An application for judicial review of a decision of the Canadian International Trade Tribunal was allowed in part. The tribunal conducted an inquiry to determine whether the dumping of steel fasteners from China and Taipei in Canada had caused or threatened injury to the domestic market. The tribunal erred in failing to adequately consider material before it relating to one applicant’s exclusion request and its decision not to grant an exclusion to the product was patently unreasonable as it was not in accordance with reason.

Administrative law – Decisions of administrative tribunals – International Trade Tribunal – Judicial review – Procedural requirements and fairness – Standard of review – Patent unreasonableness

GRK Fasteners v. Leland Industries Inc., [2006] F.C.J. No. 446, Federal Court of Appeal, March 21, 2006, Sharlow, Pelletier and Malone JJ.A.

The Court heard at the same time three applications for judicial review concerning allegations of denials of procedural fairness arising out of a Canadian International Trade Tribunal’s (the “Tribunal”) inquiry to determine whether the dumping of steel fasteners from China and Taipei in Canada, as well as the possible subsidization of these products, had caused or threatened injury to the domestic market. The Tribunal’s inquiry was conducted pursuant to the Special Import Measures Act, R.S.C. 1985, c.S-15, and the inquiry record encompassed some 68 volumes of evidence and another thirty thousand pages dealing with over twenty thousand exclusion requests and related documents.

The applicants’ principal complaint was that, due to the hearing process chosen by the Tribunal, participants were unsure of the scope of the products subject to inquiry until late in the process, making meaningful representation impossible. This complaint related to the Tribunal’s exercise of its residual discretion to manage the proceedings.

The Court will normally respect the choice of procedures made by a specialized tribunal in order to carry out its mandate provided the appropriate degree of procedural fairness is afforded the parties (Genex Communications Inc. v. AGC and CRTC [2005] F.C.J. No. 1440; 2005 FCA 283). Procedural fairness required the Tribunal to devise a procedure that gave the parties enough notice of the case to be met to make meaningful representations (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). In the present case, there was no breach of procedural fairness in the manner in which the Tribunal proceeded.

One of the applicants submitted that the Tribunal made a palpable and overriding error when it denied an exclusion for its patented products. The standard of review of the Tribunal’s substantive findings is patent unreasonableness. To succeed in its argument, the applicant must establish that the Tribunal based its decision on an erroneous finding of fact, that the error was made in a perverse or capricious manner, or without regard for the material before it. With respect to the applicant’s patented products, the applicant had the sole capability and right to manufacture the product and it was difficult to see how its importation could adversely affect the domestic industry. It would appear that under time pressure and voluminous exclusion requests, the Tribunal failed to consider adequately the material relating to the applicant’s exclusion request and its conclusion was patently unreasonable and should be quashed. The decision of the Tribunal with respect to the exclusion of the patent products was referred back to the Tribunal for redetermination.

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