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A-112-71
Maple Leaf Mills Limited (Appellant)
v.
The Queen (Respondent)
Court of Appeal, Jackett CJ., Ryan J. and Hyde D.J.—Montreal, October 8 and 10, 1974.
Customs tariff—Dumping duty—U.S. goods purchased by U.S. subsidiary company—Sale by subsidiary to parent com pany in Canada at higher price—Whether goods outside "a class or kind made in Canada"—Whether selling price to importer less than fair market value of "value for duty"— Burden of proof—Customs Tariff, R.S.C. 1952, c. 60, s. 6(1)—Customs Act, R.S.C. 1952, c. 58, s. 36(1).
Appeal by the appellant from the dismissal of a petition of right. In 1964, the appellant purchased goods of a class or kind not made in Canada from its United States' subsidiary at a price more than the price paid by the subsidiary to the Florida manufacturer of the goods. Dumping duty was imposed under section 6 of the Customs Tariff, on the ground that the actual selling price of the goods to the appellant was less than the fair market value. The assess ment was based on the assumption that the appellant's subsidiary acted as agent for the appellant in the purchase of the goods.
Held, the appeal is dismissed. On a balance of probability, it does not appear that the substance imported falls outside the words "goods ... of a class or kind made or produced in Canada" in section 6 of the Customs Tariff and the evidence clearly establishes that the goods were shipped "directly" to Canada from Florida and therefore the selling price was less than the "value for duty" of the goods as determined by section 36(1) of the Customs Act.
APPEAL. COUNSEL:
Julian Chipman, Q.C., for appellant. R. Cousineau for respondent.
SOLICITORS:
Ogilvy, Cope, Porteous, Hansard, Marler, Montgomery & Renault, Montreal, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment delivered in English by
JACKETT C.J.: This is an appeal from a judg ment of the Trial Division [[19711 F.C. 137] dismissing with costs a Petition of Right by which the substantive relief sought was repay ment of $18,529.29 paid, pursuant to demand made on behalf of the respondent, as special or dumping duty under section 6 of the Customs Tariff in respect of importations during the year 1964, which duty was, the appellant contends, not payable on the facts of the particular importations.
The appeal was argued on the basis that, if it were established that dumping duty was not payable in respect of the importations in ques tion, the appellant should have judgment for repayment of the duty paid and it is not, there fore, necessary for us to say anything as to the law concerning money paid under mistake that is applicable.
The learned Trial Judge applied section 248 of the Customs Act to place the burden of proof as to the relevant facts on the appellant. During the course of argument, we indicated that we were all of the view that section 248 does not apply in the circumstances of this case. I am, nevertheless, of the view that the onus of prov ing the facts necessary to establish its case rested on the appellant as "plaintiff".
In so far as applicable to the facts of this case, section 6(1) of the Customs Tariff (R.S.C. 1952, c. 60), as applicable at the relevant time, read as follows:
6. (1) In the case of goods exported to Canada of a class or kind made or produced in Canada, if the export or actual selling price to an importer in Canada is less than the fair market value or the value for duty of the goods as deter mined under ... the Customs Act, there shall ... be levied, collected and paid on such goods, on their importation into Canada, a special or dumping duty, equal to the difference between the said selling price ... and the said value for duty thereof; ... .
This provision must be read with section 36(1) of the Customs Act, as it was at the relevant time, which provided that, in the ordinary case, the "value for duty" was the fair market value
"at the time when and the place from which the goods were shipped directly to Canada" of "like goods" when sold under certain circumstances.
The appellant made two attacks on the validi ty of the respondent's demand for dumping duty, viz:
(a) it said that the goods that it imported were not "of a class or kind made or produced in Canada" and
(b) it said that the "selling price" of the goods exported to it was not less than the value for duty of the goods as determined under the Customs Act.
With reference to the "class or kind" point, no admissible evidence was led by either party; but certain allegations in the Petition of Right were admitted in whole or in part by the Defence. Such admissions were summarized by the learned Trial Judge in his reasons for judg ment. On the facts so admitted, I am of opinion that it does not appear, on a balance of probabil ity, that the substance imported falls outside the words "goods ... of a class or kind made or produced in Canada" in section 6 of the Cus toms Tariff. On this point, therefore, in my view, the appellant does not succeed on the appeal.
It remains to consider whether the appellant has succeeded on the other branch of its appeal referred to above. In other words: Has it been established by the material put before the Trial Division that the "selling price of the goods for export" was not in excess of the "value for duty"?
With regard to this second point, it is common ground that if the "place from which the goods were shipped directly to Canada" was Coronet, Florida, the answer to the second point must be against the appellant, but, if that "place" was Philadelphia, the answer must be in its favour.
In my view, a careful review of the evidence establishes clearly that the goods in question were shipped "directly" to Canada from Coro net, Florida. It follows that the second point
must also be decided against the appellant.
[It should be noted that neither party relied on section 43 of the Customs Act, as it was at the relevant time, as supporting its view on either of the questions in issue. It is not, therefore, neces sary to express any opinion as to whether that section has any application to the facts of this appeal.]
For the above reasons, in my view, the appeal should be dismissed with costs.
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RYAN J.: I concur.
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HYDE D.J.: I concur.
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