No. 1]
Neither Fish nor Fowl, but Good Yellow Margarine:
M.F.F. Equities v. The Queen,’ Statutory Interpretation,
and the Man of Common Understanding
The Excise Tax Act of Canada,2 which levies a tax on the sale
price of goods, exempts ‘Fish and edible products thereof’. Fish
oil is sometimes used to make margarine, and can constitute as
high a proportion as ninety per cent –
of the
oil used as the main component –
in manufacturing this butter substituteY
eighty per cent by weight –
probably more –
The manufacturers have accordingly asked the courts whether
margarine made of fish oil is ‘fish’ or ‘an edible product of fish’,
so as to be tax-exempt. The undersigned writer would now invite
the same judges to say whether synthetic fish made of vegetables
is ‘fish’ or ‘an edible product of fish’.
As the Act now stands, it probably answers both questions by
implication. For, since 1966, it explicitly exempts ‘Oleomargarine
and margarine for consumption in the Province of Newfoundland’,5
on the one hand, and, on the other, ‘Vegetarian food products
manufactured from vegetable and mineral ingredients to simulate
meat products’: 6 expressio unius est exclusio alterius.
1 [1969] S.C.R. 595, (1969), 5 D.L.R. (3d) 97 (Supreme Court of Canada),
affirming [1969] 1 Ex. C.R. 508, [1969] C.T.C. 29, 69 D.T.C. 5039 (Exchequer
Court of Canada, coram Cattanach J.). The case was heard in the Supreme
Court by Cartwright CJ., and Abbott, Ritchie, Hall and Pigeon JS.; the
latter delivered the unanimous opinion of the Court.
2 R.S.C. 1970, c. E-13, ss. 27(1) and 29(1), read with Schedule III, Part V,
No. 7. At the material time the corresponding provisions were R.S.C. 1952,
c. 100, ss. 30(1) and 32(1) and Schedule III, as amended by various Acts
not material here.
3 [1969] S.C.R. 595, at pp. 596-7. More detail, including a history of margarine,
is given in the careful and thorough reasons of Cattanach, J., esp. [1969]
1 Ex. C.R. 508, at p. 510, agreed fact no. 7, and pp. 512-516. The appellant’s
particular processes are detailed at pp. 510-12. The proportions used in the
particular margarine concerned in the case at bar do not matter, in view
of the decision of the Court as to even that margarine with the highest
fish-oil content.
4A new schedule was substituted in 1966 by 14-15 Eliz. II, S.C. 1966, c. 40,
s. 8, for that found in R.S.C. 1952, c. 100, as amended by various Acts.
G Now R.S.C. 1970, c. E-13, Schedule III, Part V, No. 20. Emphasis is added.
Presumably no other oleomargarine would be exempt.
6 Ibid., No. 28. Emphasis is added. Presumably simulated fish would not be
exempt.
McGILL LAW JOURNAL
[Vol. 18
Neither of these provisions, however, appeared in the Act in
1963 and 1964 when M.F.F. Equities paid sales tax under protest
in respect of the sale of margarine whose fish oil content varied
from 48 to 90 per cent. Their subsequent enactment, it is agreed –
nay, insisted by the courts 7 –
can in no way affect the meaning of
the Act as it stood previously. In disposing of an action to recover
sums so paid, the Supreme Court of Canada, affirming the Exchequer
Court, answered the first of the two questions posed above. The
second does not appear to have occurred to them.
The consumer who looks at, smells, and tastes fish oil margarine
would, it is said, not think of it as a ‘product of fish’, and statutory
language must usually, as their Lordships point out, be interpreted
according to the “common understanding” of such words. What,
then, will the consumer say who looks at, tastes, and smells
artificial fish? If fish oil margarine is, as their Lordships hold,
not a ‘product of fish’ because, on its face, it does not appear to
be such, must not artificial fish, by parity of reasoning, be con-
sidered ‘fish’ because to all appearances it is indistinguishable
from the natural product?
Is the only man of common understanding the one who is left
to judge from appearances? What of the man of common under-
standing who is told the facts and invited to decide?
Stephen A. Scott *
7 This was explicitly held by the Court. See:
[1969] S.C.R. 595, at p. 598
* Of the Bar of the Province of Quebec and the Faculty of Law, McGill
in fine, and p. 599.
University.
