Nitrochem Inc. v. Dep. Min. of Nat. Rev. for Customs and Excise, [1984] CTC 608 (FCA)

MacGuigan, J:—This is an appeal under section 48 of the Customs Act and subsection 30(1) of the Federal Court Act from a decision of the Tariff Board on March 8, 1983. The Tariff Board had dismissed the appeal of the appellant from a redetermination of tariff classification by the Deputy Minister of National Revenue for Customs and Excise on September 9, 1981, under subsection 46(4) of the Customs Act.

The article in question is a device for spreading substances on lawns and is known as the Model 33 Hand Push Spreader. It is classified under tariff item 42700-1 which reads as follows: “machines, n o p, and accessories, attachments, control equipment and tools for use therewith; parts of the foregoing”. The appellant asked the Tariff Board to declare that these goods should more properly be classified under tariff item 40904-1: “cultivators, harrows, seed-drills, horse-rakes, horse-hoes, scufflers, manure spreaders, garden seeders, weeders, and complete parts of the foregoing”.

The heart of the decision of the Tariff Board under appeal is as follows:

The Model 33 spreader is known in the trade as a fertilizer spreader, ie, a spreader of granular fertilizer. The French version of tariff item 40904-1 refers to distributeurs d’engrais, a term which includes both manure and granular fertilizer spreaders. Since manure spreader is common to both versions and fertilizer spreader is not, the tariff item, 40904-1, is intended to cover only manure spreaders. The Board, therefore, concludes that the goods in issue are not classifiable under 40904-1.

A second issue raised during the hearing concerned the usage of the Model 33 spreader as a garden seeder which is also included in tariff item 40904-1. However, the unit’s primary purpose is not as a garden seeder, even though it broadcasts seeds. The Board does not consider the term garden seeder applicable to the goods in issue.

The Board, therefore, declares that the Model 33 Hand Push Spreader in issue is not a manure spreader within the meaning of tariff item 40904-1, but is classifiable as machines, n o p, under tariff item 42700-1.

With respect to the secondary issue of whether the Model 33 spreader qualifies for tariff item 40904-1 as a garden seeder, the Board seems to be clearly right. The spreader is intended to be primarily used, and the evidence indicates that it is almost exclusively used, for spreading fertilizer rather than for broadcasting seeds.

It is not essentially a garden seeder and should not be considered as such for tariff purposes.

The real issue in the case involves the category of “manure spreader” and raises a question of reconciliation of the French and English texts of tariff item 40904-1. That item reads as follows in the two official languages:

The French word engrais appears to mean any kind of fertilizer, organic or inorganic, including but not restricted to barnyard manure, whereas the English word “manure” arguably refers only to animal waste used as fertilizer and a “manure spreader” to a wagon drawn behind a tractor which distributes such barnyard fertilizer by throwing it onto the fields by means of a rotating augur. There is therefore a prima facie need to reconcile the two versions, both authentic, of the tariff item.

The Official Languages Act itself provides in section 8 the principles to be applied in reconciling an apparent conflict:

8. (1) In construing an enactment, both its versions in the official languages are equal! authentic.

(2) In applying subsection (1) to the construction of an enactment,

(a) where it is alleged or appears that the two versions of the enactment differ in their meaning, regard shall be had to both its versions so that, subject to paragraph (c), the like effect is given to the enactment in every part of Canada in which the enactment is intended to apply, unless a contrary intent is explicitly or implicitly evident;

(b) subject to paragraph (c), where in the enactment there is a reference to a concept, matter or thing the reference shall, in its expression in each version of the enactment, be construed as a reference to the concept, matter or thing to which in its expression in both versions of the enactment the reference is apt;

(c) Where a concept, matter or thing in its expression in one version of the enactment is incompatible with the legal system or institutions of a part of Canada in which the enactment is intended to apply but in its expression in the other version of the enactment is compatible therewith, a reference in the enactment to the concept, matter or thing shall, as the enactment applies to that part of Canada, be construed as a reference to the concept, matter or thing in its expression in that version of the enactment that is compatible therewith; and

(d) if the two versions of the enactment differ in a manner not coming within paragraph (c), preference shall be given to the version thereof that, according to the true spirit, intent and meaning of the enactment, best ensures the attainment of its objects.

The easy temptation is to follow subparagraph 8(2)(b) and find the narrower meaning common to both the English and French versions, but Pratte, J for the Supreme Court of Canada suggested caution in this respect in The Queen v Compagnie Immobilière BCN Limitée, [1979] 1 SCR 865, at 871-2:

I do not believe that s 8(2)(b) of the Official Languages Act is of much assistance to respondent. The rule therein expressed is a guide; it is one of several aids to be used in the construction of a statute so as to arrive at the meaning which “according to the true spirit, intent and meaning of an enactment, best ensures the attainment of its objects” (s 8(2)(d)). The rule of s 8(2)(b) should not be given such an absolute effect that it would necessarily override all other canons of construction. In my view therefore the narrower meaning of one of the two versions should not be preferred where such meaning would clearly run contrary to the intent of the legislation and would consequently tend to defeat rather than assist the attainment of its objects.

One of the most important rules to be followed in the interpretation of a particular provision of a statute was expressed as follows by Lord Herschell in Colquhoun v Brooks (1889), 14 AC 493, at p 506:

It is beyond dispute, too, that we are entitled and indeed bound when construing the terms of any provision found in a statute to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to show that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act.

And, in Canada Sugar Refining Company, Limited v The Queen, [1898] AC 735 Lord Davey said at p 741:

. . . Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter.

Clearly, this basic rule of statutory construction is still in effect; it has not been repealed by the enactment of s 8 of the Official Languages Act.

The fundamental approach is therefore contextual and is in effect well stated in paragraph 8(2)(d) of the Official Languages Act itself.

Counsel for the respondent wisely accepted this challenge and attempted to show that the general scheme of tariff items indicated a no-duty policy with respect to agricultural implements (in which he argued 40904-1 fell) and a more restrictive approach to lawn or garden implements (such as tariff items 42505-1, 42510-1, and 42515-1 dealing with lawn mowers).

The problem with this interpretation is that it is not uniformly sustained by the legislation. For example, tariff item 40910-1 makes certain lawn or garden rollers duty-free. More important, in tariff item 40904-1 itself, some of the categories clearly refer to non-agricultural implements. The only evidence presented as to the meaning of “weeders” in that item is that they are hand tools for removing dandelions from lawns. With respect to “garden seeders” the Tariff Board itself in Mercury Tool & Stamping Limited v The Deputy Minister of National Revenue for Customs and Excise (1962), 2 TBR 328 held that a lawn spreader was not a graden seeder not because it was not an agricultural implement (though it also held that it was not) but because it was for seeding lawns and not gardens. In other words, it did not view item 40904-1 as having an overall agricultural-character.

I therefore conclude that there is nothing in either the legislative scheme as a whole nor in item 40904-1 itself to require a narrow interpretation of manure spreader. In fact, contextual examination here leads nowhere but back to the words in the tariff item itself. We find ourselves in a wilderness of single instances, as it were.

While the word “manure” may more often be used in the sense of animal waste, it is also clear that it can have a broader meaning. In the horticultural dictionary it is defined as “any substance applied to the soil for the purpose of increasing productivity” and the phrase “commercial manures” is used as equivalent to “fertilizers””: The Standard Cyclopedia of Horticulture, London, 1922. The Random House Dictionary of the English Language defines manure as “any natural or artificial substance for fertilizing the soil”. Perhaps most important, The Concise Oxford Dictionary (7th ed, 1982) defines it as “any substance, eg dung or compost or artificial material, (to be) spread over or mixed with soil to fertilize it”. [Emphasis added] What is most striking with respect to this latter source is that in a previous edition (5th ed, 1964) the meaning “artificial material” was not included, thus indicating a recent broadening in the usage.

In the only case cited by either party, Heller et al v Magone (1889), 38 Fed R 908, a New York court held that the phrase “guano, manure and all substances expressly used for manure” in a US Tariff Act included a commercial product which was more than 90 per cent sulphate of potash, and stated that the word “fertilizers” is a mere synonym for manure. I have also turned up a case involving a toll clause in a railway act in which the phrase “‘all sorts of manure” was held to include artificial as well as natural fertilizers (Aberdeen Commercial Co v Great Northern (Scotland) Railway (1878), 3 Ry & Can Traffic Ca 205).

With respect to the reconciliation of English and French texts, a judge’s responsibility is not to seek some primary instance of ordinary usage in one language to which the meaning in the other language must be made to conform, but rather to try to grasp the whole meaning in both languages. Since it is clear to me here that the English word “manure” can easily bear as broad a meaning as the French word engrais, I believe it is preferable to adopt this fuller meaning which renders it equivalent to the French term. In that way full justice is done to both versions.

The meaning of “manure spreader” follows logically from that of “manure”. It is not a technical term, nor is this a situation in which one should simply take the first mental picture that comes to mind in the English language. What matters is to correlate the meanings of the two versions in so far as possible. Here that is entirely possible.

I am strengthened in my conclusion by the fact that the evidence shows that organic and inorganic fertilizers are not only not incompatible but may be used together and may even be broadcast by the same device. The fertilizers sold by the appellant which were intended to be used in the Model 33 Hand Push spreader were 20 per cent organic in nature. Barnyard manure, in its raw form, wet and mixed with weeds and straw, would not be suitable for the spreader, but manure itself, dried and processed, could be so used. This interchangeability of fertilizers, as well as the multiple use of the spreader itself, confirms me in my belief that it would be unwise here to make sharp and narrow interpretations of the words in question.

The appeal will therefore be granted with costs and the article in question classified as falling under tariff item 40904-1.