Date: 20110414
Docket: A-314-10
Citation: 2011 FCA 137
CORAM: EVANS
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
C.B. POWELL LIMITED
Appellant
and
PRESIDENT OF
THE CANADA BORDER SERVICES AGENCY
Respondent
REASONS FOR
JUDGMENT
STRATAS J.A.
[1]
This
is an appeal of a decision dated August 11, 2010 of the Canadian International
Trade Tribunal (appeal nos. AP-2010-007 and AP-2010-008).
[2]
In
the Tribunal, the appellant sought to appeal duties that were charged on
certain imported goods, jars of bacon bits. The Tribunal declined to consider
the appeal. It decided that it lacked the jurisdiction to do so. It reached
this decision by interpreting the section which defines what may be appealed to
it: subsection 67(1) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.).
It then applied its interpretation of subsection 67(1) of the Act to the facts
of this case.
[3]
For
the reasons set out below, the Tribunal’s interpretation of subsection 67(1) of
the Act and its application of that interpretation to the facts of this case are
both reasonable. Therefore, I would dismiss this appeal with costs.
A. The
determination of duties payable under the Act
[4]
When
importers import goods into Canada, duties may be payable under the Act. In
Part III of the Act and a number of associated regulations, Parliament has
established a comprehensive administrative regime concerning duties.
[5]
Under
this administrative regime, the liability to pay duties and the amount of
duties to be paid depend on three components: (1) the origin of the
goods/tariff treatment; (2) the tariff classification; and (3) the value for
duty of the imported goods. Upon importation of goods, the importer declares
its position concerning these three components. The Canada Border Services
Agency (CBSA) can take issue with the importer’s position. When the CBSA does
so, certain administrative reviews can follow, culminating in an appeal to the
Tribunal: see sections 58, 59, 60 and 67 of the Act.
B. What
happened in this case
[6]
In
2005, the appellant imported certain jars of bacon bits from the United
States.
It submitted a declaration to the CBSA setting out what it considered to be the
origin/tariff treatment, the tariff classification and the value for duty of
the bacon bits. In particular, for the origin/tariff treatment, it set out
“most favoured nation” tariff treatment.
[7]
At
the time the appellant submitted the declaration, the CBSA did not
question it. In such circumstances, subsection 58(2) of the Act deems the three
components set out in the appellant’s declaration to be “determined” for the
purposes of this administrative regime.
[8]
However,
under sections 42, 42.01 and 42.1 of the Act, the CBSA can later conduct audits
and verifications of the declaration made by the importer. As a result of those
audits and verifications, the CBSA can “re-determine” or “further
re-determine” any of the three components in the calculation of the duties
payable. This power to “re-determine” or “further re-determine” is found in
section 59, which provides as follows:
|
59. (1) An officer, or any officer within a class of
officers, designated by the President for the purposes of this section may
(a) in the case of a determination under section 57.01 or 58,
re-determine the origin, tariff classification, value for duty or marking
determination of any imported goods…; and
(b) further re-determine the origin, tariff classification or
value for duty of imported goods…on the basis of an audit or examination
under section 42, a verification under section 42.01 or a verification of
origin under section 42.1 ….
(2) An
officer who makes a determination under subsection 57.01(1) or 58(1) or a
re-determination or further re-determination under subsection (1) shall
without delay give notice of the determination, re-determination or further
re-determination, including the rationale on which it is made, to the
prescribed persons.
|
59. (1) L’agent chargé par le président,
individuellement ou au titre de son appartenance à une catégorie d’agents, de
l’application du présent article peut :
a) dans le
cas d’une décision prévue à l’article 57.01 ou d’une détermination prévue à
l’article 58, réviser l’origine, le classement tarifaire ou la valeur en
douane des marchandises importées…;
b)
réexaminer l’origine, le classement tarifaire ou la valeur en douane…d’après
les résultats de la vérification ou de l’examen visé à l’article 42….
(2) L’agent qui procède à la
décision ou à la détermination en vertu des paragraphes 57.01(1) ou 58(1)
respectivement ou à la révision ou au réexamen en vertu du paragraphe (1)
donne sans délai avis de ses conclusions, motifs à l’appui, aux personnes
visées par règlement.
|
[9]
In
this case, the CBSA conducted an audit and found that the appellant had chosen
the wrong tariff classification for the imported jars of bacon bits. Before
issuing a re-determination under section 59 of the Act, the CBSA sought the
appellant’s views.
[10]
The
appellant acknowledged its error, but also advised the CBSA that it had also
misstated the origin/tariff
treatment
of the goods. In its view, the jars of bacon bits were eligible for duty-free
tariff treatment under the North American Free Trade Agreement, 1994
Can. T.S. No. 2, rather than the 12.5 percent duty payable on the
reclassification of the goods under most-favoured-nation tariff treatment.
[11]
The
CBSA issued a re-determination under subsection 59(1) of the Act, correcting
the tariff classification number, but leaving the tariff treatment unchanged.
Although the CBSA had received the appellant’s submissions concerning the
origin/treatment of the goods, it declared that it would not re-determine that
matter.
[12]
The
appellant appealed the tariff treatment to the President of the CBSA under
subsection 60(1) of the Act. Under that subsection, the President only has the
power to hear appeals from re-determinations or further re-determinations:
|
60. (1) A person to whom notice is given
under subsection 59(2) in respect of goods may, within ninety days after the
notice is given, request a re-determination or further re-determination of
origin, tariff classification, value for duty or marking. The request may be
made only after all amounts owing as duties and interest in respect of the
goods are paid or security satisfactory to the Minister is given in respect
of the total amount owing.
|
60. (1) Toute personne avisée
en application du paragraphe 59(2) peut, dans les quatre-vingt-dix jours
suivant la notification de l’avis et après avoir versé tous droits et
intérêts dus sur des marchandises ou avoir donné la garantie, jugée
satisfaisante par le ministre, du versement du montant de ces droits et
intérêts, demander la révision ou le réexamen de l’origine, du classement
tarifaire ou de la valeur en douane, ou d’une décision sur la conformité des
marques.
|
[13]
The
President rejected the appellant’s appeal, holding that he did not have the power
to hear it. In his view, since the CBSA had not “re-determined” or “further
re-determined” origin/tariff treatment under subsection 59(1), he did not have
the power to do so himself under subsection 60(1).
[14]
The
last step of administrative appeal available to the appellant was to appeal to
the Tribunal under subsection 67(1). Subsection 67(1) allows an aggrieved party
to appeal from a “decision” of the President under subsection 60(1):
|
67. (1) A person aggrieved by
a decision of the President 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 President and the Secretary of the Canadian
International Trade Tribunal within ninety days after the time notice of the
decision was given.
|
67. (1) Toute personne qui
s’estime lésée par une décision du président 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 président et du
secrétaire de ce Tribunal dans les quatre-vingt-dix jours suivant la
notification de l’avis de décision.
|
[15]
Did
the President make a “decision” in this case? The CBSA thought not. So the
appellant sought a declaration from the Federal Court that there was a
“decision” under subsection 67(1) of the Act: 2009 FC 528. An appeal to this
Court followed.
[16]
This
Court held that recourse to the Federal Courts was premature: the appellant
should have appealed to the Tribunal and let the Tribunal decide whether there
was a “decision” under subsection 67(1) of the Act (Canada (Border Services
Agency) v. C.B. Powell Limited, 2010 FCA 61). Therefore, the appellant appealed
to the Tribunal under subsection 67(1) of the Act.
C. The Tribunal’s
decision
[17]
The
Tribunal decided that the President’s holding was not a “decision” under
subsection 67(1) of the Act and so it could not hear the appellant’s appeal.
[18]
In
essence, the Tribunal made two distinct findings. It interpreted “decision” in
subsection 67(1) of the Act and then it applied its interpretation to the facts
of the case before it.
D. Analysis
(1) The standard of review
[19]
In
my view, the standard of review for both of the Tribunal’s findings is the
deferential standard of reasonableness.
[20]
On
the issue of the interpretation of “decision” in section 67(1) of the Act, the
appellant submits that the standard of review is correctness. He maintains that
the interpretation of subsection 67(1) of the Act is a “jurisdictional
question” and that the Supreme Court of Canada has held that the standard of
review for such questions is correctness: Dunsmuir v. New Brunswick, 2008 SCC 9 at
paragraph 59, [2008] 1 S.C.R. 190. He draws some support from the Tribunal’s
decision itself, which repeatedly uses the word “jurisdictional” to describe
the issue before it.
[21]
The
appellant’s submission cannot be accepted. It is contrary to this Court’s
seminal decision in Public Service Alliance of Canada v. Canadian
Federal Pilots Assn., 2009 FCA 223 at paragraphs 41-50,
[2010] 3 F.C.R. 219. In
that case, this Court considered the Supreme Court’s observation that “true
questions of jurisdiction or vires” must be reviewed for correctness. It
noted that the Supreme Court did not expressly define this phrase, but the
Supreme Court did offer, as its only example, United Taxi Drivers’
Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1
S.C.R. 485.
At issue in United Taxi was whether a municipality was authorized under
a statute to enact particular bylaws. That was a fundamental issue of vires.
On the other hand, the Public Service Alliance case concerned a
tribunal’s interpretation and application of a provision in its home statute.
This Court held that that was not a “true question of jurisdiction or vires.”
[22]
The
same can be said of the case at bar. The Tribunal’s interpretation of
“decision” in section 67(1) of the Act is not the sort of matter that attracts
correctness review. Rather, it is a matter of statutory interpretation of a
statute frequently interpreted by the Tribunal – a statute that may be
considered one of its “home statutes.” Such a matter is presumptively subject
to reasonableness review: Dunsmuir, supra at paragraphs 54-56.
See also the recent decision of the Supreme Court of Canada in Smith v.
Alliance Pipeline Ltd., 2011 SCC 7 at paragraph
36.
(2) Were
the Tribunal’s two findings reasonable?
[23]
To
reiterate, the Tribunal made two distinct findings. It interpreted “decision”
in subsection 67(1) of the Act and it applied its interpretation to the facts
of the case before it.
[24]
Under the deferential standard of reasonableness, we must assess
whether these two findings fall outside of the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir,
supra at paragraph 47. We can only interfere if the Tribunal has reached
an outcome based on an indefensible interpretation or application of
Parliament’s law.
(a) The Tribunal’s interpretation
of “decision” in subsection 67(1) of the Act
[25]
In
my view, the Tribunal’s interpretation of “decision” in subsection 67(1) of the
Act is not outside the range of possible or acceptable outcomes. It is
reasonable.
[26]
The
Tribunal held that only a “re-determination” or “further re-determination” by
the President under subsection 60(1) of one of the three components in the duty
calculation could qualify as a “decision.”
[27]
The
Tribunal examined whether its interpretation was “inconsistent with the overall
scheme of the statute and, in particular, with the jurisdiction statutorily
conferred upon it by Parliament” (at paragraph 27). It chose an interpretation
that was loyal to the plain meaning of the Act: a decision of the President
under subsection 60(1) can only be a “re-determination” or “further
re-determination” of a decision made by the CBSA under subsection 59(1). The Tribunal was also
influenced by paragraph 74(1)(c.1), which allows for NAFTA treatment to
be given in appropriate circumstances where the importer has failed to claim
that treatment in its initial declaration.
[28]
In
this Court, the appellant suggests that the Tribunal’s decision works
considerable unfairness and makes this administrative regime a trap for the
unwary. It says that the decision makes this administrative regime
insufficiently forgiving if the importer makes mistakes in its declaration. The
appellant points to the case at bar where the CBSA under subsection 59(1)
adjusted the tariff classification but not the origin/tariff treatment, even
though it should be adjusted, resulting in an overpayment of duties. The
Tribunal’s decision, it says, leaves the importer unable to appeal the
overpayment to the President because the President is not doing a
re-determination or a further re-determination. This, the appellant says, means
that an onward appeal to the Tribunal is not possible because, under the
Tribunal’s interpretation, there is no “decision” before it under subsection
67(1). The appellant says that this is contrary both to the purpose of Part III of the Act (the
“calculation of duty”) and this administrative regime – to ensure that importers
pay the correct amount of duties, not more.
[29]
While
I accept that a legislative interpretation that creates results contrary to the
purpose of the Act can be an indicator of unreasonableness (Montreal
(City) v. Montreal Port
Authority, 2010 SCC 14 at paragraph 42, [2010] 1 S.C.R. 427), this
administrative regime may have other purposes, such as ensuring administrative
efficiency in the handling of the flood of imported goods that arrive at our
borders every day. In an administrative regime designed to deal with such a
flood, it may be legitimate to require importers to be held to the declarations
they make and to limit their ability to launch appeals in order to try to claim
a tax treatment that could have been claimed earlier. I note that Parliament’s
words in sections 58, 59, 60 and 67 of the Act do not give unlimited rights of
appeal to importers. This signals that there may be more purposes behind this
administrative regime than the appellant suggests.
[30]
However, I need not determine the exact purposes behind this
administrative regime. Even accepting the appellant’s submission that the
purpose of Part III of the Act is to ensure that importers pay the correct amount of
duties and not overpay, the Tribunal offered a comment in its reasons that substantially
lessens the possibility of overpayment. In light of this comment, I cannot
accept the appellant’s submission that the Tribunal’s interpretation of
subsection 67(1) is contrary to the purposes of the Act.
[31]
The
Tribunal’s comment concerned situations where the CBSA under subsection 59(1)
of the Act or the President of the CBSA under subsection 60(1) of the Act adjusts one
component of the calculation but, in the factual circumstances existing in the
case, there must have been an implied decision to adjust another component. The
Tribunal found that such implied decisions are “re-determinations” or “further
re-determinations” under subsections 59(1) and 60(1), and thus “decisions”
under subsection 67(1) which can be appealed to the Tribunal. The Tribunal’s
comment in this regard appears at paragraph 31 of its reasons:
The
Tribunal finds that, in the present appeals, there was in fact no actual
re-determination made by a customs officer, pursuant to subsection 59(1) of the
Act, of the subsection 58(2) deemed determination in respect of origin.
However, such a decision could also conceivably arise by necessary implication
as a consequence of other decisions made, thereby providing the basis for a
request to the President of the CBSA under subsection 60(1).
[32]
The
Tribunal’s recognition of an implied decision provides the importer with
recourse in appropriate circumstances. For example, suppose that the CBSA
conducted an audit and then, under subsection 59(1), the CBSA adjusted one of
the three components and did not make consequential and necessary changes to
other components. In such a case, it would be open to the President of the
CBSA, on appeal under subsection 60(1), to find that the CBSA impliedly
determined that consequential and necessary changes to other components should
not be made. In that circumstance, the President, in looking at those other
components, would be “re-determining” the matter. In such a case, there would
be a decision by the President that would qualify as a “decision” under
subsection 67(1) of the Act that could be appealed to the Tribunal.
[33]
No
doubt, there may be other situations where the Tribunal will find that implied
decisions were made. That, of course, will be for the Tribunal to determine on a
case-by-case basis. In developing its own jurisprudence in this area, the
Tribunal will need to consider the purposes of Part III of the Act and this
administrative regime.
[34]
The
ability of the importer to argue that an implied decision was made substantially
lessens the potential unfairness that the appellant has raised. The Tribunal’s
interpretation of subsection 67(1), which embraces the possibility of implied
decisions, is rationally defensible given the framework of provisions enacted
by Parliament when it set up this administrative regime. On the basis of the
deferential standard of reasonableness that must be applied in this case, the
Tribunal’s interpretation of subsection 67(1) passes muster.
(b) The
application of the Tribunal’s interpretation to the facts of this case
[35]
The
Tribunal found that the President did not “re-determine” or “further
re-determine” the issue of origin/tariff treatment under subsection 60(1).
Further, in its view (at paragraph 39), the President’s refusal to consider the
origin/tariff treatment issue was correct because the CBSA did not re-determine
origin/tariff treatment under subsection 59(1) of the Act:
[39] Given
the absence of a re-determination by a customs officer pursuant to subsection
59(1) of the Act of the subsection 58(2) deemed determination of origin and
that such a re-determination could not be said to have arisen by necessary
implication from the re-determination of the tariff classification that was
actually made, the Tribunal finds that the President of the CBSA was correct in
concluding that he has no jurisdiction pursuant to subsection 60(1) to make a
decision (i.e. a further re-determination) on the issue of origin.
[36]
On
this, we see no reviewable error. The above passage shows that the Tribunal was
alive to the issue whether there was an implied determination of origin/tariff
treatment by the CBSA when it re-determined the tariff classification. The
appellant has pointed to nothing in the record that suggests that that finding,
essentially factual in nature, was indefensible under the deferential standard
of reasonableness review that we are obligated to apply. There was evidence
before the Tribunal, some of which it summarized in paragraph 38 of its
decision, that could support the conclusion that there was no implied decision.
Under the deferential reasonableness standard, that is sufficient to dismiss
this appeal.
[37]
Finally,
the appellant suggests that the overall result reached by the Tribunal is
unreasonable: the appellant is left in a situation where it has paid 12.5% duty
on the goods it imported, when, in fact, no duty should have been paid. That is
indeed the situation in which the appellant finds itself. But the appellant,
alone, is responsible for that. In its initial declaration, the appellant stated
a particular origin/tariff treatment for the goods (most favoured nation
treatment), but later recognized that there was a better tariff treatment
(NAFTA). It tried to change the tariff treatment by using the administrative
appeal regime in Part III of the Act. But Parliament’s
plain words in sections 58, 59, 60 and 67 of the Act, as reasonably interpreted
by the Tribunal, do not permit that. Further, Parliament has provided for importers
to correct their declarations or pursue other recourses within a certain period
of time in certain circumstances: see, for example, sections 32.2 and 74 of the
Act. But the appellant did not avail itself of those routes. Therefore, looking
at the overall result reached by the Tribunal, I cannot conclude that it is outside
of the range of the acceptable or defensible.
[38]
Therefore,
I would dismiss the appeal, with costs.
"David
Stratas"
“I agree
John M. Evans J.A.”
“I agree
Eleanor R. Dawson J.A.”
Email this Content