Canada (Customs and Revenue Agency) v. M & M Footwear Inc.

Canada (Customs and Revenue Agency) v. M & M Footwear Inc. Court (s) Database Federal Court of Appeal Decisions Date 2004-04-28 Neutral citation 2004 FCA 170 File numbers A-339-03 Decision Content Date: 20040428 Docket: A-339-03 Citation: 2004 FCA 170 CORAM: DESJARDINS J.A. NOËL J.A. NADON J.A. BETWEEN: THE COMMISSIONER FOR THE CANADA CUSTOMS AND REVENUE AGENCY Appellant and M & M FOOTWEAR INC. Respondent Heard at Ottawa, Ontario, on April 28, 2004. Judgment delivered from the Bench at Ottawa, Ontario, on April 28, 2004. REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS J.A. CONCURRED IN BY: NOËL J.A. NADON J.A. Date: 20040428 Docket: A-339-03 Citation: 2004 FCA 170 CORAM: DESJARDINS J.A. NOËL J.A. NADON J.A. BETWEEN: THE COMMISSIONER FOR THE CANADA CUSTOMS AND REVENUE AGENCY Appellant and M & M FOOTWEAR INC. Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on April 28, 2004) DESJARDINS J.A. [1] This is an appeal under section 62 of the Special Import Measures Act (SIMA) from a decision of the Canadian International Trade Tribunal (the Tribunal) which allowed the respondent's appeal regarding the assessment of anti-dumping duties on women's boots originating in the People's Republic of China, imported between September 1 and November 30, 2000. [2] Both parties agree that the standard of review of the decision of the Tribunal is one of reasonableness simpliciter (2703319 Canada Inc. (c.o.b. VWV Enterprises) v. Canadian Deputy Minister of National Revenue) 250 N.R. 381 FCA; Law Society of New Brunswick v. Ryan (2003), 223 D.L.R. (4th) 577 (S.C.C.). [3] The issue before the Tribunal was whether the women's waterproof boots imported by the respondent were goods of the same description as the goods to which the 1990 Finding by the Tribunal applied. [4] The 1990 Finding excluded from anti-dumping duties the following goods: Specifically excluded from the class of goods under inquiry were sandals, slippers, sports footwear, waterproof rubber footwear, waterproof plastic footwear, safety footwear incorporating protective metal toe caps, orthopedic footwear, wooden shoes and canvas footwear. [Emphasis in original.] Waterproof rubber footwear and waterproof plastic footwear were defined as footwear with outer soles and uppers made of rubber or plastic, the uppers of which were neither fixed to the sole nor assembled by stitching, riveting, nailing, plugging or similar processes. The term "outer sole" meant that part of the footwear (other than an attached heel) which, when in use, was in contact with the ground. The "upper" was the part of the shoe or boot above the sole. Where a single piece of material was used to form the sole and either the whole or part of the upper, the upper was generally defined as that portion of the shoe which covered the sides and top of the foot. For further clarity, plastic or rubber footwear with tops assembled by stitching was excluded from the inquiry if the upper was moulded to a height in the near vicinity of the ankle and was free of stitching or fastenings below that level. For example, footwear commonly known as "duck boots" or "bean boots" were not subject to this inquiry. [Emphasis added.] [5] The Tribunal found, and the appellant takes no issue, that the nylon material used to make the uppers of the respondent's boots met the plastic condition of the extended definition. [6] The appellant's first contention relates to the first part of the extended definition which reads: Waterproof rubber footwear and waterproof plastic footwear were defined as footwear with outer soles and uppers made of rubber or plastic, the uppers of which were neither fixed to the sole nor assembled by stitching, riveting, nailing, plugging or similar processes. [7] The appellant claims that the Tribunal erred in finding ambiguous that part of the extended definition which requires that the uppers be assembled by a means other than stitching. To resolve the ambiguity, the Tribunal further erred, the appellant says, by reverting to the French version of the definition of "waterproof plastic footwear" found in the final determination of dumping and subsidizing made by the Deputy Minister of National Revenue on April 3, 1990, at Appendix C, to interpret the words "nor assembled" of the extended definition. The appellant contends that the Tribunal should have reverted instead to the Customs Tariff, (1997, c.36). [8] It was open to the Tribunal, in our view, to revert to Appendix C rather than to the Customs Tariff, to resolve what it felt was an ambiguity, considering that the source of the extended definition was Appendix C to the final determination of dumping and subsidizing, and considering that the Tribunal was of the view that there was no indication it intended, in the 1990 Finding, to modify the scope of the subject goods. [9] We cannot say that the Tribunal acted in an unreasonable manner by doing so. [10] The appellant's second contention relates to the last part of the extended definition which states: For further clarity, plastic or rubber footwear with tops assembled by stitching was excluded from the inquiry if the upper was moulded to a height in the near vicinity of the ankle and was free of stitching or fastenings below that level. For example, footwear commonly known as "duck boots" or "bean boots" were not subject to this inquiry. [Emphasis added.] [11] The appellant claims that having concluded that the goods in issue were not free of stitching below ankle level, the Tribunal could not conclude that the goods in issue were "waterproof rubber footwear and waterproof plastic footwear". The Tribunal, says the appellant, had to satisfy itself that the goods in issue met both requirements in order to be excluded from the inquiry, namely that: ... the upper was moulded to a height in the near vicinity of the ankle and was free of stitching or fastenings below that level. [Emphasis added.] [12] The first requirement was met, the appellant says, because the Tribunal found that the goods in issue did not have moulded uppers. But the second was not, he says, considering the Tribunal's earlier finding that the goods in issue were not free of stitching below ankle level. [13] A reading of the decision makes it clear that the Tribunal found that the goods in issue met the definition of "waterproof rubber footwear and waterproof plastic footwear" because they qualified under the first part of the extended definition. The Tribunal then found that the fact that they did not qualify under the last part of the extended definition was irrelevant because the last part of the extended definition existed only "[f]or further clarity". [14] We cannot find the conclusion of the Tribunal to be unreasonable. [15] This appeal will be dismissed with costs. "Alice Desjardins J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-339-03 APPEAL FROM A DECISION OF THE CANADIAN INTERNATIONAL TRADE TRIBUNAL DATED MAY 8, 2003. STYLE OF CAUSE: THE COMMISSIONER FOR THE CANADA CUSTOMS AND REVENUE AGENCY v. M & M FOOTWEAR INC. PLACE OF HEARING: OTTAWA DATE OF HEARING: APRIL 28, 2004 REASONS FOR JUDGMENT OF THE COURT: Desjardins, Noël, Nadon JJ.A. DELIVERED FROM THE BENCH BY: Desjardins, J.A. APPEARANCES: Mr. Louis Sébastien FOR THE APPELLANT Mr. Glenn Leslie Mr. Greg Kanargelidis FOR THE RESPONDENT SOLICITORS OF RECORD: Morris Rosenberg, Deputy Attorney General of Canada FOR THE APPELLANT Blake Cassels & Graydon LLP - Toronto FOR THE RESPONDENT