Date:
20091216
Docket: A-201-09
Citation: 2009 FCA 374
CORAM: NOËL J.A.
PELLETIER
J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
NORTH
AMERICAN TEA & COFFEE INC.
Appellant
and
PRESIDENT OF THE CANADA BORDER
SERVICES
AGENCY
Respondent
Heard at Vancouver, British Columbia, on December 16, 2009.
Judgment delivered from the Bench at Vancouver, British Columbia, on December 16, 2009.
REASONS FOR JUDGMENT OF THE COURT BY: NOËL
J.A.
Date:
20091216
Docket:
A-201-09
Citation:
2009 FCA 374
CORAM: NOËL
J.A.
PELLETIER J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
NORTH
AMERICAN TEA & COFFEE INC.
Appellant
and
PRESIDENT OF THE CANADA BORDER
SERVICES
AGENCY
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British
Columbia, on December 16, 2009)
NOËL J.A.
[1]
This is an appeal
from a decision of the Canadian International Trade Tribunal (the Tribunal)
dated February 11, 2009 classifying preparations containing inter alia
pickled cucumbers together with either pickled dill weed and/or pickled garlic
(the goods) as “cucumbers and gherkins” under subheading 2001.10 of the Schedule
to the Customs Tariff Act, S.C. 1997, c. 36 (the Customs Tariff).
The appellant contends that the goods in issue should be classified as “other”
under tariff subheading 2001.90.
[2]
The appellant’s
contention is based on the fact that garlic or dill is added to the cucumber
preparation. According to the appellant, these additional ingredients transform
the goods into other vegetables preserved by vinegar or acetic acid (reasons,
para. 24).
[3]
Relying on the
relevant Explanatory Notes (Explanatory Notes to the Harmonized
Commodity Description and Coding System, World Customs Organization, 3d ed.,
Brussels, 2002) according to which goods under subheading 2001.10 may contain
“spices” or “other additives”, the Tribunal found that (reasons, para. 38):
. . . garlic and
dillweed are in the nature of spices, or other additives, which are present for
their flavouring properties.
[4]
Giving effect to this
reasoning, the Tribunal went on to conclude that the dillweed or garlic does
not transform the goods in issue into something other than pickled cucumbers.
[5]
Relying on the terms
of heading 20.01, the appellant maintains that the dillweed or garlic, being
“vegetables or other parts of plants” within the meaning of this heading,
cannot be viewed as spices or additives for purposes of the Explanatory
Notes. However, the Tribunal found that when these ingredients are used as
spices or additives, they should be treated as such.
[6]
In order to succeed,
it was incumbent upon the appellant to show that this decision was unreasonable
in that it fell outside the range of possible, acceptable outcomes which are
defensible in respect of the facts and the relevant provisions of the Customs
Tariff (Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 25).
[7]
Despite Ms. Cook’s
able argument, the appellant has fallen short of making this demonstration.
[8]
The appeal will be
dismissed with costs.
"Marc
Noël"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-201-09
STYLE OF CAUSE: North
American Tea & Coffee Inc. and President of the Canada Border Services
Agency
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: December 16, 2009
REASONS FOR JUDGMENT OF THE
COURT BY: (NOËL, PELLETIER, LAYDEN-STEVENSON JJ.A.)
DELIVERED FROM THE BENCH BY: NOËL J.A.
APPEARANCES:
|
Kimberley L. Cook
|
FOR
THE APPELLANT
|
|
Lorne Ptack
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Thorsteinssons LLP
Vancouver,
British Columbia
|
FOR
THE APPELLANT
|
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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