CUSTOMS AND EXCISE |
Customs Act |
AAi.FosterGrant of Canada Co. v. Canada (Commissioner, Customs and Revenue Agency)
A-396-03
2004 FCA 259, Sharlow J.A.
14/7/04
10 pp.
Appeal under Customs Act, s. 68, from decision of Canadian International Trade Tribunal (CITT) ([2003] C.I.T.T. No. 51 (QL)) upholding decision of Commissioner increasing by approximately 200% value for duty of certain merchandise imported between 1998 and 1999 by AAi Canada --Meaning of "carries on business" in Valuation for Duty Regulations--CITT had to determine whether AAi Canada met definition of term "purchaser in Canada" in Customs Act, s. 45, Valuation for Duty Regulations, s. 2.1--AAi Canada met definition if, during relevant period, it carried on business in Canada, had its management and control in Canada, or had fixed place of business in Canada through which it carried on business--CITT concluded AAi Canada not carrying on business because AAi U.S. so significantly involved in affairs of AAi Canada that business really conducted by AAi U.S.--Supreme Court of Canada, in Backman v. Canada, [2001] 1 S.C.R. 367 stated meaning of "carrying on a business" may differ depending on context in which it is used --Uncontradicted evidence AAi Canada buying and selling goods on its own account for profit--CITT's decision based solely on significant degree of de facto control exercised by AAi U.S. over affairs of AAi Canada--CITT adopted principle corporation not carrying on business if its affairs subject to significant de facto control by parent corporation-- No authority for such proposition--No merit to Commissioner's submission corporation should not be treated as real purchaser of goods if cannot sell goods without approval of foreign parent--Nothing in Customs Act requiring or permitting that approach--Appeal allowed--Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, s. 68 (as am. by S.C. 1995, c. 41, s. 20; 1999, c. 17, s. 127)--Valuation for Duty Regulations, SOR/86-792, s. 2.1 (as enacted by SOR/97-443, s. 2).