HBC Inports (Zellers Inc.) v. Canada Border Services Agency, 2013 FCA 167 (2013)

Parts:HBC Inports (Zellers Inc.) v. Canada Border Services Agency
Reporting Judge:SHARLOW J.A.
Docket Number:A-306-12
 
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Federal Court of Appeal - HBC Inports (Zellers Inc.) v. Canada Border Services Agency [Anonymoused]

Source: http://decisions.fca-caf.gc.ca/en/2013/2013fca167/2013fca167.html

Date: 20130624

Docket: A-306-12

Citation: 2013 FCA 167

CORAM: SHARLOW J.A.

PELLETIER J.A.

WEBB J.A.

BETWEEN:

HBC IMPORTS c/o ZELLERS INC.

Appellant and

PRESIDENT OF THE CANADA BORDER SERVICES AGENCY

Respondent

Heard at Ottawa, Ontario, on May 14, 2013.

Judgment delivered at Ottawa, Ontario, on June 24, 2013.

REASONS FOR JUDGMENT BY: WEBB J.A.

CONCURRED IN BY: PELLETIER J.A.

DISSENTING REASONS BY: SHARLOW J.A.

Date: 20130624

Docket: A-306-12

Citation: 2013 FCA 167

CORAM: SHARLOW J.A.

PELLETIER J.A.

WEBB J.A.

BETWEEN:

HBC IMPORTS c/o ZELLERS INC.

Appellant and

PRESIDENT OF THE CANADA BORDER SERVICES AGENCY

Respondent

REASONS FOR JUDGMENT

WEBB J.A.

[1] This appeal arises as a result of a dispute with respect to the tariff classification of a product known as the “Snow Boogie Astra Sled” (Astra Sled). It is a sled and is similar to a toboggan because it is used, and is intended to be used, by a person to slide down a snowy hill. The President of the Canada Border Services Agency concluded that the Astra Sled should be classified under tariff item No. 9506.99.90 of the Schedule to the Customs Tariff , S.C. 1997, c. 36. That conclusion was upheld on the appeal of the importer (“HBC”) to the Canadian International Trade Tribunal pursuant to section 67 of the Customs Act , R.S.C. 1985, c. 1 (2d Supp.) (Appeal No. AP-2011-018; HBC Imports c/o Zellers Inc. v. Canada (Border Services Agency, President) , [2012] C.I.T.T. No. 58) . HBC now appeals to this Court pursuant to section 68 of the Customs Act . For the reasons that follow, I would dismiss this appeal on the basis that the Tribunal’s conclusion is reasonable.

Relevant Classification Provisions

[2] HBC argues that the Astra Sled should be classified under heading 95.03 and not under heading 95.06. These two headings provide as follows:
95.03:

Tricycles, scooters, pedal cars and similar wheeled toys; dolls' carriages; dolls; other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds.

[…]

95.06:

Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this Chapter; swimming pools and paddling pools.

95.03:

Tricycles, trottinettes, autos à pédales et jouets à roues similaires; landaus et poussettes pour poupées; poupées; autres jouets; modèles réduits et modèles similaires pour le divertissement, animés ou non; puzzles de tout genre.

95.06:

Articles et matériel pour la culture physique, la gymnastique, l'athlétisme, les autres sports (y compris le tennis de table) ou les jeux de plein air, non dénommés ni compris ailleurs dans le présent Chapitre; piscines et pataugeoires.

[3] As noted by the Tribunal, since the items included under heading 95.06 do not include items that are “specified or included elsewhere in this Chapter”, if the Astra Sled is included in “other toys” under heading 95.03, it would be classified under heading 95.03 and not under heading 95.06.

Standard of review

[4] The question of whether the Astra Sled should be classified under heading 95.03 requires an interpretation of the expression “other toys” as used in this heading and the application of this interpretation to the Astra Sled. This is a question of mixed fact and law which requires an interpretation of the Tribunal’s own statute. The standard of review is reasonableness, which means that deference is to be given to the Tribunal ( Canadian Tire Corp. Ltd. v. President of the Canada Border Services Agency 2011 FCA 242, at paragraph 4; Dunsmuir v. New Brunswick , 2008 SCC 9, [2008] 1 S.C.R. 190, Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association , [2011] 3 S.C.R. 654).

Analysis

[5] The Tribunal reviewed the headings referred to above and the Explanatory Notes to the Harmonized Commodity Description and Coding System (the “ Explanatory Notes ”). The Tribunal also noted that “although the Explanatory Notes are not binding on the Tribunal, they should be respected unless there is a sound reason to do otherwise” (paragraph 9 of the decision of the Tribunal and Canada (Attorney General) v. Suzuki Canada Inc. , 2004 FCA 131, at paragraph 13). An Astra Sled was also submitted to the Tribunal as an exhibit. After reviewing the arguments of the parties, the Tribunal concluded that the Astra Sled should not be included as “other toys” for the purposes of heading 95.03. The Tribunal then determined that it should be classified under heading 95.06.

[6] The Appellant does not take issue with the finding that if the Astra Sled is not to be included as “other toys” for the purposes of heading 95.03, then it is to be included under heading 95.06.

[7] Since the standard of review is reasonableness and the Tribunal is entitled to deference in relation to its decision, the question is not whether the Tribunal was correct in finding that the Astra Sled is not to be included as “other toys” for the purposes of heading 95.03 but whether its “decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” ( Dunsmuir , paragraph 47).

[8] Justice Abella, writing for the Supreme Court of Canada, in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 repeated some of the paragraphs from the decision of that Court in Dunsmuir . In particular, in paragraph 11, she repeated the paragraph from Dunsmuir which stated that “[t]ribunals have a margin of appreciation within the range of acceptable and rational solutions”. Also, Justice Rothstein in paragraph 1 of Alberta (Information and Privacy Commissioner v. Alberta Teachers' Association , above, stated that “[c]ourts owe deference to administrative decisions within the area of decision-making authority conferred to such tribunals”.

[9] In this case, the decision of the Tribunal is one that is within its area of expertise — the classification of goods for the purposes of the Customs Tariff . We should not interfere with this decision unless it is outside the range of acceptable and rational results. There are two possible results: either the Astra Sled will be included as “other toys” for the purposes of heading 95.03,or it will not. Just because there are only two possible outcomes does not mean that any less deference should be shown to the Tribunal. Nor does it mean that only one option is reasonable (hence correct) and the other is not.

[10] In Alberta (Information and Privacy Commissioner v. Alberta Teachers' Association , above, the issue was the interpretation of subsection 50(5) of the Personal Information Protection Act , S.A. 2003, c. P-6.5. The question, as noted by Justice Rothstein, was “[d]id the inquiry automatically terminate as a result of the Commissioner extending the 90-day period only after the expiry of that period?”...

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