Kimberly-Clark Canada Inc. v. Canada
T-2975-94
Nadon J.
12/3/98
19 pp.
Whether toilet paper, facial tissue "cosmetics" or "health goods" under Excise Tax Act-Plaintiff paid federal sales tax on sales of facial tissue, toilet paper between August 1, 1989 and December 31, 1990 under Act, s. 50(1)-Based refund claim on ground toilet paper, facial tissue "cosmetics", "health goods", therefore exempt from federal sales tax under s. 50(5)(g), (k)-Whether toilet paper, facial issue health goods-Definition of "health goods" found in Act, s. 2(1)-Toilet paper sold, represented for use in cleaning body after defecation, urination-Preventing transmission of bacteria not tantamount to disease treatment, mitigation, prevention for purposes of Act-Toilet paper not attacking, defending against, eradicating microorganisms, viruses, bacteria which may cause disease-Having no direct effect on "disease" which may be contained in faecal matter-Nothing in use of toilet paper which mitigates symptoms of any disease-Neither facial tissue nor toilet paper modifies organic function-Neither product can be included in definition of health good-Whether toilet paper "cosmetics"-"Cosmetics" defined as goods commonly or commercially known as toilet articles in Act, s. 2(1)-Common use of toilet paper attention brought to one's body prior to dressing-Toilet paper fitting within definition of "cosmetic"-Issue of whether facial tissues fell within definition of "cosmetics" arose in Canadian International Paper Inc. and Deputy M.N.R. (Customs and Excise) (1986), 12 C.E.R. 112 (Tar. Bd.); affd (1988), 17 C.E.R. 3 (F.C.A.)-Whether Kimberly-Clark privy to CIP case-In absence of binding agreement between Crown and Kimberly-Clark, despite fact statement of claim withdrawn after F.C.A. upheld Tariff Board's determination, Kimberly-Clark not privy to earlier action-Crown not estopped from arguing in case at bar facial tissue not "cosmetics"-Use of facial tissue " in connection with the care of the human body . . . for cleansing" sufficient to bring it within definition of toilet article-Judgment in favour of plaintiff-Toilet paper, facial tissue "cosmetics" under Excise Tax Act-Excise Tax Act, R.S.C., 1985, c. E-15, ss. 2(1) "cosmetics", "Health goods" (as am. by R.S.C., 1985 (2nd Supp.), c. 7, s. 1), 50(1),(5) (as am. idem, s. 16).