GRK Fasteners v. Canada (Attorney General), (2011) 384 F.T.R. 251 (FC)

• Judge: O'Reilly, J.
• Court: Federal Court (Canada)
• Case Date: November 17, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2011), 384 F.T.R. 251 (FC);2011 FC 198

GRK Fasteners v. Can. (A.G.) (2011), 384 F.T.R. 251 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] F.T.R. TBEd. FE.042

GRK Fasteners (applicant) v. Attorney General of Canada (respondent)

(T-435-09; 2011 CF 198; 2011 FC 198)

Indexed As: GRK Fasteners v. Canada (Attorney General)

Federal Court

O'Reilly, J.

February 18, 2011.

Summary:

GRK Fasteners sought judicial review of a re-investigation by the Canadian Border Services Agency of prices and values associated with the importing of steel screws. The re-investigation was carried out under the Special Import Measures Act (SIMA) and formed part of an examination of potential dumping. GRK sought an order that the Agency redo the re-investigation.

The Federal Court dismissed the application. A remedy in the form of judicial review at the early stage of the process set out in SIMA would disrupt and distort the remedial scheme Parliament enacted.

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - [See Customs - Topic 9002 ].

Administrative Law - Topic 7096

Judicial review - Bars - Discretionary bars - Existence of adequate alternative remedy - [See Customs - Topic 9002 ].

Courts - Topic 4044.1

Federal Court of Canada - Jurisdiction - Federal Court - Customs - [See Customs - Topic 9002 ].

Courts - Topic 4046

Federal Court of Canada - Jurisdiction - Federal Court - Requirement of lack of other appeals - [See Customs - Topic 9002 ].

Courts - Topic 4052

Federal Court of Canada - Jurisdiction - Federal Court - Requirement of lack of other remedy - [See Customs - Topic 9002 ].

Courts - Topic 4071.1

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - General - [See Customs - Topic 9002 ].

Customs - Topic 5143

Classification for duty - Judicial review - When available - [See Customs - Topic 9002 ].

Customs - Topic 9002

Appeals or review - General - Jurisdiction - An importer (GRK) sought judicial review of a re-investigation by the Canadian Border Services Agency of prices and values associated with the importing of steel screws - The re-investigation was carried out under the Special Import Measures Act (SIMA) and formed part of an examination of potential dumping - GRK sought an order that the Agency redo the re-investigation - The Federal Court found that the results of the re-investigation were not amenable to judicial review - The appeal remedies under SIMA were an adequate alternative to any recourse GRK might otherwise have to judicial review - A re-investigation by definition was a preliminary step in the process that might lead to an assessment of duty - Re-investigation might lead to a determination or re-determination that might be appealed to the Canadian International Trade Tribunal and to the Federal Court of Appeal - On the facts, the impact of the re-investigation on GRK was uncertain and not immediate - Those circumstances, along with the case law, suggested that permitting judicial review of a re-investigation would be inappropriate - It would run afoul of policy considerations and would accord parties two different remedy streams, effectively doubling the amount of time and resources spent adjudicating disputes over duties - See paragraphs 20 to 29.

Customs - Topic 9503

Dumping and subsidies - Legislation - General - The Federal Court addressed the purpose and the operation of the statutory scheme of the Special Import Measures Act - See paragraphs 5 to 12.

Cases Noticed:

Toyota Tsusho America Inc. v. Canada Border Services Agency et al., [2010] F.T.R. Uned. 52; 2010 FC 78; [2010] N.R. Uned. 152; 2010 FCA 262, consd. [para. 21].

Abbott Laboratories Ltd. et al. v. Minister of National Revenue (2004), 246 F.T.R. 128; 2004 FC 140, refd to. [para. 21].

Fritz Marketing Inc. v. Canada (2009), 387 N.R. 331; 2009 FCA 62, refd to. [para. 21].

Spike Marks Inc. v. Canada (Attorney General) (2008), 386 N.R. 194; 2008 FCA 406, refd to. [para. 21].

Powell (C.B.) Ltd. v. Canada Border Services Agency (President) et al. (2010), 400 N.R. 367; 2010 FCA 61, refd to. [para. 22].

Statutes Noticed:

Special Import Measures Act, R.S.C., 1985, c. S-15, sect. 8(1), sect. 29(1), sect. 30.3(1), sect. 55, sect. 56(1), sect. 57, sect. 58, sect. 59(3), sect. 61(1), sect. 62 [Annex].

Counsel:

Martin Masse and Corinne Brulé, for the applicant;

Alexander Gay and Sharon Johnston, for the respondent.

Solicitors of Record:

Lang Michener LLP, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Ottawa, Ontario, on November 17, 2010, before O'Reilly, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated February 18, 2011.