Docket: T-843-15
Citation:
2015 FC 1077
Ottawa, Ontario, September 16, 2015
PRESENT: The Honourable Mr. Justice Hughes
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BETWEEN:
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PRUDENTIAL STEEL ULC
AND ALGOMA
TUBES INC.
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Applicants
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and
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ATTORNEY GENERAL OF CANADA,
BOLY PIPE CO. LTD.,
BORUSAN MANNESMANN BORU SANAYI VE TICARET A.Ş.,
CANTAK CORPORATION, CHUNG HUNG STEEL CORPORATION, CONTINENTAL
CORPORATION, ENCANA CORPORATION,
EVRAZ INC. NA CANADA, GOVERNMENT OF VIETNAM,
GVN FUELS LIMITED/MAHARASHTRA SEAMLESS LIMITED, HALLMARK TUBULARS
LTD., HLD CLARK STEEL PIPE CO. INC., HYUNDAI HYSCO CO., LTD., ILJIN STEEL
CORPORATION,
IMCO INTERNATIONAL STEEL TRADING INC., IMEX CANADA INC., INTERPIPE
UKRAINE LLC, JINDAL SAW LTD., NEXSTEEL CO., LTD., NORTH AMERICAN INTERPIPE
LTD., PANMERIDIAN TUBULAR,
PT CITRA TUBINDO TBK, PROTO TUBULARS INC.,
PUSAN PIPE AMERICA INC., SEAH STEEL CORPORATION,
SHIN YANG STEEL CO., LTD.,
STAR INTERNATIONAL OIL HOLDINGS LTD.,
TENSION STEEL
INDUSTRIES CO., LTD., THAI OIL PIPE CO., LTD., WESTCAN OILFIELD SUPPLY LTD.
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Respondents
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ORDER AND REASONS
[1]
The Applicants have brought this motion for an
interlocutory Order staying the Canadian Border Services Agency (CBSA)
announced re-investigation as it pertains to goods subject to Inquiry No.
NQ-2014-002 pending the final determination of this application which seeks an
Order in the nature of prohibition and/or injunction prohibiting such
re-investigation and other relief.
[2]
For the Reasons that follow, I will dismiss the
motion with costs.
I.
BACKGROUND
[3]
The Applicants/moving parties are engaged in the
business, inter-alia, of manufacturing tubular goods in Canada. The
Respondents are engaged in the business of importing into Canada what is
described as “oil country tubular goods” from as
many as nine different foreign countries. The Respondents, other than the
Attorney General, are engaged in similar businesses. The Respondent, Attorney
General, represents CBSA which agency, among other things, administers the Special
Import Measures Act, RSC 1985, c. S-15 (SIMA).
[4]
When goods are imported into Canada from foreign countries, certain duties may be imposed. One of the factors taken
into consideration in arriving at the level of such duties is the apparent
price paid for such goods by the importing party. The price must be disclosed
to CBSA and, if CBSA believes that the apparent price paid is unnecessarily
low, the words dump or dumping may be used, the CBSA may, under the authority
of SIMA, conduct an investigation and fix, for the purposes of assessing
the level of duties, a “normal price” for such
goods. Provisions are made in SIMA for a re-determination in certain
circumstances and judicial review by the Federal Court of Appeal in certain
circumstances.
[5]
In the present circumstances, the Respondents
and others, other than the Attorney General, in the period from January 1, 2013
to March 31, 2014, imported into Canada from up to nine different foreign
countries, oil country tubular goods (OCTG). The
CBSA conducted an inquiry identified as Inquiry No.NQ-2014-002 in respect
thereof. On March 3, 2015, the President of CBSA made a determination as a
result that dumping, pursuant to subsection 41(1)(a) of SIMA in respect
of certain of those goods, had been established. A Statement of Reasons for
that decision was released March 18, 2015.
[6]
On April 2, 2015, the Canadian International
Trade Tribunal, pursuant to subsection 43(1) of SIMA, made a finding
that the dumping of such goods from certain of those countries has not caused
injury but is threatening to cause injury to the Canadian domestic industry.
Reasons were issued April 17, 2015 with a corrigendum issued April 21, 2015.
[7]
Certain of the parties subject to these
decisions have sought judicial review in the Federal Court of Appeal in respect
of the President of CBSA’s final determination. In particular, SeAH Steel Corporation
instituted application Court File No. A-178-15, Evraz Inc. instituted
application Court File No. A-182-15, and the Applicants in this proceeding,
Prudential Steel ULC and Algoma Tubes Inc., instituted application Court File No.
A-186-15. I am advised by Counsel that all of these applications are contested
and are at the stage of dealing with evidentiary and procedural matters. No
application for the fixing of a date and place of hearing in respect of any of
these applications has been made.
[8]
On May 4, 2015, the CBSA issued a Notice of
Re-investigation which Notice stated that a re-investigation has been initiated
to “update the normal values and export prices of
certain OCTG originating in or exported from” the nine countries
previously implicated. The goods to be re-investigated included certain oil
country tubular goods considered in Inquiry No. NQ-2014-002. On May 22, 2015,
this present application was filed seeking to prohibit or enjoin that re-investigation.
On June 3, 2015, the Applicants filed the motion under consideration here
requesting, on an interlocutory basis, essentially the same relief.
II.
EVIDENCE
[9]
The Applicants/moving parties have filed one
affidavit in support of their motion, the affidavit of Shauna Cant, a “summer student” (presumably a law student) employed
by their solicitors’ firm. This affidavit serves to set out some of the
history and to provide, as exhibits, certain documents relating to the motion. It
must be noted that this affidavit did not address serious issue or irreparable
harm or balance of convenience. There was no cross-examination upon this
affidavit.
[10]
The Attorney General, in response, filed the
affidavit of Dean Pollard, Investigations Senior Program Officer of the CBSA,
setting out some of the history of the matter and certain policies of CBSA
respecting re-investigation. There was no cross-examination upon this
affidavit. Also filed was the Certified Tribunal Record.
[11]
The Respondent, Jindal Saw Ltd., filed
the affidavit of James Peter Clarke, President of a consultancy organization
that acts for Jindal. This affidavit set out some of the history and provided
support for the re-investigation process as a “realistic
avenue available to an exporter such as Jindal.” There was no cross-examination.
[12]
The Respondents, Interpipe Ukraine LLC and North
American Interpipe Ltd., provided the affidavit of Daniel Hohnstein, a lawyer
at the firm of lawyers representing them. This affidavit provided historical
information as well as information respecting other re-investigations made by
CBSA from time to time. They also filed the affidavit of Melissa Beck, Vice
President of Operations for North American Interpipe, which stated in paragraph
14 that significant harm would result to that company if the re-investigation were
to be stayed. There was no cross-examination upon either affidavit.
[13]
The Respondents, Borusan Mannesmann and Imco
International, provided the affidavit of Oguzhan Kuscuoglu, Export Sales
Director of Borusan, providing historical information and evidence as to
prejudice that would be suffered if the re-investigation were to be stayed. Also
provided was the affidavit of Nezil Bosut, President of Imco, stating that Imco
would be prejudiced if the re-investigation were to be stayed. There was no
cross-examination upon either affidavit.
[14]
Each of Applicants/moving parties and
above-named Respondents filed motion records including the above affidavits and
exhibits thereto, and written representations. All were represented by Counsel
at the hearing before me. Counsel for the Respondents, Borusan Mannesmann and
Imco International, appeared by telephone due to certain temporary mobility
restrictions affecting her.
III.
BASIC PRINCIPLES RESPECTING INTERLOCUTORY
INJUNCTIONS
[15]
All parties cite and rely upon the decision of
the Supreme Court of Canada in RJR-MacDonald Inc. v Canada (Attorney
General), [1994] 1 S.C.R. 311, as setting out the fundamental requirements to
be considered by the Court on an application for relief such as that requested
here. Those requirements are:
1.
that there is a serious issue to be tried in the
underlying application for judicial review;
2.
that the moving party will suffer irreparable
harm if the interlocutory relief is not granted; and
3.
that the balance of convenience favours the granting
of relief sought.
[16]
Justice Stratas of the Federal Court of Appeal
in Janssen Inc. v Abbvie Corp., 2014 FCA 112, reiterated this
test in respect of a request for a stay and added, at paragraphs 14 and
following, that all three requirements must be established and, at paragraph
19, that each branch of the tests adds something important, none can be seen as
an optional extra.
[17]
RJR-MacDonald at
page 338 adds as an exception to the general rule that a judge should not
engage in an extensive review of the merits of the case the circumstance that,
where the result of the interlocutory motion will, in effect, amount to a final
disposition of the underlying action or application such as is the case here, a
more extensive review of the merits of the matter is required.
IV.
DO I HAVE JURISDICTION TO HEAR THIS MATTER?
[18]
The activity that is the subject of the
underlying application and this motion is essentially regulated by SIMA.
That Act provides, in section 62, that certain appeals are to be heard
by the Federal Court of Appeal. Section 76 provides that an application for
judicial review of any order or finding of the Canadian International Trade
Tribunal is to be made to the Federal Court of Appeal. Section 96.1 provides
that an application for judicial review for certain orders, findings or a
determination of the President of CBSA under paragraph 41(1) (a), is to be made
at the Federal Court of Appeal.
[19]
In brief, the Federal Court of Appeal and not
the Federal Court is named by SIMA as the venue for applications and appeals
respecting decisions, orders and findings made under SIMA. Nowhere in
that Act is the Federal Court mentioned.
[20]
In Toyota Tsusho America Inc. v Canada (Border Services Agency), 2010 FC 78, Justice Tremblay-Lamer of this Court
rejected an argument that the Federal Court had jurisdiction in respect of CBSA
where the issue was “the process adopted by CBSA.”
She held the scheme of re-determination and appeals provided by SIMA is
complete and ousted the jurisdiction of the Federal Court. I repeat what she
wrote at paragraphs 18 to 20:
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]
On appeal, in a decision given orally by Sharlow
J.A. for the panel, 2010 FCA 262, at paragraph 3, she said respecting the
decision of Justice Tremblay-Lamer:
…we agree with her conclusion, substantially
for the reasons she gave.
[22]
Counsel for the Applicants distinguishes this
case and the GRK Fasteners case, to which I will subsequently refer on
the basis that, in those cases, the Applicants were importers whereas in the
present case, the Applicants are domestic manufacturers which puts them in a
different position under the provisions of SIMA.
[23]
At issue in this Application and in this motion,
is the announcement by CBSA that it will initiate a re-investigation of the
normal price ascribed to the goods in question and whether that
re-investigation should be stayed.
[24]
It is clear that nothing in SIMA
addresses whether, and if so, in which Court, an announcement that CBSA will
commence a re-investigation can be challenged or judicially reviewed. The
Applicants argue that section 18(1) of the Federal Courts Act, RSC 1985,
c. F-7, provides the Federal Court with the necessary jurisdiction. The
Attorney General argues that section 18.2 of that Act provides that any
remedy by way of an interlocutory stay can be granted only pending the
determination of the underlying application in the Federal Court and not
pending some other event such as a disposition of an application to the Federal
Court of Appeal.
[25]
Counsel for the Interpipe companies submits that
the decision to commence a re-investigation is not reviewable at all. In other
words, has a serious issue been raised as to whether the announcement by CBSA
that it will commence a re-investigation reviewable at all.
[26]
Section 18(1) of the Federal Courts Act
provides the Federal Court with jurisdiction where relief by way of an
injunction, writs of certiorari, prohibition, mandamus or quo
warranto are sought in respect of a federal board, commission or other
tribunal. Section 18.1(2) provides a time limit for filing an application for
such relief but only where a “decision or order”
was made. Section 18.2 provides that the Federal Court may grant interim
relief.
[27]
There is no doubt that in respect of CBSA we are
dealing with a “federal board, commission or other
tribunal.” No party has raised an issue as to whether the application
was filed in a timely manner; it appears to have been filed promptly. The
question is whether the announcement by CBSA that it will conduct a re-investigation
is subject to judicial review in granting relief of the kind set out in section
18(1) of the Federal Courts Act. If it is, then the Federal Court has
jurisdiction and such jurisdiction has not been ousted by section 28 of the Federal
Courts Act nor by any provision in SIMA. Therefore, I will proceed
to examine whether a serious issue in that respect has been raised on the assumption
that I have jurisdiction followed by a consideration of irreparable harm and
balance of convenience.
V.
STATUS QUO
[28]
An interlocutory or interim injunction generally
has the effect of preserving the status quo until final determination of
the matter before the Court.
[29]
In the present case, there has been a finding
that certain goods imported from certain countries were “dumped”. As a result, certain duties were imposed on
the importers. The data shows that importation has been reduced by some
eighty-one percent.
[30]
Judicial review has been sought by the
Applicants and some but not all of the Respondents in the Federal Court of
Appeal. We do not know when those matters will be heard; no application to fix
a date for a hearing has yet been made. The result of those applications
cannot be predicted.
[31]
A re-investigation is underway; Counsel appear
to be in agreement that it will be concluded by December 14, 2015. The result
of that re-investigation may be a re-determination of the duties for the period
of time at issue in the earlier determination or for a different period of
time. Again, the result cannot be predicted.
[32]
The application underlying the present motion
has not been set down to be heard. There is no evidence in the record to show
what attempts have been made to seek a date for the hearing of the application
itself.
VI.
SERIOUS ISSUE
[33]
As discussed with respect to RJR-MacDonald,
where the disposition of a motion such as this will, in effect, result in a
determination of the issue raised in the underlying application, the Court must
undertake a more extensive review of the question of serious issue.
[34]
The Applicants put forward two grounds upon
which they argue that a serious issue exists. The first is that, in effect, a
re-investigation will undermine the applications for review now before the
Federal Court of Appeal. I repeat part of the Applicants’ Written Representations
in this regard:
42. … CBSA is purporting to use a
discretionary administrative process, that has no basis in law, in a manner
that is inconsistent with the purpose of the clear judicial review process
established by Parliament under ss. 96.1 and 41.1 of SIMA to deal with judicial
challenges to the Final Determination.
43. The Applicants asset that CBSA’s
decision to initiate a re-investigation at this time is an unreasonable use of
CBSA’s residual powers under SIMA. It also includes a ground that the
initiation of the Re-investigation at a time when the CBSA methodologies are
under review by the Federal Court of Appeal constitutes an abuse of process and
improper attempt to shield the flawed methodologies used by it to calculate
normal values and dumping margins from a legislated judicial review process.
…
47. The CBSA is now using the
administrative Re-investigation process in parallel with the judicial review
process, despite clear conflicts between the two.
…
50. The conflict between the SIMA judicial
review process and the CBSA re-investigation process is a serious issue to be
determined by this Court. In the Application, this Court will be called upon
to decide whether CBSA can engage a re-investigation while a judicial review
application under SIMA is ongoing. This could potentially circumvent the
Federal Court of Appeal’s legislated supervisory role by replacing the normal
values accompanying CBSA’s Final Determination with normal values derived from
the Re-Investigation, for which there is no statutory route of judicial review
open to the Applicants.
[35]
A second argument raised by the Applicants is that
a serious issue exists in that the CBSA initiated a re-investigation in a
manner which conflicts with its own guidelines. I repeat paragraph 51 of the
Applicants’ Written Representations:
51. A second serious issue raised in the
Application is whether CBSA can initiate a
re-investigation in a way that conflicts with its own guidelines. As noted
above there is no legal basis for re-investigations. That said, CBSA has
published a D-memo setting guidelines. The guidelines establish pre-conditions
for launching a re-investigation. Given that only two months passed between
the Final Determination and the initiation of the Re-investigation, it cannot
be that expressed factors justify initiation:
(a) the volume of imports of the subject
goods and the relative changes in the volume;
(b) the number of new products or models or
the number of new exporters;
(c) the number of requests for
re-determination;
(d) market information on price levels in the
industry sector or country of export; and
(e) representations from the complainant,
exporters, importers, or from the government of the country of export.
D-Memo, para. 1 [MMR, Tab 2R]
[36]
Dealing with the first ground, one must
distinguish between a re-investigation which is in the nature of an inquiry
process, and a re-determination which is a decision that may result from that
inquiry process. The inquiry process does not affect legal rights or impose
legal obligations on cause prejudice; those results only come about when a
determinative or re-determination is made. This case is similar to that of the
Toronto Port Authority case where the Authority issued certain bulletins
to the effect that it was going to initiate a process for awarding “slots” at the Toronto Island Airport. Stratas J.A.
(concurred in by Létourneau and Dawson JJ.A.) wrote in Air Canada v Toronto Port Authority, 2011 FCA 347, at paragraphs 28 to 30:
28. The
jurisprudence recognizes many situations where, by its nature or substance, an
administrative body’s conduct does not trigger rights to bring a judicial
review.
29. One
such situation is where the conduct attacked in an application for judicial
review fails to affect legal rights, impose legal obligations, or cause
prejudicial effects: Irving Shipbuilding Inc. v. Canada (Attorney General),
2009 FCA 116, [2010] 2 F.C.R. 488; Democracy Watch v. Conflict of Interest and
Ethics Commission, 2009 FCA 15, (2009), 86 Admin. L.R. (4th) 149.
30. The
decided cases offer many illustrations of this situation: e.g., 1099065 Ontario
Inc. v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA
47, 375 N.R. 368 (an official’s letter proposing dates for a meeting); Philipps
v. Canada (Librarian and Archivist), 2006 FC 1378, [2007] 4 F.C.R. 11 (a
courtesy letter written in reply to an application for reconsideration);
Rothmans, Benson & Hedges Inc. v. Minister of National Revenue, [1998] 2
C.T.C. 176, 148 F.T.R. 3 (T.D.) (an advance ruling that constitutes nothing
more than a non-binding opinion).
[37]
Directly on point is the decision of O’Reilly J.
of this Court in GRK Fasteners v Attorney General of Canada, 2011 FC 198, in which he concluded, at paragraph 24:
24. Bearing
these considerations in mind, I must conclude that the CBSA’s re-investigation
is not amenable to judicial review. A re-investigation by definition is a
preliminary step in the process that may lead to an assessment of duty. A
re-investigation may lead to a determination or re-determination that may be
appealed to the CITT, and to the Federal Court of Appeal.
[38]
Therefore, I conclude that this Court does not
have jurisdiction under sections 18 or 18.1 of the Federal Courts Act to
grant relief in respect of the re-investigation.
[39]
As to the second ground, that is whether the
CBSA followed its own guidelines in initiating a re-investigation, the
Respondent, Attorney General, has provided a Certified Tribunal Record
containing a Memorandum to the Director General, Brent McRoberts. That
Memorandum demonstrates that the factors set out in the CBSA Guidelines,
described as D14-1-8, were considered and applied; see pages 2, 3 and 4 of the
Memorandum. I am not persuaded that the Guidelines were not properly followed
and applied.
VII.
IRREPARABLE HARM
[40]
The Applicants have not put in evidence any
evidence in respect of irreparable harm, only lawyers’ submissions. I repeat
some of those submissions from the Applicants’ Written Representations in full:
ii) Irreparable
harm from perpetuating flawed normal values
62. In the Final Determination, CBSA
determined normal values using a flawed methodology for certain exporters of
Subject Goods. The Applicants, and the domestic industry, are currently
suffering harm because these flawed normal values do not provide the full
protection against dumping contemplated by SIMA. This methodology is currently
being challenged before the Federal Court of Appeal.
63. One of the primary purposes of a
re-investigation is to provide normal values for new exporters and new models
of goods.
D-Memo, para. 1 [MMR, Tab 2R]
SIMA Handbook, sections 4.14.2.1, 4.15.5.1., pp. 291, 295-296
[MMR, Tab 2S]
64. As a result of the Re-investigation
proceeding before CBSA receives direction from the Federal Court of
Appeal required changes to its flawed methodology, CBSA will perpetuate the
same flawed methodology from the Final Determination to provide normal values
to more exporters and for more products.
65. This will allow more Subject Goods to
enter the Canadian market on the basis of erroneously low normal values. These
low priced Subject Goods will further take sales away from the domestic
producers such as the Applicants and further result in lost sales, lost market
share and lost profits for the Applicants. Even if the normal values
determined in the Re-investigation were revisited by the CBSA after a remand
from the Federal Court of Appeal, the damage to the domestic industry will have
been done. A lost sale cannot be undone by a retroactive change to CBSA
methodology.
66. These losses would be particularly
harmful to the Applicants at a time when the domestic industry is acutely
vulnerable because, as found by the CITT, dumped low priced imports represent a
“clearly foreseen and imminent threat of material injury”, including because
“low oil prices elevates the threat of a surge in volumes of low-prices imports
from the subject countries and magnifies their effect”.
Oil Country Tubular Goods, NQ-2014-002, paras. 268, 270 [MMR, Tab
21]
67. The fourth and first quarters of each
year are the busiest time for OCTG sales in Canada. Having CBSA release new
normal values going into the busiest period of the year highlights the
potential for significant the harm to the Applicants.
Oil Country Tubular Goods, NQ-2014-002, para. 251 [MMR, Tab 21]
iii) Harm is irreparable because there is
not mechanism for compensation
68. There is no way for the Applicants to
be compensated for their lost sales and lost market share. The imports of
Subject Goods will be irrevocably permitted to enter the Canadian marketplace.
SIMA provides a mechanism to prevent unfair dumping of subject goods at the
border. Once they are released into Canada, there is no way to remove the
goods from the marketplace or to reverse the sales lost to improperly low
prices.
69. SIMA is a price regulation regime.
There is no cause of action between the Applicants and the foreign exporters or
Canadian importers whereby the Applicants could recover damages. SIMA imposes
anti-dumping measures to correct pricing, it does not contemplate any payment
of damages or other compensation flowing to the domestic industry from the
foreign exporters or Canadian importers, who are the beneficiaries of the
improper normal values.
70. This necessarily means that the
financial harm suffered by the domestic industry from the perpetuation of
flawed normal values is an “irreparable” harm.
[41]
Each of the Respondents, Jindal Saw, Interpipe
Ukraine and North American Interpipe, and Borusan Mannessman and Imco
International Steel, filed affidavit evidence to the effect that they would
suffer harm if the re-investigation were to be stayed. There was no
cross-examination upon any of these affidavits.
[42]
In another of the Janssen group of cases
in the Federal Court of Appeal, Janssen Inc. v Abbvie Corp., 2014 FCA
176, Justice Stratas wrote that general assertions cannot establish irreparable
harm, and that assumptions, speculations, hypotheticals and arguable
assertions, unsupported by evidence, carry no weight. He wrote at paragraphs
44 to 46:
44 Quite
aside from Janssen's ability to pursue a motion under Rule 399 to clarify any
ambiguities -- as yet unpursued -- Janssen's stay motion in this Court must
fail for another reason. Its evidence of irreparable harm falls short of the
mark. It has not presented evidence of sufficient particularity concerning what
actions, activities, plans or communications have been or will be affected by
the injunction's ambiguity.
45 General
assertions cannot establish irreparable harm. They essentially prove nothing:
It is all too easy for those seeking a stay in a case like this to
enumerate problems, call them serious, and then, when describing the harm that
might result, to use broad, expressive terms that essentially just assert --
not demonstrate to the Court's satisfaction -- that the harm is irreparable.
(Stoney First
Nation v. Shotclose, 2011 FCA 232 at paragraph 48.) Accordingly,
"[a]ssumptions, speculations, hypotheticals and arguable assertions,
unsupported by evidence, carry no weight": Glooscap Heritage Society v.
Minister of National Revenue, 2012 FCA 255 at paragraph 31.
46 Instead,
"there must be evidence at a convincing level of particularity that
demonstrates a real probability that unavoidable irreparable harm will result
unless a stay is granted": Glooscap, supra at paragraph 31. See also
Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd., 2010 FCA 232
at paragraph 14; Canada (Attorney General) v. Canada (Information
Commissioner), 2001 FCA 25, 268 N.R. 328 at paragraph 12; Laperrière, supra at
paragraph 17.
[43]
Given the lack of evidence offered by the
Applicants, and the speculative nature of the irreparable harm argued by
Applicants’ Counsel, I am simply not persuaded that the Applicants will or will
be likely to suffer irreparable harm if the re-investigation were to proceed.
On the other hand, the uncontested evidence of several of the Respondents is
that they will suffer irreparable harm if an injunction is granted. I find
that the Applicants have failed to establish irreparable harm if an injunction
is not granted.
VIII.
BALANCE OF CONVENINCE
[44]
Just as in respect of irreparable harm, the
Applicants have led no evidence to support their assertions that the balance of
convenience favours the granting of a stay. I repeat what Applicants’ Counsel
wrote in their Written Representations:
iv) Balance
of convenience favours a stay
71. The third step of the RJR-MacDonald
test requires a determination as to which of the two parties would suffer
greater harm from the granting or refusal of a stay pending a decision on the
merits.
RJR-MacDonald, p. 342, para. 67 [CLA, Vol. 1, Part B, Tab 12 (see
MMR, Tab 8 for relevant excerpts)]
72. The potential inconvenience to the CBSA
of the Re-Investigation being stayed is minimal. The impact on CBSA of a stay
is only to defer the initiation of the Re-investigation until this judicial
review is resolved on its merits, which would only delay the initiation of the
Re-investigation until the approximate timeline normally followed in the CBSA’s
policy of initiating a re-investigation. As noted above, the CBSA D-Memo
recommends as a default that re-investigations be commenced on the anniversary
of the Final Determination.
D-memo, para. 3 [MMR, Tab 2R]
73. The current normal values are
relatively fresh as they were issued on March 3, 2015. In many cases,
re-investigations only happen years after the final determination. For
example, in the three other OCTG cases for which a re-investigation was
initiated on May 4, 2015, Seamless Casing had its first re-investigation four
years after its Final Determination. Similarly, the current re-investigation
is the first of both OTTG 1 and Pup Joints, which is five years and three years
after those Final Determinations.
Cant Affidavit, para. 23 [MMR, Tab 2]
74. SIMA provides a mechanism to challenge
normal values after a Final Determination. This is by way of judicial review
to the Federal Court of Appeal pursuant to s. 96.1. No “inconvenience” can be
attributed to the Applicants’ reliance on the appropriate statutory mechanism
provided to challenge normal values. The Applicants’ attempts to exercise a
statutory right favours the convenience of allowing the statutory process to
proceed rather than for it to be supplanted by an administrative process
initiated by CBSA.
75. The requested stay also only affects
the re-investigation as it pertains to the Nine Countries, and thus it can be
readily severed from the three OCTG re-investigations relating to China
announced on May 4, 2015. There is little or no overlap in information in
these other re-investigations as against the Nine Country Re-investigation.
The foreign exporters are necessarily different between OCTG II and the other
three cases which involve only China. The Re-Investigation is also currently
at a relatively early stage, with CBSA necessarily having spent little effort
to date. The delay resulting from a stay would be in line with the CBSA’s
normal delay in initiating re-investigation as set out in the D-Memo and the
SIMA Handbook.
D-memo, para. 2 [MMR, Tab 2R];
SIMA Handbook, s. 4.15.3, p. 291-292 [MMR. Tab 2S];
Notice of Initiation of Re-investigation [MMR, Tab 2A]
76. The benefit of having the two month-old
normal values updated, in a context where many normal values in other cases
stay in place for several years, does not outweigh the irreparable harm the
Applicants will suffer if the Re-Investigation is allowed to proceed.
77. The circumstances of this motion are
the type of “special circumstances” where the Court should intervene despite
the administrative process being ongoing. In this case, it is the very act of
limited the Re-investigation that is improper. The Court does not need to
assess whether it can allow the Re-investigation to conclude before
intervening, because this is not a case where “at the end of the proceedings
some other appropriate remedy exists”. There is no possible outcome of the
Re-investigation that will make CBSA’s decision to initiate proper.
Group Archambault Inc. v Cmrra/Sodrac Inc., 2005 FCA 330, paras. 6-7
[MMR, Tab 5].
[45]
The Applicants have not offered to provide an
Undertaking as to damages. Their Counsel argues that such an Undertaking is
unnecessary in regulatory matters such as this. Counsel for the Interpipe
Respondents argues that such an Undertaking should have been offered. I do not
need to decide if an Undertaking is “necessary” but it should have been offered
“if necessary”.
[46]
It may be that the Federal Court of Appeal will,
at some point in the future, provide a Judgment and Reasons in the applications
presently before it that could change the basis upon which a determination of a
normal price could be made. If a re-determination is made by CBSA before such
Judgment and Reasons are delivered, then perhaps a further re-determination may
be warranted giving rise to some additional legal costs and inconvenience. If
the re-determination is made only after the release of such Judgment and
Reasons, Counsel for the Attorney General has undertaken that, to the extent
that the Federal Court of Appeal deals with methodology, such methodology will
be taken into account in the re-determination. The CBSA will be guided by the
same. Perhaps there will be some measure of inconvenience but I find, not a
measure so great that the re-investigation should be stayed.
IX.
CONCLUSION AND COSTS
[47]
In conclusion, I find that the Applicants have
failed to establish on the three part RJR-MacDonald test that a stay
ought to be granted. The motion will be dismissed with costs, fixed in the sum
of $2,500.00 to each of the Attorney General and the other groups of
Respondents appearing before me.
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