Date: 20090520
Dockets: A-103-08
A-104-08
Citation: 2009 FCA
164
CORAM: NOËL J.A.
PELLETIER J.A.
RYER J.A.
BETWEEN:
TIANJIN PIPE (GROUP) CORPORATION
Applicant
and
TENARISALGOMATUBES INC.,
DALIPAL PIPE COMPANY,
ENERGY ALLOYS, HENG YANG GROUP,
MC TUBULAR PRODUCTS INC., NKKTUBES,
JIANGUSU FANLI STEEL PIPE CO., LTD.,
SHANGDONG MOLONG PETROLEUM,
TIANJIN TUBULAR GOODS MACHINING CO., LTD.,
WUXI LONGHUA STEEL PIPE CO., LTD.,
WUXI SEAMLESS OIL PIPE CO., LTD.
CANADIAN TUBULARS (1997) LTD., CANTAK
CORPORATION,
EASTAR INDUSTRY INC., HALLMARK TUBULARS
LTD.,
IMEX CANADA INC., PACIFIC TUBULARS,
SALZGITTER MANNESMANN INTL.,
CANADA BORDER SERVICES AGENCY
and ATTORNEY GENERAL OF CANADA
Respondents
and
MINISTRY OF COMMERCE OF THE PEOPLE’S
REPUBLIC OF CHINA
Intervener
Heard at Ottawa, Ontario, on May 20, 2009.
Judgment delivered from the
Bench at Ottawa,
Ontario, on May 20,
2009.
REASONS FOR JUDGMENT OF THE COURT BY: NOËL
J.A.
Date: 20090520
Dockets: A-103-08
A-104-08
Citation: 2009 FCA 164
CORAM: NOËL
J.A.
PELLETIER J.A.
RYER
J.A.
BETWEEN:
TIANJIN PIPE (GROUP) CORPORATION
Applicant
and
TENARISALGOMATUBES INC., DALIPAL PIPE
COMPANY,
ENERGY ALLOYS, HENG YANG GROUP,
MC TUBULAR PRODUCTS INC., NKKTUBES,
JIANGUSU FANLI STEEL PIPE CO., LTD.,
SHANGDONG MOLONG PETROLEUM,
TIANJIN TUBULAR GOODS MACHINING CO., LTD.,
WUXI LONGHUA STEEL PIPE CO., LTD.,
WUXI SEAMLESS OIL PIPE CO., LTD.
CANADIAN TUBULARS (1997) LTD., CANTAK
CORPORATION,
EASTAR INDUSTRY INC., HALLMARK TUBULARS
LTD.,
IMEX CANADA INC., PACIFIC TUBULARS,
SALZGITTER MANNESMANN INTL.,
CANADA BORDER SERVICES AGENCY
and ATTORNEY GENERAL OF CANADA
Respondents
and
MINISTRY OF COMMERCE OF THE PEOPLE’S
REPUBLIC OF CHINA
Intervener
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on May 20, 2009)
NOËL J.A.
[1]
These are
applications for judicial review of two final determinations of dumping and
subsidizing issued by the President of the Canada Border Services Agency (CBSA)
on February 7, 2008 pursuant to paragraph 41(1)(a) of the Special
Import Measures Act, R.S.C. 1985, c. S-15 (SIMA) respecting certain
seamless carbon or alloy steel oil and gas well casing originating in or
exported from the People’s Republic of China (China). By the first
determination it was found that the Tianjin Pipe (Group) Corporation (the
applicant or T.P.C.O.) had dumped the goods in issue in Canada (A-104-08) and by the second, it was found that the
applicant had benefited from four specific subsidy programs (A-103-08).
[2]
The applicant and the
Ministry of Commerce of the People’s Republic of China as
intervener have raised a variety of arguments in support of their attack on
both decisions. Only two merit attention. The first is that CBSA erred in
holding that the equity in the applicant after the completion of the debt to
equity swap had no value.
[3]
This raises a
question of fact with respect to which this Court cannot intervene unless it is
shown that the CBSA based its decision on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard to the material
before it.
[4]
In this respect, the
record reveals that the information relating to the valuation of the debt to
equity transaction, which was prepared at the time of the transaction, was
sought and that production was refused (Applicant’s Record, vol. II, p. 2981).
[5]
The applicant
nevertheless argued that the CBSA ignored a letter of opinion found at page 758
and following of volume V of the Applicant’s Record and in particular an
attachment at page 760 entitled “Summary Statement of Assets Appraisal Results
of T.P.C.O.” which, according to the applicant, reflects the proper valuation.
[6]
However, the record
reveals that the document in question was considered by the CBSA, and rejected
for cogent reasons, as outlined at page 2921 of the volume II of the
Applicant’s Confidential Record.
[7]
In our view, it has
not been shown that the CBSA committed an error justifying our intervention
when it held that the entire amount of the extinguished debt was to be treated
as a subsidy pursuant to section 27.1 of the Special Import measures
Regulations, (S.O.R./84-927).
[8]
The applicant and the
intervener further argued that the CBSA misconstrued subsection 20(1) of the
SIMA when it held that the price of the goods in issue were “substantially
determined” by the Government of China. In this respect, reliance is placed on
the dictionary definition of the word “determine” to suggest that the phrase
“substantially determined” requires that government directly cause prices to be
set at a particular level. The applicant points out that the CBSA did not find
that the Government of China actually participated in decisions to establish
domestic prices.
[9]
In our view, the use
of the expression “substantially determined” necessarily implies something less
than completely determined and as such, Parliament did not intend the provision
to be restricted to situations where a foreign government directly sets the
prices. Indeed, the phrase captures the various ways in which governments can
exert a determinative influence on pricing, whether directly or indirectly.
[10]
In addition,
Parliament has expressly conferred on the President discretion to decide when
prices have been “substantially determined” by government, through the
qualifying words “in the opinion of the President”. Whether domestic prices were
“substantially determined” by the Government of China gives rise to an
intensely factual question with respect to which no reviewable error has been
demonstrated.
[11]
Both of applications
will therefore be dismissed with costs in each instance in favour of TenarisAlgomaTubes
Inc. and the Crown respondents.
“Marc
Noël”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-103-08
STYLE OF CAUSE: TIANJIN PIPE (GROUP) CORPORATION
and TENERISALGOMATUBES INC., DALIPAL PIPE COMPANY, ENERGY ALLOYS, HENG YANG
GROUP, MC TUBULAR PRODUCTS INC., NKTUBES, JIANGUSU FANLI STEEL PIPE CO.,
LTD., SHANGDONG MOLONG PETROLEUM, TIANJIN TUBULAR GOODS MACHINING CO., LTD.,
WUXI LONGHUA STEEL PIPE CO., LTD., WUXI SEAMLESS OIL PIPE CO., LTD., CANADIAN
TUBULARS (1997) LTD., CANTAK CORPORATION, EASTAR INDUSTRY INC., HALLMARK
TUBULARS LTD., IMEX CANADA INC., PACIFIC TUBULARS, SALZGITTER MANNESMAN INTL.,
CANADA BORDER SERVICES AGENCY and ATTORNEY GENERAL OF CANADA and MINISTRY OF
COMMERCE OF THE PEOPLE’S REPUBLIC OF CHINA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May
20, 2009
REASONS FOR JUDGMENT OF THE
COURT BY: Noël,
Pelletier and Ryer JJ.A.
DELIVERED FROM THE BENCH BY: Noël
J.A.
APPEARANCES:
|
Gordon
LaFortune
|
FOR
THE APPLICANT AND THE INTERVENER
|
|
Geoffrey
C. Kubrick
|
FOR
THE RESPONDENT
(TenarisAlgomaTubes
Inc.)
|
|
David
Cowie
|
FOR
THE RESPONDENT
(Canadian
Border Services Agency and Attorney General of Canada)
|
SOLICITORS
OF RECORD:
|
Gordon
LaFortune
Ottawa, Ontario
|
FOR
THE APPLICANT AND THE INTERVENER
|
|
Lang
Michener LLP
Ottawa,
Ontario
|
FOR
THE RESPONDENT
(TenarisAlgomaTubes
Inc.)
|
|
John
H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
(Canadian
Border Services Agency and Attorney General of Canada)
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-104-08
STYLE OF CAUSE: TIANJIN PIPE (GROUP)
CORPORATION and TENERISALGOMATUBES INC., DALIPAL PIPE COMPANY, ENERGY ALLOYS,
HENG YANG GROUP, MC TUBULAR PRODUCTS INC., NKTUBES, JIANGUSU FANLI STEEL
PIPE CO., LTD., SHANGDONG MOLONG PETROLEUM, TIANJIN TUBULAR GOODS MACHINING
CO., LTD., WUXI LONGHUA STEEL PIPE CO., LTD., WUXI SEAMLESS OIL PIPE CO.,
LTD., CANADIAN TUBULARS (1997) LTD., CANTAK CORPORATION, EASTAR INDUSTRY INC.,
HALLMARK TUBULARS LTD., IMEX CANADA INC., PACIFIC TUBULARS, SALZGITTER
MANNESMAN INTL., CANADA BORDER SERVICES AGENCY and ATTORNEY GENERAL OF CANADA
and MINISTRY OF COMMERCE OF THE PEOPLE’S REPUBLIC OF CHINA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May
20, 2009
REASONS FOR JUDGMENT OF THE
COURT BY: Noël,
Pelletier and Ryer JJ.A.
DELIVERED FROM THE BENCH BY: Noël
J.A.
APPEARANCES:
|
Gordon
LaFortune
|
FOR
THE APPLICANT AND THE INTERVENER
|
|
Geoffrey
C. Kubrick
|
FOR
THE RESPONDENT
(TenarisAlgomaTubes
Inc.)
|
|
David
Cowie
|
FOR
THE RESPONDENT
(Canadian
Border Services Agency and Attorney General of Canada)
|
SOLICITORS
OF RECORD:
|
Gordon
LaFortune
Ottawa,
Ontario
|
FOR
THE APPLICANT AND THE INTERVENER
|
|
Lang
Michener LLP
Ottawa, Ontario
|
FOR
THE RESPONDENT
(TenarisAlgomaTubes
Inc.)
|
|
John
H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
(Canadian
Border Services Agency and Attorney General of Canada)
|
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