[1] The Commissioner is appealing a decision of the Canadian International Trade Tribunal (CITT) as to the classification, for customs tariff purposes, of battery packs for power tools imported by Black & Decker Canada Inc. between January 1998 and December 2000. The CITT agreed with Black & Decker that the items in question are classified as "parts" of "electro-mechanical tools for working in the hand, with self-contained electric motor" (tariff heading 8508), rather than nickel-cadmium electric accumulators (tariff heading 8507), as contended by the Commissioner (CITT Appeal No. AP-2002-116).

[2] It is undisputed that the standard of review of the CITT's interpretation of the customs tariff, and its application to the facts of the case, is reasonableness. That means that the decision of the CITT must stand unless it is clearly wrong or, after a somewhat probing examination, it is not supported by the reasons given (see Star Choice Television Network Inc. v. Canada (Customs and Revenue Agency), 2004 FCA 153, leave to appeal dismissed, [2004] S.C.C.A. No. 276 (QL), and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247).

[3] The CITT interpreted the applicable provisions of the customs tariff, and in particular the explanatory notes to Section XVI, as requiring first a determination as to whether the items in question could be classified under heading 8507 as electric accumulators. If not, then consideration would have to be given to heading 8508.

[4] The CITT found as fact that the items are battery packs composed of a combination of multiple cells configured as a battery, nickel-cadmium chemistry, and a roughly rectangular shape. They incorporate a fuse, and a plastic housing fitted to the batteries and designed to enable the power pack to interface physically and electrically with the tools to which they provide power.

[5] The CITT considered that the fuse and the plastic housing distinguished the items in issue from the description in the explanatory note to heading 8507. On that basis, the CITT found them to be an assembly of components, only one of which is an electric accumulator, and held that such an assembly falls outside the category for electric accumulators. We are unable to conclude that the CITT's analysis on this point is unreasonable.

[6] Nor are we persuaded that the CITT was unreasonable in providing no explanation as to why it declined to follow the WCO compendium opinion of November, 2002, relating to battery packs for cell phones, as that opinion on its face deals with a different product and does not appear to involve the points in issue in this case.

[7] The CITT went on to consider whether the items in issue are parts of particular tools, and found that they were. That conclusion is based on the findings of fact at paragraph 33 of the decision, and Note 2(b) of the Explanatory Notes to Section XVI. The CITT noted that the items are suitable principally for use with tools of the kind that fall within heading 8508. On that basis, the CITT classified the items as "parts" within subheading 8508.90.90. Notwithstanding the able submissions of counsel for the Commissioner, we are not persuaded that the CITT's decision on this point is unreasonable.

[8] This appeal will be dismissed with costs.

"K. Sharlow"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-33-05

STYLE OF CAUSE: THE COMMISSIONER OF THE CANADA CUSTOMS & REVENUE AGENCY v. BLACK & DECKER CANADA INC.

PLACE OF HEARING: OTTAWA, ONTARIO

DATE OF HEARING: NOVEMBER 15, 2005

REASONS FOR JUDGMENT

OF THE COURT: DÉCARY, EVANS & SHARLOW JJ.A.

RENDERED FROM THE

BENCH BY: SHARLOW J.A.

APPEARANCES:

Mr. Richard Casanova

FOR THE APPELLANT

Mr. Michael Kaylor

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. John H. Sims, Q.C.

Deputy Attorney General of Canada

Ottawa, Ontario

FOR THE APPELLANT

LAPOINTE ROSENSTEIN

Montreal, Quebec

FOR THE RESPONDENT

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Canada (Customs and Revenue Agency) v. Black & Decker Canada Inc., 2005 FCA 384

Citations2005 FCA 384

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2005 FCA 384