Date:
20091102
Docket: 09-A-28
Citation: 2009 FCA
317
Present: PELLETIER J.A.
BETWEEN:
PACIFIC
SHOWER DOORS (1995) LTD.
Applicant
and
CANADIAN INTERNATIONAL TRADE
TRIBUNAL
ATTORNEY GENERAL OF CANADA
ALMAG ALUMINUM INC.
APEL EXTRUSIONS LIMITED
CAN ART ALUMINUM EXTRUSION INC.
EXTRUDEX ALUMINUM
METRA ALUMINUM INC.
SIGNATURE ALUMINUM CANADA INC.
SPECTRA ALUMINUM PRODUCTS INC.
SPECTRA ANODIZING LIMITED
Respondents
Dealt with in writing without appearance
of parties.
Order delivered
at Ottawa, Ontario, on November 2, 2009.
REASONS
FOR ORDER BY: PELLETIER
J.A.
Date:
20091102
Docket:
09-A-28
Citation: 2009 FCA 317
Present: PELLETIER
J.A.
BETWEEN:
PACIFIC
SHOWER DOORS (1995) LTD.
Applicant
and
CANADIAN INTERNATIONAL TRADE TRIBUNAL
ATTORNEY GENERAL OF CANADA
ALMAG ALUMINUM INC.
APEL EXTRUSIONS LIMITED
CAN ART ALUMINUM EXTRUSION INC.
EXTRUDEX ALUMINUM
METRA ALUMINUM INC.
SIGNATURE ALUMINUM CANADA INC.
SPECTRA ALUMINUM PRODUCTS INC.
SPECTRA ANODIZING LIMITED
Respondents
REASONS FOR ORDER
PELLETIER
J.A.
[1]
The
applicant Pacific Shower Doors (1995) Ltd. (PSD) brings this motion for an
extension of time to file an application for judicial review of a decision of
the Canadian International Trade Tribunal (CITT) in which the CITT denied PSD
an exemption from its finding that the dumping and subsidizing in Canada of
custom-shaped aluminum extrusions originating in or exported from China have
caused injury to the domestic industry (Inquiry No. NQ-2008-03). The CITT’s
findings were released on March 17, 2009 while its reasons were issued on April
1, 2009. PSD’s application for an extension of time was filed on August 27,
2009, well outside the 30 day period provided for filing applications for
judicial review.
[2]
PSD
is in the business of supplying custom shower doors. The CITT disposed of its
application for an exemption as follows:
370.
The
Tribunal denies the request for product exclusion filed by Pacific Shower Doors
(1995) Ltd. (Pacific Shower), which concerns aluminum extrusions that are used
in the assembly of shower enclosures. Pacific Shower submitted that domestic
producers are not able to perfectly match the custom fit and finishes required
by its customers. It also submitted that the domestic producers are not willing
to provide Pacific Shower with the small quantities of products that it needs
and that they are also not able to meet its packaging requirements. The
Tribunal is of the view that no evidence was provided to support Pacific
Shower’s claim that the domestic producers are unable to meet its requirements
in terms of fit, finish and packaging. While Pacific Shower did provide
evidence that one producer, which was not a party in support of injury findings
in this case, could not supply one particular product, the Tribunal does not
consider this as sufficient to demonstrate that domestic producers are unable
to produce identical or substitutable products. The Tribunal recognizes that
some domestic producers may have minimum order requirements. However, it finds
that such conditions are not unusual and do not constitute, in and of
themselves, a sufficient basis to grant an exclusion.
[3]
At
paragraph 16 of his affidavit filed in support of his motion, Mr. Frederick
Wilkins explains his response to the CITT’s decision:
16)
I
concluded that an application for judicial review was not the most appropriate
action. I believed that the CITT would hold and interim review if I were able
to prove that the claims made by the complainants as noted in paragraph 12 were
false and that the CITT would then most likely grant the exclusion as required
by SIMA [the Special Import Measures Act R.S.C. 1985 c. S-15]
[4]
Paragraph
12, to which Mr. Wilkins refers, reads as follows:
12) The Complainants
opposed PSD’s application for exclusion. They claimed to currently
produce the Subject Goods. They further claimed to make substitutable goods.
They further claimed to have full and current capacity to produce identical
goods.
[5]
As
a result, Mr. Wilkins sought quotations from the Complainants as well as other
domestic extruders. He further claims that the responses to his requests for
quotations showed that the claims made by or on behalf of the complainants in
paragraph 12 could not be substantiated.
[6]
Mr.
Wilkins then made an application to the CITT for an interim review as provided
at section 76.01 of the Special Import Measures Act. The CITT dismissed
the application for interim review. Mr. Wilkins then filed an application for
judicial review of that decision within the time provided for doing so. He now
seeks an extension of the time for bringing an application for judicial review
of the original decision and to have the two applications heard concurrently.
[7]
The
test for the granting of an application for an extension of time is well known
and has been reiterated in numerous decisions of this Court. By way of example,
this court said in Canada (Minister of Human Resources Development) v.
Hogervort, 2007 FCA 41, [2007] F.C.J. No. 37, at paragraph 32:
32 There is no dispute as to
what the correct legal test is on a motion for an extension of time
to file an application for leave to appeal: see Marshall v. Canada,
[2002] F.C.J. No. 669, 2002 FCA 172; Neis v. Baksa,
[2002] F.C.J. No. 832, 2002 FCA 230. What is required is that
a) there
was and is a continuing intention on the part of the party presenting the
motion to pursue the appeal;
b)
the subject matter of the appeal discloses an arguable case;
c) there is a reasonable
explanation for the defaulting party's delay; and
c)
there is no prejudice to the other party in allowing the extension.
[8]
In
this case, it is clear from paragraph 16 of the Mr. Wilkins’ affidavit that he
did not have a continuing intention to pursue an application for judicial
review. He chose to pursue another remedy and when that failed, he launched an
application for judicial review of that decision in a timely manner. It was not
until that was done that Mr. Wilkins considered whether he ought not to have
applied for judicial review of the original decision. His application should
fail on this ground alone.
[9]
In
addition, it is not apparent, despite Mr. Wilkins’ arguments to the contrary,
that his application for judicial review has any reasonable prospect of
success. The basis of the CITT’s decision is that Mr. Wilkins’ application for
an exemption was not supported by any evidence. The fact that Mr. Wilkins set
about gathering that evidence after the decision was rendered does not
invalidate the CITT’s conclusion on the record which was before it. Mr. Wilkins
subsequently gathered evidence which may have some incidence on his application
for judicial review of the dismissal of his application for an interim review,
but it has none on the reasonableness of the original decision.
[10]
It
is clear from section 76.01 of the Special Import Measures Act that, if
Mr. Wilkins is successful in his application for judicial review and the matter
is remitted to the CITT for a fresh decision, the latter has the jurisdiction
to make an appropriate order in his favour. As a result, the dismissal of this
application for an extension of time does not leave Mr. Wilkins without a
remedy.
[11]
I
would therefore dismiss the motion for an extension of time to file an
application for judicial review of the CITT’s decision in Inquiry No.
NQ-2008-003.
[12]
In
his notice of motion, Mr Wilkins also asks for leave to represent PSD, of which
he is the sole shareholder and director. Corporate status confers certain
advantages but it also comes with certain disadvantages, one of which is that
corporations must be represented by counsel. That rule can be waived, usually
on grounds of impecuniosity, but no such evidence has been provided here. There
is every reason to believe PSD would benefit from professional legal
representation. The request for leave to have Mr. Wilkins represent PSD will
also be dismissed.
"J.D.
Denis Pelletier"
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