SMC Pneumatics ( Canada ) Ltd. v. Deputy M.N.R., Customs and Excise
A-397-97
Isaac C.J. and Rothstein J.A.
21/10/99
9 pp.
Appeal from order ((1997), 130 F.T.R. 174) dismissing application for judicial review of respondent's decision rejecting appellant's request for refund of certain duties pursuant to Customs Tariff Act, s. 77-Act providing for remission of customs duty when machinery, equipment not available from production in Canada-Permitting Minister to establish list of such machinery, equipment in which case customs duties not payable-When machinery, equipment not on list, applicant may apply for remission and, if Minister satisfied machinery, equipment not available from production in Canada, may remit customs duties paid on importation-Remission authority granted for specified period, during which refunds of customs duties paid on importation may be claimed-In 1989 W.C.I. Manufacturing applying under s. 76(1) for remission of customs duties for purpose of importing solenoid valves, parts for manufacture of washing machines-In February 1990, Minister issuing remission authority for May 1, 1989 to February 28, 1995-In January 1994 Minister issuing Memorandum D8-5-1 permitting assignment of rights to remission, except under remission authority for production parts-On February 24, 1995, W.C.I. Manufacturing assigned remission authority to appellant-On February 27 appellant applied for refund of customs duties-Minister rejecting claim on basis goods production parts-Per Isaac C.J. (Linden J.A. concurring): appeal dismissed for reasons given by Motions Judge-Minister's discretion not fettered-Not contrary to plain meaning of Minister's policy statement to have applied transferability prohibition to remission order issued prior to publication of statement-Per Rothstein J.A. (dissenting): Minister not having discretion to refuse refund under s. 77(1)-Minister issuing remission authority long before issuing Memorandum D8-5-1-When remission authority issued, not subject to any restriction on assignment-Once issued, Minister had completed exercise of discretion vested in him under s. 76(1), (2)-Provided applicant complying with s. 77, entitled to refund-S. 77(2)(a) requiring application for refund be supported by such evidence as Minister may require-While giving Minister discretion as to evidence may require, not conferring upon Minister authority to re-exercise discretion vested in him under s. 76(1), (2) and in respect of which functus when refund application made-S. 77(2)(b) providing application for refund to be made in prescribed manner, form containing prescribed information-No regulations prescribed in respect of s. 77(2)(b)-Informality of refund application process not vesting in Minister discretion to refuse application for refund if made by assignee of remission authority-Minister neither restricting remission authority pursuant to s. 76(1), (2) by providing not assignable in whole or in part, nor revoking authority in accordance with s. 76(3)-Assignee standing in shoes of person to whom remission authority issued, entitled to refund to which original applicant for remission entitled; refund should have been allowed-Customs Tariff Act, R.S.C., 1985 (3rd Supp.), c. 41, ss. 76, 77.