Digests

Abbott Laboratories, Ltd. v. M.N.R.

T-1289-02, T-1129-02, T-1290-02, T-1291-02, T-1292-02, T-1293-02, T-1294-02, T-1295-02, T-1296-02, T-1297-02, T-1298-02

2004 FC 140, Lemieux J.

29/1/04

31 pp.

Consolidated judicial review by Abbott Laboratories Limited, Canadian company, (as importer) and Abbott Laboratories International, U.S. corporation, (as exporter) of nutritional products "Similac" and "Ensure"--Exporter certified origin of products as United States entitling these products to preferential tariff treatment in Canada under North American Free Trade Agreement (NAFTA)--Importer wholly owned by exporter--Challenging 96 decisions by Canada Customs and Revenue Agency (CCRA) re-determining nutritional products not entitled to preferential tariff rate because not meeting NAFTA Rules of Origin, and consequently originating outside United States or Mexico and qualifying only for Most Favoured Nation (MFN) tariff treatment--CCRA made re-determinations of origin of goods pursuant to Customs Act, s. 59(1)--Commencing in 1998, compliance verification officer of CCRA (CCRA officer) issued detailed adjustment statement (DAS) to importer, said to constitute notice and rationale required by Act, s. 59(2) for imposing additional duty because of change in originating status of goods--Thereafter, several DASs issued--M.N.R. submitting judicial review of DASs precluded by Federal Court Act (FC Act), s. 18.5 because Customs Act prescribing comprehensive procedure for challenging DASs culminating in appeal to Federal Court of Appeal on question of law-- Alternatively, M.N.R. submitting Court should exercise discretion to refuse prerogative relief sought by applicants because they have adequate alternative remedy in statutory procedures prescribed by Customs Act which Abbott companies were actively pursuing before Commissioner in appeal launched under s. 60--FC Act, s. 18.5 not applying here--Appeal to Federal Court of Appeal provided for under Customs Act is from Canadian International Trade Tribunal's (CITT) decision and not from DASs--Under privative clauses in review structure provided by Customs Act, ss. 59 through 68, DASs may be reviewed only through process of further re-determination by Commissioner--Commissioner's re-determination to be set aside or otherwise dealt with only by CITT, and CITT's decision may be appealed only on question of law to Federal Court of Appeal--Parliament's clear intention ousts judicial review by Federal Court and also necessity for Court to test whether prescribed review route provides adequate alternative remedy--As to suggested alternative bar (where FC Act, s. 18.5 not applying), Court possesses discretion to refuse judicial review application where adequate alternative remedy exists: Fast v. Canada (Minister of Citizenship and Immigration) (2001), 41 Admin. L.R. (3d) 200 (F.C.A.)--Applicants argued cannot get same remedy before Commissioner as before Court, i.e. Court can find DASs null and void, quash them, but Commissioner, under Customs Act, s. 60, can only make re-determination and cannot cancel illegally issued DASs--But alternative remedy doctrine not requiring remedy be same, only adequate-- Applicants submitted as not provided with rationale, explanation as to why CCRA found Abbott products not entitled to preferential treatment, not knowing case to be met before Commissioner--However, Abbott companies and counsel knew CCRA made change from NAFTA preferred to MFN because of dairy content in Abbott products--Whether DAS statement sufficient to constitute rationale within meaning of Customs Act, s. 59 not detracting from this fact--Applicants must show goods exported and imported were NAFTA country of origin goods not disqualified as such because of non-originating NAFTA milk constituents--Abbott not forced to put all arguments before Commissioner because not knowing why CCRA decided as it did--It is Abbott's choice as to how many legal and factual arguments wants to advance to Commissioner in order to convince him to make further re-determination goods in question qualify for NAFTA preferred rate--Applicants arguing Commissioner's re-determination reached not by way of de novo reconsideration because they have onus of showing why CCRA officers went wrong--Argument not convincing because Commissioner must make further re-determination-- Burden on Abbott companies to advance whatever evidence, arguments they choose to show exports NAFTA status goods as result of Act, s. 42 verification investigation--In this context, not correct to argue Abbott companies faced with adverse finding-- Proceeding before Commissioner de novo in that proceeding as if proceeding before CCRA officer had not taken place-- Abbott companies in same position before Commissioner as before CCRA officer--Finally, applicants arguing DASs null and entitled to judicial review--Nullities of DASs of no significance to alternative remedy analysis-- Applicants then turned to factors for determining whether particular route constituting adequate alternative remedy, found in Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3-- Argued appeal route prescribed under Customs Act inconvenient because three levels of possible appeals and, in this case, myriads of factual and legal questions necessitating perhaps expert submissions--But, Parliament prescribes appeal levels, and complexity of procedures largely determined by Abbott companies--Even assuming alleged errors made, such errors not making Commissioner's re-determination inadequate--In Matsqui, majority of Court not impressed with jurisdictional or hard legal questions argument as factor in deciding issue of alternative remedy--Nature of de novo procedures either make those errors moot or will provide applicants ample opportunity to deal with them and seek their reversal--In terms of remedy, Commissioner can re-determine exported goods of NAFTA origin and entitled to NAFTA preferential rate--Principles of express ouster and adequate alternative remedy apply--Applications dismissed--North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, December 17, 1992, [1994] Can. T.S. No. 2--Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, ss. 42 (as am. by S.C. 2001, c. 25, s. 32), 59 (as am. by S.C. 1997, c. 36, s. 166; 2001, c. 25, s. 41), 60 (as am. by S.C. 1997, c. 36, s. 166; 1999, c. 17, s. 127; 2001, c. 25, s. 42)--Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.5 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).