The Little Appointing Provision That Couldn’t Quite: Prairies Tubulars (2015) Inc. v. Canada (Border Services Agency), 2021 FC 36
Over the years, s. 96 of the Constitution Act, 1867 has enjoyed a remarkable evolution. It has been the little appointing provision that could: its handful of words about the process for appointing judges to the superior courts have, by judicial exegesis, created forests of jurisprudence on the limitations on legislative power to encroach on the functions of the country’s superior courts. Perhaps, however, s. 96 has finally met its match, in the thicket of the Special Import Measures Act, RSC 1985, c S-15. That seems to be the upshot of Ahmed J’s thoughtful and thought-provoking analysis in Prairies Tubulars (2015) Inc. v. Canada (Border Services Agency), 2021 FC 36.
The factual and legal background is fairly straightforward. Prairies Tubulars imports pipes which are used in the oil industry. It was assessed for $18m of anti-dumping duties by the Canada Border Services Agency. Unsurprisingly, the company was unhappy. The statute provides for a series of internal redeterminations in the Agency, an appeal to the Canadian International Trade Tribunal and an appeal on a point of law to the Federal Court. But this statutory machinery is only available if you pay the assessed anti-dumping duties up front.
Pleading that it did not have the resources to pay the duties in order to unlock the statutory machinery, the company challenged the constitutionality of the relevant statutory provisions. The crux of the matter was that these provisions walled off alleged factual and legal errors made by the Agency from judicial oversight, unless the company stumped up $18m up front. The company argued that these provisions violated the unwritten principle of the rule of law and the rule of law as codified under s. 96 of the Constitution Act, 1867. Neither argument impressed Ahmed J.
First, the rule of law as an unwritten constitutional principle is not, on its own, “capable of invalidating legislation, aside from the basic requirements it demands of the legislative process” (at para. 38). The Special Import Measures Act having been properly adopted, it could not be attacked for violating the rule of law: “there is a danger in allowing a concept as nebulous as the rule of law to assume the same authority as a written constitutional provision… To find otherwise would permit vague concepts such as ‘orderliness’ and ‘accountability’ to become the law, as opposed to merely guide it” (at para. 42).
Second, the rule of law as codified under s. 96 did not assist either. For one thing, s. 96 only protects the supervisory jurisdiction of the superior courts over issues of jurisdiction and constitutionality (at para. 43). At issue here, however, were “errors of fact and law — they do not raise questions of jurisdiction or constitutionality, nor has the Applicant claimed as such” (at para. 44).
For another thing, even the expansive view of s. 96 set out by the Supreme Court of Canada in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 could not avail the applicants. There, hearing fees were held to block access to the courts and, as a result, were unconstitutional. But the situation here was, Ahmed J. observed, very different. Whereas, in Trial Lawyers, the hearing fees escalated in punitive fashion for ordinary litigations, the Special Import Measures Act’s provisions apply in a rational manner to sophisticated commercial entities:
In my view, the instance of undue hardship in Trial Lawyersis distinguishable from the case at hand because the Appeal Payment Provisions are remedial, not punitive. Anti-dumping duties are not costs that increase with the length of an appeal, but are rather proportionate to the margin of dumping and returnable to the importer if they are ultimately successful upon redetermination or appeal. Hearing fees and anti-dumping duties also flow from different actions. The former is the cost of accessing the courts to exercise one’s rights, whereas the latter is the cost of doing business. The Applicant chose to import goods into Canada with the knowledge of its obligations under SIMA and the duties that flow from those obligations. The Applicant declared its imported goods to be of a particular value, thereby subjecting itself to the risk of higher duties. As the Respondent correctly notes, the Applicant could have chosen to do otherwise by importing less goods or by importing the same goods at a different declared value. The litigant in Trial Lawyers, who was seeking to retain custody of her child, had no such choices available (at paras. 49-50).
The applicant also argued that the statutory provisions constituted cruel and unusual treatment in violation of s. 12 of the Charter of Rights and Freedoms. But the Supreme Court’s recent decision in Quebec (Attorney General) v. 9147-0732 Québec inc, 2020 SCC 32 that s. 12 does not extend to coporations was a “complete answer” to that point (at para. 76).
Has s. 96 finally met its match? I am not entirely persuaded. Two points are worth emphasizing.
First, Ahmed J was too quick, in my view, to dismiss the possibility that the core supervisory jurisdiction was in play here. It is true that the Supreme Court of Canada’s seminal decision in Crevier v Quebec (Attorney General) et al., 1981 CanLII 30 (SCC),  2 SCR 220 suggests that the supervisory jurisdiction extends only to questions of jurisdiction and constitutionality. But, as I have argued, the upshot of the even more recent seminal decision in Vavilov is that reasonableness review — of legal and factual errors — is constitutionally entrenched. If so, then the impugned provisions interfere with the supervisory jurisdiction. There is no need to draw an analogy with Trial Lawyers: on their face, the impugned provisions interfere with the courts’ ability to oversee the lawfulness of federal public administration.
(When it comes to federal administrative agencies, Parliament is free to provide for an exclusive oversight regime, to the exclusion of provincial superior courts and, indeed, of the federal courts: Pringle v Fraser  SCR 821. I have long thought that the Pringle v Fraser principle was difficult to square with Crevier and subsequent s. 96 jurisprudence but may have to wait for another day for the issue to be considered in detail.)
Second, Ahmed J’s rejection of the Trial Lawyers analogy chimes with the generally relaxed approach to the application of the Charter to regulated activities. Simply put, Charter rights apply with much less force, if any at all, in domains of economic activity which are heavily regulated.
Applying this thinking to s. 96 is novel. But I am not sure that it is appropriate: s. 7 of the Charter doesn’t apply because economic liberty is not covered by “life, liberty and security of the person”; s. 8 applies with less force because expectations of privacy in respect of regulated activity are attenuated; and s. 11 does not apply because those subject to regulatory punishments are not “charged with an offence”. The supervisory jurisdiction, by contrast, is transcendent. All creatures, legal and natural, great and small, are entitled to call upon it. Ahmed J suggests otherwise, and I am not sure — despite the elegance of his analysis — that he is right to do so.
This content has been updated on February 22, 2021 at 03:00.