Federal Court decided that it did not have the jurisdiction to review the correctness of a decision made by the Canada Border Services Agency (“CBSA”) to collect a Liquor Control Board of Ontario (“LCBO”) mark-up on bottles of wine purchased in the United States, on the basis that such review would require the Court to interpret the provisions of provincial law and the relevant contractual instruments, a task which fell outside the jurisdictional confines of s. 18 of the Federal Courts Act

Administrative law – Decisions of administrative tribunals – Border Service Agency – Jurisdiction of court – Judicial review – Parties – Compliance with legislation – Constitutional issues – Federal and provincial legislation

Anisman v. Canada (Border Services Agency), [2008] F.C.J. No. 1660, Federal Court, November 21, 2008, Barnes J.

Mr. Anisman (the “Applicant”), brought a motion challenging the correctness of a decision made by the Canada Border Services Agency (“CBSA”) to collect a Liquor Control Board of Ontario (“LCBO”) mark-up of $537 on three bottles of wine he and his wife imported from the United States. The Applicant argued that the CBSA was not authorized by federal law to act as an agent of the LCBO. In his motion, the Applicant sought judgment on the merits for the return of the monies paid.

CBSA and the Minister of Public Safety and Emergency Preparedness (collectively, the “Respondents”), brought a motion for an Order dismissing the underlying application for judicial review on the ground that the Federal Court lacked jurisdiction to decide the issue. The Respondents argued that in collecting the mark-up, CBSA was acting as an agent of the LCBO and applying provincial law. Accordingly, the Respondents argued, the decision was not one taken by a federal board, commission or other tribunal under section 18 of the Federal Courts Act.

The Court held that federal law provides for the CBSA to act on behalf of Ontario in calculating and collecting a liquor mark-up, but the statutory foundation for doing so is found in the provincial Liquor Control Act. That is the statutory source for the collection and remittance activity carried out by the CBSA as agent for the LCBO. That is also the statutory basis for the LCBO’s agreement with CBSA, made in 1993, under which the formula to calculate the mark-up was fixed.

Accordingly, the Court held that the resolution of the substantive arguments in this case would require it to interpret the provisions of provincial law and the relevant contractual instruments that establish and define the right to collect the LCBO mark-up. In the Court’s view, it was not its role to interpret and enforce provincial law all the more so where, as here, neither the Province nor the LCBO was a party to the proceeding.

While the Applicant argued that the Province could intervene, that was not sufficient. If the interpretation and application of provincial law is at the root of a proceeding, the Province or its interested agencies should be involved as of right and the appropriate forum for hearing the case on the merits is the Superior Court of the Province. In short, the Court concluded that this was not a task which fell within the jurisdictional confines of s. 18 of the Federal Courts Act.

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