AGT FOOD v. INGREDIENTS,, 2019 FCA 229

Date: 20190911 Docket: A-261-18 Citation: 2019 FCA 229 CORAM: STRATAS J.A. WEBB J.A. DE MONTIGNY J.A. BETWEEN: AGT FOOD AND INGREDIENTS, DURUM GIDA SANAYI VE TICARET A.S., and MEDITERRANEAN EXPORTERS ASSOCIATION Applicants and CANADIAN PASTA MANUFACTURERS ASSOCIATION, KRAFT HEINZ CANADA ULC, PULSE CANADA, and LOBLAWS INC. Respondents Heard at Ottawa, Ontario, on September 11, 2019. Judgment delivered from the Bench at Ottawa, Ontario, on September 11, 2019. REASONS FOR JUDGMENT OF THE COURT BY: WEBB J.A. Date: 20190911 Docket: A-261-18 Citation: 2019 FCA 229 CORAM: STRATAS J.A. WEBB J.A. DE MONTIGNY J.A.

BETWEEN: AGT FOOD AND INGREDIENTS, DURUM GIDA SANAYI VE TICARET A.S., and MEDITERRANEAN EXPORTERS ASSOCIATION Applicants and CANADIAN PASTA MANUFACTURERS ASSOCIATION, KRAFT HEINZ CANADA ULC, PULSE CANADA, and LOBLAWS INC. Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on September 11, 2019). WEBB J.A. [ 1 ] This is an application for judicial review of a decision of the Canadian International Trade Tribunal under the Special Import Measures Act , R.S.C. 1985, c. S-15 ( SIMA ) related to the injury caused to the domestic industry by the dumping and subsidizing of

certain dry wheat-based pasta. [ 2 ] The applicants have submitted that the standard of review for the test for causation that is to be applied in this case is correctness. However, the issue in this case is the

interpretation of

section 42 of SIMA and, therefore, is a question of statutory

interpretation. In our view, reasonableness is the appropriate standard of review and considering the relevant text, context, and purpose of the statute, we are of the view that there can be more than one possible reasonable

interpretation of this provision ( Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61 , [2011] 3 SCR 654 and Wilson v Atomic Energy of Canada Ltd., 2016 SCC 29 , [2016] 1 SCR 770 ). [ 3 ] Even if we were to assume that the Tribunal’s

interpretation of the causation requirement in SIMA diverges from earlier decisions, this is not sufficient for this Court to intervene. Despite the uncertainty that may result from such differences, Supreme Court jurisprudence teaches that reviewing courts must show a high degree of deference to expert tribunals interpreting their home statute ( Wilson ). [ 4 ] The main argument of the applicants in this case is that the Tribunal erred in focusing on whether the dumped and subsidized goods caused injury and not whether the dumping and subsidizing of these goods caused injury.

This distinction, in our view, only a formal, inconsequential one, between whether the dumped and subsidized goods have caused injury or the dumping and subsidizing of the goods has caused injury, does not warrant our intervention in this case. [ 5 ] The applicants referred to a recent decision of the Appellate Body of the World Trade Organization with respect to Korea – Anti- Dumping Duties on Pneumatic Valves from Japan (Complaint by Japan) (2019), WTO Doc WT/DS504/AB/R (Appellate Body Report), online: WTO <docsonline.wto.org> as support for this distinction.

However, in paragraph 5.173 of this decision, the Appellate Body of the World Trade Organization states that: Second, those comments do not suggest that a particular method should be applied for evaluating the magnitude of the margin of dumping in an examination of the impact of the dumped imports on the domestic industry. [ 6 ] This illustrates that the Appellate Body of the World Trade Organization equates the impact of dumped goods to the impact of the dumping of the goods. The applicants also referred to the Agreement on Implementation of

Article VI of the General Agreement on Tariffs and Trade 1994 (the Anti-Dumping Agreement). However,

Article 3.5 of this Agreement provides that: 3.5 It must be demonstrated that the dumped imports are, through the effects of dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement. The demonstration of a causal relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities.

The authorities shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to the dumped imports. [ 7 ] The distinction that the applicants are drawing between whether the dumping of the goods caused injury and whether the dumped goods caused injury is not reflected in

Article 3.5 of the Anti-Dumping Agreement. [ 8 ] In our view, reading the Tribunal’s reasons as the Supreme Court instructs us to do, when the Tribunal referred to the impact of the dumped and subsidized goods and the link between the dumped and subsidized goods and the injury suffered by the domestic industry, this is equivalent to a finding by the Tribunal that the dumping and subsidizing of the goods caused that injury.

Since the determination of whether the dumping and subsidizing of the subject goods caused injury is a question of mixed fact and law, suffused by factual appreciation, there is no basis for us to interfere. [ 9 ] While the applicants raised other issues in their application, we have not been convinced that any of these would warrant our intervention. [ 10 ] As a result, we would dismiss this application with costs fixed in the amount of $5,000. "Wyman W. Webb" J.A.

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD JUDICIAL REVIEW OF THE DECISION OF THE CANADIAN INTERNATIONAL TRADE TRIBUNAL, INQUIRY NUMBER NQ-2017-005, ISSUED ON JULY 26, 2018 WITH REASONS ISSUED ON AUGUST 10, 2018 DOCKET: A-261-18 STYLE OF CAUSE: AGT FOOD AND INGREDIENTS ET AL. v. CANADIAN PASTA MANUFACTURERS ASSOCIATION ET AL. PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: September 11, 2019

REASONS FOR JUDGMENT OF THE COURT BY: STRATAS J.A. WEBB J.A. DE MONTIGNY J.A. DELIVERED FROM THE BENCH BY: WEBB J.A. APPEARANCES : Victoria Bazan Devin Doyle For The Applicants Vince DeRose Daniel Hohnstein Stephanie Desjardins For The Respondents SOLICITORS OF RECORD : Victoria Bazan Professional Corporation Ottawa, Ontario For The Applicants Aitken Klee LLP Ottawa, Ontario For The Applicants Tereposky & DeRose LLP Ottawa, Ontario For The Respondents