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Administrative - Evidence and Unadvanced Issues. Canada (Attorney General) v. Pier 1 Imports (U.S.)
In Canada (Attorney General) v. Pier 1 Imports (U.S.) (Fed CA, 2023) the Federal Court of Appeal considered a joint appeal-JR against a ruling of the CITT (Canadian International Trade Tribunal), here addressing the calculation of 'value for duty' for imported goods (custom rates).
In these quotes, the court considers whether procedural fairness was breached when the tribunal refused to allow a party to admit additional evidence, after the ruling had been issued:(2) Did the Tribunal breach procedural fairness by refusing to admit additional expert evidence?
[39] The AGC contends that it was denied procedural fairness when the Tribunal rejected its request to file new evidence following its Decision. Specifically, the AGC argues that it could not have known the case it had to meet prior to the Tribunal deciding what valuation method should be employed to calculate the VFD of the imported goods.
[40] This argument likewise has no merit. While it may be true that the AGC could not have known the valuation method chosen by the Tribunal prior to the Decision, it was well aware of the fact that Pier 1 had appealed the President of the CBSA’s ruling to the Tribunal on the basis of its contention that the appropriate valuation method was the FCVM. At that juncture, the AGC was thus put on notice that there was a possibility that the Tribunal could conclude that the FCVM was the appropriate method of calculation.
[41] The AGC had the burden of demonstrating that there existed a selection of more appropriate comparators than those presented by Pier 1. Specifically, it had the tactical burden of doing so—i.e., to “adduce evidence to refute the evidence on which the appellant relies, for fear of an adverse ruling” (McGregor v. Canada (Attorney General), 2007 FCA 197, 366 N.R. 206 at para. 27). A tactical burden has similarly been described “a matter of common sense” (Sidney N. Lederman, Michelle Fuerst & Hamish C. Stewart, Sopinka, Lederman & Bryant – The Law of Evidence in Canada, 6th ed (Toronto: LexisNexis, 2022) at 127).
[42] In the present circumstances, the AGC had the opportunity to submit its own comparator evidence but it made the tactical decision to only submit a rebuttal report. The denial of a request to submit such comparator evidence so late in the process cannot be characterized as a breach of procedural fairness. As the Supreme Court observed in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R 650 (VIA Rail), no procedural unfairness can arise where a party attempts to introduce evidence after a final decision has been made “without […] any reasonable explanation for why such information could not have been available during the proceedings” (VIA Rail at para. 237).
[43] A reviewing court has no basis to interfere in an administrative tribunal’s decision not to admit any additional evidence after it has given ample opportunity to the parties to do so. As in Via Rail, the Tribunal was in the best position to manage its own procedure, especially with regard to the strategic choices of the parties (Via Rail at para. 245). There is accordingly no basis to find that the Tribunal has in any way breached the AGC’s right to procedural fairness. . 2541005 Ontario Ltd. v. Oro-Medonte (Township)
In 2541005 Ontario Ltd. v. Oro-Medonte (Township) (Div Court, 2023) the Divisional Court considered a motion for statutory leave to appeal, here brought under the s.24(1) of the Ontario Land Tribunal Act, 2021 against a 'review decision' of the Ontario Land Tribunal (OLT) (the 'review decision' was only to procedurally require a review (para 16), not the substantive review result).
In these quotes, the court holds that court doctrine barring evidence on 'unadvanced' issues [SS: my term] (ie. that unargued or unpled law cannot be relied upon by the judge) does not apply in the administrative context:[71] Having said that, even if the Chair raised his own ground of review, the reality is that the Chair has the discretion to do so.
[72] To argue to the contrary, the Moving Party referred this Court to a few cases.
[73] In Mattamy (Downsview) Limited v KSV Restructuring Inc. (Urbancorp), 2023 ONSC 3013, the Applicant sought to set aside an arbitration award on the basis that the arbitrator exceeded his jurisdiction by raising and deciding a new issue and on grounds of unfairness arising from his refusal to permit the Applicant from presenting evidence that it considered relevant to the new issue. The Court found that the arbitrator did not exceed his jurisdiction by having raised and considered the new issue. However, in considering whether the manner in which the evidence and submissions about the new issues were received and considered, the court held that the Applicant was not afforded a sufficient opportunity to present its case on the new issue in that the arbitrator refused to allow certain pieces of evidence to be received. The Court ordered that the award be set aside and the parties proceed to a new arbitration before a different arbitrator. These circumstances are not analogous to the case at bar.
[74] In Rabin v. 2490918 Ontario Inc., 2023 ONCA 49, the appeal involved the application of s. 23(2) of the Commercial Tenancies Act, and, more particularly, the determination of whether a landlord refused or neglected to consent to an assignment of a commercial lease, whether the tenant waived the landlord’s defective performance, and whether the landlord’s consent was unreasonably withheld. The appellant tenant appealed the dismissal of his application for an order under s. 23(2) under the CTA to require the respondent landlord to consent to the assignment of the lease. In sum, he submitted that the application judge erred in finding that the appellant had waived the respondent’s neglect or refusal to provide its consent within the 15-day deadline set out in the lease or at all, and in failing to find that the respondent had unreasonably withheld its consent to the requested assignment. The Court held that the application judge applied the doctrine of waiver when it was not raised or argued by the parties, and erred in his application of the doctrine of waiver. The court stated:[24] It is well established that as a matter of natural justice and trial fairness, it is not open to a judge to dispose of a material issue in a proceeding on a basis that has not been raised or argued by the parties: Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, 398 D.L.R. (4th) 652, at para. 62, leave to appeal refused, [2016] S.C.C.A. No. 279; Labatt Brewing Company Limited v. NHL Enterprises Canada, L.P., 2011 ONCA 511, 106 O.R. (3d) 677, at para. 6; Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 58-62.
[25] Here, on his own initiative, the application judge relied on the doctrine of waiver to dispose of the material issue of the respondent’s compliance with article 11.1(a) of the lease without giving the parties the opportunity to make appropriate submissions. This alone warrants the setting aside of the application judge’s decision. This is in the context of a court hearing an application, which is a very different situation from that of a request for review being considered within the administrative context.
[75] It is the view of this court that, even if the Chair pulled this ground out of thin air, which he did not, the reality is that the Chair has the discretion to raise its own ground of review. The Courts have recognized that the Chair of an administrative tribunal is entitled to arrive at a conclusion on an issue in the absence of submissions from counsel given its institutional expertise. See Gowling v. Ontario (Workplace Safety & Insurance Appeals Tribunal), 2004 CarswellOnt 9827 (Div. Ct.) at para. 21-22. See also, sections 9(1) and 9(4) of the OLTA; Rule 1.3 and 1.4 of the Tribunal Rules.
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