EASTERN DIVISION HENRY SCHEIN ASH ARCONA INC.
v.
PRESIDENT OF THE CANADA BORDER SERVICES AGENCY
Appeal No. AP-2013-029R

Decision and reasons issued
Monday, August 15, 2016

TABLE OF CONTENTS

• DECISION
• STATEMENT OF REASONS
  • BACKGROUND
  • PRELIMINARY ISSUE
  • ANALYSIS
    • Heading No. 90.18
    • Heading No. 40.15
  • CONCLUSION
  • DECISION

 

IN THE MATTER OF an appeal heard on February 27, 2014, 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 Federal Court of Appeal dated October 20, 2015, which set aside the decision of the Canadian International Trade Tribunal in Appeal No. AP-2013-029, and remitted the matter back to the Canadian International Trade Tribunal.

BETWEEN

EASTERN DIVISION HENRY SCHEIN ASH ARCONA INC. Appellant

AND

THE PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent

DECISION

The appeal is dismissed.

Jason W. Downey
Jason W. Downey
Presiding Member

Place of Hearing: Ottawa, Ontario
Date of Hearing: July 8, 2016

Tribunal Member: Jason W. Downey, Presiding Member

Counsel for the Tribunal: Alexandra Pietrzak

Registrar Officer: Sara Pelletier

PARTICIPANTS:

Appellant	Counsel/Representative
Eastern Division Henry Schein Ash Arcona Inc.	Michael Kaylor

 

Respondent	Counsel/Representative
President of the Canada Border Services Agency	Kirk Shannon

Please address all communications to:

The Registrar
Secretariat to the Canadian International Trade Tribunal
333 Laurier Avenue West
15th Floor
Ottawa, Ontario  K1A 0G7

Telephone: 613-993-3595
Fax: 613-990-2439
E-mail: citt-tcce@tribunal.gc.ca

STATEMENT OF REASONS

BACKGROUND

1. This remand is further to a judgment^[1] of the Federal Court of Appeal (the Court) dated October 20, 2015, concerning the decision of the Canadian International Trade Tribunal (the Tribunal) in Eastern Division Henry Schein Ash Arcona Inc. v. President of the Canada Border Services Agency.^[2] In its decision, the Tribunal dismissed the appeal and held that the two types of single-use protective gloves made of vulcanized rubber^[3] (the goods in issue) were properly classified under tariff item No. 4015.19.90 of the schedule to the Customs Tariff^[4] as other articles of apparel and clothing accessories (including gloves, mittens and mitts), for all purposes, of vulcanized rubber other than hard rubber.
2. Eastern Division Henry Schein Ash Arcona Inc. (Henry Schein) filed an appeal of the Tribunal’s decision with the Court on August 14, 2014.
3. On October 20, 2015, the Court allowed the appeal on the basis that the Tribunal did not consider Note 2(e) to Chapter 40 and that it was unclear whether the Tribunal concluded that the goods in issue did not fall in Chapter 90.^[5]
4. As a result, the Court remitted the matter back to the Tribunal with the direction that the appeal be re-determined on the basis of the existing record.

PRELIMINARY ISSUE

5. On November 16, 2015, Henry Schein requested that the parties be able to file written representations concerning the issues identified by the Court in its October 20, 2015, decision.
6. On November 19, 2015, the President of the Canada Border Services Agency (CBSA) wrote to object to Henry Schein’s request. The CBSA noted that, in sending this matter back to the Tribunal, the Court specified that the Tribunal make a re-determination on the basis of the existing record. The CBSA argued that the Tribunal was therefore not permitted to accept any new evidence or argument from the parties.
7. On November 20, 2015, after considering the submissions from the parties together with the Court’s direction, the Tribunal wrote to notify the parties that it would not accept any further written representations. The Tribunal noted that the Court clearly directed the Tribunal to re-determine the appeal “based on the existing record”. The Tribunal found that admitting further written submissions onto the record would directly contradict the Court’s explicit instructions.

ANALYSIS

8. The issue in this remand is whether the Tribunal correctly determined that the goods in issue were properly classified under tariff item No. 4015.19.90.
9. To begin, Note 2(e) to Chapter 40 provides as follows:

   2. This Chapter does not cover:

   . . . 

   (e) Articles of Chapter 90, 92, 94 or 96 . . . .

10. As such, if the goods in issue are classified in Chapter 90, they cannot also be classified in Chapter 40 by virtue of Note 2(e) to Chapter 40. Therefore, the Tribunal’s analysis must begin with the suggested classification under heading No. 90.18.

Heading No. 90.18

11. As noted in the original decision, in order to be classified in heading No. 90.18, the goods in issue must be “[i]nstruments and appliances used in medical, surgical, or veterinary sciences, including scinitigraphic apparatus, other electro-medical apparatus and sight-testing instruments.” Moreover, the explanatory notes to heading No. 90.18 state that the “heading covers a very wide range of instruments and appliances which, in the vast majority of cases, are used only in professional practice (e.g., by doctors, surgeons, dentists, veterinary surgeons, midwives), either to make a diagnosis, to prevent or treat an illness or to operate, etc.” [emphasis added]. Thus, while the goods in issue appear to be used primarily by dentists for examinations done in their professional practice, the crucial question is whether the goods in issue may be considered instruments or appliances.
12. The Customs Tariff does not contain a general definition of what constitutes an “instrument or appliance”. However, the terms “instrument” and “appliance” are defined in the Merriam-Webster’s Collegiate Dictionary^[7] as follows:

    instrument 2 b : one used by another as means or aid : DUPE, TOOL. 3 : IMPLEMENT; esp : one designed for precision work.^[8]

    appliance 2 a : a piece of equipment for adapting a tool or machine to a special purpose . . . b : an instrument or device designed for a particular use or function . . .^[9]

    The terms “tool” and “implement” are defined as follows:

    tool 1 a : a handheld device that aids in accomplishing a task 2 a : something (as an instrument or apparatus) used in performing an operation or necessary in the practice of a vocation or profession . . .^[10]

    implement 2 : a device used in the performance of a task . . . syn IMPLEMENT, TOOL, INSTRUMENT, APPLIANCE, UTENSIL mean a relatively simple device for performing work.^[11]

13. The Canadian Oxford Dictionary^[12] essentially has similar definitions of “instrument” and “appliance”, while the terms “tool” and “implement” are defined as follows:

    tool 1 a any device or implement used to carry out mechanical functions whether manually or by a machine. 2 a thing used in an occupation or pursuit . . . .^[13]

    implement 1 a tool, instrument, or utensil.^[14]

14. In the Tribunal’s view, the definitions noted above demonstrate that an “instrument” is a tool or implement capable of delicate or precision work, while “appliance” refers to a more complex tool or instrument.^[15] The terms “tool” and “implement” appear to be quite synonymous whereas the term “tool” on its own appears to be defined by a handheld device used in accomplishing a specific task, even mechanically.
15. As stated by the witness for Henry Schein during the hearing of February 27, 2014, the goods in issue are designed for dentists to wear as a protective barrier to prevent fluids from transferring from the patient to the dentist during dental work; they do not do the work themselves.^[16] Thus, the Tribunal finds that the goods in issue are not devices or instruments designed for precision work, nor appliances or tools within the meaning of heading No. 90.18. While the goods in issue may be intended for use in conjunction with dental instruments, implements or tools, they themselves are not such devices.
16. Having examined the evidence on the existing record, the Tribunal finds that the goods in issue cannot be classified in heading No. 90.18.

Heading No. 40.15

17. For the reasons set out in its decision of May 20, 2014, the Tribunal finds that the goods in issue are properly classified in heading No. 40.15 as other articles of apparel and clothing accessories (including gloves, mittens, and mitts), for all purposes, of vulcanized rubber other than hard rubber.

CONCLUSION

18. In accordance with Rule 1 of the General Rules, the Tribunal finds that the goods in issue are properly classified in heading No. 40.15, specifically under tariff item No. 4015.19.90, as articles of apparel and clothing accessories (including gloves, mittens, and mitts), for all purposes, of vulcanized rubber other than hard rubber.

DECISION

19. The appeal is dismissed.