Date:
20121016
Docket:
A-418-11
Citation:
2012 FCA 260
CORAM: SHARLOW
J.A.
PELLETIER J.A.
STRATAS
J.A.
BETWEEN:
THE
PRESIDENT OF THE CANADA BORDER SERVICES AGENCY
Appellant
and
MASAI
CANADA LIMITED
Respondent
REASONS FOR JUDGMENT
OF THE COURT
(Delivered
from the Bench at Ottawa, Ontario, on October 16, 2012)
STRATAS
J.A.
[1]
The
President of the Canada Border Services Agency appeals to this Court from a
decision dated August 5, 2011 of the Canadian International Trade Tribunal
(appeal no. AP-2010-025).
[2]
The
Tribunal concluded that certain imported therapeutic sport shoes should be
classified under tariff item no. 9979.00.00 under the Customs Tariff,
S.C. 1997, c. 36, as goods specifically designed to assist persons with
disabilities in alleviating the effect of those disabilities. As a result of
this classification, the shoes benefited from duty-free treatment.
[3]
The
parties agree that the standard of review of the Tribunal’s decision in this
Court is reasonableness. We agree. This is a deferential standard.
[4]
Relying
in part on its own jurisprudence, the Tribunal interpreted the text of tariff
item no. 9979.00.00 and, specifically the requirement therein that the goods be
“specifically designed to assist persons with disabilities” in “alleviating the
effects of those disabilities.” It then applied its interpretation to the
evidence before it.
[5]
On
the issue whether the shoes were specifically designed to assist persons with
disabilities, the Tribunal stated (at paragraphs 40-41):
Although the above evidence is not contemporaneous
to the actual design of the goods in issue, it is reasonable to conclude that,
when considered as a whole, it indicates that the goods in issue were
specifically designed to assist individuals with disabilities. Put otherwise,
considering the plausible connection between the lack of muscle stimulation in
the lower limbs and the existence of certain disabilities, and considering that
the purposeful intent of the design was to stimulate muscles in the lower
limbs, the Tribunal concludes that it is reasonable to conclude that the design
was specially intended to assist persons with disabilities.
The Tribunal is also of the view that, even if the
goods in issue are, in fact, marketed and used by individuals who do not suffer
from disabilities, this does not negate the fact that the goods in issue were
designed specifically to address a condition that may be associated with the
cause of various disabilities.
[6]
The
appellant suggested that in paragraph 40 of its decision the Tribunal
illogically inferred that the shoes were specifically designed for disabilities
from the fact the shoes caused general physiological effects. But before the
Tribunal was a nexus of evidence tying the general physiological effects to the
alleviation of specific disabilities, a nexus that, in its judgment, allowed it
to infer that the shoes were specifically designed for disabilities. The
Tribunal was alive to the dangers of making faulty inferences, noting (at
paragraph 21) that evidence must be assessed on a “case-by-case basis” and must
be “probative and convincing.”
[7]
On
the issue whether the shoes were specifically designed to alleviate the effects
of disabilities, the Tribunal stated (at paragraph 43):
In this matter, the Tribunal is looking for evidence
that the individual who designed the goods in issue specifically intended for
the increase in stability and muscle stimulation, and the resulting increase in
control of the foot and ankle caused by the design and use of the goods in
issue, to alleviate the effects that are caused by the disabilities mentioned
above.
[8]
Reviewing
the evidence of four doctors, the Tribunal was satisfied that this test was
met. In paragraph 50, the Tribunal stated:
Even though it is anecdotal, the Tribunal found this
evidence to be credible and to show a convincing nexus between the disabilities
and their effects, and the objective of the goods in issue of alleviating their
effects with the view of assisting persons by making them more functional in
their daily activities.
[9]
We
conclude that the Tribunal has reached an outcome that is acceptable and
defensible on the evidence and law before it and, thus, made a reasonable
decision.
[10]
Therefore,
despite the able submissions of Mr. Gibbs, we will dismiss the appeal with
costs.
"David Stratas"
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-418-11
APPEAL
FROM A DECISION OF THE CANADIAN INTERNATIONAL TRADE TRIBUNAL DATED AUGUST 5,
2011, NO. AP-2010-025
STYLE OF CAUSE: The
President of the Canada Border Services Agency v. Masai Canada Limited
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 16, 2012
REASONS FOR JUDGMENT
OF THE COURT BY: Sharlow, Pelletier, Stratas JJ.A.
DELIVERED FROM THE
BENCH BY: Stratas J.A.
APPEARANCES:
Andrew Gibbs
|
FOR
THE APPELLANT
|
Michael Kaylor
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE APPELLANT
|
Lapointe
Rosenstein Marchand Mélançon, LLP
Montreal, Quebec
|
FOR THE RESPONDENT
|