HBC IMPORTS C/O ZELLERS INC.
PRESIDENT OF THE CANADA BORDER SERVICES AGENCY
Appeal No. AP-2010-005
Friday, November 19, 2010
Wednesday, December 22, 2010
TABLE OF CONTENTS
IN THE MATTER OF an appeal filed by HBC Imports c/o Zellers Inc.
on May 7, 2010, pursuant to subsection 67(1) of the Customs
Act, R.S.C. 1985 (2d Supp.), c. 1;
AND IN THE MATTER OF a motion filed by HBC Imports c/o Zellers
Inc. on October 27, 2010, pursuant to rule 24 of the
Canadian International Trade Tribunal Rules,
S.O.R./91-499, and written representations filed by the President
of the Canada Border Services Agency on November 5, 2010, and HBC
Imports c/o Zellers Inc. on November 12, 2010, for an order
dismissing the pleadings of the President of the Canada Border
Services Agency and allowing the appeal.
HBC IMPORTS C/O ZELLERS INC. Appellant
THE PRESIDENT OF THE CANADA BORDER SERVICES
The motion is denied. The hearing of this appeal will be held,
as scheduled, on December 7, 2010, at 9:30 a.m.
The statement of reasons will follow at a later date.
BACKGROUND AND ISSUE
1. This is a preliminary motion in an appeal filed by HBC
Imports c/o Zellers Inc. (HBC) on May 7, 2010, pursuant
to subsection 67(1) of the Customs Act,1
decision dated February 9, 2010, made by the President of the
Canada Border Services Agency (CBSA) regarding the tariff
classification of imported products known as “Pop-Up Hampers” (the
goods in issue).
2. On October 27, 2010, HBC filed a motion with the Canadian
International Trade Tribunal (the Tribunal), pursuant to rule
24 of the Canadian International Trade Tribunal
for an order dismissing the pleadings of the
CBSA and allowing the appeal.
3. On November 5, 2010, the CBSA filed a response to HBC’s
4. On November 12, 2010, HBC filed a reply to the CBSA’s
response to HBC’s motion.
POSITIONS OF THE
5. HBC submitted that the Tribunal has jurisdiction and
authority, pursuant to subsection 17(2) of the Canadian
International Trade Tribunal Act
and rule 5, paragraph
18(1)(f) and rule 24 of the Rules, to grant the
motion. HBC relied in part on the Tribunal’s procedural decision in
GFT Mode Canada Inc. v. Deputy M.N.R.,4
in which the
Tribunal determined that it has jurisdiction, on a preliminary
motion, to strike out pleadings and dismiss an appeal when it is
“plain and obvious” or “beyond doubt” that the pleadings disclose
no reasonable cause of action.5
6. HBC submitted that the conditions outlined in GFT Mode
Canada have been met in the present appeal. In its
submissions, HBC argued that the facts in this case are not in
dispute and that the CBSA has no chance of success in the appeal.
HBC further submitted that, when one party has no chance of
success, an appeal should be allowed on a preliminary
7. The CBSA did not dispute the Tribunal’s jurisdiction to
strike out pleadings or to dismiss an appeal on a preliminary
motion, but argued that the terms “plain and obvious” or “beyond
doubt” create a very high threshold that was not met in this case.
The CBSA advised the Tribunal to adopt a cautious approach to the
use of preliminary motions to dispose of appeals. The CBSA made
reference to subsection 67(2) of the Act which states that
the Tribunal shall provide for a hearing.7
8. The CBSA further argued that, by bringing this motion, HBC
was asking the Tribunal to make a premature determination on the
questions that are central to the appeal. The CBSA noted that,
although the material facts are not in dispute, the parties do not
agree on the appropriate application of the General Rules
for the Interpretation of the Harmonized System.8
suggested that the two approaches to the General Rules
must be fully considered by the Tribunal in order to arrive at the
appropriate tariff classification.9
9. In GFT Mode Canada, the Tribunal held that it has
jurisdiction, on a preliminary motion, to strike out pleadings and
dismiss an appeal but that it will only do so when it is “plain and
obvious” or “beyond doubt” that the pleadings disclose no
reasonable cause of action. The Tribunal considers this to be a
very high threshold.
10. In reaching its conclusion in GFT Mode Canada, the
Tribunal indicated that section 67 of the Act does not
give parties an unrestricted right to a hearing, even when one is
Furthermore, the Tribunal reiterated that
it has “. . . discretion to determine the scope and
nature of a hearing, including whether, in these very unique cases,
a hearing should be held at all.”11
The Tribunal held that it is
possible to determine, on a preliminary motion, that legal
arguments made by one or more of the parties have no chance of
success and that, where that is the case and there are no facts in
dispute, the Tribunal may decide that there is no case to be
However, the Tribunal noted that such
circumstances are rare.
11. In the present motion, HBC is in effect asking the Tribunal
to make a determination in respect of the tariff classification of
goods without the benefit of a hearing and without considering the
CBSA’s arguments. The present case does not meet the standard
12. The Tribunal is of the view that the present case is not one
in which the outcome is “plain and obvious” or “beyond doubt”. The
Tribunal has not been convinced that the CBSA’s position has no
chance of success, and the proper tariff classification of the
goods has not been conclusively established by HBC.
13. By holding the hearing as scheduled, the Tribunal maintains
its ability to consider fully the positions of the parties and the
applicability of the relevant tariff classification provisions in
order to arrive at the proper tariff classification of the goods in
14. For the foregoing reasons, the Tribunal finds that it cannot
allow the appeal on this preliminary motion.
15. The motion is denied. The hearing of this appeal will be
held, as scheduled, on December 7, 2010, at 9:30 a.m.
. R.S.C. 1985 (2d Supp.), c. 1
. S.O.R./91-499 [Rules].
. R.S.C. 1985 (4th Supp.) c. 47.
. (18 May 2000), AP-96-046 and AP-96-074
[GFT Mode Canada].
. Tribunal Exhibit AP-2010-005-08A at paras.
. Ibid. at paras. 4-7.
. Tribunal Exhibit AP-2010-005-10A at paras.
. S.C. 1997, c. 36, schedule [General
. Tribunal Exhibit AP-2010-005-10A at paras.
. GFT Mode Canada at 2.
. Ibid. at 2-3.
. Ibid. at 3.