Date:
20121129
Docket:
A-151-12
Citation:
2012 FCA 316
CORAM: SHARLOW J.A.
GAUTHIER
J.A.
MAINVILLE J.A.
BETWEEN:
FRANKE KINDRED CANADA LIMITED
Applicant
and
GACOR KITCHENWARE (NINGBO) CO.
LTD., JIANGMEN NEW STAR ENTERPRISE LTD., GUANGZHOU KOMODO KITCHEN TECHNOLOGY
CO. LTD., ZHONGSHAN SUPERTE KITCHENWARE CO., LTD., GUANGDONG DONGYUAN
KITCHENWARE INDUSTRIAL CO., LTD., GUANGDONG YINGAO KITCHEN UTENSILS CO., LTD.,
ZOJE HOLDING GROUP CO. LTD., THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA,
AND THE MINISTER OF PUBLIC SAFETY
Respondents
Heard
at Ottawa, Ontario, on November
29, 2012.
Judgment delivered from the Bench at Ottawa, Ontario, on November
29, 2012.
REASONS FOR JUDGMENT OF THE COURT
BY: SHARLOW J.A.
Date: 20121129
Docket: A-151-12
Citation: 2012 FCA 316
CORAM: SHARLOW
J.A.
GAUTHIER J.A.
MAINVILLE
J.A.
BETWEEN:
FRANKE KINDRED CANADA
LIMITED
Applicant
and
GACOR KITCHENWARE
(NINGBO) CO. LTD., JIANGMEN NEW STAR ENTERPRISE LTD., GUANGZHOU KOMODO KITCHEN
TECHNOLOGY CO. LTD., ZHONGSHAN SUPERTE KITCHENWARE CO., LTD., GUANGDONG
DONGYUAN KITCHENWARE INDUSTRIAL CO., LTD., GUANGDONG YINGAO KITCHEN UTENSILS
CO., LTD., ZOJE HOLDING GROUP CO. LTD., THE GOVERNMENT OF THE PEOPLE’S REPUBLIC
OF CHINA, AND THE MINISTER OF PUBLIC SAFETY
Respondents
REASONS FOR JUDGMENT
OF THE COURT
(Delivered from the
Bench at Ottawa, Ontario, on November 29, 2012)
SHARLOW J.A.
[1]
The
Minister of Public Safety seeks an order quashing this application. The
applicant Franke Kindred Canada Limited opposes the motion. Because the
Minister’s motion would, if successful, be a final disposition of this
application, a three judge panel was convened to consider it (subsection 16(1)
of the Federal Courts Act, R.S.C. 1985, c. F-7).
[2]
The
application for judicial review states that it is made under paragraph 96.1(1)(a)
of the Special Import Measures Act, R.S.C. 1985, c. S-15 (SIMA), which
reads in relevant part as follows:
|
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
|
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 :
|
|
(a) a
final determination of the President under paragraph 41(1)(a) […].
|
a) la décision
définitive rendue par le président au titre de l’alinéa 41(1)a) […].
|
[3]
It
is the position of Franke Kindred that its application for judicial review
challenges the final determination of the President dated April 24, 2012 under
paragraph 41(1)(a) of SIMA in respect of certain stainless steel sinks
originating in or exported from the People’s Republic of China (CBSA Case
Numbers AD/1392 and CV/129).
[4]
However,
there is no allegation in the application for judicial review that there is any
reviewable error in the President’s final determination. Franke Kindred seeks
the following relief:
|
1.
an
Order of this Court setting aside the President’s decision pending disclosure
to Counsel for [Franke Kindred] of the calculations and worksheets supporting
the Final Decision;
2.
an
Order of this Court granting Counsel for [Franke Kindred] a reasonable period
of time to review the calculations and worksheets supporting the Final
Determination and an extension of time to seek any further review by this
Court pursuant to section 96.1 of SIMA in connection with any errors
disclosed by counsel’s review of such calculations and worksheets;
3.
an
Order of this Court directing the President to disclose and grant counsel
access to such calculations and worksheets as may be performed by the
President in calculating future normal values, export prices, margins of
dumping and amounts of subsidy in respect of reinvestigations of stainless
steel sinks from the [People’s Republic of China].
|
[5]
Having
considered the application for judicial review in its entirety, and the written
and oral submissions of Franke Kindred and the Minister, we are unable to conclude
that the application challenges the final determination of the President. For
that reason, the application is not within the scope of paragraph 96.1(1)(a)
of SIMA. Accordingly, the motion of the Minister for an order quashing the
application must be granted with costs.
[6]
The
three other motions in this matter that have not yet been dealt with will be
dismissed as moot. The Minister is entitled to his costs of those motions.
[7]
We
emphasize that in granting the Minister’s motion in this case, we are expressing
no opinion on (a) any of the substantive issues that Franke Kindred sought to
have determined in the application, (b) the standing of a complainant to
challenge, by way of judicial review under paragraph 96.1(1)(a) of SIMA,
the President’s specification of the margin of dumping or the amount of
subsidy, or (c) the right of a complainant to access the President’s worksheets
and calculations.
“K.
Sharlow”
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-151-12
STYLE OF CAUSE: FRANKE
KINDRED CANADA LIMITED v. GACOR KITCHENWARE (NINGBO) CO. LTD. et al
PLACE OF HEARING: Ottawa
DATE OF HEARING: November 29, 2012
REASONS FOR JUDGMENT
OF THE COURT BY: (SHARLOW, GAUTHIER, MAINVILLE JJ.A.)
DELIVERED FROM THE BENCH
BY: SHARLOW J.A.
APPEARANCES:
|
Gregory Somers
|
FOR
THE APPLICANT
|
|
Alexandre Kaufman
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Gregory Somers
Ottawa, Ontario
|
FOR THE APPLICANT
|
|
William F. Pentney
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
Email this Content