Date: 19990915
Docket: A-3-98
CORAM: ROBERTSON J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
THE MINISTER OF NATIONAL REVENUE
Appellant
(Respondent)
- and -
ROLLINS MACHINERY LTD.
Respondent
(Appellant)
Heard at Ottawa, Ontario, on Wednesday, September 15, 1999
Judgment delivered from the Bench at Ottawa, Ontario, on Wednesday, September 15, 1999
REASONS FOR JUDGMENT BY: ROBERTSON J.A.
Date: 19990915
Docket: A-3-98
CORAM: ROBERTSON J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
THE DEPUTY MINISTER OF NATIONAL REVENUE
Appellant
(Respondent)
- and -
ROLLINS MACHINERY LTD.
Respondent
(Appellant)
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario
on Wednesday, September 15, 1999)
ROBERTSON J.A.
[1] Both parties are agreed that the Canadian International Trade Tribunal erred in concluding that the goods in question should be classified under tariff item 4010.19.90 for the reason that that tariff item was not in force at the time the goods were imported into Canada on June 9, 1994. The addition of tariff item 4010.19.90 was one of many amendments which came into force on January 1, 1996. As a result the Tribunal erred in law in so classifying the goods in question.
[2] The parties are also agreed that there should be no costs on appeal, but are at odds as to whether the matter should be remitted to the Tribunal for re-hearing or whether this Court should arrive at its own conclusion as to the proper tariff classification. The respondent taxpayer insists that the matter be returned to the Tribunal for redetermination on the basis of the record as it presently stands. The appellant, the Deputy Minister of National Revenue, insists that this Court is in as good a position as the Tribunal to render a de novo decision, having regard to the record below. In support of his argument, the appellant points to section 68(2) of the Customs Act which provides: "The Federal Court of Appeal may dispose of an appeal by making such order or finding as the nature of the matter may require or by referring the matter back to the Canadian International Trade Tribunal for re-hearing".
[3] In our view it would be wrong in principle for this Court to make a de novo determination as to the proper tariff classification. To hold otherwise would require this Court to assume that it possesses the relative expertise which the Tribunal is deemed to possess. Our role is to adjudicate on decisions of the Tribunal, involving tariff classification, by applying a standard of review based on reasonableness simpliciter: see Canada (Deputy Minister of National Revenue) v. Schrader Automotive Inc. [1999] F.C.J. No. 331, March 10, 1999. Accordingly, we are of the view that the appeal should be allowed, without costs, and the matter remitted to the Tribunal for redetermination on the basis of the record as it presently stands.
"J.T. Robertson"
J.A.