Docket: A-186-15
Citation: 2017 FCA 173
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CORAM:
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WEBB J.A.
DE MONTIGNY J.A.
WOODS J.A.
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BETWEEN:
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PRUDENTIAL
STEEL ULC and
ALGOMA TUBES
INC.
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Applicants
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and
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BORUSAN
MANNESMANN BORU SANAYI VE TICARET A.S., CHUNG HUNG STEEL CORPORATION, ENERGEX
TUBE, EVRAZ INC. NA CANADA, GVN FUELS LIMITED/MAHARASHTRA SEAMLESS LTD., HLD
CLARK STEEL PIPE CO., INC., HYUNDAI HYSCO CO., LTD., IMCO INTERNATIONAL INC.,
JINDAL SAW LIMITED, PANMERIDIAN TUBULAR (USA), SEAH STEEL CORPORATION,
TENSION STEEL INDUSTRIES CO., LTD., THAI OIL PIPE CO., LTD., WELDED TUBE OF
CANADA CORP. and the ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS
FOR JUDGMENT
WEBB J.A.
[1]
Prudential Steel ULC and Algoma Tubes Inc.
brought this application for judicial review under paragraph 96.1(1)(a)
of the Special Import Measures Act, R.S.C. 1985, c. S-15 (SIMA) in
relation to the Final Determinations of Dumping and Subsidizing Respecting Certain
Oil Country Tubular Goods from Chinese Taipei, The Republic of India, The
Republic of Indonesia, The Republic of the Philippines, The Republic of Korea,
The Kingdom of Thailand, The Republic of Turkey, Ukraine, and The Socialist
Republic of Vietnam dated March 3, 2015 (Case number AD/1404 and file number
4214-43) (the Final Determination).
[2]
Prudential Steel ULC and Algoma Tubes Inc. are Canadian
producers of oil country tubular goods. They are in the unusual position of
being the applicants in this judicial review related to the Final Determination
and also the respondents in relation to the judicial review application of SeAH
Steel Corporation in relation to the Final Determination (A-178-15, 2017 FCA 172).
The applications were consolidated by an Order dated April 13, 2016.
[3]
Although these applications were consolidated separate
reasons will be issued for each application as the arguments and the parties
are different with Prudential Steel ULC and Algoma Tubes Inc. being applicants
in this application and respondents in the other application.
[4]
Prudential Steel ULC and Algoma Tubes Inc., in
their application for judicial review, state that the application is for
judicial review of the Final Determination “published
March 3, 2015” and that the “Application is
being brought pursuant to section 96.1 (a) [sic] of the Special
Import Measures Act”. Presumably the reference to section 96.1 (a)
of SIMA should be to paragraph 96.1(1)(a) of SIMA.
[5]
While Prudential Steel ULC and Algoma Tubes Inc.
clearly state in their application for judicial review and in the first and
last paragraphs of their memorandum of fact and law that this application is
related to the final determination dated March 3, 2015 a copy of the decision
dated March 3, 2015 was not included by these parties in their application
record. Instead Prudential Steel ULC and Algoma Tubes Inc. included the
statement of reasons dated two weeks later on March 18, 2015. It is also clear
from their memorandum of fact and law that the issue that is raised in this
application for judicial review relates to one paragraph of the statement of
reasons – paragraph 45:
[45] Generally,
where a green tube undergoes full heat-treatment such that the pipe is upgraded
to a higher strength casing or tubing and is end-finished and tested to API
specifications in a given country, the CBSA will determine the product to be
originating in that country for SIMA purposes.
I.
Issue
[6]
The first issue that must be determined in
relation to this judicial review application is whether or not this Court has
the jurisdiction to hear this matter.
II.
Analysis
[7]
This Court is a statutory court and derives its
jurisdiction from the Federal Courts Act, R.S.C. 1985, c. F-7, and any
other applicable statute. This Court only has the jurisdiction granted to it by
statute (Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2
S.C.R. 617, at para. 33). Although the Supreme Court of Canada in Windsor
was referring to the Federal Court, the comments would be equally applicable to
this Court which was created by the same statute.
[8]
Subsection 28 (1) of the Federal Courts Act
grants this Court the jurisdiction to hear and determine applications for judicial
review made in respect of several federal boards, commissions or other
tribunals that are listed in paragraphs (a) to (r), inclusive, of
subsection 28(1). However, the President of the CBSA is not included in this
list and, therefore, no jurisdiction is granted under subsection 28(1) of the Federal
Courts Act to hear this application for judicial review.
[9]
If this Court is to have jurisdiction to hear
and determine this application for judicial review, the jurisdiction must be
found elsewhere. In their notice of application for judicial review Prudential Steel
ULC and Algoma Tubes Inc. state that this application is being made pursuant to
paragraph 96.1 (1) (a) of SIMA. This paragraph provides as follows:
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96.1 (1) Subject
to section 77.012 or 77.12, an application may be made to the Federal Court
of Appeal to review and set aside
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96.1 (1) Sous réserve des articles 77.012 et 77.12, une demande de
révision et d’annulation peut être présentée à la Cour d’appel fédérale
relativement aux décisions, ordonnances ou conclusions suivantes:
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(a) a final determination of the President under paragraph
41(1)(a);
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a) la
décision définitive rendue par le président au titre de l’alinéa 41(1)a);
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[10]
The jurisdiction that has been granted to this
Court under this paragraph is narrow. Jurisdiction is only granted on
applications to “review and set aside” a final
determination of the President under paragraph 41(1)(a) of SIMA (Franke
Kindred Canada Ltd. v. Gacor Kitchenware (Ningbo) Co. Ltd., et al., 2012 FCA
316, [2012] F.C.J. No. 1525).
[11]
Paragraph 41(1)(a) of SIMA provides that:
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41(1) Within
ninety days after making a preliminary determination under subsection 38(1)
in respect of goods of a country or countries, the President shall
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41(1) Dans les quatre-vingt-dix jours suivant sa décision rendue
en vertu du paragraphe 38(1) au sujet de marchandises d’un ou de plusieurs
pays, le président, selon le cas :
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(a) if, on the available evidence, the President
is satisfied, in relation to the goods of that country or countries in
respect of which the investigation is made, that
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a) si, au vu des éléments de preuve
disponibles, il est convaincu, au sujet des marchandises visées par
l’enquête, des faits suivants :
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(i) the goods have been dumped or subsidized, and
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(i) les
marchandises ont été sous-évaluées ou subventionnées,
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(ii) the margin of dumping of, or the amount of subsidy on,
the goods of that country or of any of those countries is not
insignificant,
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(ii) la marge
de dumping ou le montant de subvention octroyé, relativement aux
marchandises d’un ou de plusieurs de ces pays, n’est pas minimal,
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make a final determination of dumping
or subsidizing with respect to the goods after specifying, in relation
to each exporter of goods of that country or countries in respect of which
the investigation is made as follows:
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rend une
décision définitive de dumping ou de subventionnement après avoir précisé, pour chacun des
exportateurs — visés par l’enquête — des marchandises d’un ou de plusieurs de
ces pays :
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(iii) in the case of dumped goods, specifying the goods to which
the determination applies and the margin of dumping of the goods, and
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(iii) dans le
cas de marchandises sous-évaluées, les marchandises objet de la décision et
leur marge de dumping,
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(iv) in the case of subsidized goods,
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(iv) dans le cas
de marchandises subventionnées :
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(A) specifying the goods to which the determination applies,
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(A) les
marchandises objet de la décision,
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(B) specifying the amount of subsidy on the goods, and
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(B) le montant
de subvention octroyée pour elles,
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(C) subject to subsection (2), where the whole or any part of the
subsidy on the goods is a prohibited subsidy, specifying the amount of the
prohibited subsidy on the goods; […]
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(C) sous réserve
du paragraphe (2), le montant, s’il y a lieu, de la subvention prohibée
octroyée pour elles; […]
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(emphasis added)
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(soulignement ajouté)
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[12]
The determination that is made under this paragraph
41(1)(a) of SIMA is a determination that the goods of a certain country
have been dumped. The impugned paragraph of the reasons is not a determination
of whether certain goods have been dumped but rather is a general opinion in
relation to the determination of the country of origin of certain goods that
have been heat-treated and end-finished in another country. There is nothing to
suggest, nor do Prudential Steel ULC and Algoma Tubes Inc. suggest, that if
this paragraph were to be deleted or changed it could or would affect the Final
Determination.
[13]
The only remedies that Prudential Steel ULC and
Algoma Tubes Inc. seek in relation to the Final Determination in their notice
of application are:
a)
An Order declaring that in making the
Determination, the CBSA breached the rules of procedural fairness, and/or erred
in jurisdiction, in law and/or on issues of mixed fact and law;
b)
An Order referring the Determination back to the
CBSA with directions as required by the Court’s findings in respect of these
submissions […]
[14]
In their memorandum of fact and law Prudential
Steel ULC and Algoma Tubes Inc. modified their request for a remedy and
indicate that they are seeking the following order:
84. The Applicants respectfully
request that this Honourable Court remand the Decision of the CBSA dated March
3, 2015,
(i) with instructions to apply subsection 30(2) of SIMA
to all subject goods originating in or exported from a country subject of the CBSA
investigation, regardless whether they have been further processed by heat-treatment
in a non-subject country […]
[15]
The remedies that this Court may grant in
relation to an application for judicial review brought under paragraph 96.1(1)(a)
of SIMA are set out in subsection 96.1(6) of SIMA:
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(6) On an
application under this section, the Federal Court of Appeal may dismiss the
application, set aside the final determination, decision, order or finding,
or set aside the final determination, decision, order or finding and refer
the matter back to the President or the Tribunal, as the case may be, for
determination in accordance with such directions as it considers appropriate.
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(6) La cour peut
soit rejeter la demande, soit annuler la décision, l’ordonnance ou les
conclusions avec ou sans renvoi de l’affaire au président ou au Tribunal,
selon le cas, pour qu’il y donne suite selon les instructions qu’elle juge
indiquées.
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[16]
The remedies that this Court may grant are
consistent with the right granted to this Court to hear and determine
applications for judicial review under paragraph 96.1(1)(a) of SIMA.
This Court can only dismiss the application or set aside the Final
Determination. If the Final Determination is set aside this Court can refer the
matter back to the President with directions but only if the Final
Determination is set aside. There is no authority granted to this Court to “remand” a final determination to address comments
made in the reasons that would not impact the Final Determination but which may
impact the determination of the country of origin of certain goods.
[17]
As a result this Court does not have the
jurisdiction to address the judicial review application brought by Prudential
Steel ULC and Algoma Tubes Inc. and I would dismiss this application with
costs.
“Wyman W. Webb”
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“I agree
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Yves de Montigny J.A.”
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“I agree
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J. Woods J.A.”
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