Pier 1 Imports – Federal Court of Appeal confirms that there can be both a statutory appeal and an application for judicial review of the same CITT order

The Attorney General brought both an appeal pursuant to s. 68(1) of the Customs Act regarding alleged errors of law in an order of the Canadian International Trade Tribunal and an application for judicial review regarding the alleged unreasonableness of such order.

In discussing the issue as to whether s. 18.5 of the Federal Courts Act precluded the judicial review application given the statutory appeal mechanism, Boivin JA adopted the finding in inter alia Best Buy (2021 FCA 161) that in such circumstances, “a complete bar to judicial review would be incompatible with the rule of law” and that both types of errors are reviewable: “errors of law are reviewable under the correctness standard via the statutory appeal mechanism in subsection 68(1) of the Customs Act, while errors of fact are reviewable under the reasonableness standard through an application for judicial review …”.

After dismissing both the appeal and the application, Boivin JA went on to state:

The better approach to reflect Parliament’s intent and the rule of law might be the more restrictive stance adopted by the Ontario Court of Appeal, which reiterates that “judicial review is always available,” but mandates that courts ask themselves whether it is an “appropriate” exercise of their discretion, adding that this is so only in “rare cases” (Yatar [2022 ONCA 446, leave granted]).

Neal Armstrong. Summary of Canada (Attorney General) v. Pier 1 Imports (U.S.), Inc., 2023 FCA 209 under Customs Act, s. 68(1).