Date: 20000724
Docket: A-97-98
OTTAWA, ONTARIO, THE 24TH DAY OF JULY 2000
CORAM: DÉCARY J.A.
ISAAC J.A.
SHARLOW J.A.
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
- and -
YVES PONROY CANADA
Respondent
JUDGMENT
This appeal is dismissed with costs.
"Robert Décary"
J.A.
Date: 20000724
Docket: A-617-98
OTTAWA, ONTARIO, THE 24TH DAY OF JULY 2000
ISAAC J.A.
SHARLOW J.A.
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
- and -
FLORA MANUFACTURING & DISTRIBUTING LTD.
Respondent
JUDGMENT
This appeal is dismissed with costs.
"Robert Décary"
J.A.
Date: 20000724
Docket: A-633-98
OTTAWA, ONTARIO, THE 24TH DAY OF JULY 2000
CORAM: DÉCARY J.A.
ISAAC J.A.
SHARLOW J.A.
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
- and -
FLORA MANUFACTURING & DISTRIBUTING LTD..
Respondent
JUDGMENT
This appeal is dismissed with costs.
"Robert Décary"
J.A.
Date: 20000724
Docket: A-632-98
OTTAWA, ONTARIO, THE 24TH DAY OF JULY 2000
CORAM: DÉCARY J.A.
ISAAC J.A.
SHARLOW J.A.
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
- and -
HILLARY'S DISTRIBUTION LTD.
Respondent
JUDGMENT
This appeal is dismissed with costs.
"Robert Décary"
J.A.
Date: 20000724
Docket: A-97-98, A-617-98, A-632-98, A-633-98
Docket A-97-98
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
" and "
YVES PONROY CANADA
Respondent
Docket A-617-98
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
" and "
FLORA MANUFACTURING & DISTRIBUTING LTD.
Respondent
Docket A-632-98
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
" and "
HILARY'S DISTRIBUTION LTD.
Respondent
Docket A-633-98
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
" and "
FLORA MANUFACTURING & DISTRIBUTING LTD.
Respondent
Heard at Ottawa, Ontario, on Tuesday, the 20th of May 2000
JUDGMENT delivered at Ottawa, Ontario, on July 24, 2000
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: DÉCARY J.A.
ISAAC J.A.
Date: 20000724
Docket A-97-98, A-617-98, A-632-98, A-633-98
Docket A-97-98
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
" and "
YVES PONROY CANADA
Respondent
Docket A-617-98
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
" and "
FLORA MANUFACTURING & DISTRIBUTING LTD.
Respondent
Docket A-632-98
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
" and "
HILARY'S DISTRIBUTION LTD.
Respondent
Docket A-633-98
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
" and "
FLORA MANUFACTURING & DISTRIBUTING LTD.
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1] These reasons relate to four appeals from decisions of the Canadian International Trade Tribunal (CITT) as to the classification of certain herbal products under the Customs Tariff, S.C. 1997, c. 36, as amended. A copy of the reasons should be filed in each of the appeal files and when so filed shall be considered to be the disposition of the appeal in that file. The products are devil's claw root tablets and St. John's wort oil (in bulk) imported by Flora Manufacturing & Distributing Ltd. (A-617-98 and A-633-98), vitamin and mineral tablets, capsules and powders imported by Yves Ponroy Canada (A-97-98), and garlic powder tablets imported by Hilary's Distribution Ltd. (A-632-98).
[2] The importers claimed that their products were "medicaments" falling within customs tariff classification 3003.90.99 or 3004.90.99, which carried a nil tariff rate. The Deputy Minister of National Revenue decided pursuant to section 63 of the Customs Act, R.S. 1985, c. 1 (2nd Supp), as amended, that they fell within customs tariff classification 2106.90, "food preparations not elsewhere specified or included" , which carried a tariff rate of up to 14.4%.
[3] The importers appealed to the CITT under section 67(1) of the Customs Act, which allowed the appeals. The Crown has appealed all four decisions under subsection 68(1) of the Customs Act, alleging an error of law. The four appeals were heard together by consent.
[4] Previous decisions of this Court have applied the standard of reasonableness in customs tariff classification appeals under subsection 68(1): Canada (Deputy Minister of National Revenue, Customs & Excise - M.N.R.) v. Schrader Automotive Inc. (1999), 240 N.R. 381 (F.C.A.); Rollins Machinery Ltd. v. Canada (Deputy Minister of National Revenue - M.N.R.) (1999), 247 N.R. 399 (F.C.A.); Continuous Colour Coat Ltd. v. Canada (Deputy Minister of National Revenue, Customs and Excise - M.N.R.), [2000] F.C.J. No. 610 (F.C.A.)(QL). The same standard has been applied in appeals of CITT decisions dealing with anti-dumping legislation: 2703319 Canada Inc. (c.o.b. VWV Enterprises) v. Canada (Deputy Minister of National Revenue - M.N.R.) (1999), 250 N.R. 381 (F.C.A.); Specialized Bicycle Components Canada, Inc. v. Canada (Deputy Minister of National Revenue), [2000] F.C.J. No. 77 (F.C.A.)(QL).
[5] The Crown in its four appeals urges a reconsideration of Schrader on the basis that the decision of Bastarache J. in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 would suggest that a customs tariff classification decision of the CITT should be reviewed according to a standard of correctness. The Crown points out that Pushpanathan was not cited in argument in Schrader and was not referred to in that decision.
[6] In my respectful view, the discussion by Bastarache J. of the standard of review in Pushpanathan summarized well established principles. It did not and did not purport to establish new law. I have concluded, for the reasons below, that Pushpanathan does not justify a departure from the prior decisions of this Court that apply a standard of reasonableness to appeals of customs tariff classification decisions of the CITT.
[7] The determination of the appropriate standard of review is an attempt to discern the legislative intent of the statute creating the tribunal whose decision is being reviewed. The question is whether the challenged decision is one that Parliament wanted to be left exclusively to the tribunal: Pushpanathan, paragraph 26, citing Pasiechnyk v. Saskatchewan (Workers" Compensation Board), [1997] 2 S.C.R. 890. This requires a consideration of three statutes: the Customs Tariff, the Customs Act and the Canadian International Trade Tribunal Act, R.S. 1985, c. 47 (4th Supp.).
[8] The challenged decision is the classification of goods under the Customs Tariff. The main objective of the Customs Tariff is to establish import tariffs on goods. As the tariff rate varies from product to product, it is necessary to classify goods so that everything that is capable of being imported is within one, but only one, tariff classification. The classifications are set out in considerable detail in Schedule I, enacted as part of the Customs Tariff.
[9] The Customs Tariff also gives legal effect to Canada"s obligations under the International Convention on the Harmonized Commodity Description and Coding System . That Convention has its roots in work started in 1950 by the Customs Co-operation Council, as it was becoming increasingly apparent to those involved in international trade that it would be useful to rationalize and harmonize the classification of all trade commodities.
[10] The most cursory review of the Customs Tariff discloses a statute that is lengthy and complex. The version enacted as S.C. 1997, c. 36 requires three large volumes. Most of the statutes in Schedule I is a list of goods divided into 21 sections, each consisting of one or more chapters. There are 99 chapters in all. Each chapter and each section has its own explanatory notes, and sometimes supplementary notes, followed by a list of goods categorized under a number of headings, subheadings, and sub-subheadings.
[11] Each heading within Schedule I is assigned a four digit number (example: tariff item 17.01 is "cane or beet sugar and chemically pure sucrose in solid form; raw sugar not containing added flavouring or colouring matter"). Each subheading is assigned a six digit number that includes the four digit number from the heading (example: tariff item 1701.11 is "cane sugar" and tariff item 1701.12 is "beet sugar").
[12] Each subheading is further divided into products that are assigned an eight digit number, including the six digit number from the subheading (example: tariff item 1701.11.10 is "cane sugar for use by sugar refineries in the production of refined sugar used in the manufacture of wine" and tariff item 1701.11.20 is "cane sugar not exceeding 90 of polarization".)
[13] Tariff rates are assigned to items at the eight-digit or sub-subheading level. Thus, for example, there is no tariff on tariff item 1701.11.10, but a tariff of up to $22.6/tonne is imposed on tariff item 1701.11.20.
[14] The Customs Tariff contains its own rules for interpreting Schedule I, which are found in sections 10 and 11:
| 10. (1) Subject to subsection (2), the classification of imported goods under a tariff item shall, unless otherwise provided, be determined in accordance with the General Rules for the Interpretation of the Harmonized System and the Canadian Rules set out in the schedule.
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10. (1) Sous réserve du paragraphe (2), le classement des marchandises importées dans un numéro tarifaire est effectué, sauf indication contraire, en conformité avec les Règles générales pour l'interprétation du Système harmonisé et les Règles canadiennes énoncées à l'annexe.
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| (2) Goods shall not be classified under a tariff item that contains the phrase "within access commitment" unless the goods are imported under the authority of a permit issued under section 8.3 of the Export and Import Permits Act and in compliance with the conditions of the permit.
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(2) Des marchandises ne peuvent être classées dans un numéro tarifaire comportant la mention "_dans les limites de l'engagement d'accès_" que dans le cas où leur importation procède d'une licence délivrée en vertu de l'article 8.3 de la Loi sur les licences d'exportation et d'importation et en respecte les conditions.
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| 11. In interpreting the headings and subheadings, regard shall be had to the Compendium of Classification Opinions to the Harmonized Commodity Description and Coding System and the Explanatory Notes to the Harmonized Commodity Description and Coding System, published by the Customs Co-operation Council (also known as the World Customs Organization), as amended from time to time.
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| 11. Pour l'interprétation des positions et sous-positions, il est tenu compte du Recueil des Avis de classement du Système harmonisé de désignation et de codification des marchandises et des Notes explicatives du Système harmonisé de désignation et de codification des marchandises et de leurs modifications, publiés par le Conseil de coopération douanière (Organisation mondiale des douanes).
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[15] The "General Rules for the Interpretation of the Harmonized System" referred to in section 10 of the Customs Tariff are imported from the Convention. General Rule 1 is perhaps the most important rule. It reads as follows:
The titles of Sections, Chapters and sub-Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions.
10Le libellé des titres de Sections, de Chapitres ou de Sous-Chapitres est considéré comme n'ayant qu'une valeur indicative, le classement étant déterminé légalement d'après les termes des positions et des Notes de Sections ou de Chapitres et, lorsqu'elles no sont pas contraires aux termes desdites positions et Notes, d'après les Règles suivantes.
[16] The other General Rules and the Canadian Rules referred to in section 10 deal with such questions as the manner of dealing with goods that are incomplete or unfinished, mixtures and combinations, and the manner of categorizing goods that may be within more than one category.
[17] The next statute that must be considered is the Customs Act. It deals primarily with matters of the administration and collections of customs tariffs. For present purposes it is necessary to consider only sections 67 and 68, which deal with appeals. The importers initially appealed the Deputy Minister"s classification decision to the CITT under section 67(1) of the Customs Act , which at the relevant time read as follows:
| 67. (1) A person aggrieved by a decision of the Commissioner [at the relevant time, the Deputy Minister] made under section 60 or 61 may appeal from the decision to the Canadian International Trade Tribunal by filing a notice of appeal in writing with the Commissioner and the Secretary of the Canadian International Trade Tribunal within ninety days after the time notice of the decision was given.
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67. (1) Toute personne qui s'estime lésée par une décision du commissaire [au moment approprié, le sous-ministre] rendue conformément aux articles 60 ou 61 peut en interjeter appel devant le Tribunal canadien du commerce extérieur en déposant par écrit un avis d'appel auprès du commissaire et du secrétaire de ce Tribunal dans les quatre-vingt-dix jours suivant la réception de l'avis de décision.
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[18] The powers of the CITT in an appeal under subsection 67(1) are set out in subsections 67(2) and (3), which read as follows:
67(2) Before making a decision under this section, the Canadian International Trade Tribunal shall provide for a hearing and shall publish a notice thereof in the Canada Gazette at least twenty-one days prior to the day of the hearing, and any person who, on or before the day of the hearing, enters an appearance with the Secretary of the Canadian International Trade Tribunal may be heard on the appeal.
(3) On an appeal under subsection (1), the Canadian International Trade Tribunal may make such order, finding or declaration as the nature of the matter may require, and an order, finding or declaration made under this section is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.
67(2) Avant de se prononcer sur l'appel prévu par le présent article, le Tribunal canadien du commerce extérieur tient une audience sur préavis d'au moins vingt et un jours publié dans la Gazette du Canada, et toute personne peut être entendue à l'appel si, au plus tard le jour de l'audience, elle a remis un acte de comparution au secrétaire de ce Tribunal.
(3) Le Tribunal canadien du commerce extérieur peut statuer sur l'appel prévu au paragraphe (1), selon la nature de l'espèce, par ordonnance, constatation ou déclaration, celles-ci n'étant susceptibles de recours, de restriction, d'interdiction, d'annulation, de rejet ou de toute autre forme d'intervention que dans la mesure et selon les modalités prévues à l'article 68.
[19] These appeals are brought under section 68 of the Customs Act, which reads as follows:
| 68. (1) Any of the parties to an appeal under section 67, namely,
(a) the person who appealed,
(b) the Commissioner, or
(c) any person who entered an appearance in accordance with subsection 67(2),
may, within ninety days after the date a decision is made under section 67, appeal therefrom to the Federal Court of Appeal on any question of law.
(2) The Federal Court of Appeal may dispose of an appeal by making such order or finding as the nature of the matter may require or by referring the matter back to the Canadian International Trade Tribunal for re-hearing.
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68. (1) La décision sur l'appel prévu à l'article 67 est, dans les quatre-vingt-dix jours suivant la date où elle est rendue, susceptible de recours devant la Cour d'appel fédérale sur tout point de droit, de la part de toute partie à l'appel, à savoir_:
a) l'appelant;
b) le commissaire;
c) quiconque a remis l'acte de comparution visé au paragraphe 67(2).
(2) La Cour d'appel fédérale peut statuer sur le recours, selon la nature de l'espèce, par ordonnance ou constatation, ou renvoyer l'affaire au Tribunal canadien du commerce extérieur pour une nouvelle audience.
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[20] Finally, it is necessary to consider the Canadian International Trade Tribunal Act which establishes the CITT and defines its duties and functions. The CITT consists of a Chairman, two Vice-Chairmen and not more than six other permanent members appointed by the Governor in Council. Permanent members are appointed for a term of up to five years, during which time they are required to devote all of their time to that office and are prohibited from holding any office or employment that is inconsistent with their duties. Permanent members are eligible for reappointment for one further term. Up to five temporary members may also be appointed for terms of up to three years. Temporary members may be reappointed for a first or subsequent term. All members hold office during good behaviour and may be removed by the Governor in Council at any time for cause.
[21] Parliament has conferred on the CITT a very broad mandate in matters of trade. The Governor in Council may refer to the CITT, for inquiry and report, any matter in relation to the economic, trade or commercial interests of Canada with respect to any goods or services or class of goods or services. The Minister of Finance may refer to the CITT, for inquiry and report, any tariff related matter, including any matter concerning the international rights or obligations of Canada in connection with tariffs.
[22] A number of provisions permit the Governor in Council to refer to the CITT, for inquiry and report, questions as to whether certain imports are causing harm to domestic producers of like or competitive goods. Such inquiries and review may include questions arising under the North American Free Trade Agreement (NAFTA) and other international agreements relating to imports and import tariffs.
[23] The CITT conducts mandatory mid-term reviews and report on certain orders made under the Customs Tariff or the Export and Import Permits Act, R.S. c. E-17 that have a term of more than three years. It is required to publish a notice of certain expiry of orders made under those statutes and, where warranted, conduct an inquiry into any request for an extension.
[24] The CITT receives complaints by domestic producers of dumping and subsidizing by domestic producers, and complaints of surging of imports that, but for NAFTA or another international agreement, would be subject to a surtax under the Customs Tariff or included on the Import Control List under the Export and Import Permits Act.
[25] The CITT also has the jurisdiction to deal with complaints relating to certain aspects of the federal government procurement process. It has extensive remedial powers with respect to procurement complaints that are found to be valid.
[26] Finally, the CITT has the jurisdiction to hear appeals of certain decisions of the Department of National Revenue made under the Customs Act, the Excise Tax Act, R.S., c. E-15, and the Special Import Measures Act, S.C. 1984, c. 25, including customs tariff classification decisions such as those that are the subject of these appeals.
[27] In most cases, notice of any decision by the CITT to hold or not to hold an inquiry on a matter referred to in the Canadian International Trade Tribunal Act must be given to the interested parties, and also must be published in the Canada Gazette. These are similar to the publication requirements for appeals under section 67 of the Customs Act. Reports of CITT inquiries must be provided to the interested parties and the Governor in Council, published in the Canada Gazette and, in certain cases, tabled in Parliament.
[28] By virtue of section 17 of the Canadian International Trade Tribunal Act, the CITT is a court of record, and has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record.
[29] The CITT is staffed by a Secretary and other officers and employees as required. In addition, the CITT has the authority to appoint and, subject to the approval of the Treasury Board, fix the remuneration of persons with technical or special knowledge to assist the Tribunal in any matter in an advisory capacity. In addition, officers or employees of departments or agencies of the federal government may be seconded to the CITT, subject to compliance with Treasury Board directives.
[30] The CITT is the successor to a number of other tribunals, one of which is the Canadian Import Tribunal. In National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, the Canadian Import Tribunal was acknowledged to be an expert tribunal: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748. The decision under appeal was not reviewed against a standard of correctness. The statute provided a strong privative clause for the decision in question, which was a question of the interpretation of the Special Import Measures Act, S.C. 1984, c. 25. The decision was subject to judicial review under what was then section 28 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp), which permitted an application for judicial review to be allowed on the ground of an error of law, so that the scope of the statutory appeal in the present case is similar to the scope of the judicial review in National Corn Growers Assn.
[31] Against that background, I will consider the factors identified by Bastarache J. in Pushpanathan that appear to me to be most relevant to the determination of the standard of review of the decisions of the CITT with respect to customs tariff classifications.
[32] The most important factor is the nature of the CITT as an expert tribunal in matters of international trade, imports and import tariffs. That the CITT is an expert tribunal cannot seriously be doubted. It is not simply an adjudicative body. It is also an investigative body, entitled to undertake inquiries, with the assistance of experts it retains, dealing with a broad range of trade matters arising from a complex array of a number of related statutes, some of which incorporate the terms of international agreements to which Canada is a signatory.
[33] The statutory mandate of the CITT includes a significant trade policy component. That is indicated not only by the nature and scope of the questions it may be called upon to consider, but also by two aspects of the procedural elements of its statutory scheme. The first is that action by the CITT may be triggered not only by complaints from private parties, but also by references by the Governor in Council or the Minister of Finance. The second is that its inquiries require advance notification to the public through the Canada Gazette and are open to intervention by anyone as of right. The function of the CITT as both an adjudicator of disputes and an instrument in the development of trade and import policy suggests that the Parliament intends and expects the CITT to take into account, even in appeals under section 68 of the Customs Act, policy questions that are not appropriate for ordinary judicial appeals.
[34] The procedural aspects of the CITT"s jurisdiction relating specifically to appeals under section 67 of the Customs Act are also relevant. That statutory procedure has much in common with appeals in courts of general jurisdiction, in the sense that there is an appellant and a respondent. But there are significant differences. The notice of hearing must be published in the Canada Gazette. Anyone is entitled to intervene in such appeals as of right, and to be treated as a party, even to the extent of being allowed to appeal under section 68. This statutory procedure indicates that Parliament contemplated that in such appeals, issues of fact or policy that may not be of particular interest to the appellant and the respondent, but are of interest to someone else, may be presented to the CITT, and if presented must be considered.
[35] The existence of a privative clause, the object of the legislation, and the nature of the decision under appeal must also be considered. In this case it is convenient to consider them together.
[36] Customs tariff classification decisions involve questions of law as well as questions of fact and questions of mixed law and fact. For example, as will be seen from the discussion below, in these appeals the CITT was required to decide which of two customs tariff classifications the particular herbal products fall under. That decision required, first, an interpretation of the language of the two classifications as set out in Schedule I to the Customs Tariff on the basis of explanatory notes that in some respects are ambiguous and perhaps contradictory, while having regard to Customs Co-operation Council opinions that are also ambiguous and contradictory. Having interpreted Schedule I, the CITT was required to determine the nature and properties of the products, which are questions of fact, and then to determine whether the products are "medicaments" as that term is used in Schedule I, which is a question of mixed fact and law. Under subsection 67(3) and subsection 68(1) of the Customs Act , customs tariff classification decisions of the CITT are not subject to judicial review and are subject to appeal to this Court only on questions of law.
[37] For the reasons indicated above, the analysis to be undertaken by the CITT in customs tariff classification appeals must necessarily be influenced by the CITT"s special knowledge of import and tariff policy and the related legal regime. It follows, in my view, that it is not appropriate to review such decisions against a standard of correctness, as the Crown has contended. I conclude that the appropriate standard is reasonableness, as stated in Schrader (cited above).
[38] The reasonableness standard was described in the following terms by Iacobucci J. in Southam, supra, at paragraph 56:
| An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical processes by which conclusions are sought to be drawn from it. |
[39] The point of law the Crown seeks to have determined in these four appeals is whether or not the word "medicament" as used in the headings of customs tariff classification 30.03 and 30.04 implicitly requires scientific proof of medical efficacy. The Crown suggests that unless that precondition is adopted, a product may be classified as a medicament based on nothing more than unsubstantiated claims. It is common ground that if the products in issue are not "medicaments", they would fall within customs tariff classification 2106.90, "food preparations not elsewhere specified or included."
[40] The heading for customs tariff classifications 30.03 and 30.04 reads as follows:
| 30.03 Medicaments ... consisting of two or more constituents which have been mixed together for therapeutic or prophylactic uses, not put up in measured doses or in forms or packings for retail sale.
30.04 Medicaments ... consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale.
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30.03 Médicaments ... constitués par des produits mélangés entre eux, préparés à des fins thérapeutiques ou prophylactiques, mais ni présentés sous forme de doses, ni conditionnés pour la vente au détail.
30.04 Médicaments ... constitués par des produits mélangés ou non mélangés, préparés à des fins thérapeutiques ou prophylactiques, présentés sous forme de doses ou conditionnés pour la vente au détail.
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[41] The explanatory notes for Chapter 30, which includes customs tariff classifications 30.03 and 30.04, says that Chapter 30 does not include foods or beverages (such as diatetic, diabetic or fortified foods, food supplements, tonic beverages and mineral waters).
[42] The CITT referred to the explanatory notes and other relevant provisions, and interpreted the language of the headings 30.03 and 30.04 as requiring only an indication of the use of the product for the prevention or treatment of a disease or ailment, not proof of medical efficacy. In each of the four appeals, evidence was presented to the CITT that the products were so used, and the CITT so concluded.
[43] Having considered carefully the arguments of the Crown and the authorities cited, I have been unable to detect any basis for finding the CITT"s interpretation of "medicament" to be unreasonable. I conclude that the decisions of the CITT disclose no error of law that warrants the intervention of this Court. I would dismiss these appeals with costs.
Karen R. Sharlow
J.A.
"I agree
Décary J.A.
"I agree
Isaac J.A.
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