Wilbur-Ellis Co. of Canada Ltd. v. Deputy M.N.R., Customs and Excise
A-431-94
Isaac C.J.
30/10/95
11 pp.
Appeal from Trial Division order granting respondent, under R. 324, leave to appeal decision of Canadian International Trade Tribunal (CITT) dismissing respondent's appeal from decision of Deputy M.N.R., Customs and Excise, assigning tariff classification to sardine oil imported by respondent from Japan and specifying no extension of time required-Whether Motions Judge had jurisdiction to grant leave, pursuant to Customs Act, s. 68(1), to appeal CITT decision after expiration of 90-day limitation period-Motion for leave to appeal CITT decision filed in F.C.T.D.-Respondent filed notice of motion 56 days after CITT decision-90-day period after CITT decision expired on 9/8/94-Order in appeal made 111 days after CITT decision-In Nordic Laboratories Inc. v. Minister of National Revenue (Customs and Excise) (1993), 65 F.T.R. 161 (F.C.T.D.), Customs Act, s. 68(1) interpreted as meaning once leave granted, decision operating to activate appeal nunc pro tunc as of date leave to appeal application filed-Nordic Laboratories Inc. rendered per incuriam-Settled in prior decisions of Court of Appeal, Westclox Canada Ltd. v. Pyrotronics of Canada Ltd., [1981] 2 F.C. 68 and Minister of National Revenue (Customs and Excise) v. Philips Electronics Ltd. (1993), 151 N.R. 178 (F.C.A.) predecessor s. of 68(1), (48(1)) requiring applicant to both obtain leave to appeal and to file and serve notice of appeal within prescribed period, Court adding cannot extend time for obtaining leave to appeal and filing notice of appeal under s. 48(1) as period of time to be extended no longer existing-Court also dismissing argument applicant would lose control of proceedings if s. 68(1) interpreted as requiring to both obtain leave to appeal and to file and serve notice of appeal within prescribed period-90-day period in s. 68(1) not subject to enlargement, even on consent-Furthermore, no authority in T.D. to make order that notice of appeal may be filed nunc pro tunc as no statutory warrant either expressed or implied in Federal Court Act or in Customs Act-Finally, language of s. 68(1) plain and admitting only one meaning: leave to appeal must be obtained and notice of appeal filed within prescribed 90-day period-Loss of control argument completely answered by R. 317 allowing applicant to bring motion for leave on 2 days' notice and to request early hearing having regard to circumstances of case-Motions Judge therefore without jurisdiction to make order in appeal-Appeal allowed-Federal Court Act, R.S.C., 1985, c. F-7-Federal Court Rules, C.R.C., c. 663, RR. 317, 324-Customs Act, R.S.C. 1970, c. C-40, s. 48(1)-Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, s. 68(1).