Docket: A-34-15
Citation:
2016 FCA 20
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CORAM:
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TRUDEL J.A.
STRATAS J.A.
RYER J.A.
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BETWEEN:
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CANADIAN TIRE
CORPORATION, LIMITED
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Appellant
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and
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PRESIDENT OF
THE CANADA BORDER SERVICES AGENCY
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
January 25, 2016).
STRATAS J.A.
[1]
Canadian Tire Corporation, Limited appeals from
the decision of the Canadian International Trade Tribunal dated October 29,
2014 (appeal no. AP-2012-035): 2014 CITT 95. In that decision, the Tribunal
found that Canadian Tire’s request to the President of the Canada Border
Services Agency for a redetermination of anti-dumping duties was in fact an
administrative appeal and was not just a request to correct clerical and arithmetical
errors. In these circumstances, the Tribunal upheld the President’s decision to
issue a single re-determination, addressing Canadian Tire’s request and
re-determined the duties owed under section 59 of the Special Import
Measures Act, R.S.C. 1985, c. S-15, using values generated as a result of a
re-investigation conducted by the Canada Border Services Agency.
[2]
In its appeal, Canadian Tire acknowledges that
the standard of review is reasonableness. It raises two issues in this appeal:
•
Was it reasonable for the Tribunal to find that
Canadian Tire’s request was filed as an administrative appeal under section 58
of the Act rather than as a request to correct clerical or arithmetical errors
under subsection 12(2) of the Act?
•
Was it reasonable for the Tribunal to find that
the President could examine the values used in the determination of duties
under section 59 of the Act?
[3]
At the core of each issue raised is a question
regarding how various provisions of the Act and the Special Import Measures
Regulations, SOR/84-927 are to be interpreted. These qualify as questions
of law that this Court can entertain under section 62 of the Act.
[4]
Canadian Tire urges us to give the Tribunal only
a limited margin of appreciation on these issues. But Canadian Tire does
concede that the standard of review is not correctness. On the current state
of authorities from the Supreme Court and, in particular, the presumption that
the standard of review is reasonableness for administrative interpretations of
home statutes, this is an appropriate concession.
[5]
On the first issue, we note that the Tribunal
based its conclusion—that Canadian Tire’s request was filed as an
administrative appeal and not as a request to correct clerical or arithmetic
errors—primarily upon its interpretation of subsection 12(2) of the Act as it applied
to the particular facts of this case. In our view, it is not necessary to be
precise in the margin of appreciation that we should afford the Tribunal on
this point. We are not persuaded that the Tribunal committed any reviewable
error in interpreting this subsection and related sections. In the case of
subsection 12(2), it drew upon dictionary definitions, its appreciation of the
legislative scheme, and definitions of “clerical error”
from Federal Court cases, albeit in another context, and then verified its
assessments by examining relevant international agreements (at paragraphs
45-55). We have not been persuaded that the Tribunal reached an interpretation
that was unacceptable or indefensible.
[6]
On the second issue, the Tribunal found that the
President, acting under section 59 of the Act, was not limited to only the
issues raised by Canadian Tire in its section 58 request, but could go further
and engage in a full determination of the amounts owing to the extent permitted
by the words of section 59. In reaching this decision, the Tribunal interpreted
section 59 of the Act. It did so, in careful and thorough reasons, by looking
at the words of the section, other words in the Act, and the purpose of the
Act. In our view, on this the Tribunal did not err. We substantially agree with
the Tribunal’s analysis and conclusions at paragraphs 62-68 of its decision.
[7]
Contrary to Canadian Tire’s submission at
paragraphs 58-60 of its memorandum, we are of the view that the Tribunal
reasonably interpreted the Act and the Regulations to find that the Canada
Border Services Agency could establish a reasonable amount for profit using
discrete 60-day periods on the facts of this case: see paragraphs 93-97 of the
Tribunal’s decision. This is consistent with this Court’s earlier reasons in Uniboard
Surfaces Inc. v. Kronotex Fussboden GmbH and Co., 2006 FCA 398, [2007]
F.C.R. 101 at paragraph 65, which recognized that the President has a “wide discretion” in the method to be used when
determining normal values.
[8]
Finally, contrary to Canadian Tire’s submissions
at paragraphs 61-63 of its memorandum, the Tribunal (at paragraph 102 of its
reasons) properly applied the cascading hierarchy of paragraph 11(1)(b)
of the Regulations when establishing a reasonable amount for profit.
[9]
Overall, the Tribunal’s decision is reasonable.
Therefore we shall dismiss the appeal with costs.
David Stratas"
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