CROSS COUNTRY PARTS DISTRIBUTION LTD. Appellant v. PRESIDENT OF, 2015 FCA 187

Date: 20150908 Docket: A-384-14 Citation: 2015 FCA 187 CORAM: GAUTHIER J.A. SCOTT J.A. BOIVIN J.A. BETWEEN: CROSS COUNTRY PARTS DISTRIBUTION LTD. Appellant and PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent Heard at Ottawa, Ontario, on September 8, 2015. Judgment delivered from the Bench at Ottawa, Ontario, on September 8, 2015. REASONS FOR JUDGMENT OF THE COURT BY: GAUTHIER J.A. Date: 20150908 Docket: A-384-14 Citation: 2015 FCA 187 CORAM: GAUTHIER J.A. SCOTT J.A. BOIVIN J.A. BETWEEN: CROSS COUNTRY PARTS DISTRIBUTION LTD.

Appellant and PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on September 8, 2015). GAUTHIER J.A. [ 1 ] Cross Country Parts Distribution Ltd. (Cross Country) appeals the decision of the Canadian International Trade Tribunal (CITT) in Appeal No. AP-2012-052, dealing with the third Canada Border Services Agency’s advance ruling in respect of certain inflatable decontamination shower cabins imported by Cross Country. The issue before the CITT was whether these cabins are to be classified under Item No. 3922.10.0 of the

Schedule to the Customs Tariff , S.C. 1997, c. 36 (the Tariff) , as shower-baths of plastic or under the Tariff Item No. 8424.89.00 as other mechanical appliances for dispersing or spraying liquids. [ 2 ] In their memoranda and at the hearing, the parties agree that CITT erred in interpreting Note 2(

s) to

Chapter 39 of the Tariff (see paragraphs 41 and 42 of the decision of the CITT). They say that the CITT intended to apply the standard

interpretation developed in its prior jurisprudence. However, after accurately stating the test set out in the note, it then applied it backward. As a result, the CITT

never considered the application of

Chapter 84 and of the Tariff Item No. 8424.89.00. [ 3 ] We agree that the CITT should have begun its analysis with

Chapter 84 rather than

Chapter 39 . This error justifies our intervention for, as a result thereof, the decision is unreasonable. [ 4 ] Still, Cross Country insists that we should also comment on other findings of the CITT in respect of the application of the Tariff Item No. 3922.10.00, as well as declare that the Tariff Item No. 8424.89.00 applies to these products. [ 5 ] The CITT made no factual determination in respect of elements essential to determine whether or not the Tariff Item No. 8424.89.00 could apply.

It would be inappropriate for this Court to make such findings given that the analysis required is at the very heart of the CITT’s expertise. [ 6 ] We have also not been persuaded that the CITT made another reviewable error in its analysis under

Chapter 39 . Considering the decision as a whole (including particularly paragraphs 12 to 17), it is implicit that the CITT considered General Rule 1 and 2(

a) before it construed Rule 2(b) . Cross Country has not established either that the CITT’s conclusion, based on its factual findings (paragraphs 58, 62 and 68), is not within the range of outcomes that are defensible in respect of the facts and the law. [ 7 ] The appeal is therefore granted in part and the matter shall be sent back for redetermination to the President of the CITT. In light of the unusual circumstances of this matter, each party shall bear its own costs. “Johanne Gauthier” J.A.

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-384-14 STYLE OF CAUSE: CROSS COUNTRY PARTS DISTRIBUTION LTD. v. PRESIDENT OF THE CANADA BORDER SERVICES AGENCY PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: September 8, 2015 REASONS FOR JUDGMENT OF THE COURT BY: GAUTHIER J.A. SCOTT J.A. BOIVIN J.A. DELIVERED FROM THE BENCH BY: GAUTHIER J.A. APPEARANCES : Mr. Benham Borojeni Mr. Viet Truong For The Appellant Mr. Kirk Shannon For The Respondent SOLICITORS OF RECORD : Benham Borojeni Barrister & Solicitor Mississauga Ontario For The Appellant

William F. Pentney Deputy Attorney General of Canada For The Respondent