T-1342-77
Penthouse International Ltd. (Applicant)
v.
Minister of National Revenue and Deputy Minis
ter of National Revenue for Customs and Excise
(Respondents)
Trial Division, Cattanach J.—Ottawa, April 12
and 18, 1977.
Customs and excise — Prerogative writs — Copies of
applicant's magazine classified as prohibited goods —
Refused entry into Canada — Whether respondents and their
agents acted ultra vires in prohibiting entry — Whether goods
wrongly classified — Whether "periodical" deemed included
in Tariff Item 99201-1 — Whether writ of prohibition open to
applicant — Application dismissed — Customs Act, R.S.C.
1970, c. C-40, ss. 46-48, 50 — Customs Tariff, R.S.C. 1970, c.
C-41, Tariff Item 99201-1 — Federal Court Act, s. 18.
APPLICATION for writ of prohibition.
COUNSEL:
A. E. Golden for applicant.
D. Friesen for respondents.
SOLICITORS:
Golden, Levinson, Toronto, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This is an originating notice of
motion seeking prohibition, pursuant to section 18
of the Federal Court Act, to restrain and prohibit
the respondents herein and their officers, agents,
collectors, appraisers and representatives from
applying or purporting to apply Item 99201-1 of
the Customs Tariff (R.S.C. 1970, c. C-41) to all
copies, some 674,000 in number, of the May issue
of a periodical magazine entitled Penthouse pub
lished by the applicant in Des Moines, Iowa, one
of the states of the United States of America and
imported into Canada by Metro Toronto News
and sold at the wholesale and retail levels on a
consignment basis. In my view, the question of title
to the goods is immaterial to the issues to be
decided which view is shared by both parties.
The ground upon which prohibition is sought is
that the respondents in acting as they did in
prohibiting the importation into Canada did so in
excess of the jurisdiction conferred upon them and,
as I construe the matter, that incidental to the
alleged lack of jurisdiction or so inextricably inter
woven therewith as not to be severable therefrom
is the contention that Item 99201-1 of ' Schedule
"C" of the Customs Tariff does not apply to
periodical publications which the May issue of
Penthouse magazine incontrovertibly is.
A further ground was advanced to the effect
that the appeal procedure provided in the Customs
Act (R.S.C. 1970, c. C-40) when applied to peri
odical publications is contrary to the Canadian
Bill of Rights in that it deprives the applicant of
the enjoyment of property without due process of
law. This ground was abandoned by the applicant.
A writ of prohibition, like all prerogative writs,
is an extraordinary remedy and is to be used with
great caution but in the circumstances of a par
ticular case it may be used to ensure the further
ance of justice and convenience when none of the
ordinary remedies provided by law will serve to do
so.
Under the Customs Act an appeal is provided by
sections 46, 47 and 48 through departmental hier
archy, that is from the collector, to an appraiser,
then to the Deputy Minister and from him to the
Tariff Board, an administrative tribunal and ulti
mately to the Federal Court of Canada. By coinci
dence section 50 provides for an appeal when the
importation of goods is refused at the border on
the ground that the goods as described in Tariff
Item 99201-1, are prohibited, which was done in
the present instance. Then the process of appeal
otherwise provided is circumvented and is to a
county or district court judge with appropriate
variation for the Province of Quebec. I might add
parenthetically that the judge being a persona
designata, an application to the Federal Court of
Appeal to review and set aside a decision by that
judge would appear to be available.
However, that appeal procedure is available to
the importer of the goods and not to the exporter.
It is admitted that the applicant is not the import-
er of the goods but that it is the exporter from
which it follows that the statutory process of
appeal is not available to it.
There is no question whatsoever that the appli
cant, as exporter of the goods, has a vital and
substantial interest in the matter.
It is conceivable that the exporter, or in this
instance the applicant, might prevail upon the
Deputy Minister to re-determine the tariff classifi
cation made of its goods by virtue of section
46(4)(d). Under that section the Deputy Minister
may so re-determine "in any ... case where he
deems it advisable" within a prescribed time limit.
This re-determination of classification is within the
discretion of the Deputy Minister who may exer
cise it as he deems fit and the section does not
confer upon an exporter an appeal as of right to
the Deputy Minister.
In the light of such circumstances, I am of the
view that the applicant is not obliged to have
resorted to the process of the statutory right of
appeal through the administrative channels before
taking recourse to this Court by way of an applica
tion for prohibition.
Furthermore, in my view, the authorities are
conclusive that where a lack of jurisdiction is
apparent on the face of the proceedings in the
tribunal whose action is sought to be prohibited,
there is no discretion vested in the superior Court.
Prohibition must issue preventing the inferior tri
bunal from acting on a matter over which it has no
jurisdiction.
On the other hand it is also my view that the
numerous authorities make it equally clear that
where lack of jurisdiction in the inferior tribunal is
not so apparent on the face of the proceedings then
the granting of prohibition is discretionary and
that the exercise of that discretion remains a judi
cial discretion to be exercised according to settled
principles.
Here the ground urged in the notice of motion is
that the respondents exceeded their jurisdiction
under section 14 of the Customs Tariff
Under the general object of the Customs Act
and the Customs Tariff an importer of goods is
obliged to make due entry of the goods as required
by law.
It is the duty of a collector of customs or other
proper official to classify the goods sought to be
imported. It is his duty to so classify the goods as
being within Schedule A, Schedule B or Schedule
C to the Customs Tariff and being schedules to
the Act those schedules are as much a part of the
Act and as much an enactment as any other part
of the Act.
Schedule A concerns goods subject to duty and
free goods. Should the collector classify the goods
as falling within Schedule A he is obliged to
determine if the goods so classified are free or
appraise the value for duty if they fall under the
British Preferential Tariff, Most Favoured Nation
Tariff or General Tariff and apply the appropriate
duty indicated.
Likewise, in the performance of his duty he
might classify the goods as being within Schedule
B as goods subject to drawback for home con
sumption or under Schedule C which are goods,
the importation of which into Canada is
prohibited.
In the exercise of his duty and obligation under
the two above-mentioned statutes, which are in
pari materia, the collector of customs classified
the goods which the applicant exported to Canada
as falling within Schedule C, particularly Tariff
Item 99201-1 which reads:
Books, printed paper, drawings, paintings, prints, photographs
or representations of any kind of a treasonable or seditious,
or of an immoral or indecent character.
Counsel for the applicant submitted that the
goods in question, which are incontrovertibly peri
odical publications, were improperly classified
under Item 99201-1 because the word "periodical"
does not appear therein and there are numerous
instances in Schedules A, B and in Schedule C
itself where the word "periodical" is used. In the
result his submission was that since there was no
specific inclusion in that item of "periodical" as
descriptive of the applicant's goods the importation
thereof was not prohibited.
This then brings out in stark relief what I
consider to be the crux of this matter. The crucial
issue may be simply stated. Did the collector of
customs in classifying the goods as he did act
within his jurisdiction and erroneously apply the
law to a matter within his jurisdiction or, put
another way with more appropriate emphasis, did
he erroneously decide an issue upon which his
jurisdiction depends or did he erroneously decide
an issue within his jurisdiction?
If the former is the case then prohibition must
be granted but if the latter is the case then prohibi
tion must be refused.
After having given careful consideration to what
I conceive to be the crucial issue herein as I have
indicated immediately above and for the conclu
sion I have reached, also indicated above, as to the
object of the two statutes that the duty is imposed
thereby upon the proper customs officials to classi
fy imported goods, which confers jurisdiction upon
them to do so, it follows that the respondents acted
within their jurisdiction and the decision made was
one of law within their jurisdiction.
Having so concluded it is immaterial to this
motion whether the decision made within the juris
diction was erroneous or not and I do not decide
that question but I might add that whether that
decision was erroneous is debatable.
Being a periodical I would assume that it con
sists of reproductions of photographs on certain
pages with accompanying text and reading ma
terial but there was no evidence of this before me
and if that assumption is correct then part of the
overall whole of the goods might fall within the
language of Tariff Item 99201-1 such a part by
reason of the nature of the goods not being sever-
able from the whole.
For the foregoing reasons it follows that the
application is dismissed with costs to the
respondents.
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.