Chapter 5 – Judicial Reviews
Judicial or Panel Reviews of Tribunal Decisions
Any person affected by Tribunal findings or orders under section 43, 44, 76.01, 76.02 or 76.03 of SIMA can apply for judicial review* by the Federal Court of Appeal on grounds of, for instance, denial of natural justice or error of law. Any person affected by Tribunal procurement findings and recommendations under the CITT Act can similarly request judicial review by the Federal Court of Appeal under sections 18.1 and 28 of the Federal Courts Act. Lastly, Tribunal orders and decisions made pursuant to the Customs Act can be appealed under that act to the Federal Court of Appeal or, under the Excise Tax Act, to the Federal Court.
Judicial Reviews of SIMA Cases
During the reporting period, applications for judicial review were brought forth before the Federal Court of Appeal in relation to Tribunal decisions in two SIMA proceedings: Corrosion-resistant Steel Sheet and Decorative and Other Non-structural Plywood.
Judicial Reviews of Procurement Cases
There were four Procurement decisions that were brought forth before the Federal Court of Appeal in the fiscal year: files No. PR-2020-004 (J.A. Larue Inc. v. Department of Public Works and Government Services), PR-2020-009/PR-2020-022 (Falcon Environmental Inc. v. Department of Public Works and Government Services), PR-2020-034 (Falcon Environmental Inc. v. Department of Public Works and Government Services) and PR-2020-082 (Sigma Risk Management Inc.).
Customs and Excise Tax decisions appealed to the Federal Court of Appeal
There were four Tribunal decisions under the Customs Appeals and Excise Tax mandate that were brought forth to the Federal Court of Appeal during the reporting period: files No. AP-2018-029 (Atlantic Owl [PAS] Limited Partnership v. President of the Canada Border Services Agency), EA-2019-003/EA-2019-004 (2045662 Alberta Inc./Prairies Tubulars [2015 Inc.] v. President of the Canada Border Services Agency), AP-2019-044 (Costco Wholesale Canada Ltd. v. President of the Canada Border Services Agency) and AP-2019-009 (Keurig Canada Inc. v. President of the Canada Border Services Agency).
Review by CUSMA Binational Panel
Tribunal findings or orders under sections 43, 44, 76.01, 76.02 and 76.03 of SIMA involving goods from the United States and Mexico may be reviewed by a binational panel established under CUSMA. SIMA implements the CUSMA Chapter 10 requirement for binational panel review of final determinations in relation to goods from the United States and Mexico. A binational panel review is triggered on application from an interested party and replaces judicial review before the Federal Court of Appeal. A binational panel may uphold the Tribunal decision under review, or remand it back to the Tribunal for a determination not inconsistent with the panel decision.
One new request concerning gypsum board from the United States was made for review by a binational panel, which was ongoing at the end of the fiscal year.
WTO Dispute Resolution
Governments that are members of the WTO may challenge the Government of Canada in respect of Tribunal injury findings or orders in dumping and countervailing duty cases before the WTO Dispute Settlement Body (DSB). This is initiated by intergovernmental consultations under the WTO Dispute Settlement Understanding.
During the last fiscal year, no Tribunal matters were before the DSB.