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Date: 20051109

Docket: A-675-04

Citation: 2005 FCA 376

CORAM:        LINDENJ.A.

                        ROTHSTEIN J.A.

                        EVANS J.A.

BETWEEN:

EXCELSIOR FOODS INC.

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

Heard at Ottawa, Ontario, on November 9, 2005.

Judgment delivered from the Bench at Ottawa, Ontario, on November 9, 2005.

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


Date: 20051109

Docket: A-675-04

Citation: 2005 FCA 376

CORAM:        LINDENJ.A.

                        ROTHSTEIN J.A.

                        EVANS J.A.

BETWEEN:

EXCELSIOR FOODS INC.

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Ottawa, Ontario, on November 9, 2005)

EVANS J.A.

[1]                This is an appeal by Excelsior Foods Inc. from a decision of the Canadian International Trade Tribunal, dated September 23, 2004, in which the Tribunal dismissed Excelsior's appeal from the classification under the Customs Tariff of its products, marketed as pear nectar, peach nectar and apricot nectar.

[2]                The Tribunal held that the products in question were fruit purées to which water, sugar, and acids had been added and were properly classified under 2202.90.90 of the Tariff as "other non-alcoholic beverages", not as "fruit juices" under heading 20.09.

[3]                It was common ground before us that the issue in dispute in this appeal was the Tribunal's application of the Customs Tariff to the facts, a question of mixed fact and law, and that unreasonableness simpliciter was the appropriate standard of review.

[4]                We have not been persuaded that the Tribunal's decision was unreasonable. On the basis of CCRA Customs Memo D10-14-4, entitled "Classification of Juice and Juice Concentrate in Heading 20.09", counsel argued that a product is still "fruit juice" if the amount of water added to reconstitute juice concentrate does not exceed the amount removed when the concentrate was prepared. In our view, whether of not Excelsior's product could be characterized as a reconstituted concentrate, it was not unreasonable for the Tribunal to conclude that it was not made from juice concentrate.

[5]                For these reasons, the appeal will be dismissed with costs fixed in the amount of $2,500, inclusive of disbursements.

"John M. Evans"

J.A.


FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                            A-675-04

STYLE OF CAUSE:                                                            Excelsior Foods Inc. v. The Attorney General of Canada

PLACE OF HEARING:                                                      Ottawa, Ontario

DATE OF HEARING:                                                        November 9, 2005

REASONS FOR JUDGMENT OF THE COURT:          Linden, Rothstein and Evans JJA.

RENDERED FROM THE BENCH BY:                           Evans J.A.

APPEARANCES:

Mr. Gerry H. Stobo                                                                   FOR THE APPELLANT

Mr. Jack Hughes

Ms. Catherine A. Lawrence                                                       FOR THE RESPONDENT

SOLICITORS OF RECORD:

Borden Ladner Gervais LLP                                                      FOR THE APPELLANT

Ottawa, Ontario

John H. Sim, Q.C.                                                                     FOR THE RESPONDENT

Deputy Attorney General of Canada

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