Entrelec Inc. v. Canada (Commissioner of the Canada Customs and Revenue Agency), 2004 FCA 159

Date: 20040419

Docket: A-270-03

Citation: 2004 FCA 159

CORAM:        DESJARDINS J.A.

NOËL J.A.

NADON J.A.

BETWEEN:

                                                               ENTRELEC INC.

                                                                                                                                            Appellant

                                                                           and

                                   COMMISSIONER OF THE CANADA CUSTOMS

                                                          & REVENUE AGENCY

                                                                                                                                        Respondent

                                           Heard at Montréal, Quebec, on April 19, 2004

                     Judgment delivered from the Bench at Montréal, Quebec, on April 19, 2004

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

Date: 20040419

Docket: A-270-03

Citation: 2004 FCA 159

CORAM:        DESJARDINS J.A.

NOËL J.A.

NADON J.A.

BETWEEN:

                                                               ENTRELEC INC.

                                                                                                                                            Appellant

                                                                           and

                                   COMMISSIONER OF THE CANADA CUSTOMS

                                                          & REVENUE AGENCY

                                                                                                                                        Respondent

                                     REASONS FOR JUDGMENT OF THE COURT

                      (Delivered from the Bench at Montréal, Quebec, on April 19, 2004)

NOËL J.A.

[1]                This is an appeal pursuant to section 68 of the Customs Act from a decision of the Canadian International Trade Tribunal (CITT) rendered March 17, 2003, in appeal number AP-2000-051.

[2]                By a decision rendered September 4, 2000 (2000, 261 N.R. 27), this Court upheld an earlier decision rendered by the CITT in the same matter insofar as it had held that the expression "for use in", found in Code 2101 of Schedule II of the Customs Tariff meant "actual use".

[3]                However, as there was before the CITT some evidence of actual use, which appeared to have gone unnoticed, and as the Court was unable to ascertain the extent to which such use allowed for a conclusion that the requirements of Code 2101 had been met, the matter was sent back for a new adjudication on this narrow point.

[4]                In compliance with this order, the CITT proceeded to reconsider all the evidence before it and rendered a second decision on March 17, 2003, by which it allowed the appellant's appeal to the extent of 14% of the total value of the imported goods.

[5]                The appellant now appeals this second decision. It argues that the CITT erred in not finding, based on the evidence, that a greater proportion of actual use had been established.

[6]                We are satisfied that what the appellant asks is that we re-weigh the evidence and come to a different conclusion as to the portion of the subject goods which qualified.

[7]                In our respectful view, the evidence before the CITT allowed for the decision that it reached on this point and as this decision flows from a pure finding of fact, it is immune from appellate review by reason of section 68 of the Customs Act (see Canada (Deputy Minister of National Revenue) v. Mattel Inc. [2001] 2 S.C.R. 100, at paragraph 26; Dr. Q v. College of Physicians and Surgeons of British Columbia [2003] 1 S.C.R. 226 at paragraphs 25 and 26).

[8]                The appeal will therefore be dismissed with costs.

                 "Marc Noël"                                                                                                                                              J.A.

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                             A-270-03

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

PLACE OF HEARING:                                       Montréal, Quebec

DATE OF HEARING:                                         April 19, 2004

REASONS FOR JUDGMENT:                          NOËL J.A.

CONCURRED IN BY:                                        DESJARDINS J.A.

NADON J.A.

DATED:                                                                April 19, 2004

APPEARANCES:

SOLICITORS OF RECORD: