The Canadian International Trade Tribunal found that a flexible application of the computed value method (CVM), the FCVM, was the most appropriate for valuing, pursuant to s. 52(2) of the Customs Act, Pier 1’s imported goods for the relevant period, and requested that the parties prepare additional submissions on the amount of profit and general expenses to be included in the goods’ value for duty purposes (VFD. As a result, the Tribunal rendered an order on December 16, 2021, which fixed the mark-up percentages for Pier 1’s profit and general expenses. The Attorney General now brought both an appeal pursuant to s. 68(1) of the Customs Act regarding alleged errors of law in this order and an application for judicial review pursuant to s. 28(1)(e) of the Federal Courts Act regarding the alleged unreasonableness of such order.
In discussing the issue as to whether s. 18.5 of the Federal Courts Act precluded the judicial review application given that there was a statutory appeal mechanism under s. 68(1) of the Customs Act, albeit, only regarding errors of law, Boivin JA, in finding that the Court, was bound by the finding of the majority in Best Buy (2021 FCA 161), as confirmed in BCE (2022 FCA 152), stated (at para. 29):
The majority, however, found that such a complete bar to judicial review would be incompatible with the rule of law. Hence, the majority concluded that both errors were reviewable—errors of law are reviewable under the correctness standard via the statutory appeal mechanism in subsection 68(1) of the Customs Act, while errors of fact are reviewable under the reasonableness standard through an application for judicial review … .
After dismissing both the appeal and the application, Boivin JA went on to state (at para. 52):
The better approach to reflect Parliament’s intent and the rule of law might be the more restrictive stance adopted by the Ontario Court of Appeal, which reiterates that “judicial review is always available,” but mandates that courts ask themselves whether it is an “appropriate” exercise of their discretion, adding that this is so only in “rare cases” (Yatar [2022 ONCA 446, leave granted] at paras. 42, 48).