Date: 19980402
Docket: A-342-97
CORAM: STRAYER, J.A.
DESJARDINS, J.A.
HENRY, D.J.
In the Matter of the Customs Act, R.S.c. 1985, c. 1 (2nd Supp.), as amended
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
- and -
SUNBEAM CORPORATION (CANADA) LIMITED
Respondent
HEARD at Toronto, Ontario, Wednesday, April 1st, 1998
JUDGMENT delivered from the Bench at Toronto, Ontario, Wednesday, April 1, 1998
REASONS FOR JUDGMENT BY: STRAYER, J.A.
Date: 19980402
Docket: A-342-97
CORAM: STRAYER, J.A.
DESJARDINS, J.A.
HENRY, D.J.
In the Matter of the Customs Act, R.S.c. 1985, c. 1 (2nd Supp.), as amended
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
- and -
SUNBEAM CORPORATION (CANADA) LIMITED
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
Wednesday, April 1, 1998)
STRAYER, J.A.:
[1] We are all of the view that this appeal should be dismissed.
[2] The main issue is as to whether the respondent's heating pads should be excluded from the application of chapter 85 of Schedule I of the Customs Tariff by virtue of Note 1(a) to that chapter. This note excludes:
| (a) Electrically warmed blankets, bed pads, foot-muffs or the like; electrically warmed clothing, footwear or ear pads or other electrically warmed articles worn on or about the person. |
The decision of the Canadian International Trade Tribunal under appeal held that the heating pads were not within this description and therefore could be covered by chapter 85..
[3] The Tribunal specifically addressed itself to the second part of paragraph (a) which follows the semi-colon. It determined that the heating pads were not "articles worn on or about the person". To the extent that this was a finding of fact it is not properly the subject of appeal to this Court, and to the extent that it was a finding of law we are unable to say that the Tribunal thereby erred in law. It appears to us that the Tribunal was simply determining the common and ordinary meaning of the words "worn on or about the person" and we believe that its conclusion was one open to the Tribunal.
[4] Counsel for the appellant now argues, however, that the Tribunal erred in law in not finding these heating pads to be embraced by the first part of Note 1(a) which precedes the semi-colon as quoted above. That is, he argues that such pads come within the phrase "or the like", being eiusdem generis with "electrically warmed blankets, bed pads, and foot-muffs". In its decision the Tribunal said that it was "common ground" that the heating pads were not within the phrase "or the like" and the Tribunal gave no further consideration to the matter in its reasons. The appellant asserts that the Tribunal was wrong in assuming that the appellant had conceded this point, and that it should have decided specifically whether the pads in question were covered by "or the like" and thus excluded from chapter 85. For its part the respondent objects to this issue being argued for the first time at the appeal stage.
[5] The transcript and the appellant's brief before the Tribunal indicates to us that apart from noting the content of the whole of Note 1(a), the appellant neither specifically conceded that the first part was inapplicable nor argued for its application. We think that it is open to the appellant to raise the matter here on appeal as both parties seem to accept that there is adequate evidence in the record upon which a determination could be made de novo by the Court as to whether heating pads are within the phrase "or the like". However, we find it unnecessary to make that determination. We think the Tribunal must be taken to have considered the whole of Note 1(a) and simply to have thought the first part to be irrelevant. As neither party argued that it was relevant, the Tribunal did not find it necessary to deal with this non-issue in its decision. The Tribunal was clearly aware of the whole paragraph and if it had thought the first part to be relevant it would have considered it specifically. We believe its assumption that the first part was not pertinent was in itself a determination of law which, having regard to the possible interpretations of the words in question, we cannot say was wrong.
[6] In concluding as we have we are aware of the degree of deference which should be shown by this Court, even in an appeal on questions of law, to a specialized tribunal interpreting its particular legislation1.
[7] The appeal will therefore be dismissed. We are not satisfied that sufficient special reasons exist to award costs.
"B.L. Strayer"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-342-97
| STYLE OF CAUSE: THE DEPUTY MINISTER OF NATIONAL REVENUE |
- and -
| SUNBEAM CORPORATION (CANADA) LIMITED |
DATE OF HEARING: APRIL 1, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: STRAYER, J.A.
Delivered from the Bench at Toronto, Ontario
on Wednesday, April 1, 1998
APPEARANCES:
Mr. Jan Brongers
For the Appellant
Mr. J.A. Prestage
For the Respondent
SOLICITORS OF RECORD:
George Thomson
Deputy Attorney General
of Canada
For the Appellant
Blake, Cassels & Graydon
Barristers and Solicitors
P.O. Box 25,
Commerce Court West
Toronto, Ontario
M5L 1A9
For the Respondent
| FEDERAL COURT OF APPEAL |
| Date: 19980401 |
| Docket: A-342-97 |
| BETWEEN: |
| THE DEPUTY MINISTER OF NATIONAL REVENUE |
| Appellant |
| -and- |
| SUNBEAM CORPORATION (CANADA) LIMITED |
| Respondent |
| REASONS FOR JUDGMENT |
__________________
1 See e.g. Pezim v. British Columbia (Superintendant of Brokers) [1994] 2 S.C.R. 557 at 589-96; Director of Investigation & Research v. Southam Inc. [1997] 1 S.C.R. 748 at 773-80; Reebok Canada v. Deputy Minister of National Revenue [1997] F.C.J.N. no. 924 at para. 44 (F.C.T.D.)