9058-3956 Quebec Inc. v. Canada (Public Safety and Emergency Preparedness), 2006 FCA 363

Date: 20061106

Docket: A-47-06

Citation: 2006 FCA 363

CORAM:       DESJARDINS J.A.

                        DÉCARY J.A.

                        PELLETIER J.A.

BETWEEN:

9058-3956 QUEBEC INC.

and

2970-7528 QUEBEC INC.

and

9005-0659 QUEBEC INC.

Appellants

and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

(as Minister responsible for the Canada Border Services Agency)

and

THE MINISTER OF NATIONAL REVENUE (as Minister responsible for

the Canada Customs and Revenue Agency)

Respondents

Hearing held at Montréal, Quebec, on November 6, 2006.

Judgment delivered from the bench at Montréal, Quebec, on November 6, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                             DÉCARY J.A.

Date: 20061106

Docket: A-47-06

Citation: 2006 FCA 363

CORAM:       DESJARDINS J.A.

                        DÉCARY J.A.

                        PELLETIER J.A.

BETWEEN:

9058-3956 QUEBEC INC.

and

2970-7528 QUEBEC INC.

and

9005-0659 QUEBEC INC.

Appellants

and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

(as Minister responsible for the Canada Border Services Agency)

and

THE MINISTER OF NATIONAL REVENUE (as Minister responsible for

the Canada Customs and Revenue Agency)

Respondents

REASONS FOR JUDGMENT

DÉCARY J.A.

[1]               The issue in this appeal is whether the Canada Border Services Agency (the Agency) was correct in rejecting the drawback claims made by the appellant companies on the ground that, inter alia, they were incomplete, since they did not contain the drawback waiver required under section 119 of the Customs Tariff, S.C. 1997, c. 36 (the Tariff) and section 5 of the Goods Imported and Exported Refund and Drawback Regulations, SOR/96-42 (the Regulations).

[2]               The drawback in question concerns customs duties on the importation into Canada of automobiles from countries that are not parties to NAFTA (for example, Lexus and Mercedes automobiles imported from Japan and Germany) by automobile manufacturers. The manufacturers would sell these automobiles to Canadian dealers, who would in turn resell them as brand new cars to companies, such as the appellants, that would then export them, still as new cars. The evidence shows that manufacturers prohibit dealers from selling automobiles for export purposes (Appeal Record, volume 1, page 136). Consequently, the manufacturers refuse to supply dealers with a waiver for the drawback to which the manufacturers would be entitled if they exported the automobiles themselves without using them.

[3]               The appellant companies, which are the last link in the chain and which export the automobiles purchased from dealers, claim to be entitled to the drawback. The Agency did not allege otherwise. It only requires that the appellants show that they are the only persons who are entitled to claim the drawback under the Tariff. This is proven by submitting the waiver mentioned in the sections cited.

[4]               Mr. Justice Rouleau of the Federal Court upheld the Agency’s decision (2006 FC 4). The impugned decision is well founded. The sections in question are clear. If the appellant companies are unable to produce a drawback waiver issued by the importer, their drawback claims do not fulfill the conditions and cannot be accepted.

[5]               Counsel for the appellant companies is asking the Court to interpret section 119 of the Tariff and section 5 of the Regulations as meaning that only the person entitled to the drawback, so counsel argues, is required to submit the waiver. However, the purpose of these two provisions is clearly to determine who is the sole person entitled to the drawback. The suggested interpretation renders the two provisions meaningless.

[6]               Accordingly, the Court is of the opinion that this appeal must be dismissed with costs. In the circumstances, it is not necessary for us to rule on the issue of mandamus, which Rouleau J. discussed in obiter.

“Robert Décary”

Certified true translation

Michael Palles

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET:                                                                              A-47-06

APPEAL FROM AN ORDER BY THE HONOURABLE MR. JUSTICE ROULEAU OF THE FEDERAL COURT, DATED JANUARY 4, 2006, IN DOCKET NO. T-430-05.

STYLE OF CAUSE:                                                              9058-3656 QUEBEC INC. ET AL.

                                                                                                v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS ET AL.

PLACE OF HEARING:                                                        Montréal, Quebec

DATE OF HEARING:                                                          November 6, 2006

REASONS FOR ORDER BY:                                             DESJARDINS J.A.

                                                                                                DÉCARY J.A.

                                                                                                PELLETIER J.A.

DELIVERED FROM THE BENCH BY:                            DÉCARY J.A.

APPEARANCES:

SOLICITORS OF RECORD: