Citation:
9101-9380 Québec Inc. v. Canada (Canada Customs and Revenue Agency), 2005 FC 929 (CanLII), <https://canlii.ca/t/1mmlx>, retrieved on 2022-09-29
Counsel for Tabacs Galaxy argued that three serious issues existed. First, despite the fact that Blais J. had held the contrary, he maintained that there was still a serious issue regarding the retroactivity of the Regulations which came into effect on April 1, 2003, as the facts alleged in the finding of guilt occurred on September 3, 2002. Second, the procedure used by the Agency in dealing with its application for renewal was unfair, because it did not give Tabacs Galaxy an opportunity to make submissions in opposition to the decisions made to suspend and cancel the tobacco licence. Third, the treatment given to Tabacs Galaxy by the Agency was vitiated by inequality under the Act.
[20] I cannot accept any of these arguments regarding the existence of serious issues, even if I accept that the judgment of Blais J. does not have the effect of res judicata as it is not a final decision, and that the test for assessing a serious issue is that of a frivolous or vexatious request.
[21] In my opinion, Blais J. clearly decided that the Regulations did not apply retroactively, relying on the case law cited at paragraph 15 of his reasons, on Paton v. The Queen, 1968 CanLII 102 (SCC), [1968] S.C.R. 341, and on the reasons of Gauthier J., supra. The judgment of Blais J. seems to me to be quite correct and counsel for Tabacs Galaxy indicated no valid reason for making any other determination. In my opinion, the procedure followed by the Agency was not unfair. In connection with its application to renew, Tabacs Galaxy was fully aware of the Agency's concerns and could have presented its arguments before the decision was made. As counsel for the Agency submitted, there is no equivalence between an application to renew and a suspension or cancellation proceeding. As to unequal treatment under the Act, counsel for Tabacs Galaxy admitted there was no evidence before the Court to support that argument.
[22] Finally, I feel that the balance of convenience favours the Agency. Counsel for the Agency referred the Court to the judgment of Strayer J. of the Federal Court Trial Division, as he then was, in Canadian Free Speech League v. Canada, [1992] F.C.J. No. 966. I cite paragraphs 7 and 11 of his decision:
¶ 7 With respect to the balance of convenience, which is another factor I must consider, the cases, including a decision of the Supreme Court of Canada, have made it clear that when one is balancing the interests of an individual or a society against the public interest in a sense of the public administration carrying out the laws of legislatures or Parliament, one must give due weight to the public interest.
¶ 11 There is a principle of granting injunctions, that they should be granted, if possible, to preserve the status quo. In terms of the administration of the laws of Parliament, it has been said in the case of the Attorney General of Canada v. Gould back in 1984 by the Federal Court of Appeal and by the Supreme Court of Canada that granting an injunction which would have the effect of giving the Plaintiff his ultimate remedy, involving in the process treating as invalid what has otherwise been regarded as a lawful or legitimate Act of Parliament, treating it in that way pending trial, is not a matter of maintaining the status quo, it is altering the status quo.
[23] I am also relying on R.J.R. - MacDonald Inc. v. Canada (A.G.), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, as to the public interest in an application to invalidate a statute or regulation.
ORDER
THE COURT ORDERS that this motion for an interlocutory injunction be dismissed with costs.