84-A-43
Rich Colour Prints Ltd. (Applicant)
v.
Deputy Minister of National Revenue for Customs
and Excise (Respondent)
Court of Appeal, Pratte, Urie JJ. and Cowan
D.J.—Vancouver, May 4, 1984.
Jurisdiction — Federal Court of Appeal — Application for
order extending time for filing s. 28 application attacking
Tariff Board decision — Interpretation of s. 29 — No s. 28
review where unlimited statutory right of appeal — Applica
tion dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, ss. 28, 29.
This is a subsection 28(2) application for an order extending
the time for filing a section 28 application attacking a Tariff
Board decision. The question is whether the application must be
rejected for lack of jurisdiction. Section 29 of the Federal
Court Act provides that decisions are not subject to review if a
statutory appeal is available. It was argued by the applicant
that when there is a right of appeal, the Court's jurisdiction
under section 28 is limited and can be exercised only on the
grounds and in the manner provided for in the legislation
conferring the right of appeal.
Held, the application should be dismissed.
The Court could not agree with the interpretation of section
29 put forward by the applicant. Section 29 clearly states that a
decision which, under an Act of Parliament, may be appealed
cannot, to the extent that it may be so appealed, be the subject
of a section 28 application. It followed that if the right to
appeal was not limited, the decision was not open to review
under section 28. Counsel was mistaken in his submission that
this interpretation rendered superfluous the final words of
section 29. They were necessary to preserve jurisdiction when a
statute provides for a review by the Federal Court as well as for
an appeal.
COUNSEL:
John G. Smith and Terrance McAuley for
applicant.
Margaret Clare for respondent.
SOLICITORS:
Russell & Dumoulin, Vancouver, for appli
cant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: This is an application pursuant to
subsection 28(2) of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10] for an order extending
the time within which the applicant may file a
section 28 application attacking a decision of the
Tariff Board pronounced on January 14, 1983.
It is common ground that, under section 48 of
the Customs Act [R.S.C. 1970, c. C-40] the appli
cant had the right to appeal to this Court "upon
any question of law" from the decision of the
Tariff Board that it now wishes to have reviewed
under section 28 of the Federal Court Act. It is
also common ground that the only attack that the
applicant intends to make against the decision of
the Board is that it is vitiated by an error of law.
The first question raised by this application is
whether it should be rejected on the ground that
the Court, in view of section 29 of the Federal
Court Act, lacks the jurisdiction to entertain the
section 28 application that the applicant intends to
make.
Section 29 reads in part as follows:
29. Notwithstanding sections 18 and 28, where provision is
expressly made by an Act of the Parliament of Canada for an
appeal as such to the Court, to the Supreme Court, to the
Governor in Council or to the Treasury Board from a decision
or order of a federal board, ... that decision or order is not, to
the extent that it may be so appealed, subject to review ...
except to the extent and in the manner provided for in that Act.
Counsel for the applicant argued that section 29
does not deprive the Court of its section 28 juris
diction when there is a right of appeal to one of the
authorities mentioned in section 29. He contended
that section 29 merely says that, when there is
such a right of appeal from a decision, the jurisdic
tion of the Court under section 28 is limited so
that it can be exercised only on the grounds and in
the manner provided for in the Act conferring the
right of appeal.
We do not agree with that interpretation.
In our opinion, section 29 clearly says that a
decision which, under an Act of Parliament, may
be appealed to an authority mentioned in the
section cannot, to the extent that it may be so
appealed, be the subject of a section 28 applica
tion. It follows that if the right of appeal is not
limited, the decision may not be reviewed under
section 28; if the right of appeal is limited, for
instance to a question of jurisdiction, the decision
may be reviewed under section 28 on grounds that
cannot be raised in the appeal. Contrary to what
was argued by counsel for the applicant, the last
words of section 29 are not rendered superfluous
by this interpretation. These words are necessary
in order to preserve the jurisdiction of the Court
when an Act of Parliament provides that a deci
sion of a federal board may not only be appealed
to one of the authorities mentioned in section 29
but may also be reviewed by the Federal Court; in
such a case, the decision may be reviewed by the
Court but only "to the extent and in the manner
provided for in that Act."
The application will therefore be dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.