I.D. Foods Superior Corp. v. Canada (Minister of National Revenue), docket A-536-95

Date: 19980429

Docket: A-536-95

CORAM:          THE HONOURABLE MR. JUSTICE DENAULT

THE HONOURABLE MR. JUSTICE DÉCARY

THE HONOURABLE MR. JUSTICE LÉTOURNEAU

BETWEEN:

     I.D. FOODS SUPERIOR CORP.

     Appellant

     (Applicant)

    

     AND:

     THE DEPUTY MINISTER OF NATIONAL REVENUE

     FOR CUSTOMS & EXCISE

     Respondent

     (Respondent)

Heard at Montreal (Quebec) on Wednesday, April 29^th, 1998

JUDGMENT delivered at Montreal (Quebec) on Wednesday, April 29^th, 1998

REASONS FOR JUDGMENT BY:      DÉCARY, J.A.

Date: 19980429

Docket: A-536-95

CORAM:          THE HONOURABLE MR. JUSTICE DENAULT

THE HONOURABLE MR. JUSTICE DÉCARY

THE HONOURABLE MR. JUSTICE LÉTOURNEAU

BETWEEN:

     I.D. FOODS SUPERIOR CORP.

     Appellant

     (Applicant)

     AND:

     THE DEPUTY MINISTER OF NATIONAL REVENUE

     FOR CUSTOMS & EXCISE

         Respondent

     (Respondent)

     REASONS FOR JUDGMENT

     (Delivered from the Bench at Montreal,

     on Wednesday, April 29, 1998)

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 (F.C.A.); Minister of National Revenue (Customs and Excise) v. Philips Electronics Ltd. (1993), 151 N.R. 178 (F.C.A.); Wilbur-Ellis Co. of Canada Ltd. v. Deputy M.N.R., Customs & Excise (1995), 129 D.L.R. (4^th) 579 (F.C.A.); Dawe v. Minister of National Revenue (Customs and Excise) (1994), 174 N.R. 1 (F.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.

     Robert Décary

     J.A.

    

     FEDERAL COURT OF CANADA

     APPEAL DIVISION

Date: 19980429

Docket: A-536-95

BETWEEN:

     I.D. FOODS SUPERIOR CORP.,

     Appellant

     (Applicant)

     AND:

     THE DEPUTY MINISTER OF

     NATIONAL REVENUE

     FOR CUSTOMS & EXCISE

     Respondent

     (Respondent)

    

     REASONS FOR JUDGMENT

    

     FEDERAL COURT OF CANADA

     APPEAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS ON THE RECORD

COURT FILE NO.:      A-536-95

STYLE OF CAUSE:      I.D. FOODS SUPERIOR CORP.,

     Appellant

     (Applicant)

     AND:

THE DEPUTY MINISTER OF NATIONAL REVENUE FOR CUSTOMS & EXCISE

     Respondent

     (Respondent)

PLACE OF HEARING:      Montreal (Quebec)

DATE OF HEARING:      April 29^th, 1998

REASONS FOR JUDGMENT OF DÉCARY J.

DATED:      April 29^th, 1998

APPEARANCES:

Mr. Richard Gottlieb &

Mr. Jeffey Jenkins      for the Appellant

Ms. Kathleen McNamus      for the Respondent

SOLICITORS OF RECORD:

GOTTLIEB & PEARSON

Montreal (Quebec)      for the Appellant

GEORGE THOMSON

Deputy Attorney General of Canada      for the Respondent

Ottawa (Ontario)