Date: 20170829

Docket: A-186-15

Citation: 2017 FCA 173

Heard at Ottawa, Ontario, on January 24, 2017.

Judgment delivered at Ottawa, Ontario, on August 29, 2017.

Date: 20170829

Docket: A-186-15

Citation: 2017 FCA 173

REASONS FOR JUDGMENT

WEBB J.A.

[1]               Prudential Steel ULC and Algoma Tubes Inc. brought this application for judicial review under paragraph 96.1(1)(a) of the Special Import Measures Act, R.S.C. 1985, c. S-15 (SIMA) in relation to the Final Determinations of Dumping and Subsidizing Respecting Certain Oil Country Tubular Goods from Chinese Taipei, The Republic of India, The Republic of Indonesia, The Republic of the Philippines, The Republic of Korea, The Kingdom of Thailand, The Republic of Turkey, Ukraine, and The Socialist Republic of Vietnam dated March 3, 2015 (Case number AD/1404 and file number 4214-43) (the Final Determination).

[2]               Prudential Steel ULC and Algoma Tubes Inc. are Canadian producers of oil country tubular goods. They are in the unusual position of being the applicants in this judicial review related to the Final Determination and also the respondents in relation to the judicial review application of SeAH Steel Corporation in relation to the Final Determination (A-178-15, 2017 FCA 172). The applications were consolidated by an Order dated April 13, 2016.

[3]               Although these applications were consolidated separate reasons will be issued for each application as the arguments and the parties are different with Prudential Steel ULC and Algoma Tubes Inc. being applicants in this application and respondents in the other application.

[4]               Prudential Steel ULC and Algoma Tubes Inc., in their application for judicial review, state that the application is for judicial review of the Final Determination “published March 3, 2015” and that the “Application is being brought pursuant to section 96.1 (a) [sic] of the Special Import Measures Act”. Presumably the reference to section 96.1 (a) of SIMA should be to paragraph 96.1(1)(a) of SIMA.

[5]               While Prudential Steel ULC and Algoma Tubes Inc. clearly state in their application for judicial review and in the first and last paragraphs of their memorandum of fact and law that this application is related to the final determination dated March 3, 2015 a copy of the decision dated March 3, 2015 was not included by these parties in their application record. Instead Prudential Steel ULC and Algoma Tubes Inc. included the statement of reasons dated two weeks later on March 18, 2015. It is also clear from their memorandum of fact and law that the issue that is raised in this application for judicial review relates to one paragraph of the statement of reasons – paragraph 45:

[45]      Generally, where a green tube undergoes full heat-treatment such that the pipe is upgraded to a higher strength casing or tubing and is end-finished and tested to API specifications in a given country, the CBSA will determine the product to be originating in that country for SIMA purposes.

I.                   Issue

[6]               The first issue that must be determined in relation to this judicial review application is whether or not this Court has the jurisdiction to hear this matter.

II.                Analysis

[7]               This Court is a statutory court and derives its jurisdiction from the Federal Courts Act, R.S.C. 1985, c. F-7, and any other applicable statute. This Court only has the jurisdiction granted to it by statute (Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617, at para. 33). Although the Supreme Court of Canada in Windsor was referring to the Federal Court, the comments would be equally applicable to this Court which was created by the same statute.

[8]               Subsection 28 (1) of the Federal Courts Act grants this Court the jurisdiction to hear and determine applications for judicial review made in respect of several federal boards, commissions or other tribunals that are listed in paragraphs (a) to (r), inclusive, of subsection 28(1). However, the President of the CBSA is not included in this list and, therefore, no jurisdiction is granted under subsection 28(1) of the Federal Courts Act to hear this application for judicial review.

[9]               If this Court is to have jurisdiction to hear and determine this application for judicial review, the jurisdiction must be found elsewhere. In their notice of application for judicial review Prudential Steel ULC and Algoma Tubes Inc. state that this application is being made pursuant to paragraph 96.1 (1) (a) of SIMA. This paragraph provides as follows:

[10]           The jurisdiction that has been granted to this Court under this paragraph is narrow. Jurisdiction is only granted on applications to “review and set aside” a final determination of the President under paragraph 41(1)(a) of SIMA (Franke Kindred Canada Ltd. v. Gacor Kitchenware (Ningbo) Co. Ltd., et al., 2012 FCA 316, [2012] F.C.J. No. 1525).

[11]           Paragraph 41(1)(a) of SIMA provides that:

[12]           The determination that is made under this paragraph 41(1)(a) of SIMA is a determination that the goods of a certain country have been dumped. The impugned paragraph of the reasons is not a determination of whether certain goods have been dumped but rather is a general opinion in relation to the determination of the country of origin of certain goods that have been heat-treated and end-finished in another country. There is nothing to suggest, nor do Prudential Steel ULC and Algoma Tubes Inc. suggest, that if this paragraph were to be deleted or changed it could or would affect the Final Determination.

[13]           The only remedies that Prudential Steel ULC and Algoma Tubes Inc. seek in relation to the Final Determination in their notice of application are:

a)      An Order declaring that in making the Determination, the CBSA breached the rules of procedural fairness, and/or erred in jurisdiction, in law and/or on issues of mixed fact and law;

b)      An Order referring the Determination back to the CBSA with directions as required by the Court’s findings in respect of these submissions […]

[14]           In their memorandum of fact and law Prudential Steel ULC and Algoma Tubes Inc. modified their request for a remedy and indicate that they are seeking the following order:

84.       The Applicants respectfully request that this Honourable Court remand the Decision of the CBSA dated March 3, 2015,

(i)         with instructions to apply subsection 30(2) of SIMA to all subject goods originating in or exported from a country subject of the CBSA investigation, regardless whether they have been further processed by heat-treatment in a non-subject country […]

[15]            The remedies that this Court may grant in relation to an application for judicial review brought under paragraph 96.1(1)(a) of SIMA are set out in subsection 96.1(6) of SIMA:

[16]           The remedies that this Court may grant are consistent with the right granted to this Court to hear and determine applications for judicial review under paragraph 96.1(1)(a) of SIMA. This Court can only dismiss the application or set aside the Final Determination. If the Final Determination is set aside this Court can refer the matter back to the President with directions but only if the Final Determination is set aside. There is no authority granted to this Court to “remand” a final determination to address comments made in the reasons that would not impact the Final Determination but which may impact the determination of the country of origin of certain goods.

[17]           As a result this Court does not have the jurisdiction to address the judicial review application brought by Prudential Steel ULC and Algoma Tubes Inc. and I would dismiss this application with costs.

“Wyman W. Webb”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

APPLICATION FOR JUDICIAL REVIEW OF A FINAL DETERMINATION OF DUMPING ON CERTAIN OIL COUNTRY TUBULAR GOODS BY THE PRESIDENT OF THE CANADA BORDER SERVICES AGENCY, CASE NO. AD/1404, FILE NO. 4214-43, MARCH 3, 2015

APPEARANCES:

SOLICITORS OF RECORD: