Dayco (Canada) Limited v. Deputy Minister of National Revenue, [1985] 1 CTC 220

Ryan, J:—This is a Reference by the Tariff Board to this Court under subsection 28(4) of the Federal Court Act. The reference arises from an appeal to the Tariff Board brought by Dayco (Canada) Limited pursuant to subsection 47(1) of the Customs Act. The appeal to the Board is from a decision made on behalf of the Deputy Minister of National Revenue for Customs and Excise (“the Deputy Minister”), dated June 14, 1984, on the value for duty of certain goods imported into Canada. The decision is expressed in part in these words:

Pursuant to the above-noted requests filed under subsection 46(3) of the Customs Act, I have made a decision on behalf of the Deputy Minister, Department of National Revenue, Customs and Excise, pursuant to subsection 46(4) of the said Act, that the values for duty are as outlined in the attachment.

The communication of the decision was signed by D J O’Brien for K H McCammon, Director General, Assessment Programs.

Subsection 46(3) of the Customs Act provides that an importer may make a written request to the Deputy Minister for a reappraisal of a reappraisal made by a Dominion customs appraiser under subsection 46(2). The Deputy Minister, by memorandum dated November 25, 1983 (quoted in my reasons for judgment in appeal No A-1287-84) instructed persons occupying or acting in certain positions in the Customs Department, including the position occupied by K H McCammon, to carry out on his behalf certain of the powers, duties and functions of the Deputy Minister under the reappraisal of the value for duty of any goods.

Mr McCammon had designated D J O’Brien to be Acting Director General, Assessment Programs during the period from June 11 to 22, 1984 with authority to act on his behalf in all matters.

The tariff Board was not satisfied that the Deputy Minister had the legal right to delegate his authority to reappraise the value for duty of goods pursuant to subsection 46(4) of the Customs Act. And even if the Deputy Minister had such authority, the Board was not satisfied that Mr McCammon had the legal right further to delegate that authority to D J O’Brien. The Board, therefore, decided to refer certain questions to this Court. Accordingly, the Board made this Reference:

1. At the hearing of Tariff Board Appeal No 2164 on October 24, 1984, from a decision made on behalf of the Deputy Minister of National Revenue for Customs and Excise (the Deputy Minister) dated June 14, 1984 pursuant to section 46(4) of the Customs Act, the letter informing the Appellant of such decision, a copy of which had been filed with the Secretary of the Board, indicated that:

(a) the Deputy Minister did not personally make, consider or execute the Decision which is the subject of this appeal;

(b) the Decision which is the subject of this appeal was made by D J O’Brien, Acting Director General, Assessment Programs of Revenue Canada, Customs and Excise, for K H McCammon, Director General, Assessment Programs;

(c) the Deputy Minister by memorandum dated November 25, 1983 had instructed persons occupying certain positions in the Customs Department including the position occupied by the said K H McCammon to carry out on his behalf certain of the powers, duties and functions of the Deputy Minister under subsection 46(4) of the Customs Act in respect of the re-appraisal of the value for duty of any goods; and

(d) the said K H McCammon, by memorandum dated June 7, 1984 had designated the said D J O’Brien to be Acting Director General, Assessment Programs, during the period June 11, to 22, 1984, inclusive with full authority to act on behalf of the said K H McCammon in all matters.

2. The Tariff Board was not satisfied that the Deputy Minister had the legal right to delegate his authority to re-appraise the value for duty of goods pursuant to subsection 46(4) of the Customs Act, or if so, that the said K H McCammon had the legal right to further delegate that authority to the said D J O’Brien and adjourned the hearing of the appeal sine die and ordered that the issues of law and jurisdiction arising might be referred to the Federal Court of Appeal for hearing and determination.

3. Therefore, the Tariff Board refers the following questions to the Federal Court of Appeal pursuant to subsection 28(4) of the Federal Court Act for hearing and determination upon the record in this appeal, including the exhibits filed:

(a) Does the Tariff Board have jurisdiction to hear and adjudicate upon an appeal pursuant to subsection 47(1) of the Customs Act from a Decision of the Deputy Minister of National Revenue for Customs and Excise when it is evident that the Decision has not been made, considered or executed by the Deputy Minister personally.

(b) Does the Deputy Minister have the legal right at common law or by statute to delegate his authority to re-appraise the value for duty of goods pursuant to subsection 46(4) of the Customs Act to the Director General, Tariff Programs Division of Revenue Canada, Customs and Excise.

(c) Does the Director General, Tariff Programs Division of Revenue Canada, Customs and Excise, have the legal right to further delegate the authority to re-appraise the value for duty of goods to the Acting Director General, Assessment Programs Division.

Questions 3(a) and 3(b), asked in this Reference, raise issues similar to the issues raised by the questions that were asked in the Reference involved in appeal No A-1287-84, and both References were argued together.

My reasons for judgment in appeal No A-1287-84, with apropriate modifications in wording, can serve as my reasons for the answers I am about to give to questions (a) and (b) in paragraph 3 of this Reference, and I attach them as an appendix to and incorporate them with these reasons. To the extent there may be differences between the decision made pursuant to. paragraph 46(4)(a), the decision with which this Reference is concerned, and the decision made under paragraph 46(4)(d), the decision with which case No A-1287-84 is concerned, these differences are dealt with in the reasons for judgment in case No A-1287- 84, which reasons are appended.

I would answer question (a) asked in paragraph 3 of the Reference in the negative. It follows that I would also answer question (b) in the negative.

I would answer question (c) in this way:

In view of the answers to questions (a) and (b), no answer is really necessary to question (c). If the Deputy Minister has no right to delegate his authority to reappraise under subsection 46(4) to the Director General, Tariff Programs Division of Revenue Canada, no question of a right to sub-delegate arises.

Heald, J:—I have read the draft reasons for judgment herein prepared by my brother Ryan, J. I agree with the result which he proposes and with the reasons given by him in support of that conclusion subject to the same reservation which I expressed in my reasons for judgment in Appeal No A-1287-84 relative to the applicability of the Ahmad decision to the issues raised by these two appeals. I attach a copy of my reasons in Appeal No A-1287-84 as an appendix to and incorporate them with these reasons.