Date: 20100122
Docket: T-1420-09
Citation: 2010 FC 78
Ottawa, Ontario,
January 22, 2010
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
Toyota
Tsusho America inc.
Applicant
and
CANADA BORDER SERVICES AGENCY
and
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is a motion by the Canada Border Services
Agency (CBSA) and the Attorney General of Canada (together, the respondents) to
strike out a notice of application for judicial review of a purported decision
of the CBSA brought by Toyota Tsusho America Inc. (the applicant).
[2]
On September 25, 2008, the applicant, through
its solicitor, contacted the CBSA in order to know its position on whether
Chinese-origin steel plate containing boron (boron steel plate) would be
subject to an anti-dumping order on Chinese-origin steel plate issued by the
Canadian International Trade Tribunal (CITT Order) and, therefore, whether
anti-dumping duty would be collected should boron steel plate be imported to
Canada.
[3]
A director of the CBSA verbally advised the applicant
that boron steel plate would not be considered to be covered by the CITT Order.
Shortly thereafter, the applicant faxed a request to the CBSA for a written confirmation
of this position. The CBSA never received the fax, and the applicant eventually
repeated its request by e-mail on November 25, 2008.
[4]
It seems that in mid-November, certain Canadian
steel producers also requested that the CBSA make known its position on the
applicability of the CITT Order to boron steel plate, arguing that the CITT
Order was applicable.
[5]
Without receiving a response to its request, the
applicant shipped certain quantities of boron steel plate to Canada, “relying”, as it put it, on the
CBSA advice of September 25, 2008.
[6]
However, without warning the applicant that it
was considering departing from the position it previously took, the CBSA issued,
on July 28, 2009, a determination that boron steel plate would be subject to
the CITT Order and, accordingly, to the anti-dumping duty (the CBSA
Determination).
[7]
On November 9, 2009, the CBSA issued Detailed
Adjustment Statements claiming anti-dumping duties in respect of the applicant’s
importations of boron steel plate.
[8]
The applicant filed a notice of application for
judicial review of the CBSA Determination. The principal relief it seeks is “an
Order quashing or setting aside” the CBSA Determination. In the alternative,
the applicant seeks orders preventing the CBSA from “implementing” the CBSA
Determination, and issuing or implementing a new determination concerning boron
steel plate.
[9]
As grounds for its application, the applicant
alleges various breaches of the CBSA’s duty of fairness towards it, such as a
failure to notify it that it may reverse the position it allegedly took during
the initial conversation with the applicant’s counsel on September 25, 2008; a
failure to consult it prior to issuing the CBSA Determination; and a failure to
act with due dispatch. Underlying these allegations are the applicant’s claims
that it relied on representations made to its counsel on September 25, 2008;
that the CBSA knew of its reliance; and that the CBSA is, therefore,
responsible for the costs it has incurred as a result of relying on these representations.
[10]
The respondents now seek to have this notice of
application struck out.
[11]
The Federal Court of Appeal held, in David Bull Laboratories (Canada) Inc. v.
Pharmacia Inc., [1995] 1 F.C. 588, [1994] F.C.J. No.
1629, at par. 15 that it (and this Court) may have
jurisdiction to strike out a notice of application for judicial review “which is so clearly improper as to be bereft of any
possibility of success.” In the same breath, however, it warned that cases
where doing so is appropriate “must be very exceptional.”
[12]
As the Court explained at par. 10 of its
decision, the absence of requirements as to precision of pleadings comparable
to those applicable to actions make striking out a notice of application
riskier than striking out a pleading in an action. Furthermore, while the
striking out of a pleading may save the parties and the court a great deal of
resources that would otherwise be wasted on futile discovery and trial, given
the summary procedure governing applications for judicial review, those savings
are not achieved by striking out a notice of such an application. Indeed, as
the Federal Court of Appeal pointed out in Addison & Leyen Ltd. v.
Canada, 2006 FCA 107, [2006] 4 F.C.R. 532, (reversed on other grounds by Canada
v. Addison & Leyen Ltd., 2007 SCC 33, [2007] 2 S.C.R. 793) at par. 5, “it is generally more efficient for the Court to deal
with a preliminary argument at the hearing of the application, rather than on a
motion.”
[13]
Further, on a motion to strike a statement of
claim or a defence, “the facts asserted by the applicant must be presumed to be
true.” (Addison & Leyen, supra, par. 6). In addition, as Justice
Anne Mactavish held in Amnesty International Canada v. Canada (National Defence), 2007 FC 1147, 287 D.L.R. (4th) 35, by further
analogy to the rule which the Supreme Court held (in Operation
Dismantle v. The Queen, [1985] 1 S.C.R. 441 at 451) to apply to motions to strike out a pleading, “the Notice of
Application should be read as generously as possible, in a manner that
accommodates any inadequacies in the allegations that are merely the result of
deficiencies in the drafting of the document.”
[14]
The respondents raise three grounds in support
of their motion to strike: that there is no “decision” amenable to
judicial review; in the alternative, that this Court does not
have jurisdiction to review the CBSA Determination; or, in the further
alternative, that the Court should decline to exercise its jurisdiction because
the applicant has an adequate alternate remedy. Without deciding that the CBSA
Determination is the sort of administrative action that could be amenable to
judicial review, I am, for the following reasons, of the view that, in any
case, this Court does not have jurisdiction to review it.
[15]
The respondents submit that this Court has no
jurisdiction over the application because it is made contrary to the remedial
scheme provided by the Special Import Measures Act, R.S.C. 1985, c. S-15 (SIMA). This allows an importer of goods
determined to be of the same
description as those subject to an order imposing anti-dumping duties may apply
for a re-determination, provided that he has paid all duties owing on the goods
(paras. 56(1)(a) and 56(1.01)(a)). He may then request a further
re-determination by the President of the CBSA (para. 58(1.1)(a)). The
President’s re-determination is subject to an appeal to the Canadian
International Trade Tribunal (CITT) (s. 61). Finally, the decision of the CITT
can then be appealed, on a question of law, to the Federal Court of Appeal (s.
62).
[16]
They rely on this Court’s decision in Abbott
Laboratories Ltd. v. Canada (Minister of National Revenue), 2004 FC
140, (2004) 12
Admin. L.R. (4th) 20, which involved a statutory scheme analogous to the one at
issue. The applicant attempted to have a determination that certain
products did not satisfy the NAFTA rules of origin and were, therefore not
entitled to a preferential tariff, quashed. Justice François Lemieux held, at
paras. 39-40 that “Parliament
wanted the administrative, quasi-judicial and judicial review system to be
followed to the exclusion of any other paths of review or appeal,” and that
“Parliament's clear intention ousts judicial review by the Federal Court under
section 18.1 of the Federal Court Act.”
[17]
The Federal Court of Appeal
recently approved of that decision in Canada v. Fritz Marketing Inc.,
2009 FCA 62, (2009) 387 N.R. 331, reversing a decision
of this Court quashing certain Detailed Adjustment Statements as based on
information obtained in violation of the applicant’s Charter rights. Although
these cases were decided under the Customs Act, R.S.C. 1985, c. 1 (2nd
Supp.), the similarity of the appeal scheme it sets up and that provided for by
the SIMA makes them applicable to the present case.
[18]
The applicant submits that this Court has jurisdiction
over its application for judicial review because it is aimed not at the CBSA
Determination itself, but rather at the unfairness of “the process adopted by
the CBSA.” According to the applicant, matters related to procedural fairness are
outside the scope of the appeal procedures under the SIMA and are, therefore,
subject to judicial review. In support of this proposition, it relies on this
Court’s decision in Toshiba International Corp. v. Canada (Deputy Minister
of National Revenue, Customs and Excise), (1994)
81 F.T.R. 161, [1994] F.C.J. No. 998.
[19]
Cases on which the respondents rely are not applicable,
because the statutory appeal schemes set up by the Customs Act differ
from those under the SIMA in that the wording of the private clause
contained in the former enactment is much more explicit than that of the SIMA,
suggesting that Parliament did not intend to oust this Court’s jurisdiction to
review decisions under the latter.
[20]
I disagree. In my view, the scheme of
re-determinations and appeals provided by the SIMA is complete and, in
enacting it, Parliament has clearly expressed its intention to oust the
jurisdiction of this Court to review decisions taken under the authority of
that statute. This scheme parallels that set up by the Customs Act, and the
differences in the wording of privative clauses contained in the two enactments
are not material. The privative clauses of the SIMA (ss. 56(1) and 58(1)), which provide that determinations and re-determinations by customs officers are “final
and conclusive,” are clear enough. The only way to have such a determination
“quashed” or “set aside” is to follow the procedures set out in the SIMA
itself.
[21]
Thus the reasoning of the Federal Court of
Appeal in Fritz Marketing, supra, is applicable to the case at bar.
A decision that can be appealed pursuant to the statutory scheme cannot be set
aside by this Court “for any reason” (ibid., at par. 33; my
emphasis). The Federal Court of Appeal specifically rejected the argument that
the impugned decision was reviewable by the Federal Court because it was not
being challenged on the merits but as a result of violations of procedural
rights (see ibid., at par. 34). It thus implicitly overruled the Toshiba
International decision, on which the applicant relies.
[22]
In view of the categorical language employed by
the Federal Court of Appeal in Fritz Marketing, and of the essential
similarity between the legislative schemes applicable to that case and to the
one at bar, the applicant’s arguments are bereft of any possibility of success.
[23]
Finally, I would add that the applicant is wrong
to claim that the statutory appeals scheme would leave it unable to make the
arguments regarding procedural fairness which it proposes to raise on judicial
review. These are all based on allegations that the CBSA failed to give it
notice and to consult it even as it was consulting its competitors, and
possibly that it was not impartial. But arguing a point is not an end; it is
only a means to obtaining a remedy. And the remedy to which the applicant’s
arguments will lead, if they are successful, would naturally be a new decision,
taken after consultation, by an impartial decision-maker. This case is thus
similar to Harelkin v. University of Regina, [1979] 2 S.C.R. 561, where
a student aggrieved by a decision of the university taken without a hearing
applied for a writ of certiorari instead of pursuing an appeal to the
university’s Senate that was open to him. The majority of the Supreme Court
held, at p. 582, that it was a “general principle” that a prerogative writ
would not issue to reform an administrative decision taken in breach of the
requirements of natural justice if that decision could rather be appealed, and
the breach of natural justice, cured on appeal.
[24]
In my view, the essential point which the applicant
misses is that, like in Harelkin, the remedy he is looking for is
exactly what the statutory scheme already provides for. A re-determination by
the President of the CBSA and an eventual appeal to the CITT would both proceed
de novo, enabling the applicant to make the submissions it believes
the CBSA ought to have asked it for to new decision-makers. In fact, the
application for judicial review, were it to proceed and to prove successful,
would have been but a circuitous route to the same result: the CBSA Determination
would be set aside, as the applicant requests in its notice of application; but
then a new determination would still need to be made, one way or the other, by
another decision-maker within the CBSA, subject to the same statutory review
scheme of which the applicant seeks to evade the effect.
[25]
For these reasons, the motion is
granted and the applicant’s application for judicial review is dismissed, with
costs in accordance with column III of Tariff B.
JUDGMENT
THIS COURT ORDERS:
The motion to strike is granted,
and the applicant’s application for judicial review dismissed, with costs in
accordance with column III of Tariff B.
“Danièle
Tremblay-Lamer”
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