Décary
J.A.:
Subsection
68(1)
of
the
Customs
Act
as
it
read
prior
to
December
1995,
required
that
an
appeal
of
a
decision
of
the
Canadian
International
Trade
Tribunal
be
made
with
leave
of
a
judge
of
the
Trial
Division
of
the
Federal
Court
within
ninety
days
after
the
date
the
decision
was
made.
That
provision,
which
has
been
interpreted
on
many
occasions
by
this
Court,
was
consistently
found
to
impose
a
very
strict
deadline
which
the
Court
had
no
power
to
extend.
(See
Westclox
Canada
Ltd.
v.
Pyrotronics
of
Canada
Ltd.,
[1981]
2
F.C.
68
(Fed.
C.A.);
Deputy
Minister
of
National
Revenue
(Customs
&
Excise)
v.
Philips
Electronics
Ltd.
(1993),
151
N.R.
178
(Fed.
C.A.);
Deputy
Minister
of
National
Revenue
(Customs
&
Excise)
v.
Wilbur-
Ellis
Co.
of
Canada
(1995),
129
D.L.R.
(4th)
579
(Fed.
C.A.);
Dawe
v.
R.
(1994),
174
N.R.
1
(Fed.
C.A.).
In
the
case
at
bar,
the
decision
of
the
Tribunal
was
rendered
on
June
8,
1995.
The
Appellant
applied
to
the
Trial
Division
for
leave
to
appeal
on
August
10,
1995.
Joyal
J.
denied
the
leave
to
appeal
on
August
24,
1995.
The
Appellant
filed
its
notice
of
appeal
in
this
Court
on
August
30,
1995.
Soon
afterwards,
that
is,
on
September
6,
1995,
the
ninety
day
time
period
mandated
by
the
legislation
for
filing
an
appeal
expired.
The
appeal
languished
until
November
4,
1997
when
the
Court
issued
a
show
cause
Order.
Clearly,
therefore,
even
if
the
Court
were
to
allow
the
appeal
from
the
Motions
Judge’s
Order
and
grant
leave
to
appeal
the
Tribunal’s
decision,
the
Appellant
would
be
outside
the
ninety
day
period
mandated
to
file
its
appeal
and
the
Court
would
have
no
power
to
grant
an
extension
of
time.
The
appeal
could
no
longer
serve
any
useful
object.
However,
counsel
for
the
Appellant
relied
at
the
hearing
on
subsection
68(1)
of
the
Act
as
amended
on
December
5,
1995
by
subsection
20(1)
of
an
Act
to
amend
the
Customs
Act
(42-43-44
Eliz.II,
ch.
41).
The
amendment
was
deemed
by
subsection
115(2)
of
the
amending
act
to
have
come
into
force
on
June
13,
1995.
The
amended
subsection
relieves
an
appellant
from
the
obligation
to
seek
leave
to
appeal
and
confers
on
the
Appeal
Division
of
the
Federal
Court
jurisdiction
to
hear
the
appeal.
Thus,
counsel
argues,
the
proceedings
in
this
Court
were
pending
at
the
time
the
new
provisions
came
into
force
and
either
the
application
for
leave
to
appeal
to
the
Trial
Division
filed
on
August
10,
1995,
or
the
notice
of
appeal
of
the
Order
of
the
Motions’
Judge
denying
that
application,
filed
in
this
Court
on
August
30,
1995,
which
were
both
filed
before
the
expiry
of
the
ninety
day
period,
should
be
deemed
to
be
a
notice
of
appeal
filed
in
due
course
in
this
Court
under
the
new
scheme.
Counsel
relied
on
paragraphs
44(c)
and
(d)
of
the
Interpretation
Act,
which
read
as
follows:
44.(c)
every
proceeding
taken
under
the
former
enactment
shall
be
taken
up
and
continued
under
and
in
conformity
with
the
new
enactment
in
so
far
as
it
may
be
done
consistently
with
the
new
enactment;
44.(d)
the
procedure
established
by
the
new
enactment
shall
be
followed
as
far
as
it
can
be
adapted
thereto
(i)
in
the
recovery
or
enforcement
of
fines,
penalties
and
forfeitures
imposed
under
the
former
enactment,
(ii)
in
the
enforcement
of
rights,
existing
or
accruing
under
the
former
enactment,
and
(iii)
in
a
proceeding
in
relation
to
matters
that
have
happened
before
the
repeal;
In
our
view,
the
best
the
Appellant
can
draw
from
these
provisions
of
the
Interpretation
Act
-
assuming
them
to
be
applicable
in
the
circumstances
and
where
an
appeal
as
of
right
is
substituted
to
an
appeal
on
leave
-
is
that
its
ninety
day
period
was
governed
by
two
sets
of
rules,
one,
from
June
8,
1995
(date
of
the
decision
of
the
Tribunal)
to
June
13,
1995
(date
of
the
retroactive
coming
into
force
of
the
December
5,
1995
amendment),
the
other,
from
December
6,
1995
to
some
eighty-five
days
later,
i.e.
some
time
in
March,
1996.
We
are
prepared
to
accept,
solely
for
the
sake
of
the
argument,
that
the
period
between
June
13,
1995
and
December
5,
1995
cannot
be
opposed
to
the
Appellant.
The
Appellant,
therefore,
had
ample
opportunity
before
the
presumed
expiry
date
in
March,
1996,
to
file
a
notice
of
appeal
in
this
Court
under
the
new
provisions
of
the
Act
or
at
the
very
least
to
seek
directions
from
this
Court
as
to
what
should
be
done
with
respect
to
the
proceedings
that
were
then
pending.
The
Appellant
failed
to
take
advantage
of
that
opportunity.
It
cannot
now
ask
the
Court
to
condone
a
failure
or
omission
to
act
which,
in
addition,
would
have
the
effect
of
defeating
the
clear
purpose
of
the
legislation,
under
the
old
scheme
as
well
as
under
the
new
one,
to
put
an
end
to
litigation
at
the
earliest
possible
moment.
The
appeal
will
therefore
be
quashed,
with
costs
against
the
Appellant.
Appeal
quashed.
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