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CUSTOMS AND EXCISE - Dumping and subsidies - Review or rescission of determination

Tuesday, November 13, 2018 @ 8:35 AM  

Lexis Advance® Quicklaw®
Motion by the respondents, the Canada Border Services Agency (CBSA) and the Attorney General of Canada, for an order striking the application for judicial review. Prairies Tubulars (2015) Inc. (the applicant) sold oil country tubular goods (OCTG) and other related goods to drilling companies operating in Alberta’s oil and gas industry. The vast majority of the OCTG sold by the applicant was imported from manufacturers in China and Thailand. In 2010, the CBSA made a final determination of dumping with respect to OCTG originating in or exported from China. The Canadian International Trade Tribunal subsequently determined that the OCTG had been both dumped and subsidized, causing injury to the domestic industry. As a result, certain OCTG became subject to anti-dumping duties. In its consolidated application, the applicant was seeking judicial review of 22 decisions made by the CBSA pursuant to the Special Import Measures Act (SIMA). The decisions assessed anti-dumping duties on OCTG imported into Canada by the applicant. The total amount of anti-dumping duties assessed as owing by the applicant was $18,829,412. The respondents took the position that the Federal Court had no jurisdiction in this matter as its jurisdiction had been ousted by the comprehensive statutory scheme established in the SIMA for challenges to assessments of anti-dumping duties. The applicant acknowledged the existence of the statutory appeal process in the SIMA. However, in order to access that process, the SIMA required that importers seeking to challenge assessments of anti-dumping duties must first pay all of the duties owing on the imported goods in issue. The applicant claimed that since it did not have the financial resources to pay the assessed duties, it could not access the SIMA appeals process. The applicant submitted that in such circumstances it should have recourse in this Court.

HELD: Motion allowed. Section 18.5 of the Federal Courts Act operated to oust the jurisdiction of the Federal Court in the present case. In the absence of a constitutional challenge to the applicable provisions of the SIMA, that statutory regime governed the applicant’s challenge to the assessments in issue. As a result, the application for judicial review was so clearly improper as to be bereft of any chance of success and it was therefore struck out.

Prairies Tubulars (2015) Inc. v. Canada (Border Services Agency), [2018] F.C.J. No. 992, Federal Court, A.L. Mactavish J., October 4, 2018. Digest No. TLD-November122018004