A-112-71
Maple Leaf Mills Limited (Appellant)
v.
The Queen (Respondent)
Court of Appeal, Jackett CJ., Ryan J. and Hyde
D.J.—Montreal, October 8 and 10, 1974.
Customs tariff—Dumping duty—U.S. goods purchased by
U.S. subsidiary company—Sale by subsidiary to parent com
pany in Canada at higher price—Whether goods outside "a
class or kind made in Canada"—Whether selling price to
importer less than fair market value of "value for duty"—
Burden of proof—Customs Tariff, R.S.C. 1952, c. 60, s.
6(1)—Customs Act, R.S.C. 1952, c. 58, s. 36(1).
Appeal by the appellant from the dismissal of a petition of
right. In 1964, the appellant purchased goods of a class or
kind not made in Canada from its United States' subsidiary
at a price more than the price paid by the subsidiary to the
Florida manufacturer of the goods. Dumping duty was
imposed under section 6 of the Customs Tariff, on the
ground that the actual selling price of the goods to the
appellant was less than the fair market value. The assess
ment was based on the assumption that the appellant's
subsidiary acted as agent for the appellant in the purchase of
the goods.
Held, the appeal is dismissed. On a balance of probability,
it does not appear that the substance imported falls outside
the words "goods ... of a class or kind made or produced in
Canada" in section 6 of the Customs Tariff and the evidence
clearly establishes that the goods were shipped "directly" to
Canada from Florida and therefore the selling price was less
than the "value for duty" of the goods as determined by
section 36(1) of the Customs Act.
APPEAL.
COUNSEL:
Julian Chipman, Q.C., for appellant.
R. Cousineau for respondent.
SOLICITORS:
Ogilvy, Cope, Porteous, Hansard, Marler,
Montgomery & Renault, Montreal, for
appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered in English by
JACKETT C.J.: This is an appeal from a judg
ment of the Trial Division [[19711 F.C. 137]
dismissing with costs a Petition of Right by
which the substantive relief sought was repay
ment of $18,529.29 paid, pursuant to demand
made on behalf of the respondent, as special or
dumping duty under section 6 of the Customs
Tariff in respect of importations during the year
1964, which duty was, the appellant contends,
not payable on the facts of the particular
importations.
The appeal was argued on the basis that, if it
were established that dumping duty was not
payable in respect of the importations in ques
tion, the appellant should have judgment for
repayment of the duty paid and it is not, there
fore, necessary for us to say anything as to the
law concerning money paid under mistake that
is applicable.
The learned Trial Judge applied section 248
of the Customs Act to place the burden of proof
as to the relevant facts on the appellant. During
the course of argument, we indicated that we
were all of the view that section 248 does not
apply in the circumstances of this case. I am,
nevertheless, of the view that the onus of prov
ing the facts necessary to establish its case
rested on the appellant as "plaintiff".
In so far as applicable to the facts of this
case, section 6(1) of the Customs Tariff (R.S.C.
1952, c. 60), as applicable at the relevant time,
read as follows:
6. (1) In the case of goods exported to Canada of a class
or kind made or produced in Canada, if the export or actual
selling price to an importer in Canada is less than the fair
market value or the value for duty of the goods as deter
mined under ... the Customs Act, there shall ... be levied,
collected and paid on such goods, on their importation into
Canada, a special or dumping duty, equal to the difference
between the said selling price ... and the said value for duty
thereof; ... .
This provision must be read with section 36(1)
of the Customs Act, as it was at the relevant
time, which provided that, in the ordinary case,
the "value for duty" was the fair market value
"at the time when and the place from which the
goods were shipped directly to Canada" of "like
goods" when sold under certain circumstances.
The appellant made two attacks on the validi
ty of the respondent's demand for dumping
duty, viz:
(a) it said that the goods that it imported were
not "of a class or kind made or produced in
Canada" and
(b) it said that the "selling price" of the goods
exported to it was not less than the value for
duty of the goods as determined under the
Customs Act.
With reference to the "class or kind" point,
no admissible evidence was led by either party;
but certain allegations in the Petition of Right
were admitted in whole or in part by the
Defence. Such admissions were summarized by
the learned Trial Judge in his reasons for judg
ment. On the facts so admitted, I am of opinion
that it does not appear, on a balance of probabil
ity, that the substance imported falls outside the
words "goods ... of a class or kind made or
produced in Canada" in section 6 of the Cus
toms Tariff. On this point, therefore, in my
view, the appellant does not succeed on the
appeal.
It remains to consider whether the appellant
has succeeded on the other branch of its appeal
referred to above. In other words: Has it been
established by the material put before the Trial
Division that the "selling price of the goods for
export" was not in excess of the "value for
duty"?
With regard to this second point, it is common
ground that if the "place from which the goods
were shipped directly to Canada" was Coronet,
Florida, the answer to the second point must be
against the appellant, but, if that "place" was
Philadelphia, the answer must be in its favour.
In my view, a careful review of the evidence
establishes clearly that the goods in question
were shipped "directly" to Canada from Coro
net, Florida. It follows that the second point
must also be decided against the appellant.
[It should be noted that neither party relied on
section 43 of the Customs Act, as it was at the
relevant time, as supporting its view on either of
the questions in issue. It is not, therefore, neces
sary to express any opinion as to whether that
section has any application to the facts of this
appeal.]
For the above reasons, in my view, the appeal
should be dismissed with costs.
* * *
RYAN J.: I concur.
* * *
HYDE D.J.: I concur.
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