A-1050-82
Deputy Minister of National Revenue, Customs
and Excise (Appellant) (Respondent)
v.
Jonas E. C. Shepherd (Respondent) (Applicant)
Court of Appeal, Heald, Urie and Le Dain JJ.—
Toronto, September 13, 1983.
Customs and excise — Jurisdiction as to costs — Appeal
from award of costs in County Court Judge's decision under s.
47(3) of Act — No power to make such award in absence of
express enabling provision — Supreme Court of Canada deci
sion in Deputy Minister of National Revenue v. Industrial
Acceptance Corp. Ltd. (1958), 15 D.L.R. (2d) 369 applied, by
analogy — Appeal allowed — Customs Act, R.S.C. 1970, c.
C-40, ss. 47(3), 48(17),(18).
CASE JUDICIALLY CONSIDERED
APPLIED:
Deputy Minister of National Revenue v. Industrial
Acceptance Corp. Ltd. (1958), 15 D.L.R. (2d) 369
(S.C.C.).
COUNSEL:
T. L. James for appellant (respondent).
C. J. Sparling for respondent (applicant).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (respondent).
C. J. Sparling, Toronto, for respondent
(applicant).
The following are the reasons for judgment of
the Court delivered orally in English by
HEALD J.: In our view the reasoning of the
Supreme Court of Canada in the case of Deputy
Minister of National Revenue v. Industrial
Acceptance Corp. Ltd. ((1958), 15 D.L.R. (2d)
369) applies, by analogy, to the situation in this
case. The language used in subsection 47(3) of the
Customs Act [R.S.C. 1970, c. C-40] enabling a
County Court judge in Ontario to exercise the
jurisdiction detailed therein is, in substance, identi
cal to the language used in subsection 48(17)
which confers jurisdiction on this Court to hear
appeals from the County Court judges acting pur
suant to subsection 47(3). However, subsection
(18) of section 48 empowers this Court, in specific
terms, to award costs in its discretion. This provi
sion makes it clear, in our view, that the power to
award costs should not be inferred or implied from
the jurisdiction conferred on the County Court
judge in subsection 47(3) to "make such order or
finding as the nature of the matter may require
Had Parliament intended to confer the power to
award costs in subsection 47(3) proceedings, a
provision substantially similar to subsection 48(18)
would undoubtedly have been enacted.
For these reasons the appeal is allowed. There
will be no order as to costs in this Court. The
judgment herein of His Honour Judge J. Kenneth
Blair dated September 23, 1982 is varied by delet
ing therefrom the award of costs in the County
Court to the respondent herein.
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