Prairies Tubulars – Federal Court finds that requiring payment of duties before they could be appealed was not unconstitutional

Prairies Tubulars challenged the constitutionality of provisions of the Special Import Measures Act (the “Appeal Payment Provisions”) which required it to pay all outstanding duties before proceeding with the SIMA’s appeal procedure. It relied inter alia on Trial Lawyers, 2014 SCC 59, holding that court hearing fees violated s. 96 of the Constitution Act, 1867 where, absent adequate exemptions, they were so high so as to subject “litigants to undue hardship, thereby effectively preventing access to the courts”, and Uber Technologies, 2020 SCC 16, finding that an arbitration clause (requiring the driver to pay a $14,500 USD administration fee and to attend arbitration in the Netherlands) was contrary to the rule of law and public policy because it effectively denied the driver access to the dispute resolution process.

Before dismissing the application, Ahmed J stated:

[L]egislation may be inconsistent with section 96 … if it creates financial obstacles that impose undue hardship on potential litigants … . However, in light of the Applicant’s gross earnings … I am not persuaded … that the Appeal Payment Provisions cause it undue hardship.

… Trial Lawyers is distinguishable … because the Appeal Payment Provisions are remedial, not punitive. Anti-dumping duties are not costs that increase with the length of an appeal, but are rather proportionate to the margin of dumping and returnable to the importer if they are ultimately successful upon redetermination or appeal.

Neal Armstrong. Summary of Prairies Tubulars (2015) Inc. v. Canada (Border Services Agency), 2021 FC 36 under Constitution Act, 1867, s. 96.