The Deputy Minister of National Revenue for
Customs and Excise (Appellant)
v.
Volkswagen Canada Limited (Respondent)
Court of Appeal, Thurlow J., Cameron and
Bastin D.JJ.—Ottawa, June 12, 13, 14 and 15,
1973.
Customs duty—Control unit used in fuel injection system
for automobile engines—Whether "switches" under Customs
Tariff item 43806-1—Appeal from Tariff Board dismissed.
APPEAL from Tariff Board.
COUNSEL:
J. E. Smith for appellant.
M. E. Corlett, Q.C., for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
MacLaren, Corlett and Tanner, Ottawa, for
respondent.
THURLOW J. (orally)—The issue in this appeal
is whether the Tariff Board erred in law in
finding that certain imported "control units"
used in fuel injection systems for automobile
engines were properly classified as "switches"
within the meaning of Customs Tariff item
43806-1.
The tariff item in question consists of a long
list of items or classes of items forming parts of
or used in automobiles and includes the
following:
Switches, relays, circuit breakers and solenoids and combi
nations and parts thereof, including starter switch
assemblies.
The device in question and its operation in the
fuel injection system is described as follows in
the Board's declaration:
The control unit in issue operates as part of the electronic
fuel injection system used on some models of the appellant's
automobiles and on several European motor vehicles. The
system is a relatively recent replacement for the long famil
iar carburetor. The control unit is a metal box approximately
11 "x6"x2" housing a number of small electronic devices
such as diodes, transistors, wires, terminals and a current
amplifier. Through an impulse generator in the distributor,
the control unit is linked to the automobile's electrical
system and receives electrical impulses from sensors con
nected to the engine or to operating accessories of the
engine such as the distributor, manifold, and a throttle flap
contact connected with the accelerator pedal, which is in
turn controlled by the driver.
After receiving electrical impulses from the sensors, the
control unit amplifies those impulses and sends an intermit
tent electric current of variable duration to an electromagnet
(solenoid) enclosed within the fuel injectors. The electro
magnet, thus activated, opens and closes a needle valve
which in turn allows vaporized fuel to enter the engine
cylinder through the manifold.
The amount of fuel entering the cylinder is determined by
the length of time the needle valve is held open by the
electromagnet in the fuel injector, fuel line pressure being
constant. The time interval, which is measurable in micro
seconds, is in turn determined by the control unit acting on
"information" received from the sensors.
After reviewing the evidence of several wit
nesses and the meanings given by a number of
dictionaries and glossaries to the word "switch"
and kindred terms, the Board went on to con
clude as follows:
In the Board's opinion the nomenclature contained in
tariff item 43806-1 indicates an intention on the part of the
legislator to include in that item devices for controlling,
opening, closing electrical circuits, or creating magnetic
fields (solenoids), used in automobiles. The use by the
legislator of the word "switches" without qualification or
restriction indicates that the word should be interpreted
broadly. Thus the Board rejects the contention that merely
because the control unit in issue is a sophisticated mech
anism, this fact in itself would disqualify the unit from being
classified as a switch if indeed, as the evidence establishes,
it performs "a switching action" and no other function. To
give weight to the respondent's argument that, as a conse
quence of the control unit's action, the fuel-air mixture is
also controlled, would be to have regard for a sequence of
events beyond the point at issue. The evidence establishes
that the control unit acts as a switch in respect of the
electric current which enters the electromagnets in the fuel
injection valves, which articles are not in issue, and there
fore it is a switch within the meaning of tariff item 43806-1.
The Board declares that the control unit in issue is proper
ly classified in tariff item 43806-1.
Notwithstanding the submission of counsel
for the appellant that there was no support in
the evidence for the Board's finding that the
control unit performs a switching function there
was in my opinion ample material upon which
the Board could conclude as it did both that the
device performs "a switching function" and that
it "acts as a switch in respect of the electric
current which enters the electromagnets in the
fuel injection valves" and in my view no legal
basis has been shown for interfering with these
findings.
A more formidable submission put forward
was that the evidence shows that the device
performs other functions and that the finding of
the Board that it performs no function other
than the switching function is not supportable.
It was said that the device serves to control the
operation of the injectors and for that purpose
performs the further functions of varying the
current in response to the signals or promptings
from the several sensors and of amplifying the
current to an extent sufficient to operate the
electromagnets in the fuel injection valves.
It may be correct to say that in a sense the
control unit serves to control the operation of
the injector valves but it seems to me that in the
same sense the same can be said of every
device in the system up to the needle itself.
What appears to me to matter for this purpose is
not what the devices up to that point ultimately
accomplish but what part or parts the control
unit takes in operating the system. It also seems
to me that the relative importance to be attribut
ed to any function performed in the system as
well as the extent of the part played by the
control unit in carrying it out and whether it is a
function of the control unit or a function of
another device which when performed produces
a result in the circuitry of the control unit were
all strictly matters of fact for the consideration
of the Board. The Board's declaration mentions
the varying and amplifying functions and by so
doing shows that they were considered and not
ignored and it was I think open to the Board to
take the view that in this sophisticated device
whatever else was accomplished in the control
unit constituted but incidental or subordinate
parts of what had to be done by the control unit
to carry out its function to effect the appropri
ate switching on and off of the electromagnets
in the injectors. The appellant's submission in
my opinion therefore fails.
There remains the question whether as a
matter of law the device so described could
properly be found to be a switch within the
meaning of the tariff item. On this point I have
had some difficulty in understanding how a
device, which operates automatically at such a
high speed to turn on and off current to the
electromagnets many times each second while
the engine is running, can fall within the ordi
nary meaning of the word "switch" but I do not
disagree with or find any error of law in the
interpretation placed by the Board on the word
"switches" in its context in the tariff item, as
set forth in the portion of the declaration I have
quoted, and, on such material as is to be found
in the record as to the characteristics and func
tion of the device and having regard to the
better opportunity the Board had both of eval
uating the weight to be attributed to the evi
dence of the several witnesses and of under
standing features of the device pointed out by
them, or some of them, when giving evidence
but which are not now understandable on what
has found its way into the record, I am not
persuaded that on the material before the Board
no reasonable person properly instructed as to
the law and acting judicially could have con
cluded that the device in question was classifi
able as a switch within the meaning of the tariff
item or that it should be inferred that the
Board's conclusion proceeded from or was
based upon an erroneous view of the law.
In my opinion the appeal fails and should be
dismissed.
* * *
CAMERON D.J. concurred.
* * *
BASTIN D.J. (orally) (dissenting)—This is an
appeal from the declaration of the Tariff Board
which on an appeal from a decision of the
Deputy Minister of National Revenue for Cus
toms and Excise held that the "control units"
imported by Volkswagen Canada Limited
should have been classified in Tariff Item
43806-1 as switches in the item:
Switches, relays, circuit breakers and solenoids and combi
nations and parts thereof, including starter switch
assemblies;
43806-1. When of a class or kind not made in Canada.
The Deputy Minister had classified the con
trol units in Tariff Item 43829-1 as parts n.o.p.
for automobiles.
The definition of a word used in a statute in
the absence of evidence that the word was used
in a technical sense is a matter of law. The
context in which the word "switches" is used in
the Customs Tariff indicates that it is related to
automobiles but there is no indication that it
was used other than in its general sense and the
Tariff Board has not found that it had any
meaning other than the popularly understood
meaning of the word. It is therefore significant
that in the manufacturer's parts catalogue, in the
descriptive literature, in the manufacturer's
invoices, and in the jargon of the trade and
throughout these proceedings, the device in
question is referred to not as a switch but as a
control unit. The appellant described the device
as follows:
4. The control unit or computer box, which is a part of the
fuel injection system, is designed to control the amount of
fuel fed to the engine. The amount of fuel metered to the
injection valves depends on engine temperature, intake pres
sure (engine load), engine speed and humidity. The control
unit receives data from sensors at the impulse contacts on
the distributor, cooling system, inlet air and loading on the
engine from the inlet manifold. The control unit is also
provided data from a throttle-flap contact. All the foregoing
information is then converted to data and is retransmitted to
the injection valves, thus regulating the fuel-air mixture
correctly under various conditions.
In my opinion the Tariff Board, by disregard
ing the purpose of the device as described by
the appellant and as indicated by the name
universally applied to it and classifying it on the
basis of one of several functions which it per
forms, has made an error in law.
The statement in the declaration of the Tariff
Board, "it performs 'a switching action' and no
other function", must be read with the descrip
tion of the device given earlier in the decision,
"After receiving electrical impulses from the
sensors, the control unit amplifies those
impulses and sends an intermittent electric cur
rent of variable duration to an electromagnet
(solenoid) enclosed within the fuel injector".
For reasons not quite apparent the Board has
chosen not to treat the amplification of the
electric impulse received from the sensors as a
function of the control unit.
The difficulty confronting the Board as well
as the Court is that none of the witnesses apart
from Mr. Denneler appeared to understand the
operation of the control unit and he was unable
or unwilling to explain this in comprehensible
language. However, it would appear from part
of his evidence that the intermittent nature of
the current reaching the fuel injector results
from the impulses from the sensors operating on
a motor stable oscillator. '
In my opinion, the Tariff Board was not justi
fied in holding that the control unit "performs a
`switching action' and no other function". It
would be more accurate to say that the sensors
and the control unit operating in combination
produce a pattern of extremely rapid electric
impulses of varying duration. This is one func
tion. The next function of the control unit is to
amplify this intermittent current to a strength
which will activate the solenoid in the fuel injec
tor and retract the fuel valve. The feature of this
device which sets it apart from a switch as the
word is generally understood is that the making
and breaking of the current carried to the sole
noid is done at an almost incredible speed. In
my opinion this puts the device in an entirely
different category from a switch.
I find it impossible to believe that an ordinary
person whether engaged in the automobile
industry or not would classify a device
described by its producers as a control unit, of
such complexity, which operates at such a
speed and is designed to produce such remark
able results, as a switch. Since Parliament
intended the word "switch" to be understood in
its ordinary sense, it was an error in law for the
Tariff Board to apply it to the control unit in
question.
I would allow the appeal.
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.