Date: 19991125
Docket: A-155-98
CORAM: STONE J.A.
| IN THE MATTER OF the Customs Act, R.S.C. 1985, c. 1 (2ND Supp.), as amended |
BETWEEN:
2703319 CANADA INC. O/A VWV ENTERPRISES
1678700 CANADA INC. 0/A SACHA LONDON
ALDO SHOES (1993) INC., TRANSIT
(A DIVISIONOF ALDO SHOES)
AND GLOBO (A DIVISION OF ALDO SHOES)
Appellants
- and -
THE DEPUTY MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario,
on Thursday, November 25, 1999)
STONE J.A.
[1] The Court is faced with determining two issues in this appeal on a "question of law" from a decision of the Canadian International Trade Tribunal under section 62 of the Special Import Measures Act1 (the "Act"). The first issue is in selecting the appropriate standard to be applied in reviewing the Tribunal's decision. The second is whether by the application of that standard this Court should interfere with the merits of the decision.
[2] The issue before the Tribunal was whether imports of women's shoes originating in the People's Republic of China properly attracted an assessment of anti-dumping duty because they were not "sandals".
[3] In deciding that the goods did attract anti-dumping duty, the Tribunal had regard to its findings and the reasons therefor of May 3, 1990, in Inquiry No. NQ-89-003,2 in which it was determined that the dumping and subsidizing of certain shoes and boots in Canada from the countries concerned were causing and were likely to cause material injury to the production in Canada of like goods.
[4] In that Inquiry, the Tribunal identified certain types of shoes that were not included in its findings. These included "sandals". In addition, the Tribunal provided the following definition of "sandals" in its Statement of Reasons:
| For further clarification, sandals were generally defined as an open shank footwear employing narrow ribbons, straps or thongs to form the upper and attachment, in which the difference between the combined height of the sole and any heel in the heel area, and the height of the sole in the forward area, did not exceed two centimetres. |
[5] In the present case, the Tribunal concluded that the goods in question were not "sandals" because the "difference between the combined height of the sole and any heel in the heel area and the height of the sole in the forward area" did "exceed two centimetres" and, accordingly, that the goods attracted assessment of anti-dumping duty.
[6] In arriving at this conclusion, the Tribunal first decided that the word "sandals" was ambiguous. It then went on to decide that the 1990 definition contained a built-in condition that applied in determining whether goods are "sandals".
[7] The appellants contend that the Tribunal erred in its determination because the word "sandals" is not ambiguous and, secondly, because the Tribunal failed to treat the definition of "sandals" contained in the Statement of Reasons as an extended rather than a restricted definition, and then treated as decisive the second part of the definition, "in which the difference between the combined height of the sole area and any heel in the heel area, and the height of the sole in the forward area, did not exceed two centimetres", as a condition that had to be satisfied before goods could be regarded as "sandals". Counsel submits that the presence of the words "generally defined as" in the 1990 definition signified that the definition was not intended to be exhaustive, but rather as illustrative of the types of goods that were meant to fall within the term "sandals". In so submitting, counsel relied upon this Court's judgment in J.V. Marketing Inc. v. Canadian International Trade Tribunal3 in support of its contention that, like the definition of "sports footwear" in the same 1990 findings, the definition of "sandals" was not exhaustive.
[8] It seems to us from a close examination of the decision of the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam Inc.4 that the standard to be applied by this Court in reviewing the decision of the Tribunal is that of reasonableness simpliciter.5
[9] The essential task of the Tribunal was of applying the law to the facts in determining whether the goods in issue "are goods of the same description as goods to which the...finding of the Tribunal...applies", within the meaning of section 56 of the Act. In our view, the decision thus involved a question of mixed law and fact and it cannot be said, as it was put by Iacobucci J. in Southam, that it is "not supported by any reasons that can stand up to a somewhat probing examination"6 or that it was "clearly wrong".7 We are not persuaded on this standard of review that the Tribunal committed a reviewable error in deciding that the word "sandals" was ambiguous. Nor are we satisfied that the Tribunal committed such an error in its appreciation of the 1990 definition of "sandals" and its application of that definition to the circumstances of the case.
[10] Not to be overlooked is that the decision under review is of a highly specialized tribunal possessing evident expertise in the making of decisions of this kind. This factor was labelled in Southam as "the most important consideration".8 As Iacobucci J. observed in selecting the standard of reasonableness simpliciter as appropriate in that case:9
| Putting all of the foregoing considerations into the balance and taking my cue from this Court's decisions on the subject, including particularly relatively recent decisions, I am of the view that decisions of the Tribunal should be subject to review on a reasonableness standard. That this standard is appropriate and sensible becomes clear when one considers the complexity of economic life in our country and the need for effective regulatory instruments administered by those most knowledgeable and informed about what is being regulated. It bears noting, however, that the standard I have chosen permits recourse to the courts for judicial intervention in cases in which the Tribunal has been shown to have acted unreasonably. |
| In the final result, the standard of reasonableness simply instructs reviewing courts to accord considerable weight to the views of tribunals about matters with respect to which they have significant expertise. While a policy of deference to expertise may take the form of a particular standard of review, at bottom the issue is the weight that should be accorded to expert opinions. In other words, deference in terms of a "standard of reasonableness" and deference in terms of "weight" are two sides of the same coin. |
[11] In summary, and despite the able argument of counsel for the appellants, we are not persuaded that the decision of the Tribunal was unreasonable in the appreciation it expressed of the 1990 definition of "sandals" and its application in the present case. That determination, in our view, fell well within its mandate and expertise. We can find no basis for interfering with it.
[12] The appeal will therefore be dismissed.
"Arthur J. Stone"
J.A.
Date: 19991125
Docket: A-155-98
CORAM: STONE J.A.
| IN THE MATTER OF the Customs Act, R.S.C. 1985, c. 1 (2ND Supp.), as amended |
BETWEEN:
2703319 CANADA INC. O/A VWV ENTERPRISES
1678700 CANADA INC. 0/A SACHA LONDON
ALDO SHOES (1993) INC., TRANSIT
(A DIVISIONOF ALDO SHOES)
AND GLOBO (A DIVISION OF ALDO SHOES)
Appellants
- and -
THE DEPUTY MINISTER OF NATIONAL REVENUE
Respondent
Heard at Ottawa, Ontario, on Thursday, November 25, 1999.
Delivered from the Bench at Ottawa, Ontario, on Thursday, November 25, 1999.
REASONS FOR JUDGMENT OF THE COURT: STONE J.A.
__________________
1 R.S.C. 1985, c. S-15.
2 The Inquiry was made pursuant to section 42 of the Act.
3 (1994), 178 N.R. 24.
4 [1997] 1 S.C.R. 748.
5 See Minister of National Revenue (Customs and Excise) v. Schrader Automotive Inc. (1999), 240 N.R. 381 (F.C.A.).
6 Supra., note 4, at p. 776.
7 Ibid., at p. 779.
8 Ibid., at p. 775.
9 Ibid., at p. 779.
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