Dockets:
A-534-15
A-535-15
A-536-15
Citation: 2016 FCA 257
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CORAM:
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TRUDEL J.A.
STRATAS J.A.
SCOTT J.A.
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Docket: A-534-15
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BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Appellant
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and
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BRI-CHEM SUPPLY LTD.
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Respondent
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Docket: A-535-15
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AND BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Appellant
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and
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EVER GREEN ECOLOGICAL SERVICES INC.
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Respondent
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Docket: A-536-15
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AND BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Appellant
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and
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SOUTHERN PACIFIC RESOURCE CORP.
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Respondent
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REASONS FOR
JUDGMENT
STRATAS J.A.
A.
Introduction
[1]
In three decisions dated
October 16, 2015, the Canadian International Trade Tribunal upheld the ability
of importers to correct certain customs declarations in order to obtain more
favourable tariff treatment: Bri-Chem Supply Ltd. (file AP-2014-017); Ever
Green Ecological Services Inc. (file AP-2014-027) and Southern Pacific
Resource Corp. (file AP-2014-028). In the course of doing this, the
Tribunal rejected the submissions of the agency that administers the tariff
regime, the Canada Border Services Agency or CBSA.
[2]
The Tribunal’s decisions
turned upon the Canadian International Trade Tribunal’s interpretation of the Customs
Act, R.S.C. 1985 (2d. Supp.), c. 1, particularly sections 32.2 and 74. On
this, the Tribunal adopted the interpretations and reasoning in its earlier
decision in Frito-Lay Canada Inc. (file AP-2010-002). In the course of
its reasons, the Tribunal found that the CBSA committed an abuse of process by
failing to apply its earlier decision in Frito-Lay when administering
the Act and by relitigating Frito-Lay before the Tribunal.
[3]
The Tribunal’s reasons for
decision are set out in Bri-Chem; it adopted these reasons in Ever
Green and Southern Pacific.
[4]
The Attorney General of Canada
appeals all three decisions and the appeals have been consolidated. The
Attorney General also challenges the Tribunal’s finding that the CBSA committed
an abuse of process. These are the Court’s reasons in the consolidated appeals.
A copy of these reasons shall be placed in each court file.
[5]
I conclude that the
Tribunal’s decisions, including its ruling on abuse of process, are reasonable.
I do not fully agree with the principles the Tribunal applied in making the abuse
of process ruling. Nevertheless, the ruling is sustainable on this record.
Therefore, I would dismiss the appeals with costs.
B.
The basic facts
[6]
In these three cases, goods qualifying
under the North American Free Trade Agreement (NAFTA) were imported into
Canada from the United States duty-free using the Most Favoured Nation (MFN) tariff
treatment. The importers declared certain tariff classifications for the goods.
[7]
Later, as a result of CBSA
audits, the importers discovered that the tariff classifications they had
chosen for the goods were incorrect. After discovering their error, they filed a
correction to the tariff classifications. They went further and notified CBSA
of a change to the tariff treatment: the goods went from a duty-free tariff
classification with MFN tariff treatment to a duty-free classification with
NAFTA treatment. If the tariff treatment did not change from MFN to NAFTA, the
goods would have been subject to duty.
[8]
In doing this, the importers
relied upon section 32.2 of the Customs Act. In particular, subsection
32.2(2) provides that “an
importer…of goods…shall, within ninety days after the importer…has reason to
believe that…the declaration of tariff classification…is incorrect,…make a
correction to the declaration”. The importers
did just that: within ninety days, they corrected the tariff classifications on
the declarations. They also changed the tariff treatment from MFN to NAFTA.
[9]
The CBSA objected to what
the importers had done. The matter fell before the Tribunal. Before the
Tribunal, the CBSA focused on the importers’ choice of MFN tariff treatment and
told the Tribunal that MFN treatment is “not an incorrect tariff treatment”; after all, the goods could indeed be subject to MFN treatment.
Thus, the choice of MFN treatment could not be changed.
[10]
In its reasons for decision
in Bri-Chem, the Tribunal saw nothing wrong with what the importers had
done (at para. 18):
Importantly,
Bri-Chem did not correct the “origin” of the goods; they were always stated as
being of U.S. origin. When Bri-Chem corrected the tariff classification, the
accompanying choice of the UST/NAFTA tariff treatment that was always available
to its goods of U.S. origin simply maintained the status quo ante of the previously
claimed zero rate of duty and was, therefore, revenue-neutral.
Further, in the
Tribunal’s view, the CBSA was following a wrong methodology: the CBSA was
focusing on “a purported
‘correction’ to tariff treatment, whereas the proper analytical starting
point is that the only ‘correction’ that took place was to tariff
classification” (at para.
17) [emphasis in original].
[11]
The CBSA also took the
position that importers are not entitled to claim the benefits of NAFTA more
than one year after importation. The CBSA argued that the one-year limitation
for applications for refunds under section 74 of the Customs Act applied
to non-revenue corrections under section 32.2 of the Act. The Tribunal rejected
this as follows (at paras. 22-23):
Further, the CBSA’s position continues to be
predicated on a misunderstanding of the two regimes of the Act (section 32.2
for Corrections and section 74 for Refunds). What Parliament intended through
section 32.2 was to ensure that erroneous declarations of origin, tariff classification
and/or value for duty be corrected and that any duties owed be paid, but
only when duties are owing.
Meanwhile,
subsection 74(1) applies to “…a person who paid duties on any imported
goods…” which is clearly not the case here. Section 74 does not allow the CBSA
to operate schemes which would ensnare importers into duties on goods that are
legitimately entitled to enter Canada duty-free; that is tantamount to taxation
in the absence of legislation….[emphasis in original]
[12]
The Tribunal stressed that its
earlier decision in Frito-Lay decided all of these issues. It adopted all
of its conclusions and reasoning in Frito-Lay.
[13]
The Tribunal expressed
concern that the CBSA had relitigated Frito-Lay without justification.
Indeed, the CBSA had “knowingly
frustrated importers from the applicability of Frito-Lay in either similar or
even identical situations of fact” (at para. 24) and had “embark[ed] on what appears to have been a policy of outright
disregard for Frito-Lay” (at
para. 25). In support of its comments, the Tribunal stressed the need for its
decisions to be respected in order to further stability and predictability (at
para. 37):
…respectful and
responsible application of Tribunal precedent is important for stability and
predictability in the importing community. Importers should not be subjected to
costs and unfair litigation of cases for matters that have already been dealt
with through proper legal authority.
[14]
The Attorney General appeals
to this Court from the Tribunal’s decisions.
C.
Standard of review
[15]
In this Court, the parties
submit that we are to review the Canadian International Trade Tribunal’s
decisions on the basis of reasonableness. I agree. The Tribunal is entitled to
a margin of appreciation because it has “particular
familiarity” with the Customs Act provisions it interpreted and
the provisions are “closely connected to its function”:
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 54;
see also C.B. Powell Limited v. Canada (Border Services Agency), 2011
FCA 137, 418 N.R. 33 at paras. 19-22.
[16]
The Supreme Court of Canada
recently adopted reasonableness as the standard of review of Tribunal
interpretations of the Customs Tariff, S.C. 1997, c. 36. It noted that
the Tribunal “has specific
expertise in interpreting ‘the very complex customs tariff and the
international and national rules for its interpretation’” and the questions of
legislative interpretation involved in the case were “of ‘a very technical nature’ which the [Tribunal]
will often be better equipped than a reviewing court to answer”: Canada (Attorney
General) v. Igloo Vikski Inc., 2016
SCC 38 at para. 17, citing Star Choice Television Network Inc. v. Canada
(Customs and Revenue Agency), 2004 FCA 153 at para. 7 and Minister
of National Revenue (Customs and Excise) v. Schrader Automotive Inc. (1999), 240
N.R. 381 at para. 5.
[17]
The words
of the Supreme Court in Igloo apply equally here. The Customs Tariff
at issue in Igloo and the Customs Act at issue here are different
statutes. But they are related. Further the particular issues of statutory
interpretation concerning the provisions at issue here are similar to those in Igloo
in nature and technical complexity.
D.
Reviewing the Tribunal’s
decision for reasonableness
[18]
In these consolidated appeals,
we need not delve into any of the subtleties in the law governing the meaning
of “reasonableness” and how much deference the Tribunal is owed: even
if the standard of review were correctness, I would agree with the Canadian
International Trade Tribunal’s interpretation of the relevant provisions
substantially for the reasons it gave.
[19]
As mentioned above, the Tribunal
adopted its earlier decision in Frito-Lay in the three decisions now
under appeal. The outcome of the Tribunal in Frito-Lay is reasonable;
indeed, I agree with that outcome and the reasoning offered in support of it. That
reasoning is consistent with the reasons of this Court in C.B. Powell,
above.
[20]
Before us, the Attorney
General submits, as it did before the Tribunal in this case and as in Frito-Lay,
that a declaration of MFN tariff treatment is not wrong and, thus, does not
fall for correction within the context of a section 32.2 revenue-neutral
correction to tariff classification and tariff treatment.
[21]
The respondents point out
that if that is true, then a practical, real-world problem arises, one that the
Tribunal—possessing real-world knowledge and expertise—appreciated and took
into account when interpreting section 32.2. An importer that does not claim
NAFTA treatment at the time of importation and that does not seek a refund of
duties under section 74 of the Customs Act finds itself in a dilemma. In
order to claim NAFTA treatment, the importer must have a valid certificate of
origin at the time of making the declaration. But often the importer is waiting
to receive the certificate of origin from the exporter or manufacturer. As a
result, the importer has no choice but to claim MFN treatment. Under the
Attorney General’s interpretation, the importer would never be able to change
the tariff treatment even after receiving a valid certificate of origin from
the manufacturer or exporter.
[22]
The respondents note that
the CBSA recognized the unacceptability of this problem and came up with an “administrative” solution where it would treat non-revenue
claims for NAFTA tariff treatment as applications for refunds under section 74.
But, as the Tribunal correctly noted, this was contrary to the wording of
section 74. In its view, this was a “spurious theory” adopted
by the CBSA to avoid the application of Frito-Lay.
[23]
Whether or not a correction
to tariff classification under section 32.2 allows for a concurrent
re-evaluation of tariff treatment is a matter of statutory interpretation. In
this Court and before the Tribunal, the Attorney General interpreted section
32.2 narrowly, arguing that a correction to tariff classification cannot lead
to a subsequent correction of tariff treatment.
[24]
The Tribunal disagreed,
noting that tariff classification cannot be decoupled from tariff treatment.
[25]
In my view, this interpretation
is reasonable. The Tribunal—equipped to appreciate how the technical provisions
of the Customs Act address the real-world problems of trade—reached an acceptable
interpretation of section 32.2 consistent with its wording. Given that an
importer will choose tariff treatment based on tariff classification, a
correction of one necessitates the re-evaluation of the other.
[26]
The Attorney General submits
that sections 35.1 and 74 of the Customs Act, section 24 of the Customs
Tariff and the Proof of Origin of Imported Goods Regulations, SOR/98-52
support its position.
[27]
Again, I disagree. Section
35.1 of the Customs Act does not limit when an importer may claim NAFTA
tariff treatment, but rather sets out how an importer may prove the origin of
goods. Section 74 of the Customs Act does not provide any general
limitation on claims for NAFTA tariff treatment. Finally, section 24 of the Customs
Tariff and the Proof of Origin of Imported Goods Regulations do not
set out rules limiting when claims for NAFTA tariff treatment may be made.
[28]
Indeed this submission was
soundly and correctly rejected by the Tribunal in Frito-Lay (at para.
64):
[T]hat position is not founded in law … section 74 of the
Act is applicable only in the case of a refund application.
Accordingly, because none of the transactions involve a request for a refund,
section 74 is wholly inapplicable to this matter. Rather, according to
subsection 32.2(4), the obligation to make the corrections provided for
under subsection 32.2(2) exists for a four-year period after initial
accounting… [emphasis in original]
[29]
The Tribunal’s decision is
also consistent with articles 501-503 of NAFTA. On this, the Attorney General
pointed us to certain United States cases. These interpret certain domestic provisions
designed to implement NAFTA. The Attorney General submitted that these
interpretations differ from the interpretations adopted by the Tribunal. That
may be so, but the interpretations of domestic provisions by United States
courts do not suggest that the Tribunal, interpreting differently-worded legislation,
has adopted an unreasonable interpretation of that legislation.
[30]
Before us, the Attorney
General invoked NAFTA article 501, paragraph 502(3) and subparagraph 502(1)(c)
in support of the proposition that an importer may claim the benefits of NAFTA
on only three occasions: at the time of accounting, when applying for a refund
and at the request of a customs officer. I disagree.
[31]
Article 501 states that a
NAFTA certificate of origin “shall
be accepted by [a NAFTA Party’s] customs administration for four years after
the date the [c]ertificate was signed.”. It does not state that a NAFTA claim must be made at the
time of accounting. Article 502(3) permits a claim for a refund of duties to be
made within one year of the date of importation. It does not impose a one-year
limit on claims for NAFTA when no refund is sought. And Article 502(1)(c)
simply requires an importer who has made a NAFTA claim to produce a certificate
of origin at the request of the administration, nothing more.
[32]
For the foregoing reasons,
the Tribunal decisions are reasonable.
E.
The abuse of process issue:
can administrators decline to follow tribunal decisions?
[33]
As mentioned above, the Canadian
International Trade Tribunal found that the CBSA had committed an abuse of
process: it failed to apply the Tribunal’s earlier decision in Frito-Lay
when administering the Customs Act and it improperly relitigated Frito-Lay
before the Tribunal.
[34]
In the course of its
reasons, the Tribunal noted that the Attorney General, arguably acting on the
CBSA’s behalf, had appealed Frito-Lay to this Court but had discontinued
the appeal. In its view, that should have been the end of the matter. Thereafter,
the CBSA should have applied Frito-Lay when administering the Act. It
should have applied Frito-Lay when considering the respondent importers’
requests for correction in these three cases.
[35]
In this Court, the Attorney
General challenges the Tribunal’s finding of abuse of process. The Attorney
General submits that it is inconsistent with the legal principle that one panel
of an administrative tribunal does not bind later panels. Based on this
principle, it says that the CBSA was free to relitigate Frito-Lay in
another case before a later panel of the Tribunal.
[36]
The respondents disagree.
They submit that the Tribunal was quite right in finding that the CBSA had
committed an abuse of process. Echoing the reasons of the Tribunal, the
respondents submit that an administrator like the CBSA is bound by and must always
follow the jurisprudence of a tribunal that adjudicates its cases. The CBSA was
wrong in failing to apply the Tribunal’s decision in Frito-Lay and committed
an abuse of process in relitigating it before the Tribunal.
[37]
In my view, more principles than
those identified by the parties bear upon this problem. And the principles are more
nuanced than the parties and the Tribunal suggest. Despite this, in response to
questioning from the Court, counsel largely agreed on the principles, their
nature and their operation.
[38]
It will be necessary to discuss
the principles at a level of generality. In this discussion, I shall describe
an adjudicative tribunal like the Canadian International Trade Tribunal as a “tribunal”
and an administrator like the CBSA as an “administrator”.
[39]
Tribunals and administrators
are both public bodies established by legislation. Both wield public power and
both must obey all relevant legislation, often the same legislation. They are independent
from each other. But they are in a hierarchical relationship. Tribunals pass
judgment on the acts of administrators.
[40]
The starting point for
tribunals is that while they should try to follow their earlier decisions, they
are not bound by them: IWA v. Consolidated Bathurst Packaging Ltd.,
[1990] 1 S.C.R. 282 at pages 327-28 and 333; Tremblay v. Quebec (Commission
des affairs sociales), [1992] 1 S.C.R. 952 at pages 974; Domtar Inc. v.
Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2
S.C.R. 756 at pages 798-799. Further, within limits, it is possible for one
tribunal panel to disagree with another and still act reasonably: Wilson v.
Atomic Energy of Canada, 2016 SCC 29, 399 D.L.R. (4th) 193.
[41]
However, that is only the starting
point. Other principles come to bear. To name one, a tribunal is constrained by
any rulings and guidance given by courts that govern the facts and issues in
the case: Canada (Attorney General) v.
Canadian Human Rights Commission,
2013 FCA 75, 444 NR 120 at paras. 18-19.
[42]
Another principle is that, in
a case like this, Parliament—with a view to furthering efficient and sound
management over an area of administration—has passed a law empowering a tribunal
to decide certain issues efficiently and once and for all. Certainty,
predictability and finality matter. Allowing tribunal panels to disagree with
each other without any limitation tears against the need for a good measure of certainty,
predictability and finality.
[43]
In some contexts, certainty,
predictability and finality arguably matter even more. Here, for example, we
are dealing with commercial importation and international trade, an area where
the CBSA, customs brokers and others are deluged every day by millions of goods
seeking quick, efficient and predictable entry to our domestic market: see the
Tribunal decision at para. 37, quoted in para. 13, above.
[44]
Therefore, while it is true
that later tribunal panels are not bound by the decisions of earlier tribunal panels,
it is equally true that later panels should not depart from the decisions of earlier
panels unless there is good reason.
[45]
A number of principles
govern administrators. An administrator whose actions are regulated by a tribunal—like
the CBSA whose decisions are regulated by the Canadian International Trade
Tribunal—must follow tribunal decisions. Certainty, predictability and finality
matter here as well. So does the principle of tribunal pre-eminence: tribunals bind
those who are subject to their jurisdiction, including administrators, subject
to any later orders by reviewing courts.
[46]
But this general principle admits
at least of two exceptions, one uncontroversial, another more controversial.
[47]
It is uncontroversial that as
long as an administrator is acting bona fide and in accordance with its
legislative mandate, an administrator can assert—where principled and warranted—that
an earlier tribunal decision on its facts does not apply in a matter that has different
facts. In other words, in pursuit of its legislative mandate, an administrator can
sometimes distinguish an earlier tribunal decision on its facts and act
accordingly.
[48]
More controversial, however,
are cases where an administrator feels it can and must act in a certain way but
an earlier tribunal decision that it cannot distinguish stands in its way. And
the administrator has a well-founded, bona fide concern that the earlier
decision is flawed and should not be followed.
[49]
In certain circumstances
described below, the administrator should be allowed to act upon its view of
the matter and, when challenged, should be allowed to raise with the tribunal
the flaw it sees. For one thing, the administrator might be right: the earlier tribunal
decision might be flawed and in bad need of correction. Unless the administrator
is allowed to raise the issue, the tribunal will never be able to consider the
matter, nor will a reviewing court receive it. As a result, a serious error
might persist, possibly perpetually. To the extent possible, this sort of
immunization from correction should be avoided: Canada (Attorney General) v.
Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45,
[2012] 2 S.C.R. 524; Harris v. Canada, [2000] 4 F.C.R. 37, 187 D.L.R.
(4th) 419; Slansky v. Canada (Attorney General), 2013 FCA 199, 364
D.L.R. (4th) 112 at para. 313 (dissenting, but not on this point).
[50]
In my view, an administrator
can act or take a position against an earlier tribunal decision only if it is
satisfied it is acting bona fide in accordance with the terms and
purposes of its legislative mandate and only if a particular threshold has been
crossed. This threshold should be shaped by two sets of clashing principles
discussed above: the principles of certainty, predictability, finality and
tribunal pre-eminence on the one hand, and, on the other, ensuring that
potentially meritorious challenges of arguably wrong decisions can go forward.
[51]
What is the threshold? In an
administrative regime like the one before us, the administrator must be able to
identify and articulate with good reasons one or more specific elements in the tribunal’s
earlier decision that, in the administrator’s bona fide and informed view,
is likely wrong. The flaw must have significance based on all of the circumstances
known to the administrator, including the probable impact of the flaw on future
cases and the prejudice that will be caused to the administrator’s mandate, the
parties it regulates, or both.
[52]
This is something far
removed from an administrator putting essentially the same facts, the same law
and the same arguments to a tribunal on the off-chance it might decide
differently. Tribunal proceedings are not a game of roulette where a player,
having lost, can just hope for better luck and try again.
[53]
When the administrator tries
to persuade the tribunal that its earlier decision should no longer be followed,
the administrator must address at least the matters discussed above, offering
submissions that are not simply a rerun. They must go further than just a modest
modifying or small supplementing of the earlier submissions. The tribunal may
then decide whether its earlier decision remains good law after considering the
evidence before it, the terms and purposes of the legislation, and any other
legal standards that properly bear on its decision.
[54]
When the administrator
decides that an earlier tribunal decision can and should be challenged, the
administrator, and later the tribunal, might wish to expedite matters so that
the matter may be clarified as soon as possible.
[55]
I note that there may be
other ways of resolving this sort of issue. For example, an administrator and
affected parties in a case pending before the tribunal can request the tribunal
to state a question of law, jurisdiction, practice or procedure to the Court: Federal
Courts Act, R.S.C. 1985, c. F-7, section 18.3. In some circumstances—especially
where the question does not call for any particular administrative
appreciation—a tribunal might well grant the request in order to advance the
objectives of efficiency and certainty. As well, in the end, an administrator,
dissatisfied by a tribunal ruling, can always try to get it reversed by asking
for a legislative amendment.
[56]
I also note that other particular
forms of recourse may be available under specific legislative regimes. For
example, under section 70 of the Customs Act, the President of the CBSA can
refer directly to the Canadian International Trade Tribunal for decision “any questions relating to the origin, tariff classification
or value for duty of any goods or class of goods.”.
F.
The Tribunal’s finding that
the CBSA had committed an abuse of process
[57]
As mentioned above, the
Canadian International Trade Tribunal found that the CBSA’s relitigation of Frito-Lay
in this case was an abuse of process. Based on the discussion above and bearing
in mind the deference we must show to factually-suffused findings made by the
Tribunal, there are no grounds for interfering with that finding.
[58]
After the release of Frito-Lay
and following the discontinuance of the appeal from it, the CBSA took
administrative positions contrary to it without explanation, justification
or action of the sort required: see Tribunal decision at para. 24 and see
paras. 50-56 above. Later, when appearing before the Canadian International
Trade Tribunal, the CBSA did not focus on particular passages in Frito-Lay
that it felt were wrong. By and large, the CBSA simply reargued the issues
decided in Frito-Lay on virtually identical facts and law, without
identifying any flaws, let alone serious flaws, in the particular reasoning in Frito-Lay.
In fact, in its written submissions to the Tribunal, the CBSA mentioned Frito-Lay
not as a leading point, but more or less as an after-thought: see Appeal Book,
pp. 572-599. The written submissions and oral argument before the Tribunal in
these cases do not show arguments much different from those the Tribunal
rejected in Frito-Lay; in these cases, the Tribunal had evidence before
it that could lead it to the conclusion that, at best, it was receiving only a
modest modification or small supplementing of arguments it had received in Frito-Lay:
see the transcript in the Southern Pacific case at pages 193-194; Appeal
Book at pages 1137-1138. It is true that on this record, there is no evidence
of malice or ill-will. And it is also true that when an administrator may act
contrary to tribunal decisions and may relitigate points before a tribunal was
somewhat uncertain. But a finding of abuse of process does not require malice,
knowledge or ill-will.
[59]
Also relevant is the fact
that the Tribunal’s decision in Frito-Lay was appealed to this Court but
the appeal was discontinued for whatever reason. Rather than fighting Frito-Lay
in this Court, the CBSA chose to fight it by resisting it at the administrative
level: Tribunal decision at para. 24.
[60]
Discontinuances can have
consequences. While they are not dismissals, they are still meant to terminate
earlier proceedings. Later attempts by the discontinuing party or its proxies
to relitigate the issues can face obstacles. As well, in public law cases,
other considerations may affect the ability to relitigate. See Philipos v.
Canada (Attorney General), 2016 FCA 79 at paras. 17-23.
[61]
The discontinuance of Frito-Lay
placed a higher tactical burden upon the CBSA in this case to demonstrate its
good faith and to offer good reasons to the Tribunal both as to why Frito-Lay
should not be followed and why the appeal from Frito-Lay was
discontinued. The CBSA did not discharge this tactical burden.
[62]
Overall, the evidence in the
record, viewed in light of the principles set out above and bearing in mind the
deference we must show to fact-suffused decisions, sustains the Tribunal’s
finding.
G.
Proposed disposition
[63]
For the foregoing reasons, I
would dismiss the appeals.
[64]
The respondent importers
seek their costs of the appeals on a solicitor and client basis. In support of
this, they invoke the CBSA’s conduct at the administrative level below.
However, under Rule 400 of the Federal Courts Rules, SOR/98-106, the
focus is on the “proceedings” in this Court, not
matters in the administrative levels below. Under Rule 2, both “appeals” and “applications”
are “proceedings”.
[65]
The respondents fairly
conceded that there was nothing in the conduct of these appeals that would
justify an award of solicitor and client costs. In my view, there is nothing to
remove these appeals from the usual disposition that costs shall follow the
event. Therefore, I would grant the respondents their costs of the appeals.
Since the appeals were consolidated, I would grant one set of costs.
[66]
The panel wishes to thank
counsel for their excellent submissions.
“David Stratas”
“I agree
Johanne Trudel J.A.”
“I agree
A.F. Scott J.A.”
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