Date: 20010926
Docket: A-358-01
Neutral citation: 2001 FCA 283
CORAM: DESJARDINS, J.A.
DÉCARY, J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
POLARIS INFLATABLE BOATS (CANADA)
LTD. and ZODIAC HURRICANE TECHNOLOGIES INC.
and METALCRAFT MARINE INCORPORATED
Respondents
Heard at Vancouver, British Columbia, on September 26, 2001.
Judgment delivered at Vancouver, British Columbia, on September 26, 2001.
REASONS FOR JUDGMENT BY: DÉCARY, J.A.
CONCURRED IN BY: DESJARDINS, J.A.
SEXTON, J.A.
Date: 20010926
Docket: A-358-01
Neutral citation: 2001 FCA 283
CORAM: DESJARDINS, J.A.
DÉCARY, J.A.
SEXTON, J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
POLARIS INFLATABLE BOATS (CANADA)
LTD. and ZODIAC HURRICANE TECHNOLOGIES INC.
and METALCRAFT MARINE INCORPORATED
Respondents
REASONS FOR JUDGMENT
DÉCARY, J.A.
[1] The Canadian International Trade Tribunal (the Tribunal) erred, in our view, in ordering that the solicitations be reissued according to the provisions of the "applicable trade agreements" (our emphasis) to the extent that the only applicable trade agreement which was before it was the Agreement on Internal Trade.
[2] The Tribunal was clearly mistaken in taking upon itself to examine and apply the provisions of the North American Free Trade Agreement (NAFTA) when the requests for proposals excluded the application of NAFTA, when none of the parties to the complaint relied on the provisions of NAFTA and when no opportunity was given to the parties to discuss the applicability of NAFTA to the procurements at issue.
[3] This error, however, does not vitiate the determination of the Tribunal as it also found that the requirements of the only trade agreement which was before it, i.e. the Agreement on Internal Trade, had also not been met.
[4] The determination of the Tribunal should therefore be allowed to stand, but references in the reasons of the Tribunal to the application and interpretation of the provisions of NAFTA should be considered as having been made per incuriam and the wording of the determination should be rephrased so as to replace the words " the applicable trade agreements" in the last line of paragraphs 2 and 3 with the words "the Agreement on Internal Trade".
[5] This application for judicial review will be allowed for the sole purpose of rephrasing the wording of the determination in accordance with these reasons.
[6] There will be no costs in the circumstances.
(Sgd.) "Robert Décary"
J.A.
Vancouver, British Columbia
September 26, 2001
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-358-01
STYLE OF CAUSE: AGC v. Polaris Inflatable Boast (Canada) Ltd. et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: September 26, 2001
REASONS FOR JUDGMENT BY DÉCARY, J.A.
CONCURRED IN BY: DESJARDINS, J.A. and SEXTON, J.A.
DATED: September 26, 2001
APPEARANCES:
Anne Turley FOR THE APPLICANT
Ron Skolrood FOR THE RESPONDENT
Zodiac Technologies
Eric Heringa FOR THE RESPONDENT
Polaris Inflatable Boats
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Attorney General of Canada
Lawson Lundell FOR THE RESPONDENT
Zodiac Technologies
Kuzminski & Haraldsen FOR THE RESPONDENT
Polaris Inflatable Boats