Deputy Minister of National Revenue for Cus
toms and Excise (Appellant)
v.
Film Technique Ltd. and Canadian Kodak Co.
Limited (Respondents)
Court of Appeal, Jackett C.J., Thurlow J. and
MacKay D.J.—Ottawa, January 17, 29 and 31,
1973.
Customs and Excise—Statutes—Appeal—Official Lan-
guages—Appeal from Tariff Board—Classification of article
under Customs Tariff—Varying meanings in English and
French versions—Proper disposition of appeal—Official
Languages Act, R.S.C. 1970, c. 0-2, s. 8.
Respondent imported a color film analyzer in January
1969. Pursuant to section 43 of the Customs Act, 1955, c.
32, appellant classified it under Tariff Item 46200-1 as
"photographic ... instruments not otherwise provided for".
Respondent appealed from that decision to the Tariff Board
pursuant to section 44. The sole ground of the appeal was
that the analyzer should have been classified as "photo-
graphic equipment, namely ... timing devices" (in the
French version "accessoires pour prise de vues, savoir:
dispositifs réglant le temps de pose") under Tariff Item
46240-1. The Tariff Board upheld respondent's contention
and allowed the appeal. In March 1972 appellant appealed
from the Tariff Board's decision to the Federal Court pursu
ant to section 48 of the Customs Act, R.S.C. 1970, c. C-40,
contending that the Tariff Board erred in classifying the
analyzer as a "timing device". Respondent did not reply.
Held, the Tariff Board should have dismissed the appeal.
1. While the Tariff Board's conclusion that the analyzer
fell within Tariff Item 46240-1 may have been correct if its
English version only were considered (on the footing that
the word "timing" was used in the vernacular of the photo
graphic trade in that version), that construction was not
open having regard to the French version which could mean
only a device to regulate time of exposure, which meaning
was consistent with the ordinary meaning of the words in
the English version. Section 8 of the Official Languages
Act, R.S.C. 1970, c. O-2 required this conclusion.
2. The Court should not on this appeal reclassify the
analyzer under the "machines" item of the Customs Tariff
as that matter had not been raised before the Tariff Board.
3. Respondent having deliberately restricted its appeal
before the Tariff Board to the correctness of the classifica
tion under Tariff Item 46240-1 without denying that the
apparatus might also fall under Item 46200-1, and having
failed in its contention, the matter should not now be
referred back to the Tariff Board to permit respondent to
show that the item should be classified under some other
item. Nor in these circumstances should the Court now
review the classification of the analyzer by appellant under
Tariff Item 46200-1. Having regard to the course of pro
ceedings before the Tariff Board the only judgment that the
Board could properly have given was a judgment dismissing
the appeal and this Court should now give the judgment that
the Board should have given.
APICAL from the Tariff Board.
COUNSEL:
L. M. Sali for appellant.
R. W. McKimm for Film Technique Ltd.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Bergh Dioguardi & Co., Ottawa, for
respondents.
JACKETT C.J.—This is an appeal from a deci
sion off the Tariff Board that a certain apparatus
fell within Item 46240-1 of the Customs Tariff,
R.S.C. 1970, c. C-41, and that it was, in particu
lar, covered by that part of Item 46240-1 that
reads as follows:
Photographic equipment, namely:
Timing devices
The article in question is known as "Model
2105 Hazeltine Color Film Analyzer" (hereinaf-
ter referred to as the "Analyzer") and its nature
is to be determined by reading the following
portion of the Tariff Board's Declaration:
Before a positive print may be made from a
negative film, whether that film be of the colour or
black and white variety or of the still or motion
picture type, it is necessary for the film technician to
make certain corrections or adjustments in density
and colour balance to determine the proper exposure
data necessary to obtain an acceptable print. This
procedure, the evidence shows, is widely known as
"timing" and the technician, as a "timer". Because
the appellant's business consists of specialized film
preparation for coloured motion pictures including
titling, animation and optical effects and because it
imported the analyzer for this purpose, the Board has
concerned itself with the methods used by the indus
try to determine the density and colour balance
necessary to obtain acceptable pictures from motion
picture negative colour film.
N.B.
Prior to the advent of the colour analyzer in issue
and of other similar devices, and even today if such
are not available, a very lengthy and costly process
was and is generally followed in the industry in order
to obtain the necessary data on corrections and
adjustments in density and colour balance for printing
motion picture films from negatives. Briefly, the pro
cess involved making positive prints and comparing
them with a colour filter reel known in the trade as a
"sinex". The operator, or "timer", would compare
the print with the sinex filter reel on a light-box, and
select one particular print as being, in his judgment,
acceptable. The density and colour value of the par
ticular filter used being known, it was then possible to
obtain similar results when printing the final positive.
The introduction of the analyzer and similar
apparatus allowed the photo technician to carry out
the operation described above in far less time and
presumably at less cost, although no direct evidence
was advanced on this latter point. Using the new
apparatus, the technician or "timer" may view a
colour negative electronically and instantly on the
television display screen as a positive image.
A single frame of negative colour film, represent
ative of a motion picture "scene" or "shot", is fed
into a television gate on the apparatus. The picture in
the frame of negative film appears on the television
tube but as a positive. By means of four control
knobs, one controlling density and three controlling
colour, the operator of the machine may make adjust
ments to produce a scene which, in his judgment, has
the desired density and colour balance.
The control knobs each have calibrated dials
from which readings may be taken. In the case of the
Hazeltine Model 2105 Analyzer the dials have 64
positions. When the operator is satisfied that the
adjustments made by him have produced a scene of
the desired density and colour balance, either accord
ing to his artistic judgment or by comparison with a
test picture, the control readings for each scene are
recorded. He then proceeds from scene to scene until
an entire motion picture film has been "analyzed".
The readings or "numerical values" for each
scene indicate the correct control adjustments to be
set for the film printer, printing being the next and
final stage in film processing. The printer, appropri
ately adjusted by the operator's recordings, will then
make positive colour prints of the desired density and
colour balance with up to 90 per cent accuracy.
Whether using the sinex method or the analyzer
in issue, the operator is viewing positive colour
images adjusted or controlled by filtering; in both
methods he makes a subjective judgment as to what
to him is an acceptable picture for printing, and in
both methods he obtains data for transposition to the
printer.
It is worthy of note here that it was common
ground during the argument in this Court that
the analyzer did not contain anything that might
be regarded as a device for "timing" in the,
ordinary sense of that word.
The Board found as a fact, however, that,
whether using the sinex method or the analyzer,
the operator's operations are generally known,
in the photographic trade in North America, as
"timing". It therefore found that the apparatus
in question was a "timing device, in the sense
that the word `timing' is used in the photograph
ic trade".
Having reached that point in its analysis of
the matter, the Board concluded its reasoning
on this aspect of the case as follows:
There remains for the Board to decide whether the Hazel-
tine Color Film Analyzer is a timing device in the sense
intended by Parliament when tariff item 46240-1 was enact
ed in 1957, having in mind that the analyzer and similar
devices did not exist, at least commercially, at that time.
The evidence adduced before the Board and an examina
tion of commercial advertisements filed as exhibits show
that timing devices for use mainly in darkrooms, the main
purpose of which is the measurement of time, are called
"timers". Such technological texts as the Desk Edition,
Focal Press, London and New York, refer to these items as
"timers", whether activated by clockwork or electrically.
Because Parliament used the expression "timing devices"
without any restricting or qualifying words, one must con
clude that by so doing it intended that expression to be
construed more broadly than to include only those articles
known in the photographic trade as "timers".
It is the Board's opinion that Parliament used the word
"timing" because it had in mind not only "timers" but other
devices used as aids for controlling density, colour balance
and exposure, which were already in use or which would
come into use as a consequence of technological advances.
In effect, as I appreciate the Board's reason
ing, the Board has concluded that the word
"timing" was used in Item 46240-1 in a sense in
which it is used in the photographer's trade,
which sense is not a sense in which the word is
ordinarily used; and, applying that sense, the
meaning of which they found as a fact on the
evidence, they concluded that the apparatus in
question fell within the words "Timing
devices".
If the sole version of Item 46240-1 to be
considered were the English version, I can see
that the Board's conclusion may have been
correct.'
We are bound, however, to consider also the
French version of the Tariff Board item in ques
tion, the relevant part of which reads as follows:
Accessoires pour prise de vues, savoir:
Dispositifs réglant le temps de pose
Section 8(1) of the Official Languages Act,
R.S. 1970, c. O-2, requires that, in construing an
enactment, both its versions in the official lan
guages are equally authentic; and section 8(2)
provides a number of rules for applying section
8(1), of which those that I find applicable here
read as follows:
(a) where it is alleged or appears that the two versions of
the enactment differ in their meaning, regard shall be had
to both its versions so that, subject to paragraph (c), the
like effect is given to the enactment in every part of
Canada in which the enactment is intended to apply,
unless a contrary intent is explicitly or implicitly evident;
(b) subject to paragraph (c), where in the enactment there
is a reference to a concept, matter or thing the reference
shall, in its expression in each version of the enactment,
be construed as a reference to the concept, matter or thing
to which in its expression in both versions of the enact
ment the reference is apt; , ... .
Having regard to the requirements of section 8
of the Official Languages Act, it seems clear to
me that, while it was, in my view, an acceptable
conclusion on the part of the Board, in the light
of the evidence, if one looked only at the Eng-
lish version of Item 46240-1, that the word
"timing" was used in the vernacular of the
photographic trade, that conclusion is not open,
when one looks at both versions because the
French version is so worded as to exclude any
meaning other than that of a device to regulate
the time of exposure, which meaning is consis-
tent with the ordinary meaning of the words
used in the English version' but is not consistent
with the meaning, as found by the Board, of the
word "timing" as used in the vernacular of the
photographic trade. Reading the two versions
together, as required by section 8, I am of
opinion that the words "Timing Devices", as
used in Item 46240-1, do not include the Hazel-
tine Color Film Analyzer in question.
I am, therefore, of opinion that the Tariff
Board's Declaration that the Hazeltine Color
Film Analyzer, Model 2105, in issue, is properly
classified as a timing device in Tariff Item
46240-1 cannot stand.
The Board's finding, on the only other issue
before it, that the apparatus in question was not
a "densitometer" within the same tariff item has
not been attacked. There are, however, certain
other problems that were raised on this appeal.
The respondent, 4 by its Memorandum of
Points of Argument, contends, in the alternative
to its contention based on Item 46240-1, that
the analyzer is more properly classified under
Item 46245-1 as "Motion picture editing equip
ment, namely: film editing machines ... film
viewers ..." than under the item in which it
was placed by the appellant. That tariff item,
however, applies only to equipment falling
within the words on which the respondent relies
in cases where the things in question are "for
use in the production of motion pictures by
professional producers having studios in Canada
equipped for motion picture production", and,
during argument, counsel for the respondent
conceded that further facts would have to be
established before it could be determined that
the "color film analyzer" in question falls within
the item. He did not, therefore, press his sub
mission that this Court classify the analyzer
under Item 46245-1.
During argument of this appeal, the respond
ent put forward an additional alternative posi
tion, namely, that the "color film analyzer" in
question should be classified under the "basket"
item relating to "Machines" (Item 42700-1).
In addition, the respondent submitted that, if
it were unsuccessful on the "Timing Devices"
question and also failed to persuade this Court,
itself, to classify the equipment in question
under one of the other items, there should be a
judgment referring the matter back to the Tariff
Board for a new hearing so that the respondent
might have an opportunity to persuade the
Tariff Board that the analyzer should be reclas
sified under some item other than the one on
which it based its contention at the original
hearing.
Finally, a question arose during argument of
the appeal as to whether, when this Court finds
that the Tariff Board has wrongfully classified
goods in an item other than that in which they
were put by the Deputy Minister, it has a right
or a duty to determine whether the classification
by the Deputy Minister is the correct
classification.
I deem it of some importance to get the
nature of this class of legal proceedings in per
spective for the purpose of considering these
questions that were not before the Tariff Board.
For that purpose, I propose to review the pro
ceedings in this matter and the relevant statuto
ry provisions chronologically.'
The following is the sequence of the relevant
events as I understand it:
1. On January 10, 1969, the Analyzer in
question was imported.
2. At that time, the administrative classifi
cation of imported goods was governed by
section 43 of the Customs Act as enacted by
chapter 32 of 1955 and amended by chapter
27 of 1962, which section read as follows:
43. (1) Subject to this section, a determination of the
tariff classification or an appraisal of the value for duty of
any goods, made at the time of their entry, is final and
conclusive unless the importer, within ninety days of the
date of entry, makes a written request in prescribed form
and manner to a Dominion Customs Appraiser for a
re-determination or a re-appraisal.
(2) A Dominion Customs Appraiser may re-determine
the tariff classification or re-appraise the value for duty of
any goods made at the time of their entry
(a) in accordance with a request made pursuant to
subsection (1), or
(b) in any other case where he deems it advisable,
within two years of the date of entry.
(3) Subject to subsection (4), a decision of a Dominion
Customs Appraiser under this section is final and conclu
sive unless the importer, within ninety days of the date of
the decision, makes a written request in prescribed form
and manner to the Deputy Minister for a re-determination
or a ref/appraisal.
(4) The Deputy Minister may re-determine the tariff
classification or re-appraise the value for duty of any
goods
(a) in accordance with a request made pursuant to
subsection (3),
(b) at any time, if the importer has made any misrep
resentation or committed any fraud in making the
entry of those goods,
(c) at any time, to give effect to a decision of the Tariff
Board, the Exchequer Court of Canada or the Supreme
Court of Canada with respect to those goods, and
(d) in any other case where he deems it advisable,
within two years of the date of entry of those goods.
(5) Where the tariff classification of goods has been
re-determined or the value for duty of goods has been
re-appraised under this section
(a) the importer shall pay any additional duties or taxes
payable with respect to the goods, or
(b) a refund shall be made of the whole or a part of any
duties or taxes paid with respect to the goods,
in accordance with the re-determination or re-appraisal.
(6) In this section "prescribed" means prescribed by
regulations of the Governor in Council.
Pursuant to this provision, the Deputy Minis
ter classified the Analyzer on February 3,
1971, as "photographic ... instruments not
otherwise provided for" under Tariff Item
46200-1.
3. Section 44(1) of the Customs Act, as it
was at that time, read in part as follows:
44. (1) A person who deems himself aggrieved by a
decision of the Deputy Minister
(a) as to tariff classification or value for duty,
may appeal from the decision to the Tariff Board by filing
a notice of appeal in writing with the secretary of the
Tariff Board within sixty days from the day on which the
decision was made.
(3) On any appeal under subsection (1), the Tariff
Board may make such order or finding as the nature of
the matter may require, and, without limiting the general
ity of the foregoing, may declare
(a) what rate of duty is applicable to the specific goods
or the class of goods with respect to which the appeal
was taken,
(b) the value for duty of the specific goods or class of
goods, or
(c) that such goods are exempt from duty,
and an order, finding or declaration of the Tariff Board is
final and conclusive subject to further appeal as provided
in section 45.
On March 17, 1971, by letter written by a Mr.
Ages, the respondent appealed from the
Deputy Minister's decision.
4. Pursuant to the practice of the Tariff
Board, the respondent filed a "Brief" on the
appeal reading in part as follows:
Part I
Statement of Facts
1. This is an Appeal to the Tariff Board under Section
44 of the Customs Act by Film Technique Ltd., Toronto,
from a decision of the Deputy Minister of National Reve
nue, for Customs and Excise, dated February 3, 1971,
relating to the tariff classification of a "Hazeltine" Model
2105 Color Film Analyzer imported under Toronto Entry
Number D-81169 dated January 10, 1969.
2. The Deputy Minister of National Revenue, for Cus
toms and Excise, has determined that the Model 2105
Color Film Analyzer is classified under tariff item
46200-1.
3. The Appellant contends that the Model 2105 Color
Film Analyzer should be classified under tariff item
46240-1.
Part II
Tariff items
46200-1 Instruments for observation, measurement,
experimentation or demonstration in respect of natural
phenomena, n.o.p., photographic, mathematical and opti
cal instruments, n.o.p., speedometers, cyclometers and
pedometers, n.o.p., parts of all the foregoing.
46240-1 Photographic equipment, namely: Densitome-
ters; Ferro-type plates; Film or paper processors for
photo-finishing; Film or print driers; Mounting presses;
Negative or sheet-film hangers; Print Straighteners; Print
Washers; Printers, contact; Printers, projection, common
ly known as enlargers, for negatives or positives four
inches by five inches and larger; Printers, power driven,
for photo-finishing; Tanks or trays for negative and posi
tive processing; Temperature controls or heaters for
photographic solution; Timing devices; Parts of all the
foregoing.
Part III
Point in Issue
4. Whether the Model 2015 [sic] Color Film Analyzer
in issue is entitled to entry under tariff item 46240-1.
Part IV
Argument
5. It is the Appellant's view that the Model 2105 Color
Film Analyzer should be classified under tariff item
46240-1 as a "Timing device" which is specifically pro
vided for in this item.
6. For the above reason, it is respectfully requested
that this appeal be allowed.
5. In accordance with the same practice,
the appellant filed a "Brief" in the Tariff
Board reading in part as follows:
Part III
POINT IN ISSUE
5. The point in issue in this appeal is whether the
imported analyzer is entitled to entry under the provisions
of Tariff Item 46240-1.
Part IV
ARGUMENT
6. It is submitted that the Deputy Minister of National
Revenue for Cûstoms and Excise was correct in classify
ing the analyzer in issue under Tariff Item 46200-1 since
it is not described in any of the provisions of Tariff Item
46240-1 and it is not otherwise provided for in the Cus
toms Tariff.
7. It is respectfully submitted that this appeal should be
dismissed.
6. The matter came on for hearing before
the Tariff Board on December 7, 1971, As
between the importer (the respondent here)
and the Deputy Minister (the appellant here)
the hearing was conducted on the issue as
defined by the Briefs. The importer contend
ed (and the Deputy Minister resisted the con
tention) that the Analyzer should have been
classified under Tariff Item 46240-16 (An
intervener introduced another contention,
which is now academic.)
7. The Tariff Board made a declaration on
January 19, 1972, allowing the appeal and
declaring that the Analyzer is properly classi
fied as a timing device in Tariff Item 46240-1.
8. Prior to the date of the Tariff Board's
decision, the provision for appeal from such a
decision was replaced by section 48 of the
Customs Act, R.S. 1970, c. C-40, as amended
by section 64 of the Federal Court Act, R.S.
1970, c. 10 (2nd Supp.). That provision, as
amended, reads in part as follows:
48. (1) Any of the parties to an appeal under section
47, namely,
(a) the person who appealed,
(b) the Deputy Minister, or
(c) any person who entered an appearance in accord
ance with subsection 47(2), if he has a substantial
interest in the appeal and has obtained leave from the
Court or a judge thereof,
may, within sixty days from the making of an order,
finding or declaration under subsection 47(3), appeal
therefrom to the Federal Court of Canada upon any
question of law.
(8) The appellant shall set out in the notice of appeal a
statement of the facts, the statutory provisions and the
reasons that the appellant intends to submit in support of
his appeal.
(9) The respondent shall, within thirty days from the
day the notice of appeal is received by him, or within such
further time as the Court or a judge thereof may either
before or after the expiration of that time allow, serve on
the appellant and file in the Court a reply to the notice of
appeal containing a statement of such further facts and of
such statutory provisions and reasons as the respondent
intends to rely on.
In March, 1972, the appellant filed a notice of
appeal in this Court reading in part as follows:
Reasons for Appeal
1. The Tariff Board erred in law in construing the
words "timing device" in Tariff Item 46240-1.
2. There was no evidence before the Tariff Board upon
which it could have found that the analyzer was a "timing
device" within the meaning of these words in Tariff Item
46240-1.
No reply seems to have been filed by the
respondent as contemplated by section 48(9)
supra.
It remains to be noted that section 48(17) of the
Customs Act reads as follows:
(17) The Court may dispose of an appeal by making such
order or finding as the nature of the matter may require,
and, without limiting the generality of the foregoing, may
(a) declare what rate of duty is applicable, or that no rate
of duty is applicable, to the specific goods or the class of
goods with respect to which the appeal to the Tariff Board
was taken,
(b) declare the value for duty of the specific goods or
class of goods, or
(c) refer the matter back to the Tariff Board for
re-hearing.
and section 52 of the Federal Court Act reads,
in part, as follows:
52. The Court of Appeal may
(c) in the case of an appeal other than an appeal from the
Trial Division,
(i) dismiss the appeal or give the decision that should
have been given, or
(ii) in its discretion, refer the matter back for determi
nation in accordance with such directions as it consid
ers to be appropriate; and ... .
I turn now, in the light of this review, to
considering the various questions raised on this
appeal that were not before the Tariff Board.
The first of those questions is whether this
Court should, on this appeal, itself reclassify the
Analyzer as falling within the "Machines" item.
In my opinion, without considering the merits of
the submissions, such a disposition of this
matter would not be a proper exercise of this
Court's powers. The appeal to this Court is an
appeal on a question of law and, in my view, a
question as to whether the Analyzer is a
machine involves, at the least, the taking of
evidence concerning the nature of that
apparatus from the point of view as to whether
it is a machine, which evidence has not been
led, and also involves findings of the Tariff
Board based on such evidence, which findings
have not, of course, been made. In the ordinary
course, in my view, the parties to an appeal to
the Tariff Board must raise any such contention
at an appropriate time before the hearing before
the Board so that all interested parties may have
an opportunity to prepare a case with reference
thereto. 7
The second question raised for the first time
in this Court is whether the matter should be
referred back to the Tariff Board for a new
hearing so as to give the respondent an oppor
tunity to make out a case for its contention that
the Analyzer falls under some item other than
Item 46240-1. In my view, no case has been
made out for such a new hearing. The respond
ent deliberately restricted its appeal before the
Tariff Board to its contention that Item 46240-1
was the proper item. It had a full opportunity to
present its case on that contention. If the Tariff
Board had rejected that contention, as in my
view it should have done, it would simply have
dismissed the appeal and there could not then
have been any basis for arguing on an appeal to
this Court that the Board had erred in law. In
my view, the respondent's rights on this appeal
cannot be any greater because the Tariff Board
wrongly decided in its favour on the question
concerning Item 46240-1.
Finally, the question has been raised whether
this Court has either a right or duty to review
the classification of the Analyzer by the Deputy
Minister under Tariff Item 46200-1. In my view,
there is neither a right nor duty, having regard
to the course the proceedings have taken, to
enter on any such review. In this connection, it
is necessary to appraise the real question that
has been at issue between the parties. The
Deputy Minister put the Analyzer in what is
known as a "basket" item, that is, an item that
applies to a general class of goods "unless
otherwise provided". A review of the Customs
Tariff shows that there are several such items
and that they apply only to articles falling within
the scope of their words if such articles do not
fall within some more specific item, which spe
cific item would ordinarily provide a lower rate
or an exemption. An importer could, of course,
attack a classification of an article under such a
"basket" item on the ground that the article
does not fall within the words of the item. The
more frequent attack is, however, based on the
ground that the article falls under a more specif
ic item that affords an exemption or a lower rate
of duty. (There could, of course, be an attack
based on both grounds, in the alternative.) In
this case, the sole ground of attack made by the
respondent was based on the contention that the
Analyzer should have been classified under a
more specific item. Nowhere in the proceedings
has there been any suggestion that the Analyzer
did not fall within the actual wording of Item
46200-1. (If this question had been raised, it
might have called for evidence that would not
otherwise have been relevant.) In my view,
when the respondent failed to make out the
attack that it made before the Tariff Board, as
in my view it did, the only judgment that the
Tariff Board could have properly given was a
judgment dismissing the appeal; and, in my
view, this Court should now give the judgment
that the Board should have given, namely, a
judgment dismissing the appeal to the Tariff
Board.
This Court's rule with regard to costs in an
appeal from a tribunal other than the Trial Divi
sion is Rule 1312, which provides that, in such
an appeal, no costs shall be payable by any
party to another "unless the Court, in its discre
tion, for special reasons, so orders". This rule
probably has no application to an appeal under
section 48 of the Customs Act as party and
party costs in such an appeal are expressly
covered by section 48(18), which provides that
"The Court may, in disposing of an appeal,
make such order as to costs as, in its discretion,
seems just in the circumstances". In my view, it
would be just in the circumstances of this case
not to award any costs.
* * *
MACKAY D.J.—I concur.
* * *
THURLOW J.—I have read the reasons of the
Chief Justice and I agree with his conclusion
that the appeal succeeds and with the disposi
tion of the case which he proposes. On the main
point of the case, however, I wish to state
briefly in my own way what leads me to my
conclusion.
Apart from the special meaning of "timing
devices" in the photographic industry found by
the Tariff Board I regard the ordinary English
language meaning of that expression in its con
text in Tariff item 46240-1 as being broader
than what is embraced in the French language
expression "dispositifs réglant le temps de pose"
in its context in item 46240-1. The latter
appears to me to be restricted in at least two
respects not present in the former, i.e., (1) in
being restricted to devices which regulate time,
while the English expression would embrace
such devices plus such as merely measure it and
(2) in being limited to devices which regulate the
time of exposure, while the English expression
is not limited as to the purpose of the timing.
The finding of the Tariff Board that "timing"
has a special meaning in the photographic indus
try tends to further broaden the meaning of the
English language expression in one direction
while possibly narrowing it in another.
For my part I do not think that any way can
be found to resolve the question raised by the
appellant's submission by the application or
attempted application of section 8(2)(a) of the
Official Languages Act but I feel constrained by
section 8(2)(b) of that Act to take the view that
the reference to "devices" or "dispositifs" in
item 46240-1 must be construed as a reference
only to such devices and dispositifs as fall
within the wording of both versions. As I read it
the French language version is not apt to refer
to the device here in question. Moreover, as
there appears to be at least some area of opera
tion common to both versions I do not think
resort can be had to section 8(1)(d).
With respect to the other matters raised in the
course of the argument I concur in the reasons
of the Chief Justice.
Compare this Court's decision in Pfizer Company Limit
ed v. Deputy Minister of National Revenue for Customs and
Excise delivered on January 12, 1973. [1973] F.C. 3.]
a Paragraph (a) directs that, even though it appears that
the two versions of an enactment differ in meaning "regard
shall be had to both its versions" so that, leaving aside
paragraph (c), which has no application here, "the like effect
is given to the enactment" in all parts of Canada unless
otherwise expressly or impliedly provided. Paragraph (b)
provides, in part, that, where there is a reference to a
"thing", the reference shall, in both versions, be construed
as a reference to the "thing" to which "in its expression in
both versions" the reference is apt. Here, as I see it, both
versions are apt to refer to devices to regulate the time of
exposure in photographic work and the French version is
not apt to refer to devices for "timing" when that word is
used in the jargon of the photographic trade to refer to
"determining the exposure and colour balance for printing
each scene of a film". (See Rod Sparks as quoted by the
Board's declaration.)
The English version refers to "timing devices" under the
heading of "Photographic equipment". It does not take too
much of a stretch of the imagination to regard this as
referring to what is described in French by words meaning
devices for regulating the time of exposure under a heading
which is presumably intended to have the same meaning as
the English heading "Photographic equipment". The dif
ficulty involved in finding a common meaning for the two
versions of the Customs Tariff is illustrated by these two
versions of the heading to Tariff Item 46240-1. In English,
we have "Photographic equipment" and, according to the
Shorter Oxford Dictionary "photographic" means "of, per
taining to, used in or produced by `photography"', and
"Photography" means "The process or art of producing
pictures by means of the chemical action of light on a
sensitive film ..." In French, the heading is "Accessoires
pour prise de vues" and, according to Harrap's, "prise de
vues" means "taking of photographs". However, when we
look at Ouillet, we find that "prise de vues" means "action
de photographier", that "photographier" means "Reproduire
un objet par la photographie" and "photographie" means
"Art de fixer sur une surface sensible à la lumière les images
produites dans une chambre noire au moyen d'une lentille
convergente, puis de les reproduire, par inversion du cliché
négatif primitif '.
4 By "the respondent", I refer to Film Technique Ltd., the
appellant in the Tariff Board proceedings. Canadian Kodak
Co. Limited intervened in those proceedings but did not
appear in this Court.
It is the procedural and jurisdictional provisions that I
propose to review. The substantive tariff items were, I
assume, at all relevant times as they are to be found in the
Revised Statutes of 1970. This is the form in which they
were put before us by both parties although, the goods
having been imported in 1969 and the Revised Statutes
having been brought into force in July 1971, these were not
the proper citations. Counsel should, in my view, have cited
the relevant provisions from the statutes that were in force
at the time of importation.
6 I am aware that, for the first time, during argument
before the Tariff Board, it was suggested that, if the import
er was unsuccessful on the issue defined in the briefs, the
Board might consider the "machine" item. In my view,
however, the question that matters is what issues the parties
had in mind when they prepared and presented their
evidence.
7 This is not to say that the Tariff Board has no discretion
to entertain such a contention raised during the hearing. It
undoubtedly has such a discretion but the proper exercise of
such a discretion would involve the imposition of such
terms, if any, as are necessary to ensure that all parties
have, or have had, an opportunity to prepare a case with
reference thereto.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.