Minister of National Revenue and The Queen
(Appellants)
v.
Creative Shoes Ltd., Danmor Shoe Co. and Créa-
tions Marie-Claude Inc. (Respondents)
Court of Appeal, Jackett C.J., Dumoulin and
Thurlow JJ.—Ottawa, October 24, 1972.
Appeal—Application for leave to appeal decision of the
Federal Court of Appeal—Whether decision "one that ought
to be submitted to Supreme Court'—Federal Court Act, s.
31.
APPLICATION for leave to appeal.
P. T. Mclnenly for appellants.
G. Henderson, Q.C. and R. Gottlieb for
respondents.
The judgment of Jackett C.J. and Dumoulin J.
was delivered by
JACKETT C.J. (orally)—This is an application
for leave to appeal from a judgment of this
Court to the Supreme Court of Canada.
The judgment in question set aside a judg
ment of the Trial Division for certiorari and
prohibition. The appeal to this Court turned on
the validity of certain "prescriptions" purport
ing to have been made under section 40 of the
Customs Act and section 11 of the Anti-dump
ing Act by the Minister of National Revenue.
Section 40 of the Customs Act reads as
follows:
40. Where sufficient information has not been furnished
or is not available to enable the determination of cost of
production, gross profit or fair market value under section
36 or 37, the cost of production, gross profit or fair market
value, as the case may be, shall be determined in such
manner as the Minister prescribes.
A typical prescription made under that provi
sion reads as follows:
MEMORANDUM FOR
Mr. Raymond C. Labarge,
Deputy Minister of National Revenue,
Customs and Excise.
Women's Footwear Originating in Italy
Pursuant to section 40 of the Customs Act, where sufficient
information has not been furnished or is not available to
enable the determination of fair market value under section
36 or 37 of the said Act, the fair market value of women's
footwear originating in Italy shall be determined on the
basis of the export price determined under section 10 of the
Anti-dumping Act, advanced by 7.5 per cent.
"Herb Gray"
Herb Gray
Dated May 31, 1971.
Section 11 of the Anti-dumping Act reads as
follows:
11. Where, in the opinion of the Deputy Minister, suffi
cient information has not been furnished or is not available
to enable the determination of normal value or export price
under section 9 or 10, the normal value or export price, as
the case may be, shall be determined in such manner as the
Minister prescribes.
A typical prescription made under this provi
sion reads as follows:
MEMORANDUM FOR
Mr. Raymond C. Labarge,
Deputy Minister of National Revenue,
Customs and Excise.
RE; Women's Foptwear Originating in Italy
Pursuant to section 11 of the Anti-Dumping Act, I hereby
prescribe that where, in your opinion, sufficient information
has not been furnished or is not available to enable the
determination of normal value under section 9 of the Act
the normal value of women's footwear originating in Italy
shall be determined on the basis of the export price deter
mined under section 10 of the Act advanced by 7.5 per
cent.
"Herb Gray"
Herb Gray
Dated May 31, 1971.
It appears that the basis of the judgment of
the Trial Division was that the powers con
ferred by section 11 and by section 40 must be
exercised in a judicial or quasi-judicial manner.
In this Court, it was decided that those provi
sions conferred on the Minister the power to
supplement by prescriptions of a legislative
nature the rules for determination of value con
tained in the respective statutes, and, as the
Minister was entitled under those sections to
make prescriptions of general application, as he
did in this case, "it could not have been intend
ed to require him to exercise the power to do so
only on a judicial or a quasi-judicial basis".
On this application for leave to appeal, six
legal points of attack were put forward as being
at least arguable grounds for appeal. One was,
in effect, that the trial judge was correct in
holding that the powers in question had to be
exercised on a judicial or quasi-judicial basis
and the prescriptions were therefore bad
because they were made without giving all
those affected thereby an opportunity to be
heard. Two of the legal points were, in effect,
that the prescriptions were invalid because they
were not authorized by the sections in question
or went contrary to the requirements of the
statute. The fourth legal point was that the
sections in question did not authorize the Minis
ter to make a prescription until "sufficient
information has not been furnished or is not
available", whereas the view upon which the
prescriptions have been made, and which was
accepted by this Court, is that the Minister is
authorized to make prescriptions in advance to
be applied, from time to time, when, in the
course of administration of the statutes, it is
found that "sufficient information has not been
furnished or is not available". The fifth legal
point was that this Court wrongly took the view
that, if the prescriptions are invalid, the invalidi
ty can be raised in particular cases when an
importer exercises his legal recourse against the
correctness of a determination by the Deputy
Minister of the amount of the tax. The final
legal point was that this Court should, in any
event, have made a declaration that the pre
scriptions are spent.
Section 31 1 of the Federal Court Act provides
for an appeal to the Supreme Court of Canada
from judgments of this Court of three classes,
viz:
(a) an appeal as of right from a final judgment
if the amount involved exceeds $10,000,
unless it is a judgment under section 28;
(b) an appeal from a judgment where, in the
opinion of this Court, the question involved is
"one that ought to be submitted to the
Supreme Court of Canada for decision", if
this Court grants leave; and
(c) an appeal from any judgment, if the
Supreme Court of Canada grants leave.
It is significant, on any application to this
Court under section 31 for leave to appeal, to
note that this Court can only grant leave when,
in our opinion, "the question involved in the
appeal is one that ought to be submitted to the
Supreme Court for decision". This does not
necessarily include every difficult or important
question of law or every question of law of
general application. It does not extend to a
judgment where the "question" is routine or
unimportant even though the amount involved
in the particular matter is substantial or there
are political or other overtones.
Certain questions of law are obviously ques
tions that should be decided by the Supreme
Court of Canada. One example is a question as
to the validity of a law enacted under section 91
or section 92 of the British North America Act.
Another is a question as to whether the Bill of
Rights has operated to make an Act of Parlia
ment inoperative. A third example that comes
to mind is a question as to the effect of previ
ous decisions of the Supreme Court of Canada
or the Privy Council or an apparent conflict
between decisions of different Courts of Appeal
in Canada.
In our opinion, when there is an application
for leave to appeal in a case where the question
involved is not obviously one that ought to be
submitted to the Supreme Court for decision,
this Court must resist the temptation to grant
leave merely to avoid possible criticism. It must
not grant leave unless it is • positively satisfied
that the question involved is one that "ought"
to be decided by the ultimate Court of Appeal.
Having regard to the extent and the importance
of the responsibilities of the Supreme Court of
Canada, a lower court should not grant leave to
appeal to that court in any but obvious cases,
because that court is in a position to make an
overall selection of the cases that should be
decided by it having regard to its case load and
can only do so if lower courts exercise a
responsible discretion in deciding when to grant
leave to appeal. The Supreme Court of Canada
can grant leave in any case even though leave
has been refused by the Court of Appeal. The
Supreme Court of Canada cannot withdraw
leave once it has been granted by the Court of
Appeal.
Another circumstance to be noted in this case
is that the questions involved here are questions
of the kind that will, in the future, arise under
section 28 of the Federal Court Act, and section
31 does not contemplate that there will be an
appeal as of right from a judgment under sec
tion 28 regardless of how great the amount or
value of the matter in controversy may be. A
large proportion of the questions that arise
under section 28 are questions as to the extent
of statutory powers, as to whether the rules of
natural justice apply or as to whether the rules
of natural justice have been complied with, all
of which questions fall to be determined in
accordance with well established rules. While,
generally speaking, each such question has
great importance for one reason or another, the
fact that all section 28 judgments have been
specially excepted in the definitions of the class
of judgments from which there are appeals as
of right raises a serious doubt as to whether a
question as to the application of well estab
lished principles in such a case is a question
that ought to go to the Supreme Court for
decision in every case where it has general
application. Undoubtedly, leave should be
granted to appeal from some judgments under
section 28, but we are of the view that the
choice of such cases should, generally speaking,
be left to the Supreme Court of Canada for the
reasons that we have already indicated.
None of the legal points raised on this
application for leave raises a question that, in
our opinion, as members of this Court, is one
that ought to be submitted to the Supreme
Court of Canada for decision.
We are, therefore, of opinion that the applica
tion should be dismissed with costs.
* * *
THURLOW J.—In my view the second, third
and fourth points put forward by counsel for
the respondents as justifying leave to appeal
raise questions that are fairly arguable. I am not
persuaded that the same can be said of the first
or the fifth points so put forward.
To say that there are three arguable points
does not, however, resolve the problem whether
the question involved in the case is one which
ought to be submitted to the Supreme Court for
decision. I do not think it was intended that
leave to appeal should be granted either as a
matter of course or simply because a question is
interesting or difficult or arguable or because
the decision will serve as a guide to the parties
and to others for the future. Rarely would there
be a case involving a point of taxation law that
would not qualify for such reasons.
On the other hand there are cases which raise
an issue or question so fundamental that it is
immediately apparent that the question is one
that ought to be determined by the Supreme
Court. As examples one can think of important
constitutional questions and serious questions
arising on the Canadian Bill of Rights. To my
mind the case of Lavell v. Attorney General of
Canada [1971] F.C. 347, in which leave was
granted by this Court, fell into that category.
There are undoubtedly other types of cases
as well which will meet the test but save when it
is clear that a case is important enough to
warrant an affirmative answer to the question
posed by section 31(2) of the Federal Court Act
the proper course for this Court is, I think, to
decline to grant leave and thus leave it to the
Supreme Court to determine in which of such
cases leave to appeal should be granted.
So approaching the present case I reach the
conclusion that leave to appeal should be
refused.
The judgment in my view involves nothing
more striking or fundamental than the interpre
tation of particular provisions of the Anti-
dumping Act and the Customs Act, dealing, in
each case, with how imported goods are to be
valued when other statutory provisions for their
valuation fail. The judgment is of some direct or
indirect importance to the respondents and is no
doubt of some general interest to foreign
exporters and domestic importers as well as to
persons interested in tax jurisprudence. In it,
there are, as I have said, several arguable
points. One of the enactments, the Anti-dump
ing Act, is comparatively new and there has not
been occasion for it or for the somewhat older
provision of the Customs Act to be passed upon
by the Supreme Court. Notwithstanding these
features of the matter, however, the interpreta
tion to be put upon these provisions is not, as I
see it, a question of such general or fundamen
tal importance or interest that this Court should
regard it as one that "ought to be submitted to
the Supreme Court for decision", particularly
since it is open to that Court, notwithstanding
the denial of leave by this Court, to give leave if
it sees fit to do so, whether it considers the
question raised to meet the test of section 31(2)
of the Federal Court Act or not.
I, therefore, concur in the disposition of the
application that has been proposed by the Chief
Justice.
JACKETT CJ.:
1 31. (1) An appeal to the Supreme Court lies on a ques
tion that is not a question of fact alone from a final judment
or a judgment directing a new trial of the Federal Court of
Appeal, other than a judgment or determination under sec
tion 28, pronounced in a proceeding where the amount or
value of the matter in controversy in the appeal exceeds ten
thousand dollars.
(2) An appeal to the Supreme Court lies with leave of the
Federal Court of Appeal from a final or other judgment or
determination of that Court where, in the opinion of the
Court of Appeal, the question involved in the appeal is one
that ought to be submitted to the Supreme Court for
decision.
(3) An appeal to the Supreme Court lies with leave of
that Court from any final or other judgment or determina
tion of the Federal Court of Appeal, whether or not leave to
appeal to the Supreme Court has been refused by the
Federal Court of Appeal.
(4) For the purpose of this section, the amount or value
of the matter in controversy in an appeal may be proved by
affidavit, and shall not include interest subsequent to the
day on which the judgment to be appealed from was pro
nounced, or any costs.
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.