NADON J.A.
SHARLOW J.A.
BETWEEN:
CONAIR CONSUMER PRODUCTS INC.
Appellant
and
THE COMMISSIONER OF THE CANADA CUSTOMS AND REVENUE AGENCY
Respondent
Heard at Ottawa, Ontario, on September 1, 2004.
Judgment delivered from the Bench at Ottawa, Ontario, on September 1, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
NADON J.A.
SHARLOW J.A.
BETWEEN:
CONAIR CONSUMER PRODUCTS INC.
Appellant
and
THE COMMISSIONER OF THE CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on September 1, 2004)
[1] The appellant is the importer of certain hair styling products known as the "Straight Styles Steam Straightener", the "Shiny Straight Straightener", and the "Turn Styles Crimper/Straightener". The appellant claims that these products fall within Tariff Item No. 8516.32.10 ("curling iron"). The Commissioner of the Canada Customs and Revenue Agency does not agree. He made a determination and a redetermination under subsection 60(4) of the Customs Act that these products fall within Tariff Item No. 8516.32.90 ("other electro-thermic hair dressing apparatus").
[2] The appellant appealed that determination to the Canadian International Trade Tribunal pursuant to subsection 67(1) of the Customs Act. That appeal was dismissed on October 20, 2003. The appellant now appeals to this Court pursuant to section 68 of the Customs Act.
[3] By virtue of the limited scope of appeals under section 68 of the Customs Act, this Court cannot interfere with a tariff classification decision of the CITT in the absence of an error of law. It is now well established that the standard of review for such questions is reasonableness: Schraeder Automotive Inc. v. Deputy M.N.R. (1999), 240 N.R. 381 (F.C.A.). That is, the CITT's interpretation of the words "curling iron" as used in the customs tariff will stand if the interpretation is supported by reasons that can stand up to a somewhat probing examination, including a review of the evidentiary foundation and the logical process by which the decision was reached: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748.
[4] The appellant argued before the CITT, and again before this Court, that under a dynamic interpretation of tariff classifications, it should be sufficient that the goods in issue (which were brought to the market after the tariff provisions in issue were enacted), may be used to wave or curl hair, are made of the same materials as standard curling irons, employ the same technology, and are marketed in similar ways by wholesalers and retailers.
[5] The CITT noted that the term "curling iron" is not defined in the tariff or explanatory notes and, relying on the dictionary definition of "curling iron," found that those words refer to a heated rod around which hair is wound in order to curl or wave it. Counsel for the appellant was unable to find a broader definition in any dictionary or reference work. The CITT concluded that the products in issue do not meet the dictionary definition of "curling iron" because, although the products in issue can be and are used to curl or wave hair, their primary function is to straighten hair, and when they are used to curl or wave hair, that result is not achieved by wrapping hair around a metal rod, but by pressing it between heated plates. Those considerations led the CITT to conclude that the products in issue are not "curling irons". This was a rejection of the "dynamic interpretation" approach advocated by counsel for the appellant, but in our view it was a reasonable approach in the circumstances of this case.
[6] Counsel for the appellant also argued that the CITT was wrong in law to rely on the dictionary definition of "curling iron" in the face of evidence that the appellant and retailers use the term "curling iron" to include the products in issue. We do not agree. Dictionary definitions and evidence of trade usage of words are both relevant in cases such as this, and it is within the mandate of the CITT to weigh and balance all such evidence in reaching a conclusion, as they did in this case.
[7] For these reasons, and despite the able submissions of counsel for the appellant, we are unable to conclude that the interpretation of the term "curling iron" adopted by the CITT is unreasonable. We would dismiss this appeal with costs.
(s) "K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-557-03
STYLE OF CAUSE: Conair Consumer Products Inc. v. The Commissioner of the Canada Customs and Revenue Agency
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 1, 2004
REASONS FOR JUDGMENT OF THE COURT: Rothstein, Nadon and Sharlow JJ.A.
DELIVERED FOR THE BENCH BY: Sharlow J.A.
APPEARANCES:
Mr. John T. Morin FOR THE APPELLANT
Ms. Elizabeth Richards FOR THE RESPONDENT
SOLICITORS OF RECORD:
Fasken Martineau DuMoulin LLP
Toronto, Ontario FOR THE APPELLANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT