A-678-76
In re the Tariff Board Act and in re an Applica
tion by the Tariff Board pursuant to section 28 of
the Federal Court Act
Court of Appeal, Jackett C.J., Pratte and Urie
JJ.—Ottawa, February 2 and 3, 1977.
Reference pursuant to s. 28(4) of Federal Court Act —
Member of Board deceased after hearing but before matter
disposed of — Whether remaining members have jurisdiction
to issue valid declaration — Tariff Board Act, R.S.C. 1970, c.
T-1, ss. 3(1),(8) and (9) and 5(7) Interpretation Act, R.S.C.
1970, c. I-23, s. 21(2) — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28(4).
After a member of the Tariff Board died, the Board institut
ed a reference to the Federal Court of Appeal under section
28(4) of the Federal Court Act to determine whether the two
remaining members who presided at a hearing could issue a
valid declaration.
Held, the remaining two members of the panel in question do
not have jurisdiction to issue a valid declaration. The case being
heard was an "appeal" governed by section 3(8) of the Tariff
Board Act, which requires three or more members of the Board
to participate in disposing of any proceeding to which the
section applies. Section 3(9) of the Act does not decrease the
number of members required but merely provides, as does
section 21(2)(c) of the Interpretation Act, that the functions of
a tribunal are not to be suspended merely by reason of a
vacancy in its membership.
REFERENCE pursuant to section 28(4).
COUNSEL:
H. Soloway, Q.C., and J. L. Shields for the
Tariff Board.
E. A. Bowie for the Deputy Attorney General
of Canada.
G. Greenwood for Kipp Kelly Ltd.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for the Tariff
Board.
Deputy Attorney General of Canada for
himself.
Maclaren, Corlett & Tanner, Ottawa, for
Kipp Kelly Ltd.
The following are the reasons of the Court for
the decision delivered orally in English by
JACKETT C.J.: This is a reference by the Tariff
Board under section 28(4)' of the Federal Court
Act. The Board's order of reference, after stating
certain facts, including the fact that one of the
Board's members, Mr. René Labelle, had died
after participating, along with two other members,
in the hearing of certain proceedings under the
Customs Act' and the Excise Tax Acta but before
such proceedings had been disposed of, referred to
this Court the following question:
'Section 28(4) reads as follows:
(4) A federal board, commission or other tribunal to
which subsection (1) applies may at any stage of its proceed
ings refer any question or issue of law, of jurisdiction or of
practice and procedure to the Court of Appeal for hearing
and determination.
2 See section 47 of the Customs Act (R.S.C. 1970, c. C-40),
which reads in part:
47. (1) A person who deems himself aggrieved by a deci
sion 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.
(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 generality 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 48.
3 See section 59(1) of the Excise Tax Act (R.S.C. 1970, c.
E-13), which reads:
59. (1) Where any difference arises or where any doubt
exists as to whether any or what rate of tax is payable on any
article or on transportation by air under this Act, the Tariff
Board constituted by the Tariff Board Act may declare what
rate of tax is payable thereon or that the article or transpor
tation by air is exempt from tax under this Act.
Do the remaining two members of the panel who presided with
the late Mr. Labelle at the Public Hearing of each Appeal,
have jurisdiction to issue a valid Declaration.
The Tariff Board is created by section 3(1) of
the Tariff Board Act (R.S.C. 1970, c. T-1) and
consists of seven members of whom one is required
to be appointed as Chairman. It has a duty under
that Act to conduct inquiries into matters of a
general nature concerning customs or excise duties
or trade and commerce at the request of the
Minister of Finance or the Governor in Council
and to make reports with regard thereto. A quite
different part of its functions is the decision under
other Acts of appeals, or differences or doubts that
arise in respect of specific cases concerning liabili
ty to pay tax. In respect of what might be called
the "inquiries" function, by virtue of section 5(7),
the Chairman may designate a member or mem
bers to carry out the inquiry and "the member or
members so designated have and may exercise ...
all the powers and functions of the Board". On the
other hand, with respect to an "appeal" 4 under
some Act other than the Tariff Board Act, section
3(8) reads:
(8) With respect to an appeal to the Board pursuant to any
Act other than this Act, three or more members have and may
exercise and perform all the powers and functions of the Board.
While not so expressed, as we read the Act, these
provisions are in effect "quorum" 5 provisions in
that they determine the minimum number of
members of the Board who must participate in
carrying out the two different classes of duties
assigned to it.
No other provision in the Tariff Board Act
touching the question referred to this Court has
been brought to our attention; and, looking only at
section 3(8), it seems clear that "three or more
members" must participate in the exercise by the
Board of the power to "issue a valid Declaration"
deciding an appeal or otherwise dispose of a pro
ceeding to which that provision applies. If that is
4 Which term seems to be used to include matters brought
before the Board under section 59 of the Excise Tax Act.
5 The definition of "quorum" in The Concise Oxford Dic
tionary reads:
Fixed number of members that must be present to make
proceedings of assembly or society or board valid.
so, the question put to this Court must be
answered in the negative.
However, counsel for the Attorney General and
counsel for Kipp Kelly Limited, one of the appel
lants before the Tariff Board, submit that the
opposite result should be reached by virtue of
section 21 of the Interpretation Act (R.S.C. 1970,
c. I-23), which reads:
21. (1) Where an act or thing is required or authorized to be
done by more than two persons, a majority of them may do it.
(2) Where an enactment establishes a board, court, commis
sion or other body consisting of three or more members (in this
section called an "association"),
(a) at a meeting of the association, a number of members of
the association equal to
(i) at least one-half of the number of members provided
for by the enactment, if that number is a fixed number,
and
(ii) if the number of members provided for by the enact
ment is not a fixed number but is within a range having a
maximum or minimum, at least one-half of the number of
members in office if that number is within the range,
constitutes a quorum;
(b) an act or thing done by a majority of the members of the
association present at a meeting, if the members present
constitute a quorum, shall be deemed to have been done by
the association; and
(c) a vacancy in the membership of the association does not
invalidate the constitution of the association or impair the
right of the members in office to act, if the number of
members in office is not less than a quorum.
and section 3(9) of the Tariff Board Act, which
reads:
(9) A vacancy on the Board does not impair the right of the
remaining members to act.
Counsel for the Attorney General of Canada put
forward the argument that section 21(1) of the
Interpretation Act read with section 3(8) of the
Tariff Board Act was sufficient to require an
affirmative answer to the question put to this
Court by the Board. In his submission, as we
understood him, section 3(8) authorizes three or
more members to decide an appeal and section
21(1), therefore, authorizes a "majority of them"
to do it. In our view, section 21(1) cannot be used
to make an alteration in the requirements of a
provision fixing the "quorum" required to deal
with a matter. Although we recognize that the
words of the subsection are wide enough, read
literally, to support counsel's submission, as it
seems to us, section 21(1) deals with a case where
a statutory quorum is exercising a statutory power;
in effect, it makes the "majority" decision the
decision of the group.
Counsel for Kipp Kelly Limited, whose submis
sion was adopted by counsel for the Attorney
General, submitted, as we understood him, that
the effect of section 3(8) of the Tariff Board Act
was to create a different tribunal of "three or more
members" for each "appeal". On the basis of that
submission, he relied on section 21(2) of the Inter
pretation Act as making two members a quorum
and on section 3(9) of the Tariff Board Act as
authority for the two surviving members of the
group of three that heard a particular "appeal" to
dispose of such appeal after the death of the third.
In our view, section 3(8) does not create any
tribunal distinct from the Tariff Board but lays
down a rule as to how the Tariff Board must be
constituted for the hearing of an "appeal". Fur
thermore, we do not read section 3(9) of the Tariff
Board Act as decreasing the number of members
required for performing any particular function.
As we read it, it merely provides, as does section
21(2)(c) of the Interpretation Act, that the func
tions of a tribunal are not to be suspended merely
by reason of a vacancy in its membership.
In reaching the above conclusion, we have
assumed that a matter coming before the Tariff
Board under section 59 of the Excise Tax Act is
an "appeal" within the meaning of that word in
section 3(8) of the Tariff Board Act. Having
regard to our conclusion, there is no need to
express any final conclusion on the matter. 6
In our view, the question posed to this Court by
the Tariff Board under section 28(4) of the Feder
al Court Act should be answered in the negative.
6 It has not been suggested that, having regard to the actual
membership of the Board, a different result would flow if such
a proceeding were not an "appeal" within section 3(8).
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.