Date: 20021119
Docket: T-572-01
Neutral citation: 2002 FCT 1999
BETWEEN:
VICROSSANO INC.
Applicant
and
ATTORNEY GENERAL OF CANADA and
THE MINISTER OF FOREIGN AFFAIRS
Respondents
INTRODUCTION
[1] These reasons arise out of an application for judicial review, filed the 2nd of April, 2001, wherein Vicrossano Inc. (the "applicant") seeks review of a decision of the Minister of Foreign Affairs and International Trade (the "Minister") whereby the Minister, with respect to the 2001 quota year, fixed the applicant's quota for export of peanut butter to the United States at 454,652 kilograms. The letter conveying the Minister's decision to the applicant reads in part as follows:
As you know, since 1995 the United States has operated a global tariff rate quota (TRQ) on peanut butter imports. Within this global quota, Canada has a country-specific allocation of 14,500 tonnes. To provide for the orderly export marketing of peanut butter to the U.S., Canada placed peanut butter on the Export Control List.
With respect to the 2001 quota year Canada's country-specific reserve quota has been allocated to traditional exporters based on a formula derived from your company's utilization for the 1998 quota year, adjusted in subsequent years for under-utilization. Also, as indicated [in] Mr. Burney's letter of February 9, 2001, qualified applicants also receive a share of the 828,625 kilograms available for re-distribution. The allocation of this quota is based on the method approved by the Minister which is outlined in our letter of February 9, 2001.
I, therefore, wish to inform you that your firm's share of the 2001 peanut butter export quota within Canada's country-specific reserve is 454,652 kilograms. This quota allocation is valid for the 2001 quota year ending on December 31, 2001. It should be noted that under the Export and Import Permits Act, the Minister has discretion to amend, suspend, cancel or reinstate any export permit or other authorization issued under the Act. Also companies must be actively engaged in the production of peanut butter in order to receive a quota from the Export and Import Controls Bureau (EICB).[1]
While the application for judicial review cites the decision as being dated and first received by the applicant on the 2nd of March, 2001, I am satisfied that the decision under review is in fact reflected in a letter to the applicant dated the 5th of March, 2001. The foregoing quotation is from the letter dated the 5th of March, 2001. Nothing turns on this distinction.
[2] The applicant urges[2] that the Minister erred in a reviewable manner in arriving at the decision under review by failing to observe an applicable principle of natural justice or procedural fairness, by basing his decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before him, and by making his decision in contravention of the Official Languages Act[3].
[3] By way of relief, the applicant seeks an order quashing the decision under review and requiring the Minister to reissue his decision in a form that, substantively, would be consistent with this Court's decision, and costs[4].
[4] While the reliefs sought raise the spectre of mootness of this application, the 2001 peanut butter export quota year having expired, that issue was not argued before me and I do not propose to rely on it in arriving at my decision.
BACKGROUND
[5] The applicant is a Montreal based producer of peanut butter. From the time when the United States commenced operation of a global tariff rate quota on peanut butter imports and provided to Canada a country-specific allocation within that quota, the applicant has annually been allocated a share of Canada's country-specific allocation. The applicant's export quota allocation for 1996, 1997 and 1998 was 795,726 kilograms. In each of those years, with the approval of the Minister, the applicant transferred a portion of its quota allocation to other peanut butter producers in Canada. At least in 1998, the applicant justified its transfer of a portion of its quota on the ground that it was in the process of upgrading its production facility. The Minister was aware of the applicant's up-grading process. Notwithstanding the up-grading process in which the applicant was engaged, it continued to produce peanut butter and to, itself, export peanut butter to the United States.
[6] In 1998, the Minister undertook a review of the basis of peanut butter quota allocation. The applicant participated in that process.
[7] In 1999, based upon a revised allocation formula, the applicant's quota allocation was reduced by 450,000 kilograms to 345,726 kilograms. The amount by which the applicant's quota was reduced for 1999 corresponded exactly to the amount of quota that it had transferred, with the approval of the Minister, to other producers in 1998. The applicant took strenuous objection to the reduction of its quota. The President of the applicant, in her affidavit filed on this application, attests that one official in the Minister's department acknowledged that the reduction of the applicant's quota for 1999 had constituted an error. The official allegedly assured the President of the applicant that the applicant's quota would be restored at the first opportunity. That this might in fact have been the case, the applicant urges, is borne out by the fact that in 1999, the applicant in fact exported peanut butter to the United States in an amount slightly in excess of its allocated quota for that year.
[8] The applicant alleges that, in relying on assurances from the Minister's officials, the applicant did not seek judicial review of the 1999 quota allocation to it. But by 2001, the applicant's patience in waiting for an administrative solution was strained to the breaking point.
[9] By letter dated the 7th of December, 2000[5], an official in the Minister's department invited the President of the applicant, as a member of the Peanut Butter Tariff Rate Quota Advisory Committee ("TQAC") to participate in a conference call, to be held on the 18th of December, 2000, to "...seek the views of members regarding the allocation for 2001 and beyond of 828,625 kilograms of peanut butter quota which has become available for re-distribution." The President of the applicant participated in the conference call, albeit with some difficulty, she attests, since she is a francophone and the conference call was apparently conducted entirely in English. A summary report of the conference call[6] notes that:
Vicrossano Incorporated requested 450 tonnes be returned to its allocation and the remainder directed to new entrants.
The summary report concluded with the following paragraph:
In summing up the discussion and outlining the next steps, the Chairman indicated that a memo would be prepared and forwarded to the Minister detailing the discussion and the consensus to re-allocate the 828,625 kilograms of peanut butter quota first to quota holders and new entrants to bring their individual allocations up to 150 tonnes and the balance to the remaining quota holders on an equal share basis. He also indicated that the Minister's decision would be communicated to the TQAC members.
[10] A memo was indeed prepared and forwarded to the Minister reflecting the recommendation referred to in the immediately foregoing quotation. In the memo, under the heading "Considerations", the following paragraph appears[7]:
Opposition is to be expected from one firm, however, - Vicrossano Incorporated. Though it did not object to the recommended approach during the conference call, it has since followed up directly with departmental official to request approximately half of the entire quantity available so as to restore its allocation to its pre-1999 levels. The company's allocation was reduced in 1999, along with those of several other firms, pursuant to the Ministerially approved change in the allocation method which was designed to bring allocations in line with actual usage. The company has complained about this ever since, however, it would be exceedingly difficult and undesirable from a policy standpoint to reverse the 1999 policy change for just one company. It would also be contrary to the TQAC recommendation and invite a storm of protest from all other quota holders.
The Minister approved the recommendation. Thus, the applicant's quota for 2001, while it was increased, was not increased in line with the applicant's expectation and recommendation. This judicial review application followed.
THE STATUTORY SCHEME
[11] The Minister operates the peanut butter export quota program for exports to the United States under the authority of the Export and Import Permits Act[8]. Section 7 of that Act reads as follows:
7. (1) Subject to subsection (2), the Minister may issue to any resident of Canada applying therefor a permit to export goods included in an Export Control List or goods to a country included in an Area Control List, in such quantity and of such quality, by such persons, to such places or persons and subject to such other terms and conditions as are described in the permit or in the regulations.
7. (1) Sous réserve du paragraphe (2), le ministre peut délivrer à tout résident du Canada qui en fait la demande une licence autorisant, sous réserve des conditions prévues dans la licence ou les règlements, notamment quant à la quantité, à la qualité, aux personnes et aux endroits visés, l'exportation des marchandises inscrites sur la liste des marchandises d'exportation contrôlée ou destinées à un pays inscrit sur la liste des pays visés.
(1.1) Notwithstanding subsection (1), the Minister may, by order, issue generally to all residents of Canada a general permit to export to any country specified in the permit any goods included on the Export Control List that are specified in the permit, subject to such terms and conditions as are described in the permit.
(2) The Minister may not issue a permit under subsection (1) to export any thing referred to in any of paragraphs 4.1(a) to (c), or any component or part of such a thing, that is included in an Export Control List unless
(a) the export is to a country included in an Automatic Firearms Country Control List; and
(b) the prohibited weapon or component or part thereof is exported to the government of, or a consignee authorized by the government of, that country.
(1.1) Malgré le paragraphe (1), le ministre peut, par arrêté, délivrer aux résidents du Canada une licence de portée générale autorisant, sous réserve des conditions qui y sont prévues, l'exportation - vers les pays mentionnés dans celle-ci - des marchandises inscrites sur la liste des marchandises d'exportation contrôlée qui sont mentionnées dans la licence.
(2) Le ministre ne peut délivrer une licence d'exportation de tout objet visé à l'article 4.1 - ou de quelque élément ou pièce d'un tel objet - inscrit sur la liste des marchandises d'exportation contrôlée, que si les conditions suivantes sont remplies_:
a) les armes seront exportées vers un pays inscrit sur la liste des pays désignés (armes automatiques);
b) les armes, ou les éléments ou pièces, sont destinés au gouvernement de ce pays ou à un consignataire qu'il a autorisé.
[12] It was not in dispute before me that peanut butter for export to the United States is included in an Export Control List. Further, it was not in dispute before me that there are no applicable regulations as referred to in subsection 7(1). Thus, the Minister has extensive discretion in the issue of export permits and the allocation of quota underlying such permits. While such discretion is guided by Guidelines[9], the Minister's discretion remains largely unfettered.
ANALYSIS
a) Standard of Review
[13] In Baker v. Canada (Minister of Citizenship and Immigration)[10], by reference to Pushpanathan v. Canada (Minister of Citizenship and Immigration)[11] and other authorities, Madame Justice L'Heureux-Dubé referred to four (4) factors to be considered in determining the appropriate standard of review of discretionary decisions of Ministers, namely, the presence or absence of a privative clause in the appropriate statutory framework, the expertise of the decision-maker, the purpose of the provision in particular and of the statutory framework as a whole and the nature of the problem in question, especially whether it relates to the determination of law or facts. Applying those factors to this matter, I am satisfied that the appropriate standard of review is patent unreasonableness. The Export and Import Permits Act contains no privative clause. The officials authorized to administer to the allocation of quota, on behalf of the Minister, among Canadian producers must be considered to have a significant degree of expertise. The Export and Import Permits Act, and in particular section 7, is clearly intended to provide for, among other things, the orderly and reasonable allocation of quota in accordance with sound economic and administrative principles. Finally, the nature of the problem in question, that is to say the allocation of quota, is clearly a factual as opposed to a legal problem.
[14] Having determined that the appropriate standard of review is patent unreasonableness, I adopt the following words of Mr. Justice McIntyre in Maple Lodge Farms Limited v. Canada[12] where he wrote at pages 7 and 8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and , where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
b) Natural Justice and Procedural Fairness
[15] Counsel for the applicant urged that promissory estoppel should work against the Minister, that the decision under review flew in the face of the applicant's legitimate expectations and that the applicant's President was not afforded the rights to which she was entitled under the Official Languages Act. I will deal with each of these issues in turn.
[16] In Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services)[13], Mr. Justice Binnie, writing for himself and the Chief Justice, commented on promissory estoppel in the following terms at paragraphs [45] to [48]:
In this case Robert J.A. adopted the private law definition of promissory estoppel provided by Sopinka J. in Maracle v. Travellers Indemnity Co. of Canada, ...:
The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, [1] by words or conduct, made a promise or assurance [2] which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, [3] in reliance on the representation, [4] he acted on it or in some way changed his position. ...
[T]he promise must be unambiguous but could be inferred from circumstances.
If this were a private law case I would agree that the elements of promissory estoppel are present. The evidence goes well beyond what is necessary to trigger procedural fairness or the doctrine of legitimate expectations. Successive Ministers made clear and specific representations that were intended to be acted on, and were in fact acted upon by the respondents. ...
...
However this is not a private law case. Public law estoppel clearly requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped. The legislation is paramount. Circumstances that might otherwise create an estoppel may have to yield to an overriding public interest expressed in the legislative text. ...
...
Here the Minister is mandated in broad terms to act in the public interest, and if the public interest as he defines it is opposed to the award of the modified permit, then I do not think a court should estop the Minister from doing what he considers to be his duty. ... [citations and some text omitted]
[17] Here, even if this were a private law case, I am simply not satisfied that the applicant has met its onus. It simply could not be said on the facts of this matter, as was said by Mr. Justice Binnie, that officials, let alone "successive Ministers" made clear and specific representations that were intended to be acted on. While the President of the applicant may well have acted to the applicant's detriment in not pursuing judicial review of the 1999 quota allocation to it, that of itself is insufficient to invoke promissory estoppel, even in a private law environment.
[18] In Bendahmane v. Canada (Minister of Employment & Immigration[14], at page 32, Mr. Justice Hugessen adopted the following paragraphs from reasons of Lord Fraser of Tullybelton in Attorney General of Hong Kong v. Ng Yuen Shiu[15]:
...when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct.
In the opinion of their Lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with other illegal immigrants from Macau, in the announcement outside the Government House on October 28, that each case would be considered on its merits. [emphasis added]
[19] Once again, I am satisfied that the applicant simply has not made out its case to an entitlement to rely on the doctrine of legitimate expectations. First, the doctrine is not sought to be invoked to support a procedural undertaking. Secondly, the evidence before me simply falls short of establishing that the applicant had reasonable grounds to support a legitimate expectation that its peanut butter quota, as reduced for the 1999 quota year, would be restored to its 1998 level at the first reasonable opportunity.
[20] As indicated earlier in these reasons, the President of the applicant is a francophone. While she acknowledges that she has some facility in English, she attests that she is not
comfortable in that language, particularly when participating in a meeting or conference call where the discussions are entirely in English and might very well be of a relatively technical nature. She alleges that the Minister's officials have, throughout her experience with peanut butter quota, dealt with her only in English and have conducted meetings and conference calls where she was a participant, entirely in English, despite her expression of concern. If all of this were true, it would clearly be in contravention of the letter and spirit of the Official Languages Act.
[21] That being said, at section 58, the Official Languages Act provides for a scheme for registering complaints of alleged infringements of the Act and for the conduct of investigations into those complaints. Remedial provisions are reflected in sections 63 to 65.
[22] Subsection 77(1) of the Official Languages Act provides for recourse to this Court by any person who has made a complaint in respect of certain rights or duties under the Official Languages Act, including those here at issue. Here, no complaint was made to the Commissioner of Official Languages. In the absence of such a complaint, and more particularly, in the absence of evidence that the President of the applicant has fully pursued the complaint and remedial0 procedure available to her under the Official Languages Act, I am satisfied that it is not open to the applicant to, in effect, initiate such a complaint as an element of this application for judicial review.[16]
c) Was the decision under review based upon an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before the Minister?
[23] I am satisfied on the evidence before the Court, and having considered the presentations of counsel at hearing, that the short answer to this question is "No". The process by which officials in the Minister's department arrived at a recommendation to him regarding allocation of peanut butter quota available for redistribution for the 2001 quota year was both open and thorough, allowing all quota holders, including the applicant, an opportunity to participate. Such a process assured that the Minister's officials had all of the facts before them. As a further assurance, a summary report of the consultation, referred to earlier in these reasons, was prepared and distributed to all quota holders. Quota holders were then given an opportunity to raise any questions or concerns that they might have had with the summary report. Only then did a recommendation go forward to the Minister and that recommendation faithfully reproduced the concerns of the applicant. The Minister endorsed the recommendation leading to the allocation for the 2001 quota year that is the subject of this application for judicial review.
[24] There is simply no evidence before me that could lead me to conclude that the allocation was based on a finding of fact that was either perverse or capricious or that was made without regard to the material available to the Minister.
CONCLUSION
[25] Based upon the foregoing analysis, this application for judicial review will be dismissed.
COSTS
[26] An order for costs will go in favour of the respondent, payable by the applicant on the ordinary scale.
___________________________
J.F.C.C.
Ottawa, Ontario
November 19, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-572-01
STYLE OF CAUSE: Vicrossano Inc. v. Attorney General of Canada, the Minister of Foreign Affairs
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 29, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE GIBSON
APPEARANCES:
Mr. Peter Mantas
Ms. Nicole Windsor FOR APPLICANT
Ms. Lynn Marchildon FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Peter Mantas FOR APPLICANT
Heenan Blaikie
Barristers and Solicitors
Ottawa, ON
Ms. Lynn Marchildon FOR RESPONDENT
Department of Justice
Ottawa, Ontario
[1] Applicant's Application Record, Volume 1, Tab 52.
[2] Applicant's Application Record, Volume 4, Tab 79, page 516.
[3] R.S.C. 1985, c. 31 (4th Supp.).
[4] Applicant's Application Record, Volume 4, Tab 79, page 534.
[5] Applicant's Application Record, Volume 1, Tab 46.
[6] Applicant's Application Record, Volume 1, Tab 47.
[7] Applicant's Application Record, Volume 1, Tab 48.
[8] R.S.C. 1985, c. E-19.
[9] Applicant's Book of Authorities, Tab 4.
[10] [1999] 2 S.C.R. 817 at 856-7.
[11] [1998] 1 S.C.R. 982.
[12] [1982] 2 S.C.R. 2.
[13] [2001] 2 S.C.R. 281.
[14] [1989] 3 F.C. 16 (C.A.).
[15] [1983] 2 A.C. 629 (P.C.).
[16] See Harelkin v. The University of Regina [1979] 2 S.C.R. 561 at 593 where Justice Beetz, for the majority wrote:
The courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a right. I believe the correct view was expressed by O'Halloran J. in The King ex.rel. Lee v. Workmen's Compensation Board ... dealing with mandamus but equally applicable to certiorari:
Once it appears a public body has neglected or refused to perform a statutory duty to a person entitled to call for its exercise, then mandamus issues ex debito justitiae if there is no other convenient remedy... If however, there is a convenient alternative remedy, the granting of mandamus is discretionary, but to be governed by considerations which tend to the speedy and inexpensive as well as efficacious administration of justice. ... (Underlining is mine) [citation omitted, underlining in the original]