Digests

Apv Canada Inc. v. M.N.R.

01-T-22

2001 FCT 737, Pelletier J.

3/7/01

19 pp.

Motion for order extending time for commencing application for judicial review in respect of 1,500 decisions--By publication dated July 21, 1990 Minister added "rotary valves" to List of Tariff-Free Machinery and Equipment effective January 1, 1988--Period of retroactivity resulted in burst of refund activity accounting for significant number of 1,500 applications in issue--Only 200 claims paid--Some claims refused on ground "rotary valves" referring only to "rotary airlocks"; some refused on ground "ball/plug/ butterfly valves are not rotary valves"; others refused "as a result of further information from the Machinery and Equipment Advisory Board"--Applicants submitting trade literature showing without equivocation ball/plug/butterfly valves all rotary valves--Federal Court Act, s. 18.1(2) requiring applications for judicial review to be brought within 30 days of date decision first communicated to party directly affected thereby, or within such further time as judge of Trial Division may, either before or after expiration of those 30 days, fix or allow--Principles upon which court to exercise discretion in dealing with application for extension of time set out in Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.)--This analysis tempered by balancing factors according to particulars of situation--Respondent objecting to extension of time on grounds no evidence of continuing intention to commence application for judicial review, no proof of absence of prejudice to respondent--With respect to prejudice, relying upon Valyenegro v. Canada (Secretary of State) (1994), 88 F.T.R. 196 (F.C.T.D.) wherein held prejudice assumed to exist where delay, unless some evidence to contrary--Difficulty in that requires applicant to lead evidence about subject uniquely within knowledge of respondent, i.e. prejudice which may suffer if leave granted--In practical terms, applicant can usually only assert respondent will suffer no prejudice as only respondent knows if documents, witnesses disappeared--Bare denial of prejudice calls on respondent to put forward evidence of prejudice, following which applicant can lead evidence to minimize, contradict respondent's claim of prejudice--Applicant has done all can do, in so far as prejudice concerned--Where applicants must show continuing intention to pursue legal remedies, sufficient to show steps taken to protect rights, without necessarily having to show particular type of proceeding undertaken--Not meaning in all cases test intention to pursue judicial review--As to issue of merits of application, only necessary to determine whether case having some prospect of success--Determination of standard of review starting point--Supreme Court of Canada holding deference may be afforded to specialist tribunal on question of law, providing question not one required to be answered correctly: Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557--Following factors considered to determine standard of review: (1) absence of right of appeal, availability of judicial review suggesting middle standard of review; (2) as question, whether ball/plug/butterfly valve rotary valve, posed in context of administration of Tariff, some deference should be shown Minister's expertise in relation to administration of Tariff; (3) balancing of requirements of importers as well as those of manufacturers best left to Minister; (4) question at issue question of mixed fact, law--Falling squarely within area of competence and entitled to more deference than pure question of law--Minister's decision in relation to claims for refunds entitled to certain amount of deference--As long as test not correctness, strength of applicants' case significantly reduced in that must show Minister sufficiently wrong to justify Court's intervention--While applicants' case not doomed to failure, not one whose success to be taken for granted--Applicants relying on involvement in Cameron Iron Works Ltd. v. Canada, T-2240-93, as evidence of intention to pursue legal remedies--Cameron case settled without admission from Crown rotary valve in List included ball valves--Once Cameron case disposed of, applicants acted promptly to commence own actions for unjust enrichment--If Cameron case test case, reasonable for applicants to await outcome thereof--But to be test case must be structured to resolve some or all of outstanding issues--Respondent never agreed result in Cameron would be determinative of result in other cases--Given absence of commitment that result in Cameron would govern their cases, failure to take some proceeding to protect individual positions suggesting lack of commitment to pursuit of claim--Applicants content to adopt wait-and-see attitude before making commitment to proceed--While continuing interest in possibility of recovery, no ongoing intention to pursue legal remedies in any event--Respondent advancing claim of prejudice on basis some records destroyed as part of records retention and destruction policy--Longer the delay, easier it is to establish prejudice, but self-induced prejudice not meeting test--Applicants not satisfying Court leave to commence applications for judicial review ought to be granted--Merits of case not sufficient to overcome deficiencies in proof of continuing intention--Cogent evidence of injustice required to justify extending 30-day period to cover decisions made eight years ago--Motion dismissed--Customs Tariff Act, R.S.C., 1985 (3rd Supp.), c. 41, s. 75--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(2) (as enacted by S.C. 1990, c. 8, s. 5).