Federal Court of Appeal Decisions

Date: 20060131

Docket: A-255-05 (A-214-05)

Citation: 2006 FCA 41

CORAM:        RICHARD C.J.

                        LÉTOURNEAU J.A.

                        NOËL J.A.

BETWEEN:

THE COMMISSIONER FOR THE CANADA

CUSTOMS AND REVENUE AGENCY

and

DAIRY FARMERS OF CANADA

Appellants

and

LES PRODUITS LAITIERS ADVIDIA INC.

Respondent

Heard at Ottawa, Ontario, on January 31, 2006.

Judgment delivered from the Bench at Ottawa, Ontario, on January 31, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                      LÉTOURNEAU J.A.

Date: 20060131

Docket: A-255-05 (A-214-05)

Citation: 2006 FCA 41

CORAM:        RICHARD C.J.

                        LÉTOURNEAU J.A.

                        NOËL J.A.

BETWEEN:

THE COMMISSIONER FOR THE CANADA

CUSTOMS AND REVENUE AGENCY

and

DAIRY FARMERS OF CANADA

Appellants

and

LES PRODUITS LAITIERS ADVIDIA INC.

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Ottawa, Ontario, on January 31, 2006)

LÉTOURNEAU J.A.

[1]                This is an appeal from a decision of the Canadian International Trade Tribunal (CITT) in which it held that the good in issue (i.e., PROMILK 872B) was properly classified under heading 35.04 of the Schedule to the Customs Tariff, S.C. 1997, c. 36, Sch., "as other protein substances and their derivatives, not elsewhere specified or included". In so holding, the CITT set aside the decision of the Commissioner of the Canada Customs and Revenue Agency who had classified Promilk 872B under heading 04.04 as "products consisting of natural milk constituents [...] not elsewhere specified or included" and not under heading 35.04.

[2]                The competing tariff items read as follows:

[3]                Both the Commissioner and the Dairy Farmers of Canada allege that the CITT erred in law in classifying Promilk under tariff item 35.04.

[4]                Despite the arguments raised by the appellants in support of their appeal, the only issue to be decided at the end of the day is whether the CITT erred in holding that tariff item 35.04 more specifically described the good in issue than tariff item 04.04. This is so because both tariff items require that a determination be made as to whether goods in issue are more specifically specified or included elsewhere.

[5]                This question is at the core of the CITT's expertise and jurisdiction since it involves a pure question of tariff classification. It is well established that the standard of review applicable to such questions is reasonableness simpliciter (Minister of National Revenue (Customs and Excise) v. Schrader Automotive Inc. (1999) 240 N.R. 381 (F.C.A.) at para. 5; Minister of National Revenue (Customs and Excise) v. Suzuki Canada Inc., (2004) 319 N.R. 299 (F.C.A.) at para. 11; Minister of National Revenue v. Yves Pomroy Canada (2000) 259 N.R. 38 (F.C.A.) at para. 6; Mon-Tex Mills Ltd. v.Canada (Commissioner of Customs and Revenue Agency) 2004 FCA 346, (F.C.A.) at para. 2; and Star Choice Television Network Inc. v. Canada(Commissioner of Customs and Revenue), 2004 FCA 153, (F.C.A.) at para. 7).

[6]                Applying this standard to the review of the decision of the CITT, we are satisfied that the decision, when read as a whole, is not unreasonable in view of the evidence and the record that were before it. Therefore, the consolidated appeals will be dismissed with one set of costs. The respondent will be entitled to its disbursements in file A-255-05 and in file A-214-05.

"Gilles Létourneau"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                 A-255-05 (A-214-05)

STYLE OF CAUSE:                                 THE COMMISSIONER FOR THE CANADA

                                                                  CUSTOMS AND REVENUE AGENCY and

                                                                  DAIRY FARMERS OF CANADA v. LES PRODUITS

                                                                  LAITIERS ADVIDIA INC.

PLACE OF HEARING:                           Ottawa, Ontario

DATE OF HEARING:                             January 31, 2006

REASONS FOR JUDGMENT               RICHARD C.J.

OF THE COURT BY:                              LÉTOURNEAU J.A.

                                                                  NOËL J.A.

DELIVERED FROM THE

BENCH BY:                                              LÉTOURNEAU J.A.

APPEARANCES:

Mr. Jean Robert Noiseux Mr. Yannick Landry Mr. Gregory Somers Mr. Ben Bédard	FOR THE APPELLANT (CCRA) FOR THE APPELLANT (Dairy Farmers of Canada)
Mr. Darrel Pearson Mr. Shane Brown Mr. Jesse Goldman	FOR THE RESPONDENT

SOLICITORS OF RECORD:

John H. Sims, Q.C. Deputy Attorney General of Canada Ogilvy Renault, Ottawa, Ontario	FOR THE APPELLANT CCRA) FOR THE APPELLANT (Dairy Farmers of Canada)
Gottlieb & Pearson, Toronto, Ontario	FOR THE RESPONDENT