MACLEAN,
J.:—The
suppliant
here
is
a
wholesale
dealer
in
fruits
and
vegetables,
carrying
on
business
at
Toronto,
Ontario,
and
was
an
importer
of
such
products
from
the
United
States
at
the
time
material
here.
It
seeks
by
this
petition
of
right
to
recover
from
the
Crown
certain
sums
of
money
which
it
paid
as
customs
duties
upon
certain
importations
of
such
classes
of
goods
from
the
United
States,
and
which
payments
it
alleges
were
in
excess
of
any
properly
authorized
duties.
In
1930,
s.
43
of
the
Customs
Act
was
so
amended
as
to
read
as
follows:
«(1)
If
at
any
time
it
appears
to
the
satisfaction
of
the
Governor
in
Council
on
a
report
from
the
Minister
that
goods
of
any
kind
not
entitled
to
entry
under
the
British
Preferential
tariff
or
any
lower
tariff
are
being
imported
into
Canada
either
on
sale
or
on
consignment,
under
such
conditions
as
prejudicially
or
injuriously
to
affect
the
interests
of
Canadian
producers
or
manufacturers,
the
Governor
in
Council
may
authorize
the
Minister
to
fix
the
value
for
duty
of
any
class
or
kind
of
such
goods,
and
notwithstanding
any
other
provision
of
this
Act,
the
value
so
fixed
shall
be
deemed
to
be
the
fair
market
value
of
such
goods.
(2)
Every
order
of
the
Governor
in
Council
authorizing
the
Minister
to
fix
the
value
for
duty
of
any
class
or
kind
of
such
goods,
and
the
value
thereof
so
fixed
by
the
Minister
by
virtue
of
such
authority,
shall
be
published
in
the
next
following
issue
of
the
Canada
Gazette.’’
In
September
of
1930,
and
in
February
and
April
of
1931,
the
Governor
in
Council,
by
three
different
Orders
in
Council,
made
under
the
authority
of
the
said
section
43
of
the
Customs
Act,
authorized
the
Minister
of
National
Revenue
to
fix
the
value
for
duty
of
certain
mentioned
goods,
fruits
and
vegetables.
The
three
Orders
in
Council
were
similar
in
form
and
one,
which
I
quote
for
the
purpose
of
illustration,
was
as
follows:
‘“Whereas
the
Minister
of
National
Revenue
reports
that
carrots
are
being
imported
into
Canada
under
such
conditions
as
prejudicially
or
injuriously
to
affect
the
interests
of
Canadian
producers
thereof
;
Therefore
His
Excellency
the
Administrator
in
Council,
on
the
recommendation
of
the
Minister
of
National
Revenue,
and
under
the
authority
of
section
48
of
the
Customs
Act,
ch.
42,
R.S.C.,
1927,
and
amendments
thereof,
is
hereby
pleased
to
authorize
the
Minister
of
National
Revenue
to
fix
the
value
for
duty
of
the
above
mentioned
product,
notwithstanding
any
other
provisions
of
the
Customs
Act;
the
value
so
fixed
to
be
deemed
to
be
the
fair
market
value
thereof.’’
In
pursuance
of
the
authority
conferred
upon
the
Minister
of
National
Revenue
by
such
Orders
in
Council,
the
Minister
proceeded
from
time
to
time
to
fix,
in
writing,
the
value
for
duty
of
certain
named
goods,
in
the
case
of
fruits
and
vegetables
at
so
many
cents
per
pound,
and
this
would
be
communicated
to
customs
and
excise
officers
throughout
Canada,
by
what
are
called
‘‘
Appraisers’
Bulletins’’
signed
by
the
Commissioner
of
Customs,
or
the
Assistant
Commissioner
of
Customs.
From
time
to
time
the
Minister
would
order,
in
writing,
that
a
value
fixed
for
duty
by
him
on
certain
named
goods
would
be
cancelled
on
a
future
date
named;
this
would
be
done
without
any
authorization
of
the
Governor
in
Council.
Later,
and
without
any
renewed
authorization
of
the
Governor
in
Council,
the
Minister
would
again
fix
the
value
for
duty
of
the
same
goods,
presuming
to
act
under
the
authority
of
one
or
other
of
the
Orders
in
Council
which
I
have
mentioned.
On
November
3,
1931,
there
was
issued
to
customs
and
excise
officers,
at
the
instance
of
the
Commissioner
of
Customs,
an
Appraisers’
Bulletin,
advising
them
‘‘that
in
computing
the
value
for
duty
of
articles
upon
which
the
value
has
been
fixed
by
the
Minister,
under
section
43
of
the
Customs
Act,
such
values
are
to
be
considered
as
fixed
in
terms
of
the
currency
of
the
country
of
export,
to
be
advanced
by
the
amount
of
the
premium
at
the
rate
of
exchange
current
at
the
date
of
shipment.
If
the
selling
price
to
the
purchaser
in
Canada
in
the
currency
of
the
country
of
export,
or
its
equivalent
in
Canadian
currency
at
the
rate
of
exchange
current
at
the
date
of
shipment,
is
less
than
the
value
for
duty
as
computed
above,
special
or
dumping
duty
is
applicable.”
This
Bulletin
was
not
expressed
to
be
issued
under
the
authority
of
any
Order
in
Council
passed
under
s.
43
of
the
Customs
Act,
and
it
does
not
appear
that
the
same
was
authorized
by
the
Minister,
at
least
there
is
no
evidence
of
any
such
authorization.
The
obvious
effect
of
this
ruling,
when
American
funds
were
at
a
premium,
was
to
add
to
the
duty
value
of
importations
from
the
United
States,
as
fixed
by
the
Minister
under
s.
43
of
the
Customs
Act.
This
is
illustrated
in
the
Bulletin
where
it
is
pointed
out
that
if
the
fair
market
value
and
the
selling
price
in
the
country
of
export
were
$100,
and
the
value
fixed
by
the
Minister
were
$150,
and
the
premium
on
American
funds
were
10
per
cent,
the
value
for
duty
would
be
$150
plus
$10
per
cent,
$165.
In
the
calculation
of
what
is
known
as
the
“dumping
duty’’
the
matter
of
the
rate
of
exchange
between
the
importing
and
the
exporting
country
would
be
of
importance
to
importers
but
I
do
not
think
any
useful
purpose
would
be
served
by
any
reference
to
that
phase
of
the
case.
It
was
the
submission
of
the
suppliant
that
the
values
for
duty
fixed
by
the
Minister
in
his
several
orders
were
values
fixed
in
pursuance
of
s.
43
of
the
Customs
Act,
and
that
the
Departmental
ruling
to
the
effect
that
such
values
were
to
be
considered
as
fixed
in
terms
of
the
currency
of
the
country
of
export,
and
that
the
values
fixed
by
the
Minister
were
‘‘to
be
advanced
by
the
amount
of
the
premium
at
the
rate
of
exchange
current
at
the
date
of
shipment,’’
was
in
effect
the
imposition
of
an
additional
tax
upon
importations,
unauthorized
by
the
Customs
Act
or
any
other
Act,
or
by
the
Minister
of
National
Revenue,
and
was
an
unauthorized
ruling
of
the
Commissioner
of
Customs.
The
suppliant,
being
obliged
to
receive
prompt
possession
of
its
importations
of
fruits
and
vegetables
from
the
United
States
paid
the
additional
duties
exacted
by
reason
of
the
issue
of
the
Departmental
Bulletin
in
question,
now
claims
that
it
paid
duties
in
excess
of
those
properly
exigible
and
by
its
petition
seeks
to
recover
back
such
excess
payments
on
the
ground
that
such
Bulletin
issued
without
lawful
authority.
It
was
agreed
by
counsel
that
if
I
decided
that
the
addition
of
the
premium
in
the
exchange
rate
referable
here,
to
the
value
of
duty
fixed
by
the
Minister,
were
unauthorized,
then
the
suppliant
would
be
entitled
to
recover
the
sum
of
$1,449.49,
which
amount
is
to
be
found
in
an
exhibit
put
in
evidence.
More
than
one
point
was
raised
by
Mr.
Plaxton
in
his
attack
against
the
validity
of
the
imposition
of
the
additional
or
excess
duties
paid
by
his
client
by
virtue
of
the
ruling
of
the
Department
of
National
Revenue
that
the
value
for
duty
fixed
by
the
Minister
was
to
be
treated
as
fixed
in
the
terms
of
the
currency
of
the
country
of
export,
and
that
the
values
for
duty
fixed
by
the
Minister
in
respect
of
the
suppliant’s
importations
were
to
be
advanced
by
the
amount
of
the
premium
on
United
States
funds
current
at
the
date
of
shipment.
A
very
formidable
point
of
attack
made
at
the
outset
of
the
case
was
that,
in
some
instances,
the
values
for
duty
fixed
by
the
Minister,
and
cancellations
of
the
same,
were
not
published
in
the
Canada
Gazette.
However,
this
point
was
not
in
the
end
pressed,
because,
I
assume,
Mr.
Plaxton
was
of
the
view
that
his
legal
position
was
otherwise
so
strong
that
he
thought
it
unnecessary
to
rely
upon
that
ground.
I
need
not
therefore
pause
to
discuss
that
point.
Another
point
raised
by
Mr.
Plaxton
was
that
once
the
Minister
fixed
the
value
for
duty
upon
the
articles
or
goods
specifically
mentioned
in
each
Order
in
Council
he
was
without
authority
to
fix
again,
at
a
subsequent
date,
the
duty
value
of
the
same
articles
or
goods,
after
a
cancellation
of
the
values
fixed
by
him
in
the
first
instance,
that
is
to
say,
that
if
the
Minister
once
fixed
the
value
for
duty
of
specific
articles
or
goods,
under
the
authority
of
an
Order
of
the
Governor
in
Council,
and
later
cancelled
the
same—which
was
frequently
done—
it
would
require
the
authority
of
another
Order
in
Council
to
clothe
the
Minister
with
the
authority
to
fix
again
the
value
for
duty
of
the
same
goods.
There
is
much
force
in
such
a
contention.
It
is
conceivable
that
at
the
date
when
the
Minister
assumed
to
fix,
for
the
second
or
third
time,
the
value
for
duty
of
specific
goods,
the
Governor
in
Council
might
entertain
a
different
view
about
the
subject-matter
from
what
he
did
when
an
Order
in
Council
was
passed
in
respect
of
the
same
goods.
This
ground
of
attack
was
met
by
Mr.
Robertson
by
saying
that
the
Minister
once
having
been
given
the
authority
to
fix
the
value
for
duty
of
certain
named
goods
that
authority
stood
until
the
same
was
appropriately
repealed,
and
that
the
Minister
was
free
to
cancel
from
time
to
time
any
values
fixed
by
him,
and
to
restore
the
same
either-modified
or
unmodified.
It
will
be
remembered
that
the
authorization
of
the
Governor
in
Council
to
the
Minister
was
not
expressed
as
being
applicable
to
‘‘a
class
or
kind
of
goods,’’
but
to
specifically
named
goods
of
"‘a
class
or
kind,”
that
is,
certain
named
vegetables
or
fruits,
not
all
fruits
or
vegetables.
I
am
inclined
to
think
that
from
the
practical
viewpoint
much
is
to
be
said
for
Mr.
Robertson’s
contention,
and
perhaps
it
would
have
been
unanswerable
if
the
Orders
in
Council
had
been
expressed
in
more
general
terms.
When
power
is
granted
to
the
Governor
in
Council
to
authorize
a
Minister
of
the
Crown
to
fix
the
value
of
imported
goods
for
duty
purposes,
which
in
the
result
is
in
the
nature
of
a
tax,
it
is
imperative
that
such
authorization
be
very
strictly
construed.
There
can
be
no
taxation
by
the
Government
of
Canada
except
under
the
authority
of
an
Act
of
the
Parliament
of
Canada,
but
if
the
Parliament
of
Canada
vests
in
the
Governor
in
Council
the
power
to
authorize
a
Minister
of
the
Crown
to
impose
a
tax
in
the
form
of
a
duty,
upon
an
importer,
that
authority
must
be
exercised
strictly
within
the
limits
of
the
power
granted.
While
I
am
rather
inclined
to
accept
the
view
advanced
by
Mr.
Plaxton,
that
the
Minister
having
once
exercised
his
authority
to
fix
the
value
of
specific
articles
for
duty
purposes
it
would
require
fresh
authorization
from
the
Governor
in
Council
to
fix
another
value
at
another
period,
if
the
value
earlier
fixed
had
been
cancelled,
yet,
I
do
not
propose
to
express
any
definite
opinion
upon
the
point.
I
find
it
difficult
to
believe
that
it
was
ever
intended
by
the
legislature
to
grant
to
the
Governor
in
Council
the
power
to
confer
authority
upon
the
Minister
to
fix
the
value
for
duty,
to
cancel
the
same,
and
later
to
fix
another
value,
without
fresh
authorization.
The
point
is
an
extremely
difficult
one,
and
it
is
because
it
is
my
view
that
the
case
may
be
disposed
of
upon
another
ground
that
I
refrain
from
expressing
any
definite
opinion
upon
it.
I
turn
therefore
to
what
is
the
most
important
aspect
of
the
case,
that
is,
whether
s.
43
of
the
Customs
Act,
or
the
Orders
in
Council,
clothed
the
Minister
with
power
to
make
any
order
or
direction
to
the
effect
that
the
values
for
duty
fixed
by
him
were
to
be
considered
as
fixed
in
terms
of
the
currency
of
the
country
of
export.
Sec.
43
of
the
Customs
Act,
and
the
Orders
in
Council,
are
silent
altogether
upon
the
question
of
the
appreciation
of
the
currency
of
the
country
of
export,
or,
of
the
event
that
the
rate
of
exchange
between
the
exporting
country
and
Canada,
was
adverse
to
the
latter.
The
Customs
Act,
and
I
think
the
Customs
Tariff
Act,
had
already
provided
for
the
case
where
the
currency
of
the
country
of
export
was
substantially
depreciated,
and
one
can
readily
understand
the
reason
for
such
a
provision.
At
the
time
of
the
enactment
of
s.
43
the
American
dollar
and
the
Canadian
dollar
were
substantially
on
a
parity,
and
it
was
only
after
England
went
off
the
gold
standard
that
the
American
dollar
became
appreciated
in
terms
of
the
Canadian
dollar,
the
premium,
if
I
remember
correctly,
sometimes
reaching
over
20
per
cent,
which
of
itself
would
substantially
add
to
the
cost
of
any
dutiable
goods
purchased
in
the
United
States
for
export
to
Canada.
That
situation
or
state
of
facts
could
hardly
‘‘prejudicially
or
injuriously’’
affect
the
interests
of
Canadian
producers,
in
the
sense
contemplated
by
s.
43
of
the
Customs
Act.
See.
43
being
silent
about
the
question
of
appreciated
currency
in
the
country
of
export,
the
Orders
in
Council
being
equally
silent,
the
Customs
Act
having
provided
for
the
event
of
depreciated
currency
in
the
country
of
export,
I
have
no
difficulty
in
reaching
the
conclusion
that
it
was
never
intended
by
s.
43
to
empower
the
Governor
in
Council
to
authorize
the
Minister
to
direct
that
in
fixing
the
duty
value
of
certain
imported
goods,
such
values
were
to
be
treated
as
being
fixed
in
terms
of
the
currency
of
the
country
of
export.
It
is
plain,
I
think,
that
s.
43
was
designed
to
meet
the
contingency
of
unfavourable
marketing
conditions
in
Canada
for
certain
domestic
products,
a
situation
that
was
calculated
“prejudicially
or
injuriously
to
affect
the
interest
of
Canadian
produeers
or
manufacturers,’’
and
that
section
was
intended
to
give
the
Minister,
if
and
when
authorized
by
the
Governor
in
Council,
the
arbitrary
power
of
fixing
the
value
for
duty
of
imported
goods
of
the
same
class,
if
the
contingency
feared,
occurred
or
was
likely
to
occur.
If
he
exercised
that
authority
by
fixing
a
value
or
values
that
would
be
the
end
of
his
authorization,
and
to
that
he
could
not
add.
The
values
fixed
by
the
Minister,
were,
I
think,
expressed
in
terms
of
Canadian
currency,
and
nothing
else,
in
my
opinion,
was
ever
contemplated.
It
is
utterly
untenable,
I
think,
to
say
that
the
values
fixed
by
the
Minister
were
to
be
considered
as
fixed
in
terms
of
the
currency
of
the
country
of
export.
I
see
no
ground
for
thinking
that
the
legislature
ever
intended
to
give
power
to
the
Governor
in
Council,
or
to
the
Minister,
or
to
any
one,
to
expand
the
authority
expressed
in
s.
43,
contemplated
by
the
legislature.
There
does
not
seem
to
be
any
authority
for
saying
that
the
value
fixed
for
duty,
by
the
Minister,
was
to
be
treated
as
fixed
in
the
terms
of
the
currency
of
the
country
of
export,
when
the
rate
of
exchange
was
adverse
to
Canada.
It
is
very
significant
that
there
is
nO
mention
whatever
of
the
appreciation
or
depreciation
of
any
currency,
in
any
of
the
Orders
in
Council,
and
one
may
assume
that
this
was
not
accidental.
but
rather
due
to
a
strict
observance
of
the
language
of
s.
43
of
the
Customs
Act.
There
is
nothing
in
the
record
of
this
case
to
indicate,
so
far
as
I
can
find,
that
the
Minister
ever
directed
or
approved
of
any
Appraisers’
Bulletin
instructing
customs
and
excise
officers
that
the
value
of
any
goods
fixed
by
the
Minister
under
s.
43
was
“to
be
advanced
by
the
amount
of
the
premium
at
the
rate
of
exchange
current
at
the
date
of
shipment.’’
I
am
bound
to
assume
upon
the
evidence
before
me
that
the
Minister
never
made
such
a
direction,
or
even
approved
of
the
Appraisers’
Bulletin
issued
in
this
connection,
to
customs
and
excise
officers.
That
the
Commissioner
of
Customs
could
not
impose
taxation,
or
advance
the
value
of
goods
fixed
by
the
Minister
under
s.
43,
or
deal
in
any
way
with
the
subject
of
appreciated
currency
in
exporting
countries,
without
legislative
authority,
is
too
elementary
for
serious
discussion.
And
my
attention
has
not
been
called
to
any
authority
bestowing
such
a
power
upon
the
Commissioner
of
Customs.
The
remaining
question
for
decision
is
whether
or
not
the
suppliant
complied
with
the
requirements
of
s.
125
of
the
Customs
Act.
That
section
provides
that
‘‘although
any
duty
of
customs
has
been
overpaid,
or
although,
after
any
duty
of
customs
has
been
charged
and
paid,
it
appears
or
is
judicially
established
that
the
same
was
charged
under
an
erroneous
construction
of
the
law.
no
such
overcharge
shall
be
returned
after
the
expiration
of
three
years
from
the
date
of
such
payment,
unless
application
for
payment
has
been
previously
made.
’
The
suppliant,
I
think,
through
its
authorized
customs
broker,
made
claims,
orally
and
in
writing,
for
a
refund
of
the
alleged
excess
of
duties
paid
upon
the
goods
in
question.
And
in
fact
some
refunds
were
made
to
the
suppliant,
and
to
others,
I
understand.
There
came
a
time,
however,
when
the
National
Revenue
Department
definitely
decided
te
make
no
further
refunds
in
respect
of
such
cases
as
this,
and
accordingly
the
customs
authorities
at
Toronto
declined
even
to
receive
any
formal
application
for
a
refund.
The
suppliant’s
customs
broker,
I
am
quite
satisfied,
promptly
made
oral
claims
in
respect
of
every
importation
in
which
the
alleged
excess
duty
was
paid,
and
he
attempted
to
lodge
with
the
customs
authorities
at
Toronto
a
written
claim
in
respect
of
each
importation
and
payment,
in
the
form
usual
in
such
cases,
but
their
reception
was
declined,
which
one
ean
quite
understand
the
customs
authorities
at
Toronto
doing,
in
view
of
the
decision
of
the
Department
of
National
Revenue
not
to
entertain
any
further
claims
of
such
a
character.
The
written
and
formal
claims
to
refunds,
were,
physically
offered
to
the
customs
authorities
at
Toronto,
perhaps
not
wholly
complete,
but
they
would
at
the
moment
have
been
made
complete,
if
it
had
not
been
intimated
that
they
would
not
in
any
event
be
received
or
entertained.
I
do
not
think
there
is
any
substance
in
the
contention
of
the
Crown
to
the
contrary
upon
this
point.
There
will
therefore
be
judgment
for
the
suppliant
in
the
sum
of
$1,449.49,
and
costs
will
follow
the
event.
Judgment
accordingly.
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