Date: 19971106
Docket: A-435-97
CORAM: STRAYER, J.A.
DESJARDINS, J.A
MCDONALD, J.A.
IN THE MATTER OF A JUDICIAL REVIEW OF AN ORDER MADE
BY THE CANADIAN INTERNATIONAL TRADE TRIBUNAL
ON MAY 21, 1997 IN REVIEW NO. RR-96-005 RESCINDING ITS
ORDER MADE MAY 22, 1992 IN REVIEW NO. 22-91-004 CONCERNING:
FRESH, WHOLE, YELLOW ONIONS, ORIGINATING IN OR
EXPORTED FROM THE UNITED STATES OF AMERICA, FOR
USE OR CONSUMPTION IN THE PROVINCE OF BRITISH COLUMBIA
BETWEEN:
THE BRITISH COLUMBIA VEGETABLE MARKETING COMMISSION
on its own behalf and on behalf of all Onion Growers in the Province of
British Columbia, The Cloverdale Lettuce and Vegetable
Co-operative Association, the Lower Mainland Vegetable
Distributors Inc., the Interior Vegetable Marketing Co-operative,
the Island Vegetable Co-operative Association, the Port Potato Company
Limited and Vancouver Island Produce
Applicants
- and -
WASHINGTON POTATO AND ONION
ASSOCIATION, THE B.C. PRODUCE
MARKETING ASSOCIATION and the
MINISTER and DEPUTY MINISTER
OF NATIONAL REVENUE
Respondents
Heard at Vancouver, British Columbia
Reasons delivered at Vancouver, BC on November 5, 1997
REASONS FOR JUDGMENT BY: MCDONALD, J.A.
Date: 19971106
Docket: A-435-97
CORAM: STRAYER, J.A.
DESJARDINS, J.A.
MCDONALD, J.A.
IN THE MATTER OF A JUDICIAL REVIEW OF AN ORDER MADE
BY THE CANADIAN INTERNATIONAL TRADE TRIBUNAL
ON MAY 21, 1997 IN REVIEW NO. RR-96-005 RESCINDING ITS
ORDER MADE MAY 22, 1992 IN REVIEW NO. 22-91-004 CONCERNING:
FRESH, WHOLE, YELLOW ONIONS, ORIGINATING IN OR
EXPORTED FROM THE UNITED STATES OF AMERICA, FOR
USE OR CONSUMPTION IN THE PROVINCE OF BRITISH COLUMBIA
BETWEEN:
THE BRITISH COLUMBIA VEGETABLE MARKETING COMMISSION
on its own behalf and on behalf of all Onion Growers in the Province of
British Columbia, The Cloverdale Lettuce and Vegetable
Co-operative Association, the Lower Mainland Vegetable
Distributors Inc., the Interior Vegetable Marketing Co-operative,
the Island Vegetable Co-operative Association, the Port Potato Company
Limited and Vancouver Island Produce
Applicants
- and -
WASHINGTON POTATO AND ONION
ASSOCIATION, THE B.C. PRODUCE
MARKETING ASSOCIATION and the
MINISTER and DEPUTY MINISTER
OF NATIONAL REVENUE
Respondents
REASONS FOR JUDGMENT
MCDONALD, J.A.
[1] Despite the cogent arguments made by the Applicants' counsel, we are all of the opinion that this application for judicial review cannot succeed.
[2] Both the Applicants and the Respondents spent considerable time discussing the appropriate standard of judicial review. The spectrum of judicial review is set out in Pezim v. British Columbia (Securities Commn.), [1994] 2 S.C.R. 557. At one end of the spectrum is the standard of correctness which involves giving little judicial deference to the decision of a tribunal. This standard is reserved for those cases dealing with the interpretation of a provision limiting the tribunal's jurisdiction and those cases where there is a statutory right of appeal allowing the reviewing court to substitute its opinion for that of the tribunal. At the other end of the spectrum is the standard of patent unreasonableness which elicits great judicial deference. The Supreme Court of Canada has stated that this standard is reserved for tribunals protected by a true privative clause. Expert tribunals dealing with questions within their jurisdiction but whose legislation contains a statutory right of appeal fall somewhere in between these two poles.
[3] The Canadian International Trade Tribunal is clearly an expert body but Parliament has not protected its decisions with a true privative clause, rather it provided a right to apply for judicial review. Nonetheless, great deference is to be shown to the Tribunal's decisions particularly when dealing with questions that go to the heart of its expertise. It is trite law that more judicial deference is accorded to decisions of tribunals that arrive at this Court by way of application for judicial review than by way of appeal. It follows that there is a fourth standard of review that falls between reasonableness simpliciter and patent unreasonableness which is reserved for those cases where a decision has been rendered by an expert tribunal on an issue within its field or expertise and has arrived at a higher Court by way of application for judicial review. This fourth standard of review requires more deference to a tribunal's findings than that given to expert tribunals containing a statutory right of appeal but slightly less deference than that given to tribunals protected by a true privative clause. Having determined the appropriate degree of judicial deference to be given to the Canadian International Trade Tribunal's decision, I will address the arguments of the Applicants. On the issue of whether the Tribunal erred in applying the appropriate test as by asking itself the wrong legal question, we are all of the view that, while not at all times very specific, the tribunal did have regard to all of the relevant and material factors and therefore there are no grounds to interfere with its decision on that basis.
[4] As for the other errors alleged by the Applicant in this case, we are all of the opinion that although we might not necessarily have come to the same conclusion given the degree of deference to be accorded to the Tribunal's decision, the Applicants' other arguments must fail as well.
[5] We have thoroughly reviewed the decision of the Tribunal, the voluminous material provided to the Court by both parties and the materials provided by the intervenor as well as this Court's decision in Canadian Pasta Manufacturers' Assn. v. Aurora Dist. Ltd. (1997) 208 N.R. 329 (F.C.A.).
[6] We are all in agreement with the Applicants that the Tribunal erred if they intended to imply that the degree to which U.S. onions sold in the past has only occasionally been sold at lower prices. This unfortunate choice of words by the Tribunal has led to a controversial finding if read out of context with the balance of their reasons. This Court held in Canadian Pasta that an error of this magnitude would be patently unreasonable.
[7] However, this case is different from the Canadian Pasta case because there the error referred to by the Court was repeated throughout the Tribunal's decision whereas in this case the error is referred to only once. Clearly then, less weight was placed on the error in pricing in this case than in Canadian Pasta.
[8] Further, in Canadian Pasta, this Court was dealing with past imports whose prices were known. In this case, the Tribunal was considering ongoing prices that, to a great degree, were referenced to the future. The decision of the Tribunal therefore needs to be put in context: it was examining the future of the onion industry and the need for continued protection under the Act. The Tribunal was also dealing with a volatile market where prices were both below as well as above normal values. Moreover, in this case, the Tribunal considered many factors other than dumping, which affect pricing and performance including the vagaries of the regional market but, unlike Canadian Pasta, the weight the Tribunal gave to these other factors is known. Indeed, it is clear that in this case the degree to which U.S. onions sold at lower prices played a relatively small role in the final decision of the Commission.
[9] Having said this, it is important to note that were it not for the unique facts of this case, the reasoning in Canadian Pasta would be followed. Tribunals should therefore take this decision as an indication that they must be much more judicious in the language that they choose. Were it not for the fact that this finding played such a small role in the Tribunal's final decision, this application for judicial review might well have been allowed.
[10] The application for judicial review from the judgment of the Canadian International Trade Tribunal dated Wednesday, May 21, 1997, rescinding an order made April 30, 1987 and continued on May 22, 1992, that the dumping in British Columbia of yellow onions originating in or exported from the United States, for use or consumption in the province of British Columbia, had caused and was likely to cause material injury to the production of Canadian like goods is therefore dismissed on the ground that the Tribunal did not make any reviewable error which would warrant interference by this Court.
(Sgd.) "Francis Joseph McDonald"
J.A.
November 6, 1997
Vancouver, British Columbia
FEDERAL COURT OF APPEAL
Date: 19971106
Docket: A-435-97
BETWEEN:
THE BRITISH COLUMBIA VEGETABLE MARKETING COMMISSION et al.
- and -
WASHINGTON POTATO AND ONION ASSOCIATION, et al.
REASONS FOR JUDGMENT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: 19971106
COURT NO.: A-435-97
| STYLE OF CAUSE: THE BRITISH COLUMBIA VEGETABLE MARKETING COMMISSION et al. |
v.
| WASHINGTON POTATO AND ONION ASSOCIATION et al. |
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: November 4 and 5, 1997
REASONS FOR JUDGMENT OF THE COURT BY: MCDONALD, J.A.
CONCURRED IN BY: STRAYER, J.A.
DESJARDINS, J.A.
APPEARANCES:
Mr. M. Storrow
Ms. M. Morellato
Ms. J. Ott for Applicants
Mr. D. Pearson
Mr. J. Jenkins for Respondents
SOLICITORS OF RECORD:
Blake, Cassels & Graydon
Vancouver, BC for Applicants
Gottlieb & Pearson
North York, ON for Respondents