Igloo Vikski – Supreme Court of Canada finds that an “includes” definition could reasonably be viewed as being limited by the listed items

A decision of the Supreme Court dealt with characterizing the precise nature of the hierarchy of Rule 1 of the General Rules for the Interpretation of the Harmonized System (scheduled to the Customs Tariff Act) over Rule 2(b). Rule 1 indicates that goods shall be classified by the terms of the “headings” (i.e., descriptions) in the Customs Tariff Schedule for the competing tariff items. Rule 2(b) provides that where a good contains a mixture of more than one material, a reference to goods in a heading includes goods that consist partly of the material (provided that the other materials have not transformed the goods’ ability to generally answer the heading’s description).

In her dissenting reasons, Côté J pointed out that the approach of the CITT – that resort can only be made to Rule 2(b) if the goods in question (here, goalie gloves) could first be considered to be described in more than one heading – did not work because (for reasons relating the World Harmonized System Explanatory Notes) they fell within neither mooted heading (gloves, mittens or mitts – or other articles of plastics) – whereas this problem did not arise if the two Rules were applied in a somewhat more integrated manner. Brown J tried, with mixed results, to present a good case in favour of the CITT’s logic, but indicated in any event that substantial deference should be given to their specialized expertise (whereas Côté J, after noting that the Customs Schedule precisely implemented an international Convention, stated: “Given the Convention parties’ intention of creating a uniform classification scheme, I find that the range of reasonable statutory interpretations in this context is narrow.”)

Of perhaps broader interest was their debate about the interpretation of “includes.” The Explanatory Note for the other plastics heading said this heading included various listed categories of items, the first of which was was articles of apparel and clothing, whose description did not encompass the goalie gloves. Côté J essentially stated (citing the usual authority) that “includes” merely expands and does not limit. Brown J essentially stated that it was reasonable for the CITT to consider that if the gloves were not covered by the specific paragraph dealing with clothing items, they should not be considered to be intended to be included in that heading.

Neal Armstrong. Summary of Canada (A. G.) v. Igloo Vikski Inc., 2016 SCC 38 under Customs Tariff Act - General Rules for the Interpretation of the Harmonized System – Rule 2(b), and Statutory Interpretation – Interpretation/Definition Provisions.