Maax Bath Inc. v. Almag Aluminum Inc. et al., (2009) 392 N.R. 219 (FCA)

• Judge: Trudel, J.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 15, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 392 N.R. 219 (FCA);2009 FCA 204

Maax Bath Inc. v. Almag Aluminum Inc. (2009), 392 N.R. 219 (FCA)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. JL.047

Maax Bath Inc. (applicant) v. Almag Aluminum Inc., Apel Extrusions Limited, Can Art Aluminum Extrusion Inc., Metra Aluminum Inc., Signature Aluminum Canada Inc., Spectra Aluminum Products Ltd., Spectra Anodizing Inc., Extrudex Aluminum, Artopex Inc., Asia Aluminum Holdings Ltd., Blinds To Go Inc., Extrude-A-Trim Inc., Garaventa (Canada) Ltd., Kam Kiu Aluminium Products (NA) Ltd., Kam Kiu Aluminium Products Sdn. Bhd., Kromet International Inc., Loxcreen Canada, Mallory Industries, Panasia Aluminium (China) Limited, Panasia Aluminum (Calgary) Limited, Panasia Aluminum (Macao Commercial Offshore) Limited, Panasia Aluminum (Toronto) Limited, Pingguo Asia Aluminum Co. Ltd., R-Theta Thermal Solutions Inc., Railcraft International Inc., Regal Aluminum Products Inc., Shining Metal Trading Inc., Sinobec Trading Inc., Tag Hardware Systems Ltd., Taishan City Kam Kium Aluminium Extrusion Co. Ltd., Vitre-Art C.A.B. (1988) Inc., ZMC Metal Coating Inc., Alfa Mega Inc., Aluminart Products Limited, Aluminum Curtainwall Systems Inc., C.R. Lawrence Co. of Canada, China Square Industrial Ltd., Concord West Distribution Ltd., Digi-Key Corporation, Home-Rail Ltd., Hunter-Douglas Canada, Independent Contractors and Businesses Association of British Columbia, Knoll North America Corp., Levelor/Kirsch Window Fashions (A Division of Newell Rubbermaid/Newell Window Furnishings Inc.), Milward Alloys Inc., Morse Industries, New Zhongya Aluminum Factory Ltd., Newell Industries Canada Inc., Newell Window Furnishings Inc., Opus Framing Ltd., Pacific Shower Doors (1995) Ltd., Proforma Interiors Ltd. dba Aluglass, Rahul Glass Ltd., Ruhlamat North America Ltd., Ryerson Canada, Silvia Rose Industries, Soniplastics Inc., Vancouver Framer Cash & Carry Ltd., VAP Global Industries Inc., Zhaoqing China Square Industry Limited, Canadian International Trade Tribunal and Attorney General of Canada (respondents)

(A-174-09; 2009 FCA 204)

Indexed As: Maax Bath Inc. v. Almag Aluminum Inc. et al.

Federal Court of Appeal

Trudel, J.A.

June 15, 2009.

Summary:

The Canadian International Trade Tribunal determined that the dumping and subsidizing in Canada of aluminium extrusions from China had caused injury to domestic producers of like products in Canada and denied the exclusion request made by the applicant. The applicant sought judicial review. By notice of motion pursuant to Federal Courts Rules 317 and 318, the applicant sought the release of the internal reports, memoranda and other materials prepared by the Tribunal's non-legal staff for use by the Tribunal members in making its decision.

The Federal Court of Appeal, per Trudel, J.A., dismissed the motion. The applicant failed to persuade the court that the documents sought to be produced were relevant and necessary. The "noticeable" lack of specificity alone was sufficient to dispose of the motion.

Administrative Law - Topic 552.1

The hearing and decision - Decisions of the tribunal - Deliberative secrecy - [See Administrative Law - Topic 8868 ].

Administrative Law - Topic 608

The hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by the tribunal in making its decision - The Canadian International Trade Tribunal determined that the dumping and subsidizing in Canada of aluminium extrusions from China had caused injury to domestic producers of like products in Canada and denied the exclusion request made by the applicant - The applicant sought judicial review and brought a motion for the release of the internal reports, memoranda and other materials prepared by the Tribunal's non-legal staff for use by the Tribunal members in making its decision - The applicant relied on Telus Communications Inc. v. Attorney General of Canada (2004 FCA) and Canada (Human Rights Commission) v. Pathak (1995 FCA), as supporting the conclusion that the materials at issue were properly part of the Tribunal record and should be disclosed; that the materials were relevant because they might have affected the outcome of the Tribunal's inquiry; and they were akin to the staff memorandum ordered to be disclosed in Telus - The Federal Court of Appeal, per Trudel, J.A., held that applicant had not established relevance - Telus was not an applicable precedent - In Telus, the material sought to be produced related to sufficiency of reasons and consideration of relevant matters by the decision-maker - No such grounds were raised by the applicant in this case - See paragraphs 6 and 7, 13.

Administrative Law - Topic 608

The hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by the tribunal in making its decision - The applicant sought judicial review of a decision of the Canadian International Trade Tribunal - The applicant moved for the release of the internal reports, memoranda and other materials prepared by the Tribunal's non-legal staff for use by the Tribunal members in making its decision - Pursuant to rule 317(1) of the Federal Court Rules, "A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested" - The Federal Court of Appeal, per Trudel, J.A., began its analysis by determining that the relevant documents for the purposes of rule 317, were those documents that might have affected the decision of the Tribunal or that might affect the decision that the court would make on the application for judicial review - The court confirmed its jurisprudence with respect to the purpose of the rule; namely, that the rule did not serve the same purpose as documentary discovery in an action - "It should not be open to the applicant to engage in a fishing expedition" - In the result, the applicant failed to persuade the court that the documents sought were relevant and necessary - See paragraph 15.

Administrative Law - Topic 608

The hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by the tribunal in making its decision - The applicant sought judicial review of a decision of the Canadian International Trade Tribunal (CITT) - By notice of motion pursuant to rules 317 and 318 of the Federal Courts Rules, the applicant requested "… a copy of the material in the possession of the CITT prepared by the CITT's non-legal staff for use by the CITT members in making their determinations" without reference to any specific documents - The Federal Court of Appeal, per Trudel, J.A., dismissed the motion - The request made under rule 317 lacked proper specificity - The "noticeable" lack of specificity alone was sufficient to dispose of the motion - In any event, the court noted that the CITT, in its (69 pages) decision, relied on a plethora of documents to support its reasoning - Further, all public exhibits were made available to the parties, and all protected exhibits were made available to counsel - On the record, and in the absence of any reference to specific passages in the Tribunal's reasons from which it could reasonably be inferred that the Tribunal grounded its decision on material not available to the parties, or that inappropriate tampering with the decision occurred, "one cannot assume that such information has been adopted by the Tribunal in its reasons, thereby making it relevant to the decision made by the Tribunal or to the decision that this Court will make" - See paragraphs 10 to 12.

Administrative Law - Topic 3213

Judicial review - General - Material required to be produced on review - [See all Administrative Law - Topic 608 ].

Administrative Law - Topic 8868

Boards and tribunals - Members - Independence and impartiality - The Canadian International Trade Tribunal determined that the dumping and subsidizing in Canada of aluminium extrusions from China had caused injury to domestic producers of like products in Canada and denied the exclusion request made by the applicant - The applicant sought judicial review - By notice of motion pursuant to rules 317 and 318 of the Federal Courts Rules, the applicant sought the release of the internal reports, memoranda and other materials prepared by the Tribunal's non-legal staff for use by the Tribunal members as they considered the case, alleging the documents to be relevant and necessary - The Federal Court of Appeal, per Trudel, J.A., dismissed the motion - There was little question that the applicant was seeking access to documents consulted by or prepared for the Tribunal members as they were engaged in their deliberative role to determine how and why the members reached the impugned conclusions - This was a matter of privilege going to judicial impartiality in adjudication - See paragraph 14.

Administrative Law - Topic 9119

Boards and tribunals - Judicial review - Material required to be produced on review - [See all Administrative Law - Topic 608 ].

Cases Noticed:

Telus Communications Inc. v. Canada (Attorney General), [2004] N.R. Uned. 246; 2004 FCA 317, dist. [para. 6].

Pathak v. Canadian Human Rights Commission et al., [1995] 2 F.C. 455; 180 N.R. 152 (F.C.A.), refd to. [para. 6].

Atlantic Prudence Fund Corp. v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 306 (T.D.), refd to. [para. 10].

Trans Québec & Maritime Pipeline Inc. v. National Energy Board, [1984] 2 F.C. 432; 54 N.R. 303 (F.C.A.), refd to. [para. 12].

MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry) (1988), 85 N.S.R.(2d) 219; 216 A.P.R. 219; 43 C.C.C.(3d) 287 (T.D.), affd. (1988), 87 N.S.R.(2d) 443; 222 A.P.R. 443; 46 C.C.C.(3d) 191 (C.A.), affd. [1989] 2 S.C.R. 797; 100 N.R. 81; 94 N.S.R.(2d) 1; 247 A.P.R. 1; 50 C.C.C.(3d) 449, refd to. [para. 14].

MacKeigan v. Hickman - see MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry).

Access Information Agency Inc. v. Canada (Attorney General) et al., [2007] N.R. Uned. 154; 2007 FCA 224, refd to. [para. 15].

Statutes Noticed:

Federal Courts Rules, 1998, rule 317(1), rule 318(1), rule 318(2), rule 318(4) [para. 8].

Counsel:

Gordon LaFortune, Ottawa, Ontario, for the applicant;

Georges Bujold, for the Canadian International Trade Tribunal.

Solicitors of Record:

Gordon LaFortune, for Maax Bath Inc.;

Georges Bujold, Ottawa, Ontario, for the Canadian International Trade Tribunal;

Osler, Hoskin & Harcourt, Ottawa, Ontario, for the respondents, Almag Aluminum Inc., Apel Extrusions Limited, Can Art Aluminum Extrusion Inc., Metra Aluminum Inc., Signature Aluminum Canada Inc., Spectra Aluminum Products Ltd., Spectra Anodizing Inc. and Extrudex Aluminum;

Baldwin, Anka, Sennecke, Halman LLP, Toronto, Ontario, for the respondent, Ruhlamat North America Ltd.

This motion was dealt with in writing without appearance of parties, by Trudel, J.A., of the Federal Court of Appeal. The following order was delivered at Ottawa, Ontario, on June 15, 2009.