tax and interest agreed upon in the statement of facts.
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