Apv Canada Inc. et al. v. Minister of National Revenue, (2001) 208 F.T.R. 81 (TD)

• Judge: Pelletier, J.
• Court: Federal Court (Canada)
• Case Date: June 18, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 208 F.T.R. 81 (TD)

Apv Can. Inc. v. MNR (2001), 208 F.T.R. 81 (TD)

MLB headnote and full text

Temp. Cite: [2001] F.T.R. TBEd. JL.041

Apv Canada Inc., Armour Valve Limited, Canadian Worcester Controls Ltd., Cooper Oil Tools Division of Cooper Industries (Canada) Inc., Dresser Canada Inc., Flowserve Inc., GEC Divestment Corporation Limited, General Signal Limited, Keystone Valve Canada Division of Keystone Canada Co., Lunkenheimer Canada Ltd., Neles Controls Ltd., NEO Valve Division of E.M. Plastics, Newmans Valves Ltd., TYCO International of Canada Ltd., Valgro Limited, Weatherford BMW Ltd., and Xomox Canada Ltd. (applicants) v. The Minister of National Revenue (respondent)

(01-T-22; 2001 FCT 737)

Indexed As: Apv Canada Inc. et al. v. Minister of National Revenue

Federal Court of Canada

Trial Division

Pelletier, J.

July 3, 2001.

Summary:

In July 1990, the Minister of National Revenue added "rotary valves" to the List of Tariff-Free Machinery and Equipment effective January 1988. The applicants' claims for refunds were refused on the basis that their valves were not "rotary valves". They moved for an extension of time to commence judicial review in respect of approximately 1,500 decisions. They also sought to consolidate the judicial review of those decisions into one application.

The Federal Court of Canada, Trial Division, dismissed the motion for an extension of time to commence judicial review. The court adjourned the request for consolidation.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - In 1990, the Minister of National Revenue added "rotary valves" to the List of Tariff-Free Machinery and Equipment effective January 1988 - The applicants' claims for refunds were refused on the basis that their valves were not "rotary valves" - The applicants applied for an extension of time to commence judicial review - The Federal Court of Canada, Trial Division, held that the Minister's decision was entitled to a certain amount of deference - It was not necessary for the court to decide the extent of the deference required because as long as the test was not correctness, the strength of the applicants' case was significantly reduced in the sense that they had to show not only that the Minister was wrong, but that he was sufficiently wrong to justify the Court's intervention - See paragraphs 14 to 17.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Federal Court of Canada, Trial Division, stated, inter alia, that "While the presence of a privative clause is an indicator of greater deference, the absence of a privative clause does not necessarily imply a lower degree of deference. The absence of a right of appeal and the availability of judicial review would suggest a middle standard of review." - The court also stated "expertise is the single most important determinant of the degree of deference to be afforded to a decision-maker" - See paragraph 16.

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - In 1990, the Minister of National Revenue added "rotary valves" to the List of Tariff-Free Machinery and Equipment effective January 1988 - The applicants' claims for refunds were refused on the basis that their valves were not "rotary valves" - Eight years later, the applicants applied for an extension of time to commence judicial review - The Federal Court of Canada, Trial Division, refused the extension - While there was a continuing interest in the possibility of recovery, there was no ongoing intention on the applicants' part to pursue their legal remedies in any event - The applicants had been content to observe a similar proceeding and consider whether, when the outcome of that proceeding was known, it was worth their while to take some form of action against the Minister - There was no commitment that the result in the other proceeding would govern the applicants' cases - The merits of the applicants' case were not such that they would overcome the deficiencies in the proof of continuing intention.

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - An extension of time for commencing a judicial review application could be granted if the applicant demonstrated, inter alia, that the delay did not prejudice the respondent - In Valyenegro v. Canada (Secretary of State), Giles, A.S.P., held that "where there is delay, prejudice must be assumed to exist unless there is some evidence that it does not" - The Federal Court of Canada, Trial Division, stated that the difficulty with this was that it required an applicant to lead evidence about a subject uniquely within the respondent's knowledge - Furthermore, "an applicant is apparently asked to prove a negative, that is, to lead evidence that there will be no prejudice. In practical terms, the most an applicant can usually do is to assert that the respondent will suffer no prejudice. The respondent is the one who knows if its documents or its witnesses have disappeared. The bare denial of prejudice does nothing more than call on the respondent to put forward its evidence of prejudice. It is only then that the applicant can lead evidence to minimize or contradict the respondent's claim of prejudice." - See paragraph 12.

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - The applicants applied for an extension of time to commence a judicial review application - The Crown argued that the applicants were required to prove a continuing intention to bring an application for judicial review, as opposed to a continuing intention to pursue one's legal remedies in whatever form of action was appropriate - The Federal Court of Canada, Trial Division, held that the Crown's view of the test was too narrow - The court stated that "Where the applicants must show a continuing intention to pursue their legal remedies, it is sufficient to show that the applicants have taken steps to protect their rights without necessarily having to show that a particular type of proceeding was undertaken." - See paragraph 13.

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - In 1990, the Minister of National Revenue added "rotary valves" to the List of Tariff-Free Machinery and Equipment effective January 1988 - The applicants' claims for refunds were refused on the basis that the applicants' valves were not rotary valves - Eight years later, the applicants applied for an extension of time to commence judicial review - The Crown claimed that it was prejudiced because some of the pertinent records might have been destroyed - The Federal Court of Canada, Trial Division, stated that it was not sympathetic to the Crown's argument - The matter was entirely within the Crown's control and it ought to have exercised some supervision - The court stated that "the longer the delay, the easier it is to establish the fact of prejudice but self-induced prejudice does not meet that test" - See paragraph 26.

Courts - Topic 4072

Federal Court of Canada - Jurisdiction - Trial Division - Practice - Extension of time or limitation periods - [See all Administrative Law - Topic 3342.1 ].

Customs - Topic 5142

Classification for duty - Judicial review - Scope or standard of review - [See first Administrative Law - Topic 3202 ].

Cases Noticed:

Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.), refd to. [para. 9].

Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263; 63 N.R. 106 (F.C.A.), refd to. [para. 10].

Valyenegro v. Canada (Secretary of State) (1995), 88 F.T.R. 196 (T.D.), consd. [para. 12].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 15].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 15].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, refd to. [para. 15].

Counsel:

Brian J. Barr, for the applicant;

Ritu Banerjee, for the respondent.

Solicitors of Record:

MacLaren Corlett, Ottawa, Ontario, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This motion was heard at Ottawa, Ontario, on June 18, 2001, by Pelletier, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on July 3, 2001.