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International Trade - Export and Import Permits Act (EIPA). Canada (Attorney General) v. Mosaic Forest Management Corporation
In Canada (Attorney General) v. Mosaic Forest Management Corporation (Fed CA, 2022) the Federal Court of Appeal considered an interlocutory appeal (and cross-appeal) in a judicial review application involving the Export and Import Permits Act. These quotes give some insight into the legal issues involved in this little-litigated statute:[8] The issues in the underlying application in this matter involve not only a review of the ministerial decision but also an allegation that the listing of all species of logs on the Export Control List, established pursuant to the Export and Import Permits Act, R.S.C. 1985, c. E-19, is ultra vires the provision pursuant to which the listing is authorized. Much of the impugned evidence relates to Mosaic’s vires argument. The AGC’s position is that the vires of the listing is to be assessed as of the time it was made. For this reason, among others, he contests the admissibility of the impugned evidence, which post-dates the listing. Mosaic disagrees. The merits of the vires argument are thus closely intertwined with the admissibility of the evidence the AGC impugns.
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[24] On one hand, some of these paragraphs are similar to the impugned paragraphs in Mr. Lee’s affidavit. They attach and summarize data drawn from reports or industry subscriptions: the Madison’s BC Coastal Log Prices report and the subscription from RSI Inc. known as Fastmarkets RSI, in the case of Mr. Gough, and a series of reports generated from the B.C. Ministry of Forests, Lands, Natural Resource Operations and Rural Development and WoodX.com, in the case of Mr. Kaps’ first affidavit.
[25] On the other hand, other paragraphs or portions of paragraphs express opinions. For example, in paragraph 17 of his affidavit, Mr. Gough offers the view that the prices for both the domestic and export markets for logs harvested in the Pacific Northwest region of the United States are comparable. Similarly, in paragraph 81 of his first affidavit, Mr. Kaps provides an estimate of the cost another company would incur in cutting and engaging in certain processing operations for the logs it cuts in British Columbia. Mr. Kaps provides the estimate based on his 29 years’ experience in the forestry industry. Other expressions of opinion are interspersed through paragraphs 70 to 81 of the first Kaps affidavit and paragraphs 9 to 24 and 30 to 35 of the Gough affidavit.
[26] Arguably, these sorts of opinions are the sort of evidence witnesses with many years experience in the forestry industry, like Messrs. Gough and Kaps, may be entitled to offer as lay opinion evidence. They are perhaps similar to the views, for example, of a police officer about matters within police training and expertise, such as opining on the practices of drug couriers, which were found to be admissible as non-expert lay opinion evidence in R. v. MacKenzie, 2013 SCC 50 at paras. 55–65, 363 D.L.R. (4th) 381; and R. v. Nolet, 2010 SCC 24 at para.48, 320 D.L.R. (4th) 1.
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