MTD Products Limited v. The Tariff Board of Canada Et Al., [1987] 1 CTC 84

Dubé, J:—This motion (heard all day yesterday) is for a writ of prohibition restraining the Tariff Board from holding a hearing to reconsider its decision dated September 19, 1986 in Reference/Appeal No. 2294. The Board hearing is to be held tomorrow, December 11, 1986. Time being of the essence, I cannot review in these reasons all the arguments and canvass all the jurisprudence presented by the several parties who appeared in this matter. I propose therefore to limit myself to a brief presentation of the essential facts, an analysis of the principles involved and my conclusions.

Reference/Appeal No. 2294 dealt with the proper tariff classification of various self-propelled power lawn mowers. The reference in question pursuant to subsection 49(1) of the Customs Act* [1] was sent to the Board by the Deputy Minister in his letter dated April 4, 1985. In his letter, the Deputy Minister raised two questions. Firstly, whether specific machines identified in Appendix "A” are integrated power lawn mowers classified under tariff item 42505-1, or whether they are tractors classified under tariff item 40938- 1. Secondly, he asked the Board to identify the criteria which were considered in arriving at its conclusion.

After 18 days of hearing the Board released a formal decision and written reasons on September 19, 1986. The Board’s decision reads as follows:

Decision of the Board

The Board concludes that the criteria enunciated in Appeal No. 795 are sufficient to enable the appropriate classification of the goods listed in this reference as well as similar machines. The Board also finds there was not sufficient evidence placed before it to enable it to classify properly each and every machine listed in Appendix A on an individual basis. Accordingly, the Board refers the matter back to the Deputy Minister for appropriate action.

In the last paragraph of the reasons for decision, the Board concludes as follows:

The Board, after careful consideration of the evidence, concludes that the criteria enunciated in Appeal No. 795 supra, are sufficient to enable the appropriate classification of the goods listed in this reference as well as similar machines. The criteria established in that appeal have stood the test of time since its declaration on September 20, 1966 and the Board does not believe there is any sound basis for expanding the criteria beyond those already in existence in order to accommodate the goods in question. At the same time, the Board finds that there was insufficient evidence placed before the Board that would enable it to classify properly each and every machine listed in Appendix "A’ on an individual basis. The Board therefore is not prepared to respond to such a request by the Deputy Minister at this time and refers the matter back to him for appropriate action.

On October 2, 1986 the solicitor for one of the intervenants, Canadiana Outdoor Products Inc., wrote to the Tariff Board and requested a “clarification” of its decision. The Secretary of the Board replied on October 23, 1986 that it was prepared to receive and set down for hearing on December 11, 1986 a formal application requesting it to reconsider the terms of its decision, provided notices were filed and served by registered mail not later than November 10, 1986. At the time the Board had already been put on notice by the Department of Justice that it had no further jurisdiction to hold such a re-hearing.

Much was made of the fact that the formal notice of application was filed on November 10 and mailed on that same date, with the result that the parties did not receive their notice on or before November 10. I do not feel, however, that any prejudice was suffered by any of the parties involved and I will not therefore rest my decision on whether or not service by registered mail is effected on the day a notice is so mailed or on the day the notice is received.

It was also alleged, on the part of the applicant, that the Board was biased, or otherwise violated principles of natural justice, or did not act fairly in its procedure. In my view, those allegations are unfounded.

An argument was advanced by one of the respondents that the decision of the Board was not a “decision”, but an “opinion” under section 49 of the Customs Act. Pursuant to subsection 49(2) a reference under that section is deemed to be an appeal to the Board and under the scheme of the Act is a decision subject to an appeal to the Federal Court. It was also alleged that the decision of the Board was purely administrative and not quasi-judicial. Even counsel for the Board did not accept that.

On November 12, 1986 a telex was sent by the solicitor for the applicant (“MTD”) to the Secretary of the Board inquiring as to what was to be heard on December 11, 1986. On November 21, 1986 the latter informed the solicitor that the hearing would relate only to jurisdiction and that no arguments would be heard concerning the merits of the proposed reconsideration. That position was confirmed by the Board in a letter dated November 20, 1986. However, on November 29, 1986, the Secretary of the Board wrote again informing the solicitor that the Board had changed its position as follows:

I am now directed to inform you that on the hearing of the applications for clarification of the Board’s Decision and Reasons for Decision on December 11 next, the Panel will expect to hear argument as to whether the Board has jurisdiction and authority to reconsider the matter, whether grounds exist for doing so and as to the appropriateness of any remedy suggested, all as set out in the Board’s letter of October 23.

In a nutshell, the contention of the applicant MTD, which is shared by the Deputy Minister of National Revenue, is that the Board has no jurisdiction to reconsider its own decision. I share that view.

At the outset, it must be pointed out that the decision in question of September 19, 1986 was formally published in the Canada Gazette on November 1, 1986 pursuant to section 9 of the Tarrif Board Act* [2] which stipulates that the Board’s decision must be so published forthwith. Section 49 of the Customs Act (under which the reference was made) incorporates sections 47 and 48 of that Act. Subsection 47(3) provides that an order of the Board is “final and conclusive subject to further appeal as provided in section 48”. And it is axiomatic that there must be finality in judgments.

Reference was made by the other parties to Rule 337 of the Federal Court Act and more particularly to paragraphs 337(5) and 337(6) which constitute what is known as the “Slip Rule”. The two paragraphs read as follows:

337 (5) Within 10 days of the pronouncement of judgment under paragraph (2)(a), or such further time as the Court may allow, either before or after the expiration of that time, either party may move the Court, as constituted at the time of the pronouncement, to reconsider the terms of the pronouncement, on one or both of the following grounds, and no others:

(a) that the pronouncement does not accord with the reasons, if any, that may have been given therefor;

(b) that some matter that should have been dealt with has been overlooked or accidentally omitted.

(6) Clerical mistakes in judgments, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court without an appeal.

In fact, the solicitor for the party requesting the clarification used the language of subparagraphs 337(5)(a) and (b) in his application to the Board. Counsel for the respondents did not argue that there were clerical mistakes or accidental slips, but that something more fundamental had taken place, namely that there was ambiguity in the decision, so much so that the decision was subject to different interpretations by different parties.

My first reaction is that the Federal Court Slip Rule does not apply to the Tariff Board and, even if it did, it would not allow for the type of reconsideration or clarification which the respondents seek. The Board has no rules and must therefore govern itself according to the principles of the common law in the matter.

At common law, once an order or judgment is released, the court retains only the jurisdiction necessary to correct accidental clerical mistakes or to deal with a matter inadvertently omitted.f [3] That principle applies to quasijudicial tribunals as well as to courts.f [4] Boards as such have no inherent power to reconsider their own decision and cannot do so unless there is a provision in the Act creating the Board which expressly provides for it. There is no such provision in either the Customs Act or the Tariff Board Act.

Having thus found that the Board has no power, either inherent or statutory, to reconsider its own decision, I must now look at the reasons for decision and the decision of the Board and see whether or not the decision accords with the reasons, or whether some matters have been inadvertently omitted.

At the outset of its reasons for decision, the Board reproduces the two questions put by the Deputy Minister. Then, it deals with both and refers the matter back to the Deputy Minister for appropriate action. As pointed out by some respondents, the Board does not spell out what the Deputy Minister ought to do. However, that is for the Deputy Minister to decide and not for the interpretation of the Court.

In its decision the Board very succinctly reproduces the conclusions of its reasons for decision. Ambiguity and lack of clarity there might be, but I cannot find that the decision is not in accord with the reasons or that certain matters were inadvertently omitted. It may very well be that neither the reasons nor the decision will solve the problems apprehended by the respondents and that both documents do not answer the question to the satisfaction of the Deputy Minister, but that was not done accidentally or inadvertently or unintentionally by the Board. The decision of the Board reflects the reasons for that decision however unsatisfactory that situation may be to the respondents.

Under the circumstances a writ of prohibition will issue prohibiting the Tariff Board from holding a hearing to reconsider its decision dated September 19, 1986 in Reference/Appeal No. 2294. Costs to the applicant.

Application granted.