Docket: A-197-15
Citation: 2017 FCA 72
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CORAM:
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GAUTHIER J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
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BETWEEN:
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VOLPAK INC.
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Appellant
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and
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PRESIDENT OF
THE CANADA BORDER SERVICES AGENCY
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Respondent
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Heard at Montréal, Quebec, on April 5, 2017.
Judgment delivered from the Bench at Montréal, Quebec, on April 5,
2017.
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REASONS FOR JUDGMENT OF THE COURT BY:
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GAUTHIER
J.A.
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Docket: A-197-15
Citation:
2017 FCA 72
|
CORAM:
|
GAUTHIER J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
|
|
BETWEEN:
|
|
VOLPAK INC.
|
|
Appellant
|
|
and
|
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PRESIDENT OF
THE CANADA BORDER SERVICES AGENCY
|
|
Defendant
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montréal, Quebec, on
April 5, 2017).
GAUTHIER J.A.
[1]
This is an appeal of a decision of the Canadian
International Trade Tribunal (CITT) rejecting Volpak Inc.’s appeal (Volpak)
from a re-determination made by the President of the Canada Border Services
Agency (President) dated March 15, 2012.
[2]
The President’s decision related to the
classification of 13,402 kilos of bone-in chicken breast imported from the
United States, which had been reclassified by the Canada Border Services Agency
(CBSA) from tariff item No. 0207.13.91 (within access commitment) to tariff
item No. 0207.13.92 (over access commitment). The CBSA reclassified these goods
after being advised that the import permit originally issued in February 2011
under section 8.3 of the Export and Import Permit Act, R.S.C., 1985, c.
E-19 (EIPA) had been cancelled in July 2011 by the Minister of Foreign
Affairs and International Trade.
[3]
The President confirmed the CBSA’s decision on
the basis that pursuant to subsection 10(2) of the Customs Tariff, S.C.
1997, c. 36 (Customs Tariff), the goods at issue could not be classified
as “within access commitment” unless they were imported under the authority of
a valid permit issued under section 8.3 of the EIPA.
[4]
The Minister’s decision to retroactively cancel
the permit issued to Volpak under the Import for Re-Export Program was made on
the basis that Volpak had processed and exported 13,402 kilos of domestically
sourced chicken instead of the 13,402 kilos it had originally imported from the
United States on February 18, 2011. Volpak did not challenge the validity of
the Minister’s decision by way of judicial review. It is not disputed that it
was not argued before the CITT that it or the CBSA had jurisdiction to challenge
the validity of this cancellation. Counsel for Volpak conceded that this issue
was therefore not properly before our Court.
[5]
Therefore, before the CITT, the only goods at
issue in Volpak’s appeal were the 13,402 kilos of bone-in chicken which had
been reclassified as “over access commitment” (tariff item No. 0207.13.92). The
CITT determined that the CBSA had no choice but to consider the fact that the
permit under which these 13,402 kilos of chicken were originally imported had
been retroactively cancelled by the Minister. That being the case, the decision
made by the CBSA was perfectly in line with subsection 10(2) of the Customs
Tariff.
[6]
In its memorandum, Volpak submitted an argument
focused on whether or not the CITT failed to address whether the CBSA had
properly classified another quantity of 4,379 kilos of bone-in chicken also
imported in February 2011 as “within access commitment”. It argued that the new
permit issued in July 2011, which authorized Volpak to import 4,379 kilos of
fresh, bone-in chicken breast, could not justify this classification. In our
view there is no need to address this argument as the only goods at issue
before the CITT were the 13,402 kilos of bone-in chicken and nothing else.
[7]
Furthermore, considering the basis on which the
President made its re-determination (absence of a permit), we have not been
persuaded that the CITT made any reviewable error that could justify this
Court’s intervention.
[8]
The appeal will be dismissed with costs fixed at
an amount of $3000 (all inclusive).
« Johanne Gauthier »
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