Annual Report March 31, 2011 - Chapter V

Introduction

The Tribunal hears appeals from decisions of the CBSA under the Customs Act and SIMA or of the Minister of National Revenue under the Excise Tax Act. Appeals under the Customs Act relate to the origin, tariff classification, value for duty or marking of goods imported into Canada. Appeals under SIMA concern the application, to imported goods, of a Tribunal finding or order concerning dumping or subsidizing and the normal value, export price or subsidy of imported goods. Under the Excise Tax Act, a person may appeal the Minister of National Revenue's decision on an assessment or determination of federal sales tax or excise tax.

The appeal process is set in motion when a written notice of appeal is filed with the Secretary of the Tribunal within the time limit specified in the act under which the appeal is made. The Tribunal strives to be informal and accessible. However, there are certain procedures and time constraints that are imposed by law and by the Rules.

Rules

Under the Rules, the person launching the appeal (the appellant) has 60 days to submit to the Tribunal a document called a “brief”. Generally, the brief states under which act the appeal is launched, gives a description of the goods in issue and an indication of the points at issue between the appellant and the Minister of National Revenue or the CBSA (the respondent), and states why the appellant believes that the respondent's decision is incorrect. A copy of the brief must also be given to the respondent.

The respondent must also comply with time and procedural constraints. Ordinarily, within 60 days after having received the appellant's brief, the respondent must file with the Tribunal a brief setting forth the respondent's position and provide a copy to the appellant. The Secretary of the Tribunal then contacts both parties in order to schedule a hearing. Hearings are generally conducted in public. The Tribunal publishes a notice of the hearing in the Canada Gazette to allow other interested persons to attend. Depending on the complexity and precedential nature of the matter at issue, appeals will be heard by a panel of one or three members. Persons may intervene in an appeal by filing a notice stating the nature of their interest in the appeal and indicating the reason for intervening and how they would assist the Tribunal in the resolution of the appeal.

Hearings

An individual may present a case before the Tribunal in person or be represented by counsel. The respondent is generally represented by counsel from the Department of Justice. In accordance with rule 25 of the Rules, appeals can be heard by way of a hearing at which the parties or their counsel appear before the Tribunal, by way of videoconference or by way of written submissions (file hearing).

Hearing procedures are designed to ensure that the appellant and the respondent are given a full opportunity to make their cases. They also enable the Tribunal to have the best information possible to make a decision. As in a court of justice, the appellant and the respondent can call witnesses, and these witnesses are questioned under oath or affirmation by the opposing parties, as well as by Tribunal members. When all the evidence is gathered, parties may present arguments in support of their respective positions.

The Tribunal, on its own initiative or at the request of the appellant or the respondent, may decide to hold a hearing by way of written submissions. In that case, it publishes a notice in the Canada Gazette to allow other interested persons to participate.

Within 120 days of the hearing, the Tribunal tries to issue a decision on the matters in dispute, including the reasons for the decision.

If the appellant, the respondent or an intervener disagrees with the Tribunal's decision, the decision can be appealed on a question of law to the Federal Court of Appeal or, in the case of the Excise Tax Act, the Federal Court (where the case will be heard de novo by the court).

Extensions of Time

Under section 60.2 of the Customs Act, a person may apply to the Tribunal for an extension of time to file a request for a re-determination or a further re-determination with the President of the CBSA. Such an application may be granted by the Tribunal after either the President has refused an application under section 60.1 or 90 days have elapsed after the application was made and the person has not been notified of the President's decision. Under section 67.1, a person may make an application to the Tribunal for an extension of time within which to file a notice of appeal with the Tribunal. During the fiscal year, the Tribunal issued four orders under the Customs Act granting extensions of time. There were four requests under the Customs Act that were outstanding at the end of the fiscal year.

Under section 81.32 of the Excise Tax Act, a person may apply to the Tribunal for an extension of time in which to serve a notice of objection with the Minister of National Revenue under section 81.15 or 81.17 or file a notice of appeal with the Tribunal under section 81.19. During the fiscal year, the Tribunal issued three orders under the Excise Tax Act granting extensions of time. There were no requests under the Excise Tax Act that were outstanding at the end of the fiscal year.

Appeals Received and Heard

During the fiscal year, the Tribunal received 70 appeals, not counting an appeal that was received on remand from the Federal Court of Appeal for decision. The Tribunal heard 26 appeals, all under the Customs Act. It issued decisions on 31 appeals, which consisted of 29 appeals under the Customs Act and 2 under the Excise Tax Act. Eighty-two appeal cases were outstanding at the end of the fiscal year.

Appeals Before the Tribunal in Fiscal Year

Appeal No.	Appellant	Date of Decision	Status/Decision
Customs Act
AP-2006-023	Fritz Marketing Inc.	May 10, 2010	Appeal dismissed
AP-2008-011	Sarstedt Canada Inc.	April 30, 2010	Appeal allowed in part
AP-2008-012R	P.L. Light Systems Canada		In progress
AP-2008-019	Dorel Industries Inc.	May 18, 2010	Appeal withdrawn
AP-2008-022	Globe Electric Co. Inc.	April 16, 2010	Appeal dismissed
AP-2008-028	Cherry Stix Ltd.	May 10, 2010	Appeal allowed
AP-2009-003	CapsCanada® Corporation	July 2, 2010	Appeal dismissed
AP-2009-004	Wolseley Canada Inc.	January 18, 2011	Appeal dismissed
AP-2009-005	Les pièces d'auto Transit Inc.	July 28, 2010	Appeal dismissed
AP-2009-007	Sanus Systems	July 8, 2010	Appeal allowed
AP-2009-008	Wolseley Canada Inc.		Postponed
AP-2009-009	Nicholson and Cates Limited	July 6, 2010	File closed
AP-2009-012	S.F. Marketing Inc.	June 2, 2010	Appeal dismissed
AP-2009-013	Kverneland Group North America Inc.	April 30, 2010	Appeal dismissed
AP-2009-014	Transport Desgagnés Inc.		In progress
AP-2009-016	Tara Materials, Inc.	August 3, 2010	Appeal dismissed
AP-2009-017	Nutricia North America		In progress
AP-2009-019	Canadian Tire Corporation Ltd.	August 6, 2010	Appeal dismissed
AP-2009-044	Baldor Electric Canada Inc.	June 14, 2010	Appeal withdrawn
AP-2009-045	Sher-wood Hockey Inc.	February 10, 2011	Appeal dismissed
AP-2009-046	Igloo Vikski Inc.		Postponed
AP-2009-047	S.F. Marketing Inc.	June 2, 2010	Appeal dismissed
AP-2009-049	Evenflo Canada Inc.	May 19, 2010	Appeal allowed
AP-2009-050	Fruit of the Loom Canada, Inc.	February 9, 2011	Appeal withdrawn
AP-2009-052	A.M.A. Plastics Ltd.	September 23, 2010	Appeal allowed
AP-2009-054	Loblaw Companies Ltd.	August 25, 2010	Appeal withdrawn
AP-2009-055	Jeno Neuman et Fils Inc.	August 10, 2010	Appeal withdrawn
AP-2009-056	Future Product Sales Inc.	July 8, 2010	Appeal allowed
AP-2009-057	Leeza Distribution Inc.	August 17, 2010	Appeal dismissed
AP-2009-058	Jeno Neuman et Fils Inc.	August 10, 2010	Appeal withdrawn
AP-2009-059	Evenflo Canada Inc.	June 24, 2010	Appeal withdrawn
AP-2009-060	Rona Corporation	April 22, 2010	Appeal withdrawn
AP-2009-061	Criterion Catalysts & Technologies Canada Inc.	November 15, 2010	Appeal dismissed
AP-2009-063	Dorel Distribution Canada	September 3, 2010	Appeal withdrawn
AP-2009-064	Pexcor Manufacturing Company Ltd.		Postponed
AP-2009-065	Mathews Equipment Limited		Postponed
AP-2009-066	Danson Decor Inc.		In progress
AP-2009-067	Norcan Petroleum Inc.		Postponed
AP-2009-068	Sansivar Importing and Distributing	July 27, 2010	Appeal withdrawn
AP-2009-069	S. Guyatt	November 9, 2010	Appeal dismissed
AP-2009-070	Chariot Carriers Inc.	September 27, 2010	Appeal withdrawn
AP-2009-071	BMC Coaters Inc.	December 6, 2010	Appeal dismissed
AP-2009-072	Rona Corporation Inc.	February 15, 2011	Appeal dismissed
AP-2009-073	Ingram Micro Inc.	January 25, 2011	Appeal allowed
AP-2009-074	Sears Canada Inc.	October 25, 2010	Appeal withdrawn
AP-2009-076	Rutherford Controls International Corp.	January 26, 2011	Appeal dismissed
AP-2009-077	Hasbro Canada Corporation	June 25, 2010	Appeal withdrawn
AP-2009-078	Disco-Tech Industries Inc.		In progress
AP-2009-079	C. Kenney	July 26, 2010	Appeal withdrawn
AP-2009-080	M. Miner	January 20, 2011	Appeal allowed
AP-2009-081	Disco-Tech Industries Inc.		In progress
AP-2010-001	Micronutrition Pileje Inc.	November 12, 2010	Appeal withdrawn
AP-2010-002	Frito-Lay Canada, Inc.		Postponed
AP-2010-003	Rui Royal International Corp.	March 30, 2011	Appeal dismissed
AP-2010-004	Nestle Canada Inc.	February 23, 2011	Appeal withdrawn
AP-2010-005	HBC Imports c/o Zellers Inc.		In progress
AP-2010-006	Komatsu International (Canada) Inc.		Postponed
AP-2010-007	C.B. Powell Limited	August 11, 2010	Appeal dismissed
AP-2010-008	C.B. Powell Limited	August 11, 2010	Appeal dismissed
AP-2010-009	Dollarama S.E.C.	November 9, 2010	Appeal withdrawn
AP-2010-010	Raymond Industrial Equipment Limited	November 2, 2010	Appeal withdrawn
AP-2010-011	G C P Elastomeric Inc.		In progress
AP-2010-012	Oceanex Inc.	November 17, 2010	Appeal withdrawn
AP-2010-013	A. Gillis	March 21, 2011	Appeal withdrawn
AP-2010-014	Massive Prints, Inc.		In progress
AP-2010-015	Rona Corporation Inc.	November 26, 2010	Appeal withdrawn
AP-2010-016	R. A. Hayes		In progress
AP-2010-017	Steris Corporation Inc.	June 25, 2010	File closed
AP-2010-019	HBC Imports c/o Zellers Inc.		In progress
AP-2010-020	Jeno Neuman et Fils Inc.	October 14, 2010	Appeal withdrawn
AP-2010-021	Casio Canada Ltd.	February 16, 2011	Appeal withdrawn
AP-2010-022	Loblaw Companies Limited		In progress
AP-2010-023	Lestika Inc.	September 2, 2010	Appeal withdrawn
AP-2010-024	Ulextra Inc.		In progress
AP-2010-025	Masai Canada Limited		In progress
AP-2010-026	Superior Glove Works Limited		Postponed
AP-2010-027	Kinedyne Canada Limited		In progress
AP-2010-028	J. Le	July 15, 2010	File closed
AP-2010-029	Terralink Horticulture Inc.		Postponed
AP-2010-030	Fabtrends Knit Co. Inc.	February 17, 2011	Appeal withdrawn
AP-2010-031	Volpak Inc.	November 8, 2010	Appeal dismissed
AP-2010-032	Wellmaster Pipe and Supply Inc.		Postponed
AP-2010-033	Contech Holdings Canada Inc.		In progress
AP-2010-034	Olympic International Agencies Inc.	February 7, 2011	Appeal withdrawn
AP-2010-035	Wal-Mart Canada Corporation		In progress
AP-2010-036	Accessoires Sportracks Inc. de Thule Canada Inc.		In progress
AP-2010-037	Great West Van Conversions Inc.		In progress
AP-2010-038	Synnex Canada Ltd.	December 3, 2010	Appeal withdrawn
AP-2010-040	Équipement Loadmaster Ltée		In progress
AP-2010-041	Royal Canadian Mint		In progress
AP-2010-042	Contech Holdings Canada Inc.		Postponed
AP-2010-043	Canadian Tire Corporation Ltd.		In progress
AP-2010-044	Wolseley Canada Inc.	January 7, 2011	Appeal withdrawn
AP-2010-045	R. Bell	March 17, 2011	Appeal withdrawn
AP-2010-046	VGI Village Green Imports		In progress
AP-2010-047	Triple E Canada Ltd.		Postponed
AP-2010-048	Pleasure-Way Industries Ltd.		Postponed
AP-2010-049	Leisure Travel Vanx (1999) Ltd.		Postponed
AP-2010-050	J.M. Goldberg	December 6, 2010	File closed
AP-2010-051	T. Swiatek	January 25, 2011	Appeal withdrawn
AP-2010-052	H. A. Kidd And Company Limited		In progress
AP-2010-053	North American Tea and Coffee Inc.		In progress
AP-2010-054	Yamaha Canada Music Ltd.		In progress
AP-2010-055	Tyco Safety Products Canada Ltd. (formerly Digital Security Controls Ltd.)		In progress
AP-2010-056	Dole Foods of Canada Ltd.		In progress
AP-2010-057	RLogistics LP		In progress
AP-2010-058	9133-7048 Quebec Inc.		In progress
AP-2010-059	Dollarama S.E.C.		Postponed
AP-2010-060	Outdoor Gear Canada		In progress
AP-2010-061	M. Farid		In progress
AP-2010-062	Irwin Naturals		In progress
AP-2010-064	Automed Technologies (Canada) Inc.		In progress
AP-2010-065	Beckman Coulter Canada Inc.		In progress
AP-2010-066	CE Franklin Ltd.		In progress
AP-2010-067	R. Falk		In progress
AP-2010-068	Kwality Imports		In progress
AP-2010-069	Canadian Tire Corporation Limited		In progress
AP-2010-070	Cambridge Brass Inc.		In progress
Excise Tax Act
AP-2008-030	Arnold Bros. Transport Ltd. and Bison Transport Inc.	April 30, 2010	Appeal dismissed
AP-2009-020	Laidlaw Carriers PSC Inc.		Postponed
AP-2009-021	Laidlaw Carriers Bulk GP Inc.		Postponed
AP-2009-022	Laidlaw Carriers Van GP Inc.		Postponed
AP-2009-023	Laidlaw Carriers Flatbed GP Inc.		Postponed
AP-2009-024	Transnat Express Inc.		Postponed
AP-2009-025	Golden Eagle Express Inc.		Postponed
AP-2009-026	Le Groupe G3 Inc.		Postponed
AP-2009-027	Vedder Transport Ltd.		Postponed
AP-2009-028	Warren Gibson Ltd.		Postponed
AP-2009-029	2810026 Canada Ltd.		Postponed
AP-2009-030	Warren Gibson Ltd.		Postponed
AP-2009-031	Q-Line Trucking Ltd.		Postponed
AP-2009-032	GST 2000 Inc.		Postponed
AP-2009-033	J & F Trucking Corporation		Postponed
AP-2009-034	Reimer Express Lines Ltd.		Postponed
AP-2009-035	Celadon Canada Inc.		Postponed
AP-2009-036	Cobra Trucking Ltd.		Postponed
AP-2009-037	Motrux Inc.		Postponed
AP-2009-038	L.E. Walker Transport Ltd.		Postponed
AP-2009-039	Distribution Marcel Dion Inc.		Postponed
AP-2009-040	Reimer Express Lines Ltd.		Postponed
AP-2009-041	Direct Integrated Transportation		Postponed
AP-2009-042	Harris Transport Ltd.		Postponed
AP-2009-043	Benson Tank Lines Ltd.		Postponed
AP-2009-048	Arnold Bros. Transport Ltd. and Bison Transport Inc.	April 30, 2010	Appeal dismissed
Special Import Measures Act
AP-2010-018	Amcan Jumax Inc.		In progress
AP-2010-039	BMI Canada Inc.		In progress
AP-2010-063	Toyota Tshusho America, Inc.		In progress

Summary of Selected Decisions

Of the many cases heard by the Tribunal, several decisions stand out, either because of the particular nature of the product in issue or because of the legal significance of the case. Specifically, there are three main categories of appeals under the Customs Act: tariff classification, value for duty and rules of origin. Brief summaries of a representative sample of such decisions follow, the four appeals having been heard under the Customs Act. These summaries have been prepared for general information purposes only and are intended to be of no legal value.

AP-2008-028—Cherry Stix Ltd. v. President of the Canada Border Services Agency

As part of this appeal, the Tribunal held a one-day public hearing in Ottawa. There were 2 participants in the appeal, and 1 witness appeared before the Tribunal. The official record consisted of 29 exhibits.

This was an appeal pursuant to subsection 67(1) of the Customs Act from a decision of the CBSA made pursuant to subsection 60(4) concerning the value for duty of various styles and colours of women's T-shirts imported by Cherry Stix Ltd. (Cherry Stix) and sold to Wal-Mart. The issue in this appeal was whether the CBSA was correct in applying the transaction value to determine the value for duty of the goods in issue. The transaction value is the price paid or payable for the goods, subject to some adjustments required by the Customs Act.

The Tribunal considered the following three statutory conditions that must be met before the transaction value can be used to appraise the value for duty: (1) there must be a sale for export; (2) there must be a purchaser in Canada; and (3) the price paid or payable must be ascertainable. Only the first condition, whether there was a sale for export, was in dispute.

The CBSA urged the Tribunal to examine the “commercial realities” of the arrangements between Cherry Stix, the importer, and Wal-Mart, the eventual purchaser. The CBSA argued that the true intention of Cherry Stix and Wal-Mart was manifest in their blanket order agreement, which covered the price, quantity and delivery dates of the items. The CBSA also argued, although without providing evidence, that Parliament's intent was that the transaction method should be the primary method of appraisal.

Cherry Stix argued that the blanket order could not be a sale for export because there was no sale, only an agreement to sell. Cherry Stix argued that, for a sale to take place, there would have to be a transfer of title and that Wal-Mart only took title to the goods when they were delivered by Cherry Stix to Wal-Mart's warehouse in Canada.

The Tribunal carefully examined the whole array of contractual documents between Cherry Stix and Wal-Mart, as well as the conduct of the parties, with a view to determining when they intended the title to transfer from one to the other.

On May 10, 2010, the Tribunal concluded that the completion of the sale and, therefore, the transfer of title to the goods in issue did not occur until Wal-Mart had placed its purchase order with Cherry Stix and accepted delivery of the goods, which was after the goods had been imported into Canada. The Tribunal determined that there was therefore no “sale for export” between Cherry Stix and Wal-Mart; therefore, the transaction value method was not applicable in this case. Accordingly, the appeal was allowed.

AP-2009-003—CapsCanada® Corporation v. President of the Canada Border Services Agency

As part of this appeal, the Tribunal held a one-day public hearing in Ottawa. There were 2 participants in the appeal, and 5 witnesses appeared before the Tribunal. The official record consisted of 30 exhibits.

This was an appeal pursuant to subsection 67(1) of the Customs Act from a decision of the CBSA made pursuant to subsection 60(4), concerning a request for a re-determination. The issue in this appeal was whether K-CAPS®, imported by CapsCanada® Corporation (CapsCanada), were properly classified under tariff item No. 3923.90.90 as other articles of plastics for the conveyance or packing of goods, as determined by the CBSA, or should have been classified under tariff item No. 9602.00.10 as gelatin capsules for pharmaceutical products, worked, unhardened gelatin (except gelatin of heading No. 35.03), as claimed by CapsCanada.

The Tribunal noted that the goods in issue were “articles” and that, according to the terms of the heading in the nomenclature, they were used “to convey goods”, on the basis of the evidence that showed that they delivered, carried, transmitted or transferred, orally, a single dosage of an active pharmaceutical ingredient (i.e. medicine) into the human body. Furthermore, the Tribunal found that the goods in issue met the definition of “plastics”. The Tribunal heard testimony that the goods in issue were made of hydroxypropyl methylcellulose (HPMC), a chemical derivative of cellulose extracted from softwood pulp. The evidence showed that HPMC is a “synthesized” product, a “polymer”, capable, either at the moment of polymerisation or at some subsequent stage, of being formed under external influence, such as heat and pressure in this case. Therefore, the Tribunal found that the goods in issue were prime facie classifiable under tariff item No. 3923.90.90.

In consideration of tariff item No. 9602.00.10, and on the basis of the evidence on the record, the Tribunal determined that the term “gelatin” refers to a substance derived from animal materials, and the Tribunal noted that the goods in issue were made of HPMC, a cellulose ether. Therefore, the Tribunal found that the goods in issue were not “. . . worked, unhardened gelatin (except gelatin of heading 35.03) and articles of unhardened gelatin.” The Tribunal also found that, by virtue of their composition, that is, HPMC, the goods in issue did not qualify as “[w]orked vegetable or mineral carving materials and articles of these materials”, nor did they qualify as “moulded or carved articles of . . . natural gums or natural resins or of modelling pastes, and other moulded or carved articles, not elsewhere specified or included”. The Tribunal noted that the goods in issue were not made from natural resins, in light of the fact that HPMC is a synthesized product, and that they were not moulded articles of various materials not specified or included in other headings of the nomenclature because the Tribunal determined that they were prime facie classifiable in heading No. 39.26.

Consequently, it was the Tribunal's view that the goods in issue should be regarded as plastic articles for the conveyance of goods, as determined by the CBSA. Accordingly, the appeal was dismissed.

AP-2009-016—Tara Materials, Inc. v. President of the Canada Border Services Agency

As part of this appeal, the Tribunal held a one-day public hearing in Ottawa. There were 2 participants in the appeal, and 2 witnesses appeared before the Tribunal. The official record consisted of 27 exhibits.

This was an appeal pursuant to subsection 67(1) of the Customs Act from a decision of the CBSA made pursuant to subsection 60(4). The issue in this appeal was whether the totality of the finished artist canvases exported from the United States to Canada by Tara Materials, Inc. (Tara) were entitled to the benefit of the United States Tariff, as claimed by Tara, or whether only 72 percent of the goods in issue were entitled to such preferential treatment, as determined by the CBSA. Entitlement to the benefit of the United States Tariff, in this appeal, depended entirely on whether the finished artist canvases were determined to be originating goods.

The disagreement between the parties stemmed from their diverging views regarding the manner in which the provisions of the NAFTA Rules of Origin Regulations pertaining to the inventory management methods of fungible materials and fungible goods were to be interpreted and applied. The Tribunal found that paragraphs 7(16)(a) and (b) were not mutually exclusive and must be read together. In this instance, the Tribunal decided that both paragraphs were applicable and that, while the parties had agreed that the conditions necessary for the application of paragraph 7(16)(a) were present, the conditions necessary for the application of paragraph 7(16)(b) were also present. The Tribunal found that the finished artist canvases met the definition of fungible goods, that they were physically combined or mixed in inventory and that they did not undergo production or any other operation prior to their exportation. Therefore, in accordance with paragraph 7(16)(b), it was necessary for Tara to choose an inventory management method in order to determine whether its finished artist canvases were originating goods. In addition, the Tribunal found that subsection 7(16.1) was applicable, because the fungible materials and fungible goods had been withdrawn from the same inventory. Subsequently, the Tribunal found that the inventory management method to be used for the fungible goods had to be the same as the inventory management method used for the fungible materials. As Tara had used the average inventory management method for its fungible materials, and the CBSA had determined that 72 percent of the fungible materials used to produce the finished artist canvases qualified as originating goods, it followed that 72 percent of the finished artist canvases also qualified as originating goods.

On August 3, 2010, the Tribunal found that the CBSA was correct in determining that only 72 percent of the finished artist canvases were entitled to the benefit of the United States Tariff. Accordingly, the appeal was dismissed.

AP-2009-080—M. Miner v. President of the Canada Border Services Agency

As part of this appeal, the Tribunal held a one-day file hearing by way of written submissions in accordance with rules 25 and 25.1 of the Canadian International Trade Tribunal Rules. There were 2 participants in the appeal. The official record consisted of 12 exhibits.

This was an appeal pursuant to subsection 67(1) of the Customs Act from a decision of the CBSA made pursuant to subsection 60(4). The issue in this appeal was whether two wooden tubes that had been detained by the CBSA were properly classified under tariff item No. 9898.00.00 of the schedule to the Customs Tariff as prohibited weapons. In order to determine if the goods were classifiable under this tariff item, the Tribunal had to determine whether they met the definition of weapon and prohibited weapon under subsection 84(1) of the Criminal Code. Specifically, the Tribunal had to determine whether the goods were prescribed as being prohibited weapons in Former Prohibited Weapons Order, No. 6, that is, devices commonly known as “Yaqua Blowguns”, being tubes or pipes designed for the purpose of shooting arrows or darts by the breath, and any similar devices.

In this appeal, the Tribunal examined the text of Former Prohibited Weapons Order, No. 6 and was guided by the canons of statutory interpretation. The Tribunal noted that the term “Yaqua Blowgun” had been specifically chosen by the legislature when adopting the provisions; however, no evidence had been submitted as to what constituted the “Yaqua” qualities of such a device. Furthermore, no evidence had been submitted as to the functionality of the goods, and contradictory arguments were submitted as to whether the goods had been designed for the purpose of shooting arrows or darts by the breath. The Tribunal was also unable to determine if the goods were devices similar to the “Yaqua Blowgun”, as that device had not been clearly identified. In addition, the Tribunal noted that the CBSA had presented no technical or functional evidence or expertise as to the two wooden tubes in order for the Tribunal to determine whether the goods met the definition of a weapon, as defined in the Criminal Code.

In reaching its decision, the Tribunal was mindful of Parliament's overarching objective of prohibiting the importation of dangerous devices, but ultimately, could not determine that the goods met the definition of “Yaqua Blowgun” provided by the legislation. Accordingly, on January 20, 2011, the Tribunal found that the goods in issue did not meet the definition of a weapon or prohibited weapon. Subsequently, they were not classifiable as prohibited weapons and did not fall under the prohibition set out in section 136 of the Customs Tariff. The appeal was therefore allowed.

Appeal Cases Before the Federal Court of Appeal or the Federal Court

Appeal No.	Appellant Before the Tribunal	Appellant Before the Court	File No./Status
AP-2002-007	King West Communications Inc.	King West Communications Inc.	T—1335—03 File closed (September 3, 2010)
AP-2002-008	The Russo Group Inc.	The Russo Group Inc.	T—1332—03 File closed (September 3, 2010)
AP-2007-024	1068827 Ontario Inc. o/a Grace Motors	1068827 Ontario Inc. o/a Grace Motors	A—621—08 (became T—407—09) Appeal dismissed (January 13, 2011) A—66—11
AP-2007-028	Automed Technologies Inc.	Automed Technologies Inc.	A—279—09 Appeal dismissed (September 21, 2010)
AP-2008-012	P.L. Light Systems Canada Inc.	President of the Canada Border Services Agency	A—497—09 Appeal allowed (September 9, 2010)
AP-2009-010	Wolseley Engineered Pipe Group	Wolseley Engineered Pipe Group	A—223—10
	Wolseley Engineered Pipe Group	President of the Canada Border Services Agency	A—226—10 Appeal discontinued (June 17, 2010)
AP-2009-013	Kverneland Group North America Inc.	Kverneland Group North America Inc.	A—194—10 Appeal dismissed (March 21, 2011)
AP-2009-005	Les pièces d'auto Transit Inc.	Les pièces d'auto Transit Inc.	A—291—10
AP-2009-016	Tara Materials, Inc.	Tara Materials, Inc.	A—389—10
AP-2009-019	Canadian Tire Corporation Limited	Canadian Tire Corporation Limited	A—324—10
AP-2010-007 and AP-2010-008	C.B. Powell Limited	C.B. Powell Limited	A—314—10
Note: The Tribunal has made reasonable efforts to ensure that the information listed is complete. However, since the Tribunal does not always participate in appeals to the Federal Court of Appeal or the Federal Court, it is unable to confirm that the list contains all appeals or decisions rendered that were before the Federal Court of Appeal and the Federal Court.