Creative Shoes Limited, Danmor Shoe Company
Limited and Créations Marie-Claude Inc.
(Plaintiffs)
v.
Deputy Minister of National Revenue for Cus
toms and Excise, Minister of National Revenue,
The Queen and The Anti-Dumping Tribunal
(Defendants)
Trial Division, Walsh J.—Montreal, November
15, 1971; Ottawa, January 20, 1972.
Judicial review—Jurisdiction—Certiorari—Prohibition—
Decisions under Anti-Dumping Act made before Federal
Court Act came into force—Jurisdiction of Trial Division to
grant certiorari and prohibition.
On May 31, 1971, the Minister of National Revenue,
pursuant to section 11 of the Anti-Dumping Act, prescribed
that the normal value and the fair market value of women's
footwear imported by the three plaintiffs from Italy and
Spain should be determined on the basis of export price
plus specified percentages. On June 1, 1971, the Deputy
Minister made a preliminary determination under the Act
that the shoes were being dumped in Canada, and subse
quently, following a hearing by thé Anti-Dumping Tribunal,
made a final determination of dumping and imposed an
anti-dumping duty.
The three plaintiffs applied for writs of certiorari and
prohibition to stay proceedings on the decisions of the
Minister, Deputy Minister and the Anti-Dumping Tribunal
and for a declaration that they were void in whole or in part,
and also sought an injunction against the Deputy Minister.
Defendant moved to dismiss plaintiffs' application on the
grounds, inter alia, that no cause of action was disclosed in
the pleadings and that the Trial Division was without
jurisdiction.
Held, having regard to the provisions of sections 28 and
61 of the Federdl Court Act (which came into force on June
1, 1971), the Trial Division had jurisdiction to grant a writ
of certiorari or prohibition and quash the Minister's pre
scriptions made on May 31, 1971 if it appeared that there
was an error of law on the face of the record or a failure to
observe a principle of natural justice, but such jurisdiction
with respect to orders and prescriptions made after May 31,
1971, was within the exclusive jurisdiction of the Court of
Appeal.
Held also, plaintiffs had the right to apply for a writ of
certiorari or prohibition, such right not having been specifi
cally taken away by the Customs Act, the Anti-Dumping
Act or the Federal Court Act, despite the fact that certain
appeal procedures were set out in those Acts.
APPLICATION for writs of certiorari and
prohibition.
Richard S. Gottlieb for plaintiffs.
C. R. O. Munro for defendants.
WALSH J.—This case came on for hearing in
Montreal on an application by plaintiffs con
taining 110 paragraphs and 29 pages long for a
writ of certiorari and prohibition and for
declaratory relief against defendants. In the
conclusions plaintiffs claim as follows:
A. That a writ issue calling upon Defendants:
i) to answer the demand contained in the present
Application;
ii) to suspend all proceedings, past and future in virtue
of the decision of the Anti-Dumping Tribunal, the
Ministerial Prescriptions dated May 31, 1971, and the
Application of the Ministerial Prescription by the
Deputy Minister of National Revenue in virtue of his
determinations dated June 3rd [sic] and August 27th,
1971, pending final judgment herein;
iii) pending final judgment herein, to refrain from col
lecting duty and anti-dumping duty other than on the
basis of the export price on women's footwear, includ
ing last-made dress or casual shoes and boots originat
ing in Italy and Spain;
iv) to transmit to this Honourable Court within such
delay as may be fixed, all records and documents
relating to its investigation initiated in June, 1970 and
to the imposition and collection of duty and anti-dump
ing duty on footwear originating in Italy and Spain on
the basis of the advance of the export price by 71%
and 12%, respectively;
B. That by final judgment to intervene herein:
(1) The Ministerial Prescriptions dated May 31, 1971, be
declared null and void, inoperant and/or ultra vires;
(2) The application of the Ministerial Prescriptions by the
Deputy Minister of National Revenue and/or his determi
nations dated June 3rd [sic] and August 27th, 1971, to the
extent that they direct the levying and collection of ordi
nary duties and anti-dumping duties on the basis of the
advance of the export price of women's footwear, includ
ing last-made dress or casual shoes and boots, originating
in Italy and Spain by 71% and 12% respectively be
declared null and void, inoperant and/or ultra vires;
(3) The levying and collection of ordinary and anti-dump
ing duties on women's footwear, including last-made
dress or casual shoes and boots, originating in Italy and
Spain on the basis of the advance of the export price by
71% and 12% in the cases of Italy and Spain respective
ly, be declared null and void, inoperant and/or ultra vires;
(4) It be declared that the provisions of S.40(2) of the
Customs Act and Regulation 11 of the Anti-Dumping Act
provide for deduction for duty and anti-dumping duty
purposes of all taxes and duties rebated upon export,
whether said duties and taxes are imposed or levied on
the finished product or otherwise;
(5) The decision of the Anti-Dumping Tribunal dated
August 25, 1971, to the extent that it orders the imposi
tion and collection of anti-dumping duties in connection
with women's last-made dress or casual shoes and boots
originating in Italy and Spain be declared null and void,
ultra vires and inoperant;
(6) All duties and anti-dumping duties levied and collect
ed on the basis of the advance of the export price of
women's footwear including last-made dress or casual
shoes and boots, originating in Italy and Spain by 7 .1%
and 12% respectively, to be reimbursed to Plaintiffs;
(7) After final judgment, herein, that the Deputy Minister
of National Revenue be enjoined from making a prelimi
nary determination of dumping in respect of women's
footwear originating in Italy and Spain, save and except
after a complete investigation, after inquiring into all facts
of a nature to affect its decision, after providing ample
opportunity to exporters and Plaintiffs to make represen
tations, and only if it finds injurious dumping as outlined
in S. 13 and following of the Anti-Dumping Act; said
dumping duty to be applied in' such case, only to women's
footwear originating from the dumping factories and to be
levied and imposed only to the extent of the margin of
dumping in each case;
the whole with costs.
The application was supported by the affida
vit of one of plaintiffs' attorneys, and by three
affidavits from importers each supporting some
of the paragraphs of the application enumerated
therein. The affidavit of William B. Gladstone,
President of plaintiff Creative Shoes Ltd.,
states that that company is not practising dump
ing and is importing footwear from Italy and
Spain at prices which are equal to or greater
than the fair market value or normal value and
that the Department of National Revenue never
confronted Creative Shoes Ltd. with any infor
mation which it had in respect to the factories
from which it is importing, never advised Crea
tive Shoes Ltd. of the reasons for its conclu
sions for dumping, nor has it afforded them the
opportunity to correct, complete or to con
tradict the information which it had.
The affidavit of Leonard Tucker, the General
Manager of plaintiff Danmor Shoe Co. Ltd.,
states that that company at all relevant times
imported women's footwear from Italy and
Spain at prices equal to or greater than the fair
market value or normal value and continues to
do so to this date and has not dumped and is not
dumping, that the Department of National
Revenue never provided the company with the
information upon which it based its decision to
advance the export price of women's footwear
by 71% and 12% in the case of Italy and Spain,
respectively, and that the business activities of
the company in marketing the women's foot
wear originating in Italy and Spain have been
and are being unduly hampered to the point
where it has caused grave and irreparable
damage to the company.
The affidavit of Aurele Lacroix, President of
plaintiff Créations Marie-Claude Inc., states
that that company has not been practising
dumping and is importing footwear from Italy
and Spain at prices that are equal to or greater
than the fair market value or normal value and
that the Department of National Revenue never
confronted Créations Marie-Claude Inc. with
any information which it had in respect of the
factories from which it is importing and never
advised Créations Marie-Claude Inc. of the rea
sons for its conclusions of dumping, nor has it
afforded them the opportunity to correct, com
plete or contradict the information which it had.
The application was accompanied by seven
exhibits as follows:
(a) Copy of a notice of investigation and
questionnaire sent by the Department of
National Revenue to exporters in Italy and
Spain dated June 8, 1970.
(b) Ministerial Prescriptions dated May 31,
1971, by virtue of section 11 of the Anti-
Dumping Act advancing the export price of
women's footwear originating in Italy on the
basis of the export price being determined
under section 10 of the Act by 7.5%.
(c) Ministerial Prescription dated May 31,
1971 under the same section of the Anti-
Dumping Act advancing the export price of
women's footwear originating in Spain by
12%.
(d) Ministerial Prescriptions dated May 31,
1971, under section 40 of the Customs Act
similarly advancing the export prices for ordi
nary duty purposes by the same percentages
on the basis that insufficient information is
available to enable the determination of the
fair market value under section 36 or 37 of
that Act.
(e) Decision of the Anti-Dumping Tribunal
dated August 25, 1971.
(f) Letter from plaintiffs' attorneys dated
August 30, 1971 to the Dominion Customs
Appraiser of the Department of National
Revenue which sets out most of plaintiffs'
arguments and objecting to the determina
tions made.
(g) Copies of relevant correspondence
between plaintiffs' attorneys and officers of
the Department of National Revenue.
Defendants presented the same day a motion
to dismiss the proceedings or strike out the
pleadings therein on the grounds that:
(a) the relief claimed is discretionary in nature and in the
circumstances alleged would not be granted;
(b) the pleadings disclose no reasonable cause of action;
(c) the Trial Division of this Honourable Court is without
jurisdiction;
(d) the pleadings are throughout interspersed with allega
tions that are immaterial and redundant, including, inter
alia, allegations as to the investigation into dumping con
ducted by the Deputy Minister of National Revenue for
Customs and Excise;
(e) the pleadings are throughout interspersed with allega
tions that may prejudice, embarrass or delay the fair trial
of the action, including, inter alia, allegations as to the
investigation into dumping conducted by the Deputy Min
ister of National Revenue for Customs and Excise.
It was agreed to hear argument on both motions
simultaneously.
The mode of procedure adopted by plaintiffs
herein appears to be somewhat unusual. Rule
603 of the Rules of the Federal Court provides
that proceedings under section 18 of the Act,
such as the present proceedings, may be
brought either
(a) by way of an action under Rule 400; or
(b) by way of an application to the Court
under Rule 319 et seq.
The present proceedings are entitled "Applica-
tion for a Writ of Certiorari and Prohibition and
for Declaratory Relief" and supported by
affidavits and accompanied by a notice of pre
sentation as in the case of a motion, but the
parties are designated therein as plaintiffs and
defendants and the form the proceedings take is
similar to that of a declaration or a statement of
claim, the method now provided for originating
an action under Rule 400. The prayer for relief
is divided into two sections, the relief asked for
in section A being in effect the certiorari and
prohibition referred to in the heading, and the
relief under section B being the relief which the
plaintiffs hope to obtain by final judgment,
which includes the declaratory relief sought and
a request for an injunction against future con
duct of the Deputy Minister of National
Revenue.
While the proceedings as brought are there
fore somewhat hybrid in nature, and some of
the relief sought cannot be granted by the Trial
Division, this would not justify dismissing them
at this stage. This is in accordance with the
principle set out in Dyson v. Attorney General
[1911] 1 K.B. 410, referred to by Mr. Justice
Pigeon in the Supreme Court in Jones and
Maheux v. Gamache [1969] S.C.R. 119 at p.
129, in which judgment Farwell L.J. said at
page 424:
I will quote the Lord Chief Baron in Deare v. Attorney
General (I Y. & C. Ex. at p. 208): "It has been the practice,
which I hope will never be discontinued, for the officers of
the Crown to throw no difficulty in the way of proceedings
for the purpose of bringing matters before a Court of justice
when any real point of difficulty that requires judicial
decision has occurred".
The questions that have to be decided at this
stage of the proceedings are whether the relief
asked for by plaintiffs in paragraphs A(i) to (iv)
of the conclusions should be granted, and with
respect to defendants' motion, whether the pro
ceedings should be dismissed, or the pleadings
struck out at this stage for the reasons set out
therein.
The application concerns two statutes,
namely, the Anti-Dumping Act R.S.C. 1970, c.
A-15 and the Customs Act R.S.C. 1970, c.
C-40. It will be useful at this stage to examine
the relevant sections of these statutes.
Dealing first with the Anti-Dumping Act, sec
tion 8 provides that goods are dumped if the
normal value of the goods exceeds the export
price, the margin of dumping being the amount
of the excess. Section 9 sets out the manner for
determining the normal value of goods, which
broadly speaking is the price at which like
goods are sold to purchasers with whom the
exporter is dealing at arm's length, in the ordi
nary course of trade, for home consumption
under competitive conditions, during a period of
time relating to the period of time at which
these goods are imported into Canada, at the
place from which the goods were shipped into
Canada, with allowances to reflect differences
in terms and conditions of sale and taxation and
other differences relating to price comparabili
ty. Subsection (5) of section 9 provides that
where the normal value of any goods cannot be
determined in this way because there was not a
sufficient number of sales of like goods under
these conditions, then the normal value shall be
determined at the option of the Deputy Minister
on the basis of either the price of like goods
when sold by the exporter to importers in any
country other than Canada after making allow
ances to reflect the differences in the terms and
conditions of sale, taxation and other differ
ences relating to price comparability, or the
aggregate of the cost of production of the goods
plus an amount for administrative, selling and
other costs and profits calculated as prescribed
by the regulations. I have not quoted section 9
in extenso as it is quite lengthy and makes
frequent references to regulations, which regu
lations are not before me, with the exception of
Regulation 11 referred to in paragraph 48 of
plaintiffs' plea which provides:
The normal value of any goods, as otherwise determined,
may be adjusted by deducting therefrom the amount of any
taxes and duties levied on the sales of like goods when
destined for home consumption that are not borne by the
goods sold to the importer in Canada.
Section 10 provides for the manner of deter
mination of the export price of goods, again at
some length, and with reference to regulations.
Section 11, which is the important section in
connection with the present proceedings, reads
as follows:
11. Where, in the opinion of the Deputy Minister, suffi
cient information has not been furnished or is not available
to enable the determination of normal value or export price
under section 9 or 10, the normal value or export price, as
the case may be, shall be determined in such manner as the
Minister prescribes.
Section 13 sets out the procedure for an
investigation respecting the dumping of goods,
which may be initiated either by the Deputy
Minister on his own initiative or on receipt of a
complaint in writing by or on behalf of pro
ducers in Canada of like goods. Notice must be
given to the importer, the exporter, the govern
ment of the country of export, the complainant,
if any, and such other persons as may be speci
fied by the regulations, as well as being pub
lished in the Canada Gazette.
By section 14, when the Deputy Minister, as
a result of the investigation, is satisfied that the
goods are being dumped and the margin of
dumping and the actual or potential volume
thereof is not negligible, he shall make a pre
liminary determination of dumping. Notice of
this determination must be given to the same
parties, as well as to the Secretary of the Anti-
Dumping Tribunal and provisional duty then
commences to be collected in an amount not
greater than the dumping.
By section 16, the Anti-Dumping Tribunal
upon receipt of a notice of a preliminary deter
mination of dumping from the Deputy Minister
then makes an inquiry and within three months
from the receipt of the notice must make a final
determination taking into account paragraph
4(a) of the Agreement on Implementation of
Article VI of the General Agreement on Tariffs
and Trade signed at Geneva, Switzerland, on
June 30, 1967, hereinafter referred to as the
"GATT" Agreement. Among other matters
which the Tribunal must inquire into is the
question whether the dumping of the goods that
are the subject of the inquiry has caused, is
causing, or is likely to cause material injury to
the production in Canada of like goods (section
16(1)(a)(i)).
By section 17, the Deputy Minister, upon
receipt of the finding of the Tribunal, then
makes a final determination of dumping. A
series of appeals is provided with respect to the
similarity of the goods and the appraisal of the
normal value and export price. By section 18(1)
the importer may appeal to a Dominion customs
appraiser for a re-determination or a re-apprais
al of the appraisal made upon entry, which save
for such appeal is final and conclusive. By
section 18(3) a decision of the Dominion cus
toms appraiser is final and conclusive unless the
importer, within 90 days, appeals to the Deputy
Minister for a re-determination or a re-apprais
al. By section 18(4) the Deputy Minister may
re-determine any determination or re-appraise
any appraisal of the normal value or export
price within two years, or at any time for the
purpose of giving effect to a decision of the
Tariff Board, the Federal Court of Canada or
the Supreme Court of Canada with respect to
those goods.
Section 19 provides for an appeal to the
Tariff Board from a decision of the Deputy
Minister made pursuant to section 17(1) or sec
tion 18(4) of the Act within 60 days from the
decision. The Tariff Board may declare what
duty is payable or whether no duty is payable
on the goods with respect to which the appeal
was taken. By section 20 there is a further
appeal within 60 days to the Federal Court of
Canada "upon any question of law". The Feder
al Court may declare what duty is payable or
that no duty is payable, or refer the matter back
to the Tariff Board for re-hearing.
Turning now to the Customs Act we find that
section 36, although worded differently from
section 9 of the Anti-Dumping Act, and using
the term "fair market value" instead of "normal
value", contains substantially the same provi
sions. Section 37 provides an alternative
method of valuation where like goods were not
sold for home consumption in the same circum
stances as the imported goods were sold, stating
that in this event the value for duty shall be
based on the aggregate of the cost of production
plus an amount that is the same percentage of
the cost of production of the goods imported as
the gross profit on the similar goods is of the
cost of production of the similar goods.
Section 40, which was used in this case, reads
as follows:
40. Where sufficient information has not been furnished
or is not available to enable the determination of cost of
production, gross profit or fair market value under section
36 or 37, the cost of production, gross profit or fair market
value, as the case may be, shall be determined in such
manner as the Minister prescribes.
Section 41(2), which provides for certain tax
rebates in the country of export, reads as
follows:
41. (2) The amount of any internal tax imposed within
the country of export or origin on any goods imported into
Canada, from which such goods have been exempted or
have been or will be relieved by means of a refund or
drawback, shall be deducted from the value for duty of such
goods as determined under sections 36 to 40.
By virtue of section 46 there is an appeal
within 90 days from the date of entry to a
Dominion customs appraiser for a re-determina
tion or a reappraisal, whose decision may, in
turn, within 90 days be appealed to the Deputy
Minister. As in the Anti-Dumping Act, the
Deputy Minister may re-appraise the value at
any time to give effect to a decision of the
Tariff Board, the Federal Court of Canada or
the Supreme Court of Canada with respect to
those goods. By section 47, there is an appeal
from the Deputy Minister to the Tariff Board
within 60 days to, inter alia, determine the
value for duty of the specific goods or class of
goods. By section 48 there is a further appeal to
the Federal Court of Canada upon any question
of law and it may declare what rate of duty is
applicable or if no rate of duty is applicable to
the specific goods or class of goods, declare the
value for duty for the specific goods or class of
goods, or refer the matter back to the Tariff
Board for re-hearing. There is a further appeal
from this judgment to the Supreme Court of
Canada.
Pursuant to section 11 of the Anti-Dumping
Act, and on the basis that in the opinion of the
Deputy Minister of National Revenue sufficient
information had not been furnished or was not
available to enable the determination of the
"normal value" under section 9 of the Act of
women's footwear originating in Italy, the Min
ister on May 31, 1971, made the prescription
already referred to that this value should be
determined on the basis of the export price
determined under section 10 of the Act
advanced by 7.5 per cent. On the same date and
on the same basis he made a prescription that
the normal value of women's footwear originat
ing in Spain should be determined on the basis
of the export price determined under section 10
of the Act advanced by 12%. Again, on the
same date, he made two further prescriptions
pursuant to section 40 of the Customs Act and
on the basis that sufficient information had not
been furnished or was not available to enable
the determination of "fair market value" under
sections 36 and 37 of that Act of women's
footwear originating in Italy and Spain, the Min
ister made a prescription that such value should
be determined on the basis of the export price
determined under section 10 of the Anti-Dump
ing Act advanced by 7.5% and by 12%
respectively.
Pursuant to the procedure set forth in the
Anti-Dumping Act an investigation was made
by the Anti-Dumping Tribunal as a result of the
preliminary determination of dumping made by
the Deputy Minister of National Revenue for
Customs and Excise on June 1, 1971. Its find
ing dated August 25, 1971, refers to the fact
that the Deputy Minister on June 3, 1970,
caused an investigation to be initiated under
section 13(1) of the Anti-Dumping Act respect
ing the importation of women's footwear origi
nating in France, Italy and Spain, and that as a
result of his investigation he was satisfied that
women's footwear originating in Italy and Spain
was being dumped and that the margin of dump
ing of the dumped goods and the actual or
potential volume was not negligible. Thereafter,
pursuant to section 14(2)(b) of the Act, he gave
notice under section 14(1) of his preliminary
determination on June 1, 1971, of the dumping.
His notice of preliminary determination indicat
ed that the Department had ascertained that a
number of firms were not dumping, and the
names of such firms were made available to the
Anti-Dumping Tribunal. His notice went on to
say that, where possible, normal value was
determined under section 9 of the Act, but
where, in the opinion of the Deputy Minister,
sufficient information had not been furnished or
was not available, the normal value was then
determined pursuant to section 11 of the Act,
the export price being established under section
10 of the Act on an ex factory basis, and that in
numerous instances the normal value of the
goods exceeded the export price. Under section
15(1) of the Act the goods are deemed to be
entered provisionally and during the period
commencing on the day the preliminary deter
mination was made, i.e., June 1, 1971, and
ending on the day that an order or finding was
made by the Anti-Dumping Tribunal, the
importer was obliged to pay a provisional duty
in an amount not greater than the margin of
dumping.
The Tribunal held a public hearing at which
submissions from interested parties were made
and it found that it was necessary in reaching its
conclusion to rely upon research and interviews
pursued on its own initiative. The public ses
sions were attended by only a token representa
tion from among the membership of the Shoe
Manufacturers Association of Canada and,
according to the findings of the Anti-Dumping
Tribunal, the quality of testimony and argument
submitted indicated a lack of preparation. The
opinion of the Tribunal indicated that those
Canadian plants which had been forced to close
had done so for a variety of reasons, none of
which appeared to relate in any significant way
to imports from Italy and Spain, and that retail
ers who testified indicated that the rising
imports from those countries were not occa
sioned in any material degree by dumping, but
rather resulted from an explosively changing
fashion in footwear to which the domestic
industry had failed to conform, reflecting the
more casual look in women's footwear general
ly. There was agreement that style trends now
originate in Europe, with the result that for a
significant part of the range of footwear the
retailers required, no effective domestic source
was available. The manufacturers for their part
had argued before the Tribunal that if they had
failed to produce the styles of footwear
required this arose not because of inability to
do so but because they could not in competition
with dumped prices. The Tribunal further point
ed out that responsible retailers had expressed
the view that prices in Italy and Spain were
rising so rapidly—an estimated 12% for the
1972 season—that they are likely to be a declin
ing factor in the Canadian market in future
years. The finding concluded:
While there is little convincing evidence that dumped
imports from Italy and Spain have been other than an
insignificant factor in the difficulties facing the industry in
Canada, we are satisfied that continued dumping might well
preclude the kind of adjustments which we feel are impera
tive if the Canadian industry is to retain a substantial
position in the market. We are satisfied that many of the
Canadian producers, given reasonable assurances that
future dumping will attract dump duty, are prepared to
make the necessary changes in their operations to produce,
merchandise most of the types of footwear now imported
from Italy and Spain. There are some styles of footwear, of
which Spanish weaves are an example, which are unsuitable
for manufacture in Canada and will continue to be
imported.
Application of anti-dump duty, in appropriate circum
stances, would remove some of the uncertainty regarding
the future and would probably allow local manufacturers to
obtain a moderately better price for their output.
Accordingly the Tribunal is of the opinion that any future
dumping of women's last made dress or casual shoes and
boots from Italy and Spain might forestall the necessary
adjustments in the Canadian industry, and finds, pursuant to
section 16, subsection (3) of the Anti-Dumping Act, that
future dumping of women's last made dress or casual shoes
and boots from Italy and Spain "is likely to cause material
injury to the production in Canada of like goods".
While the application of anti-dumping duty is, in appropriate
circumstances, necessary and helpful in facilitating the
adjustment of the Canadian industry to the needs of the
market, its application does not guarantee that such adjust
ment will, in fact, occur.
As a result of this finding of the Anti-Dump
ing Tribunal, the Deputy Minister made a final
determination of dumping pursuant to section
17(1) of the Act, and refunded the provisional
duties paid by the importer in accordance with
the provisions of section 15(1) and (2) of the
Act, but under section 3 imposed an anti-dump
ing duty equal to the margin of dumping on all
women's last made dress or casual shoes and
boots from Italy and Spain entered into Canada
after August 25, 1971. Certain firms listed on
the schedule attached to the final determination,
which allegedly were those who were found not
to be guilty of dumping, were exempted, as
were women's ski boots and women's boots or
shoes for special types of sports activities. This
decision and the notice of final determination,
published in the Canada Gazette on September
11, 1971, were not filed as exhibits but were set
out in extenso in plaintiffs' application—para-
graphs 67 and 68. This finding was based on
section 3 of the Act which makes the collection
of anti-dumping duty depend on the finding by
the Anti-Dumping Tribunal that the dumping of
goods of the same description
(a) has caused, is causing or is likely to cause
material injury to the production in Canada of
like goods; or
(b) has materially retarded or is materially
retarding the establishment of the production
in Canada of like goods. (Italics mine.)
The next step was to give notice of this
decision pursuant to section 17(3) of the Anti-
Dumping Act. A copy of one letter giving such
notice was produced as part of the correspond
ence filed under Exhibit P-7 and this letter
advises the exporter that until he has given the
information requested in appendices to the
letter the Department will be assessing duty at
7.5% (or 12% as the case may be) of the ex
factory selling price on imports of this footwear
from him, and that value for duty will be simi
larly determined. The questionnaire requests
detailed information, including copies of orders
or contracts for all sales of women's footwear
to Canadian clients since August 25, 1971,
copies of orders scheduled for future shipment,
information as to whether the model, design or
shape used in the production of this footwear
for the Canadian market has been furnished
them at no charge, details relating to discounts,
packing and shipping, commission, etc., wheth
er the firm is selling identical footwear in the
domestic market, footwear in the domestic
market which is not identical, or whether the
manufacturer is exclusively exporting. In each
of these three events a different questionnaire
is enclosed. Taking, for example, the exporter
who sells identical footwear in the domestic
market, he is asked in the questionnaire to give
information as to any difference in the style or
model numbers, to furnish copies of invoices
concerning sales to domestic clients during the
60 days preceding the sale to Canada, and of
domestic price lists for the same period, to give
information respecting any discounts or rebates
on the basis of quantity, details of the quantity
sold in the domestic market and in the export
market during the period from June 25, 1971,
information as to cash discounts granted to
domestic buyers, transportation procedure for
domestic sales, explanation of any difference in
packing for sales for domestic market, and any
other explanations he may deem necessary.
Since no new Ministerial Prescriptions were
issued after August 25, 1971, according to the
letter of the Deputy Minister dated October 19,
1971 to plaintiffs' attorney, the Ministerial Pre
scriptions of May 31, 1971 are being relied
upon for the re-imposition of the anti-dumping
and special customs duty after August 25, 1971,
despite the refund of such duties paid up to that
date pursuant to section 15(2) of the Act, fol
lowing the decision of the Anti-Dumping Tribu
nal. Evidently, any current information
obtained as a result of the questionnaire sent in
the letters of September 1, 1971, has not result
ed in any new Ministerial Prescriptions.
The Deputy Minister had reached the conclu
sion that sufficient information was not avail
able to determine "normal value" as defined in
section 9 of the Anti-Dumping Act or "fair
market value" or "cost of production" within
the meaning of section 36 and section 37 of the
Customs Act and that the Minister was there
fore justified in relying on section 11 of the
Anti-Dumping Act and section 40 of the Cus
toms Act respectively, partly on the basis of
questionnaires sent on June 8, 1970 to export
ers in Spain and Italy. A copy of one such letter
and questionnaire was filed as Exhibit P-1. This
letter states that the Deputy Minister is of the
opinion that there is evidence that women's
footwear originating in Spain (or Italy, as the
case may be) has been or is being dumped,
stating: "In forming his opinion, the Deputy
Minister had on hand certain confidential infor
mation." The letter states that information is
required in respect of all shipments of women's
footwear invoiced since December 1, 1969, as
well as for any orders on hand for future deliv
ery to Canadian customers and concludes with
this paragraph:
In the event that all the information requested from you has
not been received within a reasonable period of time from
the date of this letter, the department will have no alterna
tive but to assume that it is your intention not to provide the
information requested or that such information is not avail
able. In these circumstances, such further proceedings will
be taken in this matter as are provided for under the law.
The questionnaire is a very lengthy one requir
ing, inter alla, copies of purchase orders or
contracts for all sales invoiced since December
1, 1969, and copies of invoices for goods that
have already been shipped to Canada, details of
the identity of this footwear with that sold on
the domestic market, copies of domestic price
lists, information relating to discounts covering
trade, quantity, or deferred discounts on goods
sold to domestic customers, copies of- invoices
covering sales to domestic customers during the
sixty day period preceding the date of each sale
to Canada, information relating to total sales
during the relevant period both in volume and
value, details relating to the cost of production
of each type of footwear shipped or to be
shipped to Canada broken down into the head
ings, material, direct labour, and factory over
head, together with information respecting the
administrative selling and other costs attribut
able to the goods, costs of styling, designing and
lasts, information as to whether the styling,
designing and lasts for shoes sold on the
Canadian market were supplied free of charge
by a Canadian importer, copies of profit and
loss accounts of the exporters' two most recent
fiscal years adjusted to exclude all export sales,
details of cash discounts, freight policy on both
domestic sales and export sales to Canada,
internal taxes including internal taxes or import
duties applicable to raw materials, information
relating to drawbacks or rebates applicable to
either the domestic or export market, informa-
tion as to government subsidies and how they
are calculated, descriptions of differences
between domestic and export packing and costs
of same, and information as to all other costs,
charges and expenses incurred on goods
shipped or to be shipped to Canada. It can
readily be appreciated that such a question
naire, while no doubt seeking information
highly pertinent to the Department of National
Revenue, Customs and Excise, in connection
with its investigation, nevertheless asks ques
tions which would be considered highly imperti
nent by an exporter in Spain or Italy, who is
certainly not obliged to give information to a
foreign country as to his profits, volume of
domestic sales or similar information. In fact,
only the largest exporters would be likely to be
so organized and have such detailed accounting
and tax advice at their disposal, as to be able to
answer such a questionnaire fully and complete
ly even if they were disposed to do so. It is not
surprising, therefore, that allegedly only ten per
cent replied. Apparently, among those who
replied there were some who gave sufficient
information to satisfy the Department that they
were not guilty of dumping practices and hence
were included in the list of those exempted
from the imposition of these duties. Despite
this, on the basis of the somewhat scanty infor
mation obtained in answer to this questionnaire,
supplemented by such additional information as
he was able to obtain by such investigations as
his representatives may have carried out in
Spain and Italy and what is referred to in the
letter of June 8, 1970 as "certain confidential
information", the Deputy Minister was able to
reach two conclusions:
(a) That dumping was taking place with
respect to ladies' footwear from Spain and
Italy (although not from France); and
(b) That there was insufficient information
available to determine the "normal value" of
goods under section 9 of the Anti-Dumping
Act or the similar "fair market value" or
"cost of production" under sections 36 and
37 of the Customs Act, thereby justifying the
determination of these values by the Minister
as a result of the Deputy Minister's said opin
ion, so that the Ministerial Prescriptions of
May 31, 1971 and the preliminary determina
tion of dumping of June 1, 1971 could be
made.
In the decision of the Anti-Dumping Tribunal
dated August 25, 1971, reference was made to
the letter of June 1, 1971 to the Secretary of the
Tribunal in which the Deputy Minister referred
to his preliminary determination of dumping
made on that date as the result of his investiga
tions, which letter concludes: "relevant material
relating to the determination is enclosed". The
decision states: "this material was supplied to
the Tribunal in confidence". Neither the plain
tiffs nor the Court, therefore, have at this stage
access to the material on which the determina
tion was allegedly made) The Tribunal does not
appear to have gone in any great detail into the
question of whether or not any actual dumping
was established but dealt primarily with the
damage, if any, which such dumping had caused
or might cause to Canadian manufacturers, and
after having found, as already stated, that little
or no damage had resulted from any dumping
which might have taken place to the date of its
findings, nevertheless felt it necessary to give
assurance to Canadian manufacturers that "fu-
ture dumping will attract dump duty". To state
that future dumping is likely to cause material
injury to the production in Canada of like goods
or is materially retarding the establishment of
the production in Canada of like goods as
required by section 3 of the Anti-Dumping Act,
is not at all the same thing as determining that
dumping has taken or is taking place.
One of the arguments raised by plaintiffs is
based on the wording of section 11 of the
Anti-Dumping Act which can be applied only
when sufficient information has not been fur
nished or is not available "to enable the deter
mination of normal value or export price under
section 9 or 10". Their argument is to the effect
that since the Minister had, and admits having
had, sufficient information as to the export
price (see letter of December 21, 1971 from
Deputy Minister to plaintiffs' attorney, part of
Exhibit P-7) he could not apply this section. I
find no merit in this argument. "Normal value"
and "export price" are two entirely different
things. Section 8(b) of the Act defines the
margin of dumping as the amount by which the
normal value exceeds the export price. Section
9 goes on to explain how normal value is deter
mined, and section 10, for its part, sets out how
the export price is to be determined, while
section 11 provides that if either one or the
other cannot be determined on the basis of the
information furnished or available, the Minister
can determine "the normal value or export
price, as the case may be". In his Ministerial
Prescriptions of May 31, 1971, the Minister was
not determining the export price, for which he
admittedly had sufficient information, but
rather the normal value for which he did not
feel he had sufficient information. The real
question before the Court is not whether he had
the right to make such a determination, which
he undoubtedly had, but whether in exercising
the right he acted improperly, without giving
due consideration to the information which he
had or without confronting the opposing parties,
i.e. the importers and their representatives with
his so-called "confidential information" and
giving them an opportunity to answer it and be
heard. In short, without considering the matter
in a judicial or quasi-judicial manner as he is
required to do even though the decision be an
administrative one.
Defendants' attorney raised the question of
the jurisdiction of the Trial Division to hear the
present application on the basis that the prelimi-
nary determination of dumping was not made
by the Deputy Minister until June 1, 1971 and
the final determination on August 27, 1971, and
hence by virtue of section 61(1) of the Federal
Court Act the right of review of the Deputy
Minister's decision exists under section 28(1) of
that Act, and by virtue of section 28(3) the Trial
Division has no jurisdiction to entertain any
proceedings in respect of that decision or
order. 2
The present proceedings attack not only the
preliminary determination of dumping made by
the Deputy Minister on June 1, 1971, but also
the Ministerial Prescriptions made by the Minis
ter, all of which were dated May 31, 1971
determining "normal value" under section 10 of
the Anti-Dumping Act by applying section 11 of
that Act and "fair market value" or "value for
duty" under sections 36 and 37 of the Customs
Act by applying section 40' of that Act and
increasing the export prices for women's shoes
made in Italy and Spain by 71% and 12%
respectively. While the Trial Division would
have no jurisdiction over the decision made on
June 1, 1971, the date on which the Federal
Court Act came into effect, it would have juris
diction to grant a writ of certiorari or prohibi
tion and quash the Ministerial Prescriptions
made on May 31, 1971 if it appears that there is
an error of law on the face of the record or an
abuse of natural justice. If these decisions were
made in such a manner as to give rise to the
relief asked for by plaintiffs then it would be
the Trial Division which would have jurisdiction
to quash them. While the formal preliminary
determination of dumping under section 14(1)
of the Act was only made by the Deputy Minis
ter on June 1, 1971, it was certainly evident that
the Minister, in making the Ministerial Prescrip
tions on May 31, had reached the conclusion on
the advice of the Deputy Minister that, accord
ing to the investigation conducted, dumping of
this merchandise was taking place, as otherwise
he would have had no reason to increase the
value of the export prices as he did. The two
decisions must obviously go hand in hand and I
should have thought that the preliminary deter
mination of dumping would have had to be
made before the Ministerial Prescription which,
in effect, determined the extent of it, was made.
Nevertheless, the provisions of the Federal
Court Act prevent the Trial Division from deal
ing with the preliminary determination of dump
ing of June 1, 1971, the decision of the Anti-
Dumping Tribunal of August 25, 1971, or the
final determination of dumping made by the
Deputy Minister to take effect from that date.
While I have reviewed at some length the
entire background of the issue in dispute before
me, including decisions made on June 1, 1971
and subsequently in order to present the com
plete picture, I am forced to conclude that,
because of the dichotomy resulting from the
provisions of the Federal Court Act, I can only
deal with the Ministerial Prescriptions made on
May 31, 1971, leaving it to the Appeal Court, if
appropriate proceedings are brought before it,
to deal with the decisions as to dumping made
by the Deputy Minister and Anti-Dumping
Tribunal on June 1, 1971 and subsequently.
The matters in issue before me in the Trial
Division, therefore, are confined to
(a) the use of section 11 of the Anti-Dumping
Act and section 40 of the Customs Act in
determining the "normal value" and "value
for duty" respectively of the goods in
question;
(b) the fixing of the rates at 71% and 12% for
Italy and Spain respectively; and
(c) the application of these rates to all
women's footwear originating in those coun
tries, rather than to exports by specific
manufacturers.
Since the decisions made on June 1, 1971 and
subsequently cannot be dealt with in the Trial
Division it follows that certain paragraphs, and
part of the conclusions of the application before
me must be struck and I will not deal with the
arguments made relating to these.
It is also important to note that, despite cer
tain amendments made to both the Anti-Dump
ing Act and the Customs Act by the Federal
Court Act both statutes still retain the right of
appeal from a decision of the Tariff Board to
the Federal Court "upon any question of law"
(see section 20(1) Anti-Dumping Act and sec
tion 48(1) Customs Act). Section 29 of the
Federal Court Act reads 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, commission or other
tribunal made by or in the course of proceedings before that
board, commission or tribunal, that decision or order is not,
to the extent that it may be so appealed, subject to review
or to be restrained, prohibited, removed, set aside or other
wise dealt with, except to the extent and in the manner
provided for in that Act.
and were this a decision of the Tariff Board
upon a question of law, the Trial Division would
have no right to entertain the present proceed
ings. However, the matter has not yet been
dealt with by the Tariff Board so this question
does not arise.
Counsel for defendants argued that plaintiffs
should exhaust the appeal procedures provided
in the two Acts before resorting to an applica
tion to the Federal Court, whether by way of
section 18 or section 28 of the Federal Court
Act, but there is some doubt whether an appeal
to the Tariff Board could result in a review of a
Ministerial Prescription made by the Minister.
In a recent decision in Tariff Board Appeal No.
982, International Metal Fabricators v. Deputy
Minister of National Revenue, which was a
hearing under the Anti-Dumping Act it was
held, however, that the Board could consider
the method of evaluation used by the Deputy
Minister who had applied section 9(5)(b) of the
Act instead of 9(5)(a) in determining the "nor-
mal value" of goods.
Even if appropriate relief could be obtained
by plaintiffs by following the appeal procedures
set out in the two Acts, however, considerable
delays would be involved which would have
serious consequences for them. It is small con-
solation to have the right to a refund of duties
in the event it is eventually determined that
they have been wrongly imposed if, as a conse
quence of the imposition, plaintiffs have been
forced to cease importing the merchandise in
question having concluded same is no longer
competitive as a result of the additional duties
imposed.
Unless the right to certiorari or prohibition is
specifically taken away by the Customs Act,
Anti-Dumping Act or the Federal Court Act,
and I do not find this to be the case, plaintiffs
have a right to avail themselves of it despite the
fact that certain appeal procedures are set out
in those Acts.
The jurisprudence has been clearly to the
effect that even although the Court should not
inquire into the merits of a decision by the
Minister nor by a Board or similar tribunal
given discretionary powers to make a decision,
it nevertheless may, unless such decision was
clearly one which did not require to be made on
a judicial or quasi-judicial basis, (and even in
the case of a purely administrative decision
affecting private rights which has been made
with disregard of the rules of natural justice—
see Ridge v. Baldwin [1964] A.C. 40) inquire as
to the reasons for the decision and that unless
such reasons are given then there is no means
whereby the Court may know whether it was
made on a proper judicial or quasi-judicial
basis. Furthermore, there is a constant line of
jurisprudence to the effect that the opposite
party must be given a full opportunity to be
heard and be confronted with any evidence
against him in order that he may have an oppor
tunity of answering same before a decision is
made. While some of these cases are appeals
rather than applications for certiorari, man-
damus or other prerogative writs, the principles
to be applied are similar. See Nicholson Ltd. v.
M.N.R. [ 1945] Ex.C.R. 191, in which Thorson
J. (as he then was) said at page 205:
The Minister's discretion under section 6(2) must be
exercised in a proper manner. If in making his determina
tion he has not acted judicially, within the meaning of the
cases cited, he has not exercised the discretion required by
the section at all, and if his determination so made is
included in an assessment the assessment is, to such extent,
incorrect. Whether the discretion has been exercised in a
proper manner is, therefore, a question connected with the
assessment over which the Court has jurisdiction. Indeed,
the Court owes a duty of supervision over the manner of its
exercise in order to ensure that the Minister acts as the law
ordains. The fact that it has appellate jurisdiction does not
alter the nature of the principles to be applied in its duty of
supervision; they are the same as those applied by the
courts in the certiorari and mandamus cases.
The Supreme Court case of Wrights' Canadi-
an Ropes Ltd. v. M.N.R. [1946] S.C.R. 139,
dealt with the exercise of discretion by the
Minister of National Revenue under what was
then section 6(2) of the Income War Tax Act.
At page 157, Hudson J. states:
The ruling of the Minister does not disclose any reasons.
No doubt he had what appeared to him perfectly sound
reasons for his decision, but none are before us. It is not for
the Court to weigh the reasons but we are entitled to know
what they aré, so that we may decide whether or not they
are based on sound and fundamental principles.
At page 163, Kellock J. refers to the case of
The King v. Noxzema Chemical Company of
Canada Ltd. [1942] S.C.R. 178 in which Davis
J. said at page 180:
If, on the other hand, the function of the Minister under
the section may be said to be of a quasi-judicial nature,
even then all that was necessary was that the taxpayer be
given a fair opportunity to be heard in the controversy; and
to correct or to contradict any relevant statement prejudicial
to its interests.
Again, at page 168, Kellock J. states:
... I do not think the appellant is in the position where his
appeal must fail because, not knowing the ground of deci
sion, he is unable to point to its error. I further think it
cannot be said that the Statute contemplates that an appeal
under its provisions is to be rendered abortive by the mere
silence of the decision itself as to the grounds upon which it
proceeds.
In the case of Randolph and World Wide
Mail Services Corp. v. The Queen [1966]
Ex.C.R. 157 dealing with an order by the Post
master General under section 7 of the Post
Office Act prohibiting the delivery of mail to or
for suppliants without affording them an oppor
tunity to be heard before the order was made,
Jackett P. (as he then was) states the general
principle at page 164:
It is a general rule that, unless Parliament has, in a
particular class of matters, otherwise provided, every
person has a right to be heard and to be given a fair
opportunity for correcting or contradicting what is alleged
against him before an order is made against him. This is a
fundamental rule of British justice that is read into statutes
conferring power to make decisions. It applies not only
when the power to make decisions is conferred upon judi
cial tribunals constituted as such but whenever such a
power is conferred upon administrative agencies, Ministers
of the Crown or other purely executive authorities. The rule
only applies, however, in the absence of any express statu
tory rule to the contrary, to decision making powers con
ferred by statute that are of the kind sometimes referred to
as being of a judicial or quasi-judicial nature because they
are primarily directed to the determination or abrogation of
rights of members of the public by application of a statutory
rule to the facts of a particular case as determined by the
tribunal.
In the case of L'Alliance des Professeurs
Catholiques de Montréal v. Labour Relations
Board of Quebec and Montreal Catholic School
Commission [1953] 2 S.C.R. 140, Rand J. states
at page 161 as follows:
... Audi alteram partem is a pervading principle of our law,
and is peculiarly applicable to the interpretation of statutes
which delegate judicial action in any form to inferior tribu
nals: in making decisions of a judicial nature they must hear
both sides, and there is nothing in the statute here qualifying
the application of that principle.
The only answer suggested to this is that the Board, being
an "administrative body", can, in effect, act as it pleases.
But in this we are too much the prisoners of words. In one
sense of administration, in the enactment of subordinate
legislation or quasi-legislation, the principle has a limited
application; but in the complexity of governmental activities
today, a so-called administrative board may be charged not
only with administrative and executive but also with judicial
functions, and it is these functions to which we must direct
our attention. When of a judicial character, they affect the
extinguishment or modification of private rights or interests.
The rights here, some recognized and other conferred by
the statute, depend for their full exercise upon findings by
the Board; but they are not created by the Board nor are
they enjoyed at the mere will of the Board; and the Associa
tion can be deprived of their benefits only by means of a
procedure inherent in judicial process.
Specifically, in order for certiorari to be
applicable, the decision attached must be one
which affects the rights of subjects and in
which the error of law appears on the face of
the proceedings. In Regina v. London Commit
tee of Adjustment Ex Parte Weinstein [1960]
O.R. 225 Morden J.A., in rendering the judg
ment of the Court at page 234 referred with
approval to the statement of Atkin L.J. in Rex v.
Electricity Commissioners [1924] 1 K.B. 171 at
pp. 204-5:
The matter comes before us upon rules for writs of
prohibition and certiorari which have been discharged by
the Divisional Court. Both writs are of great antiquity,
forming part of the process by which the King's Courts
restrained Courts of inferior jurisdictions from exceeding
their powers. Prohibition restrains the tribunal from pro
ceeding further in excess of jurisdiction; certiorari requires
the record or the order of the Court to be sent up to the
King's Bench Division, to have its legality inquired into,
and, if necessary, to have the order quashed. It is to be
noted that both writs deal with questions of excessive
jurisdiction, and doubtless in their origin dealt almost exclu
sively with the jurisdiction of what is described in ordinary
parlance as a Court of Justice. But the operation of the writs
has extended to control the proceedings of bodies which do
not claim to be, and would not be recognized as, Courts of
Justice. Wherever any body of persons having legal authori
ty to determine questions affecting the rights of subjects,
and having the duty to act judicially, act in excess of their
legal authority they are subject to the controlling jurisdic
tion of the King's Bench Division exercised in these writs.
Again, at page 236, Morden J.A. states:
Mr. Williston argued that where an appeal lies, then the
Court has a discretion whether or not to grant certiorari and
based this submission upon the cases, recently decided, of
Ex p. Atikokan, [1959] O.W.N. 200 and Reg. v. Shea Ex p.
Weston, [1959] O.R. 664. In those cases the error of law did
not appear on the face of proceedings as it does in the
instant case and they are therefore distinguishable.
In the case of Local Government Board v.
Arlidge [1915] A.C. 120 referred to by McRuer
C.J.H.C. in The Queen v. Board of Broadcast
Governors and The Minister of Transport, Ex
parte Swift Current Telecasting Co. Ltd. [1962]
O.R. 190 at p. 197 Lord Parmoor, in referring
to the failure to disclose an inspector's report,
stated at pages 143-44:
If I thought that this non-disclosure deprived the respond
ent of a fair hearing in accord with the terms of substantial
justice, I should accede to the argument on behalf of the
respondent, and should hold the same view whether the
appeal is to be regarded as a quasi-judicial act or as a
decision on review of the administrative action of the local
authority.
At this stage of the proceedings we have the
affidavits from officers of the three plaintiffs,
all importers who, in addition to denying that
any dumping has taken place with respect to
any of the women's footwear imported by them
from Italy or Spain, state that they have never
been confronted with any information which
the Department of National Revenue had with
respect to the factories from which they are
importing, nor have they been given any oppor
tunity to contradict this information nor reasons
for the conclusions reached as to dumping, and
in the case of Mr. Tucker's affidavit that his
company was never provided with information
upon which the decision to advance the export
prices by 71% and 12% respectively was
reached.
In so far as the Ministerial Prescriptions of
May 31, 1971 are concerned, plaintiffs' grounds
for attacking these decisions can be summa
rized as follows:
(a) The Deputy Minister was wrong in finding
that insufficient information had been fur
nished or was available to determine normal
value under section 9 of the Anti-Dumping
Act, or fair market value or alternatively cost
of production under sections 36 and 37 of the
Customs Act, and as a consequence in using
section 11 of the Anti-Dumping Act and sec
tion 40 of the Customs Act authorizing the
Ministerial Prescription of these values.
While there is some doubt as to whether all
parties who wished to be heard were, in fact,
heard before he made this decision, or wheth
er or not the information which had been
provided to him by the answers to the ques
tionnaire and by the importers who did make
submissions was, in fact, insufficient to
enable him to determine normal value, fair
market value, or cost of production, there
does not appear to be any error on the face of
the record which would justify the quashing
of his decision for this reason.
(b) There is nothing to indicate the basis on
which the Minister, in applying section 11 of
the Anti-Dumping Act and section 40 of the
Customs Act, reached the conclusion that
export prices should be advanced by 71% in
the case of women's shoes emanating from
Italy and 12% for those emanating from
Spain. In the absence of such explanation
there is no way for plaintiffs or for the Court
to conclude that these figures were reached
after an examination of the material before
him in the proper judicial manner. While the
Court should not review his decision as to the
rates arrived at, it should be satisfied that he
reached these conclusions only after a fair
and full appraisal of the evidence available,
and did not simply select these rates arbitrari
ly. There is absolutely nothing to indicate in
any of the material before me how the Minis
ter arrived at his figures of 71% in the case of
Italy, and 12% in the case of Spain. There is
nothing magical in these figures, and in the
absence of an explanation they could just as
easily have been fixed at 15% and 24% or 3%
and 5%. When section 11 of the Anti-Dump
ing Act and section 40 of the Customs Act
permit the normal value or fair market value,
as the case may be, to be determined "in such
manner as the Minister prescribes", surely
this does not give him a free hand to pre
scribe percentage figures taken out of the air
without any explanation as to how they were
arrived at. The plaintiffs are entitled to an
explanation as to how they were arrived at,
and should have been given an opportunity to
dispute them before a decision was reached.
The Court is not in a position to decide, in the
absence of any explanation, whether these
figures were arrived at after a proper judicial
or quasi-judicial consideration of the evi
dence before the Minister at the time these
determinations were made. Paragraph 45 of
plaintiffs' application sets out that the
Department of National Revenue refused and
failed to permit adjustments in the normal
value applicable in all but a few cases so as to
allow for turnover tax rebate amounting to
10% in the case of Spain and 51% in the case
of Italy, cash discounts of 3% in each case,
quantity discounts of 10% in each case, and
discounts relating to commissions paid by the
factory to salesmen in the home market for
the marketing of their products not paid when
the goods are exported, being in the order of
7% in the case of Spain and 5% in the case of
Italy. From this it is argued that if due consid
eration had been given to these factors, the
total of the allowances would be well above
the alleged margin of dumping established by
the Ministerial Prescriptions. This allegation
in the pleadings has not, of course, been
proved at this stage, nor is it my intention to
go into the arguments raised by plaintiffs'
attorney respecting the proper allowance to
be made under Anti-Dumping Regulation 11
(supra) beyond saying that according to the
letter dated September 10, 1971 from the
Dominion customs appraiser to him (part of
Exhibit 7) it is stated that "for adjustments
for normal value purposes the Department
allows the amount of any taxes and duties
levied on the sale of like goods when destined
for home consumption that are not borne by
the goods sold to the importer in Canada.
This adjustment does not cover any duties
and taxes levied on the sales of component
materials used in the production of like
goods". This rejects any adjustment for the
rebate on export of duties and taxes levied on
the various stages of production of the foot
wear under what plaintiffs refer to in their
pleadings as the "cascade" type of turnover
tax system in force in Italy and Spain. Plain
tiffs' counsel argued that this interpretation is
contrary to the provisions of Article VI of
paragraph 4 of the GATT Agreement. The
fact that such arguments can be raised under
lines the necessity for some explanation as to
how the figures of 72% and 12% were arrived
at, such explanation being at least sufficiently
detailed to enable the Court to determine that
these figures were not reached as a result of
an arbitrary decision without due considera
tion of all the facts on which the decision
should be based. The absence of explanation
appears to constitute an error of law on the
face of the record. Moreover, the plaintiffs
were not given a hearing before the Ministeri
al Prescriptions which affected their personal
rights were made. The decision was based at
least in part on confidential information with
which the plaintiffs were not confronted nor
were they given any opportunity to answer it.
Moreover, it appears that at least some of the
exporters were not dumping and there is no
indication as to how many instances of dump
ing were disclosed as a result of the investiga
tion. To apply the Ministerial Prescriptions to
plaintiffs under these circumstances would
seem to constitute a denial of natural justice.
(c) The question also arises as to whether
either section 11 of the Anti-Dumping Act or
section 40 of the Customs Act is intended to,
or does in fact, permit such a broad applica
tion of the Ministerial Prescription as to apply
it to all goods of a certain category coming
from a given country or whether, on the
contrary, the Ministerial Prescription must
not be applied to each individual shipment, or
at least to imports from a given exporter who
has been found to be exporting at a price
indicating that his goods are being dumped
into Canada. In an industry such as the shoe
industry there are, as was pointed out in
argument, thousands of different manufactur
ers in each of the countries in question rang
ing from large factories to small home indus
tries, each of whom may be manufacturing
dozens of different lines of women's shoes.
Not all of them export to Canada, but there
are nevertheless a great many exporters and
different styles of shoes involved. It is not
surprising that when so many different ship
ments are involved, dumping may exist in
some cases. On the other hand, it would be
equally surprising to find that every model of
shoe of every exporter in Spain or Italy was
being exported to Canada at prices lower than
those charged domestic customers, after
making due allowances for tax rebates, dis
counts for quantity purchases and so forth, as
permitted by the statutes and regulations. To
make a global finding that dumping is taking
place to the extent of 71% and 12% respec
tively with respect to all women's shoes
imported from either Italy or Spain and then
impose on the exporter (or in practice the
importer who will no doubt have to get the
necessary information from the exporter) the
burden of proving that in the case of each
shipment of his shoes no such duty should be
applied, seems to impose an undue hardship,
and to constitute a reversal of the usual
burden of proof. I would doubt whether the
Minister can sincerely say that the normal
value or fair market price of women's shoes
shipped from either Italy or Spain should be
increased in all cases by these percentages. If
the Minister cannot proceed in this manner
this would constitute an error in law on the
face of the record.
For the foregoing reasons I find that plain
tiffs' application for a writ of certiorari and
prohibition against defendants should be grant
ed and that defendants be required to certify
and return to the Office of the Administrator of
the Federal Court of Canada, at Ottawa, within
thirty days of the date of this judgment or such
further delay as this honourable Court may
permit on application duly made, all records and
documents relating to the investigation initiated
in June 1970 and to the imposition and collec
tion of duty and anti-dumping duty on women's
footwear originating in Italy and Spain on the
basis of the advance of the export prices by
71% and 12% respectively, together with the
Ministerial Prescriptions dated May 31, 1971
and the reasons for same and all things touching
the same, as fully and entirely as they remain in
the custody of the said defendants, together
with the order to be made herein, so that this
Court may further cause to be done thereupon
what it shall see fit to be done, and further that
defendants suspend all proceedings in virtue of
the said Ministerial Prescriptions dated May 31,
1971 and the application of them by the Deputy
Minister of National Revenue, and pending final
judgment herein, refrain from collecting duty
and anti-dumping duty other than on the basis
of the export price on women's footwear
including last made dress or casual shoes and
boots originating in Italy and Spain, the costs of
this application to be in the event of the cause.
Dealing with defendants' motion to dismiss or
strike out the pleadings, I find that it is not
correct to say that, in the circumstances, the
relief claimed would not be granted at least in
part, nor that the pleadings disclose no reason
able cause of action, or that the Trial Division is
entirely without jurisdiction. On the other hand,
as already stated, the Trial Division has no
jurisdiction over the preliminary determination
of dumping, the final determination of dumping,
or the decision of the Anti-Dumping Tribunal,
all of which were made on June 1, 1971 or
subsequently and it is evident therefore that
certain paragraphs of plaintiffs' pleadings are
immaterial and irrelevant and should be struck
together with some of the conclusions of same.
Although plaintiffs' application is unneces
sarily verbose and argumentative and quotes
extracts from statutes, regulations, orders and
correspondence at length, defendants' attack on
same was directed rather to an attempt to have
the proceedings dismissed altogether at this
stage than to the striking of certain specific
paragraphs of the application. Nevertheless, in
view of my findings that the present proceed
ings in the Trial Division can only deal with the
attack on the Ministerial Prescriptions of May
31, 1971I will direct as follows:
(a) The Anti-Dumping Tribunal should not be
included as one of defendants and it should
be struck from the record. Since the only
decision being attacked is that of the Minister
himself, the Deputy Minister should not
remain as a defendant, even if the Ministerial
Prescriptions were made on the basis of the
opinion formed by the Deputy Minister, as it
is the Minister who must assume the ultimate
responsibility for making the prescriptions. It
seems unnecessary to add Her Majesty the
Queen as a defendant but I will not interfere
with this at this stage of the proceedings
especially since this question was not raised
before me;
(b) Paragraph 55 should be struck, being a
reference to hearsay and argumentative as to
the motives of the Department;
(c) Paragraphs 60, 62, 63, 64, 65, 66, 67, 68,
71, 72, 73 and 74 should be struck;
(d) Subparagraphs (a), (c), (d) and (e) of para
graph 75 should be struck, retaining only
paragraph (b) which alleges that the onus of
proving dumping and the margin of the dump
ing lies with the Department of National
Revenue;
(e) Subparagraph (c) of paragraph 76 should
be struck;
(f) The words "which had become inoperative
in virtue of the decision of the Anti-Dumping
Tribunal and the final determination of the
Deputy Minister of National Revenue of
August 27, 1971 and" should be struck from
paragraph 77 so that it will now read:
77. In so acting, the Department of National Revenue
continued to rely upon the Ministerial prescription
dated May 31, 1971 which in any event was based on
fragmentary information of a questionable nature
obtained during the summer and fall of 1970;
(g) Paragraphs 79, 80, 81, 82, 83, 84, 85, 86,
87, 88, 89, 90, 91 and 99 should be struck;
(h) Paragraphs B(2) and B(5) of the conclu
sions of plaintiffs' claim should be struck.
The costs of this motion to strike shall be in
favour of defendants.
' Section 29(3), dealing with the Anti-Dumping Tribunal,
reads as follows:
29. (3) Where evidence or information that is in its
nature confidential, relating to the business or affairs of any
person, firm or corporation, is given or elicited in the course
of any hearing before the Tribunal, the evidence or informa
tion shall not be made public in such a manner as to be
available for the use of any business competitor or rival of
the person, firm or corporation.
While the necessity for such a safeguard is apparent and
this justifies the Deputy Minister in supplying certain
material to the Anti-Dumping Tribunal in confidence, it
cannot be used to justify the failure to confront each
individual exporter with any such confidential evidence as
may have been obtained relating to his exports and giving
him an opportunity to refute same. Despite this the ques
tionnaire sent to individual exporters on June 8, 1970
merely states that the Deputy Minister is of the opinion that
dumping is taking place and that in forming this opinion he
had on hand "certain confidential information" without in
any way indicating the nature of it. The exporter is, in
effect, confronted with a decision based on some unspeci
fied information which allegedly exists but which he has
been given no opportunity of meeting and is invited to
provide information indicating why anti-dumping duty
should not be applied in his case. Should this confidential
information be of such a nature that it could reveal compa
ny trade secrets, steps could be taken in line with what this
court has been doing for some time whereby the informa
tion is given to the court and to counsel for the parties
under their personal undertaking not to divulge it to their
respective parties or to the public in general and argument is
received on such matters in camera.
2 These sections read as follows:
61. (1) Where this Act creates a right of appeal to the
Court of Appeal or a right to apply to the Court of Appeal
under section 28 to have a decision or order reviewed and
set aside, such right applies, to the exclusion of any other
right of appeal, in respect of a judgment, decision or order
given or made after this Act comes into force, unless, in the
case of a right of appeal, there was at that time a right of
appeal to the Exchequer Court of Canada.
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
(3) Where the Court of Appeal has jurisdiction under this
section to hear and determine an application to review and
set aside a decision or order, the Trial Division has no
jurisdiction to entertain any proceeding in respect of that
decision or order.
Section 2(g) defines "federal board, commission or other
tribunal" as follows:
•
2. In this Act,
(g) "federal board, commission or other tribunal" means
any body or any person or persons having, exercising or
purporting to exercise jurisdiction or powers conferred by
or under an Act of the Parliament of Canada, other than
any such body constituted or established by or under a
law of a province or any such person or persons appoint
ed under or in accordance with a law of a province or
under section 96 of The British North America Act, 1867;
and is broad enough to include decisions by the Minister or
Deputy Minister.
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.