Judgments

Decision Information

Decision Content

Deputy Minister of National Revenue for Cus toms and Excise (Appellant)
v.
Film Technique Ltd. and Canadian Kodak Co. Limited (Respondents)
Court of Appeal, Jackett C.J., Thurlow J. and MacKay D.J.—Ottawa, January 17, 29 and 31, 1973.
Customs and Excise—Statutes—Appeal—Official Lan- guages—Appeal from Tariff Board—Classification of article under Customs Tariff—Varying meanings in English and French versions—Proper disposition of appeal—Official Languages Act, R.S.C. 1970, c. 0-2, s. 8.
Respondent imported a color film analyzer in January 1969. Pursuant to section 43 of the Customs Act, 1955, c. 32, appellant classified it under Tariff Item 46200-1 as "photographic ... instruments not otherwise provided for". Respondent appealed from that decision to the Tariff Board pursuant to section 44. The sole ground of the appeal was that the analyzer should have been classified as "photo- graphic equipment, namely ... timing devices" (in the French version "accessoires pour prise de vues, savoir: dispositifs réglant le temps de pose") under Tariff Item 46240-1. The Tariff Board upheld respondent's contention and allowed the appeal. In March 1972 appellant appealed from the Tariff Board's decision to the Federal Court pursu ant to section 48 of the Customs Act, R.S.C. 1970, c. C-40, contending that the Tariff Board erred in classifying the analyzer as a "timing device". Respondent did not reply.
Held, the Tariff Board should have dismissed the appeal.
1. While the Tariff Board's conclusion that the analyzer fell within Tariff Item 46240-1 may have been correct if its English version only were considered (on the footing that the word "timing" was used in the vernacular of the photo graphic trade in that version), that construction was not open having regard to the French version which could mean only a device to regulate time of exposure, which meaning was consistent with the ordinary meaning of the words in the English version. Section 8 of the Official Languages Act, R.S.C. 1970, c. O-2 required this conclusion.
2. The Court should not on this appeal reclassify the analyzer under the "machines" item of the Customs Tariff as that matter had not been raised before the Tariff Board.
3. Respondent having deliberately restricted its appeal before the Tariff Board to the correctness of the classifica tion under Tariff Item 46240-1 without denying that the apparatus might also fall under Item 46200-1, and having failed in its contention, the matter should not now be referred back to the Tariff Board to permit respondent to show that the item should be classified under some other item. Nor in these circumstances should the Court now
review the classification of the analyzer by appellant under Tariff Item 46200-1. Having regard to the course of pro ceedings before the Tariff Board the only judgment that the Board could properly have given was a judgment dismissing the appeal and this Court should now give the judgment that the Board should have given.
APICAL from the Tariff Board.
COUNSEL:
L. M. Sali for appellant.
R. W. McKimm for Film Technique Ltd.
SOLICITORS:
Deputy Attorney General of Canada for appellant.
Bergh Dioguardi & Co., Ottawa, for respondents.
JACKETT C.J.—This is an appeal from a deci sion off the Tariff Board that a certain apparatus fell within Item 46240-1 of the Customs Tariff, R.S.C. 1970, c. C-41, and that it was, in particu lar, covered by that part of Item 46240-1 that reads as follows:
Photographic equipment, namely: Timing devices
The article in question is known as "Model 2105 Hazeltine Color Film Analyzer" (hereinaf- ter referred to as the "Analyzer") and its nature is to be determined by reading the following portion of the Tariff Board's Declaration:
Before a positive print may be made from a negative film, whether that film be of the colour or black and white variety or of the still or motion picture type, it is necessary for the film technician to make certain corrections or adjustments in density and colour balance to determine the proper exposure data necessary to obtain an acceptable print. This procedure, the evidence shows, is widely known as "timing" and the technician, as a "timer". Because the appellant's business consists of specialized film preparation for coloured motion pictures including titling, animation and optical effects and because it imported the analyzer for this purpose, the Board has concerned itself with the methods used by the indus try to determine the density and colour balance necessary to obtain acceptable pictures from motion picture negative colour film.
N.B.
Prior to the advent of the colour analyzer in issue and of other similar devices, and even today if such are not available, a very lengthy and costly process was and is generally followed in the industry in order to obtain the necessary data on corrections and adjustments in density and colour balance for printing motion picture films from negatives. Briefly, the pro cess involved making positive prints and comparing them with a colour filter reel known in the trade as a "sinex". The operator, or "timer", would compare the print with the sinex filter reel on a light-box, and select one particular print as being, in his judgment, acceptable. The density and colour value of the par ticular filter used being known, it was then possible to obtain similar results when printing the final positive.
The introduction of the analyzer and similar apparatus allowed the photo technician to carry out the operation described above in far less time and presumably at less cost, although no direct evidence was advanced on this latter point. Using the new apparatus, the technician or "timer" may view a colour negative electronically and instantly on the television display screen as a positive image.
A single frame of negative colour film, represent ative of a motion picture "scene" or "shot", is fed into a television gate on the apparatus. The picture in the frame of negative film appears on the television tube but as a positive. By means of four control knobs, one controlling density and three controlling colour, the operator of the machine may make adjust ments to produce a scene which, in his judgment, has the desired density and colour balance.
The control knobs each have calibrated dials from which readings may be taken. In the case of the Hazeltine Model 2105 Analyzer the dials have 64 positions. When the operator is satisfied that the adjustments made by him have produced a scene of the desired density and colour balance, either accord ing to his artistic judgment or by comparison with a test picture, the control readings for each scene are recorded. He then proceeds from scene to scene until an entire motion picture film has been "analyzed".
The readings or "numerical values" for each scene indicate the correct control adjustments to be set for the film printer, printing being the next and final stage in film processing. The printer, appropri ately adjusted by the operator's recordings, will then make positive colour prints of the desired density and colour balance with up to 90 per cent accuracy.
Whether using the sinex method or the analyzer in issue, the operator is viewing positive colour images adjusted or controlled by filtering; in both methods he makes a subjective judgment as to what to him is an acceptable picture for printing, and in
both methods he obtains data for transposition to the printer.
It is worthy of note here that it was common ground during the argument in this Court that the analyzer did not contain anything that might be regarded as a device for "timing" in the, ordinary sense of that word.
The Board found as a fact, however, that, whether using the sinex method or the analyzer, the operator's operations are generally known, in the photographic trade in North America, as "timing". It therefore found that the apparatus in question was a "timing device, in the sense that the word `timing' is used in the photograph ic trade".
Having reached that point in its analysis of the matter, the Board concluded its reasoning on this aspect of the case as follows:
There remains for the Board to decide whether the Hazel- tine Color Film Analyzer is a timing device in the sense intended by Parliament when tariff item 46240-1 was enact ed in 1957, having in mind that the analyzer and similar devices did not exist, at least commercially, at that time.
The evidence adduced before the Board and an examina tion of commercial advertisements filed as exhibits show that timing devices for use mainly in darkrooms, the main purpose of which is the measurement of time, are called "timers". Such technological texts as the Desk Edition, Focal Press, London and New York, refer to these items as "timers", whether activated by clockwork or electrically.
Because Parliament used the expression "timing devices" without any restricting or qualifying words, one must con clude that by so doing it intended that expression to be construed more broadly than to include only those articles known in the photographic trade as "timers".
It is the Board's opinion that Parliament used the word "timing" because it had in mind not only "timers" but other devices used as aids for controlling density, colour balance and exposure, which were already in use or which would come into use as a consequence of technological advances.
In effect, as I appreciate the Board's reason ing, the Board has concluded that the word "timing" was used in Item 46240-1 in a sense in which it is used in the photographer's trade,
which sense is not a sense in which the word is ordinarily used; and, applying that sense, the meaning of which they found as a fact on the evidence, they concluded that the apparatus in question fell within the words "Timing devices".
If the sole version of Item 46240-1 to be considered were the English version, I can see that the Board's conclusion may have been correct.'
We are bound, however, to consider also the French version of the Tariff Board item in ques tion, the relevant part of which reads as follows:
Accessoires pour prise de vues, savoir: Dispositifs réglant le temps de pose
Section 8(1) of the Official Languages Act, R.S. 1970, c. O-2, requires that, in construing an enactment, both its versions in the official lan guages are equally authentic; and section 8(2) provides a number of rules for applying section 8(1), of which those that I find applicable here read as follows:
(a) where it is alleged or appears that the two versions of the enactment differ in their meaning, regard shall be had to both its versions so that, subject to paragraph (c), the like effect is given to the enactment in every part of Canada in which the enactment is intended to apply, unless a contrary intent is explicitly or implicitly evident;
(b) subject to paragraph (c), where in the enactment there is a reference to a concept, matter or thing the reference shall, in its expression in each version of the enactment, be construed as a reference to the concept, matter or thing to which in its expression in both versions of the enact ment the reference is apt; , ... .
Having regard to the requirements of section 8 of the Official Languages Act, it seems clear to me that, while it was, in my view, an acceptable conclusion on the part of the Board, in the light of the evidence, if one looked only at the Eng- lish version of Item 46240-1, that the word "timing" was used in the vernacular of the photographic trade, that conclusion is not open, when one looks at both versions because the French version is so worded as to exclude any meaning other than that of a device to regulate the time of exposure, which meaning is consis-
tent with the ordinary meaning of the words used in the English version' but is not consistent with the meaning, as found by the Board, of the word "timing" as used in the vernacular of the photographic trade. Reading the two versions together, as required by section 8, I am of opinion that the words "Timing Devices", as used in Item 46240-1, do not include the Hazel- tine Color Film Analyzer in question.
I am, therefore, of opinion that the Tariff Board's Declaration that the Hazeltine Color Film Analyzer, Model 2105, in issue, is properly classified as a timing device in Tariff Item 46240-1 cannot stand.
The Board's finding, on the only other issue before it, that the apparatus in question was not a "densitometer" within the same tariff item has not been attacked. There are, however, certain other problems that were raised on this appeal.
The respondent, 4 by its Memorandum of Points of Argument, contends, in the alternative to its contention based on Item 46240-1, that the analyzer is more properly classified under Item 46245-1 as "Motion picture editing equip ment, namely: film editing machines ... film viewers ..." than under the item in which it was placed by the appellant. That tariff item, however, applies only to equipment falling within the words on which the respondent relies in cases where the things in question are "for use in the production of motion pictures by professional producers having studios in Canada equipped for motion picture production", and, during argument, counsel for the respondent conceded that further facts would have to be established before it could be determined that the "color film analyzer" in question falls within the item. He did not, therefore, press his sub mission that this Court classify the analyzer under Item 46245-1.
During argument of this appeal, the respond ent put forward an additional alternative posi tion, namely, that the "color film analyzer" in question should be classified under the "basket" item relating to "Machines" (Item 42700-1).
In addition, the respondent submitted that, if it were unsuccessful on the "Timing Devices" question and also failed to persuade this Court, itself, to classify the equipment in question under one of the other items, there should be a judgment referring the matter back to the Tariff Board for a new hearing so that the respondent might have an opportunity to persuade the Tariff Board that the analyzer should be reclas sified under some item other than the one on which it based its contention at the original hearing.
Finally, a question arose during argument of the appeal as to whether, when this Court finds that the Tariff Board has wrongfully classified goods in an item other than that in which they were put by the Deputy Minister, it has a right or a duty to determine whether the classification by the Deputy Minister is the correct classification.
I deem it of some importance to get the nature of this class of legal proceedings in per spective for the purpose of considering these questions that were not before the Tariff Board. For that purpose, I propose to review the pro ceedings in this matter and the relevant statuto ry provisions chronologically.'
The following is the sequence of the relevant events as I understand it:
1. On January 10, 1969, the Analyzer in question was imported.
2. At that time, the administrative classifi cation of imported goods was governed by section 43 of the Customs Act as enacted by chapter 32 of 1955 and amended by chapter 27 of 1962, which section read as follows:
43. (1) Subject to this section, a determination of the tariff classification or an appraisal of the value for duty of any goods, made at the time of their entry, is final and conclusive unless the importer, within ninety days of the date of entry, makes a written request in prescribed form and manner to a Dominion Customs Appraiser for a re-determination or a re-appraisal.
(2) A Dominion Customs Appraiser may re-determine the tariff classification or re-appraise the value for duty of any goods made at the time of their entry
(a) in accordance with a request made pursuant to subsection (1), or
(b) in any other case where he deems it advisable, within two years of the date of entry.
(3) Subject to subsection (4), a decision of a Dominion Customs Appraiser under this section is final and conclu sive unless the importer, within ninety days of the date of the decision, makes a written request in prescribed form and manner to the Deputy Minister for a re-determination or a ref/appraisal.
(4) The Deputy Minister may re-determine the tariff classification or re-appraise the value for duty of any goods
(a) in accordance with a request made pursuant to subsection (3),
(b) at any time, if the importer has made any misrep resentation or committed any fraud in making the entry of those goods,
(c) at any time, to give effect to a decision of the Tariff Board, the Exchequer Court of Canada or the Supreme Court of Canada with respect to those goods, and
(d) in any other case where he deems it advisable, within two years of the date of entry of those goods.
(5) Where the tariff classification of goods has been re-determined or the value for duty of goods has been re-appraised under this section
(a) the importer shall pay any additional duties or taxes payable with respect to the goods, or
(b) a refund shall be made of the whole or a part of any duties or taxes paid with respect to the goods,
in accordance with the re-determination or re-appraisal.
(6) In this section "prescribed" means prescribed by regulations of the Governor in Council.
Pursuant to this provision, the Deputy Minis ter classified the Analyzer on February 3, 1971, as "photographic ... instruments not otherwise provided for" under Tariff Item 46200-1.
3. Section 44(1) of the Customs Act, as it was at that time, read in part as follows:
44. (1) A person who deems himself aggrieved by a decision of the Deputy Minister
(a) as to tariff classification or value for duty,
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 general ity 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 45.
On March 17, 1971, by letter written by a Mr. Ages, the respondent appealed from the Deputy Minister's decision.
4. Pursuant to the practice of the Tariff Board, the respondent filed a "Brief" on the appeal reading in part as follows:
Part I
Statement of Facts
1. This is an Appeal to the Tariff Board under Section 44 of the Customs Act by Film Technique Ltd., Toronto, from a decision of the Deputy Minister of National Reve nue, for Customs and Excise, dated February 3, 1971, relating to the tariff classification of a "Hazeltine" Model 2105 Color Film Analyzer imported under Toronto Entry Number D-81169 dated January 10, 1969.
2. The Deputy Minister of National Revenue, for Cus toms and Excise, has determined that the Model 2105 Color Film Analyzer is classified under tariff item 46200-1.
3. The Appellant contends that the Model 2105 Color Film Analyzer should be classified under tariff item 46240-1.
Part II
Tariff items
46200-1 Instruments for observation, measurement, experimentation or demonstration in respect of natural phenomena, n.o.p., photographic, mathematical and opti cal instruments, n.o.p., speedometers, cyclometers and pedometers, n.o.p., parts of all the foregoing.
46240-1 Photographic equipment, namely: Densitome- ters; Ferro-type plates; Film or paper processors for photo-finishing; Film or print driers; Mounting presses; Negative or sheet-film hangers; Print Straighteners; Print
Washers; Printers, contact; Printers, projection, common ly known as enlargers, for negatives or positives four inches by five inches and larger; Printers, power driven, for photo-finishing; Tanks or trays for negative and posi tive processing; Temperature controls or heaters for photographic solution; Timing devices; Parts of all the foregoing.
Part III
Point in Issue
4. Whether the Model 2015 [sic] Color Film Analyzer in issue is entitled to entry under tariff item 46240-1.
Part IV Argument
5. It is the Appellant's view that the Model 2105 Color Film Analyzer should be classified under tariff item 46240-1 as a "Timing device" which is specifically pro vided for in this item.
6. For the above reason, it is respectfully requested that this appeal be allowed.
5. In accordance with the same practice, the appellant filed a "Brief" in the Tariff Board reading in part as follows:
Part III
POINT IN ISSUE
5. The point in issue in this appeal is whether the imported analyzer is entitled to entry under the provisions of Tariff Item 46240-1.
Part IV
ARGUMENT
6. It is submitted that the Deputy Minister of National Revenue for Cûstoms and Excise was correct in classify ing the analyzer in issue under Tariff Item 46200-1 since it is not described in any of the provisions of Tariff Item 46240-1 and it is not otherwise provided for in the Cus toms Tariff.
7. It is respectfully submitted that this appeal should be dismissed.
6. The matter came on for hearing before the Tariff Board on December 7, 1971, As between the importer (the respondent here) and the Deputy Minister (the appellant here) the hearing was conducted on the issue as defined by the Briefs. The importer contend ed (and the Deputy Minister resisted the con tention) that the Analyzer should have been classified under Tariff Item 46240-16 (An
intervener introduced another contention, which is now academic.)
7. The Tariff Board made a declaration on January 19, 1972, allowing the appeal and declaring that the Analyzer is properly classi fied as a timing device in Tariff Item 46240-1.
8. Prior to the date of the Tariff Board's decision, the provision for appeal from such a decision was replaced by section 48 of the Customs Act, R.S. 1970, c. C-40, as amended by section 64 of the Federal Court Act, R.S. 1970, c. 10 (2nd Supp.). That provision, as amended, reads in part as follows:
48. (1) Any of the parties to an appeal under section 47, namely,
(a) the person who appealed,
(b) the Deputy Minister, or
(c) any person who entered an appearance in accord ance with subsection 47(2), if he has a substantial interest in the appeal and has obtained leave from the Court or a judge thereof,
may, within sixty days from the making of an order, finding or declaration under subsection 47(3), appeal therefrom to the Federal Court of Canada upon any question of law.
(8) The appellant shall set out in the notice of appeal a statement of the facts, the statutory provisions and the reasons that the appellant intends to submit in support of his appeal.
(9) The respondent shall, within thirty days from the day the notice of appeal is received by him, or within such further time as the Court or a judge thereof may either before or after the expiration of that time allow, serve on the appellant and file in the Court a reply to the notice of appeal containing a statement of such further facts and of such statutory provisions and reasons as the respondent intends to rely on.
In March, 1972, the appellant filed a notice of appeal in this Court reading in part as follows:
Reasons for Appeal
1. The Tariff Board erred in law in construing the words "timing device" in Tariff Item 46240-1.
2. There was no evidence before the Tariff Board upon which it could have found that the analyzer was a "timing device" within the meaning of these words in Tariff Item 46240-1.
No reply seems to have been filed by the respondent as contemplated by section 48(9) supra.
It remains to be noted that section 48(17) of the Customs Act reads as follows:
(17) The Court may dispose of an appeal by making such order or finding as the nature of the matter may require, and, without limiting the generality of the foregoing, may
(a) declare what rate of duty is applicable, or that no rate of duty is applicable, to the specific goods or the class of goods with respect to which the appeal to the Tariff Board was taken,
(b) declare the value for duty of the specific goods or class of goods, or
(c) refer the matter back to the Tariff Board for re-hearing.
and section 52 of the Federal Court Act reads, in part, as follows:
52. The Court of Appeal may
(c) in the case of an appeal other than an appeal from the Trial Division,
(i) dismiss the appeal or give the decision that should have been given, or
(ii) in its discretion, refer the matter back for determi nation in accordance with such directions as it consid ers to be appropriate; and ... .
I turn now, in the light of this review, to considering the various questions raised on this appeal that were not before the Tariff Board.
The first of those questions is whether this Court should, on this appeal, itself reclassify the Analyzer as falling within the "Machines" item. In my opinion, without considering the merits of the submissions, such a disposition of this matter would not be a proper exercise of this Court's powers. The appeal to this Court is an appeal on a question of law and, in my view, a question as to whether the Analyzer is a machine involves, at the least, the taking of evidence concerning the nature of that apparatus from the point of view as to whether it is a machine, which evidence has not been led, and also involves findings of the Tariff Board based on such evidence, which findings have not, of course, been made. In the ordinary
course, in my view, the parties to an appeal to the Tariff Board must raise any such contention at an appropriate time before the hearing before the Board so that all interested parties may have an opportunity to prepare a case with reference thereto. 7
The second question raised for the first time in this Court is whether the matter should be referred back to the Tariff Board for a new hearing so as to give the respondent an oppor tunity to make out a case for its contention that the Analyzer falls under some item other than Item 46240-1. In my view, no case has been made out for such a new hearing. The respond ent deliberately restricted its appeal before the Tariff Board to its contention that Item 46240-1 was the proper item. It had a full opportunity to present its case on that contention. If the Tariff Board had rejected that contention, as in my view it should have done, it would simply have dismissed the appeal and there could not then have been any basis for arguing on an appeal to this Court that the Board had erred in law. In my view, the respondent's rights on this appeal cannot be any greater because the Tariff Board wrongly decided in its favour on the question concerning Item 46240-1.
Finally, the question has been raised whether this Court has either a right or duty to review the classification of the Analyzer by the Deputy Minister under Tariff Item 46200-1. In my view, there is neither a right nor duty, having regard to the course the proceedings have taken, to enter on any such review. In this connection, it is necessary to appraise the real question that has been at issue between the parties. The Deputy Minister put the Analyzer in what is known as a "basket" item, that is, an item that applies to a general class of goods "unless otherwise provided". A review of the Customs Tariff shows that there are several such items and that they apply only to articles falling within the scope of their words if such articles do not fall within some more specific item, which spe cific item would ordinarily provide a lower rate or an exemption. An importer could, of course,
attack a classification of an article under such a "basket" item on the ground that the article does not fall within the words of the item. The more frequent attack is, however, based on the ground that the article falls under a more specif ic item that affords an exemption or a lower rate of duty. (There could, of course, be an attack based on both grounds, in the alternative.) In this case, the sole ground of attack made by the respondent was based on the contention that the Analyzer should have been classified under a more specific item. Nowhere in the proceedings has there been any suggestion that the Analyzer did not fall within the actual wording of Item 46200-1. (If this question had been raised, it might have called for evidence that would not otherwise have been relevant.) In my view, when the respondent failed to make out the attack that it made before the Tariff Board, as in my view it did, the only judgment that the Tariff Board could have properly given was a judgment dismissing the appeal; and, in my view, this Court should now give the judgment that the Board should have given, namely, a judgment dismissing the appeal to the Tariff Board.
This Court's rule with regard to costs in an appeal from a tribunal other than the Trial Divi sion is Rule 1312, which provides that, in such an appeal, no costs shall be payable by any party to another "unless the Court, in its discre tion, for special reasons, so orders". This rule probably has no application to an appeal under section 48 of the Customs Act as party and party costs in such an appeal are expressly covered by section 48(18), which provides that "The Court may, in disposing of an appeal, make such order as to costs as, in its discretion, seems just in the circumstances". In my view, it would be just in the circumstances of this case not to award any costs.
* * *
MACKAY D.J.—I concur.
* * *
THURLOW J.—I have read the reasons of the Chief Justice and I agree with his conclusion that the appeal succeeds and with the disposi tion of the case which he proposes. On the main point of the case, however, I wish to state briefly in my own way what leads me to my conclusion.
Apart from the special meaning of "timing devices" in the photographic industry found by the Tariff Board I regard the ordinary English language meaning of that expression in its con text in Tariff item 46240-1 as being broader than what is embraced in the French language expression "dispositifs réglant le temps de pose" in its context in item 46240-1. The latter appears to me to be restricted in at least two respects not present in the former, i.e., (1) in being restricted to devices which regulate time, while the English expression would embrace such devices plus such as merely measure it and (2) in being limited to devices which regulate the time of exposure, while the English expression is not limited as to the purpose of the timing.
The finding of the Tariff Board that "timing" has a special meaning in the photographic indus try tends to further broaden the meaning of the English language expression in one direction while possibly narrowing it in another.
For my part I do not think that any way can be found to resolve the question raised by the appellant's submission by the application or attempted application of section 8(2)(a) of the Official Languages Act but I feel constrained by section 8(2)(b) of that Act to take the view that the reference to "devices" or "dispositifs" in item 46240-1 must be construed as a reference only to such devices and dispositifs as fall within the wording of both versions. As I read it the French language version is not apt to refer to the device here in question. Moreover, as there appears to be at least some area of opera tion common to both versions I do not think resort can be had to section 8(1)(d).
With respect to the other matters raised in the course of the argument I concur in the reasons of the Chief Justice.
Compare this Court's decision in Pfizer Company Limit ed v. Deputy Minister of National Revenue for Customs and Excise delivered on January 12, 1973. [1973] F.C. 3.]
a Paragraph (a) directs that, even though it appears that the two versions of an enactment differ in meaning "regard shall be had to both its versions" so that, leaving aside paragraph (c), which has no application here, "the like effect is given to the enactment" in all parts of Canada unless otherwise expressly or impliedly provided. Paragraph (b) provides, in part, that, where there is a reference to a "thing", the reference shall, in both versions, be construed as a reference to the "thing" to which "in its expression in both versions" the reference is apt. Here, as I see it, both versions are apt to refer to devices to regulate the time of exposure in photographic work and the French version is not apt to refer to devices for "timing" when that word is used in the jargon of the photographic trade to refer to "determining the exposure and colour balance for printing each scene of a film". (See Rod Sparks as quoted by the Board's declaration.)
The English version refers to "timing devices" under the heading of "Photographic equipment". It does not take too much of a stretch of the imagination to regard this as referring to what is described in French by words meaning devices for regulating the time of exposure under a heading which is presumably intended to have the same meaning as the English heading "Photographic equipment". The dif ficulty involved in finding a common meaning for the two versions of the Customs Tariff is illustrated by these two versions of the heading to Tariff Item 46240-1. In English, we have "Photographic equipment" and, according to the Shorter Oxford Dictionary "photographic" means "of, per taining to, used in or produced by `photography"', and "Photography" means "The process or art of producing pictures by means of the chemical action of light on a sensitive film ..." In French, the heading is "Accessoires pour prise de vues" and, according to Harrap's, "prise de vues" means "taking of photographs". However, when we look at Ouillet, we find that "prise de vues" means "action de photographier", that "photographier" means "Reproduire un objet par la photographie" and "photographie" means "Art de fixer sur une surface sensible à la lumière les images produites dans une chambre noire au moyen d'une lentille convergente, puis de les reproduire, par inversion du cliché négatif primitif '.
4 By "the respondent", I refer to Film Technique Ltd., the appellant in the Tariff Board proceedings. Canadian Kodak Co. Limited intervened in those proceedings but did not appear in this Court.
It is the procedural and jurisdictional provisions that I propose to review. The substantive tariff items were, I
assume, at all relevant times as they are to be found in the Revised Statutes of 1970. This is the form in which they were put before us by both parties although, the goods having been imported in 1969 and the Revised Statutes having been brought into force in July 1971, these were not the proper citations. Counsel should, in my view, have cited the relevant provisions from the statutes that were in force at the time of importation.
6 I am aware that, for the first time, during argument before the Tariff Board, it was suggested that, if the import er was unsuccessful on the issue defined in the briefs, the Board might consider the "machine" item. In my view, however, the question that matters is what issues the parties had in mind when they prepared and presented their evidence.
7 This is not to say that the Tariff Board has no discretion to entertain such a contention raised during the hearing. It undoubtedly has such a discretion but the proper exercise of such a discretion would involve the imposition of such terms, if any, as are necessary to ensure that all parties have, or have had, an opportunity to prepare a case with reference thereto.
 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.