Federal Court of Appeal Decisions

Date: 20051202

Docket: A-439-05

Citation: 2005 FCA 408

Present:           EVANS J.A.

BETWEEN:

CANADIAN TIRE CORPORATION, LIMITED

Applicant

and

CANADIAN BICYCLE MANUFACTURERS ASSOCIATION, RALEIGH CANADA LIMITED, GROUPE PROCYCLE INC., A. MORDO AND SON LTD., YONG QI (CHANGZHOU) INDUSTRIAL CO., LTD., LIYANG (SHEN ZHEN) MACHINERY CO., LTD., LIYANG (VIETNAM) INDUSTRIES CO., LTD., SPECIALIZED BICYCLE COMPONENTS CANADA, INC., CERVÉLO CYCLES INC., GIANT MANUFACTURING CO., LTD., TAIWAN BICYCLE EXPORTERS' ASSOCIATION, KENTON BICYCLE CO., ACEBIKE BICYCLE CO., LTD., PRIDE INTERNATIONAL INC., CHINA BICYCLE ASSOCIATION, CHINA CHAMBER OF COMMERCE FOR IMPORT AND EXPORT OF MACHINERY AND ELECTRONIC PRODUCTS, BANGKOK CYCLE INDUSTRIAL COMPANY LIMITED, RETAIL COUNCIL OF CANADA, CANADIAN ASSOCIATION OF SPECIALTY BICYCLE IMPORTERS, TREK BICYCLE CORPORATION, CANNONDALE BICYCLE CORPORATION, GIANT BICYCLE CANADA INC., ASTRO ENGINEERING VIETNAM CO., LTD., ASAMA YUH JIUM INTERNATIONAL VIETNAM CO. LTD., ALWAYS CO., LTD., VIETNAM SHENG FA INTERNATIONAL CO., LTD., DRAGON BICYCLES VIETNAM CO. LTD.,SYNDICAT DEMÉTALLOS, GENESIS CYCLE INC., LAIDLAW HOLDINGS INC./TO WHEELS, DUKE'S CYCLE, NORCO PRODUCTS LTD., RYDER DISTRIBUTION INC., THE GOVERNMENT OF THE KINGDOM OF THAILAND, BICICLETAS MERCURIO, S.A. DE C.V., ITALCYCLE INC., BICYCLE TRADE ASSOCIATION OF CANADA, THE GOVERNMENT OF THE UNITED MEXICAN STATES, GIANT CHINA CO. LTD., THE GOVERNMENT OF TAIWAN, .243 RACINGINC., THE GOVERNMENT OF THE REPUBLIC OF TURKEY, THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA, THE GOVERNMENT OF THE REPUBLIC OF PHILIPPINES, THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM, SMOOTH SHIFTING SPORTS, INC., BRANTFORD CYCLEPATH, BAYVIEW CYCLE CENTRE, INDEPENDENT BICYCLE DEALER ASSOCIATION, PRIMEAU VÉLO, CYCLES DEVINCI INC., ACCESSOIRES POUR VÉLO O.G.D. LTÉE and BICYCLE SPORTS PACIFIC

Respondents

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on December 2, 2005.

REASONS FOR ORDER BY:                                                                                           EVANS J.A.

Date: 20051202

Docket: A-439-05

Citation: 2005 FCA 408

Present:           EVANS J.A.

BETWEEN:

CANADIAN TIRE CORPORATION, LIMITED

Applicant

and

CANADIAN BICYCLE MANUFACTURERS ASSOCIATION, RALEIGH CANADA LIMITED, GROUPE PROCYCLE INC., A. MORDO AND SON LTD., YONG QI (CHANGZHOU) INDUSTRIAL CO., LTD., LIYANG (SHEN ZHEN) MACHINERY CO., LTD., LIYANG (VIETNAM) INDUSTRIES CO., LTD., SPECIALIZED BICYCLE COMPONENTS CANADA, INC., CERVÉLO CYCLES INC., GIANT MANUFACTURING CO., LTD., TAIWAN BICYCLE EXPORTERS' ASSOCIATION, KENTON BICYCLE CO., ACEBIKE BICYCLE CO., LTD., PRIDE INTERNATIONAL INC., CHINA BICYCLE ASSOCIATION, CHINA CHAMBER OF COMMERCE FOR IMPORT AND EXPORT OF MACHINERY AND ELECTRONIC PRODUCTS, BANGKOK CYCLE INDUSTRIAL COMPANY LIMITED, RETAIL COUNCIL OF CANADA, CANADIAN ASSOCIATION OF SPECIALTY BICYCLE IMPORTERS, TREK BICYCLE CORPORATION, CANNONDALE BICYCLE CORPORATION, GIANT BICYCLE CANADA INC., ASTRO ENGINEERING VIETNAM CO., LTD., ASAMA YUH JIUM INTERNATIONAL VIETNAM CO. LTD., ALWAYS CO., LTD., VIETNAM SHENG FA INTERNATIONAL CO., LTD., DRAGON BICYCLES VIETNAM CO. LTD.,SYNDICAT DEMÉTALLOS, GENESIS CYCLE INC., LAIDLAW HOLDINGS INC./TO WHEELS, DUKE'S CYCLE, NORCO PRODUCTS LTD., RYDER DISTRIBUTION INC., THE GOVERNMENT OF THE KINGDOM OF THAILAND, BICICLETAS MERCURIO, S.A. DE C.V., ITALCYCLE INC., BICYCLE TRADE ASSOCIATION OF CANADA, THE GOVERNMENT OF THE UNITED MEXICAN STATES, GIANT CHINA CO. LTD., THE GOVERNMENT OF TAIWAN, .243 RACINGINC., THE GOVERNMENT OF THE REPUBLIC OF TURKEY, THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA, THE GOVERNMENT OF THE REPUBLIC OF PHILIPPINES, THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM, SMOOTH SHIFTING SPORTS, INC., BRANTFORD CYCLEPATH, BAYVIEW CYCLE CENTRE, INDEPENDENT BICYCLE DEALER ASSOCIATION, PRIMEAU VÉLO, CYCLES DEVINCI INC., ACCESSOIRES POUR VÉLO O.G.D. LTÉE and BICYCLE SPORTS PACIFIC

Respondents

REASONS FOR ORDER

EVANS J.A.

[1]                I have before me submissions made on behalf of Trek Bicycle Corporation ("Trek"), Cannondale Bicycle Corporation ("Cannondale") and Giant Bicycle Canada Inc. ("Giant Canada") ("the importers") responding to an order of Rothstein J.A., dated October 27, 2005. The order required them to show cause why the notice of appearance which they served and filed in relation to an application for judicial review should not be rejected as not being in compliance with rule 305 of the Federal Courts Rules.

[2]                The show cause order was issued in response to a request by Groupe Procycle Inc. and Raleigh Canada Limited, operating collectively as the Canadian Bicycle Manufacturers Association ("the domestic producers") for a direction from the Court respecting the notice of appearance filed by the importers. The domestic producers made similar requests in the related applications in Court Files A-440-05 and A-448-05, and have made submissions replying to those of the importers.

[3]                The issue to be decided is whether rule 305 permits a respondent to an application for judicial review to enter a notice of appearance when it has indicated that it is supporting the application. Rule 305 provides as follows:

[4]                The importers filed their notice of appearance in connection with an application for judicial review, styled as Canadian Tire Corporation, Limited v. Canadian Bicycle Manufacturers Association, and others, Court File No. A-439-05. The application relates to a global safeguard inquiry by the Canadian International Trade Tribunal ("CITT") respecting the importation into Canada of certain bicycles and finished painted bicycle frames.

[5]                Trek and Cannondale are foreign bicycle producers and non-resident bicycle importers. Giant Canada is a resident importer of "Giant" brand-name bicycles. The goods of the importers were the subject of the CITT inquiry.

[6]                After a hearing at which the importers participated, the CITT issued a report finding that the importation of foreign bicycles was a principal cause of "serious injury" to the domestic producers, and recommending that the federal Government impose a surtax on certain bicycles of the importers.

[7]                As parties "directly affected by the order sought in the application", "who participated in the proceeding before the tribunal in respect of which the application is made", the importers were named as respondents to the application for judicial review and served with notices of application pursuant to rules 303(1)(a) and 304(1)(b)(ii).

[8]                The domestic producers say that rule 305 means that only a respondent who intends to oppose the application may serve and file a notice of appearance. Since the notice of appearance served and filed by the importers states that they "support the Application", it does not comply with rule 305 and the Court should reject it.

[9]                In support of this interpretation of rule 305, the domestic producers rely on a decision of Stone J.A. in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2001 FCA 4 ("SOCAN"), in which he struck the records of two parties who were not opposing an application, but advancing supportive arguments. He said (at para. 11)

As I see it, Rule 305 was intended to play a pivotal role in the overall scheme and operation of the Part 5 rules. That Rule requires a named respondent to signify by way of a notice of appearance an intention "to oppose an application". This step allows the parties and the Court to know at an early stage which of the named respondents will truly oppose the section 28 application. The service and filing of the notice of appearance ensure that any respondent truly opposed to the application will be served with all further documents in the proceeding and so enable effective participation. As I have already stated, if no notice of appearance is filed, Rule 145(a) disentitles a named respondent from being served with any further documents in the section 28 proceeding. [Emphasis added.]

[10]            The importers make two responses. First, they say that SOCAN is distinguishable. They argue that the respondents inSOCAN were interveners before the Copyright Board, the administrative tribunal under review. Further, the respondents in that case had filed notices of appearance which indicated that they intended to oppose the application for judicial review, but then filed an application record in support of the application for judicial review.

[11]            I do not agree. These differences are not material to the rationale provided by Stone J.A. for interpreting rule 305 to permit respondents to file a notice of appearance only if they intend to oppose an application for judicial review. The purpose of rule 305 is to enable the parties and the Court to know at an early stage of the proceeding which respondents intend to oppose an application, and thus to limit the serving and filing of application records accordingly.

[12]            For the purposes of rule 305, it is not relevant whether a respondent participated in the proceeding of the tribunal under review as a party or as an intervener. Similarly, it is not germane that, in the present case, the importers indicated when they filed a notice of appearance that they supported the application.

[13]            The second argument advanced on behalf of the importers is that, if not permitted to file a notice of appearance, they will be denied their right to procedural fairness, since they will have no opportunity to defend their interests, which would be adversely affected if the application were dismissed. This is because, unless they have entered a notice of appearance, they will have no right to notice of any further steps or documents in the proceeding: rule 145. They say that their perspective is different from that of the applicant, Canadian Tire, and that they may have different arguments to make in support of the application.

[14]            I do not accept this argument. If the importers are concerned about ensuring that their interests are fully canvassed, they may seek intervener status in Canadian Tire's application pursuant to rule 109. Alternatively, they could have applied to be joined as applicants.

[15]            For these reasons, the notice of appearance filed on behalf of the foreign producers will be rejected. These reasons apply also to Court Files A-440-05 and A-448-05, and a copy will be inserted in each, together with the order.

"John M. Evans"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                   A-439-05

STYLE OF CAUSE:                                                   Canadian Tire Corporation, Limited v. Canadian Bicycle Manufacturers Association et al.

DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                  Evans J.A.

DATED:                                                                      December 2, 2005

WRITTEN REPRESENTATIONS BY:

Martin G. Masse Allan H. Turnbull

FOR THE RESPONDENT Canadian Bicycle Manufacturers Association Raleigh Canada Limited Groupe Procycle Inc. FOR THE RESPONDENT Trek Bicycle Corporation Cannondale Bicycle Corporation Giant Bicycle Canada Inc.

SOLICITORS OF RECORD:

McCarthy Tétrault LLP Toronto, Ontario	FOR THE APPLICANT
Lang Michener LLP Ottawa, Ontario Baker & McKenzie LLP Toronto, Ontario	FOR THE RESPONDENT Canadian Bicycle Manufacturers Association Raleigh Canada Limited Groupe Procycle Inc. FOR THE RESPONDENT Trek Bicycle Corporation Cannondale Bicycle Corporation Giant Bicycle Canada Inc.