Date: 20080206
Docket: A-526-06
Citation: 2008 FCA 47
CORAM: LÉTOURNEAU
J.A.
SEXTON
J.A.
RYER
J.A.
BETWEEN:
1099065 ONTARIO INC.
(carrying on business as Outer
Space Sports)
Appellant
and
Canada (Minister of Public Safety
and Emergency Preparedness)
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Ottawa, Ontario, on February 6,
2008)
LÉTOURNEAU J.A.
[1]
This is an
appeal from a decision of Mactavish J. of the Federal Court of Canada (judge)
by which she granted the respondent’s motion to dismiss the appellant’s
application for judicial review.
[2]
The judge
ruled that the Federal Court did not have jurisdiction to hear the application
for judicial review. In the alternative, she found that if the Court has the
requisite jurisdiction to hear and decide the application, she would decline to
entertain it in view of the comprehensive scheme established in sections 58 to
68 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) as
amended (Act) which provides for an adequate alternate remedy.
[3]
For the
following reasons, we are of the view that this appeal cannot succeed.
[4]
There is
no sound basis for the application for judicial review. On August 16, 2006, an
officer of the Canada Customs and Revenue Agency, which later became the Canada
Border Services Agency (Agency) sent an e-mail to counsel for the appellant
proposing dates for an agreed meeting at which a review of a sample good could
be made to determine its value for the purpose of fixing the import duties.
Counsel for the appellant answered the e-mail with an application for judicial
review to review the so-called August 16, 2006 decision. The e-mail reads:
Good afternoon Jeffery,
I am sorry I missed your
call a short while ago. Thank you for accepting the offer to meet and
agreeing to Hamilton as the location. As
requested I have outlined below a number of dates in which I will be available.
I hope you are able to find something that fits with your schedule. If not,
please let me know and we will work together to arrange something suitable for
everyone.
In attendance at the
meeting will also be David Fyfe, Toronto Regional Recourse Officer and Debbie
Main, Hamilton Regional Recourse Division Manager. The intent of the meeting
will be to review CV sample 65 and match it to the documentation provided with
your submission and the latest response. I would like to continue with
other CV samples as well if time permits. The intent will be to accurately
determine the Customs value which will depend on the proper characterization of
the role and status of each of the parties to the transaction.
Available
dates in August: 22, 24, 25, 29, 31.
Available
dates in September: 12, 14, 19, 20.
Available
dates in early October: 3, 4, 5.
Please look at your
schedule and let me know your preference. I will make any necessary
arrangements from this end after the date is agreed.
Regards,
Teresa Tiberi
Regional Recourse
Officer, Hamilton
Canada Border Services
Agency
[Emphasis added]
[5]
The judge
expressed serious doubts that the August 16, 2006 e-mail constituted a
“decision” subject to judicial review. At paragraphs 20 and 21 of her reasons
for judgment she wrote:
[20] Before
addressing the issues identified by the parties, I would further observe that
there seems to me to be a real question as to whether there is a “decision”,
“order” or “matter” in this case, as those terms are used in section 18.1 of
the Federal Courts Act, that is susceptible to judicial review, even
taking into account the broad interpretation of these concepts advocated in
cases such as Markevich v. Canada, [1999] F.C.J. No. 250, 3 F.C. 28.
[21] That is, I have
trouble understanding how a letter proposing a meeting and suggesting dates
would qualify as the sort of administrative action that is subject to the
supervisory jurisdiction of this Court.
[6]
The issue
of whether the e-mail letter was a decision was alluded to by the respondent
but the respondent’s motion to dismiss was not argued on the basis that it was
not a decision. Because of that the judge generously assumed that there had
been a “decision” made by the Agency. She then proceeded to hear the
respondent’s arguments on its motion to dismiss.
[7]
In
response to the present appeal, the respondent submits, as an additional
argument to sustain the judgment under appeal, that the e-mail message dated
August 16, 2006 was not in fact a “decision” amenable to judicial review within
the meaning of subsection 18.1(1) of the Federal Courts Act.
[8]
Counsel
for the respondent relies upon the decision of the Supreme Court of Canada in Perka
v. The Queen, [1984] 2 S.C.R. 232, at page 240. The Supreme Court of Canada
ruled that in both civil and criminal matters a respondent on appeal may
advance any argument in support of the decision provided it is not an “entirely
new argument which had not been raised below and in relation to which it might
have been necessary to adduce evidence at trial”: ibidem.
[9]
We are
satisfied that this simple letter proposing dates for a meeting is not a
“decision”, “order” or “matter” amenable to judicial review. Counsel for the
appellant could have simply ignored the letter or declined the proposal.
Nothing else would have ensued from his refusal to retain one of the suggested
dates for the meeting. There was nothing compelling or adversely affecting in
the impugned letter. In our view, in no way can it be said that the appellant,
as required by subsection 18.1(1), was directly affected by the letter so as to
give rise to a judicial review proceeding.
[10]
In
accordance with the Federal Courts Rules, the letter was filed in the
judicial review proceedings and in the record on appeal. Determining whether it
was a decision, an order or a matter within the meaning of section 18.1 does
not require additional evidence to be filed. The appellant was invited at the
hearing on appeal to make submissions on the issue. His submissions have failed
to convince us that subsection 18.1(1) is engaged by the letter. Our conclusion
in this respect is sufficient to dispose of the appeal.
[11]
In
addition, we see no error in the judge’s decision which warrants our intervention.
[12]
As Lemieux
J. rightly pointed out in Abbott Laboratories, Ltd. v. Canada (Minister of National
Revenue),
[2004] F.C.J. No. 410, 2004 FC 140, endorsed by the judge in the present
instance, sections 59 to 68 of the Act contain three privative clauses ensuring
that the review of decisions under the Act is conducted according to the
process therein which includes a review by the Canadian International Trade
Tribunal and, ultimately, an appeal to this Court on a question of law.
[13]
It is not
necessary for us to decide whether the comprehensive review process set up by
the Act has ousted the jurisdiction of the Federal Court of Canada to entertain
an application for judicial review. However, we are mindful of the following
warning of the Supreme Court of Canada in Canada v. Addison & Leyen Ltd., 2007 SCC 33, at paragraph
11:
Reviewing courts should
be very cautious in authorizing judicial review in such circumstances. The
integrity and efficacy of the system of tax assessments and appeals should be
preserved.
Parliament has set up a complex structure to deal with a multitude of
tax-related claims and this structure relies on an independent and specialized
court, the Tax Court of Canada. Judicial review should not be used to
develop a new form of incidental litigation designed to circumvent the system
of tax appeals established by Parliament and the jurisdiction of the Tax Court.
Judicial review should remain a remedy of last resort in this context.
[Emphasis added]
This warning is apposite in this case.
[14]
As for her
decision to decline to entertain the application for judicial review, we agree
with her that the review process under the Act constituted an adequate alternate
remedy. This is especially true in view of the appellant’s admission before her
that all the issues that his client wished to have determined in this case can
be addressed through the review process under the Act and that that review
process could give it the relief that it seeks by way of judicial review: see
paragraphs 35 and 42 of her reasons for judgment.
[15]
For these
reasons, the appeal will be dismissed with costs.
“Gilles
Létourneau”
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