[2000] 4 F.C. 404
A-226-99
Johns Manville International, Inc. (Appellant)
v.
The Deputy Minister, National Revenue (Respondent)
Indexed as: Johns Manville International, Inc. v. Deputy M.N.R., Customs and Excise (C.A.)
Court of Appeal, Linden, Rothstein and McDonald JJ.A.—Ottawa, June 13, 2000.
Customs and Excise — Customs Act — Cross-appeal from order requiring disclosure of information supplied by appellant contained in Minister’s Detailed Adjustment Statement pursuant to Customs Act, s. 108(3) — S. 108(3) permitting disclosure of any book, record, writing, other document obtained for purpose of Customs Act, Tariff to person by or on behalf of whom book, record, writing or other document provided — Distinction between disclosure of information in s. 108(1), disclosure in s. 108(3) — S. 108(3) not authorizing disclosure of information herein as not “book, record, writing or other document” — Order based on misinterpretation of s. 108(3), quashed in entirety.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, s. 108(1) (as am. by S.C. 1995, c. 41, s. 28), (3) (as am. idem).
Customs Tariff, R.S.C., 1985 (3rd Supp.), c. 41.
CROSS-APPEAL from the Trial Division order requiring disclosure of information originally supplied by the appellant contained in the Minister’s Detailed Adjustment Statement pursuant to Customs Act, subsection 108(3) (Johns Manville International, Inc. v. Deputy M.N.R., Customs and Excise, [1999] 3 F.C. 95 (1999), 171 F.T.R. 224 (T.D.)). Cross-appeal allowed.
APPEARANCES:
Geoffrey C. Kubrick for appellant.
Anne M. Turley and Elizabeth Richards for respondent.
SOLICITORS OF RECORD:
Flavell Kubrick & Lalonde, Ottawa, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
[1] Rothstein J.A.: On the issues the appellant appeals in the judgment of the Trial Division of March 18, 1999 [[1999] 3 F.C. 95 (T.D.)], we have not been persuaded that the learned Judge made any error. The appeal should therefore be dismissed.
[2] With respect to the respondent’s cross-appeal relative to subsection 108(3) of the Customs Act [R.S.C., 1985 (2nd Supp.), c. 1 (as am. by S.C. 1995, c. 41, s. 28)], we are of the respectful opinion that the Trial Judge erred in finding that subsection 108(3) provides for disclosure of information to the appellant in this case. Subsection 108(3) states that an officer may show any book, record, writing or other document obtained for the purpose of the Customs Act or the Customs Tariff [R.S.C., 1985 (3rd Supp.), c. 41], or permit a copy thereof to be given to the person by or on behalf of whom the book, record, writing or other document was provided. There is no reference to “information” in subsection 108(3) as there is, for example, in subsection 108(1) [as am. idem]. Parliament has clearly made a deliberate distinction between disclosure of information in subsection 108(1) on the one hand and disclosure of books, records, writing or other documents to persons who provided them under subsection 108(3). The Trial Division Judge ordered disclosure of information originally supplied by the appellant contained in the Minister’s Detailed Adjustment Statement. Subsection 108(3) does not authorize disclosure of such information. Information in the Detailed Adjustment Statement is not “a book, record, writing or other document” referred to in subsection 108(3).
[3] As the March 18, 1999 order made by the learned Judge was based on a misinterpretation of subsection 108(3), the order should be quashed in its entirety.
[4] The respondent points out that paragraph 108(1)(b) provides that persons authorized by the Minister may allow communication of information obtained under the Customs Act. The respondent concedes that the December 2, 1997 refusal to disclose to the appellant information in the Detailed Adjustment Statement was a purported exercise of discretion under paragraph 108(1)(b) but that it was not exercised by a person authorized by the Minister as required by that provision. In these circumstances, the Court would normally remit the matter for redetermination in accordance with paragraph 108(1)(b). However, the appellant’s position is that it does not want that relief. Accordingly, the appeal in that respect should be considered withdrawn.