Date: 20101012
Docket: A-42-10
Citation: 2010 FCA 262
CORAM: SHARLOW J.A.
PELLETIER
J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
TOYOTA
TSUSHO AMERICA INC.
Appellant
and
CANADA BORDER SERVICES AGENCY
and
ATTORNEY GENERAL OF CANADA
Respondents
Heard at Ottawa,
Ontario, on October 12,
2010.
Judgment delivered from the Bench at Ottawa, Ontario, on October 12, 2010.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW
J.A.
Date: 20101012
Docket:
A-42-10
Citation:
2010 FCA 262
CORAM: SHARLOW
J.A.
PELLETIER J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
TOYOTA TSUSHO
AMERICA INC.
Appellant
and
CANADA BORDER SERVICES AGENCY and
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on October 12, 2010)
SHARLOW J.A.
[1]
The
appellant Toyota Tsusho America Inc. (“Toyota”) is asking this Court to reverse
the judgment of Justice Tremblay-Lamer (2010 FC 78) which granted the Crown’s
motion to strike Toyota’s application for judicial review of a decision of the
Canada Border Services Agency (“CBSA”) determining that certain Chinese-origin
boron steel plate that Toyota shipped to Canada would be subject to an anti-dumping
order issued by the Canadian International Trade Tribunal (“CITT”). The
application for judicial review sought an order quashing or setting aside the
determination, or alternatively an order prohibiting the determination from
being enforced.
[2]
Toyota claims that
it made the shipment in reliance on an oral communication from a CBSA official
that the anti-dumping order would not apply to boron steel plate. Justice
Tremblay-Lamer concluded that, even if that oral communication was made and
relied upon as Toyota alleged, the subsequent CBSA determination was subject to
the statutory appeal scheme in the Special Import Measures Act, R.S.C.
1985, c. S-15 (“SIMA”), which effectively excluded the jurisdiction of the
Federal Court to entertain an application for judicial review of the
determination. That conclusion was based on an analysis of the relevant
provisions of SIMA, as well as a line of cases that includes Canada v. Addison
& Leyen Ltd., 2007 SCC 33, [2007] 2 S.C.R. 793, Abbott Laboratories
Ltd. v. Canada (Minister of National Revenue), 2004 FC
140, and Fritz Marketing Inc. v. Canada (F.C.A.), 2009 FCA 62, [2009] 4
F.C.R. 314.
[3]
Toyota argues that
this conclusion is based on one or more errors of law. We do not consider it
necessary to discuss the grounds of appeal in any detail. Despite the able written
and oral submissions of counsel for Toyota, we have not been
persuaded that Justice Tremblay-Lamer’s conclusion is based on an error of law
or any other error warranting the intervention of this Court. On the contrary,
we agree with her conclusion, substantially for the reasons she gave. Specifically,
we are not persuaded that the arguments sought to be raised by Toyota in its
judicial review application cannot be adjudicated within the statutory appeal
process, if not by the CBSA or its President, then by the CITT.
[4]
This
appeal will be dismissed with costs.
“K.
Sharlow”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-42-10
APPEAL FROM A JUDGMENT OF THE HONOURABLE
JUSTICE TREMBLAY-LAMER DATED JANUARY 22, 2010, DOCKET NO. T-1420-09
STYLE OF CAUSE: Toyota
Tsusho America Inc. v. Canada Border Services Agency and Attorney General of Canada
PLACE OF HEARING: Ottawa
DATE OF HEARING: October 12, 2010
REASONS FOR JUDGMENT OF THE COURT BY: Sharlow J.A.
Pelletier J.A.
Layden-Stevenson
J.A.
DELIVERED FROM THE BENCH BY: Sharlow J.A.
APPEARANCES:
|
Richard Gottlieb
Gordon LaFortune
|
FOR THE APPELLANT
|
|
Alexandre
Kaufman
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Gottlieb &
Associates
Montreal, Quebec
|
FOR THE
APPELLANT
|
|
Myles J.
Kirvan
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
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