Canada (Attorney General) v. Polaris Inflatable Boats (canada) Ltd.
The Tribunal erred in applying NAFTA when NAFTA was excluded from the procurements and was not argued by the parties, but the error did not vitiate the Tribunal's determination because the Tribunal also found breaches of the Agreement on Internal Trade; accordingly the application for judicial review is allowed only...
Source-derived case information.
- Citation
- 2001 FCA 283
- Parties
- Applicant: Attorney General of Canada; Respondent: Polaris Inflatable Boats (Canada) Ltd.; Respondent: Zodiac Hurricane Technologies Inc.; Respondent: Metalcraft Marine Incorporated
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 26 September 2001
- Procedural Posture
- Application for Judicial Review / Decision on Application by Federal Court of Appeal
- Outcome
- Application for judicial review allowed for the sole purpose of rephrasing the Tribunal's determination; the Tribunal's determination otherwise stands.
- Legal Topics
- Applicability of Trade Agreements to Procurements, Agreement on Internal Trade, NAFTA Applicability, Remedies for Procurement Breaches, Per Incuriam
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Attorney General of Canada
Applicant
Polaris Inflatable Boats (Canada) Ltd.
Respondent
Zodiac Hurricane Technologies Inc.
Respondent
Metalcraft Marine Incorporated
Respondent
Procedural Posture
Application for Judicial Review / Decision on Application by Federal Court of Appeal
Legal Issues
- 1 Whether the Canadian International Trade Tribunal erred by applying NAFTA when NAFTA was excluded from the requests for proposals and was not relied on by the parties
- 2 Whether the Tribunal's error in referring to NAFTA vitiated its determination under the Agreement on Internal Trade
- 3 What remedy should be ordered if the Tribunal erred in applying NAFTA
Ratio Decidendi
The Tribunal erred in applying NAFTA when NAFTA was excluded from the procurements and was not argued by the parties, but the error did not vitiate the Tribunal's determination because the Tribunal also found breaches of the Agreement on Internal Trade; accordingly the application for judicial review is allowed only to rephrase the Tribunal's determination replacing references to "the applicable trade agreements" with "the Agreement on Internal Trade."
Court Disposition
Application for judicial review allowed for the sole purpose of rephrasing the Tribunal's determination; the Tribunal's determination otherwise stands.
Orders
- Rephrase the wording of the Tribunal's determination by replacing the words "the applicable trade agreements" in the last line of paragraphs 2 and 3 with the words "the Agreement on Internal Trade"
- No costs awarded
Full Case Text
Judgment text and source record
1 paragraphs
Canada (Attorney General) v. Polaris Inflatable Boats (canada) Ltd. Court (s) Database Federal Court of Appeal Decisions Date 2001-09-26 Neutral citation 2001 FCA 283 File numbers A-358-01 Decision Content 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 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