Magnasonic Canada Limited (Applicant)
v.
Anti-dumping Tribunal (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Bastin D.J.—Ottawa, October 3, 4, 5 and 6,
1972.
Judicial review—Anti-dumping Tribunal—Conduct of
hearing by Tribunal—Confidential information not made
known to parties at hearing—Decision set aside—Anti-
dumping Act, R.S.C. 1970, c. A-15, secs. 16(1), 28, 29(3).
The Anti-dumping Tribunal embarked on an inquiry under
section 16(1) of the Anti-dumping Act, R.S.C. 1970, c.
A-15, as to whether the dumping of television sets of a
certain class from Japan and Taiwan had caused or was
likely to cause material injury to the production in Canada
of like goods. Part of the inquiry consisted of a public
hearing at which the M company, an importer, and other
parties were represented. Confidential information was also
sent to the Tribunal or obtained on visits to Canadian
manufacturers, and none of such information was made
known to the parties. The Board found that there was
dumping.
Held, on an application by the M company under section
28 of the Federal Court Act, the Tribunal's decision must be
set aside. The Tribunal made its decision without having
conducted the inquiry required by the statute in that it acted
on information that was not put before it in the course of
hearings by the Tribunal or a single member as provided for
by the statute with the result that no opportunity was given
to the parties to answer such information or to make sub
missions with regard thereto.
Section 16 of the Act confers on the parties to an inquiry
a statutory right to appear or to be represented at a hearing
by the Tribunal, and that implies a right to be heard, which
includes a fair opportunity to answer anything contrary to
the parties' interests and a right to make submissions with
regard to the material on which the Tribunal proposes to
make its decision. While section 29(3) provides that on an
inquiry evidence of a confidential nature relating to a per
son's business shall not be made public so as to be available
to competitors, this at most permits the exclusion of com
petitors while such evidence is being taken and providing
the parties afterwards with a report such as that referred to
in section 28.
JUDICIAL review of decision of Anti-dump
ing Tribunal.
Charles D. Gonthier, Q.C., and C. J. Michael
Flavell for applicant.
C. R. O. Munro, Q.C., and R. G. Vincent for
Deputy Attorney General of Canada.
John M. Coyne, Q.C., and J. F. Lemieux for
Electronic Industries (Canada).
B. A. Crane and Y. A. George Hynna for
Electronic Industries (Japan).
The judgment of the Court was delivered by
JACKETT C.J. (orally)—The basic question in
this case is whether the decision of the Anti-
dumping Tribunal that is the subject matter of
this application under section 28 of the Federal
Court Act is invalid because the applicant Mag-
nasonic, or Magnasonic and others, was or were
not given an opportunity to be heard that was
required by law to be given before such deci
sion could be validly made.
The decision in question was a decision
that dumping of television sets having a screen size of 12"
and over measured diagonally across the picture tube, from
Japan and Taiwan, not including such sets manufactured in
Japan by Sharp Corporation or Sony Corporation, has
resulted in lost sales, lost profit and lost employment to the
producers in Canada of like goods and has caused and is
likely to cause material injury to the production in Canada
of like goods.
The first step in this matter, as far as the
statute was concerned, was an "investigation"
under section 13(1) of the Anti-dumping Act'
respecting the dumping of television receiving
sets of a certain class. Pursuant to section 13(5)
of that Act, which requires notice of such an
investigation to be given inter alia to the "im-
porter", notice of that investigation was given
to Magnasonic.
The second step in the matter was that the
Deputy Minister of National Revenue for Cus
toms and Excise, as a result of that investiga
tion made a preliminary determination of dump
ing pursuant to section 14(1) of the
Anti-dumping Act 2 in relation to a class of
television receiving sets specified therein.
The third step in the matter was that the
Anti-dumping Tribunal embarked on an inquiry,
under section 16(1) of the Act, in respect of the
goods to which the preliminary determination
applies as to whether the dumping of those
goods "has caused, is causing or is likely to
cause material injury to the production in
Canada of like goods".
At the conclusion of that inquiry, the Tribu
nal made the finding (decision) that has already
been quoted.
Before turning to the provisions of the Act
governing the Tribunal's "inquiry" and the
course that the "inquiry" took, it is important to
mention the effect that the Tribunal's decision
has, if it is valid. In the first place, pursuant to
section 15 of the Act, all goods of the class
covered by the preliminary determination that
were entered between the preliminary determi
nation and the Tribunal's finding had become
subject to a provisional assessment and the
importer had become liable to give security for,
or to pay, a certain amount, which amount
became payable as dumping duty, if, in fact,
there was dumping, under section 4 of the Anti-
dumping Act, or returnable, depending on the
Tribunal's decision. (Magnasonic had entered
goods that were subject to such provisional
dumping duty.) In the second place, television
receiving sets of the class described in the
Tribunal's decision that were entered after that
decision were liable to anti-dumping duty under
section 3 of the Act.
Turning to the provisions of the statute that
relate to the Tribunal's inquiry in this case, it is
to be noted, in the first place, that when the
Deputy Minister initiates an investigation under
section 13, he is required to cause notice there
of to be given to, among others, the importer,
the exporter, the government of the country of
export, and the complainant, if any; and, when
he makes a preliminary determination, he is
required to give a notice thereof to the same
persons. (Sections 13(5) and 14(2).) In addition,
such notices must be published in the Canada
Gazette.
Other provisions affecting the problem under
consideration are sufficiently important to be
quoted. They are
16. (1) The Tribunal, forthwith upon receipt by the
Secretary under subsection 14(2) of a notice of a prelimi
nary determination of dumping, shall, in respect of the
goods to which the preliminary determination of dumping
applies, make inquiry as to whether
(a) the dumping of the goods that are the subject of the
inquiry
(i) has caused, is causing or is likely to cause material
injury to the production in Canada of like goods,
(3) The Tribunal shall, within a period of 90 days from
the date of receipt of a notice of a preliminary determina
tion of dumping, in the case of any goods to which the
preliminary determination applies, make such order or find
ing as the nature of the matter may require, and shall
declare to what goods or description of goods including,
where applicable, from what supplier and from what coun
try of export, the order or finding applies.
(4) The Tribunal, in considering any question relating to
the production in Canada of any goods or the establishment
in Canada of such production, shall take fully into account
the provisions of 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.
(5) The Secretary shall forward by registered mail a copy
of each order or finding to the Deputy Minister, the import
er, the exporter and such other persons as may be specified
by the rules of the Tribunal.
21. (1) There shall be a tribunal to be called the Anti-
dumping Tribunal, consisting of not more than five mem
bers to be appointed by the Governor in Council.
23. (1) The Chairman is the chief executive officer of the
Tribunal and has supervision over and direction of the work
of the Tribunal including
(a) the apportionment of the work among the members
thereof and the assignment of members to sit at hearings
of the Tribunal and to preside thereat, and
(b) generally, the conduct of the work of the Tribunal,
the management of its internal affairs and the duties of
the staff of the Tribunal.
24. (2) The Tribunal may sit at such times and places as
it considers necessary or desirable for the proper conduct of
its business.
25. (1) The Tribunal may, subject to the approval of the
Governor in Council, make rules respecting
(a) the sittings of the Tribunal; and
(b) the procedure for making representations to the
Tribunal and generally the manner of conducting any
business before the Tribunal.
26. (2) The Governor in Council may, upon the request
of the Tribunal, provide the Tribunal with the services of
such officers and employees employed by or in any agency
or department of the Government of Canada as are neces
sary for the proper conduct of the business of the Tribunal,
and the Tribunal may obtain the advice and assistance of
any agency or department of the Government of Canada.
(4) The Tribunal may, with the approval of the Treasury
Board, appoint and fix the remuneration of persons having
technical or special knowledge to assist the Tribunal in any
matter in an advisory capacity.
27. (1) The Tribunal is a court of record and shall have
an official seal, which shall be judicially noticed.
(2) The Tribunal has, as regards the attendance, swearing
and examination of witnesses, the production and inspec
tion of documents, the enforcement of its orders, the entry
upon and inspection of property and other matters neces
sary or proper for the due exercise of its jurisdiction, all
such powers, rights and privileges as are vested in a superi
or court of record.
(3) The Tribunal, for the purposes of section 172 of the
Customs Act, shall be deemed to be a court of justice.
28. (1) The Chairman of the Tribunal may direct that
evidence relating to any hearing before the Tribunal be
received, in whole or in part, by a member of the Tribunal
and that member has and may exercise all of the powers of
the Tribunal in relation to such hearing.
(2) A member by whom evidence relating to any hearing
has been received pursuant to subsection (1) shall make a
report thereon to the Tribunal and a copy of the report,
modified in such manner as in the opinion of the member is
necessary to give effect to subsection 29(3), shall be provid
ed to each of the parties to the hearing.
(3) After receiving any report made under subsection (2)
and after holding a re-hearing, in whole or in part, of the
matter if in its discretion the Tribunal deems it advisable to
do so, the Tribunal may make its order or finding.
29. (1) All parties to a hearing before the Tribunal may
appear in person or may be represented at the hearing by
counsel or an agent.
(2) A hearing before the Tribunal may at the discretion of
the Tribunal or the Chairman, as the case may be, be heard
in camera or in public.
(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 inquiry under section 16, the evidence or information
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.
With these provisions should be read section
21(2) of the Interpretation Act, R.S.C. 1970, c.
I-23, which reads, in part, as follows:
21. (2) Where an enactment establishes a board, court,
commission or other body consisting of three or more
members (in this section called an "association"),
(a) at a meeting of the association, a number of members
of the association equal to
(i) at least one-half of the number of members provid
ed for by the enactment, if that number is a fixed
number, and
(ii) if the number of members provided for by the
enactment is not a fixed number but is within a range
having a maximum or minimum, at least one-half of the
number of members in office if that number is within
the range,
constitutes a quorum; ... .
The "inquiry" in this case consisted, in part,
of a public hearing, at which Magnasonic and
other parties, all of whom were represented by
counsel, adduced evidence and were given an
opportunity to make submissions with reference
to the evidence presented at such hearing. How
ever, this hearing was conducted on the basis
that no person would be required to give evi
dence against his will if he took the view that it
was "confidential". In part, the inquiry consist
ed in the receipt by a member or members of
the Tribunal or by the staff of the Tribunal,
otherwise than during a sittings, of confidential
evidence requested by the Tribunal or sent to it
voluntarily by the Deputy Minister or others.
Finally, the inquiry consisted in visits paid by
one or more members of the Commission or its
staff to premises of Canadian manufacturers
and one or more interviews also conducted by
members or staff, during the course of which
visits and interviews evidence and information
was obtained.
The feature of this type of "inquiry" which is
to be noted is that, while the "parties" had full
knowledge of the evidence adduced at the
public hearing, they had no opportunity to know
what other evidence and information was
accepted by the Tribunal and had no opportuni
ty to answer it or make submissions with regard
thereto.
In our view, leaving aside section 29(3) for
the moment, all the relevant provisions of the
Anti-dumping Act point clearly to the conclu
sion that this Tribunal was intended to operate,
during the inquiry into any particular matter, by
way of a quorum of members sitting together,
either in camera or in public, in the presence of
such of the "parties" as chose to be there,
either personally or by their counsel or agents.
In our view, this clear requirement of the stat
ute is subject to only one exception, which is
that contained in section 28, under which, if the
Chairman of the Tribunal so directs, a single
member may receive evidence. But, in any such
case, it seems obvious, and this is conceded by
counsel for the Attorney General of Canada,
that the parties are entitled to be represented in
exactly the same way as if a quorum of mem
bers is sitting. What is more important, where
evidence is so received, is that a report of the
evidence so taken must be made to the Tribunal
and a copy of that report must be provided to
"each of the parties" and, in addition, a further
hearing must be held so that the parties can deal
with the additional evidence "if in its discretion
the Tribunal deems it advisable to do so",
which, it must be assumed, the Tribunal will, in
a proper exercise of its discretion, deem it
advisable to do in any case where additional
evidence of any consequence has been so
received. The authority for sittings by one
member contained in section 28, in our view,
underlines the general rule, to be deduced from
the provisions quoted above, that an inquiry
must be conducted by a quorum of members
sitting in camera or in public held in such
manner as to permit the "parties" who desire to
do so to appear or to be represented.
We turn now to section 29(3) to consider
whether it requires a conclusion different from
that which is dictated by the other provisions of
the statute considered apart from that
subsection.
Section 29(3) must be read in context. It
follows a provision that says that "All parties"
are entitled to appear in person or to be repre
sented "at the hearing" and a provision that
says that a hearing may at the discretion of the
Tribunal or the Chairman "be heard in camera
or in public". What section 29(3) says is that
"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 an inquiry ...,
the evidence shall not be made public in such a
manner as to be available for the use of any
business competitor or rival ...". It seems to be
common ground that this means that, when the
Tribunal accepts confidential evidence, steps
must be taken to see that it does not become
available to a business competitor or rival even
if such rival or competitor is a party to the
inquiry. Accepting that as being the effect of
section 29(3) without expressing any opinion
with regard thereto, we do not think that section
29(3) requires a departure from the pattern of
hearings dictated by the other provisions of the
statute. What it does require, on that view as to
its meaning, is that, when information of a
confidential character is tendered at a hearing, a
decision must be made as to what steps are
required to comply with section 29(3). The
obvious first step in the ordinary case would
seem to be that the evidence be taken in
camera. What further steps require to be taken
would depend on the circumstances. The most
extreme step that might be required would be,
we should have thought, to exclude all competi
tors or rivals while the evidence is being taken
and to provide such parties afterwards with the
sort of report of the evidence taken in their
absence that is contemplated for the parties
with reference to confidential evidence taken
under section 28.
In our view of the problem raised by this
application, it is not a situation where it is
necessary to consider whether a decision of a
tribunal will so affect the rights or interests of a
person that he is entitled to a fair hearing before
that decision can be made. In our view, the
question here is whether there has been a fail
ure to comply with the statutory conditions
precedent to the decision. Compare Franklin v.
Minister of Town and Country Planning [1948]
A.C. 87, per Lord Thankerton at page 102.
The sole business entrusted to the Board is to
conduct inquiries under section 16 in respect of
goods to which preliminary determinations of
dumping apply and then to make such orders or
findings as the nature of the matters may
require (section 16(3)). 3
For the conduct of such inquiries, the statute
has made provision for the system of hearings
to which I have referred and has conferred on
the "parties" (who must, we should have
thought, include the "importer" and other per
sons who have a statutory right to notice of the
preliminary determination) a statutory right to
appear at such hearings or to be represented
there. In the absence of some thing in the
statute clearly pointing to the contrary, we have
no doubt that such a right implies a right of the
party to be heard, which at a minimum includes
a fair opportunity to answer anything contrary
to the party's interest and a right to make sub
missions with regard to the material on which
the Tribunal proposes to base its decision. A
right of a party to "appear" at a "hearing"
would be meaningless if the matter were not to
be determined on the basis of the "hearing" or
if the party did not have the basic right to be
heard at the hearing.
Against this view, it is said that the object of
the Anti-dumping Act is "to protect the Canadi-
an public interest from dumped goods which
may materially cause injury or retard produc
tion in Canada of like goods" and, therefore,
the inquiry is "essentially an investigatory one
and does not involve a contest between oppos
ing parties".
We accept it that the object of the Act is to
protect the Canadian public interest from
dumped goods which may materially cause
injury or retard production in Canada and that
the inquiry is not, as such, a contest between
opposing parties. It appears clear, however, that
the reason for the existence of the Tribunal was
that Parliament sought, not only a means where
by to keep out dumped goods when their impor
tation would do injury or retard production, but
also a means whereby dumped goods would not
be kept out when their importation would not
do injury or retard production (and would,
therefore, presumably provide Canadian con
sumers with cheaper goods without doing any
harm). Otherwise, that is, if Parliament was not
concerned about the danger of keeping out
dumped goods unnecessarily, the statute would
have simply prohibited all importations of
dumped goods.
One method that Parliament could have
adopted to determine whether the dumping of
any particular class of goods should be prohibit
ed would have been to entrust the duty to an
executive department of government with all
necessary powers to gather information and to
proclaim its findings. There would then have
been no right in any "party" to be heard. Parlia
ment chose instead to set up a court of record
to make the inquiries in question and provided
for such an inquiry being carried out by hear
ings where those whose economic interests are
most vitally affected on both sides of the ques
tion would be entitled to appear. It seems obvi
ous that it was thought that the most effective
way of assuring that the right conclusion would
be reached was to open the door to such oppos
ing parties, whose economic interests were at
stake, so that they could, by adducing evidence
and by making submissions, make sure that all
sides of the question were fully revealed to the
Commission. We can think of no method more
likely to ensure that the Commission would not
go wrong for lack of information and for lack of
proper exposition of the problem. Certainly, our
experience in common law countries has shown
that such method of inquiry has substantial
advantages over the sort of result that can be
obtained by individuals going out and gathering
information by interviews and inspections.
In addition, one cannot overlook the fact that
Parliament saw fit to cause the foreign govern
ment of the exporter country to be advised at
the early stages of the matter. It may be, we do
not know, that the international agreement
referred to in section 16(4) of the Anti-dumping
Act made it expedient to afford such a govern
ment an opportunity of taking part in such an
inquiry at least as an observer.
It is also said against the view that we have
taken as to the right of each of the parties to a
fair opportunity to present his side of the matter
that the statute makes it clear that the Tribunal
is to pursue its own inquiries by its own staff
and with the help of government departments
and agencies. We fully accept it that the Tribu
nal may conduct a programme of amassing
information relevant to a matter before it.
What, as it appears to us, the statute contem
plates is that such material, to the extent that it
seems useful, be built into the record of the
matter during the course of the hearings in such
manner as the Tribunal chooses provided that it
is consistent with giving the "parties" an oppor
tunity to be heard. (One obvious way is to have
commission counsel who submits evidence and
makes submissions in the same way as counsel
for a party.)
Another point that is taken against concluding
that Parliament intended that the parties have
the right to be heard in the ordinary way is that,
if they have such a right, it will be impossible, it
is said, for the Tribunal to implement the
requirement in section 16(3) of the Act that it
reach its decision within a period of 90 days.
We do not recognize the inconsistency between
the two requirements. Parliament has imposed a
timetable on the Tribunal and the Tribunal must
therefore operate on a timetable which implies a
limit on the time that can be afforded to the
parties to make out their respective cases. It
does not, however, negative the requirement
that they be given an opportunity to be heard
that is necessarily implied by the other provi
sions of the statute.
Our conclusion is, therefore, that the Tribunal
made the decision under attack without having
conducted the inquiry required by the statute, in
that it acted on information that was not put
before it in the course of hearings by the Tribu
nal or a single member of the Tribunal such as
were provided for by the statute, with the result
that no opportunity was given to the parties to
answer such information (either as obtained or,
where based on confidential communications,
as communicated to them in some way that
complied with section 29(3)) and no opportunity
was given to the parties to make submissions
with regard thereto.
Having regard to our conclusion on the above
question, we do not find it necessary to consid
er the other attacks made on the Tribunal's
decision.
In our opinion, the Tribunal's decision must
be set aside but, before doing so, the parties
should be heard as to whether there is any
further direction that this Court can and should
give in the circumstances having regard to sec
tion 52(d) of the Federal Court Act.
i 13. (1) The Deputy Minister shall forthwith cause an
investigation to be initiated respecting the dumping of any
goods, on his own initiative or on receipt of a complaint in
writing by or on behalf of producers in Canada of like
goods, if
(a) he is of the opinion that there is evidence that the
goods have been or are being dumped; and
2 14. (1) Where an investigation respecting the dumping of
any goods has not been terminated under subsection 13(6)
and the Deputy Minister, as a result of the investigation, is
satisfied that
(a) the goods have been or are being dumped, and
(b) the margin of dumping of the dumped goods and the
actual or potential volume thereof is not negligible,
he shall make a preliminary determination of dumping
specifying the goods or description of goods to which such
determination applies.
3 This statement must be taken subject to section 13(3),
(7) and (8), under which certain matters may be referred to
the Tribunal. It is significant to note, however, that section
13(8) expressly provides that questions so referred are to be
dealt with "without holding any hearings".
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.