Docket: A-32-15
Citation:
2016 FCA 135
|
CORAM:
|
DAWSON J.A.
NEAR J.A.
DE MONTIGNY J.A.
|
|
BETWEEN:
|
|
BSH HOME
APPLIANCES LTD.
|
|
Appellant
|
|
and
|
|
THE PRESIDENT
OF THE CANADA BORDER SERVICES AGENCY
|
|
Respondent
|
REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
For reasons reported as Appeal No. AP-2013-057,
the Canadian International Trade Tribunal found that the goods in issue, seven
models of Bosch washers and dryers, were not entitled to duty-free treatment
under tariff item No. 9979.00.00 because they were not goods specifically
designed to assist persons with disabilities in alleviating the effects of
those disabilities.
[2]
Tariff item No. 9979.00.00 provides:
Goods specifically designed to assist
persons with disabilities in alleviating the effects of those disabilities, and
articles and materials for use in such goods.
[3]
On this appeal from the decision of the Tribunal
the appellant advances a number of asserted errors on the part of the Tribunal.
[4]
The appellant first argues that the Tribunal’s
interpretation of tariff item No. 9979.00.00 is “without
justification” and unreasonable because, by having regard to standards set
out in the Americans with Disabilities Act (ADA), the Tribunal adopted a
test not authorized by law. More specifically, the appellant submits that the
Tribunal erred when it adopted a test that led it to compare the specific
design characteristics of the goods against the ADA accessibility standards.
[5]
I disagree. The Tribunal referred to the ADA
standards because the appellant’s Manager-Technical Services gave evidence, and
the appellant submitted that the standards were relevant to the Tribunal’s
assessment of the design characteristics of the goods (reasons, at paragraph
56). The reasons of the Tribunal demonstrate that it was not substituting the
ADA standards for the “specifically designed”
test mandated by the Tariff. Instead, the Tribunal accepted the appellant’s
evidence and submission that the ADA standards, as generally recognized
accessibility standards, were relevant for the “purposes
of the present appeal” when assessing the design characteristics of the
goods (reasons, at paragraph 56).
[6]
The appellant has not shown that it was
unreasonable for the Tribunal to view as relevant standards intended to ensure
household items are accessible and usable by individuals with disabilities.
[7]
Next, the appellant argues that the Tribunal
made a palpable and overriding error when it drew the inference that, without a
pedestal, the goods were not ADA compliant “in relation
to lower door height, high forward reach and high side reach” (reasons,
paragraph 67). The appellant acknowledges that without a pedestal the goods
fail the lower door height standard, but submits that the goods do not fail the
other two standards.
[8]
Assuming, without deciding, that the Tribunal
erred in its interpretation of the high forward reach and high side reach
standards, this does not render its decision unreasonable. Without the pedestal
the lower door height standard was not met. Accordingly, even if the other two
standards were satisfied, one of the ADA standards was not satisfied and the goods
were not ADA compliant. Therefore, any incorrect inference drawn by the
Tribunal did not undermine its analysis that the goods were not ADA compliant.
[9]
Moreover, subsection 68(1) of the Customs
Act, R.S.C. 1985, c.1 (2nd Supp.) restricts appeals from the
Tribunal to this Court to appeals on any question of law. The drawing of an
unsound inference is not an error of law.
[10]
The appellant also argues that the Tribunal
fettered its discretion by interpreting the “specifically
designed” test as being solely dependent on compliance with the relevant
ADA standards.
[11]
Again, I disagree. A decision-maker entitled to
exercise discretion in the course of its duties fetters its discretion when it
creates a standard practice and adheres to that practice instead of approaching
each exercise of discretion on a case-by-case basis, having regard to the
relevant evidence. In the present case, the Tribunal did not base its decision
on a standard practice without considering the facts of the case. It was the
appellant who submitted to the Tribunal that the ADA standards were relevant. As
noted above, the Tribunal was explicit that it accepted the ADA standards as only
relevant for “the purposes of the present appeal”.
[12]
Further, the Tribunal rejected without reference
to the ADA standards, the appellant’s argument that the goods were designed to
assist visually impaired persons. This argument was dismissed on the basis that
there was insufficient supporting evidence. This demonstrates that the Tribunal
did not equate the ADA standards with the “specifically
designed” test.
[13]
The appellant next argues that the Tribunal
erred by not stating whether all relevant ADA standards must be met, or whether
compliance with a single standard was sufficient. However, the appellant relied
on full, not partial, compliance with the relevant ADA standards as the basis
of its claim (see paragraphs 34 to 36 of the appellant’s brief before the
Tribunal and the direct examination of the appellant’s Manager- Technical
Services at pages 448 to 452 of the appeal book). Once the appellant failed to
demonstrate full compliance, the Tribunal was not required to consider partial
compliance.
[14]
In any event, the standard that was not adhered
to in this case, the lower height requirement, was an important and relevant
factor for the Tribunal because it affects the ability of disabled persons in
wheelchairs to use the goods. Failing this standard is a relevant factor when
determining whether the goods were “goods specifically
designed to assist persons with disabilities in alleviating the effects of
those disabilities”.
[15]
Finally, the appellant submits that the Tribunal
failed to consider evidence of design features it acknowledged accommodated
persons with disabilities, and gave no reasons for this failure.
[16]
I disagree that the Tribunal so erred. To the
extent the Tribunal did not address any particular design feature in its
reasons, the jurisprudence is well-settled that an administrative
decision-maker need not address every argument raised by the parties (Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, at paragraphs 16 and 25).
[17]
In sum, the Tribunal’s reasons are transparent and
intelligible and justified on the record before it. The decision falls within
the range of possible acceptable outcomes which are defensible in the light of
the evidence and the law.
[18]
It follows that I would dismiss the appeal with
costs.
"Eleanor R. Dawson"
“I agree
D.G. Near J.A.”
“I agree
Yves de
Montigny J.A.”
Email this Content