Best Buy – Federal Court of Appeal finds that CITT accorded insufficient deference to WCO opinions

Brown cow reasoning occurs when a decision is distinguished on the basis that it involved a brown cow rather than a black cow.

S. 11 of the Customs Tariff Act provides that, in interpreting headings and subheadings in the Customs Tariff, “regard shall be had” to opinions of the World Customs Organization. Near JA found that the CITT essentially used brown cow reasoning in not following two WCO opinions and instead following an earlier decision of the Board. He stated:

Having “regard” … entails that the Tribunal should respect WCO opinions unless there is “sound reason” to do otherwise.

He sent the classification matter back for a fresh hearing.

Neal Armstrong. Summary of Canada (Attorney General) v. Best Buy Canada Ltd., 2019 FCA 20 under Customs Tariff Act, s. 11.