Thurlow, J:—In my view the second, third and fourth points put forward by counsel for the respondents as justifying leave to appeal raise questions that are fairly arguable. I am not persuaded that the same can be said of the first or the fifth points so put forward.
To say that there are three arguable points does not, however, resolve the problem whether the question involved in the case is one which ought to be submitted to the Supreme Court for decision. I do not think it was intended tnat leave to appeal should be granted either as a matter of course or simply because a question is interesting or difficult or arguable or because the decision will serve as a guide to the parties and to others for the future. Rarely would there be a case involving a point of taxation law that would not qualify for such reasons.
On the other hand there are cases which raise an issue or question so fundamental that it is immediately apparent that the question is one that ought to be determined by the Supreme Court. As examples one can think of important constitutional questions and serious questions arising on the Canadian Bill of Rights. To my mind the case of Lavell v Attorney General of Canada, [1971] FC 347, in which leave was granted by this Court, fell into that category.
There are undoubtedly other types of cases as well which will meet the test but save when it is clear that a case is important enough to warrant an affirmative answer to the question posed by subsection 31(2) of the Federal Court Act the proper course for this Court is, I think, to decline to grant leave and thus leave it to the Supreme Court to determine in which of such cases leave to appeal should be granted.
So approaching the present case I reach the conclusion that leave to appeal should be refused.
The judgment in my view involves nothing more striking or fundamental than the interpretation of particular provisions of the Antidumping Act and the Customs Act, dealing, in each case, with how imported goods are to be valued when other statutory provisions for their valuation fail. The judgment is of some direct or indirect importance to the respondents and is no doubt of some general interest to foreign exporters and domestic importers as well as to persons interested in tax jurisprudence. In it, there are, as I have said, several arguable points, One of the enactments, the Anti-dumping Act, is comparatively new and there has not been occasion. for it or for the somewhat older provision of the Customs Act to be passed upon by the Supreme Court. Notwithstanding these features of the matter, however, the interpretation to be put upon these provisions is not, as I see it, a question of such general or fundamental importance or interest that this Court should regard it as one that “ought to be submitted to the Supreme Court for decision”, particularly since it is open to that Court, notwithstanding the denial of leave by this Court, to give leave if it sees fit to do so, whether it considers the question raised to meet the test of subsection 31(2) of the Federal Court Act or not.
I, therefore, concur in the disposition of the application that has been proposed by the Chief Justice.