[2012] 4 F.C.R. D-3
Customs and Excise
Judicial reviews of Minister of International Trade (Minister) decision issuing supplemental import permits allowing Agro-Farma Canada Inc., Canadian affiliate of American dairy processor, to import certain amount of Chobani brand Greek-style yogurt—Canada’s dairy industry subject to Supply Management—Dual objectives of Supply Management established by Canadian Dairy Commission Act, R.S.C., 1985, c. C-15, s. 8—Supply Management achieving these objectives through control mechanisms on domestic pricing, volume of milk produced, volume of imported dairy products—Export and Import Permits Act, R.S.C., 1985, c. E-19 (EIPA), s. 5 authorizing creation of Import Control List, C.R.C., c. 604—Yogurt first placed on Import Control List in 1988 pursuant to EIPA, s. 5(1)(d)—Minister of Foreign Affairs having discretionary authority to issue supplemental import permits for goods listed on Import Control List pursuant to EIPA, s. 8.3(3)—In practice, this power exercised by Minister on behalf of Minister of Foreign Affairs—EIPA, s. 8.3(3) giving Minister authority to issue supplemental import permits for goods for which Minister determining “import access quantity” or tariff rate quota—S. 8.3(3) basis for issuance of Chobani permits herein—Minister publishing series of “Notices to Importers” outlining criteria considered in exercising discretionary power to issue permits under EIPA, s. 8.3(3)—Guidelines showing that Minister may issue permits for products already produced in Canada if “unique” production process used, if investment planned—Agro-Farma applying for test permit to import Chobani duty-free, sell it in Greater Toronto Area for three months for “test marketing” purposes—Applicants, other stakeholders learning about Chobani application, writing to Minister arguing Greek yogurt not new product, not manufactured with unique process—At conclusion of meeting with Agro-Farma, representatives of Foreign Affairs and International Trade Canada, Agriculture and Agri-Food Canada satisfied that process meeting requirement in Guidelines for unique process—Power to issue permits in this case discretionary power situated very close to unfettered end of spectrum—In order for Minister’s exercise of discretion to be reasonable, Minister having to consider impact of permit on Supply Management—Any decision to issue permit harming Supply Management in long term unreasonable—Factors to consider including geographic scope, duration of permits, market conditions for relevant products—As there are significant benefits to Supply Management in long term, Minister may consider other government objectives, such as supporting investment in manufacturing policies, when deciding whether to issue permits— Minister’s decision herein reasonable because evidence before Minister suggesting Chobani permits would not harm Supply Management in long term—Applications dismissed.
Ultima Foods Inc. v. Canada (Attorney General) (T-1931-11, 2012 FC 799, Simpson J., judgment dated June 21, 2012, 44 pp.)