The Federal Court of Appeal’s decision in Canada (Attorney General) v. Bri-Chem Supply Ltd. has been described “a must-read for all customs and trade lawyers” and for all “administrative lawyers who appear before quasi-judicial Tribunals”. The decision settled a major issue of NAFTA interpretation and also set out clear rules for when administrative agencies must follow decisions of quasi-judicial tribunals.
Peter Kirby acted for Bri-Chem in the Canadian International Trade Tribunal and before the Federal Court of Appeal, and also represented the importers in two related cases that were heard at the same time. Peter is a partner in Fasken Martineau’s Montréal office, and is a member of International Trade & Customs Law group.
“That Kirby and his team […] were able to thwart the bureaucracy is not only a tribute to the rule of law and a significant landmark in shaping the relationship going forward between administrative tribunals and public officials, but also a testament to thoughtful strategy, hard work, focused preparation and skilled advocacy, as well as an object lesson in managing complicated, hard-fought litigation against the state within the strictures of clients’ budgets”, stated Julius Melnitzer in “Art of the Case”, Lexpert Magazine®, published by Thomson Reuters.
The decisions make an important statement regarding administrative law in Canada, and an administrative agency’s duty - absent compelling reasons - to follow and apply tribunal decisions. It is unusual for a Tribunal to conclude that an administrative agency engaged in an abuse of process, and even more unusual to see the FCA agree with that conclusion. The decisions are also important in highlighting the extent to which some administrative decision makers can lose sight of fundamental principles such as the rule of law.
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