Date: 20051109
Docket: A-675-04
Citation: 2005 FCA 376
CORAM: LINDENJ.A.
ROTHSTEIN J.A.
EVANS J.A.
BETWEEN:
EXCELSIOR FOODS INC.
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa, Ontario, on November 9, 2005.
Judgment delivered from the Bench at Ottawa, Ontario, on November 9, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20051109
Docket: A-675-04
Citation: 2005 FCA 376
CORAM: LINDENJ.A.
ROTHSTEIN J.A.
EVANS J.A.
BETWEEN:
EXCELSIOR FOODS INC.
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on November 9, 2005)
EVANS J.A.
[1] This is an appeal by Excelsior Foods Inc. from a decision of the Canadian International Trade Tribunal, dated September 23, 2004, in which the Tribunal dismissed Excelsior's appeal from the classification under the Customs Tariff of its products, marketed as pear nectar, peach nectar and apricot nectar.
[2] The Tribunal held that the products in question were fruit purées to which water, sugar, and acids had been added and were properly classified under 2202.90.90 of the Tariff as "other non-alcoholic beverages", not as "fruit juices" under heading 20.09.
[3] It was common ground before us that the issue in dispute in this appeal was the Tribunal's application of the Customs Tariff to the facts, a question of mixed fact and law, and that unreasonableness simpliciter was the appropriate standard of review.
[4] We have not been persuaded that the Tribunal's decision was unreasonable. On the basis of CCRA Customs Memo D10-14-4, entitled "Classification of Juice and Juice Concentrate in Heading 20.09", counsel argued that a product is still "fruit juice" if the amount of water added to reconstitute juice concentrate does not exceed the amount removed when the concentrate was prepared. In our view, whether of not Excelsior's product could be characterized as a reconstituted concentrate, it was not unreasonable for the Tribunal to conclude that it was not made from juice concentrate.
[5] For these reasons, the appeal will be dismissed with costs fixed in the amount of $2,500, inclusive of disbursements.
"John M. Evans"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-675-04
STYLE OF CAUSE: Excelsior Foods Inc. v. The Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 9, 2005
REASONS FOR JUDGMENT OF THE COURT: Linden, Rothstein and Evans JJA.
RENDERED FROM THE BENCH BY: Evans J.A.
APPEARANCES:
Mr. Gerry H. Stobo FOR THE APPELLANT
Mr. Jack Hughes
Ms. Catherine A. Lawrence FOR THE RESPONDENT
SOLICITORS OF RECORD:
Borden Ladner Gervais LLP FOR THE APPELLANT
Ottawa, Ontario
John H. Sim, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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