T-2630-86
MTD Products Limited (Applicant)
v.
Tariff Board of Canada, Gordon Bannerman Lim
ited, Deutz-Allis Corporation Canada Ltd., John
Deere Limited, Outboard Marine Corporation,
Westward Power Equipment, The Toro Company,
Canadiana Outdoor Products Inc., Outdoor Power
Equipment Institute Inc., Murray Ohio Manufac
turing Company, Honda Canada Inc., Jacobsen
Textron, Rollins Machinery Ltd., Brouwer Turf
Equipment Limited, Alteen Distributors Ltd.,
Consolidated Turf Equipment (1965) Ltd., Brandt
Industries Ltd., Interprovincial Turf Equipment,
Fallis Turf Equipment, G. D. Duke Equipment
Ltd., JI Case Canada, MacLeod-Stedman Inc.,
Ontario Turf Equipment Co. Ltd., Marr's Leisure
Products (1977), Inc., Halifax Seek Company
Limited, Turf Care, Polaris Industries Inc. and
Deputy Minister of National Revenue for Customs
and Excise (Respondents)
INDEXED AS: MTD PRODUCTS LTD. V. CANADA (TARIFF
BOARD)
Trial Division, Dubé J.—Ottawa, December 9 and
10, 1986.
Customs and excise — Customs Act — Tariff Board — No
inherent or statutory jurisdiction to reconsider own decision —
Common law restricting reconsideration to cases of clerical
mistakes and matters inadvertently omitted — Customs Act,
R.S.C. 1970, c. C-40, ss. 47, 48, 49 — Tariff Board Act,
R.S.C. 1970, c. T-1, s. 9 — Federal Court Rules, C.R.C., c.
663, R. 337(5),(6).
Practice — Judgments and orders — Reversal or variation
— Once released, Court or Board retaining jurisdiction only to
correct clerical mistakes or deal with matter inadvertently
omitted — Boards having no inherent power to reconsider own
decisions — No statutory authority therefor in Customs Act,
R.S.C. 1970, c. C-40 or Tariff Board Act, R.S.C. 1970, c. T-1.
The Deputy Minister sent a reference to the Board regarding
the proper tariff classification of various self-propelled lawn
mowers. The Board released its formal decision and written
reasons on September 19, 1986. Though it concluded that the
criteria enunciated in a previous appeal were sufficient for
appropriate classification, it also found there was not sufficient
evidence to classify properly each and every lawn mower and,
accordingly, referred the matter back to the Deputy Minister.
On October 2, one of the respondents requested a "clarifica-
tion" of the Board's decision which was said to be ambiguous.
The Board replied that it was prepared to receive and set down
for hearing on December 11, a formal application requesting it
to reconsider the terms of its decision. The applicant's motion is
for a writ of prohibition restraining the Board from holding
such a hearing.
Held, a writ of prohibition should issue.
The Board has no rules and must therefore govern itself
according to the relevant principles of the common law. At
common law, quasi-judicial tribunals as well as courts, retain
only the jurisdiction necessary to correct accidental clerical
mistakes or to deal with a matter inadvertently omitted. Boards
have no inherent power to reconsider their own decisions and
cannot do so unless the Act creating the Board expressly
provides for it. There is no such provision in either the Customs
Act or the Tariff Board Act. On the contrary, subsection 47(3)
which is incorporated in section 49 of the Customs Act, pro
vides that an order of the Board is "final and conclusive subject
to further appeals as provided in section 48". It is evident that
there must be finality in judgments. In this case the decision is
in accord with the reasons and no matters were inadvertently
omitted.
Subsection 337(5) of the Federal Court Rules (known as the
"Slip Rule") does not apply to the Tariff Board and, even if it
did, would not justify a reconsideration in the circumstances.
CASES JUDICIALLY CONSIDERED:
REFERRED TO:
Holmes Foundry Limited v. Village of Point Edward,
[1963] 2 O.R. 404; 39 D.L.R. (2d) 621 (C.A.); Paper
Machinery Ltd. et al. v. J.O. Ross Engineering Corp. et
al., [1934] S.C.R. 186; [1934] 2 D.L.R. 239; Preston
Banking Company v. William Allsup & Sons, [1895] 1
Ch. 141 (C.A.); Piyaratana Unnanse v. Wahareke
Sonuttara Unnanse, [1950] 2 W.W.R. 796 (P.C.); Scivi-
tarro v. Min. of Human Resources, [1982] 4 W.W.R.
632; 134 D.L.R. (3d) 521 (B.C.S.C.); Re Martin and
County of Brant, [ 1970] 1 O.R. 1 (C.A.).
COUNSEL:
Ronald J. Rolls, Q.C. and Ronald D. Collins
for applicant.
Peter Annis for respondent Tariff Board of
Canada.
Richard A. Wagner for respondents, John
Deere Limited, Deutz-Allis Corporation and
Outboard Marine Corporation.
Ronald Cheng for respondent The Toro
Company.
Paul Kane for respondent Canadiana Outdoor
Products Inc.
Steven H. Leitl for respondent Jacobsen
Textron.
Arnold Fradkin for respondent Deputy Min
ister of National Revenue for Customs and
Excise.
SOLICITORS:
Fasken & Calvin, Toronto, for applicant.
Honeywell, Wotherspoon, Ottawa, for
respondent Tariff Board of Canada.
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for respondents, John Deere Limited,
Deutz-Allis Corporation, Outboard Marine
Corporation and Canadiana Outdoor Prod
ucts Inc.
Osler, Haskin & Harcourt, Toronto, for
respondent The Toro Company.
Borden & Elliott, Toronto, for respondent
Jacobsen Textron.
Deputy Attorney General of Canada for
respondent Deputy Minister of National
Revenue for Customs and Excise.
The following are the reasons for order ren
dered in English by
DuBÉ J.: This motion (heard all day yesterday)
is for a writ of prohibition restraining the Tariff
Board from holding a hearing to reconsider its
decision dated September 19, 1986 in Reference/
Appeal No. 2294. The Board hearing is to be held
tomorrow, December 11, 1986. Time being of the
essence, I cannot review in these reasons all the
arguments and canvass all the jurisprudence pre
sented by the several parties who appeared in this
matter. I propose therefore to limit myself to a
brief presentation of the essential facts, an analysis
of the principles involved and my conclusions.
Reference/Appeal No. 2294 dealt with the
proper tariff classification of various self-propelled
power lawn mowers. The reference in question
pursuant to subsection 49(1) of the Customs Act'
was sent to the Board by the Deputy Minister in
his letter dated April 4, 1985. In his letter, the
R.S.C. 1970, c. C-40.
Deputy Minister raised two questions. Firstly,
whether specific machines identified in Appendix
"A" are integrated power lawn mowers classified
under tariff items 42505-1, or whether they are
tractors classified under tariff item 40938-1.
Secondly, he asked the Board to identify the cri
teria which were considered in arriving at its
conclusion.
After eighteen days of hearing the Board
released a formal decision and written reasons on
September 19, 1986. The Board's decision reads as
follows:
DECISION OF THE BOARD
The Board concludes that the criteria enunciated in Appeal
No. 795 are sufficient to enable the appropriate classification
of the goods listed in this reference as well as similar machines.
The Board also finds there was not sufficient evidence placed
before it to enable it to classify properly each and every
machine listed in Appendix A on an individual basis. Accord
ingly, the Board refers the matter back to the Deputy Minister
for appropriate action.
In the last paragraph of the reasons for decision,
the Board concludes as follows:
The Board, after careful consideration of the evidence, con
cludes that the criteria enunciated in Appeal No. 795 supra,
are sufficient to enable the appropriate classification of the
goods listed in this reference as well as similar machines. The
criteria established in that appeal have stood the test of time
since its declaration on September 20, 1966 and the Board does
not believe there is any sound basis for expanding the criteria
beyond those already in existence in order to accommodate the
goods in question. At the same time, the Board finds that there
was insufficient evidence placed before the Board that would
enable it to classify properly each and every machine listed in
Appendix 'A' on an individual basis. The Board therefore is not
prepared to respond to such a request by the Deputy Minister
at this time and refers the matter back to him for appropriate
action.
On October 2, 1986 the solicitor for one of the
intervenants, Canadiana Outdoor Products Inc.,
wrote to the Tariff Board and requested a "clarifi-
cation" of its decision. The Secretary of the Board
replied on October 23, 1986 that it was prepared
to receive and set down for hearing on December
11, 1986 a formal application requesting it to
reconsider the terms of its decision, provided
notices were filed and served by registered mail
not later than November 10, 1986. At the time the
Board had already been put on notice by the
Department of Justice that it had no further juris
diction to hold such a re-hearing.
Much was made of the fact that the formal
notice of application was filed on November 10
and mailed on that same date, with the result that
the other parties did not receive their notice on or
before November 10. I do not feel, however, that
any prejudice was suffered by any of the parties
involved and I will not therefore rest my decision
on whether or not service by registered mail is
effected on the day a notice is so mailed or on the
day the notice is received.
It was also alleged, on the part of the applicant,
that the Board was biased, or otherwise violated
principles of natural justice, or did not act fairly in
its procedure. In my view, those allegations are
unfounded.
An argument was advanced by one of the
respondents that the decision of the Board was not
a "decision", but an "opinion" under section 49 of
the Customs Act. Pursuant to subsection 49(2) a
reference under that section is deemed to be an
appeal to the Board and under the scheme of the
Act is a decision subject to an appeal to the
Federal Court. It was also alleged that the decision
of the Board was purely administrative and not
quasi-judicial. Even counsel for the Board did not
accept that.
On November 12, 1986 a telex was sent by the
solicitor for the applicant ("MTD") to the Secre
tary of the Board inquiring as to what was to be
heard on December 11, 1986. On November 21,
1986 the latter informed the solicitor that the
hearing would relate only to jurisdiction and that
no arguments would be heard concerning the
merits of the proposed reconsideration. That posi
tion was confirmed by the Board in a letter dated
November 20, 1986. However, on November 29,
1986 the Secretary of the Board wrote again
informing the solicitor that the Board had changed
its position as follows:
I am now directed to inform you that on the hearing of the
applications for clarification of the Board's Decision and Rea
sons for Decision on December 11 next, the Panel will expect to
hear argument as to whether the Board has jurisdiction and
authority to reconsider the matter, whether grounds exist for
doing so and as to the appropriateness of any remedy suggest
ed, all as set out in the Board's letter of October 23.
In a nutshell, the contention of the applicant
MTD, which is shared by the Deputy Minister of
National Revenue, is that the Board has no juris
diction to reconsider its own decision. I share that
view.
At the outset, it must be pointed out that the
decision in question of September 19, 1986 was
formally published in the Canada Gazette on
November 1, 1986 pursuant to section 9 of the
Tariff Board Act 2 which stipulates that the
Board's decision must be so published forthwith.
Section 49 of the Customs Act (under which the
reference was made) incorporates sections 47 and
48 of that Act. Subsection 47(3) provides that an
order of the Board is "final and conclusive subject
to further appeal as provided in section 48". And it
is axiomatic that there must be finality in
judgments.
Reference was made by the other parties to
Rule 337 of the Federal Court Rules [C.R.C., c.
663] and more particularly to subsections 337(5)
and 337(6) which constitute what is known as the
"Slip Rule". The two paragraphs read as follows:
Rule 337. .. .
(5) Within 10 days of the pronouncement of judgment under
paragraph (2)(a), or such further time as the Court may allow,
either before or after the expiration of that time, either party
may move the Court, as constituted at the time of the pro
nouncement, to reconsider the terms of the pronouncement, on
one or both of the following grounds, and no others:
(a) that the pronouncement does not accord with the reasons,
if any, that may have been given therefor;
(b) that some matter that should have been dealt with has
been overlooked or accidentally omitted.
(6) Clerical mistakes in judgments, or errors arising therein
from any accidental slip or omission, may at any time be
corrected by the Court without an appeal.
In fact, the solicitor for the party requesting the
clarification used the language of paragraphs
337(5)(a) and (b) in his application to the Board.
Counsel for the respondents did not argue that
there were clerical mistakes or accidental slips, but
that something more fundamental had taken place,
namely that there was ambiguity in the decision,
so much so that the decision was subject to differ
ent interpretations by different parties.
2 R.S.C. 1970, c. T-1.
My first reaction is that the Federal Court Slip
Rule does not apply to the Tariff Board and, even
if it did, it would not allow for the type of recon
sideration or clarification which the respondents
seek. The Board has no rules and must therefore
govern itself according to the principles of the
common law in the matter.
At common law, once an order or judgment is
released, the Court retains only the jurisdiction
necessary to correct accidental clerical mistakes or
to deal with a matter inadvertently omitted.' That
principle applies to quasi-judicial tribunals as well
as to courts. 4 Boards as such have no inherent
power to reconsider their own decision and cannot
do so unless there is a provision in the Act creating
the Board which expressly provides for it. There is
no such provision in either the Customs Act or the
Tariff Board Act.
Having thus found that the Board has no power,
either inherent or statutory, to reconsider its own
decision, I must now look at the reasons for deci
sion and the decision of the Board and see whether
or not the decision accords with the reasons, or
whether some matters have been inadvertently
omitted.
At the outset of its reasons for decision, the
Board reproduces the two questions put by the
Deputy Minister. Then, it deals with both and
refers the matter back to the Deputy Minister for
appropriate action. As pointed out by some
respondents, the Board does not spell out what the
Deputy Minister ought to do. However, that is for
the Deputy Minister to decide and not for the
interpretation of the Court.
In its decision the Board very succinctly
reproduces the conclusions of its reasons for deci-
' See Holmes Foundry Limited v. Village of Point Edward,
[1963] 2 O.R. 404; 39 D.L.R. (2d) 621 (C.A.); Paper Ma
chinery Ltd. et al. v. J.O. Ross Engineering Corp. et al., [1934]
S.C.R. 186; [1934] 2 D.L.R. 239; Preston Banking Company v.
William Allsup & Sons, [1895] 1 Ch. 141 (C.A.); and
Piyaratana Unnanse v. Wahareke Sonuttara Unnanse, [1950] 2
W.W.R. 796 (P.C.).
4 See Scivitarro v. Min. of Human Resources, [1982] 4
W.W.R. 632; 134 D.L.R. (3d) 521 (B.C.S.C.) and Re Martin
and County of Brant, [1970] 1 O.R. 1 (C.A.).
sion. Ambiguity and lack of clarity there might be,
but I cannot find that the decision is not in accord
with the reasons or that certain matters were
inadvertently omitted. It may very well be that
neither the reasons nor the decision will solve the
problems apprehended by the respondents and that
both documents do not answer the question to the
satisfaction of the Deputy Minister, but that was
not done accidentally or inadvertently or uninten
tionally by the Board. The decision of the Board
reflects the reasons for that decision however
unsatisfactory that situation may be to the
respondents.
Under the circumstances a writ of prohibition
will issue prohibiting the Tariff Board from hold
ing a hearing to reconsider its decision dated Sep-
tember 19, 1986 in Reference/Appeal No. 2294.
Costs to the applicant.
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.