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Not Trading Places: Federal Court Clarifies the Role of the Attorney General on Judicial Review Applications

The Federal Court recently clarified the role of the Attorney General of Canada (AGC) on applications for judicial review. The AGC has frequently participated as respondent on applications from international trade decisions under the Special Import Measures Act, generally opposing the application and arguing in support of the underlying tribunal decision. 

A group of exporters applied for judicial review of a CBSA re-investigation decision, which mandated minimum prices at which Turkish rebar can be exported to Canada. They named as respondents the various Canadian domestic producers that were involved in the underlying re-investigation but did not include the AGC as respondent.

The AGC brought a motion seeking to be added as respondent and to strike the application in its entirety. The AGC argued the named respondents should be removed because they are not “directly affected” by the relief sought in the application, as required by Rule 303(1)(a). In the alternative, the AGC asked to be added as a respondent. The named respondents opposed the AGC’s request to remove them as parties but agreed with adding the AGC as a respondent.

The Applicants, represented by Devin Doyle of Aitken Klee and Victoria Bazan, successfully opposed the motion on the basis that the AGC was not a proper party and did not have standing.

Rule 303 sets out who must be named as a respondent to a judicial review application. Subsection (1) requires naming every person directly affected by the order sought, other than the tribunal itself and subsection (2) provides that the AGC shall be named as respondent where there are no persons that can be named under subsection (1).

The Court dismissed the request to remove the named respondents. Justice Turley found the domestic producers would be directly affected by the relief sought in the application and were thus properly named as respondents. The application sought an order quashing the re-investigation and declaring that re-investigation proceedings are ultra vires the CBSA’s authority and/or jurisdiction and, in the alternative, to set aside the CBSA’s re-investigation on the basis that it is unreasonable. If re-investigations are ultra vires, this would affect the domestic producers’ recourse to seek updated normal values during the five-year life of a Trade Tribunal injury finding or order. The relief sought would also result in a return to the normal values CBSA previously issued, thereby affecting the anti-dumping duties imposed on Turkish exports and the anti-dumping protection afforded to the domestic producers.

The Court also dismissed the AGC’s request to be added as a party. Justice Turley found the named parties capable of responding to the issues raised in this application. The AGC did not satisfy the test of necessity and there was no basis to say the application “cannot be effectually and completely settled” without the AGC as respondent. The Court also noted that the AGC’s submissions were “not entirely clear whether the AGC is requesting to be added as a necessary party in its own right or that the CBSA be added”. To the extent the AGC was arguing that the CBSA should be added as a party in its own right, this would be improper as Rule 303(1)(a) precludes adding the decision-maker as a respondent.

The AGC did not appeal. The effect of the decision would seem to be that the Attorney General will no longer participate in judicial review applications from decisions under SIMA, except in circumstances where there are no other respondent parties.

The full decision can be read here.