Emerson Electric Canada Ltd. v. M.N.R.
T-2617-95
Noël J.
14/2/97
23 pp.
Judicial review of Minister's decision confirming revocation of remission of duty orders granted to applicant-Applicant importing woodworking tools for sale to companies such as Sears Canada under "Craftsman" trade name-Not paying customs duties on imports of tools subject to remission orders by Minister pursuant to Customs Tariff, s. 76 i.e. Minister of opinion machinery not available from production in Canada-On May 5, 1995 applicant advised of termination of remission of customs duties on imports of certain tools as reasonably equivalent products manufactured in Canada by General MFG. Co.-Extensions of remission orders to December 31, 1995 granted on July 31, 1995-On August 11, 1995 revocation of remission orders confirmed-Applicant subsequently learning Minister's decision to revoke made May 29, 1995-Application dismissed-In order to hold applicant's imports no longer eligible for remission, Minister required to form opinion products had "become available from production in Canada" pursuant to s. 76(3)-In forming opinion, Minister required to have regard to criteria in s. 75(3)-Use of "may" in ss. 76(1), (3) indicating discretion to refuse grant of remission or to revoke existing remission order even where machinery, equipment not available from production in Canada-(1) Minister not exceeding jurisdiction-Whether "new" information before Minister irrelevant-Question whether had before him information from which could form opinion contemplated by s. 76(3)-Information before Minister allowing for comparison of respective products, hence for forming opinion as to equivalency-That different conclusion reached in past based on same facts not preventing Minister from taking different position so long as doing so in good faith with view of better attaining statutory objectives-Decision not based on irrelevant considerations-Applying statutory provision in consistent fashion by reference to validly established criteria so as to achieve equal treatment amongst those affected not improper consideration-(2) Minister not ignoring evidence or reaching decision based on erroneous finding of fact-General MFG's production aimed at industrial user, whereas applicant's imports aimed at amateur woodworker-That product may be intended for given segment of market not preventing it from reaching other segments of market-Intermingled use by professional woodworkers, amateurs possible-Even if General MFG's products not equivalent, remaining open to Minister to conclude applicant's imports "available from production in Canada" if satisfied General MFG in position to produce reasonably equivalent products-(3) No failure to observe procedural fairness-Minister's decision based on broad grounds of public policy-Affording little or no procedural protection-Policy decision based on broader range of considerations involving competing interests of increased domestic industrial efficiency by providing access to otherwise inaccessible foreign manufactured goods, and protection for Canadian manufacturers in position to produce such goods-Statutory scheme indicative of highly discretionary nature of Minister's power in making decisions pursuant to Division III, Customs Tariff-Indicating legislative intent that while eligibility of products for duty remission must be determined in conformity with specified statutory criteria, decision to remit duties left to Minister's discretion-Decision a quo non-judicial-Ultimate power to remit or not vested in Minister in order to enable him to respond to industrial, trade, fiscal concerns-Such considerations reaching beyond applicant's particular concerns, calling for legislative or policy decision-In so far as decision to revoke remission orders, collect appropriate duties concerned, only remedy available to applicant political, not legal-Applying factors identified in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 to ascertain existence, extent of duty of fairness, strong argument applicant entitled to state views before Minister could hold imports no longer eligible for remission-Applicant making submissions well before effective date of decision-Although May 5 communication both wrong, inaccurate and July 31 communication less than forthright, not type of breach warranting overturning Minister's decision-As informed of decision, reasons, effective date, well before to take effect, applicant not prevented from addressing issues relevant to position-Customs Tariff, R.S.C., 1985 (3rd Supp.), c. 41, ss. 75, 76 (as am. by R.S.C., 1985 (4th Supp.), c. 9, s. 2).