C. KEAY INVESTMENTS LTD. DBA OCEAN TRAILER RENTALS
PRESIDENT OF THE CANADA BORDER SERVICES AGENCY
Appeal No. AP-2017-031
Decision and reasons issued
Tuesday, May 15, 2018
TABLE OF CONTENTS
IN THE MATTER OF an appeal heard on March 27, 2018, pursuant to section 67 of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.);
AND IN THE MATTER OF a decision of the President of the Canada Border Services Agency, dated June 27, 2017, with respect to a dispute pursuant to subsection 60(4) of the Customs Act.
C. KEAY INVESTMENTS LTD. DBA OCEAN TRAILER RENTALS Appellant
THE PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent
The appeal is dismissed.
Place of Hearing: Ottawa, Ontario
Date of Hearing: March 27, 2018
Tribunal Panel: Serge Fréchette, Presiding Member
Support Staff: Dustin Kenall, Counsel
C. Keay Investments Ltd. dba Ocean Trailer Rentals
President of the Canada Border Services Agency
Liaison to CIMC Vehicles Group Co., Ltd. and OEMs
Ocean Trailer Rentals
Ocean Trailer Rentals
Expert Customs Brokers
Director of Maintenance and Equipment
Please address all communications to:
Secretariat to the Canadian International Trade Tribunal
333 Laurier Avenue West
Ottawa, Ontario K1A 0G7
This heading covers a group of non-mechanically propelled vehicles (other than those of the preceding headings) equipped with one or more wheels and constructed for the transport of goods or persons. . . .
The vehicles of this heading are designed to be towed by other vehicles (tractors, lorries, trucks, motorcycles, bicycles, etc.), to be pushed or pulled by hand, to be pushed by foot or to be drawn by animals.
The heading includes :
- Trailers and semi-trailers.
For the purposes of this heading, the terms “trailers” and “semi-trailers” means vehicles (other than side-cars) of a kind designed solely to be coupled to another vehicle by means of a special coupling device (whether or not automatic).
The most important types of trailers and semi-trailers falling in this group are those designed for use with motor vehicles. Trailers usually have two or more sets of wheels, and a coupling system mounted on the swivelling front wheels which steer the vehicles. Semi-trailers are fitted with rear wheels only, the forward end resting on the platform of the towing vehicle to which it is coupled by a special coupling device.
For the purposes of the following Explanatory Note, the term “trailers” includes semi-trailers.
Trailers falling here include :
. . .
(4) Other trailers for the transport of goods . . .
The first part of Rule 2(a) extends the scope of any heading which refers to a particular article to cover not only the complete article but also that article incomplete or unfinished, provided that, as presented, it has the essential character of the complete or finished article.
. . .
The second part of Rule 2(a) provides that complete or finished articles presented unassembled or disassembled are to be classified in the same heading as the assembled article. When goods are so presented, it is usually for reasons such as requirements or convenience of packing, handling or transport.
This Rule also applies to incomplete or unfinished articles presented unassembled or disassembled provided that they are to be treated as complete or finished articles by virtue of the first part of this Rule.
For the purposes of this Rule, “articles presented unassembled or disassembled” means articles the components of which are to be assembled either by means of fixing devices (screws, nuts, bolts, etc.) or by riveting or welding, for example, provided only assembly operations are involved.
No account is to be taken in that regard of the complexity of the assembly method. However, the components shall not be subjected to any further working operation for completion into the finished state.
A. “-Trailers and semi-trailers of the caravan type, for housing or camping”;
B. “-Self-loading or self-unloading trailers and semi-trailers for agricultural purposes”;
C. “-Other trailers and semi-trailers for the transport of goods”;
D. “-Other trailers and semi-trailers”;
E. “-Other vehicles”; and
. R.S.C., 1985, c. 1 (2nd Supp.) [Act].
. Exhibit AP-2017-031-36 at 2, Vol. 1A.
. Exhibit AP-2017-031-20 at 1, Vol. 1A.
. Exhibit AP-2017-031-23 at 184, Vol. 1A.
. Exhibit AP-2017-031-21 at 141, Vol. 1A.
. R. v. Mohan,  2 S.C.R. 9, 1994 CanLII 80 (SCC) at 20.
. White Burgess Langille Inman v. Abbott and Haliburton Co.,  2 SCR 182, 2015 SCC 23 (CanLII) [White Burgess] at para. 24.
. R. v. Abbey, 2009 ONCA 624 (CanLII) at para. 82.
. Oshkosh Defense Canada Inc. v. Department of Public Works and Government Services (29 December 2017), PR-2015-051 and PR-2015-067 (CITT) at para. 21, citing R. v. D.D.,  2 SCR 275, 2000 SCC 43 (CanLII) at para. 21; and R. v. Abbey,  2 SCR 24, 1982 CanLII 25 (SCC) at 42.
. See for example Brandon (City) v. Canada, 2010 FCA 244 (CanLII) at para. 27.
. See for example Rockwell Collins Canada Inc. v. Department of Public Works and Government Services (13 October 2017), PR-2017-006 (CITT) at para. 50.
. Hudson’s Bay Company v. President of the Canada Border Services Agency (21 March 2014), AP-2012-067 (CITT) [Hudson’s Bay] at para. 24.
. See, for example, Eastern Division Henry Schein Ash Arcona Inc. v. President of the Canada Border Services Agency (20 May 2014), AP-2013-029 (CITT) at para. 43.
. White Burgess at para. 24.
. Exhibit AP-2017-031-23 at 185, Vol. 1A.
. Further, at least two of these individuals (Mr. Darby and Ms. Selby) have direct personal experience with the goods in issue as, respectively, the mechanic responsible for assembling them and the broker responsible for seeking a rebate of their duties. Thus, they would have been providing expert opinion testimony on a matter in which they were personally involved.
. Canadian International Trade Tribunal Rules, SOR/91-499.
. Certain Flat Hot-rolled Carbon and Alloy Steel Sheet Products (30 June 2004), RR-2003-002 (CITT) at para. 13.
. See, for example, R. v. Mian,  2 SCR 689, 2014 SCC 54 (CanLII) at para. 59 (“the underlying concern should be ensuring that the court receives full submissions on the new issue. If a party asks to file written submissions before or after the oral hearing, in my view, there should be a presumption in favour of granting the request. The overriding consideration is that natural justice and the rule of audi alteram partem will have to be preserved. Both sides will have to have their responses considered.”).
. Exhibit AP-2017-031-36 at 2, Vol. 1A.
. See, for example, Hudson’s Bay at para. 43 (acknowledging that rules of evidence before administrative tribunals are relaxed compared to courts). See also ss. 34-35 of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.).
. Exhibit AP-2017-031-35 at 2-10, Vol. 1A.
. Exhibit AP-2017-031-37 at 2, Vol. 1A.
. Transcript of Public Hearing, 27 March 2018, at 6-7.
. See, for example, Andersson v. Aquino, 2018 ONSC 852 (CanLII) at para. 17 (recognizing “the long-established prohibition on a lawyer simultaneously acting as counsel and witness”).
. See, for example, Cubex Ltd. v. President of the Canada Border Services Agency (31 January 2018), AP-2017-017 (CITT) at paras. 53-60 (rejecting unsubstantiated allegations).
. Exhibit AP-2017-031-15A, Appendix 3 at 40, Vol. 1.
. Exhibit AP-2017-031-38 at 4-5, 10-12, 14, 17-18, 22-23, Vol. 1B.
. Exhibit AP-2017-031-15A, Appendix 5 at 69, Vol. 1.
. Canada is a signatory to the International Convention on the Harmonized Commodity Description and Coding System, which governs the Harmonized System.
. S.C. 1997, c. 36, schedule [General Rules].
. S.C. 1997, c. 36, schedule [Canadian Rules].
. WCO, 2d ed., Brussels, 2003.
. WCO, 5th ed., Brussels, 2012 [Explanatory Notes].
. See Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131, at paras. 13, 17, where the Federal Court of Appeal interpreted section 11 of the Customs Tariff as requiring that the explanatory notes be respected unless there is a sound reason to do otherwise. The Tribunal is of the view that this interpretation is equally applicable to the classification opinions.
. Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38 (CanLII) [Igloo Vikski] at para. 21.
. Rules 1 through 5 of the General Rules apply to classification at the heading level. Rule 6 of the General Rules provides that “. . . the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related Subheading Notes and, mutatis mutandis, to the above Rules [i.e. Rules 1 through 5] . . .” and that “. . . the relative Section and Chapter Notes also apply, unless the context otherwise requires.”
. Rule 1 of the Canadian Rules provides that “. . . the classification of goods in the tariff items of a subheading or of a heading shall be determined according to the terms of those tariff items and any related Supplementary Notes and, mutatis mutandis, to the [General Rules] . . .” and that “. . . the relative Section, Chapter and Subheading Notes also apply, unless the context otherwise requires.” Classification opinions and explanatory notes do not apply to classification at the tariff item level.
. Exhibit AP-2017-031-11A at para. 20, Vol. 1.
. Ibid. at para. 102.
. Ibid. at para. 103.
. Mon-Tex Mills Ltd. v. Canada (Commissioner of the Customs and Revenue Agency), 2004 FCA 346 (CanLII) at para. 13.
. Exhibit AP-2017-031-15A, Appendix 4 at 60-66, Vol. 1.
. Semi-trailers are “vehicles” per the definition of semi-trailers found in the explanatory notes to heading No. 87.16.
. See Igloo Vikski at paras. 22-23 and n. 4.
. Alliance Mercantile Inc. v. President of the Canada Border Services Agency (3 November 2017), AP-2016-038 (CITT) at para. 65.
. Renelle Furniture Inc. v. President of the Canada Border Services Agency (23 March 2007), AP-2005-028 (CITT) at paras. 20-21.
. Exhibit AP-2017-031-15A, Appendix 3 at 40, Vol. 1.
. Ibid., Appendix 4 at 60-66, Vol. 1.
. Exhibit AP-2017-031-A-04 at 1.
. Exhibit AP-2017-031-A-03 at 1.
. Exhibit AP-2017-031-A55 at 1.
. Exhibit AP-2017-031-A56 at 1.
. Exhibit AP-2017-031-A57 at 1.
. See, for example, Viessmann Manufacturing Company Inc. v. Deputy M.N.R. (14 November 1997), AP-96-196 to AP-96-198 (CITT) at 6 (holding that the fact that the goods in issue do not form a complete boiler when imported and cannot operate safely is not determinative so long as they have the “essential feature of a boiler, namely, the heat exchanger” as well as “the burner, the manifold, the outer panels and sundry other components”).
. See Nestlé Canada Inc. v. President of the Canada Border Services Agency (7 February 2017), AP-2015-027 (CITT) at paras. 19 and 58; LRI Lighting International v. President of the Canada Border Services Agency, AP-2016-007 (CITT) at paras. 45-46; J. Cheese Inc. v. President of the Canada Border Services Agency (13 September 2016), AP-2015-011 (CITT) at para. 73; Outdoor Gear Canada (21 November 2011), AP-2010-060 (CITT) at para. 44.
. Transcript of Public Hearing, 27 March 2018, at 10, 20, 43, 46-47, 107, 120.
. Exhibit AP-2017-031-15A, Appendix 2 at 26-57, Vol. 1.
. Exhibit AP-2017-031-35 at 11-30, Vol. 1A.
. This should not be taken to diminish the skill or the value that Ocean Trailer contributes to the trucking industry. The Tribunal acknowledges that Ocean Trailer performs other important work to customize chassis for clients, such as adding refrigeration and other capabilities. However, the only additional components or work relevant for purposes of tariff classification is the components and work necessary to make the chassis have the essential character of a semi-trailer. Refrigeration and other customized additions, though very valuable for some clients, are not essential characteristics of semi-trailers as defined by the tariff and the Explanatory Notes.
. Exhibit AP-2017-031-A-08 at 1.
. Transcript of Public Hearing, 27 March 2018, at 90.