Date: 20230815

Docket: T-1199-23

Citation: 2023 FC 1102

Ottawa, Ontario, August 15, 2023

PRESENT: The Honourable Madam Justice Turley

BETWEEN:

ÇOLAKOĞLU METALURJI A.S., İÇDAS ÇELIK ENERJI TERSANE VE ULAŞIM A.Ş., EKINCILER DEMIR VE ÇELIK SANAYI A.Ş., KROMAN ÇELIK SANAYI A.Ş., KAPTAN DEMIR ÇELIK ENDÜSTRI VE TICARET A.Ş., IRPEX INTERNATIONAL INC. AND TURKISH STEEL EXPORTERS’ ASSOCIATION

Applicants

and

ALTASTEEL INC., ARCELORMITTAL LONG PRODUCTS CANADA, G.P., GERDAU AMERISTEEL CORPORATION, JEBSEN & JESSEN METALS GMBH, AND MAX AICHER (NORTH AMERICA) INC.

Respondents

REASONS FOR ORDER AND ORDER

I. Overview

[1] The Attorney General of Canada [AGC] brought a motion in writing to remove the named respondents and to be added as the only respondent pursuant to Rule 303(2) of the Federal Courts Rules, SOR 98/106 [the Rules]. Alternatively, the AGC argues it should be added as a respondent in accordance with either Rule 303(1)(a) or 104(1)(b). The AGC further seeks to strike the application for judicial review in its entirety as being bereft of any chance of success.

[2] For the reasons that follow, I dismiss the AGC’s motion to remove the named respondents and to be added as the only respondent. Rule 303(2) requires that the AGC be named as respondent by default where there are no persons that can be named as respondent under Rule 303(1). I am satisfied that the Canadian domestic producers are “directly affected” by the relief sought in the application in accordance with Rule 303(1)(a) and, therefore, are properly named as respondents. Further, there is no basis upon which the AGC should be added as a respondent, either under Rule 303(1)(a) or 104(1)(b).

[3] Given that the AGC is not added as a party, I am not considering the AGC’s request for an order striking the application.

II. Issues

[4] The issues for determination on this motion are as follows:

• a)whether the AGC should be added as the sole respondent in accordance with Rule 303(2) on the basis that the named respondents are not “directly affected” by the relief sought in the underlying application as required by Rule 303(1)(a);

• b)whether there is any basis to add the AGC as a respondent under Rule 303(1)(a) or as a necessary party under Rule 104(1)(b).

[5] In terms of the first issue, I am only considering whether four of the named respondents are “directly affected”: AltaSteel Inc., Arcelor Mittal Long Products Canada, G.P., Gerdau Ameristeel Corporation and Max Aicher (North America) Inc [the Respondent Canadian domestic producers]. These Canadian manufacturers of concrete reinforcing bar [rebar] filed Notices of Appearance and jointly responded to the AGC’s motion by filing evidence and written representations.

[6] The fifth respondent, Jebsen & Jessen Metals GmbH, an importer of Turkish rebar, did not file a Notice of Appearance under Rule 305 of the Rules and did not seek to file any submissions in response to the AGC’s motion. In the circumstances, given that no specific submissions were made by the parties or the AGC about whether Jebsen & Jessen Metals GmbH is “directly affected” by the relief sought in this application as set out in Rule 303(1)(a), I decline to make any conclusions in that regard.

III. Background

[7] This application seeks judicial review of the Canadian Border Services Agency’s [CBSA] re-investigation concluded on May 10, 2023 concerning certain rebar originating in, or exported from, the Republic of Turkey [Türkiye].

[8] The Applicants are comprised of: (i) Turkish exporters of rebar: Çolakoğlu Metalurji A.S., İçdas Çelik Enerji Tersane Ve Ulaşim A.Ş., Ekinciler Demir Ve Çelik Sanayi A.Ş., Kroman Çelik Sanayi A.Ş., and Kaptan Demir Çelik Endüstri Ve Ticaret A.Ş; (ii) an importer of Turkish rebar: Irpex International Inc.; and (iii) a non-profit business organization comprised of steel producers and exporters in the Turkish steel industry: The Turkish Steel Exporters’ Association.

[9] In order to consider whether the Respondent Canadian domestic producers are “directly affected” by the relief sought in the application, a review of the legislative scheme, the CBSA’s re-investigation process and the history of the dumping of Turkish rebar is required for proper context.

[10] In opposing the removal of the Respondent Canadian domestic producers as respondents, the parties filed relevant affidavit evidence. The Applicants’ affidavit evidence addresses the Respondent Canadian domestic producers’ participation in the CBSA’s re-investigation: Affidavit of Dawn Trach, sworn July 13, 2023. The Respondent Canadian domestic producers’ affidavit evidence addresses the role played by the domestic producers at the various stages and proceedings related to the dumping of Turkish rebar since the filing of the dumping complaint in April 2014: Affidavit of Alexander Hobbs, sworn July 11, 2023.

A. The legislative scheme

[11] The Special Import Measures Act, RSC, 1985, c S-15 [SIMA], protects domestic producers against the unfair trading practice known as “dumping.” Dumping occurs when foreign producers sell their goods in Canada at a price lower than their selling price in the exporting country or below their cost of production. In order to protect domestic producers, anti-dumping duties may be imposed on foreign goods: Prairie Tubulars (2015) Inc v Canada (Border Services Agency), 2018 FC 991, at para 6 [Prairie Tubulars]; GRK Fasteners v Canada (Attorney General), 2011 FC 198, at para 5 [GRK Fasteners].

[12] The CBSA and the Canadian International Trade Tribunal [CITT] are jointly responsible for administering the SIMA: Husteel Co Ltd v Canada (Attorney General), 2020 FC 430, at paras 3-4 [Husteel 2020]; Prairie Tubulars, at para 8. The CBSA determines if there has been dumping of goods: SIMA, ss 31-41.2. The CITT determines whether the dumping has injured, or threatens to injure, Canadian producers of like goods: SIMA, ss 37.1, 42-43.

[13] Under the SIMA, domestic producers of like goods may file a dumping complaint with the CBSA: SIMA, s 31(1). If the CBSA makes a final determination of dumping after its investigation and the CITT makes an injury order or finding under the SIMA, anti-dumping duties are imposed on dumped goods for five years: SIMA, ss 3-6, 76.03(1).

[14] The CBSA determines the amount of duty to be applied: SIMA, s 55. Generally, the CBSA calculates the duties owing by determining the actual amount by which imported goods fall below their “normal values” (the selling price in the originating country): Husteel 2020, at para 8; GRK Fasteners, at para 7. Normal values are determined in accordance with the SIMA: ss 15-23, 29, 30.

B. CBSA re-investigations and normal value reviews

[15] The CBSA has a policy of issuing “prospective normal values” and updates normal values through re-investigations and normal value reviews to ensure the effective enforcement of the CITT’s orders: CBSA Memorandum D14-1-8, “Re-investigation and Normal Value Review Policy – Special Import Measures Act (SIMA),” October 21, 2022 [CBSA Policy]; Husteel 2020, at para 9; GRK Fasteners, at para 9.

[16] Re-investigations are conducted with respect to all exporters of goods originating in or exported from a country or countries covered by a CITT order, whereas normal value reviews are conducted with respect to a single exporter subject to a CITT order: CBSA Policy, at para 3; Husteel 2020, at para 26 .

[17] Domestic producers are entitled to request that the CBSA conduct a re-investigation or normal value review to update normal values: CBSA Policy, at para. 8. If the CBSA initiates a re-investigation or normal review, domestic producers are notified and may participate in the process through filing information and submissions: CBSA Policy, at paras 18-23; GRK Fasteners, at para 9.

[18] Following a re-investigation or normal value review, the CBSA may re-calculate the applicable normal values and the corresponding anti-dumping duties: GRK Fasteners, at para 9.

C. The dumping of Turkish rebar

[19] As a result of a dumping complaint filed by the then Canadian domestic producers of rebar (which included three of the Respondents to this application under prior names), the CBSA initiated an investigation on June 13, 2014 regarding the alleged dumping of certain rebar originating in or exported from Türkiye, pursuant to subsection 31(1) of the SIMA. On June 16, 2014, the CITT initiated an inquiry pursuant to section 42 of the SIMA. The Canadian domestic producers participated in the CBSA’s investigation, as well as the CITT’s inquiry.

[20] On December 10, 2014, the CBSA made a final determination of dumping pursuant to paragraph 41(1)(a) of the SIMA. On January 9, 2015, the CITT made a finding under subsection 43(1) of the SIMA that the dumping of Turkish rebar into Canada was threatening to cause injury to Canadian domestic producers [the Finding]. Based on the Finding, anti-dumping duties were imposed on certain rebar produced in Türkiye and imported into Canada for five years.

[21] Prior to the expiry of the Finding, both the CITT and the CBSA initiated expiry reviews under subsection 76.03 of the SIMA. The Canadian domestic producers participated in both expiry reviews. The CBSA determined that the expiry of the Finding would likely result in the continuation or resumption of dumping of Turkish rebar. By order issued on October 14, 2020, the CITT continued its Finding for a further five years because it determined that the resumption of dumping of Turkish rebar would likely result in material injury to the domestic industry if the Finding was rescinded.

[22] The CBSA initiated normal value reviews in May 2021 to update the normal values and export prices for rebar exported to Canada by certain Turkish exporters (including four of the Applicants). The Respondent Canadian domestic producers participated in these reviews. As a result of these reviews, the CBSA determined specific normal values for each of the Turkish exporters.

D. The CBSA's re-investigation

[23] In June 2022, the Respondent Canadian domestic producers requested that the CBSA urgently initiate normal value reviews of the four Applicant Turkish exporters on the basis that the normal values no longer reflected current market pricing and costs. They also requested that the CBSA investigate whether a particular market situation existed in Türkiye that resulted in distorted input prices and lower domestic selling prices for Turkish rebar producers.

[24] The CBSA initiated a re-investigation in September 2022 to update the normal values and export prices of Turkish rebar by the Applicant Turkish exporters. The Respondent Canadian domestic producers participated in the re-investigation, including filing evidence and written submissions.

[25] The CBSA concluded its re-investigation on May 10, 2023, and determined normal values for future shipments of rebar from Türkiye. It also determined that the normal values may be applied to any importations that had not yet been re-determined and, in certain circumstances, may be applied retroactively.

[26] The CBSA concluded that a particular market situation existed with respect to the Turkish rebar market, which did not allow a proper comparison with the sales of the goods to the importers in Canada in accordance with paragraph 16(2)(c) of the SIMA. Finding that a particular market situation existed resulted in the CBSA using a different method under the SIMA for the determination of normal values.

E. The judicial review application

[27] The application for judicial review challenges the CBSA’s authority or jurisdiction to conduct re-investigations. Alternatively, the Applicants argue that the CBSA’s determination that a particular market situation existed in Türkiye is unreasonable. They allege that the CBSA’s determination “resulted in higher normal values for rebar from Türkiye than would otherwise be the case”: Notice of Application, at para 40.

[28] The Applicants seek the following relief: (i) an order quashing the re-investigation decision as invalid and/or unlawful; (ii) an order declaring that the re-investigation is ultra vires the CBSA’s authority and/or jurisdiction; (iii) alternatively, an order quashing or setting aside the re-investigation decision and referring the matter back to the CBSA for re-determination.

IV. Analysis

[29] The AGC seeks to be added as the only proper respondent to this application pursuant to Rule 303(2). It argues that the named respondents should be removed because they are not “directly affected” by the relief sought in the application, as required by Rule 303(1)(a). In the alternative, the AGC asks to be added as a respondent under Rule 303(1)(a) or 104(1)(b).

[30] Rule 104 allows the Court to remove parties not properly named and to add a party who should have been named in the first place or whose presence before the Court is necessary:

[31] Rule 303 sets out who must be named as a respondent to a judicial review application. Where there are no persons that can be named under subsection (1), the AGC shall be named as a respondent:

A. The Canadian domestic producers are proper respondents

[32] In accordance with Rule 303(1)(a), a proper respondent is determined with reference to the relief sought in the judicial review application. As determined by Justice Stratas in Forest Ethics Advocacy Association v Canada (National Energy Board), 2013 FCA 236 [Forest Ethics], the relevant question is “whether the relief sought in the application for judicial review will affect a party’s legal rights, impose legal obligations upon it, or prejudicially affect it in some direct way”: at para 21. Put another way, if granted, would the relief sought cause real prejudice: at para 23.

[33] In seeking the removal of the respondents, the AGC, however, fails to address the governing question under Rule 303(1)(a): whether the named respondents are “directly affected by the order sought in the application”. Instead, the AGC relies on its submissions as to why the underlying matter (the re-investigation) is not amenable to judicial review: “As submitted above, the CBSA’s re-investigation decision does not affect legal rights, impose legal obligations, or cause prejudice. This is true with respect to both the Applicants and the named Respondents”: AGC Written Representations, at para 17.

[34] In doing so, the AGC conflates the test for determining the proper respondents to an application under Rule 303(1)(a) with the test for determining whether a matter is justiciable under s.18.1 of the Federal Courts Act, RSC 1985, c F-7. While both tests are concerned with direct impact or effect, the focus of each is different.

[35] In considering whether a respondent is “directly affected”, the focus is on the relief sought in the application: Forest Ethics, at paras 21-23. On the other hand, in determining whether a matter is reviewable, the focus is on the impugned decision and whether it affects legal rights, imposes legal obligations or causes prejudicial effects: Democracy Watch v Canada (Attorney General), 2021 FCA 133, at paras 23, 29-30, 40. These are two distinct issues.

[36] In this application, the Applicants seek an order quashing the re-investigation and declaring that re-investigation proceedings are ultra vires the CBSA’s authority and/or jurisdiction. Alternatively, they seek to set aside the CBSA’s re-investigation on the basis that it is unreasonable.

[37] In a judicial review of a CBSA normal values review, where the exporter was seeking similar relief as the Applicants in this case, Associate Judge Molgat ordered that the domestic producers be added as respondents, finding that they were “directly affected” by the order sought: unreported order dated December 23, 2019 in Husteel v Canada, T-1662-19 [Husteel 2019]. I agree with the Respondent Canadian domestic producers that Associate Judge Molgat’s reasoning is equally applicable here: Written Representations of AltaSteel Inc., Arcelor Mittal Long Products Canada, G.P., Gerdau Ameristeel Corporation and Max Aicher (North America) Inc., at paras 32-39.

[38] The impact or effect of the relief sought in this application on the Respondent Canadian domestic producers is properly understood in the broader context of the SIMA. As aptly stated by Associate Judge Molgat, “the very purpose of the SIMA is to protect domestic producers against the dumping of foreign-made products at prices that are unreasonably low”: Husteel 2019, at p 6.

[39] Under the SIMA, domestic producers are entitled to file dumping complaints with the CBSA: SIMA, s 31(1). If the CITT ultimately makes an injury finding or order, anti-dumping duties are imposed on dumped goods for five years to protect domestic producers: Prairie Tubulars, at para 6; GRK Fasteners, at para 5.

[40] Anti-dumping duties are generally calculated by determining the amount by which the imported goods fall below their “normal values”: Husteel 2020, at para 8; GRK Fasteners, at para 7. The determination of normal values is, therefore, a critical aspect of the protection afforded to domestic producers under the SIMA. As articulated by the Applicants, “the correct legal determination of the “normal” value of dumped goods will ensure that Canadian producers receive the legal remedy to which they are entitled”: Applicants’ Memorandum of Fact and Law, at para 19.

[41] Pursuant to the CBSA’s Policy, re-investigations are administrative proceedings conducted to update normal values in order to ensure the effective enforcement of the CITT’s injury orders and findings under the SIMA: CBSA Policy, at paras 1-2. In accordance with the policy, domestic producers are entitled to request a re-investigation and to participate in any re-investigation proceedings: CBSA Policy, at paras 6, 8.

[42] In this case, the Respondent Canadian domestic producers requested that the CBSA initiate an urgent review to update normal values to reflect current market prices and costs to protect the domestic industry from injury. They alleged that there had been a fundamental change in the prices and costs for Turkish rebar since normal values were last issued. In addition, the Respondent Canadian domestic producers requested that the CBSA investigate whether a particular market situation existed in Türkiye under section 16(2)(c) of the SIMA.

[43] This request for a review of normal values precipitated the re-investigation at issue in the application. The Applicants and the Respondent Canadian domestic producers took competing positions in the re-investigation. Ultimately, the CBSA accepted the Respondent Canadian domestic producers’ two main arguments in support of its conclusion that a particular market situation existed in Türkiye that did not allow a proper comparison between normal values and export prices. Normal values for the Applicant Turkish exporters were updated accordingly.

[44] If granted, the relief sought in the underlying application affects the Respondent Canadian domestic producers’ rights or prejudicially affects them. If re-investigations are ultra vires CBSA’s jurisdiction, domestic producers no longer have any recourse to seek updated normal values during the five-year life of a CITT injury finding or order.

[45] Furthermore, the practical effect of either a declaration that the CBSA has no authority to conduct re-investigations, or an order setting aside the re-investigation, would be a return to normal values previously issued, such that “any anti-dumping duties payable would not be based on current and accurate prospective normal values thereby undermining the effectiveness of the anti-dumping protection”; Husteel, at pp 7-8.

[46] Based on the foregoing, I am satisfied that the Respondent Canadian domestic producers were properly named as respondents in accordance with Rule 303(1)(a). There is no need to add the AGC as a respondent under Rule 303(2).

B. No basis to add the AGC as a respondent under Rule 303(1)(a) or 104(1)(b)

[47] I am not persuaded that there is any basis to add the AGC as a respondent under either Rule 303(1)(a) or Rule 104(1)(b).

[48] I do not agree that the Federal Court of Appeal’s decision in Canada (Attorney General) v Zalys, 2020 FCA 8 [Zalys] supports adding the AGC as a respondent pursuant to Rule 303(1)(a). In that case, the Federal Court of Appeal determined that the AGC should have been named as the respondent in the Federal Court application pursuant to Rule 303(2) because none of the named respondents, including the RCMP and the adjudicator, were proper respondents to a judicial review application: Zalys, at paras 21, 26. Subsection 23(1) of the Crown Liability and Proceedings Act, RSC 1985, c C-50 prohibited naming the RCMP as the respondent and Rule 303(1)(a) prohibited naming the decision-maker as a respondent: Zalys, at paras 22, 24.

[49] In its reply submissions, the AGC relies on Rule 104(1)(b), but cites no jurisprudential support for being added under this Rule. In addition, it is not entirely clear whether the AGC is requesting that it be added as a necessary party in its own right or that the CBSA be added: AGC’s Reply Written Representations, at para 11.

[50] The AGC has failed to satisfy “the demanding test of necessity”: Forest Ethics, at para 31. It has not demonstrated that a question in the application “cannot be effectually and completely settled” unless the AGC is added as a party: Canada (Fisheries and Oceans) v Shubenacadie Indian Band, 2002 FCA 509, at para 8. I agree with the Applicants that the Respondent Canadian domestic producers are capable of responding to the issues raised in this application. On this basis, the AGC’s request to be added as a necessary party is denied.

[51] If the AGC is arguing that the CBSA, as decision-maker, should be added as a necessary party, this raises the interplay between Rule 303(1)(a) and Rule 104(1)(b). More specifically, whether Rule 104(1)(b) can be relied upon to add a decision-maker in light of the express exclusion of the decision-maker as a respondent in Rule 303(1)(a).

[52] Associate Judge Horne recently addressed this issue and concluded that Rule 303(1)(a) over-rides Rule 104. I agree with Associate Judge Horne’s analysis and, to the extent the AGC is arguing that the CBSA should be added as a party in its own right, Rule 303(1)(a) precludes adding the decision-maker as a respondent:

[17] I am not persuaded that this Rule is applicable, or overcomes the specific exclusion of the tribunal in subrule 303(1)(a), specifically in light of the rule of implied exception, a principle of statutory interpretation also known as generalia specialibus non derogant. The rule provides that a “specific provision prevails over a general one only if applying the general provision would render the specific one superfluous” (Ruth Sullivan, Sullivan on the Construction of Statutes, 6^th ed (Markham, ON: LexisNexis, 2014) at 363-64). The Federal Court of Appeal has held that “[o]ne of the fundamental principles of legislative construction is that a statute or provision of a statute which deals specifically with a subject-matter must take priority over, and override, any general legislation or provision dealing with the same subject-matter” (National Bank Life Insurance v Canada, 2006 FCA 161 at para 9). Here, the exclusion of the tribunal as a party respondent is specifically set out in subrule 303(1)(a), which overrides Rule 104.

Unreported order dated October 11, 2022, Njoroge v Canada (Attorney General), T-1140-22

C. Conclusion

[53] The AGC’s motion to be added as a respondent is dismissed. Since the AGC is not added as a party, I am not considering the further relief requested by the AGC that the application be struck in its entirety. This is without prejudice to the Respondent Canadian domestic producers to bring their own motion to strike.

[54] However, I grant the alternative relief requested in the AGC’s motion – an order extending the time for service and filing of the Certified Tribunal Record until 20 days from the date of this Order.

D. Costs

[55] The Court has discretion to award costs against a non-party under Rule 400 of the Rules: South Yukon Forest Corporation v Canada, 2010 FC 495, at para 1368; Bellegarde v Poitras, 2009 FC 1212, at para 9; Richardson International Ltd v Mys Chikhacheva (The), 2002 FCT 482, at paras 15-18. Further, Rule 400(2) provides that costs may be awarded against the Crown.

[56] The Applicants and the Respondent Canadian domestic producers were wholly successful in opposing the AGC’s motion to remove the named respondents and to add the AGC as the sole respondent. In opposing the motion, they incurred the time and expense not only of filing written representations, but affidavit evidence. In my view, it would be unfair if they were not compensated for costs incurred to oppose the AGC’s motion. I am therefore exercising my discretion and awarding costs against the AGC payable to the Applicants and the Respondent Canadian domestic producers.

[57] Pursuant to Rule 400(4), costs are fixed, in accordance with Column III of Tariff B, in the amount of $1000 payable to the Applicants collectively, and to the Respondent Canadian domestic producers collectively, inclusive of fees and disbursements.

ORDER in T-1199-23

THIS COURT ORDERS that:

1. The Attorney General of Canada’s motion to be added as a respondent is dismissed.

2. The Attorney General of Canada shall pay to the Applicants collectively the lump sum all-inclusive amount of $1,000 in costs. The Attorney General shall also pay to the Respondent Canadian domestic producers collectively the lump sum all-inclusive amount of $1,000 in costs.

3. The time for service and filing of the Certified Tribunal Record is extended until 20 days from the date of this Order.

"Anne M. Turley"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-1199-23
STYLE OF CAUSE:	ÇOLAKOĞLU METALURJI A.S., İÇDAS ÇELIK ENERJI TERSANE VE ULAŞIM A.Ş., EKINCILER DEMIR VE ÇELIK SANAYI A.Ş., KROMAN ÇELIK SANAYI A.Ş., KAPTAN DEMIR ÇELIK ENDÜSTRI VE TICARET A.Ş., IRPEX INTERNATIONAL INC. AND TURKISH STEEL EXPORTERS’ ASSOCIATION v ALTASTEEL INC., ARCELORMITTAL LONG PRODUCTS CANADA, G.P., GERDAU AMERISTEEL CORPORATION, JEBSEN & JESSEN METALS GMBH, AND MAX AICHER (NORTH AMERICA) INC.
MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES
reasons for order and order:	TURLEY J.
DATED:	august 15, 2023

WRITTEN REPRESENTATIONS BY:

Victoria Bazan Marcus Klee Devin Doyle	For The Applicants
Benjamin Bedard Greg Landry Paul Conlin Anne-Marie Oatway Andrew M. Lanouette Christopher J. Cochlin Jonathan O’Hara William Pellerin Philip Karim	FOR THE RESPONDENT ALTASTEEL INC FOR THE RESPONDENT ARCELORMITTAL LONG PRODUCTS CANADA, G.P. FOR THE RESPONDENT GERDAU AMERISTEEL CORPORATION FOR THE RESPONDENT MAX AICHER (NORTH AMERICA) INC.

SOLICITORS OF RECORD:

Victoria Bazan Barrister & Solicitor Toronto, Ontario Aitken Klee LLP Ottawa, Ontario	For The Applicants
Conlin Bedard LLP Ottawa, Ontario Colin Bedard LLP Ottawa, Ontario Cassidy Levy Kent (Canada) LLP Ottawa, Ontario McMillan LLP Ottawa, Ontario	FOR THE RESPONDENT ALTASTEEL INC., FOR THE RESPONDENT ARCELORMITTAL LONG PRODUCTS CANADA, G.P. FOR THE RESPONDENT GERDAU AMERISTEEL CORPORATION FOR THE RESPONDENT MAX AICHER (NORTH AMERICA) INC.