Imperial Tobacco Canada Ltd. v. Canada (Minister of Health), 2001 FCT 576

                                                                                                                                   Date: 20010601

                                                                                                                                  Docket: 01-T-37

                                                                                                           Neutral Citation: 2001 FCT 576

Ottawa, Ontario, this 1^st day of June, 2001

Present: The Honourable Mr. Justice Pinard

BETWEEN:

                                       IMPERIAL TOBACCO CANADA LIMITED,

                                                                         - and -

                                          ROTHMANS, BENSON & HEDGES INC.

                                                                         - and -

                                                       JTI-MACDONALD CORP.

                                                                                                                                           Applicants

AND:

                                                   THE MINISTER OF HEALTH,

                                                                         - and -

                                       THE ATTORNEY GENERAL FOR CANADA,

                                                                                                                                      Respondents

                                             REASONS FOR ORDER and ORDER

UPON Notice of Motion on behalf of the applicants to serve and file after the expiration of the prescribed 30-day period an application for judicial review of a decision of the Minister of Health dated March 22, 2001;

UPON considering the factual context set out in paragraphs 5 to 12 of the applicants' Written Representations and paragraphs 1 to 5 of the respondents' "Prétentions écrites des intimés", all part of the parties' records in this matter;

UPON considering the above facts, however, without deciding at this time that the respondents committed any error;

UPON considering that the fundamental consideration in granting an extension such as that requested herein is an equitable one (see Grewal v. Minister of Employment and Immigration (1986), 63 N.R. 106);

UPON being satisfied, accordingly, that:

-           the applicants have demonstrated they have serious legal grounds to challenge the decision in question, given the wording of section 14, including paragraph (11) thereof, of the applicable Tobacco Reporting Regulations, SOR/2000-273 (the Regulations);

           -           the applicants acted diligently and reasonably by seeking a clarification with respect to the decision in question and then attempting to challenge that decision by bringing this Notice of Motion when it became evident that the decision was based on legal grounds and could not be changed by further analysis of the applicants' data;

-           there will be no prejudice to the respondents if this motion is granted and, conversely, the prejudice to the applicants will be important if they cannot challenge the decision for the calendar year 2001, given the required conduct of costly tests on cigarette tobacco emissions this year on the basis of an interpretation of the above Regulations which may ultimately prove to be unfounded; and

-           it is in the interest of justice that this Court rule upon the proper interpretation to be given to the above Regulations, thus defining the scope of the applicants' obligations thereunder.

The motion for an extension of time is granted. The applicants are allowed fifteen (15) days from the date of this Order to serve and file an application for the judicial review of the decision of the respondent the Minister of Health dated March 22, 2001. Costs in the cause.

       JUDGE