North American News (Appellant)
v.
Deputy Minister of National Revenue for Cus
toms and Excise (Respondent)
and
Periodical Distributors of Canada (Applicant and
Appellant)
Court of Appeal (73-A-314), Jackett C.J., Thur-
low and Pratte JJ.—Ottawa, January 7, 1974.
Practice—Application for leave to appeal—Statutory
requirements—Customs Act, R.S.C. 1970, c. C-40, ss. 47,
48, 50.
An application for leave to appeal must be made within
the statutory time requirements. After leave to appeal has
been obtained, notice of appeal must be served and filed;
there is no provision for filing such a composite document.
APPLICATION.
COUNSEL:
Application in writing under Rule 1107.
SOLICITORS:
M. Brown, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J.—This is an application for
leave to appeal from a judgment of a County
Court judge under section 47 of the Customs
Act, R.S.C. 1970, c. C-40 as amended read with
section 50 of that Act.
The relevant provisions of sections 47 and 50
read as follows:
47. (1) A person who deems himself aggrieved by a deci
sion of the Deputy Minister
(a) as to tariff classification or value for duty,
(6) made pursuant to section 45, or
(c) as to whether any drawback of customs duties is
payable or as to the rate of such drawback,
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.
(2) Notice of the hearing of an appeal under subsection (1)
shall be published in the Canada Gazette at least twenty-one
days prior to the day of the hearing, and any person who, on
or before that day, enters an appearance with the secretary
of the Tariff Board may be heard on the appeal.
(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 generality 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 48.
50. (1) Where the importation of goods has been refused
at a port of entry on the ground that the goods have been
determined to be prohibited goods as described in Item
99201-1 of the Customs Tariff, appeals in respect of the
determination may be taken as provided in sections 46, 47
and 48, but subject to the following modifications:
(a) paragraph 46(4)(c) shall be deemed to include a refer
ence to a judge; and
(b) in sections 47 and 48 the expression "judge" shall be
deemed to be substituted for the expression "Tariff
Board" and the expression "clerk of the court" shall be
deemed to be substituted for the expression "secretary of
the Tariff Board".
(2) In this section the expression "judge" means the judge
of the county or district court, or, in the Province of
Quebec, of the Superior Court, for the county or district in
which the port of entry is situated or in which the importer
resides or carries on business, and the expression "clerk of
the court" means the clerk of the county or district court or
Superior Court, as the case may be.
The provision for an appeal to this Court is to
be found in section 48 of the Customs Act, as
amended by section 64 of the Federal Court
Act, R.S.C. 1970, c. 10 (2nd Supp.) and by
Schedule II to that Act:
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 accordance
with subsection 47(2), if he has a substantial interest in
the appeal and has obtained leave from the Court,
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.
(2) An appeal under this section by any person shall be
instituted by serving a notice of appeal in duplicate, in such
form as may be determined by the rules, on the other parties
to the appeal and by filing a copy thereof in the Registry of
the Court.
The applicant for leave to appeal is a "person
who entered an appearance in accordance with
subsection 47(2)". The right of appeal conferred
on the applicant was therefore one that, leaving
aside other requirements, authorized it if it "has
obtained leave from the Court" to appeal to this
Court "within sixty days from the making of an
order" by serving a notice of appeal on the
other parties and by filing a copy thereof in the
Registry of this Court.
Section 48 fixes a 60 day period within which
an appeal may be launched and does not seem
to provide for any extension of that time. Sec
tion 48 also makes the obtaining of leave a
condition precedent to launching an appeal in
the case of a person such as the applicant.
It would seem clear, therefore, that it is too
late for the applicant to launch an appeal from
the judgment of the County Court judge to
which this application relates, which was made
on July 17, 1973. The application for leave
should, therefore, as I view the matter having
regard to the representations on the file under
Rule 324 as I understand them, be dismissed.
With reference to this point, the solicitor for
the applicant says in his "Representations":
1. The Applicant gave notice of its intention to appeal and
apply for leave to appeal by notice served on the Respond
ent and the Deputy Attorney-General of Canada on the 21st
and 22nd days respectively of August, 1973, and the origi
nals thereof (with admissions of service endorsed thereon)
were tendered for filing in the Toronto Local Office of this
Court within a day or two of such service, but returned to
the undersigned shortly thereafter with the suggestion that it
would be more appropriate for Notice of Application for
leave to appeal to be severed from Notice of Appeal and
subsequently counsel who had appeared for the Respondent
on the hearing before His Honour Judge Grossberg agreed
that such procedure should be followed. Pursuant to such
suggestion and agreement of counsel, Notice of Application
for leave to appeal was served together with an affidavit of
J. K. Fraser and filed in due course, and the same are
presently before this Honourable Court.
As I understand the facts referred to, they
cannot affect the result. In the first place, the
applicant says that he served and "tendered for
filing" a "notice of its intention to appeal and
apply for leave to appeal" within the sixty day
period. This does not help the applicant because
(a) what was required was a notice of appeal
served and filed after leave to appeal had
been obtained, and
(b) there is no provision for filing such a
composite document.
In the second place, the "Representations" say,
in effect, that it was then decided to proceed, in
the first instance, by way of an application for
leave to appeal. This step was not, however,
taken, as appears from the Court's file, until
November 14, 1973, when the present "Notice
of Application for Leave to Appeal" was filed.
November 14, 1973 was long after the expira
tion of the statutory period of sixty days pro
vided for an appeal.
I am of the view that, unless the applicant
puts forward further representations within
sixty days from the date of these reasons, the
application for leave should be dismissed. If
further representations are put forward within
that time, I would be prepared, of course, to
reconsider the matter if they are such as to cast
a different light on the matter as I have outlined
it.
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.