Date: 20090821
Docket: A-174-09
Citation: 2009 FCA 251
Present: SHARLOW J.A.
BETWEEN:
MAAX
BATH INC.
Applicant
and
ALMAG ALUMINUM INC., APEL
EXTRUSIONS LIMITED, CAN ART ALUMINUM EXTRUSION INC., METRA ALUMINUM INC.,
SIGNATURE ALUMINUM CANADA INC., SPECTRA ALUMINUM PRODUCTS LTD., SPECTRA
ANODIZING INC., EXTRUDEX ALUMINUM, ARTOPEX INC., ASIA ALUMINUM HOLDINGS LTD.,
BLINDS TO GO INC., EXTRUDE-A-TRIM INC., GARAVENTA (CANADA) LTD., KAM KIU
ALUMINIUM PRODUCTS (NA) LTD., KAM KIU ALUMINIUM PRODUCTS SDN. BHD., KROMET
INTERNATIONAL INC., LOXCREEN CANADA, MALLORY INDUSTRIES, PANASIA ALUMINIUM
(CHINA) LIMITED, PANASIA ALUMINUM (CALGARY) LIMITED, PANASIA ALUMINUM (MACAO
COMMERCIAL OFFSHORE) LIMITED, PANASIA ALUMINUM (TORONTO) LIMITED, PINGGUO ASIA
ALUMINUM CO. LTD., R-THETA THERMAL SOLUTIONS INC., RAILCRAFT INTERNATIONAL
INC., REGAL ALUMINUM PRODUCTS INC., SHINING METAL TRADING INC., SINOBEC TRADING
INC., TAG HARDWARE SYSTEMS LTD., TAISHAN CITY KAM KIUM ALUMINIUM EXTRUSION CO.
LTD., VITRE-ART C.A.B. (1988) INC., ZMC METAL COATING INC., ALFA MEGA INC.,
ALUMINART PRODUCTS LIMITED, ALUMINUM CURTAINWALL SYSTEMS INC., C.R. LAWRENCE
CO. OF CANADA, CHINA SQUARE INDUSTRIAL LTD., CONCORD WEST DISTRIBUTION LTD.,
DIGI-KEY CORPORATION, HOME-RAIL LTD., HUNTER-DOUGLAS CANADA, INDEPENDENT
CONTRACTORS AND BUSINESSES ASSOCIATION OF BRITISH COLUMBIA, KNOLL NORTH AMERICA
CORP., LEVELOR/KIRSCH WINDOW FASHIONS (A DIVISION OF NEWELL RUBBERMAID/NEWELL
WINDOW FURNISHINGS INC.), MILWARD ALLOYS INC., MORSE INDUSTRIES, NEW ZHONGYA
ALUMINUM FACTORY LTD., NEWELL INDUSTRIES CANADA INC., NEWELL WINDOW FURNISHINGS
INC., OPUS FRAMING LTD., PACIFIC SHOWER DOORS (1995) LTD., PROFORMA INTERIORS
LTD. DBA ALUGLASS, RAHUL GLASS LTD., RUHLAMAT NORTH AMERICA LTD., RYERSON
CANADA, SILVIA ROSE INDUSTRIES, SONIPLASTICS INC., VANCOUVER FRAMER CASH &
CARRY LTD., VAP GLOBAL INDUSTRIES INC., ZHAOQING CHINA SQUARE INDUSTRY LIMITED
and ATTORNEY GENERAL OF CANADA
Respondents
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa, Ontario,
on August 21, 2009.
REASONS
FOR ORDER BY: SHARLOW
J.A.
Date: 20090821
Docket: A-174-09
Citation: 2009 FCA 251
Present: SHARLOW
J.A.
BETWEEN:
MAAX BATH
INC.
Applicant
and
ALMAG ALUMINUM INC., APEL EXTRUSIONS
LIMITED, CAN ART ALUMINUM EXTRUSION INC., METRA ALUMINUM INC., SIGNATURE
ALUMINUM CANADA INC., SPECTRA ALUMINUM PRODUCTS LTD., SPECTRA ANODIZING INC.,
EXTRUDEX ALUMINUM, ARTOPEX INC., ASIA ALUMINUM HOLDINGS LTD., BLINDS TO GO
INC., EXTRUDE-A-TRIM INC., GARAVENTA (CANADA) LTD., KAM KIU ALUMINIUM PRODUCTS
(NA) LTD., KAM KIU ALUMINIUM PRODUCTS SDN. BHD., KROMET INTERNATIONAL INC.,
LOXCREEN CANADA, MALLORY INDUSTRIES, PANASIA ALUMINIUM (CHINA) LIMITED, PANASIA
ALUMINUM (CALGARY) LIMITED, PANASIA ALUMINUM (MACAO COMMERCIAL OFFSHORE)
LIMITED, PANASIA ALUMINUM (TORONTO) LIMITED, PINGGUO ASIA ALUMINUM CO. LTD.,
R-THETA THERMAL SOLUTIONS INC., RAILCRAFT INTERNATIONAL INC., REGAL ALUMINUM
PRODUCTS INC., SHINING METAL TRADING INC., SINOBEC TRADING INC., TAG HARDWARE
SYSTEMS LTD., TAISHAN CITY KAM KIUM ALUMINIUM EXTRUSION CO. LTD., VITRE-ART
C.A.B. (1988) INC., ZMC METAL COATING INC., ALFA MEGA INC., ALUMINART PRODUCTS
LIMITED, ALUMINUM CURTAINWALL SYSTEMS INC., C.R. LAWRENCE CO. OF CANADA, CHINA
SQUARE INDUSTRIAL LTD., CONCORD WEST DISTRIBUTION LTD., DIGI-KEY CORPORATION,
HOME-RAIL LTD., HUNTER-DOUGLAS CANADA, INDEPENDENT CONTRACTORS AND BUSINESSES
ASSOCIATION OF BRITISH COLUMBIA, KNOLL NORTH AMERICA CORP., LEVELOR/KIRSCH
WINDOW FASHIONS (A DIVISION OF NEWELL RUBBERMAID/NEWELL WINDOW FURNISHINGS
INC.), MILWARD ALLOYS INC., MORSE INDUSTRIES, NEW ZHONGYA ALUMINUM FACTORY
LTD., NEWELL INDUSTRIES CANADA INC., NEWELL WINDOW FURNISHINGS INC., OPUS
FRAMING LTD., PACIFIC SHOWER DOORS (1995) LTD., PROFORMA INTERIORS LTD. DBA
ALUGLASS, RAHUL GLASS LTD., RUHLAMAT NORTH AMERICA LTD., RYERSON CANADA, SILVIA
ROSE INDUSTRIES, SONIPLASTICS INC., VANCOUVER FRAMER CASH & CARRY LTD., VAP
GLOBAL INDUSTRIES INC., ZHAOQING CHINA SQUARE INDUSTRY LIMITED and ATTORNEY
GENERAL OF CANADA
Respondents
REASONS FOR ORDER
SHARLOW J.A.
[1]
The
respondent Regal Aluminum Products Inc. (“Regal”) has moved for leave be an
intervener in these proceedings rather than a respondent. The motion is opposed
by the respondents Almag Aluminum Inc., Apel Extrusions Limited, Can Art
Aluminum Extrusion Inc., Metra Aluminum Inc., Signature Aluminum Canada Inc.,
Spectra Aluminum Products Ltd., Spectra Anodizing Inc. and Extrudex Aluminum (I
will refer to these parties collectively as the “Almag group”). The applicant
Maax Bath Inc. (“Maax”) has taken no position.
Background
[2]
In a
decision rendered on March 17, 2009, the Canadian International Trade Tribunal
(CITT) found that the dumping and subsidizing in Canada of custom-shaped and standard-shaped
aluminum extrusions originating in or exported from the People’s Republic of China have caused injury to the domestic
industry. Reasons for the decision were issued on April 1, 2009 (NQ-2008-03). A
number of products were excluded from these findings.
[3]
The CITT
proceedings were commenced as the result of a complaint by a number of parties,
some of whom comprise what I have now called the Almag group. Many parties
appeared in opposition to the complaint. Some parties sought exclusions, some
of which were granted and others not. Regal and Maax sought exclusions without
success (see paragraphs 365 and 368 of the CITT’s reasons).
[4]
On April
15, 2009, Maax filed an application for judicial review of the decision of the
CITT, challenging a number of its findings on the main issue as well as its
rejection of the exclusion request by Maax. All of the named parties were
served. A notice of appearance has been filed by the Almag group, and by
Ruhlamat North America Ltd. No other notices of appearance have been filed.
Regal has not filed a notice of appearance. The matter has progressed to the
point of the filing of the applicant’s record and authorities, which were filed
on August 19, 2009.
Motion to intervene
[5]
On June
29, 2009, Regal filed a motion record containing a notice of motion seeking to
be removed as a respondent and added as an intervener. The intended purpose of
this change in status is to enable Regal to challenge the decision of the CITT
to deny the exclusion requested by Regal. To that end, Regal wishes to file an
“intervener’s affidavit” and a memorandum of fact and law, and to present oral
argument at the hearing. Alternatively, Regal seeks leave to commence an
application for judicial review outside the statutory time limits.
[6]
The Almag
parties oppose Regal’s motion.
Discussion
[7]
I will
deal first with the alternative request for an extension of time to file a
notice of application for judicial review. The factors to be considered are (a)
whether there was a continuing intention to challenge the CITT decision, (b)
whether there is merit to the application, (c) whether the other parties would
be prejudiced, and (d) whether there is a reasonable explanation for the delay:
Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.).
[8]
I accept
the submission of Regal that the other parties would not be prejudiced by
permitting it to commence a late application for judicial review. However,
that is the only point that favours Regal. I am not persuaded, based on the
evidence presented on the motion, that Regal had a continuing intention to
challenge the decision of the CITT, or that there is a satisfactory explanation
for the delay. It is suggested that certain documents were not made available
to Regal, but there is no evidence of what attempts, if any, were made to
obtain those documents.
[9]
Nor has
Regal established the existence of an arguable case. As I understand it, Regal
proposes to argue that the CITT ignored Regal’s evidence that the extruded
aluminum products it imports from China
are not available from domestic extruders. However, Regal has not provided this
Court with the evidence that it says was given to the CITT. Further, the CITT
stated this at paragraph 365 of its reasons:
…
the Tribunal notes that Regal Aluminum did not provide any evidence of attempts
to purchase the products from domestic producers and, instead, simply stated
that it had not been approached by the domestic producers.
I cannot conclude on the
record before me that Regal has a reasonable prospect of establishing that the
CITT ignored its evidence.
[10]
For these
reasons, I would dismiss Regal’s motion for an extension of time.
[11]
I turn now
to the motion to intervene. The rules permitting intervention are intended to
provide a means by which persons who are not parties to a proceeding may
nevertheless provide the Court with the benefit of their submissions. The rules
are not intended to provide an opportunity to person who is a party to
proceedings to repair the damage caused by its failure to protect its own
position by acting on a timely basis. In the circumstances of this case, it
would be an abuse of the rules to permit Regal to change its status from
respondent to intervener.
[12]
The motion
to intervene will be dismissed. As no costs have been sought, none will be
awarded.
“K.
Sharlow”
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