Date: 20040227
Docket: A-93-03
Citation: 2004 FCA 81
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
EVANS J.A.
BETWEEN:
THE ATTORNEY GENERAL
OF CANADA
Appellant
and
BRECKNELL, WILLIS & CO. LTD.
Respondent
Heard at Vancouver, British Columbia on February 26, 2004.
Judgment delivered at Vancouver, British Columbia on February 27, 2004.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: DÉCARY, LÉTOURNEAU JJ.A.
Date: 20040227
Docket: A-93-03
Citation: 2004 FCA 81
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
EVANS J.A.
BETWEEN:
THE ATTORNEY GENERAL
OF CANADA
Appellant
and
BRECKNELL, WILLIS & CO. LTD.
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] This is an appeal on a question of law by the Attorney General of Canada pursuant to subsection 67(3) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) from a decision of the Canadian International Trade Tribunal, dated November 22, 2002. The question to be decided is whether the Tribunal erred in law when it classified goods imported by the respondent, Brecknell, Willis & Co. Ltd. ("Brecknell"), under Tariff Item No. 7604.29.20 of the Schedule to the Customs Tariff, as "other worked aluminium ... profiles of aluminium alloys".
[2] The goods in question are conductor rails and were imported to supply electricity to vehicles operating on the Skytrain Millenium Line in Vancouver. The Commissioner of the Canada Customs and Revenue Agency had classified the conductor rails under the residual Tariff Item No. 7616.99.90, "other articles of aluminium". The Tribunal allowed an appeal by Brecknell under subsection 60(4) of the Customs Act against the Commissioner's decision. However, the classification selected by the Tribunal had not been advanced by either of the parties. The Tribunal's decision is now under appeal to this Court.
[3] It is common ground that in order to establish that the Tribunal erred on a question of law in this case, the Attorney General must satisfy us that the Tribunal's application or interpretation of Tariff Item No. 7604.29.20 was unreasonable. The classification of goods under the Customs Tariff for duty purposes is of a highly technical nature and is more within the expertise of the Tribunal than the Court: Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, 2001 SCC 36">2001 SCC 36, at para. 32.
[4] Counsel for the Attorney General says that the Tribunal's decision was unreasonable because it lacked any basis in the evidence. He says that the Notes to Chapter 76 define "profiles" as "rolled, extruded, drawn, forged or formed products, coiled or not, of a uniform cross-section along their whole length ...". He argues that, since the conductor rails have holes drilled at their ends so that they can be joined together, they are not "of a uniform cross-section along their whole length". Some cross-sections will have a hole in them and other will not. Therefore the conductor rails do not fall within the definition of "profiles" for the purpose of Tariff Item No. 7604.29.20.
[5] I am not satisfied on the basis of the material before the Court that the Tribunal's decision was unreasonable because goods that are not drilled from one end to the other cannot be "of a uniform cross-section along their whole length".
[6] First, counsel did not provide a definition of "uniform cross-section" in the English text or of "une section transversale constante" in the French text. Counsel did not adduce evidence to establish that "cross-sections" of the conductor rails are only "uniform" for the purpose of Tariff Item No. 7604.29.20 if each "slice" is identical in every respect, as opposed to simply having the same dimensions. The cross-sections of the conductor rails are of the same shape and dimension.
[7] Second, the Tribunal in its reasons referred to the Supplementary Notes of Chapter 76 which define the term "unworked" as meaning, in the context of profiles, "products which have not been subsequently worked after production (for example, not machined, drilled, punched, twisted, or crimped". The Tribunal concluded that, since the conductor rails have pre- drilled holes, they were not "unworked", and therefore could be characterized as "worked" under item 20 of subheading 7604.29.
[8] In other words, it could be said that the fact that aluminium profiles can be subsequently "worked" by drilling must mean that goods are not outside the definition of "profiles" merely because they have holes drilled in them. Thus, the presence of holes does not prevent the conductor rails from being "of a uniform cross-section along their whole length". I am not satisfied that this is an unreasonable reading of the relevant provisions. The Notes do not say that the goods must be drilled along their entire length to remain "profiles"
[9] For these reasons, I am of the view that the appellant has not discharged the burden of demonstrating that the Tribunal's conclusion that the conductor rails fall within 7604.29.90 is unreasonable. Accordingly, I would dismiss the appeal with costs.
(Sgd.) "John M. Evans"
J.A.
"I agree" (Sgd.) "Robert Décary"
J.A.
"I agree" (Sgd.) "Gilles Létourneau"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-93-03
STYLE OF CAUSE: Attorney General of Canada v
Brecknell, Willis & Co.Ltd.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 26, 2004
REASONS FOR JUDGMENT: EVANS J.A.
CONCURRED IN BY: DÉCARY, LÉTOURNEAU JJ.A.
DATED: February 27, 2004
APPEARANCES:
SOLICITORS OF RECORD:
Vancouver, BC
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