Date:
20130110
Docket:
A-336-12
Citation: 2013 FCA 3
CORAM: NOËL
J.A.
DAWSON J.A.
GAUTHIER
J.A.
BETWEEN:
THE
PRESIDENT OF THE CANADA BORDER SERVICES AGENCY
Appellant
and
LEVOLOR
HOME FASHIONS CANADA
Respondent
and
REGAL IDEAS INC.
Respondent
REASONS
FOR JUDGMENT
NOËL
J.A.
[1]
This
is an appeal pursuant to section 62 of the Special Import Measures Act,
R.S.C. 1985, c. S-15 (SIMA) from a decision of the Canadian International Trade
Tribunal (CITT), AP-2011-015, [2012] C.I.T.T. No. 78, wherein the majority of
the three member panel held that an Exclusion pertaining to aluminum extrusions
applied to goods imported by the respondent Levolor Home Fashions Canada. The
dissenting member would have come to the opposite conclusion.
[2]
The
Exclusion in question was granted by the CITT in an earlier decision (Aluminum
Extrusions (17 March 2009), NQ-2008-003, [2009] C.I.T.T. No. 56 at iii, as
follows:
Aluminum extrusions produced from
a 6063 alloy type with a T5 temper designation, having a length of 3.66 m, with
a powder coat finish, which is certified to meet the American Architectural Manufacturers
Association [AAMA] AAMA 2603 standard, “Voluntary Specification,
Performance Requirements and Test Procedures for Pigmented Organic Coatings on
Aluminum Extrusions and Panels”, for use as head rails and bottom rails in
fabric window shades and blinds where the fabric has a cross-sectional
honeycomb or “cellular” construction.
[My
emphasis]
[3]
The
issue in this appeal turns on the meaning of the emphasized words. The majority
held that the Exclusion extends to goods which are certified to meet the AAMA
standard even if the certification does not emanate from the AAMA itself. In
the alternative, it held that if the certificate had to be issued by the AAMA,
it could validly be obtained and produced post-importation as occurred in this
case. The dissenting member gave extensive reasons supporting the opposite
view.
[4]
The
appellant recognizes that the question raised on appeal is one of law – indeed
subsection 62(1) of the SIMA only allows an appeal to be taken on a question of
law – and concedes that the applicable standard of review is that of
reasonableness (Owen
& Co. v. Globe Spring & Cushion Co., 2010 FCA 288 at para.4).
[5]
In
support of its appeal, the appellant essentially urges us to adopt the decision
of the dissenting member on the basis that it reflects the “correct” view
(memorandum of the appellant at para. 26).
[6]
In
Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir), the Supreme
Court explained how the standard of reasonableness is to be applied (at para.
47):
Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting
a review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law. [This approach was reiterated in Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 at paras. 13 and 16 to 18.]
[7]
This
standard when applied to questions of law marks a definite break with the
classic role that has traditionally belonged to courts of appeal. Indeed, we
are not called upon to determine which of the two conflicting opinions
expressed by the members of the CITT is the correct one nor for that matter are
we called upon to determine which reflects the better – i.e. more
reasonable – view. So long as the majority opinion can be shown to come within
the above described range of possible acceptable outcomes, the decision must be
upheld.
[8]
In
this respect, the majority members clearly articulated the basis for their
conclusion. They explained that the Exclusion does not require that the
extrusion be certified “by the AAMA”, but only that it meet the AAMA standard
(reasons at paras. 20 to 22):
20. A plain reading
of the Exclusion does not require an importer to present a certificate from the
AAMA at the time of importation; however, the position taken by the CBSA
[Canada Border Services Agency] in this case would require the [CITT] to read
such a requirement into the Exclusion, which, as a matter of law, it cannot do.
21. Indeed, when the
[CITT] has intended to make the production of a certificate at the time of
importation a condition sine qua non to claim the benefit of an
exclusion, it has said so explicitly, and in precise detail, as it did in Refined
Sugar in the following manner:
9. Organic sugar meeting the requirements of the Canadian General
Standards Board standard No. CAN/CGSB-32.310-99 (Organic Agriculture), the
U.S. Federal Organic Foods Production Act of 1990 or any rules adopted
under that act, or the European Union EN2092/94 (Organic Regulation), where it
is accompanied by a transaction certificate affirming compliance with
the standard signed by an ISO Guide 65 accredited certifying
authority.
[emphasis added]
22. In contrast to the requirements in Refined Sugar, the
Exclusion simply requires that the goods meet the Standard, but does not
specify the evidence necessary to prove that the goods meet the Standard or
when to provide such evidence.
[9]
The
majority went on to explain that the documents produced – i.e. the
Product Data Sheet and the attestation issued by the foreign manufacturer –
could satisfy the requirement (reasons at para. 24). Indeed, the evidence
showed that the goods in issue were in fact compliant with the AAMA standard
(reasons at para. 27). The majority further explained that even if the
Exclusion was read as requiring that the certification be made by the AAMA, there
is nothing in the language of the Exclusion that would prohibit this
certificate from being obtained and produced post-importation, as was done in
this case (reasons at paras. 28 and 29).
[10]
While
the Exclusion is capable of being given a different construction, the reasoning
of the majority for giving effect to it on the facts of this case has not been
shown to be unreasonable.
[11]
I
would dismiss the appeal with costs in favour of both respondents.
“Marc
Noël”
“I
agree
Eleanor R. Dawson J.A.”
“I
agree
Johanne Gauthier J.A.”
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