Date: 19980310
Docket: T-2688-97
IN THE MATTER OF an Application pursuant to section 18.1 of
the Federal Court Act, R.S.C. 1985, c.F-7 (as amended).
BETWEEN:
JOHNS MANVILLE INTERNATIONAL, INC.
Applicant
- and -
THE DEPUTY MINISTER, NATIONAL REVENUE
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is a motion by the applicant for an order to file the non-confidential affidavit of Jean-Guy Plante and the confidential and non-confidential affidavits of Christopher J. Kent. The motion also requests that I order that the respondent has 20 days to reply to these affidavits.
FACTS
[2] The applicant exported faced rigid cellular polyurethane-modified polyisocyanurate thermal insulation board ("polyiso insulation board") to Canada during all material times. Prior to May 1997, the applicant operated under the names of its predecessor corporations, Schuller International, Inc. and NRG Barriers Inc.
[3] On December 13, 1996, the respondent issued a preliminary determination of dumping with respect to polyiso insulation board originating in or exported from the United States of America (file no. 4240-77 AD/1149). Provisional anti-dumping duties were assessed on all polyiso insulation board exported to Canada pursuant to the duty rates set out in the preliminary determination. On March 7, 1997, the respondent issued a final determination of dumping with respect to polyiso insulation board.
[4] On April 28, 1997, the respondent initiated proceedings under section 55 of the Special Import Measures Act, whereby normal values and export prices were to be calculated for the provisional period (December 13, 1996 to April 11, 1997). Under section 55, if the respondent finds that anti-dumping duties were overpaid during the provisional period, then the overpayment is refunded with interest. Before the investigation is completed, the respondent may issue interim normal values to exporters who request. Normal values represent the lowest ex-factory price at which goods subject to an anti-dumping finding may be sold without attracting anti-dumping duties. When the normal values from the section 55 investigation exceed the interim normal values, the respondent makes reassessments and collects anti-dumping duties pursuant to section 57 of the Special Import Measures Act.
[5] The results of this investigation were released on October 10, 1997. The applicant was provided with normal values to be used on future shipments and an explanation of the methodology used in the calculation of normal values. On November 3, 1997, the applicant requested additional disclosure including the section 55 determination providing the amount of provisional duty refunded and the spreadsheets documenting this information. On November 26, 1997, the applicant requested additional disclosure of assessments of anti-dumping duties made between April 12 and October 9, 1997, pursuant to section 57, using the section 55 normal values. The request for disclosure included Detailed Adjustment Statements and calculation spreadsheets denoting how the anti-dumping assessment or refund was determined. The stated purpose of these requests was to ensure that proper normal values had been applied to the applicant's goods and that the correct anti-dumping duties had been assessed. The respondent refused both requests for disclosure.
[6] Section 58(2) provides that the applicant can request a review of determinations made under section 55 or re-determinations made under section 57.
[7] On December 12, 1997, the applicant filed an Originating Notice of Motion in the Federal Court for an order:
| (a) compelling the respondent to provide disclosure of all assessment of anti-dumping duty made in respect of goods exported to Canada by the applicant; |
| (b) quashing any assessments of anti-dumping duty in respect of the goods exported to Canada by the applicant, for which the applicant had been refused disclosure by the respondent; and |
| (c) compelling the respondent to refund all anti-dumping duties assessed against the said goods exported to Canada by the applicant for which the applicant has been refused disclosure by the respondent. |
[8] The grounds for the applicant for judicial review are:
| (i) without disclosure of the particulars of anti-dumping duty assessments made in respect of goods exported to Canada by the applicant, the applicant cannot exercise its statutory rights of appeal through a request for re-determination pursuant to section 58(1.1) of the Special Import Measures Act; and |
| (ii) the refusal by or on behalf of the respondent to provide disclosure necessary for the applicant to exercise its statutory rights constitutes a breach of the principles of natural justice, and of the doctrine of audi alteram partem, in particular. |
[9] The applicant also requested that the respondent send a certified copy of the complete administrative record of proceedings in 4240-77 AD/1149, including the section 55 review.
[10] On December 15, 1997, counsel for the applicant filed an undertaking pursuant to Rule 1609(6) of the Federal Court Rules in which counsel promised not to disclose the contents of any confidential material provided to him by the respondent.
[11] On December 23, 1997, the respondent objected to the request for disclosure of the administrative record for two reasons. First, the respondent stated that to disclose the documents would provide the information originally requested and would render the judicial review of the decision moot. Second, the respondent claimed that the information contained in the requested administrative record is not relevant to the issue of whether the respondent erred in refusing disclosure of assessments of anti-dumping duty made in respect of goods exported to Canada by the applicant.
[12] On February 11, 1998, the applicant filed a motion for an order to allow the filing of the non-confidential affidavit of Jean-Guy Plante and the confidential and non-confidential affidavits of Christopher J. Kent. The motion adds that the respondent should have 20 days to reply to these affidavits.
SUBMISSIONS
1. The Applicant's Submissions
[13] The applicant submits that the affidavits contain information that is relevant to this matter. The applicant further submits that the applicant could only obtain the affidavit of Jean-Guy Plante on January 22, 1998, and the affidavits of Christopher Kent on February 11, 1998.
2. The Respondent's Submissions
[14] The respondent's primary objection is that the additional affidavit evidence is not relevant to the judicial review application. The respondent states that the application raises a new point of law that the court has never considered.
THE AFFIDAVITS
[15] The affidavit of Jean-Guy Plante, Executive Vice-President of Groupe Bédard Ltd., states that Groupe Bédard Ltd. was assessed anti-dumping duties in respect of five shipments of polyiso insulation board imported from the applicant. Mr. Plante states that Groupe Bédard Ltd. was not informed of these assessment by Revenue Canada. Mr. Plante states that he became aware of anti-dumping duties on the import of polyiso insulation board when the Detailed Adjustment Statements and calculation spreadsheets were forwarded to Groupe Bédard Ltd. with invoices from their customs broker.
[16] The non-confidential affidavit of Christopher Kent, counsel for the applicant, states that on January 9, 1998, the applicant's counsel received a package of documents from Revenue Canada, representing Revenue Canada's findings under section 57 with respect to six separate requests for re-determination made on behalf of the applicant pursuant to section 56(1.01)(b) of the Special Import Measures Act. The affiant states that, in all cases, the section 57 re-determination resulted in the refund of anti-dumping duties previously assessed.
[17] The affidavit also states that the package of documents contains a Detailed Adjustment Statement and a calculation spreadsheet. The information in the calculation spreadsheets is contained in the Canada Customs Invoices prepared by the applicant to accompany exports to Canada.
DISCUSSION
[18] The hearing of this matter came before me on March 5, 1998. After the hearing, I informed the parties that I would allow the application of the applicant to file the affidavits and that the respondent would have 30 days to file reply affidavits. I further informed the applicant that they could not file any further affidavit evidence unless they could show a Judge of this Court that very special reasons exist that would necessitate the filing of further affidavits.
[19] After hearing the parties and after reading the affidavits of Mr. Plante and Mr. Kent, I cannot conclude that the affidavits are not relevant. I am satisfied that the Judge who will decide the judicial review application will decide what weight he or she will give these affidavits.
[20] Furthermore, I am satisfied that a full disclosure of all the "relevant" evidence will only be of benefit to the Judge hearing the judicial review application. It is in the interest of justice to allow this additional evidence, notwithstanding, the fact that judicial review applications must be decided with expediency.
[21] In addition, the respondent could not show any prejudice if I were to allow the filing of the three affidavits in issue.
[22] The application is allowed.
OTTAWA, ONTARIO "Max M. Teitelbaum"
March 10, 1998. J.F.C.C.