A-984-88
IBM Canada Limited (Appellant)
v.
The Deputy Minister of National Revenue for
Customs and Excise (Respondent)
and
Mitel Corporation (Intervenant)
INDEXED AS. IBM CANADA LTD. V. DEPUTY M.N.R.,
CUSTOMS AND EXCISE (CA.)
Court of Appeal, Heald, Décary and Linden
JJ.A.—Ottawa, September 26 and November 4, 1991.
Customs and Excise — Customs Tariff — Appeal from Tariff
Board decision classifying Computerized Branch Exchanges as
"electric telephone apparatus" — Decision issued by two
members instead of three — Dissent issued by third member
week later — Whether quorum — Meaning and requirements
of quorum under Tariff Board Act explained — Explanation of
dissenting member inadmissible evidence — Non-participation
of latter in decision not established — Goods wrongly classi
fied as "electric" — "Electronic" and "electric" goods distin
guished by Tariff, case law and dictionary definitions.
Construction of statutes — Computerized Branch Exchanges
classified as "electric telephone apparatus" under tariff item
44508-1 — Board introducing extraneous elements into ordi
nary meaning of "telephone apparatus" — "Apparatus" and
"system" distinguished — Board ignoring case law and dic
tionary definitions of "telephone" — "Electronic" goods and
"electric" goods distinguished by Tariff, case law and diction
ary definitions — Subject goods not falling within exclusion
clause of tariff item 41417-1 — Court not bound by opinion of
specialized tribunal.
Judicial review — Appeal from classification of goods by
Tariff Board — Board decision, signed by two members, ren
dered — Dissenting opinion of third member subsequently
made available — Whether Board having jurisdiction to make
decisions where one panel member not participating — Quo
rum defined — Necessity for decision-making authority to
strictly comply with quorum requirements — All who partici
pate in decision to act together up to last moment when deci
sion made — Requirement is question of principle, public pol
icy, sound administration of justice — "Acting together" not to
be defined — Necessity for meeting of minds — Non-signature
may not mean non-participation — Legislative history of Tariff
Board quorum requirements — Meaning of "participation" —
No admissible evidence dissenting member did not participate
in decision.
This was an appeal from a decision of the Tariff Board clas
sifying appellant's Computerized Branch Exchanges (CBX's)
under Customs Tariff as "Electric telephone apparatus" rather
than "Electronic data processing machines and apparatus". The
majority of the Board issued its decision on September 14,
1988 and, one week later, the third member issued a dissent to
the effect that the CBX's were both electronic data processing
apparatus and peripherals of such apparatus under tariff item
41417-1. The issues upon this appeal were 1) whether the
majority of the Board lacked jurisdiction in rendering its deci
sion without a quorum as required by section 6 of the former
Tariff Board Act, and 2) whether the subject goods were prop
erly classified as " Electric telephone apparatus".
Held, the appeal should be allowed.
1) The Federal Court of Appeal has defined the quorum of a
body made up of several members as " the minimum number
of members who must be present for that body to exercise its
powers validly". Courts have consistently insisted on the
necessity for a decision-making authority to strictly comply
with quorum requirements at all times. Having the proper quo
rum at all relevant times, from the beginning up to the very last
moment, is a question of principle, of public policy and of
sound and fair administration of justice. The nature, degree and
form of this " acting together" need not, cannot and should not
be defined. Tribunals have their own ways and their own rules.
They must however, at some point in time, reach a decision
collectively and each member must "participate" individually
in that collective decision in agreeing with it or in dissenting
from it. There has to be a meeting of the minds, each member
being informed at least in a general way of the point of view of
each of his colleagues. In the instant case, the crucial question
was thus the following: was the decision issued by the majority
of the Board on September 14, 1988 "participated in" by the
dissenting member? The explanation set forth by the latter in a
subsequent Board decision was not supported by affidavit and
its veracity could not therefore be tested. The Court could not
take for granted assertions that the Board could not challenge
in the usual way, namely by cross-examining the author of the
allegation. This so-called explanation was therefore not admis
sible evidence. And without that evidence, the appellant was in
no position to establish that the dissenting member did not par
ticipate in the decision. A mere delay in the issuance of dis
senting reasons should not affect the jurisdiction of the Board
nor lead necessarily to the conclusion that the dissenting
member had not participated in the decision.
2) The majority of the Board erred in law by introducing
extraneous elements into the ordinary meaning of the words
"telephone apparatus" as used in the Tariff and in concluding
that a "system" is an "apparatus". It is clear from the French
version that the words "apparatus" ("appareil") and "system"
("système") are not interchangeable and refer to two distinct
realities. The majority of the Board confused the use of the
subject goods with the latter and classified them as if they were
a telephone system, which obviously they are not. It ignored
the case law and the definition in ordinary and technical dic
tionaries of the word "telephone" which always relate "tele-
phone" to transmission of sounds or voices only. By conclud
ing that the goods have been classified correctly by the
respondent in tariff item 44508-1 as electric telephone appara
tus, the majority of the Board erred in law in misinterpreting
the words "electric" and "electronic". By using these two
words in different customs tariff items, Parliament intended
that they refer to different goods. The Tariff, as well as the case
law and the technical and ordinary dictionary definitions, have
clearly distinguished "electronic" and "electric" goods. The
subject goods do not fall within the exclusion clause of tariff
item 41417-1 nor within tariff item 44508-1 and have been
correctly found by the dissenting member to be both electronic
data processing apparatus and peripherals of such apparatus.
The Court is by no means bound by the opinion of a special
ized tribunal. The interpretation of the majority could be sup
ported by neither the wording of the statute, nor its legislative
history nor the Board's previous decisions.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Environmental Protection Act, R.S.C., 1985
(4th Supp.), c. 16, s. 95.
Canadian International Trade Tribunal Act, R.S.C., 1985
(4th Supp.), c. 47, s. 9(3).
Competition Tribunal Act, R.S.C., 1985 (2nd Supp.),
c. 19, s. 12(3).
Customs Act, R.S.C. 1970, c. C-40, s. 48(1).
Customs Tariff, R.S.C. 1970, c. C-41, tariff item 41417-1
(as am. by S.C. 1980-81-82-83, c. 67, s. 7), tariff item
44508-1 (as am. by S.C. 1984, c. 47, s. 13).
Federal Court Act, R.S.C., 1985, c. F-7, s. 45(3).
Immigration Act, R.S.C., 1985, c. I-2, s. 63(2).
Miscellaneous Statute Law Amendment Act, 1977, S.C.
1976-77, c. 28, s. 43.
National Energy Board Act, R.S.C., 1985, c. N-7, s. 16(2).
Supreme Court Act, R.S.C., 1985, c. S-26, s. 29.
Tariff Board Act, R.S.C., 1985, c. T-1, s. 6.
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Allard, [1982] 2 F.C. 706;
(1982), 49 N.R. 301 (C.A.); Inter-City Freightlines Ltd.
and Highway Traffic & Motor Transport Board of Mani-
toba v. Swan River-The Pas Transfer Ltd. et al., [1972] 2
W.W.R. 317 (Man. C.A.); Lord v. Lord (1855), 5 El. &
Bl. 404; 119 E.R. 531 (K.B.); In re Beck and Jackson
(1857), 1 C.B. (N.S.) 695; 140 E.R. 286 (C.P.); Cresswell
v. The Etobicoke-Mimico Conservation Authority, [1951]
O.R. 197; [1951] 2 D.L.R. 364 (C.A.); Canadian Pacific
Transport Co. Ltd. et al. and Loomis Courier Services
Ltd. (1976), 72 D.L.R. (3d) 434 (B.C.S.C.); Re B.C. Gov
ernment Employees Union et al. and Public Service Com
mission et al. (1979), 96 D.L.R. (3d) 86; 10 B.C.L.R. 87
(S.C.); P.P.G. Industries Canada Ltd. v. A.G. of Canada,
[1976] 2 S.C.R. 739; (1975), 65 D.L.R. (3d) 354; 7 N.R.
209; Tariff Board Act (In re), [1977] 2 F.C. 228 (C.A.);
Société des Acadiens du Nouveau-Brunswick Inc. et al. v.
Association of Parents for Fairness in Education et al.,
[1986] 1 S.C.R. 549; (1986), 69 N.B.R. (2d) 271; 27
D.L.R. (4th) 406; 177 A.P.R. 271; 66 N.R. 173; General
Datacomm Ltd. v. Deputy Minister of National Revenue
for Customs and Excise (1984), 9 TBR 78.
REFERRED TO:
Grillas v. Minister of Manpower and Immigration, [1972]
S.C.R. 577; (1971), 23 D.L.R. (3d) 1; Jagenberg of
Canada Ltd. and Deputy M.N.R. (Customs and Excise)
and Repap Enterprises Corp. Inc., Intervenant (1988), 17
C.E.R. 296 (Tar. Bd.); Canadian Cable Television Assn. v.
American College Sports Collective of Canada, Inc.,
[1991] 3 F.C. 626; (1991), 81 D.L.R. (4th) 376; 36 C.P.R.
(3d) 455 (C.A.); IWA v. Consolidated-Bathurst Packaging
Ltd., [1990] 1 S.C.R. 282; (1990), 73 O.R. (2d) 676; 68
D.L.R. (4th) 524; 42 Admin. L.R. 1; 90 CLLC 14,007; 38
O.A.C. 321; Doyle v. Restrictive Trade Practices Com
mission, [1985] 1 F.C. 362; (1985), 21 D.L.R. (4th) 366; 7
C.P.R. (3d) 235; 60 N.R. 218 (C.A.); Kane v. Board of
Governors (University of British Columbia), [1980] 1
S.C.R. 1105; (1980), 110 D.L.R. (3d) 311; [1980] 3
W.W.R. 125; 18 B.C.L.R. 124; 31 N.R. 214; Deere (John)
v. Minister of National Revenue (Customs and Excise)
(1990), 107 N.R. 137; [1989] 1 T.S.T. 2241 (F.C.A.);
Digital Equipment of Canada Ltd. and Deputy M.N.R.
(Customs and Excise) (1988), 13 C.E.R. 343 (F.C.A.);
Foxboro Canada Inc. and Deputy M.N.R. (Customs and
Excise) et al. (1987), 12 C.E.R. 118 (Tar. Bd.); Ingersoll-
Rand Door Hardware Canada Inc. and Deputy M.N.R.
(Customs and Excise) (1987), 15 C.E.R. 47; 80 N.R. 397
(F.C.A.); Cardinal v. R., [1980] 1 F.C. 149; (1979), 97
D.L.R. (3d) 402; [1979] 1 C.N.L.R. 32 (T.D.); R. v. Bris-
lan; Ex parte Williams (1935), 54 C.L.R. 262 (H.C.
Aust.); Rex v. Gignac, [1934] O.R. 195; [1934] 2 D.L.R.
113; (1934), 61 C.C.C. 371 (H.C.); The Attorney General
v. Edison Telephone Company of London (1880), 6 Q.B.
244 (Ex.D.); Wang Laboratories (Canada) Limited v.
Deputy Minister of National Revenue for Customs and
Excise (1971), 5 TBR 119; Reference/Appeal 1907
(1983), 8 TBR 587; Waltham Watch Company of Canada
Ltd. v. Deputy Minister of National Revenue for Customs
and Excise (1984), 9 TBR 388; Nevco Scoreboard Co.
Ltd. and Deputy M.N.R. (Customs and Excise) and Roto-
matic Display Products Ltd. (1986), 12 C.E.R. 88; 11
TBR 342.
AUTHORS CITED
Beaupré, Michael. Interpreting Bilingual Legislation, 2nd
ed., Toronto: Carswell, 1986.
Dussault, R. and Borgeat, L. Administrative Law: A Trea
tise, vol. 4, 2nd ed., Toronto: Carswell, 1990.
Grand Larousse de la langue française, tome 1, Paris:
Librairie Larousse, 1971. "appareil".
Grand Larousse de la langue française, tome 7, Paris:
Librairie Larousse, 1978 "système".
Lanham, David. "The Quorum in Public Law" [1984]
P.L. 461.
Robert, Paul. Dictionnaire alphabétique et analogique de
la langue française (Le Grand Robert), tome I, 2nd ed.,
Paris: Société du nouveau Littré, 1986. "appareil".
Robert, Paul. Dictionnaire alphabétique et analogique de
la langue française (Le Grand Robert), tome 5, Paris:
Société du nouveau Littré, 1972. "prononce'.
Robert, Paul. Dictionnaire alphabétique et analogique de
la langue française (Le Grand Robert), tome IX, 2nd
ed., Paris: Société du nouveau Littré, 1986. "système".
COUNSEL:
Richard G. Dearden for appellant.
Michael F. Ciavaglia for respondent.
SOLICITORS:
Gowling, Strathy & Henderson, Ottawa, for
appellant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for judgment ren
dered in English by
DÉcARY J.A.: This is an appeal from a decision ren
dered by the Tariff Board (the "Board") regarding the
tariff classification of Computerized Branch
Exchanges (models CBX II 9000, CBX II 8000 and
VSCBX, hereinafter "CBX") of the Rolm voice and
data business communications systems imported by
Rolm Canada Inc. from the United States of America
in 1985 and 1986. 1 The decision, issued on Septem-
ber 14, 1988 by two members of the Board, was to
the effect that the CBX's were classifiable under Cus
toms Tariff [R.S.C. 1970, c. C-41] (the "Tariff') Item
44508-1 [as am. by S.C. 1984, c. 47, s. 13(2)] as
"Electric telephone apparatus" rather than under tariff
item 41417-1 [as am. by S.C. 1980-81-82-83, c. 67, s.
7(1)] as "Electronic data processing machines and
apparatus". A dissent, issued on September 21, 1988
by the third member, was to the effect that the CBX's
were both electronic data processing apparatus and
peripherals of such apparatus classifiable under the
tariff item 41417-1.
THE ISSUE OF JURISDICTION
The first issue raised by the appellant is that of the
jurisdiction of the Board to make a decision with the
participation of only two of the three members who
sat on the panel. A review and chronology of the rele
vant events are necessary at this stage.
The facts
In February and March 1987, the Board, com
prised of presiding member Gorman and members
Bertrand and Beauchamp, heard two appeals from
decisions of the respondent. On September 14, 1988,
the Board rendered its decision in the following fash
ion: 2
I The original appellant was Rolm Canada Inc. Pursuant to
an Order of the Court dated December 28, 1988, the style of
cause was amended and the proceedings were carried on with
IBM Canada Limited having been substituted for Rolm
Canada Inc. as appellant.
2 A.B., at p. 52.
The Tariff Board
La Commission du Tarif
CANADA
NOTICE DA 1599
September 14, 1988
PANEL: GORMAN, Presiding Member
BERTRAND, Member
BEAUCHAMP, Member
Appeals Nos. 2600 and 2625
ROLM CANADA INC.
Appellant
and
THE DEPUTY MINISTER OF NATIONAL REVENUE
FOR CUSTOMS AND EXCISE
Respondent
and
MITEL CORPORATION
Intervenant
DECISION OF THE BOARD
The appeals are dismissed and it is declared that the models VSCBX, CBX II 8000 and CBX II 9000 of the Rolm voice
and data business communications systems imported by the appellant from the United States of America in 1985 and 1986
on dates and under Toronto entry numbers set out in schedules to the letters of decision of the respondent have been classi
fied correctly by the respondent in tariff item 44508-1 as electric telephone apparatus.
"G.J. Gorman"
Presiding Member
"J.P. Bertrand"
Member
The above decision has been made by the
Tariff Board under the Customs Act,
R.S.C. 1970, c. C-40.
"René Noel"
Secretary of the Board
La Commission du Tarif
The Tariff Board
CANADA
AVIS DA 1599
le 14 septembre 1988
JURY: GORMAN, président d'audience
BERTRAND, membre
BEAUCHAMP, membre
Appels nos. 2600 et 2625
ROLM CANADA INC.
Appelante
et
LE SOUS-MINISTRE DU REVENU NATIONAL
POUR LES DOUANES ET L'ACCISE
Intimé
et
MITEL CORPORATION
Intervenante
DÉCISION DE LA COMMISSION
La Commission rejette les appels et déclare que les modèles VSCBX, CBX II 8000 et CBX II 9000 des systèmes
commerciaux de communications téléphoniques et informatiques Rolm, qui ont été importés des États-Unis d'Amérique, en
1985 et 1986, et déclarés aux dates et sous les numéros indiqués dans les annexes aux lettres de décision de l'intimé, ont été
classés correctement par l'intimé sous le numéro tarifaire 44508-1 en tant qu'appareils électriques de téléphone.
«G.J. Gorman»
Président d'audience
«J.P. Bertrand»
Membre
La décision ci-dessus a été rendue
par la Commission du tarif en vertu
de la Loi sur les douanes,
S.R.C. 1970, chap. C-40.
«René Noel»
Secrétaire de la Commission
A "certified true copy of the decision by the Board"
was sent by courier to counsel for the parties by the
secretary of the Board on September 14, 1988. The
letter sent to counsel for the appellant read: 3
Enclosed is a certified true copy of the decision by the Board
in the above-noted appeals.
As you can see, appeals Nos. 2600 & 2625 is (sic) dismissed.
The opinion of Mr. Beauchamp is not available at this time.
Leave to appeal from this decision to the Federal Court may be
sought within 60 days upon the conditions set out in section 48
of the Customs Act.
The actual decision was preceded by the official
summary prepared by the Board 4 and followed by the
"Reasons for decision" signed by the presiding
member and concurred in by member Bertrand. 5
Nowhere in this summary or in these reasons is any
reference made to the third member.
On September 21, 1988, the secretary of the Board
sent the following letter to counsel for the parties: 6
This is further to my letter dated September 14, 1988.
Enclosed is a copy of the dissent of Member Beauchamp.
The dissent of member Beauchamp was preceded by
a new official summary prepared by the Board.? The
summary, this time, made reference to the "minority"
and went on to set the "date of decision" as at "Sep-
tember 14, 1988", and the "date of dissent" as at
"September 21, 1988".
Counsel for the appellant argued that "the majority
of the Tariff Board: (a) rendered its decision dated
September 14, 1988 in the absence of jurisdiction, in
excess of jurisdiction or without jurisdiction in that:
(i) it was issued in the absence of a quorum as
required by section 6 of the former Tariff Board Act
3 A.B., at p. 50.
4 A.B., at p. 51.
5 A.B., at pp. 54-63.
6 A.B., at p. 79.
7 A.B., at pp. 81-82.
[R.S.C., 1985, c. T-1 (Act repealed by R.S.C., 1985
(4th Suppl.), c. 47, s. 50)], and (ii) all three members
of the Tariff Board did not participate in the sepa
rately issued decisions rendered on September 14,
1988 and September 21, 1988".
In order to fully understand the appellant's submis
sion, it is necessary to examine what is meant by
"quorum" and what are the specific requirements
found in the Tariff Board Act (the "Act") 8 with
respect to quorum.
Quorum in general
The quorum of a body made up of several mem
bers has been defined by this Court as "the minimum
number of members who must be present for that
body to exercise its powers validly" . 9 As was pointed
out by Dickson J.A. (as he then was), "In the absence
of a quorum no business can be transacted".'°
While there appears to be no authority directly on
the point in issue, a perusal of the jurisprudence that
has examined questions related to quorum indicates
that the courts have consistently insisted on the
necessity for a decision-making authority to strictly
comply with quorum requirements at all times. A
B S. 6 of the Tariff Board Act, R.S.C., 1985, c. T-1 reads as
follows:
6. (1) With respect to an appeal to the Board pursuant to
any Act other than this Act, three or more members have
and may exercise and perform all the powers and functions
of the Board.
(2) Notwithstanding subsection (1), where a member,
after hearing an appeal to the Board pursuant to any Act
other than this Act, ceases to hold office for any reason or is
unable or unwilling to take part in the making of any order,
finding or other declaration with respect to the appeal, the
remaining members who have heard that appeal may make
such order, finding or other declaration and for the [sic] pur
pose they shall be deemed to have exercised and performed
all the powers and functions of the Board.
9 Attorney General of Canada v. Allard, [1982] 2 F.C. 706
(C.A.), at p. 707, Pratte J.
minter-City Freightlines Ltd. and Highway Traffic & Motor
Transport Board of Manitoba v. Swan River-The Pas Transfer
Ltd et al., [1972] 2 W.W.R. 317 (Man. C.A.), at p. 318.
long series of cases' have established a proposition
which I would venture to formulate as follows: in set
ting a quorum and requiring that a minimum number
11 See Lord v. Lord (1855), 5 El. & Bl. 404, at p. 406; 119
E.R. 531 (K.B.), at p. 532, Coleridge J.:
It is now clearly established that every judicial act, to be
done by two or more, must be completed in the presence of
all who do it; for those who are to be affected by it have a
right to the united judgment of all up to the very last
moment. In Stalworth v. Inns (2 D. & L. 428), where it was
sought to set aside an award on the ground that the two arbi
trators had executed it at different times and places, the
Court of Exchequer refused to do so, because, if they did,
there could be no appeal against their decision; but they inti
mated that they would grant no attachment, nor make any
order for payment of the sum awarded. They left the party to
bring his action, expressing a hope that, the strong opinion
of the Court being known, arbitrators would in future take
care that their execution was joint. [My emphasis.]
In re Beck and Jackson (1857), 1 C.B. (N.S.) 695, at p. 700;
140 E.R. 286 (C.P.), at p. 288, Cresswell J.:
I find the rule thus stated in Russell on Arbitration, p.
209,—speaking of the duty of joint arbitrators,—"As they
must all act, so must they all act together. They must each be
present at every meeting; and the witnesses and the parties
must be examined in the presence of them all; for, the par
ties are entitled to have recourse to the arguments, expe
rience, and judgment of each arbitrator at every stage of the
proceedings brought to bear on the minds of his fellow-
judges, so that by conference they shall mutually assist each
other in arriving together at a just decision:... ". [My
emphasis.]
Cresswell v. The Etobicoke-Mimico Conservation Authority,
[1951] O.R. 197 (C.A.), at p. 203, Roach J.A.:
No one would suggest ... that where an issue is to be
determined by a board of three arbitrators, either under a sta
tute or pursuant to a submission, two of them could ignore
the third and proceed in his absence. Such an award would
unquestionably be bad• [My emphasis.]
Canadian Pacific Transport Co. Ltd. et al. and Loomis Cou
rier Services Ltd. (1976), 72 D.L.R. (3d) 434 (B.C.S.C.), at
p. 441, McKenzie J.:
The framers of this legislation reposed their faith in col
lective wisdom over individual wisdom. [My emphasis.]
Re B.C. Government Employees Union et al. and Public Ser
vice Commission et al. (1979), 96 D.L.R. (3d) 86 (S.C.), at
pp. 90-91, Bouck J.:
(Continued on next page)
of persons participate in a decision, Parliament
reposes its faith in collective wisdom, does so for the
benefit of the public as well as for the benefit of those
who might be affected by the decision, and expects
those who participate in the decision either as mem
bers of the majority or as dissenting members to act
together up to the very last moment which is the
making of one united, though not necessarily unani
mous, decision. 12 Having the proper quorum at all
relevant times, from the beginning up to the very last
moment is a question of principle, of public policy
and of sound and fair administration of justice.
(Continued from previous page)
It would seem to follow that anything done under the
authority of the Commission when it was composed of only
two persons is a nullity.
Similarly the judgment of the Commission rendered after
the hearing on August 16, 1978, is of no legal consequence
because the Commission only consisted of two members at
the time it heard the appeal and when it gave its reasons:.. .
Because of the explicit language of the statute requiring
no less than three members to conduct such a hearing, the
Commission could not acquire jurisdiction on the basis of a
waiver whether two or only one member sat to hear the
appeal. The Legislature decided the minimum number of
Commissioners was three. It was a condition inserted for the
benefit of the public in the broad sense and all those who
might be affected by the Commission's decisions. It was not
merely a protective device which only interested the parties
themselves. [My emphasis.]
Dussault and Borgeat, Administrative Law: A Treatise, vol.
4, 2nd ed. (Toronto: Carswell, 1990), at p. 160:
What is important is that the tribunal or agency have quo
rum right from the outset of the decision-making process
and maintain it with the same persons until a decision has
been reached. Failure to do so means the agency or tribunal
acts without quorum and its actions and decisions are thus
automatically null and void.
See also "The Quorum in Public Law", David Lanham,
[1984] P.L. 461, at pp. 468ff.
12 The above comments relate to the making of the decision
itself. I do not suggest that reasons must always accompany the
decision—indeed, the practice of many courts, including the
Supreme Court of Canada, allows for the publication of rea
sons at a later date—nor that at the time the decision is made
each member of the panel must have informed the panel in
detail of the reasons he is planning to release eventually.
The nature, degree and form of this "acting
together" need not, cannot and should not be defined.
Tribunals have their own ways and their own rules.
Members of a panel have their own personality and
habits and cannot be expected to hold hands from the
time a case is heard until the time a case is decided.
What must be done, however, is that, at some point in
time, the panel must reach a decision collectively and
each member must "participate" individually in that
collective decision in agreeing with it or in dissenting
from it. There has to be a meeting of the minds, each
member being informed at least in a general way of
the point of view of each of his colleagues. This, in
my view, is what is meant by "making the decision".
Counsel for the appellant rightly pointed out, relying
on the statement of Chief Justice Laskin in P.P.G.
Industries Canada Ltd. v. A. G. of Canada, ' 3 that sig
nature does not necessarily equate with participation.
I would add, however, that the reverse is also true:
non-signature does not necessarily equate with non-
participation. There is no absolute rule, as legislative
provisions, rules of practice and actual practices may
vary from one tribunal to the other.
The Tariff Board quorum
The particular quorum requirements with respect
to the Board have been examined by this Court in
Tariff Board Act (In re), 14 where the Court was asked
whether, following the death of one member of the
panel of three, the remaining two members had juris
diction to issue the decision. Subsection 3(8) of the
Act then in force [R.S.C. 1970, c. T-1] was similar to
subsection 6(1) of the Act in force at the time of
these proceedings and was interpreted as follows by
Jackett C.J. [at pages 230-232]:
While not so expressed, as we read the Act, these provisions
are in effect "quorum" provisions in that they determine the
minimum number of members of the Board who must partici-
13 [1976] 2 S.C.R. 739, at p. 747.
14 [1977] 2 F.C. 228 (C.A.).
pate in carrying out the two different classes of duties assigned
to it.
... and, looking only at section 3(8), it seems clear that "three
or more members" must participate in the exercise by the
Board of the power to "issue a valid Declaration" deciding an
Weal ... .
Counsel for the Attorney General of Canada put forward the
argument that section 21(1) of the Interpretation Act read with
section 3(8) of the TarifBoard Act was sufficient to require an
affirmative answer to the question put to this Court by the
Board. In his submission, as we understood him, section 3(8)
authorizes three or more members to decide an appeal and sec
tion 21(1), therefore, authorizes a "majority of them" to do it.
In our view, section 21(1) cannot be used to make an alteration
in the requirements of a provision fixing the "quorum"
required to deal with a matter. Although we recognize that the
words of the subsection are wide enough, read literally, to sup
port counsel's submission, as it seems to us, section 21(1)
deals with a case where a statutory quorum is exercising a stat
utory power; in effect, it makes the "majority" decision the
decision of the group. [My emphasis.]
In 1977, 15 as a result of that interpretation and in
order to avoid the devastating consequences of the
violation of quorum rules where special circum
stances make it practically impossible for the Board
to function, Parliament adopted subsection 3(8.1)
which is similar to the present subsection 6(2). This
provision goes a long way in defining what the final
act of "participation" should be, when it says: "una-
ble or unwilling to take part in the making of any
order". The French text is somehow more explicit:
"se révèle incapable ou refuse de participer au pro-
noncé d'une ordonnance" [underlining added], as
"prononcé" means "prendre ou faire connaître une
décision; selon les formes requises, en vertu des
pouvoirs dont on dispose ". 16 It seems to me that sub
section 6(2) addresses the question of quorum at the
time of the exercise of what generally constitutes the
ultimate power of a board with respect to any inter
locutory or final issue before it, i.e. the determination
15 Miscellaneous Statute Law Amendment Act, 1977, S.C.
1976-77, c. 28, s. 43.
16 P. Robert, Dictionnaire alphabétique et analogique de la
langue française, t. 5 (Paris: Société du nouveau Littré, Le
Grand Robert, 1972), at p. 503.
of the issue and, according to the French text, the
issuance of the decision. 17
It is clear, therefore, that at least three members
must participate in the exercise by the Board of the
power attributed to it by subsection 47(3) of the Cus
toms Act 18 to "make" (the) "order" ("rendre l'ordon-
nance") under attack. The question narrows down,
really, to that of defining what "participation" means:
was the decision issued by the Board on September
14, 1988 "participated" in by member Beauchamp? If
not, the late "participation" of member Beauchamp,
on September 21, 1988, could not validate the deci
sion issued by the Board on September 14, 1988, for
the. Board, in rendering that decision, however viti
ated, would have exhausted its jurisdiction and could
not regain it, nor validate its earlier decision, by hav
ing the third member of the panel participate after
wards. 19
17 Strangely enough, there is very little uniformity in the
provisions used by Parliament where statutes allow for deci
sions to be taken by less than the minimum number otherwise
required. The cause for non-participation varies from being
dead, unable or unwilling (Canadian International Trade Tri
bunal Act, R.S.C., 1985 (4th Supp.), c. 47, s. 9(3)), to being
dead or unable (Immigration Act, R.S.C., 1985, c. I-2, s. 63(2);
Competition Tribunal Act, R.S.C., 1985 (2nd Supp.), c. 19, s.
12(3); Federal Court Act, R.S.C., 1985, c. F-7, s. 45(3)), to
being dead or incapacitated (National Energy Board Act,
R.S.C., 1985, c. N-7, s. 16(2)) and to being absent or unable
(Canadian Environmental Protection Act, R.S.C., 1985 (4th
Supp.), c. 16, s. 95). Statutes require the quorum for the giving
of the decision (National Energy Board Act, supra, s. 16(2)),
for the giving of the judgment (Federal Court Act, supra, s.
45(3); Competition Tribunal Act, supra, s. 12(3)) or for the
making of the disposition (Canadian International Trade Tri
bunal Act, supra, s. 9(3)). In some cases the required number
can be reduced only with the authorization of the chairman of
the board (Canadian International Trade Tribunal Act, supra,
s. 9(3)) or with the consent of the parties at the time of the
hearing (Supreme Court Act, R.S.C., 1985, c. S-26, s. 29).
18 R.S.C. 1970, c. C-40.
19 See Grillas v. Minister of Manpower and Immigration,
[1972] S.C.R. 577, at pp. 593-594, Pigeon J. Counsel for the
respondent did not suggest that the decision of the Board might
have been reached on September 21, 1988 rather than on Sep-
tember 14, 1988.
The "explanation"
To explain what appears to have happened, counsel
for the appellant invited us to look at the explanation
set forth by member Beauchamp in a subsequent
Board decision. 20 Counsel recognized that such an
explanation, unsupported by any affidavit, would not
normally constitute proper evidence but he argued
that there were, in the case at bar, unusual circum
stances which can be described as follows:
— First, counsel for the respondent did not argue
that it was inadmissible evidence and recognized
orally before the Court that the Board was experienc
ing serious internal problems at the time;
— Second, that evidence is found in an official doc
ument originating from that same Board whose
actions are being challenged and which was in a posi
tion to contradict it had that been its intention;
— Third, it is so unusual for that kind of evidence to
come out from decision-making bodies that the usual
rules of evidence should not be applied too strictly.
I am very conscious that where one is dealing with
the integrity of the decision-making process, it would
be a self-serving mistake for courts reviewing that
process in a given case to seek on technical grounds
to avoid facing the issue. On the other hand, precisely
because one is dealing with a process that goes to the
heart of our democratic institutions and which is par
ticularly vulnerable to unfair and untrue allegations,
it would be as serious a mistake for courts to be satis
fied with innuendos whose foundations cannot be
properly verified. The rule that evidence is to be pro
vided by affidavits is not a mere question of techni
cality; it ensures that no one is hurt by allegations
which one does not have a chance to challenge.
The explanation, here, is found in the dissenting
reasons filed in a subsequent decision, at a time when
the case was closed and when the majority of the
20 Jagenberg of Canada Ltd. and Deputy M.N.R. (Customs
and Excise) and Repap Enterprises Corp. Inc., Intervenant
(1988), 17 C.E.R. 296 (Tar. Bd.).
Board members were no longer in a position to reply
and explain their side of the story. The explanation is
not supported by affidavit and its veracity cannot
therefore be tested. This Court simply cannot take for
granted assertions that the Board cannot challenge in
the usual way, i.e. by cross-examining the author of
the allegation. The appellant would want this Court to
reverse the onus of proof and impose on the respon
dent the burden of responding to an assault which
remains unsubstantiated. No authority has been
quoted to us, and I have found none, that allows for a
relaxation of the affidavit rules in the way suggested
by the appellant. On the contrary, I find that affida
vits were filed in cases where the jurisdiction of a
board or a court was challenged in a somewhat simi
lar fashion. 21 I would apply to the majority of the
Board these comments made by Dickson C.J. with
respect to judges, in Société des Acadiens: 22
In the absence of any clear evidentiary basis for the appellants'
allegations of incompetence, I do not think we can find in their
favour. In cases such as these, it is my view that we must pre
sume good faith on the part of judges.
I therefore hold that the so-called explanation
given by member Beauchamp is not admissible evi
dence.
Without that evidence, the appellant is in no posi
tion to establish that the dissenting member did not
participate in the decision. His name appears on the
face of the decision. The secretary of the Board
informed the parties that his opinion was forthcom
ing and, indeed, his very lengthy opinion was for
warded a week later, which did not allude to the
problems he would identify in a later opinion. It
might have been an unusual way to issue a decision,
but again we have no evidence whatsoever as to how
21 See Canadian Cable Television Assn. v. American College
Sports Collective of Canada, Inc., [1991] 3 F.C. 626 (C.A.);
IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R.
282, at p. 318; Doyle v. Restrictive Trade Practices Commis
sion, [1985] 1 F.C. 362 (C.A.), at p. 373; Société des Acadiens
du Nouveau-Brunswick Inc. et al. v. Association of Parents for
Fairness in Education et al., [1986] 1 S.C.R. 549, at pp. 569
and 581; Kane v. Board of Governors (University of British
Columbia), [1980] 1 S.C.R. 1105, at pp. 1111-1112.
22 Supra, note 21, at pp. 569-570.
decisions of the Board are normally issued. On the
facts of the case, I agree with counsel for the respon
dent that "a mere delay in the issuance of dissenting
reasons should not affect the jurisdiction of the Board
nor lead necessarily to the conclusion that Member
Beauchamp had not participated in the decision". 23
THE ISSUE OF CLASSIFICATION
The second issue raised by the appellant is that of a
reviewable error in the Board's decision.
The appeal to this Court is brought pursuant to the
provisions of the former Customs Act 24 and by the
terms of subsection 48(1) of that statute, is limited to
a question of law. Counsel for the respondent relied
on the decisions of this Court in Deere (John) v. Min
ister of National Revenue (Customs and Excise), 25
Digital Equipment of Canada Ltd. and Deputy
M.N.R. (Customs and Excise) 26 and Foxboro Canada
Inc. and Deputy M.N.R. (Customs and Excise) et
a1., 27 to invite us not to intervene with what were, in
his view, findings of fact clearly open to the Board
on the evidence and to defer to the opinion of a spe
cialized tribunal.
The relevant tariff items read as follows:
Electronic data processing machines and apparatus; periph
eral equipment for use therewith including data
entry, data preparation and data handling
machines and apparatus; accessories and attach
ments for use therewith; parts of all the foregoing;
none of the foregoing to include telephone and tele
graph apparatus and parts thereof:
23 Memorandum of fact and law of the respondent, at p. 9.
24 R.S.C. 1970, c. C-40, as amended.
25 (1990), 107 N.R. 137 (F.C.A.).
26 (1988), 13 C.E.R. 343 (F.C.A.).
27 (1987), 12 C.E.R. 118 (Tar. Bd.).
41417-1 Other than the following
Electric telephone apparatus and complete parts thereof:
44508-1 Other than the following
44508-2 Telephone hand sets, video telephones and telephone
intercommunication systems
44508-3 Complete parts of all the foregoing
71100-1 All goods not enumerated in this schedule as subject
to any other rate of duty, and not otherwise declared
free of duty, and not being goods the importation
whereof is by law prohibited
With respect, it is my view that the majority of the
Board erred in law by introducing extraneous ele
ments into the common or ordinary meaning of the
words "telephone apparatus" as used in the Tariff. 28
In the following passages of its decision,
The imported goods are advertised, promoted and sold as com
puterized business telephone systems and as voice and data
business communications systems. Voice and other data are
transmitted over the same telephone lines that originally were
dedicated to voice only and voice lines connected to computer
ized PBX systems vastly outnumber connections for other
kinds of data. There can be no doubt that the entire system is
telephone apparatus and that the imported goods are a compo
nent of the telephone system. The Concise Oxford Dictionary
defines "component" as "contributing to the composition of a
whole". The imported goods contribute to the telephone sys
tem as a whole in performing the switching operations neces
sary for the transmission of what I have called the message
data.
However, not everything that functions in an electronic mode
is electronic data processing apparatus for tariff classification
purposes. Increasingly, with advances in modern technology,
elements of what might be regarded as electronic data process
ing apparatus are incorporated as components in a variety of
systems and devices that are not designed primarily for the
processing of data. It is then necessary to look to the primary
purpose of the systems or device into which they are incorpo
rated in order to determine the true description of the goods for
classification purposes.
28 Ingersoll-Rand Door Hardware Canada Inc. and Deputy
M.N.R. (Customs and Excise) (1987), 15 C.E.R. 47 (F.C.A.), at
p. 51, Stone J.A.
The subject goods contribute to the telephone system as a
whole and are a component of the system; indeed they are
essential to its primary purpose which is the transmission of
the message data which passes through the system
unprocessed. The generation of management reports involving
the organization of stored information is, in my view, an ancil
lary use of the goods and such incidental use does not deter
mine tariff classification. The imported goods are telephone
apparatus and as such are excluded from classification as elec
tronic data processing apparatus in tariff item 41417-1 by the
exclusionary clause of that item.
As to whether they are also telephone intercommunication sys
tems in tariff item 44508-2 or complete parts thereof in 44508-
3, the evidence is that "intercommunication systems" means
intercoms and nothing else. There having been no different
evidence adduced or standard dictionary or scientific defini
tions cited to the contrary, that is conclusive of the matter for
purposes of this appeal and they cannot be classified there.
(A.B., at pp. 61-62.)
the majority of the Board has interpreted the words
"telephone apparatus" as if they read "telephone sys
tem" and even went out of its way to interpret the
word "component" which is nowhere to be found in
the tariff items being considered. In finding that
"There can be no doubt that the entire system is tele
phone apparatus and that the imported goods are a
component of the telephone system", the majority of
the Board is in fact concluding that a "system" is an
"apparatus", which is an untenable proposition in
view, for example, of the wording of tariff item
44508-2 which refers to "telephone intercommunica-
tion systems" (my emphasis).
I wish to add that it is clear from the French ver
sion that the words "apparatus" ("appareil") and
"system" ("système") are not interchangeable and
refer indeed to two very distinct realities. 29 This, in
my view, is a case where "recourse to the French ver
sion disposes entirely of any question of ambiguity in
29 See: Grand Larousse de la langue française, t. 1 (Paris,
Librairie Larousse, 1971), at p. 202; Grand Larousse de la lan-
gue française, t. 7 (Paris, Librairie Larousse, 1978), at pp.
5909 and 5974; P. Robert, Dictionnaire alphabétique et analo-
gique de la langue française (Le Grand Robert), 2nd ed., t. I
(Paris: Société du nouveau Littré, 1986), at pp. 453-454 and
2nd ed., t. IX, at pp. 115-116 and 204-205.
the statute". 30 As pointed out by Beaupré, in Inter
preting Bilingual Legislation: 31
.. , based on the rule of equal authenticity of French and
English versions, a clear version of the law will normally
resolve any doubt residing in an ambiguous one, and the con
text of a provision will normally resolve any difference
between its two versions.
When one is dealing with the definition of words in a
tariff whose purpose is to distinguish between hun
dreds of technical items, preference should be given
to that version which is clear and unambiguous.
Counsel for the respondent, relying on the decision
of this Court in John Deere Limited, 32 argued that the
majority of the Board made no mistake in consider
ing the use to which the subject goods are designed to
be put in order to find the proper classification. The
problem, here, is that the majority did much more
than consider the use of the subject goods, it con
fused that use with the subject goods and classified
the latter as if they were a telephone system, which
obviously they are not. Further, in concluding that
"components" of the "telephone system" are "tele-
phone apparatus" even when these components trans
mit data in addition to voices, the majority of the
Board ignored the case law 33 and the definition in
ordinary and technical dictionaries of the word "tele-
phone" which unanimously relate "telephone" to
transmission of sounds or voices only.
Also, by concluding, very briefly, that
Because the telephone system, including the subject goods, is
powered by electricity and is in part electronic within the
genus of electric, the goods have been classified correctly by
the respondent in tariff item 44508-1 as electric telephone
apparatus. (A.B., at p. 63.)
30 Cardinal v. R., [1980] 1 F.C. 149 (T.D.), at p. 153, Maho-
ney J.
31 2nd ed. (Toronto, Carswell, 1986), at p. 153.
32 Supra, note 25.
33 See R. v. Brislan; Ex parte Williams (1935), 54 C.L.R.
262 (H.C. Aust.), at p. 270, Latham C.J.; Rex v. Gignac, [1934]
O.R. 195 (H.C.), at p. 204, Armour J.; The Attorney General v.
Edison Telephone Company of London (1880), 6 Q.B. 244 (Ex.
D.), at p. 245, Stephen J.
the majority of the Board, in addition to referring
again to the "telephone system", erred in law in
ignoring Parliament's intent, the case law and the
technical and ordinary dictionary definitions in its
interpretation of the words "electric" and "elec-
tronic".
The use by Parliament of the words "electronic"
and "electric" in different customs tariff items indi
cates that Parliament intended that the two words
refer to different goods. The Tariff has always clearly
distinguished between "electronic" goods and "elec-
tric" goods. Tariff item 44508-1 was first enacted in
1886 and was amended as recently as 1984 and
always used the word "electric". If Parliament had
intended, with the development of modern technol
ogy, to extend the meaning of "electric" so that it
would cover also "electronic" goods, it had ample
opportunities to do so, and yet it refrained from doing
so, though it did, in 1980, choose to add the qualify
ing adjective "electronic" to "data processing
machines and apparatus" when it enacted Tariff Item
41417-1.
The case law also recognizes a clear distinction
between "electronic" and "electric" goods. In Gen
eral Datacomm Ltd. v. Deputy Minister of National
Revenue for Customs and Excise, 34 the Board
rejected the very argument that was accepted by the
majority of the Board in the case at bar and held that
modems were electronic devices used in conjunction
with computer systems and classified modems, data
sets, data couplers and multiplexers as peripherals for
"electronic data processing apparatus" (41417-1)
rather than as "electric telephone apparatus" (44508-
1) . 35
34 (1984), 9 TBR 78.
35 See also Wang Laboratories (Canada) Limited v. Deputy
Minister of National Revenue for Customs and Excise (1971),
5 TBR 119; Reference/Appeal 1907 (1983), 8 TBR 587; Wal-
tham Watch Company of Canada Ltd. v. Deputy Minister of
National Revenue for Customs and Excise (1984), 9 TBR 388
affd A-208-85, F.C.A., Nov. 18, 1987 [not reported]; Nevco
Scoreboard Co. Ltd. and Deputy M.N.R. (Customs and Excise)
(Continued on next page)
Technical and ordinary dictionary definitions also
clearly distinguish between "electric" and "elec-
tronic".
The respondent has admitted throughout the pro
ceedings that the CBX's are clearly electronic. The
majority of the Board has also found as a fact that the
CBX's are electronic. It was not therefore open to the
majority of the Board to hold that the electronic
CBX's were "electric" goods as that word is used in
the Tariff.
As a result, the subject goods do not fall within the
exclusion clause in the heading to tariff item 41417-
1, (namely, "none of the foregoing to include tele
phone and telegraph apparatus and parts thereof') nor
within tariff item 44508-1 (namely, "Electric tele
phone apparatus") and have been correctly found by
the dissenting member to be both electronic data
processing apparatus and peripherals of such appara
tus classifiable under the tariff item 41417-1.
While the Court owes deference to the opinion of a
specialized tribunal, it is by no means bound by that
opinion. In the instant case the interpretation of the
majority cannot be supported by the statute, by the
legislative history of that statute and by the Board's
own jurisprudence. There is here an error of law
which stands to be corrected by this Court sitting in
appeal of the Board decision.
DISPOSITION
I would allow the appeal, set aside the decision
appealed from and determine that the models
VSCBX, CBX II 8000 and CBX II 9000 of the Rolm
voice and data business communications systems
imported from the United States of America in 1985
and 1986 on dates and under Toronto entry numbers
set out in schedules to the letters of decision of the
respondent should have been classified by the respon
dent in the tariff item 41417-1 as electronic data
(Continued from previous page)
and Rotomatic Display Products Ltd. (1986), 12 C.E.R. 88
(Tar. Bd.).
processing apparatus and peripherals of such appara
tus.
HEALD J.A.: I agree.
LINDEN J.A.: I agree.
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.