A-204-81
Deputy Minister of National Revenue for Customs
and Excise (Appellant)
v.
Adams Brands Division of Warner-Lambert
Canada Inc. (Respondent)
Court of Appeal, Heald, Ryan JJ. and Kerr D.J.—
Ottawa, April 11 and 15, 1983.
Practice — Appeals from tribunals or authorities other than
Trial Division — Application to strike out notice of intention
to participate in appeal — R. 1303 providing right to file such
notice — Intervenant, Kelso, Division of Merck & Co., not
entering appearance with secretary of Tariff Board pursuant to
s. 47(2) Customs Act — Respondent submitting only parties in
appeal to Tariff Board having right to appeal to Federal Court
— R. 1300(2) providing Rules in Division C applying only
where no special statutory provision governing matter —
Respondent alleging R. 1303 not applicable as ss. 47, 48
statutory provisions governing matter — Application dis
missed as premature — R. 1300(2) not excluding application
of other Rules in Division C— R. 1310 giving Court discretion
to decide what persons shall be heard in argument of appeal
— Ss. 47, 48 governing parties to appeal before Tariff Board
— RR. 1303 and 1310 concerning who may appear on argu
ment of appeal in addition to parties specified in Customs Act
— Whether intervenant having interest in outcome of appeal
entitling it to be heard to be decided upon application under R.
1310 — Federal Court Rules, C.R.C., c. 663, RR. 1300(2),
1303, 1305, 1306, 1307, 1310, 1313 — Customs Act, R.S.C.
1970, c. C-40, ss. 47, 48 as am. by R.S.C. 1970 (2nd Supp.), c.
10, s. 65, Item 12.
COUNSEL:
I. G. Whitehall, Q.C. for appellant.
Paul Kane and James Robertson for respond
ent.
J. R. Miller for intervenant.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for respondent.
Martineau Walker, Montreal, for interve-
nant.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an application by the respond
ent herein for an order striking out the notice of
intention to participate in an appeal filed pursuant
to Rule 1303 [Federal Court Rules, C.R.C., c.
663] by Kelso, Division of Merck & Co. (herein-
after "Merck").'
The subject appeal is an appeal pursuant to the
provisions of section 48 of the Customs Act,
R.S.C. 1970, c. C-40, as amended, [R.S.C. 1970
(2nd Supp.), c. 10, s. 65, item 12] from a decision
of the Tariff Board dated February 26, 1981.
Section 48 reads 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 accordance
with subsection 47(2), if he has a substantial interest in the
appeal and has obtained leave from the Court,
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.
(2) An appeal under this section by any person shall be
instituted by serving a notice of appeal in duplicate, in such
form as may be determined by the rules, on the other parties to
the appeal and by filing a copy thereof in the Registry of the
Court.
(3) Service under subsection (2) on any party to an appeal
shall be effected in the manner in which an information issued
out of the Court could be served on him, or
(a) in the case of the Deputy Minister, by dispatching the
notice of appeal to him by registered mail addressed to "The
Deputy Minister of National Revenue for Customs and
Excise, Ottawa, Ontario", or
(b) in the case of any other person, by dispatching the notice
of appeal by registered mail to him addressed to the address
appearing on records of the secretary of the Tariff Board, or,
' Rule 1303 reads as follows:
Notice of Intention to Participate in an Appeal
Rule 1303. (1) Each person who desires to participate in an
appeal should file a notice of intention to participate in the
appeal containing a statement of his address and, if he has an
attorney or solicitor, his name and business address.
(See Rule 2 "re address for service")
(2) A person who has not filed a notice of intention to
participate in an appeal under paragraph (1) shall not be
entitled to any notice or other paper if it is served or sent
more than 7 days after he was served with the notice of
appeal.
if the secretary of the Tariff Board cannot supply an address,
by posting the notice of appeal in the office of the secretary
of the Tariff Board.
(4) As soon as possible after an appeal has been instituted
under this section, the appellant shall file a copy of the notice of
appeal with the secretary of the Tariff Board.
(5) Any person who entered an appearance in accordance
with subsection 47(2) may, if he has a substantial interest in
the appeal, enter an appearance in the Court in such manner as
may be determined by the rules and, if he has entered such an
appearance, subsections (9), (10) and (11) apply to him as
though he were a respondent, and may be heard on the appeal.
(6) Where the appeal has been instituted by a person
referred to in paragraph (1)(c), either the person who appealed
to the Tariff Board or the Deputy Minister may file a notice
that he intends to support or oppose the appeal, and upon such
notice being filed, subsections (9), (10) and (11) apply to him
as though he were a respondent.
(7) An appeal by a person other than the Deputy Minister
and all proceedings thereunder are, upon the expiration of
thirty days from the day the appeal was instituted, void unless
security for the costs of the appeal has been, within the said
period, deposited in the Registry of the Court in the amount of
one hundred and fifty dollars and, upon an appeal becoming
void by virtue of this section, no further appeal may be
instituted in respect of the same decision.
(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 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.
(10) If the respondent desires to appeal from the decision of
the Tariff Board, he may, instead of filing a notice of appeal,
give notice by his reply (notwithstanding that it is filed and
served after the expiration of the time for appeal fixed by
subsection (1)) by way of cross-appeal of his intention to
contend that the decision of the Tariff Board should be varied
setting out therein a statement of such further facts and of such
statutory provisions and reasons as he intends to rely on in
support of the contention.
(11) Where a respondent has included in his reply a notice
by way of cross-appeal, the appellant may file a reply to the
cross-appeal and the provisions relating to a reply to the notice
of appeal are applicable thereto mutatis mutandis.
(12) The Court may, in its discretion, strike out a notice of
appeal or any part thereof for failure to comply with subsection
(8) and may permit an amendment to be made to a notice of
appeal or a new notice of appeal to be substituted for the one
struck out.
(13) The Court may, in its discretion,
(a) strike out any part of a reply for failure to comply with
this section or permit the amendment of a reply, and
(b) strike out a reply for failure to comply with this section
and order a new reply to be filed within a time to be fixed by
the order.
(14) Where a notice of appeal has been struck out for failure
to comply with subsection (8) and a new notice of appeal is not
filed as and when permitted by the Court, the Court may in its
discretion dispose of the appeal by dismissing it.
(15) When a copy of the notice of appeal is filed with the
secretary of the Tariff Board, he shall transmit to the Registar
of the Court the record and exhibits relating to the appeal.
(16) Upon the filing of the reply to the notice of appeal, the
matter shall be deemed to be an action in the Court, and may
be set down for hearing.
(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.
(18) The Court may, in disposing of an appeal, make such
order as to costs as, in its discretion, seems just in the
circumstances.
[(19) and (20) repealed R.S.C. 1970 (2nd Supp.), c. 10, s.
65, Item 12]
(21) In this section
"Court" means the Federal Court of Canada;
"respondent" means
(a) the Deputy Minister, if the appeal is by the person who
appealed to the Tariff Board,
(b) the person who appealed to the Tariff Board, if the
appeal is by the Deputy Minister, or
(c) in any other case, a person who opposes the appeal;
"rules" means rules made under the Federal Court Act.
Merck did not enter an appearance with the secre
tary of the Tariff Board pursuant to subsection
47(2) of the Customs Act, 2 nor did it appear or
participate at the Tariff Board hearing.
Counsel for the respondent submitted that by
reason of sections 47 and 48 supra, and Rule
1300(2), 3 only those parties who participated in an
appeal to the Tariff Board have the right to par
ticipate in an appeal from a decision of the Tariff
Board to this Court. In his view, Rule 1303 allow
ing a person to participate in an appeal must be
read as being subject to the general provisions of
Rule 1300(2) supra, and since, here, there are
"special statutory provisions governing the mat-
ter"—i.e., sections 47 and 48 of the Customs Act
supra, it is his submission that Rule 1303 cannot
apply to this case.
I am unable to agree with this view of the
matter. Division C of the Federal Court Rules
governs the procedure in appeals from tribunals or
authorities other than the Trial Division and thus
is the relevant division for the purposes of this
appeal. Division C commences with Rule 1300 and
includes Rule 1303 supra as well as Rule 1310
which reads:
Parties
Rule 1310. (1) The Court may in its discretion, upon an
application before the hearing or during the course of a hear
2 Subsections (1) and (2) of section 47 of the Customs Act
read as follows:
47. (1) A person who deems himself aggrieved by a
decision of the Deputy Minister
(a) as to tariff classification or value for duty,
(b) made pursuant to section 45, or
(c) as to whether any drawback of customs duties is
payable or as to the rate of such drawback,
may appeal from the decision of 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.
(2) Notice of the hearing of an appeal under subsection
(1) shall be published in the Canada Gazette at least twenty-
one days prior to the day of the hearing, and any person who,
on or before that day, enters an appearance with the secre
tary of the Tariff Board may be heard on the appeal.
3 Rule 1300... .
(2) A rule in this Division only applies where there is no
special statutory provision governing the matter in respect of a
particular appeal.
ing, decide what persons shall be heard in the argument of an
appeal.
(2) No person who has filed a notice under Rule 1303 shall
be refused leave to be heard under paragraph (1) without being
given an opportunity to be heard on the question whether he
should be heard.
When Rules 1303 and 1310 are read together and
are considered in the context of Division C in its
entirety, it seems clear that the right to file a
notice of intention to participate in an appeal
under Rule 1303 is an unrestricted one in the sense
that the only condition imposed by the rule is that
the "person" in question:
(a) desire to participate in the appeal; and
(b) file a notice of intention to participate in the
appeal.
In this case Merck has fulfilled those conditions.
Thus, there is only the minimal restriction referred
to supra on the persons who can file a Rule 1303
notice. However, their right to be heard on the
argument of an appeal is controlled by the provi
sions of Rule 1310 supra. Under Rule 1310, a
person wishing to be heard on the appeal must
satisfy the Court of his right to be heard. A
perusal of the Division C Rules establishes that the
filing of the Rule 1303 notice gives a person very
limited rights—in reality only the right to receive
notice of future steps being taken in the appeal.
Because of the operation of Rule 1313, 4 he is not
entitled to any input in respect of the appeal case
(Rules 1305 and 1306), nor in respect of the filing
and receiving of memoranda of points of argument
(Rule 1307). It is only after he has applied under
Rule 1310 to be heard in the appeal and the Court
has decided in his favour that he then becomes an
"interested person" and entitled to participate in a
real sense in the hearing of the appeal. Thus, in my
view, Rule 1300(2) does not operate so as to
exclude the application of the other Rules in Divi
sion C because the statutory provisions contained
^ Rule 1313 reads:
Interpretation
Rule 1313. An "interested person", for the purpose of this
Division, is a person who appeared as a party in the proceed
ing giving rise to the order or decision that is the subject of
the appeal or application for leave to appeal, and any person
who has been granted leave to be heard by an order under
Rule 1310.
in sections 47 and 48 of the Customs Act supra
concern themselves only with the parties to the
appeal before the Tariff Board whereas Rules
1303 and 1310 concern themselves with a different
matter—that is—who may appear on the argu
ment of the appeal in addition to the parties
specified in the Customs Act.
In my view, the respondent's application is, to
say the least, premature. The question as to wheth
er or not Merck has an interest in the outcome of
the appeal so as to entitle it to be heard in the
argument of the appeal is a question to be decided
by the Court when, and if, Merck makes such an
application under Rule 1310. Counsel for the
appellant, while supporting Merck in this applica
tion to strike the Rule 1303 notice, expressly
reserved his position in respect of any application
made by Merck under Rule 1310.
In so far as this application is concerned, it is
my conclusion, for the reasons aforesaid, that
Merck was entitled to file the Rule 1303 notice
and that the respondent has not put forward any
basis upon which the Court would be justified in
striking out that notice.
I would, accordingly, dismiss the respondent's
application.
RYAN J.: I agree.
KERR D.J.: I agree.
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.