Date: 20100223
Docket: A-245-09
Citation: 2010 FCA 61
CORAM: NADON J.A.
EVANS J.A.
STRATAS J.A.
BETWEEN:
THE PRESIDENT OF THE CANADA
BORDER SERVICES AGENCY and
THE ATTORNEY GENERAL OF CANADA
Appellants
and
C.B. POWELL
LIMITED
Respondent
REASONS FOR
JUDGMENT
STRATAS J.A.
A. Introduction
[1]
The
respondent, C.B. Powell Limited, imported bacon bits into Canada. The Canada
Border Services Agency (“CBSA”) assessed certain duties on the bacon bits. C.B.
Powell disagreed with the CBSA’s assessment. So, pursuing its rights under
subsection 60(1) of the Customs Act, R.S., 1985, c. 1 (2nd Supp.), C.B. Powell asked
the President of the Canada Border Services Agency to rule on the matter.
[2]
The
President of the CBSA ruled that he did not have jurisdiction to decide the
matter. Under subsection 67(1) of the Act, “decisions” of the President can be
appealed to the Canadian International Trade Tribunal (“CITT”). But C.B. Powell
did not follow that route. Instead, it brought a judicial review in the Federal
Court, essentially seeking the advice of that court about whether there was a
“decision” that could be appealed under subsection 67(1) of the Act. It asked
for a declaration to that effect. Harrington J. of the Federal Court granted that
declaration: 2009 FC 528. The Crown appeals to this Court, arguing that the
President of the CBSA was correct in deciding that he did not have jurisdiction
to decide the matter and so there was no “decision” that could be appealed to
the CITT under subsection 67(1) of the Act.
[3]
In
my view, the appeal must be allowed.
[4]
The
Act contains an administrative process of adjudications and appeals that must
be followed to completion, unless exceptional circumstances exist. In this
administrative process, Parliament has assigned decision-making authority to
various administrative officials and an administrative tribunal, the CITT, not
to the courts. Absent extraordinary circumstances, which are not present here,
parties must exhaust their rights and remedies under this administrative process
before pursuing any recourse to the courts, even on so-called “jurisdictional”
issues.
[5]
In
this case, C.B. Powell’s recourse against the President’s ruling is to pursue an
appeal to the CITT under subsection 67(1) of the Act. It is for the CITT to
interpret the word “decision” in subsection 67(1) and decide whether it has
jurisdiction to consider C.B. Powell’s appeal in these circumstances and, if
so, to decide the appeal on its merits. When the CITT completes that task, the
administrative process under the Act will be exhausted. Only at that point can
an aggrieved party pursue a judicial review to this Court under subsection
28(1)(e) of the Federal Courts Act, R.S., 1985,
c. F-7.
B. The facts
[6]
I
shall describe what happened in this particular case by examining each step in
the administrative process of adjudications and appeals under the Act.
The customs form
[7]
Under
the Customs Act, an importer of goods, such as C.B. Powell, must report and
declare and pay such duty and sales taxes as may be owing. It does so by
submitting a form. Among other things, the importer declares the value of the
imported goods, specifies a particular tariff treatment, and states a
particular tariff classification number.
[8]
In
this case, C.B. Powell imported bacon bits from the United States in 2005. On the
form, it declared the value of the bacon bits, specified Most Favoured Nation
tariff treatment and entered a particular classification number.
Going beyond the
form
[9]
When
the goods are imported, the CBSA can go beyond the form and determine the origin, tariff
classification and value for duty of the goods. This is set out in subsection
58(1):
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58.
(1) Any officer, or any officer within a class of officers, designated by the
President for the purposes of this section, may determine the origin, tariff
classification and value for duty of imported goods at or before the time
they are accounted for under subsection 32(1), (3) or (5).
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58.
(1) L’agent chargé par le président, individuellement ou au titre de son
appartenance à une catégorie d’agents, de l’application du présent article
peut déterminer l’origine, le classement tarifaire et la valeur en douane des
marchandises importées au plus tard au moment de leur déclaration en détail
faite en vertu des paragraphes 32(1), (3) ou (5).
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[10]
However,
where the CBSA receives the form and does not immediately go beyond it, the origin, tariff
classification and value for duty of the goods are deemed to be determined by
what was entered on the form. This is set out in subsection 58(2):
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(2) If the origin, tariff classification and value for duty of
imported goods are not determined under subsection (1), the origin, tariff
classification and value for duty of the goods are deemed to be determined,
for the purposes of this Act, to be as declared by the person accounting for
the goods in the form prescribed under paragraph 32(1)(a). That
determination is deemed to be made at the time the goods are accounted for
under subsection 32(1), (3) or (5).
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(2) Pour l’application de la présente loi, l’origine, le
classement tarifaire et la valeur en douane des marchandises importées qui
n’ont pas été déterminés conformément au paragraphe (1) sont considérés comme
ayant été déterminés selon les énonciations portées par l’auteur de la
déclaration en détail en la forme réglementaire sous le régime de l’alinéa
32(1)a). Cette détermination est réputée avoir été faite au moment de
la déclaration en détail faite en vertu des paragraphes 32(1), (3) ou (5).
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[11]
In
this case, the CBSA did not go behind the form, and so the entries of C.B.
Powell were taken as declared.
The audit and the
re-determination
[12]
However,
under sections 42, 42.01 and 42.1 of the Act, the CBSA can conduct audits and
verifications of the forms. The findings from those audits and verifications
can cause it to “re-determine the origin, tariff classification or value for
duty of imported goods” under section 59 of the Act. The relevant portions of
section 59 are as follows:
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59. (1) An officer, or any officer
within a class of officers, designated by the President for the purposes of
this section may
(a) in the case of a determination under section
57.01 or 58, re-determine the origin, tariff classification, value for duty
or marking determination of any imported goods…; and
(b) further re-determine the origin, tariff
classification or value for duty of imported goods…on the basis of an audit
or examination under section 42, a verification under section 42.01 or a
verification of origin under section 42.1 ….
(2) An
officer who makes a determination under subsection 57.01(1) or 58(1) or a
re-determination or further re-determination under subsection (1) shall
without delay give notice of the determination, re-determination or further
re-determination, including the rationale on which it is made, to the
prescribed persons.
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59. (1) L’agent chargé par le
président, individuellement ou au titre de son appartenance à une catégorie
d’agents, de l’application du présent article peut :
a) dans le cas d’une décision prévue à
l’article 57.01 ou d’une détermination prévue à l’article 58, réviser
l’origine, le classement tarifaire ou la valeur en douane des marchandises
importées…;
b) réexaminer l’origine, le classement
tarifaire ou la valeur en douane…d’après les résultats de la vérification ou
de l’examen visé à l’article 42, de la vérification prévue à l’article 42.01
ou de la vérification de l’origine prévue à l’article 42.1….
(2) L’agent qui
procède à la décision ou à la détermination en vertu des paragraphes 57.01(1)
ou 58(1) respectivement ou à la révision ou au réexamen en vertu du
paragraphe (1) donne sans délai avis de ses conclusions, motifs à l’appui,
aux personnes visées par règlement.
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[13]
In
this case, in 2008, the CBSA audited the form submitted for the bacon bits. It
discovered a mistake: C.B. Powell had entered the wrong classification number
on the form. Before issuing a re-determination under section 59, it invited C.B.
Powell to examine the matter.
C.B. Powell’s examination
[14]
C.B.
Powell accepted that the classification number it had entered was wrong. But it
discovered a further mistake.
[15]
C.B.
Powell discovered that it should have claimed NAFTA treatment with no duty,
rather than Most Favoured Nation treatment with 12.5% duty. Under subparagraph
74(3)(b)(ii) of the Act, such a mistake can be corrected within one
year. But three years had elapsed.
[16]
Nevertheless,
C.B. Powell advised the CBSA of the mistaken tariff treatment. After all, the
CBSA was correcting the mistaken classification number under section 59, so, in
C.B. Powell’s view, the CBSA could also correct the mistaken tariff treatment.
The section 59 re-determination
[17]
The
CBSA issued its section 59 re-determination. It corrected only the
classification number. It left unchanged the tariff treatment, with its 12.5%
duty:
This
decision represents a re-determination of the tariff classification only. The
tariff treatment has not been reviewed and is not being re-determined on this
detailed adjustment statement.
C.B.
Powell takes the matter further
[18]
C.B.
Powell pursued its rights under subsection 60(1) of the Act and asked the
President of the CBSA to conduct a re-determination of the tariff treatment
(known as “tariff origin” under the Act). Subsection 60(1) provides as follows:
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60.
(1) A person to whom notice is given under subsection 59(2) in respect of
goods may, within ninety days after the notice is given, request a
re-determination or further re-determination of origin, tariff
classification, value for duty or marking. The request may be made only after
all amounts owing as duties and interest in respect of the goods are paid or
security satisfactory to the Minister is given in respect of the total amount
owing.
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60.
(1) Toute personne avisée en application du paragraphe 59(2) peut, dans les
quatre-vingt-dix jours suivant la notification de l’avis et après avoir versé
tous droits et intérêts dus sur des marchandises ou avoir donné la garantie,
jugée satisfaisante par le ministre, du versement du montant de ces droits et
intérêts, demander la révision ou le réexamen de l’origine, du classement
tarifaire ou de la valeur en douane, ou d’une décision sur la conformité des
marques.
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The ruling of the President
of the CBSA
[19]
The
President of the CBSA declined to look at the matter. In his view, he could act
under subsection 60(1) only if there had been an earlier determination of
tariff treatment by the CBSA. This is because subsection 60(1) uses the words
“re-determination” and “further re-determination.” In his view, since the CBSA
had not determined tariff treatment earlier, there was nothing for him to
“redetermine” or “further redetermine” under subsection 60(1).
Section 67 of the Act
[20]
Section
67(1) of the Act provides for a further administrative appeal from the
President of the CBSA to the CITT:
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67.
(1) A person aggrieved by a decision of the President made under section 60
or 61 may appeal from the decision to the Canadian International Trade
Tribunal by filing a notice of appeal in writing with the President and the
Secretary of the Canadian International Trade Tribunal within ninety days
after the time notice of the decision was given.
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67.
(1) Toute personne qui s’estime lésée par une décision du président rendue
conformément aux articles 60 ou 61 peut en interjeter appel devant le
Tribunal canadien du commerce extérieur en déposant par écrit un avis d’appel
auprès du président et du secrétaire de ce Tribunal dans les quatre-vingt-dix
jours suivant la notification de l’avis de décision.
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[21]
However,
C.B. Powell proceeded immediately to Federal Court by way of judicial review,
rather than pursuing an appeal to the CITT.
The judicial review in the
Federal Court
[22]
In
the Federal Court, C.B. Powell sought “an order” (in reality a declaration)
that a decision had been made under subsection 60(1) and so there was an appeal
available to it under subsection 67(1). In case the Federal Court found that no
decision had been made under subsection 60(1), C.B. Powell alternatively sought
an order of mandamus that would force the President to make a decision under
subsection 60(1).
[23]
The
Crown took the position that, on the facts of this case, no re-determination
was possible under subsection 60(1). As a result, there was no decision that
could be judicially reviewed, nor could the Federal Court order any decision to
be made under subsection 60(1).
[24]
In
the Federal Court, both parties were content to have the court decide these
issues. No one took the position that the Federal Court should decline
jurisdiction. No one took the position that the CITT should deal with the
matter by way of appeal under subsection 67(1). However, just in case, the
parties did agree that the time limits for an appeal to the CITT would not
apply, pending judicial determination.
The judgment of
the Federal Court
[25]
The
Federal Court granted the application for judicial review and declared that the
president’s decision is “a negative decision…to which an application lies to
the Canadian International Trade Tribunal pursuant to s. 60.2…”.
[26]
I
assume that the reference to subsection 60.2 is a typographical error, as that
subsection deals with applications to the CITT for an extension of time to
appeal to the President of the CBSA. It is clear from the reasoning of the
Federal Court that it found that an appeal to the CITT was available and, as
noted above, subsection 67(1) is the relevant provision.
[27]
In
reaching this result, the Federal Court engaged in a thorough review of the
case law. It found that Mueller Canada Inc. v. Canada (Minister of
National Revenue-M.N.R.) (1993), 70 F.T.R. 197 governed the outcome of the application. In
Mueller, Rouleau J. held that a so-called “non-decision” or refusal to
exercise jurisdiction could be appealed to the CITT.
C. Analysis
Parliament
has established an administrative process to be followed
[28]
Under
the Act, Parliament has established an administrative process of adjudications
and appeals in this area. This administrative process consists of initial CBSA
decisions or deemed assessments under section 58, further determinations by
CBSA officials under section 59, additional determinations by the President of
the CBSA under section 60 and appeals to the CITT under subsection 67(1). The
courts are no part of this. Allowing the courts to become involved in this administrative
process before it is completed would inject an alien element into Parliament’s design.
[29]
In
addition to designing an administrative process without courts, Parliament, for
good measure, has gone further and has forbidden any judicial interference. At
every stage of this administrative process, in subsections 58(3), 59(6) and 62,
Parliament has specified that the only permissible reviews, re-determinations
or appeals are found in the administrative process described in the Act:
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58.
(3) A determination made under this section is not subject to be restrained,
prohibited, removed, set aside or otherwise dealt with except to the extent
and in the manner provided by sections 59 to 61.
…
59. (6) A re-determination or
further re-determination made under this section is not subject to be
restrained, prohibited, removed, set aside or otherwise dealt with except to the
extent and in the manner provided by subsection 59(1) and sections 60 and 61.
…
62. A re-determination or further
re-determination under section 60 or 61 is not subject to be restrained,
prohibited, removed, set aside or otherwise dealt with except to the extent
and in the manner provided by section 67.
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58.
(3) La détermination faite en vertu du présent article n’est susceptible de
restriction, d’interdiction, d’annulation, de rejet ou de toute autre forme
d’intervention que dans la mesure et selon les modalités prévues aux articles
59 à 61.
[…]
59. (6) La révision ou le réexamen
fait en vertu du présent article ne sont susceptibles de restriction,
d’interdiction, d’annulation, de rejet ou de toute autre forme d’intervention
que dans la mesure et selon les modalités prévues au paragraphe 59(1) ou aux
articles 60 ou 61.
[…]
62. La révision ou le réexamen
prévu aux articles 60 ou 61 n’est susceptible de restriction, d’interdiction,
d’annulation, de rejet ou de toute autre forme d’intervention que dans la
mesure et selon les modalités prévues à l’article 67.
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The principle of judicial
non-interference with ongoing administrative processes
[30]
The
normal rule is that parties can proceed to the court system only after all
adequate remedial recourses in the administrative process have been exhausted. The
importance of this rule in Canadian administrative law is well-demonstrated by
the large number of decisions of the Supreme Court of Canada on point: Harelkin
v. University of Regina, [1979] 2 S.C.R. 561; Canadian Pacific Ltd. v.
Matsqui Indian Band, [1995] 1 S.C.R. 3; Weber
v. Ontario Hydro, [1995]
2 S.C.R. 929; R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706 at
paragraphs 38-43; Regina Police Association Inc. v. Regina (City)
Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14 at paragraphs 31 and 34; Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 at paragraph
14-15, 58 and 74; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC
14; Vaughan
v. Canada, [2005] 1 S.C.R. 146, 2005 SCC 11 at paragraphs 1-2; Okwuobi
v. Lester B. Pearson School Board, [2005] 1 S.C.R. 257, 2005 SCC 16 at
paragraphs 38-55; Canada (House
of Commons) v. Vaid, [2005] 1
S.C.R. 667, 2005 SCC 30 at paragraph 96.
[31]
Administrative
law judgments and textbooks describe this rule in many ways: the doctrine of
exhaustion, the doctrine of adequate alternative remedies, the doctrine against
fragmentation or bifurcation of administrative proceedings, the rule against
interlocutory judicial reviews and the objection against premature judicial
reviews. All of these express the same concept: absent exceptional
circumstances, parties cannot proceed to the court system until the
administrative process has run its course. This means that, absent exceptional
circumstances, those who are dissatisfied with some matter arising in the
ongoing administrative process must pursue all effective remedies that are
available within that process; only when the administrative process has
finished or when the administrative process affords no effective remedy can they
proceed to court. Put another way, absent exceptional circumstances, courts
should not interfere with ongoing administrative processes until after they are
completed, or until the available, effective remedies are exhausted.
[32]
This
prevents fragmentation of the administrative process and piecemeal court
proceedings, eliminates the large costs and delays associated with premature
forays to court and avoids the waste associated with hearing an interlocutory
judicial review when the applicant for judicial review may succeed at the end
of the administrative process anyway: see, e.g., Consolidated Maybrun,
supra at paragraph 38; Greater Moncton International Airport
Authority v. Public Service Alliance of Canada, 2008 FCA 68 at paragraph 1;
Ontario College of Art v. Ontario (Human Rights Commission) (1992), 99
D.L.R. (4th) 738 (Ont. Div. Ct.). Further, only at the end of the
administrative process will a reviewing court have all of the administrative
decision-maker’s findings; these findings may be suffused with expertise, legitimate
policy judgments and valuable regulatory experience: see, e.g., Consolidated
Maybrun, supra at paragraph 43; Delmas v. Vancouver Stock
Exchange (1994), 119 D.L.R. (4th) 136 (B.C.S.C.), aff’d
(1995), 130 D.L.R. (4th) 461 (B.C.C.A.); Jafine v. College of Veterinarians
(Ontario) (1991), 5 O.R. (3d) 439 (Gen. Div.). Finally, this approach is consistent with and
supports the concept of judicial respect for administrative decision-makers who,
like judges, have decision-making responsibilities to discharge: Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190 at paragraph 48.
[33]
Courts
across Canada have enforced the
general principle of non-interference with ongoing administrative processes vigorously.
This is shown by the narrowness of the “exceptional circumstances” exception. Little
need be said about this exception, as the parties in this appeal did not
contend that there were any exceptional circumstances permitting early recourse
to the courts. Suffice to say, the authorities show that very few circumstances
qualify as “exceptional” and the threshold for exceptionality is high: see,
generally, D.J.M. Brown and J.M. Evans, Judicial Review of
Administrative Action in Canada (looseleaf) (Toronto: Canvasback Publishing,
2007) at 3:2200, 3:2300 and 3:4000 and David J. Mullan, Administrative Law
(Toronto: Irwin Law, 2001) at pages 485-494. Exceptional circumstances are
best illustrated by the very few modern cases where courts have granted
prohibition or injunction against administrative decision-makers before or
during their proceedings. Concerns about procedural fairness or bias, the
presence of an important legal or constitutional issue, or the fact that all
parties have consented to early recourse to the courts are not exceptional
circumstances allowing parties to bypass an administrative process, as long as
that process allows the issues to be raised and an effective remedy to be
granted: see Harelkin, supra; Okwuobi, supra at
paragraphs 38-55; University of Toronto v. C.U.E.W, Local 2 (1988), 55
D.L.R. (4th) 128 (Ont. Div. Ct.). As I shall soon demonstrate, the presence of so-called
jurisdictional issues is not an exceptional circumstance justifying early
recourse to courts.
Customs
Act decisions in this area
[34]
The
general principle against judicial interference with ongoing administrative
processes has already been applied a number of times to the Customs Act
regime that is in issue in this appeal.
[35]
The
court below appropriately cited Mueller, supra, for the
proposition that so-called “non-decisions” or refusals to exercise jurisdiction
under this statutory regime were “decisions” that could be appealed to the
CITT.
[36]
The
court below also appropriately cited Her Majesty the Queen v. Fritz
Marketing Inc., 2009 FCA 62. The issue in Fritz Marketing was
whether the Federal Court, on judicial review, should set aside a CBSA
determination made under section 59 of the Act because it was based on evidence
that was obtained contrary to s. 8 of the Charter. Sharlow J.A., writing for
this Court, stated (at paragraph 33) that the validity of the section 59
determination, including the Charter issue, should have been pursued under the
administrative process set out in the Act.
[37]
In
this case, the court below was very mindful of these authorities and others to
similar effect. However, it wondered whether the situation was different
because the President’s ruling was a “jurisdictional” determination. For
example, it did not see Fritz Marketing as being necessarily determinative
of the issues in this case because it did not concern “jurisdictional facts”
(at paragraph 33). Further, it noted that the parties did not cite any authorities
of this Court concerning a decision of the President made “on jurisdictional
grounds” (at paragraph 34).
[38]
The
CITT has also wondered about its ability to hear an appeal under subsection
67(1) from “non-decisions” or “jurisdictional” determinations by the President
of the CBSA under subsection 60(1): see Vilico Optical Inc. v. Canada (Deputy Minister
of National Revenue – M.N.R.), [1996] C.I.T.T. No. 33 (Q.L.). As the court
below observed (at paragraph 36), the CITT has been leaving it to the Federal
Court to deal with “non-decisions” or “jurisdictional” determinations.
“Jurisdictional”
grounds and “jurisdictional” determinations
[39]
When
“jurisdictional” grounds are present or where “jurisdictional” determinations
have been made, can a party proceed to court for that reason alone? Put another
way, is the presence of a “jurisdictional” issue, by itself, an exceptional
circumstance that allows a party to launch a judicial review before the
administrative process has been completed?
[40]
In
my view, the answer to these questions are negative. An affirmative answer
would resurrect an approach discarded long ago.
[41]
Long
ago, courts interfered with preliminary or interlocutory rulings by
administrative agencies, tribunals and officials by labelling the rulings as
“preliminary questions” that went to “jurisdiction”: see, e.g., Bell
v. Ontario Human Rights Commission, [1971] S.C.R. 756. By labelling
tribunal rulings as “jurisdictional,” courts freely substituted their view of
the matter for that of the tribunal, even in the face of clear legislation
instructing them not to do so.
[42]
Over
thirty years ago, that approach was discarded: C.U.P.E. v. N.B. Liquor
Corporation, [1979] 2 S.C.R. 227. In that case, Dickson J. (as he then was),
writing for a unanimous Supreme Court declared (at page 233), “The courts, in my
view, should not be alert to brand as jurisdictional, and therefore subject to
broader curial review, that which may be doubtfully so.” Recently, the
Supreme Court again commented on the old discarded approach, disparaging it as
“a
highly formalistic, artificial ‘jurisdiction’ test that could easily be manipulated”:
Dunsmuir, supra, at paragraph 43. Quite simply, the
use of the label “jurisdiction” to justify judicial interference with ongoing
administrative decision-making processes is no longer appropriate.
[43]
The
inappropriateness of this labelling approach is well-illustrated by the ruling of
the President of the CBSA in this case. In his ruling, the President considered
his “jurisdiction.” He did this by interpreting the words of subsection 60(1),
determining the nature of C.B. Powell’s request for a ruling, and deciding
whether C.B. Powell’s request fell within the scope of the subsection, as
interpreted. These are questions of law, questions of fact and questions of
mixed fact and law, respectively.
[44]
But
these are exactly the same questions that the President of the CBSA normally considers.
For example, when deciding upon the tariff classification that ought to apply
to particular imported goods under subsection 60(1), the President must
determine the nature of the imported goods, what classifications are legally
available, and, finally, what classifications ought to apply to these goods. These
are, respectively, determinations of questions of fact, law and mixed fact and
law. Calling one ruling “jurisdictional” and the other not, when they are both
really the same type of ruling, is, in reality, result-oriented labelling.
[45]
It
is not surprising, then, that courts all across Canada have repeatedly eschewed
interference with intermediate or interlocutory administrative rulings and have
forbidden interlocutory forays to court, even where the decision appears to be
a so-called “jurisdictional” issue: see e.g., Matsqui Indian Band,
supra; Greater Moncton International Airport Authority, supra at
paragraph 1; Lorenz v. Air Canada, [2000] 1 F.C. 452 (T.D.) at paragraphs
12 and 13; Delmas, supra; Myers v. Law Society of Newfoundland
(1998), 163 D.L.R. (4th) 62 (Nfld. C.A.); Canadian National Railway Co. v.
Winnipeg City Assessor (1998), 131 Man. R. (2d) 310 (C.A.); Dowd v. New
Brunswick Dental Society (1999), 210 N.B.R. (2d) 386, 536 A.P.R. 386 (C.A.).
[46]
I
conclude, then, that applying the “jurisdictional” label to the ruling of the
President of the CBSA under subsection 60(1) of the Act in this case changes
nothing. In particular, applying the “jurisdictional” label to the President’s ruling
did not permit C.B. Powell to proceed to Federal Court, bypassing the remainder
of the administrative process, namely the appeal to the CITT under subsection
67(1) of the Act.
What should happen
in this case
[47]
It
follows that if C.B. Powell wishes to have recourse against the ruling of the
President of the CBSA, it should pursue an appeal to the CITT under subsection
67(1). It is not for the Federal Court or this Court to interpret the word
“decision” in subsection 67(1) and determine whether the CITT can hear C.B.
Powell’s appeal. That is the task of the CITT when an appeal is brought to it
under subsection 67(1).
[48]
According
to the court below (at paragraph 36), the CITT believes, based on its reading
of Mueller, supra, that only the Federal Court can rule that a
“non-decision” or “jurisdictional decision” is a “decision” under subsection
67(1) of the Act. Further, the CITT believes, based on its reading of Mueller,
that only “decisions on the merits” can be appealed to the CITT under subsection
67(1) of the Act: Vilico, supra at paragraph 11.
[49]
I
do not read Mueller as supporting either of these beliefs. Further, Mueller
was decided on an application for judicial review that was brought prematurely
– before the parties had exhausted the administrative process of adjudications
and appeals under the Act. Under that administrative process, it was not the
task of the Federal Court in Mueller to interpret the word “decision” in
subsection 67(1) of the Act. It was the CITT’s task. Under subsection 67(1),
the CITT alone is to interpret the word “decision” and decide whether it can
hear an appeal. After the CITT has done that and has ruled on any appeal
properly before it, an aggrieved party can ask this Court to review the CITT’s
decision by way of an application for judicial review under s. 28(1)(e) of the Federal
Courts Act.
[50]
In
this case, if an appeal is brought to it, the CITT should interpret the word
“decision” in subsection 67(1) of the Act without regard to what was said in Mueller.
After doing so, the CITT might decide that the ruling of the President of the
CBSA in this case was a “decision”; if so, it will go on to decide C.B.
Powell’s appeal on the merits. Alternatively, the CITT might decide that the
ruling of the President of the CBSA was not a “decision”; if so, it will
decline to hear C.B. Powell’s appeal on the merits. Either way, the CITT’s decision,
accompanied by meaningful reasons for decision, will mark the end of the
administrative process of adjudications and appeals under the Act. At that
point, an aggrieved party will be able to come to this Court and ask it to
review the CITT’s decision under s. 28(1)(e) of the Federal Courts Act.
[51]
It
follows from the foregoing analysis that the court below in this case should have
dismissed C.B. Powell’s application for judicial review as premature. The
normal rule against judicial interference with ongoing administrative processes
applies in this case, with full force. The record does not disclose any
exceptional circumstances that would permit early recourse to the Federal
Court, nor did the parties contend that there are any. Judicial involvement in
the ongoing administrative process under the Act is not warranted at this time.
D. Conclusion
[52]
Therefore,
I would allow the appeal, set aside the judgment of the Federal Court and
dismiss C.B. Powell’s application for judicial review. As neither party
objected to the jurisdiction of the
Federal Court to determine the judicial review,
I would order that there be no costs both here and below.
“David Stratas”
“I agree
M. Nadon J.A.”
“I agree
John M. Evans J.A.”
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