Spike marks inc. v. Canada (Attorney General)

Spike marks inc. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2008-02-18
Neutral citation
2008 FC 203
File numbers
T-382-06
Decision Content
Date: 20080218
Docket: T-382-06
Citation: 2008 FC 203
Toronto, Ontario, February 18, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SPIKE MARKS INC.
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application for judicial review of seven decisions issued by the President of the Canada Border Services Agency (the CBSA) dated February 3, 2006 pursuant to subsection 60(4) of the Customs Act, R.S.C. 1985, c. C-1 (collectively, the “re-determination”). Seven separate applications were made to the Federal Court, but they were consolidated under this file number in an order issued May 10, 2006 by Prothonotary Tabib.
[2] The applicant requests:
(a) a declaration that the re-determination (and any prior decision made under the Customs Act) is invalid and unlawful insofar as it purports to assess excise duties and additional duties on imports of cigars by the applicant;
(b) an order in the nature of a writ of certiorari quashing or setting aside the re-determination (and any prior decision made under the Customs Act) insofar as it purports to assess excise duties and additional duties on imports of cigars by the applicant; and
(c) costs.
[3] The respondent requests:
(a) that this application for judicial review be dismissed; and
(b) costs.
Background
[4] The applicant imports goods from the United States of America, including the goods at issue in this application, specifically flavoured cigars which are imported in individual plastic containers. At the time of importation of the goods into Canada, the applicant classified the cigars under tariff item 2402.10.00 and the plastic containers separately under tariff item 3923.10.90.
[5] On February 22, 2005, the CBSA gave written notice to the applicant that it would be conducting a compliance verification review of its importations for the period of January 1 to December 31, 2004. The applicant received the verification report dated May 16, 2005, which determined that the applicant had improperly classified the cigars and the plastic containers under the Customs Tariff, S.C 1997, c.-36, as separate tariff items instead of as one single tariff item under number 2402.10.00.90. The verification report further instructed the applicant to file amended entries by August 19, 2005, for all similar transaction with the same error for the period of September 1, 2001 to May 16, 2005. The applicant did so.
[6] On May 24 and June 2, 2005, the CBSA issued seven detailed adjustment statements (the DASs). These seven DASs notified the applicant that the cigars and plastic containers had indeed been reclassified. The DASs also indicated the amount of the excise and additional duties imposed under sections 42 and 43 of the Excise Act, 2001, S.C. 2002, c.-22 as a result of the reclassification. On June 27, 2005, the applicant paid the outstanding amount of the seven DASs.
[7] On August 18, 2005, pursuant to subsection 60(1) of the Customs Act, the applicant appealed the DASs to the President of the CBSA. On November 21, 2005, the CBSA regional recourse officer (the recourse officer) issued a preliminary decision upholding the seven DASs. Following this preliminary decision, the applicant made further submissions to the CBSA. The parties met on December 20, 2005 wherein the applicant’s representatives advised the CBSA that they agreed with the reclassification, but disagreed with the calculation of the excise and additional duties.
[8] On February 3, 2006, the President of the CBSA issued seven re-determinations upholding the reclassification of the cigars and plastic containers as a single unit and the assessment of duties as per the recourse officer’s November 21, 2005 preliminary decision. In upholding the assessment of the excised and additional duties, the President of the CBSA relied on the reasons of the recourse officer’s preliminary decision dated November 21, 2005, specifically the CBSA’s interpretation of the meaning of the term “duty-paid value” in sections 2 of the Excise Act, 2001. It is ultimately the interpretation of this term that caused the imposition of further duties on the applicant and is the subject of this application for judicial review.
[9] On March 3, 2006, the applicant filed seven applications for judicial review of the seven re-determinations. These seven applications were consolidated into the within application (T-382-06).
[10] On May 2, 2006, pursuant to section 67 of the Customs Act, the applicant filed an appeal with the Canadian International Trade Tribunal (the CITT). The applicant then moved immediately for a dismissal of its own appeal on the grounds that the CITT lacked jurisdiction to hear the appeal as it dealt with the CBSA’s authority to assess excise and additional duties under the Excise Act, 2001.
[11] In light of this appeal, this application for judicial review was stayed by order dated August 31, 2006, pending the outcome of the applicant’s appeal to the CITT.
[12] On October 31, 2006, the CITT issued its decision in Spike Marks Inc. v. Canada Border Services Agency, [2006] C.I.T.T. No. 113 (the CITT decision) granting the applicant’s motion to dismiss the appeal on the basis of a lack of jurisdiction to consider “the methodology for assessing and calculating volume/based excised duty and additional duty under the Excise Act, 2001”.
[13] In light of the CITT’s decision, this application for judicial review was resumed. This application deals with the judicial review of the re-determinations issued by the President of the CBSA affirming the recourse officer’s preliminary decision dated November 21, 2005.
Board’s Reasons for Decision
[14] In seven notices of re-determination dated February 3, 2006, the president of the CBSA upheld the recourse officer’s assessment of the duties owing dated November 21, 2005. At issue in this application, is the interpretation of the definition of “duty-paid value” in section 2 of the Excise Act, 2001 as its interpretation provides in part the formula for quantifying the duties on imported cigars.
[15] While the decision under judicial review is that of the President of the CBSA, it essentially adopted the reasons of the recourse officer dated November 21, 2005. The recourse officer reproduced the definition of “duty-paid value” in the Excise Act, 2001:
“duty-paid value” means
(a) in respect of imported cigars, the value of the cigars as it would be determined for the purpose of calculating an ad valorem duty on the cigars in accordance with the Customs Act, whether or not the cigars are subject to ad valorem duty, plus the amount of any duty imposed on the cigars under section 42 of this Act and section 20 of the Customs Tariff; and
(b) in respect of imported cigars that, when imported, are contained in containers or otherwise prepared for sale, the total of the value of the cigars as determined in accordance with paragraph (a) and the value similarly determined of the container in which they are contained.
[16] The recourse officer explained that paragraph (b) applied in the case of the applicant’s cigar imports.
[17] The recourse officer then went on to explain that the CBSA’s interpretation of the reference to paragraph (a) in paragraph (b) was such that you have to take the entire value determined in paragraph (a) and inject it into paragraph (b) and then add the value similarly determined of the container in which the cigars were contained. The recourse officer noted:
The phrase “the value of the cigars as it would be determined for the purpose of calculating an ad valorem duty on the cigars in accordance with the Customs Act, whether or not the cigars are subject to ad valorem duty” clearly directs us to use the transaction value to arrive at our value for the cigars.
[18] The recourse officer went on to say that this interpretation was confirmed by section 46 and subsection 47(1) of the Customs Act. Section 46 provides that “the value for duty of imported goods shall be determined in accordance with sections 47 to 55.” Subsection 47(1) provides “the value for duty of goods shall be appraised on the basis of the transaction value of the goods in accordance with the conditions set out in section 48.” The wording of the definition of “duty-paid value”, which provides how to obtain the duty-paid value and not simply just the value, continues with the following wording “plus the amount of any duty imposed on the cigars under section 42 of this Act and section 20 of the Customs Tariff.” Therefore, the recourse officer determined that the correct calculation was the total value derived in paragraph (a), and the value similarly determined of the container in which they are contained.
Issues
[19] The applicant submitted the following issues for consideration:
1. What is proper standard of review of the re-determination by the CBSA?
2. Whether the CBSA exceeded its jurisdiction by assessing excise and additional duties under the Excise Act, 2001.
3. In the alternative, should the Court decide that the CBSA has jurisdiction to assess excise and additional duties under the Excise Act, 2001, whether its calculation of the excise and additional duties was correct?
[20] The respondent raised the following issue for consideration:
1. Does this Court have jurisdiction to hear this application for judicial review?
[21] I would rephrase the issues as follows:
1. Does this Court have jurisdiction to hear this application for judicial review?
2. What is the appropriate standard of review?
3. Did the CBSA exceed its jurisdiction by assessing excise and additional duties under the Excise Act, 2001?
4. If the President of the CBSA did not exceed their jurisdiction in interpreting sections 42 and 43 of the Excise Act, 2001 then did they incorrectly interpret these sections?
Applicant’s Submissions
[22] The thrust of the applicant’s argument is that the CBSA exceeded its jurisdiction by engaging in the statutory interpretation of certain sections of the Excise Act, 2001. In the alternative, the applicant submitted that the CSBA committed a reviewable error of law in their interpretation of the Excise Act, 2001.
[23] The applicant submitted the appropriate standard of review is correctness. The applicant submitted that the Supreme Court of Canada in Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, found that the Customs Act contained a partial privative clause. With regards to the nature of the questions at issue, the applicant submitted that both the issue of jurisdiction and the issue of interpretation of the relevant statutory sections were questions of law, and as such, a high level of deference is owed. As for the expertise of the CBSA, the applicant argued that neither questions of jurisdiction, nor questions of statutory interpretation were within the CBSA’s expertise of determining origin, tariff classification, or calculation of value for duty.
[24] The applicant then provided submissions as to the question of jurisdiction. The applicant submitted the CBSA’s jurisdiction is limited to (i) making determinations regarding origin, tariff classification, and value for duty of imported products; and (ii) assessing and collection of customs duties owing. The applicant submitted that there is a significant difference between the mere collection of duties owing and the interpretation of provisions of the Excise Act, 2001, collecting falls within the jurisdiction of the CBSA, while assessing does not.
[25] The applicant further submitted that even if the CBSA did have jurisdiction, it wrongly interpreted the meaning of “duty-paid value”. The applicant submitted that whereas the CBSA’s interpretation of “duty-paid value” includes duties imposed under section 42 of the Excise Act, 2001 and section 20 of the Customs Tariff, a correct interpretation does not. The applicant argued that the CBSA’s interpretation of “duty-paid value” is flawed because:
a) it is inconsistent with a plain reading of the definition itself;
b) it is inconsistent with a similar reading of other definitions in the same section of the Excise Act, 2001, which also cannot logically be cumulative; and
c) the official French definition in the same Act of “valeur a l’acquitte” does not use the conjunction “et” (and) between the two meanings and as such, the CBSA’s interpretation is inconsistent with a plain reading of this definition.
[26] The applicant noted that if this Court finds, as it should, that there are two possible valid interpretations of the meaning “duty-paid value”, then there is a presumption in favour of the applicant qua taxpayer. The applicant submitted that although the principle of strict interpretation of tax legislation has given way to a modern approach that is contextual and purposive, a residual presumption in favour of the taxpayer remains in cases of ambiguity (see Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3; Placer Dome Canada Ltd. v. Ontario (Minister of Finance), [2006] 1 S.C.R. 715).
[27] Finally, the applicant addressed the issue of available appeal routes. The applicant submitted that there are theoretically two appeal routes available. Firstly, an appeal to the CITT is possible if the determination at issue is under the Customs Act. However, the applicant submitted that the CITT has already confirmed that it lacks jurisdiction to hear the appeal because the issue is not one of a determination under the Customs Act. The applicant submitted that if this is a determination under the Excise Act, 2001, then an appeal lies to the Minister of National Revenue. The applicant submitted that if this is the appropriate appeal route, then this confirms that the assessment of additional duties is beyond the jurisdiction of the CBSA in the first place.
Respondent’s Submissions
[28] The respondent submitted that this Court lacks jurisdiction to hear this case. The respondent argued that the Customs Act provides a comprehensive recourse scheme to persons affected by a re-determination or further re-determination made pursuant to section 60 of the Act. The respondent noted that this appeal route culminates to an appeal to the CITT and thus, Parliament clearly intended to oust judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, C. F-7. The respondent noted that in the present case, the CITT has dismissed the applicant’s appeal on the grounds of a lack of jurisdiction, but argued that this decision is based upon the specific manner in which the applicant framed its appeal before the CITT. Specifically, the applicant had claimed that they did not take issue with the classification of the goods at issue. Furthermore, the respondent submitted that the applicant argued before the CITT that to decide the issue would deprive them of their appeal route under the Excise Act, 2001, which culminates to an appeal to the Tax Court of Canada. The respondent argued that this is simply not the case as the duties at issue are imposed under the Customs Act and as such, these appeal mechanisms under the Excise Act, 2001 are not available to the applicant. The respondent also noted that the matter was dealt with before the CITT as a preliminary motion, without the benefit of oral argument.
[29] The respondent then went on to address the appropriate standard of review. With regards to the presence of a privative clause, the respondent submitted that a re-determination or further re-determination made by the president of the CBSA pursuant to section 60 of the Customs Act, is not subject to be restrained, prohibited, removed or otherwise dealt with except by way of an appeal to the CITT. Thus, a high level of deference is owed by a reviewing court. As to the expertise of the CBSA, the respondent submitted that the calculation of duties and taxes on imported goods is a matter falling squarely within the expertise of the CBSA. The respondent submitted that sections 59 to 68 of the Act establish a comprehensive statutory scheme governing recourse in respect of re-determinations issued by the CBSA and as such, a significant amount of deference is owed. The respondent submitted that as re-determinations are highly fact specific deference is warranted. The respondent concluded that with respect to the question of jurisdiction, the appropriate standard of review is correctness. With respect to the issue of calculation of duties, the applicable standard of review is patent unreasonableness, or in the alternative, reasonableness.
[30] The respondent submitted that the legislation makes it clear that the CBSA has jurisdiction to issue re-determinations regarding the excise and additional duties owing on goods. The respondent submitted that the legislative scheme is as follows. Section 44 of the Excise Act, 2001 provides that duties imposed under sections 42 and 43 of the Excise Act, 2001 shall be paid and collected under the Customs Act. Duties imposed under the Customs Act are collected by CBSA officers. Therefore, the CBSA is responsible for the collection of all duties and taxes on imported tobacco products. The respondent also relied on the overall function of the Customs Act and Excise Act, 2001 to illustrate that the duties at issue here are indeed customs duties and not excise duties. Specifically, the respondent noted that while the Excise Act, 2001 deals with the formula for calculating duties on imported tobacco, it primarily deals with the scheme used to control domestic tobacco, (ie. a licensing program). Simply put, while the calculation formula for duties on imported tobacco is found in the Excise Act, 2001, the actual collection and payment of these duties is under the Customs Act, and not the Excise Act, 2001. The respondent further submitted that the difference between the functions of the two acts is even more apparent if we look at the appeal mechanisms. The appeal route in the Excise Act, 2001 is only available to amounts “payable” under the Excise Act, 2001 and therefore the applicant cannot avail themselves to this process. The respondent submitted that in short, domestic tobacco products are dealt with under the Excise Act, 2001 while imported goods, including imported tobacco products, fall within the scheme of the Customs Act. Thus, the collection of the duties at issue was squarely within the jurisdiction of the CBSA and as such, there exists no reviewable error of jurisdiction.
[31] With regards to the applicant’s submission that the CBSA wrongly interpreted “duty-paid value”, the respondent submitted that the CBSA correctly applied the calculation method set out in the definition of “duty-paid value”. The respondent submitted that an examination of the plain wording of the definition of “duty-paid value” provides that under paragraph (b) (which the parties agree is the applicable paragraph), the “duty-paid value” of cigars imported in plastic containers is based on the total value of the cigars as determined in paragraph (a), plus the value similarly determined for the containers. As paragraph (a) includes the value of the cigars plus the section 42 duty, the section 42 duty must be included in the calculation of the “duty-paid value” for the purposes of paragraph (b). The respondent also submitted that the modern approach to statutory interpretation is that the words of an act are to be read in their entire context and in their grammatical and ordinary sense keeping in mind the entire scheme, the purpose of the act and Parliament’s intent (see Rizzo & Rizzo Shoes Ltd. Re., [1998] 1 S.C.R. 27 at paragraph 21). The respondent further submitted that the applicant’s referral to a residual presumption in favour of the taxpayer only applies in exceptional cases where the ordinary principles of statutory interpretation cannot resolve the issue. The present case is not one of those cases since the meaning of “duty-paid value” is clear from a plain reading of the definition itself.
Analysis and Decision
[32] As the respondent raised a question regarding the jurisdiction of this Court to hear the present case, I will first address this issue.
[33] Issue 3
Does this Court have jurisdiction to hear this application for judicial review?
The respondent submitted that the Federal Court lacks jurisdiction to hear this case as the applicant has a statutory right of appeal to the CITT. The applicant submitted that as evidenced by the CITT’s decision dated October 31, 2006, the CITT does not have the jurisdiction to hear the issues raised in this case.
[34] Section 18.1 of the Federal Courts Act provides anyone directly affected by a decision the opportunity to apply to this Court for an application of judicial review in respect of the decision of a federal board, commission, and tribunal. However, section 18.5 precludes judicial review by the Federal Court in respect of a decision of a federal board where there already exists a statutory right of appeal to an enumerated body. Subsection 28(2) extends the limitation proscribed in section 18.5 to decisions of federal boards that are subject to the supervisory jurisdiction of the Federal Court of Appeal. The CITT is one of the federal boards enumerated in subsection 28(2). Thus, it must now be determined whether or not in the case before the Court, the applicant has a right to appeal to the CITT.
[35] I begin by looking at the legislative mechanism for appeals in the Customs Act. Subsection 60(1) of the Customs Act provides:
60.(1) A person to whom notice is given under subsection 59(2) in respect of goods may, within ninety days after the notice is given, request a re-determination or further re-determination of origin, tariff classification, value for duty or marking. The request may be made only after all amounts owing as duties and interest in respect of the goods are paid or security satisfactory to the Minister is given in respect of the total amount owing.
[36] Essentially, a person who has received notice under subsection 59(2) may make a request to the President of the CBSA for a re-determination or further re-determination of origin, tariff classification, value for duty or marking. The President then takes one of the actions listed in subsection 60(4) and gives notice to the person who made the request as per subsection 60(5). If an applicant is not satisfied with the decision of the President made under section 60, they may further appeal that decision to the Canadian International Trade Tribunal pursuant to subsection 67(1) of the Act:
67.(1) A person aggrieved by a decision of the President made under section 60 or 61 may appeal from the decision to the Canadian International Trade Tribunal by filing a notice of appeal in writing with the President and the Secretary of the Canadian International Trade Tribunal within ninety days after the time notice of the decision was given.
[37] The language used in these sections appears to indicate that the appeal procedure outlined above is available to the applicant; a decision was rendered by the President of the CBSA under subsection 60(1), and thus subsection 67(1) was activated.
[38] While procedurally it appears that the applicant has a right of appeal to the CITT, it was argued by the applicant that the CITT has no jurisdiction over the substance of the questions at issue. The jurisdiction of the CITT can be found in its enabling statue, the Canadian International Trade Tribunal Act, R.S., 1985, c. 47 (4th Supp.). Sections 16 and 17 deal with the powers, duties and functions of the CITT. The relevant subsection for the purpose of this case is subsection 16(c) which states:
16. The duties and functions of the Tribunal are to
c) hear, determine and deal with all appeals that, pursuant to any other Act of Parliament or regulations thereunder, may be made to the Tribunal, and all matters related thereto; and . . .
[39] It is clear that the appeal mechanism provided in subsection 67(1) of the Customs Act meets the necessary criteria to fall within the jurisdiction of the CITT under subsection 16(c). The words “and all matters related thereto” appear to indicate that the CITT has a broad jurisdiction when it comes to appeals. I do note, however, that the CITT’s jurisdiction is limited in that under subsection 67(1) of the Customs Act only decisions from the President of the CBSA’s regarding the re-determination of origin, tariff classification, value for duty or marking can be appealled. That is to say that the subject matter of appeals to the CITT is limited to the re-determination of origin, tariff classification, value for duty or marking under subsection 67(1) of the Customs Act. Thus, the remaining issue is whether or not the issues raised by the applicant are in relation to the re-determination of the value for duty by the President of the CBSA.
[40] The applicant submitted that the issues raised are not in relation to the re-determination of the value for duty by the President of the CBSA, but yet are questions of statutory interpretation. Furthermore, the applicant submitted that the duties in question are excise duties proscribed by sections 42 and 43 of the Excise Act, 2001 and as such, the right to appeal under subsection 67(1) of the Customs Act does not apply to the applicant. I do not accept these arguments.
[41] In relation to the submission that this is not an issue of re-determination of value for duty, I find that it is unrealistic for the applicant to claim that they are not taking issue with the re-determination of the value for duty. Whether a party is challenging the amount the value for duty is valued at or the procedure for calculating that amount, they are nonetheless challenging the re-determination of the duty for value. In my opinion, the amount and the procedure for reaching that amount are interrelated; the distinction alleged by the applicant is artificial. When the President of the CBSA approves an amount such as the duty for value, it is implicit that they are also approving the method of calculation used to derive that amount. The CITT has jurisdiction to decide questions of law, such as the interpretation of a certain section, in relation to the re-determination of a value for duty (Mattel, above). These decisions of law are then reviewable by the Federal Court of Appeal on a standard of correctness (Mattel, above).
[42] As for whether or not these duties are excise duties and thus not eligible to be appealed to the CITT, I am also not convinced that this is the case. While the method for calculating these duties is found in sections 42 and 43 of the Excise Act, 2001, the entire scheme governing their determination, re-determination, appeal, collection and payment is governed by the Customs Act.
[43] Section 2 of the Customs Act reads:
“duties” means any duties or taxes levied or imposed on imported goods under the Customs Tariff, the Excise Act, 2001, the Excise Tax Act, the Special Import Measures Act or any other Act of Parliament, but, for the purposes of subsection 3(1), paragraphs 59(3)(b ) and 65(1)(b ), sections 69 and 73 and subsections 74(1), 75(2) and 76(1), does not include taxes imposed under Part IX of the Excise Tax Act; [emphasis added]
Furthermore, section 44 of the Excise Act, 2001 reads:
44. The duties imposed under sections 42 and 43 on imported raw leaf tobacco and tobacco products shall be paid and collected under the Customs Act, and interest and penalties shall be imposed, calculated, paid and collected under that Act, as if the duties were a duty levied under section 20 of the Customs Tariff, and, for those purposes, the Customs Act applies with any modifications that the circumstances require. [emphasis added]
[44] These sections make it clear that while the method for determining the amount of value for duty is found in sections 42 and 43 of the Excise Act, these duties are customs duties. These duties are assessed by customs officers under the Customs Act and these assessments are subject to re-determinations under section 60 of the Customs Act.
[45] Having found that the applicant is taking issue with the re-determination of the value for duty made by the President of the CBSA under section 60, it follows that the CITT has jurisdiction and as such, the applicant has a statutory right of appeal under section 18.5 of the Federal Courts Act, therefore baring judicial review by this Court.
[46] In a decision dated October 31, 2006, the CITT granted a motion by the applicant to dismiss their appeal on the basis that the CITT lacked the necessary jurisdiction to decide the issues raised. I think it is necessary to note the following observations with respect to the CITT’s decision.
[47] Firstly, in its decision, the CITT found that the applicant was not challenging the re-determination of the value for duty, but yet the procedure provided in sections 42 and 43 of the Excise Act, 2001 which stipulate how to calculate the value for duty. In Tran v. Canada (National Revenue for Customs and Excise), [1990] C.I.T.T. No. 37, the CITT in assessing whether or not a procedure was correctly followed for determining the appropriate exchange rate stated:
On the final issue of exchange rate, the Tribunal finds that customs officials followed the correct procedures, as outlined in the Currency Exchange for Customs Valuation Regulations, in determining the value for duty and, accordingly, used the correct rate of exchange.
[48] This would indicate that in the past, the CITT has found it within their jurisdiction to make findings as to whether or not the correct procedure and calculation were followed to derive a certain value.
[49] Secondly, I think it is necessary to address the concern expressed by the CITT in their decision that to hear the appeal would be to deny the applicant the appeal mechanisms in sections 195 to 205 of the Excise Act, 2001. The appeal scheme provided in these sections is only triggered once the Minister has made an assessment of the duties payable under section 188 of the Excise Act, 2001. Section 188 limits the Minister’s assessment power to duties payable under the Excise Act, 2001:
188. (1) The Minister may assess
(a) the duty payable by a person for a fiscal month of the person; and
(b) subject to section 190, interest and any other amount payable by a person under this Act. [emphasis added]
[50] As already discussed, section 44 of the Excise Act, 2001 provides that the duties imposed under sections 42 and 43 of the Excise Act, 2001 (which are the issue of this judicial review) are to be paid and collected under the Customs Act. Therefore, it appears that the applicant would not have been able to avail itself of the appeal mechanisms provided in the Excise Act, 2001 and the CITT’s concerns were unwarranted.
[51] On a third and final note, the motion before the CITT was heard as a preliminary motion and did not have the benefit that this Court has in hearing oral arguments on the merits of the case.
[52] In my opinion, the applicant does have a statutory right of appeal to the CITT. Consequently, this Court’s jurisdiction under section 18.1 of the Federal Courts Act is ousted via section 18.5 and subsection 28(2).
[53] As a result of this finding, the application for judicial review must be dismissed with costs to the respondent.
[54] Because of my finding on this issue, I will not deal with the remaining issues.
JUDGMENT
[55] IT IS ORDERED that the application for judicial review is dismissed with costs to the respondent.
“John A. O’Keefe”
Judge
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set out in this section.
The Customs Act, R.S.C. 1985, c. C-1:
2.(1) In this Act,
"duties" means any duties or taxes levied or imposed on imported goods under the Customs Tariff, the Excise Act, 2001, the Excise Tax Act, the Special Import Measures Act or any other Act of Parliament, but, for the purposes of subsection 3(1), paragraphs 59(3)(b ) and 65(1)(b ), sections 69 and 73 and subsections 74(1), 75(2) and 76(1), does not include taxes imposed under Part IX of the Excise Tax Act;
58.(1) Any officer, or any officer within a class of officers, designated by the President for the purposes of this section, may determine the origin, tariff classification and value for duty of imported goods at or before the time they are accounted for under subsection 32(1), (3) or (5).
(2) If the origin, tariff classification and value for duty of imported goods are not determined under subsection (1), the origin, tariff classification and value for duty of the goods are deemed to be determined, for the purposes of this Act, to be as declared by the person accounting for the goods in the form prescribed under paragraph 32(1)(a). That determination is deemed to be made at the time the goods are accounted for under subsection 32(1), (3) or (5).
(3) A determination made under this section is not subject to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 59 to 61.
59.(1) An officer, or any officer within a class of officers, designated by the President for the purposes of this section may
(a) in the case of a determination under section 57.01 or 58, re-determine the origin, tariff classification, value for duty or marking determination of any imported goods at any time within
(i) four years after the date of the determination, on the basis of an audit or examination under section 42, a verification under section 42.01 or a verification of origin under section 42.1, or
(ii) four years after the date of the determination, if the Minister considers it advisable to make the re-determination; and
(b) further re-determine the origin, tariff classification or value for duty of imported goods, within four years after the date of the determination or, if the Minister deems it advisable, within such further time as may be prescribed, on the basis of an audit or examination under section 42, a verification under section 42.01 or a verification of origin under section 42.1 that is conducted after the granting of a refund under paragraphs 74(1)(c.1), (c.11), (e), (f) or (g) that is treated by subsection 74(1.1) as a re-determination under paragraph (a) or the making of a correction under section 32.2 that is treated by subsection 32.2(3) as a re-determination under paragraph (a).
(2) An officer who makes a determination under subsection 57.01(1) or 58(1) or a re-determination or further re-determination under subsection (1) shall without delay give notice of the determination, re-determination or further re-determination, including the rationale on which it is made, to the prescribed persons.
(3) Every prescribed person who is given notice of a determination, re-determination or further re-determination under subsection (2) shall, in accordance with that decision,
(a) pay any amount owing, or additional amount owing, as the case may be, as duties in respect of the goods or, if a request is made under section 60, pay that amount or give security satisfactory to the Minister in respect of that amount and any interest owing or that may become owing on that amount; or
(b) be given a refund of any duties, or a refund of any duties and interest paid (other than interest that was paid because duties were not paid when required by subsection 32(5) or section 33), in excess of the duties owing in respect of the goods.
(4) Any amount owing by or to a person under subsection (3) or 66(3) in respect of goods, other than an amount in respect of which security is given, is payable immediately, whether or not a request is made under section 60.
(5) For the purposes of paragraph (3)(a), the amount owing as duties in respect of goods under subsection (3) as a result of a determination made under subsection 58(1) does not include any amount owing as duties in respect of the goods under section 32 or 33.
(6) A re-determination or further re-determination made under this section is not subject to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by subsection 59(1) and sections 60 and 61.
60.(1) A person to whom notice is given under subsection 59(2) in respect of goods may, within ninety days after the notice is given, request a re-determination or further re-determination of origin, tariff classification, value for duty or marking. The request may be made only after all amounts owing as duties and interest in respect of the goods are paid or security satisfactory to the Minister is given in respect of the total amount owing.
(2) A person may request a review of an advance ruling made under section 43.1 within ninety days after it is given to the person.
(3) A request under this section must be made to the President in the prescribed form and manner, with the prescribed information.
(4) On receipt of a request under this section, the President shall, without delay,
(a) re-determine or further re-determine the origin, tariff classification or value for duty;
(b) affirm, revise or reverse the advance ruling; or
(c) re-determine or further re-determine the marking determination.
(5) The President shall without delay give notice of a decision made under subsection (4), including the rationale on which the decision is made, to the person who made the request.
61.(1) The President may
(a) re-determine or further re-determine the origin, tariff classification or value for duty of imported goods
(i) at any time after a re-determination or further re-determination is made under paragraph 60(4)(a), but before an appeal is heard under section 67, on the recommendation of the Attorney General of Canada, if the re-determination or further re-determination would reduce duties payable on the goods,
(ii) at any time, if the person who accounted for the goods under subsection 32(1), (3) or (5) fails to comply with any provision of this Act or the regulations or commits an offence under this Act in respect of the goods, and
(iii) at any time, if the re-determination or further re-determination would give effect to a decision of the Canadian International Trade Tribunal, the Federal Court of Appeal or the Supreme Court of Canada made in respect of the goods;
(b) re-determine or further re-determine the marking determination of imported goods
(i) within four years after the date the determination was made under section 57.01, if the Minister considers it advisable to make the re-determination,
(ii) at any time, if the person who is given notice of a marking determination under section 57.01 or of a re-determination under paragraph 59(1)(a) fails to comply with any provision of this Act or the regulations or commits an offence under this Act in respect of the goods,
(iii) at any time, if the re-determination or further re-determination would give effect to a decision made in respect of the goods by the Canadian International Trade Tribunal, the Federal Court of Appeal or the Supreme Court of Canada, and
(iv) at any time after a re-determination is made under paragraph 60(4)(c), but before an appeal is heard under section 67, on the recommendation of the Attorney General of Canada; and
(c) re-determine or further re-determine the origin, tariff classification or value for duty of imported goods (in this paragraph referred to as the “subsequent goods”), at any time, if the re-determination or further re-determination would give effect, in respect of the subsequent goods, to a decision of the Canadian International Trade Tribunal, the Federal Court of Appeal or the Supreme Court of Canada, or of the President under subparagraph (a)(i),
(i) that relates to the origin or tariff classification of other like goods imported by the same importer or owner on or before the date of importat