A-1287-84
In the Matter of the Jurisdiction of the Tariff
Board Pursuant to Section 47(1) of the Customs
Act
and
In the Matter of Tariff Board Appeal No. 2157 by
CAE Metal Abrasive Division of Canadian Bronze
Company Limited (Appellant)
and
Deputy Minister of National Revenue for Customs
and Excise (Respondent)
and
Eaton & Yale Ltd. and Dofasco Inc. (Interve-
nants)
Court of Appeal, Heald, Mahoney and Ryan JJ.—
Ottawa, December 10, 1984; February 22, 1985.
Customs and excise Deputy Minister delegating author
ity to re-determine tariff classification of steel shot under s.
46(4)(d) of Customs Act — Appeal to Tariff Board Refer
ence to Federal Court of Appeal as to jurisdiction of Board to
hear appeal, and whether Deputy Minister able to delegate
authority under s. 46(4) Language, scope and object of s. 46
not displacing general rule of construction that discretionary
power exercised personally — Ascending order of importer's
right of appeal indicating right to have request for re-determi
nation by Deputy Minister considered personally Deputy
Minister's decision not of "administrative character" —
Ahmad v. Public Service Commission, [19741 2 F.C. 644
(C.A.) distinguished Reference questions answered in nega
tive Customs Act, R.S.C. 1970, c. C-40, ss. 46, 47 —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(4) —
Public Service Employment Act, R.S.C. 1970, c. P-32, ss. 6(5),
31.
Judicial review — Applications to review Customs and
excise Reference pursuant to s. 28(4) of Federal Court Act
— Deputy Minister delegating authority to re-determine tariff
classification under s. 46(4)(d) of Customs Act Appeal to
Tariff Board — Reference to determine whether Board having
jurisdiction to hear appeal and whether Deputy Minister able
to delegate authority under s. 46(4) — Questions answered in
negative — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28(4) Customs Act, R.S.C. 1970, c. C-40, ss. 46, 47.
Statutes Interpretation Deputy Minister delegating
authority to re-determine tariff classification under s. 46(4)(d)
of Customs Act — R. v. Huculak (1969), 69 W.W.R. 238
(Sask. C.A.) distinguished S. 23(3) of Interpretation Act,
providing enactment authorizing public officer to act, empow
ering person occupying position as deputy to act — S. 23(3)
not authorizing public officer to appoint own "deputy" regard
less of position, and to delegate statutory power to him —
Interpretation Act, R.S.C. 1970, c. 1-23, ss. 2(1), 23(2) (as am.
by R.S.C. 1970 (2nd Supp.), c. 29, s. 1), (3) Customs Act,
R.S.C. 1970, c. C-40, s. 46(4)(d).
The tariff classification of steel shot was determined at the
time of entry. A re-determination was purportedly made by the
Deputy Minister under paragraph 46(4)(d) of the Customs
Act. Paragraph 46(4)(d) authorizes the Deputy Minister to
re-determine the tariff classification of any goods in any case,
other than the cases specified in paragraphs (a), (b) and (c).
The decision was not made by the Deputy Minister personally,
but by the Director of Machinery, Agriculture and Electrical
Products Classification, who had been instructed by the Deputy
Minister by memo to carry out on his behalf certain of his
duties under subsection 46(4). The decision was appealed to the
Tariff Board which referred the following questions to the
Federal Court of Appeal, pursuant to subsection 28(4) of the
Federal Court Act: a) does the Tariff Board have jurisdiction
to adjudicate upon an appeal pursuant to subsection 47(1) of
the Customs Act when the decision was not made by the
Deputy Minister personally? b) does the Deputy Minister have
the right to delegate his authority under subsection 46(4) of the
Customs Act? At issue is whether to follow Ahmad v. Public
Service Commission, [1974] 2 F.C. 644 (C.A.) which seems to
indicate that authority granted to a deputy minister may be
delegated subject to two conditions. The questions thus arise of
whether the Customs Act indicates that such authority cannot
be delegated, and whether the authority conferred on the
Deputy Minister by subsection 46(4) is purely administrative in
nature. Finally, it was submitted that subsection 23(3) of the
Interpretation Act provides adequate authority for the Deputy
Minister to delegate his authority to make a decision pursuant
to subsection 46(4).
Held (Heald and Mahoney JJ. concurring in part), both
questions should be answered in the negative.
Per Ryan J.: In R. v. Huculak (1969), 69 W.W.R. 238
(Sask. C.A.) "deputy" was held to mean a person appointed as
a substitute for another and empowered to act for him. In that
case, the person who actually signed the order in council was,
by his very title, occupying a position which could be described
as a "deputy's position". The words "deputy" or "délégué" do
not include a person who is authorized by a public officer to act
for him by way of delegation, but who does not occupy a public
service position that could properly be described as being that
of "deputy" to the public officer concerned. The effect of
subsection 23(3) of the Interpretation Act is not to authorize a
public officer to appoint his own "deputy", whatever that
person's position in the public service might be, and to delegate
statutory power to him. The effect of subsection 23(3) is if an
enactment authorizes a public officer to do an act, subsection
23(3) indicates that the enactment shall be read as empowering
a person who occupies a position as deputy of that public
officer to do the act or thing.
The appellant relied upon Carltona, Ltd. v. Works Comrs.,
[1943] 2 All E.R. 560 (C.A.), which was based upon the
principles that the duties imposed upon ministers are so mul
tifarious that no minister could personally attend to them, and
that the minister is responsible to Parliament. The appellant
also relied on R. v. Harrison, [1977] 1 S.C.R. 238 where it was
stated that the language, scope or object of a particular
administrative scheme could displace the general rule of con
struction that a person endowed with a discretionary power
should exercise it personally. These cases relate to the exercise
of powers on behalf of ministers. In the Ahmad case the
decision to release an employee was not one that required
personal attention from the deputy head. According to Ahmad,
an authority entrusted by statute to a deputy minister carries
with it a presumption that the acts which the deputy minister is
authorized to perform may be performed by departmental
officials. This is at least an alternative ground for the decision
of the Court on the "delegation" point. This presumption is
subject to whether there is "something expressly or implicitly to
the contrary" in the statute, and the authority conferred being
of an administrative character. While deserving of consider
ation, the Ahmad presumption is not decisive.
The language, scope and object of the administrative scheme,
established by section 46, is critical to deciding whether the
Deputy Minister must exercise his authority personally. Section
46 establishes a scheme for the determination of tariff classifi
cation and the appraisal of the value for duty of imported
goods. The tariff classification is determined at the port of
entry. The importer may request a re-determination by a
Dominion customs appraiser and a further re-determination by
the Deputy Minister. This ascending order points to a conclu
sion that the importer is entitled to have his request considered
by the Deputy Minister himself. The language, scope and
object of the section does not displace the general rule of
construction that a person endowed with a discretionary power
should exercise it personally.
A decision by the Deputy Minister under subsection 46(4) is
not a decision "of an administrative character". The request
under subsection 46(3) is made in writing. The importer makes
representations. The decision of the Deputy Minister, if he
accedes to the request, benefits the importer. The Deputy
Minister's decision is not for the purpose of implementing
policy. He must apply the tariff item or the relevant statutory
provisions. The issue of whether the appraiser erred is a lis. His
decision has a strong "element of law", and it may have serious
consequences to an importer.
The Tariff Board argued that the maxim expressio unius est
exclusio alterius applied. Since other sections of the Customs
Act, and other statutes contain express powers of delegation,
Parliament would have provided a similar power had it intend
ed that the Deputy Minister might delegate his authority under
subsection 46(4). These arguments are not persuasive.
Per Heald J.: The views expressed by Jackett C.J. in Ahmad
are not an alternative ground for the Court's decision on the
"delegation point". Ahmad is distinguishable from this case as
the delegation by the deputy head was made pursuant to
subsection 6(5) of the Public Service Employment Act. The
statement that the opinion sought was not one that required
personal attention from the deputy head was obiter.
Per Mahoney J.: It is unnecessary to decide whether the
ascription to a deputy minister of an implicit right to delegate
on the same basis as a minister was obiter, or an alternative
ground for the decision. In Ahmad the ascription was based on
the principles applied in the Carltona case. Unlike a minister, a
deputy minister is not responsible to Parliament.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Ahmad v. Public Service Commission, [1974] 2 F.C. 644
(C.A.); R. v. Huculak (1969), 69 W.W.R. 238 (Sask.
C.A.); Carltona, Ltd. v. Works Comrs., [1943] 2 All
E.R. 560 (C.A.); R. v. Harrison, [1977] 1 S.C.R. 238.
CONSIDERED:
Vine v. National Dock Labour Board, [1957] A.C. 488
(H.L.).
REFERRED TO:
Ramawad v. Minister of Manpower and Immigration,
[1978] 2 S.C.R. 375.
COUNSEL:
Michael A. Kelen for Tariff Board.
T. B. Smith, Q.C. and Michael Ciavaglia for
Attorney General of Canada.
John D. Richard, Q.C. and Richard Dearden
for CAE Metal Abrasive Division of Canadi-
an Bronze Company Limited.
SOLICITORS:
Michael A. Kelen, Ottawa, for Tariff Board.
Deputy Attorney General of Canada for
Attorney General of Canada.
Gowling & Henderson, Ottawa, for CAE
Metal Abrasive Division of Canadian Bronze
Company Limited.
The following are the reasons for judgment
rendered in English by
HEALD J.: I have read the draft reasons for
judgment herein prepared by my brother, Ryan J.
I concur in the result which he proposes. I also
agree with the reasons which he gives in support of
that conclusion except for one reservation which I
would like to express shortly.
That reservation relates to the opinion expressed
by Mr. Justice Ryan that the views expressed by
Jackett C.J. in the Ahmad [Ahmad v. Public
Service Commission, [1974] 2 F.C. 644 (C.A.)]
decision are at least an alternative ground for the
Court's decision on the "delegation point" involved
in that case. With respect, I do not share that
view. It is my opinion that there are factual differ
ences in Ahmad which serve to distinguish it from
the case at bar. As observed by Mr. Justice Ryan,
the delegation by the deputy head in that case was
made pursuant to subsection 6(5) of the Public
Service Employment Act [R.S.C. 1970, c. P-32]
which authorized such delegation. After referring
to subsection 6(5) and the instrument of delega
tion in evidence in that case, the learned Chief
Justice said, at page 650:
In my view, while not as aptly worded as it might have been,
this instrument was adequate authority for the Director to form
the opinion of the applicant's incompetency that was a condi
tion precedent to a recommendation under section 31. (Com-
pare Mungoni v. Attorney General of Northern Rhodesia
[1960] A.C. 336.)
I think that the passage above quoted forms the
basis and ratio of the decision of the learned Chief
Justice. His further view, as expressed in the pas
sage quoted by Mr. Justice Ryan to the effect that,
in any event, the opinion sought was "not one that
required personal attention from the deputy head
and was validly formed by appropriate departmen
tal officials ..." is an opinion which should be
treated as dictum since it was not necessary for
determination of the issue in that case. Likewise, I
do not find it persuasive on the facts here present
because we do not have, in this case, express
statutory authorization for delegation by the
Deputy Minister.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J.: I have had the advantage of
reading in draft the reasons for judgment of my
brother Ryan herein. I agree in the result he
proposes and, with one exception, am in complete
agreement with his reasons. I would prefer to
express no settled opinion on whether the ascrip
tion to a deputy minister of an implicit right to
delegate on the same basis as a minister was obiter
dictum or an alternative ground for the decision of
this Court in Ahmad v. Public Service Commis
sion, [1974] 2 F.C. 644 (C.A.), as I think it
unnecessary to do so in the present case.
In Ahmad, that ascription was stated to be
based on the principles applied in such cases as
Carltona, Ltd. v. Works Comrs., [1943] 2 All E.R.
560. As I understand those principles, they, in
turn, are based on two considerations which, stated
briefly, are: a minister's constitutional responsibili
ty for what is done by anyone for whom he is
answerable to Parliament and, secondly, the prac
tical impossibility of a minister personally execut
ing all his authority. Whatever may be said of the
second consideration, I am by no means satisfied
that the first applies, either obviously or by proper
inference, to a deputy minister.
* * *
The following are the reasons for judgment
rendered in English by
RYAN J.: This is a reference by the Tariff Board
to this Court under subsection 28(4) of the Feder
al Court Act [R.S.C. 1970 (2nd Supp.), c. 10],
which provides:
28....
(4) A federal board, commission or other tribunal to which
subsection (1) applies may at any stage of its proceedings refer
any question or issue of law, of jurisdiction or of practice and
procedure to the Court of Appeal for hearing and
determination.
The reference involves determining whether the
Deputy Minister of National Revenue for Customs
and Excise ("the Deputy Minister") may delegate
to officials of his Department the authority, vested
in him by subsection 46(4) of the Customs Act
[R.S.C. 1970, c. C-40], to re-determine the clas
sification of imported goods or whether he must
exercise the authority personally.
It is reasonably well established that an express
statutory authority conferred on a minister of the
Crown can be exercised, with some few exceptions,
through the minister's department. In a decision of
this Court, Ahmad v. Public Service Commission,
[ 1974] 2 F.C. 644 (C.A.), it was said that such a
grant of authority to a deputy minister can be
executed in the same way unless the statute indi
cates otherwise, provided that the decision he is
authorized to make is administrative in nature. An
issue in this case is whether we should follow what
was said in Ahmad.
Even, however, if we were to decide to follow
Ahmad, we would have to consider whether there
is something in the Customs Act "expressly or
implicitly to the contrary", something that would
require the Deputy Minister to decide personally.
It was submitted in argument that there is. It was
submitted that the structure of section 46 of the
Customs Act, indicates a contrary intention. It was
also argued that the authority conferred on the
Deputy Minister by subsection 46(4) is not purely
administrative in nature, but is an authority which
must be exercised quasi-judicially.
One of the parties submitted that the effect of
subsection 23(3) of the Interpretation Act [R.S.C.
1970, c. I-23] provides, in itself, adequate author
ity to the Deputy Minister to delegate as he did.
Steel shot was imported into Canada. There
appears to have been a determination of the tariff
classification of the goods at the time of entry.
Later, a decision, expressed as having been made
by the Deputy Minister under paragraph 46(4)(d)
of the Customs Act, was issued, dated May 2,
1984. The decision reads in part:
The Department has been provided with additional informa
tion concerning the manufacturing processes and the marketing
practice of steel shot. As a result of this additional information,
a re-determination has been made by the Deputy Minister
under subsection 46(4)(d) of the Customs Act, classifying the
steel shot under tariff item 46600-1.
Paragraph 46(4)(d) of the Act authorizes the
Deputy Minister to re-determine the tariff classifi
cation of any goods in any case, other than the
cases specified in paragraphs (a), (b) and (c),
"where he deems it advisable, within two years of
the date of entry of those goods."
The decision was signed by "J. T. Vachon,
Director, Machinery, Agriculture, Electrical and
Primary Products Classification, Tariff Pro
grams."
An appeal from the decision was taken to the
Tariff Board under subsection 47 (1) of the Cus
toms Act. The appeal was taken by CAE Metal
Abrasive Division of Canadian Bronze Company
Limited ("CAE"). CAE was not the importer. It
is, however, the sole Canadian manufacturer of
steel shot. I assume it brought the appeal as an
aggrieved person.
The Tariff Board was concerned over its juris
diction to entertain the appeal, it appearing that
the Deputy Minister had not personally made the
re-determination. The Board accordingly referred
certain questions to this Court. The Reference is in
these terms:
REFERENCE
1. At the hearing of the Tariff Board Appeal No. 2157 on
October 16, 1984 from a Decision of the Deputy Minister of
National Revenue for Customs and Excise (the Deputy Minis
ter) dated May 2, 1984 pursuant to section 46(4) of the
Customs Act, the evidence established that:
(a) the Deputy Minister did not personally make, consider
or execute the Decision which is the subject of this
appeal;
(b) the Decision which is the subject of this appeal was
made by J. T. Vachon, Director of Machinery, Agricul
ture and Electrical Products Classification, Tariff Pro
grams Division of Revenue Canada, Customs and
Excise, without consulting the Deputy Minister; and
(c) the Deputy Minister by memorandum dated November
25, 1983 had instructed persons occupying certain posi
tions in the Customs Department including the position
occupied by Mr. Vachon to carry out on his behalf
certain of the powers, duties and functions of the Deputy
Minister under subsection 46(4) of the Customs Act in
respect of the re-determination of the tariff classifica
tion of those goods for which the Directorate is respon
sible, excluding the re-determination of the tariff clas
sification under Schedule "C" of the Customs Tariff.
2. The Tariff Board was not satisfied that the Deputy Minis
ter had the legal right to delegate his authority to re-determine
the tariff classification of goods pursuant to subsection 46(4) of
the Customs Act and adjourned the hearing of the appeal and
ordered that the questions of law and jurisdiction arising be
referred to the Federal Court of Appeal for hearing and
determination pursuant to subsection 28(4) of the Federal
Court Act.
3. Therefore, the Tariff Board refers the following questions
to the Federal Court of Appeal pursuant to subsection 28(4) of
the Federal Court Act for hearing and determination upon the
record in this appeal, including the evidence and exhibits filed:
(a) Does the Tariff Board have jurisdiction to hear and
adjudicate upon an appeal pursuant to subsection 47(1)
of the Customs Act from a Decision of the Deputy
Minister of National Revenue for Customs and Excise
when it is evident that the Decision has not been made,
considered or executed by the Deputy Minister
personally.
(b) Does the Deputy Minister have the legal right either at
common law or by statute to delegate his authority to
re-determine the tariff classification of goods pursuant
to subsection 46(4) of the Customs Act to the Director
of Machinery, Agriculture and Electrical Products Clas
sification, Tariff Programs Division of Revenue Canada,
Customs and Excise.
It may be as well to quote section 46 and
subsection 47(1) of the Customs Act:
46. (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 conclusive
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
re-appraisal.
(4) The Deputy Minister may re-determine the tariff classifi
cation 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 misrepresenta
tion 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 Federal 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-deter
mined 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 regula
tions of the Governor in Council.
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 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.
The Deputy Minister, by a memorandum dated
November 25, 1983, purported to instruct certain
officials, occupying or acting in certain positions
within Customs and Excise, to carry out on his
behalf his powers and duties under subsection
46(4) of the Customs Act. The memorandum is in
these terms:
Re: Subsection 46(4) of the Customs Act
I instruct the persons occupying or acting in the positions set
out below to carry out, on my behalf, the powers, duties and
functions of the Deputy Minister under subsection 46(4) of the
Customs Act, as specified hereunder:
Assistant Deputy Minister, Customs Programs, in respect of
the re-appraisal of the value for duty and the re-determination
of the tariff classification of any goods, including the re-deter
mination of the tariff classification of goods classified under
Schedule "C" of the Customs Tariff;
Director General, Operational Policy and Systems Develop
ment, in respect of the re-determination of the tariff classifica
tion of offensive weapons classified under Schedule "C" of the
Customs Tariff;
Director General, Tariff Programs Division, in respect of the
re-determination of the tariff classification of any goods,
excluding the re-determination of the tariff classification of
goods classified under Schedule "C" of the Customs Tariff;
Director General, Assessment Programs Division, in respect of
the re-appraisal of the value for duty of any goods;
Director of Machinery, Agriculture and Electrical Products
Classification, Tariff Programs Division, in respect of the
re-determination of the tariff classification of those goods for
which the Directorate is responsible, excluding the re-determi
nation of the tariff classification under Schedule "C" of the
Customs Tariff;
Director of Industrial and Consumer Goods Classification,
Tariff Programs Division, in respect of the re-determination of
the tariff classification of those goods for which the Directorate
is responsible, excluding the re-determination of the tariff
classification of goods classified under Schedule "C" of the
Customs Tariff.
I also instruct the above-named persons to notify the persons
affected of decisions made under subsection 46(4) of the Cus
toms Act.
Mr. Vachon, who signed the decision which was
appealed to the Tariff Board, obviously was pur
porting to act under this memorandum.
Mr. Vachon testified before the Tariff Board.
He said that he is "a Director in Tariff Classifica
tion in the Customs Department of National Reve
nue ...", and that he had occupied that position
for approximately five years. He said that he made
the decision in question "without the benefit of the
Deputy Minister's input". He also said that the
Deputy Minister was informed of the decision
after he had sent notice of it to the interested
parties. Mr. Vachon also testified that there were
over 2,000 applications for re-determination in
tariff classification matters pending, and that in
his area of jurisdiction "something like 1,000 deci
sions have been issued in the last six months". He
also said: "The Deputy Minister has given instruc
tions as to certain classes of cases he would like to
see personally and deal with personally. He has
delegated authority in other places".
Counsel for CAE submitted that the questions
in respect of which the reference is made should be
answered in the affirmative. Counsel submitted
that subsection 23(3) of the Interpretation Act
provides the Deputy Minister with authority to
designate Jean T. Vachon as his deputy to make a
decision pursuant to subsection 46(4) of the Cus
toms Act, and that the Deputy Minister has effec
tively exercised that authority.
Subsections 23(2) [as am. by R.S.C. 1970 (2nd
Supp.), c. 29, s. 1] and 23(3) of the Interpretation
Act provide:
23. ...
(2) Words directing or empowering a Minister of the Crown
to do an act or thing, or otherwise applying to him by his name
of office, include a Minister acting for him, or, if the office is
vacant, a Minister designated to act in the office by or under
the authority of an order in council, and also his successors in
the office, and his or their deputy, but nothing in this subsec
tion shall be construed to authorize a deputy to exercise any
authority conferred upon a Minister to make a regulation as
defined in the Statutory Instruments Act.
(3) Words directing or empowering any other public officer
to do any act or thing, or otherwise applying to him by his
name of office, include his successors in the office and his or
their deputy.
These subsections, in their French version, read:
23....
(2) Les mots qui donnent à un ministre de la Couronne
l'ordre ou l'autorisation d'accomplir un acte ou une chose ou
qui, de quelque autre manière, lui sont applicables en raison
de son titre officiel comprennent un ministre agissant pour lui
ou, si le poste est vacant, un ministre désigné pour remplir ce
poste, en exécution ou sous le régime d'un décret du conseil, de
même que ses successeurs à la charge en question et son ou
leur délégué, mais rien au présent paragraphe ne peut s'inter-
préter comme permettant à un délégué d'exercer quelque pou-
voir, conféré à un ministre, d'établir un règlement défini dans
la Loi sur les textes réglementaires.
(3) Les mots qui donnent à tout autre fonctionnaire public
l'ordre ou l'autorisation d'accomplir un acte ou une chose ou
qui, de quelque autre manière, lui sont applicables en raison
de son titre officiel, comprennent ses successeurs à la charge et
son ou leur délégué.
The term "public officer" is defined in subsec
tion 2(1) of the Interpretation Act as including,
among others, "any person in the public service of
Canada ... who is authorized by or under an
enactment to do ... an act or thing...." The term
thus includes a deputy minister.
Counsel submitted that the word "deputy", as
used in subsection 23(3), has the meaning attribut
ed to it by Chief Justice Culliton in R. v. Huculak
(1969), 69 W.W.R. 238 (Sask. C.A.). Chief Jus
tice Culliton said, at page 240:
In applying sec. 656(2) of the Criminal Code, effect must be
given to the pertinent provisions of the Interpretation Act. To
accept the submission of the appellant would be to ignore the
words "his lawful deputy" as used in the preceding subsection.
In my opinion, the word "deputy" as there used must be
construed in its ordinary sense as meaning a person appointed
or authorized as a substitute for another and empowered to act
for him or in his place. Thus, in the absence of any suggestion
limiting the authority of the assistant clerk of the Privy Coun
cil, I must conclude that he is the lawful deputy of the clerk of
the Privy Council. Therefore, by virtue of the provision in the
Interpretation Act the copy of the order of commutation, duly
certified by the assistant clerk of the Privy Council, meets the
requirements of sec. 656(2) of the Criminal Code.
In the Huculak case, the appellant's sentence
had been commuted to a term of imprisonment.
He was being detained in penitentiary by virtue of
an order in council signed, not by the clerk of the
Privy Council, but by the assistant clerk. The
appellant submitted that he was being unlawfully
detained because the clerk of the Privy Council
had not certified the order in council as required
by the relevant provision of the Criminal Code. As
I have just indicated, this submission failed.
In Huculak, the person who actually signed the
order in council appears, by his very title, to have
been a person occupying a position which could
aptly be described as a "deputy's position". It is
far from clear to me that the word "deputy" in the
English version or the word "délégué" in the
French version is broad enough to include a person
who is authorized by a public officer to act for him
by way of delegation, but who does not occupy a
public service position that could properly be
described as being that of "deputy" to the public
officer concerned. I do not think the effect of
subsection 23(3) of the Interpretation Act is to
authorize a public officer to appoint his own
"deputy", whatever that person's position in the
public service might be, and to delegate statutory
power to him. The effect of subsection 23(3), for
relevant purposes, appears to me to be this: if an
enactment authorizes a public officer, a deputy
minister, for example, to do an act or thing, the
enactment shall be read as empowering a person
who occupies a position as deputy of that public
officer to do the act or thing.
Counsel for CAE said that, if he failed on the
Interpretation Act point, he would not find it
possible to argue that the Customs Act itself
expressly or impliedly authorizes the Deputy Min
ister to delegate.
Counsel for the Attorney General did not rely,
as did CAE, on the Interpretation Act. His sub
mission was more broadly based. The Deputy Min
ister, he argued, does not have to act personally.
He has power to direct by which officials in his
Department the authority conferred on him by
subsection 46(4) of the Customs Act may be car
ried out. As I understood his position, it was that
the Deputy Minister's memorandum of November
25, 1983 is such a direction. It does not involve a
devolution of authority. It is an instrument which
establishes an internal departmental arrangement.
He relied among other authorities in Carltona,
Ltd. v. Works Comrs., [1943] 2 All E.R. 560
(C.A.). In that case Lord Greene said, at page
563:
In the administration of government in this country the
functions which are given to ministers (and constitutionally
properly given to ministers because they are constitutionally
responsible) are functions so multifarious that no minister
could ever personally attend to them. To take the example of
the present case no doubt there have been thousands of requisi
tions in this country by individual ministries. It cannot be
supposed that this regulation meant that, in each case, the
minister in person should direct his mind to the matter. The
duties imposed upon ministers and the powers given to minis
ters are normally exercised under the authority of the ministers
by responsible officials of the department. Public business could
not be carried on if that were not the case. Constitutionally, the
decision of such an official is, of course, the decision of the
minister. The minister is responsible. It is he who must answer
before Parliament for anything that his officials have done
under his authority, and, if for an important matter he selected
an official of such junior standing that he could not be expected
competently to perform the work, the minister would have to
answer for that in Parliament. The whole system of departmen
tal organisation and administration is based on the view that
ministers, being responsible to Parliament, will see that impor
tant duties are committed to experienced officials. If they do
not do that, Parliament is the place where complaint must be
made against them.
In these reasons I will refer to this passage as
the "Carltona principle".
Counsel also referred us to a passage from the
reasons for judgment of Mr. Justice Dickson (as
he then was) in R. v. Harrison, [1977] 1 S.C.R.
238, at pages 245 and 246:
Although there is a general rule of construction in law that a
person endowed with a discretionary power should exercise it
personally (delegatus non potest delegare) that rule can be
displaced by the language, scope or object of a particular
administrative scheme. A power to delegate is often implicit in
a scheme empowering a Minister to act. As Professor Willis
remarked in "Delegatus Non Potest Delegare", (1943), 21
Can. Bar Rev. 257 at p. 264:
... in their application of the maxim delegatus non potest
delegare to modern governmental agencies the Courts have
in most cases preferred to depart from the literal construc
tion of the words of the statute which would require them to
read in the word "personally" and to adopt such a construc
tion as will best accord with the facts of modern government
which, being carried on in theory by elected representatives
but in practice by civil servants or local government officers,
undoubtedly requires them to read in the words "or any
person authorized by it".
See also S. A. DeSmith, Judicial Review of Administrative
Action, 3d ed., at p. 271. Thus, where the exercise of a
discretionary power is entrusted to a Minister of the Crown it
may be presumed that the acts will be performed, not by the
Minister in person, but by responsible officials in his depart
ment: Carltona, Ltd. v. Commissioners of Works. The tasks of
a Minister of the Crown in modern times are so many and
varied that it is unreasonable to expect them to be performed
personally. It is to be supposed that the Minister will select
deputies and departmental officials of experience and compe
tence, and that such appointees, for whose conduct the Minister
is accountable to the Legislature, will act on behalf of the
Minister, within the bounds of their respective grants of author
ity, in the discharge of ministerial responsibilities. Any other
approach would but lead to administrative chaos and
inefficiency.
The Carltona principle, as I see it, is based on
two elements. One is the circumstance that "the
functions which are given to ministers (and consti
tutionally properly given to ministers because they
are constitutionally responsible) are functions so
multifarious that no minister could ever personally
attend to them." The other is the constitutional
responsibility of a minister of the Crown to Parlia
ment. "Constitutionally, the decision of such an
official is, of course, the decision of the minister.
The minister is responsible. It is he who must
answer before Parliament...."
In Harrison, Mr. Justice Dickson also referred
to the two elements, the many and varied tasks of
a minister of the Crown, and his accountability to
Parliament.
In H. W. R. Wade, Administrative Law (4th
ed., 1977) ("Wade"), it is stated [at page 314]
that "the authority of officials to act in their
ministers' names derives from a general rule of law
..." [Emphasis added.] I will quote the passage
at some length, because I find it particularly
helpful:
Strictly speaking there is not even delegation in these cases.
Delegation requires a distinct act by which the power is con
ferred upon some person not previously competent to exercise
it. But the authority of officials to act in their ministers' names
derives from a general rule of law and not from any particular
act of delegation. Legally and constitutionally the act of the
official is the act of the minister, without any need for specific
authorisation in advance or ratification afterwards. Even where
there are express statutory powers of delegation they are not in
fact employed as between the minister and his own officials.
Such legal formalities would be out of place within the walls of
a government department, as is recognised by Parliament's
practice of conferring powers upon ministers in their own
names. The case is of course different where the official is to be
empowered to act in his own name rather than the minister's.
Thus the power for inspectors to decide certain kinds of plan
ning appeals must be delegated by the minister by statutory
instrument, as required by the Act. [Underlining added.]
The passages from Carltona and Harrison and
the quotation from Wade all relate to the exercise
of powers on behalf of ministers of the Crown, not
to the exercise of powers by officials for other
officials. Wade, indeed, distinguishes cases where
an official is empowered to act in his own name.
Counsel referred us, however, to a passage from
the reasons for judgment of Chief Justice Jackett
in Ahmad v. Public Service Commission, [1974] 2
F.C. 644 (C.A.), in which the Carltona principle
appears to have been extended to include deputy
ministers. The passage occurs at page 651:
It would be quite impossible for the deputy head of a large
modern government department to give personal attention to all
such matters, important as they may be to individuals con
cerned. That is why departmental administration is organized
as it is and, in my view, there is a necessary implication, in the
absence of something expressly or implicitly to the contrary,
that ministers' powers, and deputy ministers' powers, are exer
cised on their behalf by their departmental organizations as
long as they are of an administrative character. To what extent
officials are allowed or required to do so in particular cases is a
matter of internal arrangement and outsiders have no status to
question the authority of an official in a particular case.
In Ahmad, a deputy head had delegated his
authority under section 31 of the Public Service
Employment Act to recommend the release of an
employee if in the deputy head's opinion the
employee was incompetent to perform the duties of
his office. The delegation was to a director of
personnel who exercised the authority. The delega
tion was made pursuant to a provision in the
statute authorizing such delegation. The Court
held that the delegation was effective. The Chief
Justice, however, proceeded to say, at pages 650
and 651:
In any event, quite apart from special statutory authorization,
in my view, this opinion was not one that required personal
attention from the deputy head and was validly formed by
appropriate departmental officials on the basis of the principles
applied in such cases as Carltona, Ltd. v. Comrs. of Works.
He then quoted the passage from Lord Greene's
judgment in Carltona which I have quoted above,
and proceeded to the passage in which he extended
Carltona to include deputy ministers.
It would appear that, if the passage from
Ahmad is correct, this Court should treat an au
thority entrusted by statute to a deputy minister as
carrying with it a presumption that the acts which
the deputy minister is authorized to perform may
be performed, not only by him in person, but also
by responsible officials in his department. And I
would say that I do read the passage from Ahmad
as being at least an alternative ground for the
decision of the Court on the "delegation point"
involved in that case. So, for purposes of these
reasons, I will assume that the "Ahmad presump
tion" applies. At any rate, if my conclusion should
be that the Deputy Minister cannot delegate under
subsection 46(4) even with the support of the
presumption, I can see no way in which I could
find that he would have such a power without its
aid.
But the presumption that a deputy minister may
exercise a statutory authority granted to him by
using departmental officials is, even according to
Ahmad itself, subject to "something expressly or
implicitly to the contrary" in the statute; and
again, the presumption operates only if the author
ity conferred is "of an administrative character."
Ultimately, in my view, what is critical in decid
ing whether the Deputy Minister must exercise
personally the authority conferred on him by sec
tion 46 is, in the words of Harrison, "the language,
scope or object ..." of the administrative scheme
established by section 46. The "Ahmad presump
tion" is an element to be considered in deciding the
issue, but cannot, in itself, be decisive.
Section 46 of the Customs Act establishes an
administrative scheme having to do with the deter
mination of tariff classification and the appraisal
of the value for duty of imported goods. Both are
essential features of a customs system and both are
very important to importers. The process of clas
sification and appraisal sometimes involves dif
ficult questions of interpretation, questions of
mixed fact and law.
A determination of the tariff classification or an
appraisal of the value for duty of goods made at
the time of entry of the goods is final and conclu-
sive unless the importer, within ninety days of the
date of entry, makes a written request in pre
scribed form and manner to a Dominion customs
appraiser for a re-determination or a re-appraisal.
The Dominion customs appraiser may re-deter
mine the tariff classification or may re-appraise
the value for duty in response to the importer's
request. But this re-determination or re-appraisal
is not necessarily final. The importer has a further
recourse. He may request the Deputy Minister to
make a further re-determination or re-appraisal.
This ascending order is significant for present
purposes. It points to a conclusion that the import
er is entitled to have his request considered by the
Deputy Minister himself rather than by an official
directed by the Deputy Minister to act on his
behalf. Under subsection 46(3), the importer has
the right to make a request to the Deputy Minis
ter, the senior administrative official in the
Department. He has already had a re-determina
tion or a re-appraisal by a junior official, the
Dominion customs appraiser. His request is for a
re-determination or a re-appraisal by the highest
administrative official in the Department.
I realize that in the present case the decision
appealed to the Tariff Board is expressed as being
a decision made under paragraph 46(4)(d), not
under paragraph 46(4)(a). If paragraph 46(4)(d)
stood alone, it would be easier to argue that the
Deputy Minister could delegate to other officials
because under the paragraph the Deputy Minister
may act on his own initiative; he is not acting in
response to a request containing representations.
But his power under paragraph 46(4)(d) must
nonetheless be determined by reading the para
graph in context.
The context is section 46 as a whole. I have, I
hope, demonstrated that the importer who has
asked for and obtained a re-determination or a
re-appraisal from a Dominion customs appraiser
has a right to ask the Deputy Minister personally
to make a further re-determination or re-appraisal.
I would add that he has a similar right, even if the
Dominion customs appraiser acting on his own
initiative has made a re-determination or re
appraisal under paragraph 46(2)(b). It would, I
suggest, be odd if despite his right to a personal
decision under paragraph 46(4)(a), he could be
subjected to a "delegated decision" under para
graph 46(4)(d): this surely could not be the statu
tory intent. I would add that the presence of
paragraph 46(4)(b) in the subsection also points in
the direction of the requirement that the Deputy
Minister must act personally under subsection
46(4): the paragraph authorizes the Deputy Minis
ter to make a re-determination or a re-appraisal
"at any time, if the importer has made any mis
representation or committed any fraud in making
the entry of those goods." This particular author
ity to re-determine or re-appraise is not limited to
two years after the date of entry, and it is vested in
terms in the Deputy Minister; a condition prece
dent to its exercise is that the importer must have
made a misrepresentation or committed fraud, a
very serious matter. Authority under the para
graph is understandably reserved to the highest
administrative official in the Department.
I am persuaded that the structure of section 46,
when all parts of the section are read together,
indicates an intention that the Deputy Minister
must act personally when he exercises his author
ity under any of the provisions of the section, that
he must bring his own mind to bear on the matter:
see Ramawad v. Minister of Manpower and
Immigration, [1978] 2 S.C.R. 375, per Mr. Justice
Pratte, at pages 381 and 382. The language, scope
and object of the section can hardly be said, in the
words of Harrison, to displace the "general rule of
construction in law that a person endowed with a
discretionary power should exercise it personally".
It was also argued that a decision by the Deputy
Minister under paragraph 46(4)(a) is not a deci
sion which is "administrative in character", but is
a decision which is judicial or quasi-judicial. There
is a good deal of force in this submission. The
request under subsection 46(3) must be made in
writing and must state the reasons and grounds for
the request. If the Deputy Minister grants the
request to make the re-determination or re
appraisal, he must surely come to his decision with
the terms of the request in mind. In this sense, the
importer is entitled to and does make representa
tions. The decision of the Deputy Minister, if he
accedes to the request, may confer a significant
benefit on the importer: the duties previously
assessed may be reduced or eliminated. And the
decision of the Deputy Minister is not to be made
for the purpose of implementing policy. The
Deputy Minister, in making a re-determination,
must apply the terms of the Customs Tariff to the
matter in issue or, in making a re-appraisal, he
must apply the relevant provisions of the statute
having to do with appraisal of value for duty. And
there is clearly a matter in issue, a /is in a broad
sense. The issue is whether the Dominion customs
appraiser was in error in determining the tariff
classification as he did or in appraising as he did.
I recognize, of course, that, under paragraph
46(4)(d), the Deputy Minister does not act on a
request from an importer. But, here too, his deci
sion must be made, not on a policy basis, but by
applying the tariff item or the relevant statutory
provisions appropriate in the circumstances. His
decision carries with it a strong "element of law",
and it may have serious consequences to an
importer.
I am persuaded that a decision taken by the
Deputy Minister under subsection 46(4) is not a
decision "administrative in character" as I under
stand that term to be used in Ahmad. In Ahmad,
the decision under review, the decision to recom
mend release of an employee, though important to
the employee, was nonetheless a decision made in
the course of departmental personnel administra
tion, and was not in itself decisive of whether the
employee should be released. It was clearly
"administrative in character".
I do not think that, merely because a decision
may have a quasi-judicial element, it would neces
sarily follow that it could not be "administrative in
character". In Vine v. National Dock Labour
Board, [1957] A.C. 488 (H.L.), Viscount Kilmuir
said, at page 499:
I am not prepared to lay down that no quasi-judicial function
can be delegated, because the presence of the qualifying word
"quasi" means that the functions so described can vary from
those which are almost entirely judicial to those in which the
judicial constituent is small indeed ....
A decision made under subsection 46(4), may,
however, turn on significant questions of law as
well as of fact: the "legal element" may not be
slight; it may be critical.
Counsel for the Tariff Board also relied on the
maxim expressio unius est exclusio alterius in
support of his submission that the Deputy Minister
could not delegate. Counsel referred to the rights
of delegation given to the Minister under sections
162 and 163 of the Customs Act; it was argued
that since these sections expressly authorize the
Minister to delegate, a proper inference is that
subsection 46(4) cannot be taken to contain an
implied power to delegate. It was also argued that
because some other statutes, statutes such as the
Immigration Act, 1976 [S.C. 1976-77, c. 52] and
the Public Service Employment Act, expressly
authorize the deputy minister to delegate, it may
be assumed that Parliament would have provided a
similar power in the Customs Act if it had intend
ed that the Deputy Minister might delegate his
authority under subsection 46(4) of the Customs
Act. I confess I did not find these submissions
persuasive.
For all the reasons I have given, I would answer
question 3(a) of the reference in the negative. It
follows that I would also answer question 3(b) in
the negative.
I would, however, make this general observation.
It should, of course, be borne in mind that the
Deputy Minister is entitled, in exercising his au
thority under subsection 46(4), to make full use of
his departmental staff in arriving at his re-deter
minations or re-appraisals. He need not do the "leg
work" himself.
I will close with one more observation, though it
is not necessary to do so in order to answer the
questions asked in the reference. It would seem to
me that, when subsection 46(4) of the Customs
Act is read in the light of subsection 23(3) of the
Interpretation Act, it may well have the effect of
conferring on an official in the Department who
occupies a position which is, when properly con
sidered, a position as "deputy" to the Deputy
Minister, authority to exercise powers conferred on
the Deputy Minister by subsection 46(4). An
"assistant deputy minister" may, for example,
occupy such a position.
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.