Deputy Minister of National Revenue for Customs and Excise v. Ferguson Industries Ltd. et al., [1973] SCR 21

Supreme Court of Canada

Deputy Minister of National Revenue for Customs and Excise v. Ferguson Industries Ltd. et al., [1973] S.C.R. 21

Date: 1972-05-01

The Deputy Minister of National Revenue for Customs and Excise (Appellant) Appellant;

and

Ferguson Industries Limited (Respondent) Respondent;

and

Canadian Electrical Manufacturers Association of Canada (Intervenant) Respondent.

1971: October 29; 1972: May 1.

Present: Abbott, Judson, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA

Customs and excise—Appeals—Electrically driven motor winches—Motors and controls in separate shipment—Classified by Tariff Board for customs as parts of winches—Error in law—Customs Act, R.S.C. 1952, c. 58, s. 45 [am. 1958, c. 26, s. 2].

The respondent shipbuilding firm ordered two electrically driven motor winches from a Belgian supplier. The supply contract indicated that the electric motors and other electric control components for the winches were to come from an English manufacturer at a separately specified price. They arrived directly from England at a customs entry port ahead of the mechanical portions of the winches which came later from Belgium.

The motors were entered under tariff item 44516-1: “Electric motors, and complete parts thereof, n.o.p.”, while the controls were entered under item 44022-1: “Manufactures of… metal, of a class or kind not made in Canada, for use exclusively in the construction or equipment of ships or vessels…”. Classification under the last-mentioned item attracted no duty and it was under this item that the winches also were entered.

Entry of the motors under tariff item 44516-1 was confirmed by the Customs Appraiser and by the Deputy Minister. The respondent thereupon appealed to the Tariff Board and the appeal was allowed. An appeal was dismissed by the Exchequer Court, where it was held that the Tariff Board did not err on any question of law in declaring that the motors were properly classified under item 44022-1. The Deputy Minister then appealed to this Court.

[Page 22]

Held (Spence and Laskin JJ. dissenting): The appeal should be allowed.

Per Abbott, Judson and Pigeon JJ.: The essential question in this case was not a question of fact but a question of law. The facts were that the motors and controls were, as the Board said, parts of an original installation ordered from one company and designed as a unit to perform one function. The question of law was whether on those facts, the motors should be regarded for customs classification, as parts of the winches rather than as motors.

Under the Customs Act, goods are to be classified at the time of entry. Accordingly, what was important was the nature of the goods when they were entered, and the fact that they had been ordered from the Belgian supplier, rather than directly from the English manufacturer, was irrelevant to their proper classification. The Board erred in law in holding that parts are to be regarded as falling within the classification of the whole thing rather than as such.

Due to its conclusion, the Board did not proceed to consider whether the motors were of a class or land made in Canada. It was therefore necessary that the matter be referred back to the Board for such purpose.

Per Spence and Laskin JJ., dissenting: The appeal should be dismissed. The Exchequer Court found no error of law in the Board’s declaration; and since its appellate jurisdiction was limited to questions of law by s. 45 of the Customs Act, R.S.C. 1952, c. 58, as amended, it was powerless to interfere with findings of fact which were supportable by evidence. This Court’s position, on a further appeal to it, was the same. Neither the Customs Act nor the Customs Tariff, R.S.C. 1952, c. 60, required, as a matter of law, that the classification of imported goods be finally fixed according to their separate entry at the time of importation without regard to the fact that they may form or constitute a whole with other components shipped separately and to the fact that there may be an applicable tariff classification on an entity basis.

APPEAL from a judgment of the Exchequer Court dismissing an appeal by the Deputy Minister of National Revenue from a determination of the Tariff Board as to the tariff classification of two electric motors imported by the respondent.

[Page 23]

Appeal allowed, Spence and Laskin JJ. dissenting.

C.R.O. Munro, Q.C., and B.D. Collins, for the appellant.

F.L. Corcoran, Q.C., and A.T. Hewitt, Q.C., for the respondent, Ferguson Industries Ltd.

Frederick H. Hume, Q.C., for the intervenant.

The judgment of Abbott, Judson and Pigeon JJ. was delivered by

PIGEON J.—This appeal is from a judgment of the Exchequer Court dismissing an appeal by the Deputy Minister of National Revenue for Customs and Excise (the Deputy Minister) from a determination of the Tariff Board as to the tariff classification of two electric motors imported by the respondent. These motors were built in England. Each of them, with the associated controls, was intended to operate a special winch in each of two fishing trawlers being built by the respondent. They had been ordered with the winches from André Brusselle Limited (Brusselle) of Belgium, but the latter had in turn ordered them from Laurence Scott & Electromotors Limited of Norwich, England, and this firm made the shipment direct to the respondent while the winches were shipped separately by Brusselle from Belgium. Each item was priced and invoiced separately.

The customs entry was made under No. 187 on July 21, 1967. The motors were entered under the following tariff item,

44516-1 Electric motors, and complete parts thereof, n.o.p.

while the controls were entered under the following:

44022-1 Manufactures of iron, brass or other metal, of a class or kind not made in Canada, for use exclusively in the construction or equipment of ships or vessels, under regulations prescribed by the Minister.

On July 24, another entry, No. 186, was made for the winches under the last-mentioned tariff item.

[Page 24]

On March 29, 1968, respondent requested a redetermination of tariff classification for the motors under the same tariff item as the winches and controls. On October 16, 1968, the Deputy Minister made a redetermination reaffirming the original classification on the following grounds:

The imported electric motors are considered to be of a class or kind made in Canada and are, therefore, not eligible for entry under tariff item 44022-1.

Thereupon, respondent appealed to the Tariff Board by letter dated November 12, 1968. On November 5, 1969, the Board made a declaration allowing the appeal. The material part of this decision is as follows:

The motor and controls, in issue in this appeal, were invoiced and transported in one shipment from one country, the remainder of the winch installation was separately invoiced and transported in another shipment from another country, but since all were parts of an original installation ordered from one company, designed as a unit to perform one function which required the operation of all parts when in use and controlled by one operator, they should be regarded as parts of a single entity or entirety and should not be segregated for customs classification.

In the opinion of the Board, the winch installation forms one single entity which includes the motor, the controls, and the mechanical parts of the installation. It is unnecessary, therefore, to consider whether the motor, were it to be regarded as a separate entity, is of a class or kind made in Canada.

It is agreed by the parties that the winch is of a class or kind not made in Canada, that it is a manufacture of iron, brass or other metal and that it is for use exclusively in the construction or equipment of ships or vessels.

The Board declares, therefore, that the motors in issue are properly to be classified in tariff item 44022-1.

[Page 25]

An appeal to the Exchequer Court was dismissed by Cattanach J. on April 21, 1970, the learned trial judge saying:

For the foregoing reasons I have concluded that the finding of the Tariff Board that the winch installation inclusive of the electric motors to be the entity was one of fact and that there was evidence upon which the Board could reasonably so find. Having found that fact as they were entitled to do, the Board did not err on any question of law in declaring that the electric motors were properly classified under Tariff Item 44022-1.

In my view, the essential question in this case is that which was dealt with by the Tariff Board in the words I have underlined in the first paragraph above quoted.

This is not a question of fact but a question of law. The facts were that the motors and controls were, as the Board says, parts of an original installation ordered from one company and designed as a unit to perform one function. The question of law is whether on those facts, the motors should be regarded for customs classification, as parts of the winches rather than as motors. They obviously were not physically part of the winches when imported. The finding that “the winch installation forms one single entity which includes the motors, the controls and the mechanical parts…” cannot be isolated from the immediately preceding paragraph of the decision which sets out on what basis it was made, namely, not that the motors actually were parts of the winches but that they should be so regarded for customs classification. In my view, the Board erred in law in making its determination on that basis.

Under the Customs Act, goods are to be classified at the time of entry. In Deputy Minister of National Revenue for Customs and Excise v.

[Page 26]

MacMillan & Bloedel (Alberni) Ltd.[1], Hall J. speaking for the Court said (at p. 371):

It was also urged on behalf of the said respondent that there was in fact no evidence that newsprint machines of the size or speed of the one imported were being made in Canada at any time material to the time when MacMillan & Bloedel contracted to purchase the newsprint machine in question and on the question of the relevant time urged that the date for the determination of the rights of the parties should be taken as the date that said respondent entered into the formal contract to purchase, namely, August 25, 1955. This latter point can, I believe, be disposed of by a reference to s. 43 of the Customs Act, as amended by 3-4 Eliz. II, c. 32, (1955), which appears to say very clearly that the time for determining tariff classification is at the time of entry into Canada of the goods subject to duty, and having regard to the language of this section there can be no justification for fixing any other date as the date upon which the duty, if any, is to be determined.

When the goods with which we are concerned were entered, the fact that they had been ordered by respondent from Brusselle, rather than directly from the English manufacturer, was as irrelevant to their proper classification as the date of the contract referred to by Hall J. What was important was their nature at that time. Can it be said, as the Board did, that because each motor was designed as a unit to form a single entity with the winch and controls, each imported motor was to be considered as a single entity with the winch to be driven by it? This would mean that parts are to be regarded as falling within the classification of the whole thing rather than as such. In my view, the Board erred in law when so holding. Parts or complete parts are mentioned with many things in a number of items of the tariff classification, such as in item 44516-1 and also in the items referred to in Deputy Minister of National Revenue for Customs and Excise v. Research-

[Page 27]

Cottrell (Canada) Ltd.[2] In other items, parts are not mentioned as in item 44022-1. In other items, parts are dealt with separately. Within such a context, parts cannot properly be considered as included in items in which they are not mentioned. To do so would render meaningless the mention of parts or of complete parts in a great many items.

On the whole, I find that the Tariff Board erred in finding that, because each motor in question was designed to perform one function together with the associated controls and winch, it should be regarded as coming within the description of tariff item 44022-1 as being a part of a winch separately entered and coming within such description, which is clearly what is meant by the finding that each “installation forms one single entity”.

Due to its conclusion, the Tariff Board did not proceed to consider whether the motors were of a class or kind made in Canada. It is therefore necessary that the matter be referred back to the Board for such purpose.

For those reasons, I would allow the appeal, reverse the judgment of the Exchequer Court, set aside the determination of the Tariff Board and order that the matter be referred back to the Tariff Board to determine whether the electric motors imported under customs entry No. 187 dated July 21, 1967, are of a class or kind not made in Canada and, therefore, entitled to entry under customs tariff item No. 44022-1. In the circumstances of this case in which the amount of customs duty involved is only about $2,000, no costs should be allowed.

The judgment of Spence and Laskin JJ. was delivered by

LASKIN J. (dissenting)—The issue in this appeal is whether an error of law was made by the Tariff Board in holding that certain electric motors were properly classifiable on an entity

[Page 28]

basis with trawl winches, although they arrived in a separate and earlier shipment at a port of entry and were consequently shown alone on the entry form at that time. It was conceded by the appellant that if the motors and winches had been imported at the same time and were found to constitute an entity or an entirety, the classification assigned by the Tariff Board would have been unobjectionable.

The Exchequer Court, to which an appeal was taken from the Tariff Board’s declaration, found no error of law therein; and since its appellate jurisdiction was limited to questions of law by s. 45 of the Customs Act, R.S.C. 1952, c. 58, as amended, it was powerless to interfere with findings of fact which were supportable by evidence. This Court’s position, on a further appeal to it, is the same.

In my opinion, neither the Customs Act nor the Customs Tariff, R.S.C. 1952, c. 60, requires, as a matter of law, that the classification of imported goods be finally fixed according to their separate entry at the time of importation without regard to the fact that they may form or constitute a whole with other components shipped separately and to the fact that there may be an applicable tariff classification on an entity basis. I do not read s. 3(1) of the Customs Tariff, in its reference to the levy, collection and payment of duties on goods “when such goods are imported into Canada”, as ruling out entity classifications under appropriate tariff items; and no different conclusion is commanded under ss. 19, 20 and 22 of the Customs Act. Tariff classifications for duty are subject to review and redetermination if timely appeals are taken, as provided by ss. 43 and 44 of the Customs Act; and the fact that the ultimate decision on classification must be as of the time of importation does not mean that the time of arrival and entry is the determining consideration.

The importer in the present case, a shipbuilding firm which had a contract for the construction of two stern trawlers, ordered, in connection therewith, two electrically driven motor

[Page 29]

winches from a Belgian supplier. The supply contract indicated that the electric motors and other electric control components for the winches were to come from an English manufacturer at a separately specified price. They arrived directly from England at a customs entry port ahead of the mechanical portions of the winches which came later from Belgium; one of the winches arrived three days later and the other more than three months later.

The electric motors were entered under Tariff Item 44516-1, which was as follows: “Electric motors, and complete parts thereof, n.o.p.…” and were consequently dutiable. The importer contended primarily that they should have been classified on an entity basis with the winches under Tariff Item 44022-1, which is in these words: “Manufacturers of iron, brass or other metal, of a class or kind not made in Canada, for use exclusively in the construction or equipment of ships or vessels, under regulations prescribed by the Minister…”. Classification under this item attracts no duty, and it was common ground that on an entity basis electrically driven trawl winches were within this classification.

Entry of the electric motors under Tariff Item 44516-1 was confirmed by the Customs Appraiser and by the Deputy Minister. On the appeal to the Tariff Board, it made certain findings which I set out in its own language:

In the present appeal, the Board holds the evidence to show that the electric motor was specially designed and constructed to form a whole in conjunction with its controls and the mechanical portions of the winch; this construction included the windings which are performed in the factory in the manufacture of the motor and which, according to the evidence, are of major importance in determining the capability and performance of the motor. The motor was imported at the same time and under the same entry as the electrical controls made by the same manufacturer and shipped together from one country.…

The motor and controls, in issue in this appeal, were invoiced and transported in one shipment from one country, the remainder of the winch installation was separately invoiced and transported

[Page 30]

in another shipment from another country, but since all were parts of an original installation ordered from one company, designed as a unit to perform one function which required the operation of all parts when in use and controlled by one operator, they should be regarded as parts of a single entity or entirety and should not be segregated for customs classification.

In the opinion of the Board, the winch installation forms one single entity which includes the motor, the controls, and the mechanical parts of the installation. It is unnecessary, therefore, to consider whether the motor, were it to be regarded as a separate entity, is of a class or kind made in Canada.

I would add that the Board emphasized that it was dealing with an original installation, and that Tariff Item 44022-1 was an end-use item not qualified by the term “n.o.p.”.

Reliance was placed by the appellant Deputy Minister on the judgment of this Court in Deputy Minister of National Revenue for Customs and Excise v. MacMillan & Bloedel (Alberni) Ltd. et al[3], in which Hall J., speaking for the Court and referring to s. 43 of the Customs Act, said, at p. 371, that “the time for determining tariff classification is at the time of entry into Canada of the goods subject to duty, and having regard to the language of this section there can be no justification for fixing any other date as the date upon which the duty, if any, is to be determined”. That case involved the tariff classification of a newsprint machine purchased in the United States under a contract made in February 1955 and imported in a knock-down condition over a period of some eight months between November 1956 and June 1957. It was contended, inter alia, by the importer that the machine was not of a class or kind made in Canada at the time the contract of purchase became effective; and it was in respect of this contention that Hall J. referred to s. 43 of the Customs Act. Having regard to its context, the reference is not incompatible with the different situation in the present case.

[Page 31]

I would dismiss the appeal with costs.

Appeal allowed, SPENCE and LASKIN JJ. dissenting.

Solicitor for the appellant: D.S. Maxwell, Ottawa.

Solicitor for the respondent, Ferguson Indus-tries Ltd.: F.L. Corcoran, Ottawa.

Solicitors for the intervenant: Hume, Martin & Timmins, Toronto.