A-395-74
Cutter Laboratories International and Cutter
Laboratories, Inc. (Applicants)
v.
Anti-dumping Tribunal (Respondent)
Court of Appeal, Jackett C.J., Ryan and Le Dain
JJ.—Ottawa, September 4 and 23, 1975.
Judicial review—Anti-dumping Tribunal finding material
injury to production of like Canadian goods—Whether juris
diction lacking because goods exempted by order in council—
Whether product not made in Canada in quantity sufficient to
supply at least 10 per cent of normal Canadian consumption—
Anti-dumping Act, R.S.C. 1970, c. A-15, ss. 3, 4, 5, 7, 13, 14,
15, 16, 17, 19, 20—Regulations, s. 23—Federal Court Act, s.
28.
The Anti-dumping Tribunal found that dumping of tetanus
immune globulin (human) materially injured Canadian produc
tion of like products. Applicant claims that the Tribunal lacked
jurisdiction because the goods were exempt by virtue of an
order in council enacted under sections 7 and 35 of the Act,
declaring pharmaceuticals not made and produced in Canada,
and imported, exempt unless sufficient quantity is produced to
supply 10% of normal Canadian consumption.
Held, the appeal is dismissed.
Per Jackett C.J.: The evidence before the Tribunal did not
establish on a balance of probability that the goods were
exempt. No other opinion is expressed. However, where a
tribunal has no authority to make a binding determination on a
question, generally, it must take a position on the issue whether
what it is being asked to decide is something for which Parlia
ment has given it authority. It should not proceed with an
inquiry that it is satisfied is outside its jurisdiction.
Per Ryan J.: The burden is on the applicant to show that the
fact prerequisite to jurisdiction is absent; it has not been met.
Per Le Dain J.: While it may be argued that if the Tribunal
makes a finding of material injury or retardation with respect
to exempt goods it has exceeded its jurisdiction within the
meaning of section 28; a finding by the Tribunal under section
16 is an essential basis for the on-going administration of the
Act, and may have necessary application to rights and liabili
ties in respect of goods that are not exempt.
Mitsui and Co. Ltd. v. Anti-dumping Tribunal of Canada
[1972] F.C. 944 and In re Danmor Shoe Co. Ltd. [1974] 1
F.C. 22, applied. The Queen v. Commissioners for Special
Purposes of the Income Tax (1888) 21 Q.B.D. 313; The
King v. Bloomsbury Income Tax Commissioners [1915] 3
K.B. 768 and The King v. Noxzema [1942] S.C.R. 178,
discussed.
JUDICIAL review.
COUNSEL:
W. G. Robinson for applicants.
J. L. Shields for respondent.
A. R. Scace for Connaught Laboratories Ltd.
SOLICITORS:
Gowling & Henderson, Ottawa, for
applicants.
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for respondent.
McCarthy & McCarthy, Toronto, for Con-
naught Laboratories Ltd.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision of the Anti-dumping Tribunal
under section 16 of the Anti-dumping Act, reading
as follows:
FINDING
The Anti-dumping Tribunal, having conducted an inquiry
under the provisions of subsection (1) of section 16 of the
Anti-dumping Act consequent upon the issue by the Deputy
Minister of National Revenue for Customs and Excise of a
preliminary determination of dumping dated September 3,
1974 respecting the dumping into Canada of tetanus immune
globulin (human) originating in the United States of America,
finds that the dumping into Canada of tetanus immune globu-
lin (human) manufactured by Cutter Laboratories, Inc., Berke-
ley, California, United States of America, has caused, is caus
ing and is likely to cause material injury to the production in
Canada of like goods and finds further that the dumping into
Canada of all tetanus immune globulin (human) originating in
the United States of America is likely to cause material injury
to the production in Canada of like goods.
To understand what is involved in the applica
tion, some ,reference must be made to the general
scheme' of the Anti-dumping Act, which I find
difficult to understand. The following may be suf
ficient for that purpose:
Compare Mitsui and Co. Ltd. v. Anti-dumping Tribunal of
Canada [1972] F.C. 944, where I attempted a similar outline
from a different point of view for a different purpose.
1. Part I of the Act, which is entitled "Liability
for Anti-dumping Duty", imposes an anti-
dumping duty upon the entry into Canada of
goods if
(a) they are "dumped goods", 2 and
(b) the Tribunal has made, before entry (sec-
tion 3), or after entry (sections 4 and 5), a
decision or order of a specified character con
cerning injury or retardation of production of
like goods;
and further provides (section 7) that the Gover
nor in Council may "exempt" any goods or
classes of goods "from the application of this
Act".
2. Part II of the Act, which is entitled "Proce-
dure", provides for the following steps:
(a) a deputy minister 3 investigation (section
13) respecting dumping "of any goods" where
(i) the Deputy Minister is of opinion that
there is evidence that the goods have been
or are being dumped, and
(ii) the Deputy Minister or the Tribunal
has concluded that there is evidence that
the "dumping" is causing or is likely to
cause injury to, or retardation of, produc
tion in Canada of a specified character,
which investigation results (section 14), if the
Deputy Minister is satisfied that
(A) the goods have been or are being
dumped, and
(B) the margin of dumping and the volume
thereof is not negligible,
in a "preliminary determination of dumping"
by the Deputy Minister of specified goods;
(b) imposition of provisional duty (not great
er than the margin of dumping) on goods
specified in the preliminary determination
that are entered between the time when the
determination is made and the time when the
2 "dumped goods" are defined by section 8 as goods the
"normal value" of which as defined by section 9 exceeds the
"export price" of which as defined by section 10.
In this Act deputy minister means the Deputy Minister of
National Revenue for Customs and Excise (section 2(1)).
Tribunal's order or finding hereinafter
referred to is made (section 15), which provi
sional duty is returnable except to the extent
that anti-dumping duty becomes payable
under Part I on the goods so entered as a
result of the Tribunal's order or finding;
(c) an inquiry by the Tribunal (section 16),
upon receipt of the Deputy Minister's prelim
inary determination of dumping, which inqui
ry is in respect of the goods specified in such
determination, has as its object to determine
whether "the dumping" "... has caused, is
causing or is likely to cause", injury to pro
duction or retardation of production of a
specified character, 4 and may result in an
order or finding applicable to a more limited
class of goods than those specified in the
Deputy Minister's preliminary determination
of dumping;
(d) after the Tribunal's order or finding, the
Deputy Minister makes a "final determina
tion of dumping" in the case of goods previ
ously entered (and thereupon causes "an
assessment to be made of the duty payable in
respect of any goods affected thereby")
(i) by determining whether such goods are
goods described in such order or finding,
and
(ii) by appraising normal value and export
price,
which final determination is subject to review by
the courts (sections 17, 19 and 20);
(e) in the case of goods entered subsequent to
an order or finding of the Tribunal a depart
mental determination as to whether the goods
fall within the Tribunal's decision or order
and a departmental appraisal of normal value
and export price, which is final subject to the
recourse specially provided for to the courts
(sections 18, 19 and 20).
Leaving aside the question as to whether non
exempt goods have been entered into Canada at a
relevant time, it would seem that Part II of the
Anti-dumping Act makes provision for the manner
4 There are other possible objectives for such an inquiry but
they are not relevant here.
in which the conditions precedent to payment of
the anti-dumping duty are to be exclusively deter
mined. If, however, any question arises as to
whether goods were entered into Canada during a
period to which the Act applies or as to whether
any goods so entered were exempt from the
application of the Act by action of the Governor in
Council under section 7, there does not, as far as I
have been able to ascertain, appear to be any
procedure in the Act for a conclusive determina
tion of that question other than the "suit in any
court of competent jurisdiction" contemplated by
section 33. 5
The problem in this case arises from an exemp
tion created by Order in Council under section 7.
It is to be found in Regulation 23 which reads, in
so far as applicable, as follows:
23. (1) Pharmaceutical products of a kind not made or
produced in Canada and imported on or after May 1, 1972 are
hereby declared exempt from the application of the Anti-
dumping Act.
(3) For the purposes of this section, pharmaceutical products
... shall not be deemed to be of a kind made or produced in
Canada unless a quantity sufficient to supply ten per cent of
the normal Canadian consumption of such article is so made or
produced.
By its memorandum filed in this Court as I
understand it, the section 28 applicant took the
position, in effect, that the decision of the Tribunal
under attack (quoted at the beginning of these
reasons), which was an order or finding under
section 16 of the Act referred to in paragraph 2(c)
supra, was made without jurisdiction because
(a) the Tribunal could not make such a deter
mination in respect of goods "exempt ... from
5 It may be that such a question may be determined on an
appeal under section 19(1) or 20 having regard to the words in
section 19(3) "the Tariff Board ... may declare ... that no
duty is payable." This, however, does not seem to be contem
plated as such an appeal is apparently restricted (section 19(1))
to a person aggrieved by a decision under section 17(1) or
18(4) and the authority to assess seems to be in section 17(2).
The words "may declare ... that no duty is payable" will apply
in an appeal against a decision under section 17(1) or 18(4) if
the Tariff Board or the Court determines that, on the correct
appraisal of "normal value" and "export price", there is, in the
particular case, no dumping.
the application of the Act" by virtue of
section 7,
(b) the Tribunal had the statutory function of
determining whether or not goods were subject
to the application of the Act so as to be within
its jurisdiction;
(c) the Tribunal had made a statutory determi
nation that the goods in question were within its
jurisdiction and such determination was a condi
tion precedent to its jurisdiction to make the
decision attacked; and
(d) that such statutory determination was a nul
lity (by reason of certain attacks available
against the validity of statutory determinations)
and therefore the Tribunal had no jurisdiction to
make the decision that is attacked by this sec
tion 28 application.
Before us, in verbal argument, counsel for the
section 28 applicant shifted his ground somewhat.
He recognized that the Tribunal had no authority
to make a binding determination as to whether a
particular class of goods were exempt from the
application of the Act' and his position, in conse
quence, was, in effect, that the decision of the
Tribunal under attack was made without jurisdic
tion because
(a) the Tribunal could not make such a deter
mination in respect of goods "exempt ... from
6 Compare The Queen v. Commissioners for Special Pur
poses of the Income Tax (1888) 21 Q.B.D. 313, per Lord Esher
at page 319:
When an inferior court or tribunal or body, which has to
exercise the power of deciding facts, is first established by
Act of Parliament, the legislature has to consider what
powers it will give that tribunal or body. It may in effect say
that, if a certain state of facts exists and is shewn to such
tribunal or body before it proceeds to do certain things, it
shall have jurisdiction to do such things, but not otherwise.
There it is not for them conclusively to decide whether that
state of facts exists, and, if they exercise the jurisdiction
without its existence, what they do may be questioned, and it
will be held that they have acted without jurisdiction. But
there is another state of things which may exist. The legisla
ture may entrust the tribunal or body with a jurisdiction,
which includes the jurisdiction to determine whether the
preliminary state of facts exists as well as the jurisdiction, on
finding that it does exist, to proceed further or do something
more.
See also The King v. Bloomsbury Income Tax Commissioners
[1915] 3 K.B. 768 and The King v. Noxzema [1942] S.C.R.
178 at pages 185 et seq.
the application of the Act" by virtue of section
7; and
(b) on the basis of the evidence placed before
the Tribunal, the goods referred to in the Tribu
nal's decision were so "exempt", and this Court
should so hold.
This section 28 application bristles with difficult
problems.' I am satisfied that it may be dismissed
without expressing any opinion on any of such
problems on the ground that, assuming everything
else in the applicant's favour, it was not demon
strated to us that the evidence before the Tribunal
established, on a balance of probability, that the
goods described in the decision under attack were
exempt from the application of the Anti-dumping
Act. In coming to this conclusion, however, I must
not be taken as expressing any opinion on any
other question such as the question whether it
would be proper for this Court to make a finding
of fact as to exemption in the circumstances of this
matter,' or the question whether exemption from
the application of the Act at a particular point of
time deprives the Tribunal of jurisdiction to deal
with "goods" which, by reason of the nature of the
exemption may have been non-exempt both before
and after that point of time.'
'See Appendix "B".
8 Under Rule 1402(1), a section 28 application is to be
decided subject to an order under Rule 1402(2), in effect, on
the material that was before the Tribunal. For certain jurisdic
tional questions that may arise under section 28(1), a Rule
1402(2) order would be required to add further material. My
caveat here, with reference to the material that was before the
Tribunal, is that it must be considered with caution when being
used to decide a question on which the Tribunal did not have
power to make a binding determination.
9 It is worthy of note that the exemption here is not of a class
of goods determined by reference to their intrinsic nature
alone—in which case the exemption would be of a continuing
nature—but is dependent on whether goods of the class or kind
are at the relevant time made in Canada. It is also worth
raising the question whether there may be some doubt concern
ing the view generally accepted that that question is determined
by a "count" taken in respect of a particular period. It may be
that the only feasible approach, particularly where the burden
is on a private person, is to have regard to the general view of
the matter held by persons knowledgeable with reference to the
particular industry.
I am of opinion that the section 28 application
should be dismissed.
APPENDIX A
At the risk of increasing, rather than decreasing,
the confusion that my reasons herein may create, I
consider it worthwhile to comment, by way of an
appendix, on the duty of a Tribunal faced with a
question as to whether it has jurisdiction when it
has no authority to make a binding determination
on that question. In my view, speaking very gener
ally, when such a question arises, a Tribunal must
take a position, even though it cannot make a
binding decision, on the question whether what it
is being asked to decide is something that Parlia
ment has given it authority to decide. It should not
waste public monies, and put interested parties to
incurring expenses, on an inquiry that it is satisfied
is outside its jurisdiction. In order to reach a
conclusion on such a question, it may, depending
on the circumstances, have to hear evidence with
regard thereto. If it concludes that it has no juris
diction and consequently refuses to proceed, a
person who feels aggrieved by that conclusion has
his remedy in mandamus. If it concludes that
there is a sufficient probability that it has jurisdic
tion to warrant it proceeding and announces that it
proposes to proceed, a person who feels aggrieved
by that conclusion has his remedy in prohibition or
a section 28 application in respect of the Tribu
nal's ultimate decision depending on the circum
stances. Compare the Appendix to the Reasons
given in the Danmor Shoe Co. case. '°
APPENDIX B
To indicate some of the problems that occur to
me, the appropriate part of the Anti-dumping Act
read with Regulation 23 might be contrasted with
a somewhat simpler hypothetical law, viz:
Anti-dumping duty is payable on the entry
into Canada of dumped goods that, in the opin
ion of the Tribunal, are not made substantially
of steel, if, in the opinion of the Tribunal, the
dumping of goods of a class or kind to which the
entered goods belong did, during the period of
two years prior to the entry, cause injury to
production in Canada.
10 [1974] 1 F.C. 22.
(Note that such a law would require the Tribunal
to express opinions concerning each entry of goods
before anti-dumping duty would be payable where
as the present Act makes one determination do for
a class or kind of goods from a retroactive time
indefinitely into the future.)
Under such a hypothetical law, I should have
thought that it would be reasonably clear
(a) that the Tribunal's jurisdiction to form a
binding opinion as to "injury" would be condi
tional on its first forming an opinion that the
particular goods entered were not made substan
tially of steel, and
(b) that the Tribunal's opinion on each of such
questions would be binding for the purpose of
the law subject only to the sort of attack that
can be made against statutory determinations.
In so far as it relates to the duties of the
Tribunal, there are important differences between
such a hypothetical law and the Anti-dumping Act
read with Regulation 23. Among such differences,
one finds
(a) under the present statute, the Tribunal has
no expressed jurisdiction to make a binding
decision as to whether goods are of a class that
may attract anti-dumping duty,
(b) under the present statute, falling within the
class of goods that may attract anti-dumping
duty does not depend solely on the physical
character of the goods but varies with the extent
to which Canadian requirements are produced
in Canada at or during some undefined point of
time or period the relation of which to the time
of entry of the particular goods is undefined,
and
(c) under the present statute, liability to anti-
dumping duty depends on an order or finding of
the Tribunal concerning "injury" that may be
made before or after entry of the particular
goods and may relate to a point of time or
period before or after such entry.
These characteristics of the present statute make it
almost impossible to answer, in general terms,
certain questions concerning its application t0 the
Tribunal and the effect of the Tribunal's decisions.
Take, for example, the question whether the
Tribunal has jurisdiction to determine "injury" in
respect of a class or kind of goods that, at the time
the question arises before the Tribunal, has been
exempted under Regulation 23. Clearly, the Tri
bunal should not make obviously academic deter
minations. On the other hand, there may be occa
sions when the determination would not be
academic even though the particular class is
exempt when the matter comes before the Tribu-
nal—e.g., when provisional duty has been paid
between the time of the Deputy Minister's prelim
inary determination and the creation of the
exemption.
Another example is the question as to the evi
dence upon which a determination should be made
as to whether a certain kind of goods fall within
the Regulation 23 exemption. This question must
be considered
(a) when the matter comes before the Deputy
Minister,
(b) when the matter comes before the Tribunal,
(c) when the matter comes before a court, e.g.,
for decision of a particular case or under
section 28.
These three occasions ordinarily follow each other
at substantial intervals and the information avail
able will vary accordingly. The Deputy Minister
deals with the matter, I assume, without giving
concerned persons an opportunity to be heard. The
Tribunal only has to consider whether the matter
is obviously outside its jurisdiction and must oper
ate under statutory restrictions as to giving parties
an opportunity to be heard. When the matter
comes before the Court, the question is whether, in
fact, particular goods entered at a particular time
were exempt or, on the facts, the Tribunal was
wrong in law in acting or not acting (not whether
some statutory determination of the Deputy Minis
ter or of the Tribunal is subject to attack). These
questions of fact in the Court must be determined
judicially. The extent to which what was brought
out before the Deputy Minister and the Tribunal is
relevant to what has to be decided by the Court in
a different context or was brought out in such a
way as to make it safe for a court to act on, either
exclusively or along with other material, must vary
substantially according to the circumstances.
* * *
The following are the reasons for judgment
rendered in English by
RYAN J.: On December 2, 1974, after making
an inquiry under section 16 of the Anti-dumping
Act", the Anti-dumping Tribunal found that the
dumping into Canada of tetanus immune globulin
(human) (referred to in these Reasons as
"T.I.G."), manufactured by Cutter Laboratories
Inc., Berkeley, California, United States of Ameri-
ca, "has caused, is causing and is likely to cause
material injury to the production in Canada of like
goods", and that the dumping into Canada of all
T.I.G. "originating in the United States of Ameri-
ca is likely to cause material injury to the produc
tion in Canada of like goods". This is an applica
tion under section 28 of the Federal Court Act'Z to
review and set aside this finding.
The essential ground of attack is that the Tri
bunal lacked jurisdiction to make the inquiry and
the finding. Jurisdiction was lacking, it was sub
mitted, because the goods in question were exempt
from the application of the Act by virtue of an
Order in Council 13 enacted under sections 7 and
35 of the Act. The relevant section of the Regula
tions, section 23, declared exempt from application
of the Act, "pharmaceutical products of a kind not
made or produced in Canada and imported on or
after May 1, 1972". Subsection (3) of the section
provides in part that
... pharmaceutical products ... shall not be deemed to be of a
kind made or produced in Canada unless a quantity sufficient
to supply ten per cent of the normal Canadian consumption of
such article is so made or produced.
R.S.C. 1970, c. A-15.
I3 R.S.C. 1970 (2nd Supp.), c. 10.
13 SOR/72-191, Canada Gazette Part II, Vol. 106, No. 12,
June 28, 1972.
The applicants' submission was that, on the evi
dence before the Tribunal, T.I.G. made or pro
duced in Canada did not constitute "a quantity
sufficient to supply ten per cent of the normal
Canadian consumption of such article". Neither
the applicants, nor the Canadian manufacturer,
Connaught Laboratories Limited, which was
represented before us, sought to lead evidence in
addition to what was before the Tribunal.
I am prepared to assume, for purposes of this
judgment, that jurisdiction to conduct the section
16 inquiry and to make the challenged finding was
dependent on the goods, which were the subject
matter of the inquiry, being within the application
of the Act. Thus, on this assumption, if the goods
in question had been exempted, the Tribunal
would have lacked jurisdiction.
In its statement of reasons for its finding, the
Tribunal said:
... the Tribunal, upon the evidence submitted in confidence by
all parties and as a result of its own inquiries, agrees with the
opinion expressed in writing by the Deputy Minister to the
Tribunal that Canadian production meets the quantitative test
set out in the exempting Order in Council.
The Deputy Minister of National Revenue for
Customs and Excise had, of course, made a pre
liminary determination of dumping under section
14 of the Act. The "opinion expressed in writing
by the Deputy Minister" was information, given
by him in a letter in response to a request for
information required for purposes of the Tribunal's
inquiry under section 16, to the effect that
... for the purposes of section 23 of the Anti-dumping Regula
tions, tetanus immune globulin (human) is held by this depart
ment to be a pharmaceutical product of a kind made in
Canada. In the circumstances, the exemption from the applica
tion of the Anti-dumping Act provided for under section 23 of
the regulations does not apply in this instance.
In these circumstances, particularly in the light
of the finding by the Tribunal that the Canadian
production met the quantitative test, the burden is
on the applicants to show that the fact prerequisite
to jurisdiction is absent 14 . Whether the burden is
to establish this absence on a balance of probabili
ties or to show that there is no reasonable ground
for the Tribunal's jurisdictional holding, the appli-
14 S. A. de Smith, Judicial Review of Administrative Action
(3rd ed., 1973), at pages 104 and 105.
cants failed to discharge the burden.
For these reasons I would dismiss the
application.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I agree that this application should
be dismissed on the ground that on the only evi
dence before the Court, namely, that which had
been adduced before the Tribunal, the applicants
failed to establish the essential fact on which their
case for exemption rested—that tetanus immune
globulin (human) was not made or produced in
Canada in a quantity sufficient to supply at least
ten per cent of the normal Canadian consumption
of it.
There also appears to me to be a serious ques
tion, for the reasons indicated by the Chief Justice,
as to whether a finding by the Tribunal under
section 16 of the Anti-dumping Act with respect
to material injury or retardation should be subject
to be set aside on a section 28 application on the
ground that the goods or description of goods to
which it relates are at the time of the finding
exempt from the application of the Act. While it
may be argued plausibly that if the Tribunal
makes such a finding with respect to goods that
are exempt from the application of the Act it acts
beyond its jurisdiction within the meaning of sec
tion 28, a finding by the Tribunal under section 16
is an essential basis for the on-going administra
tion of the Act and may have necessary application
to rights and liabilities in respect of goods that are
not exempt at the time of entry into Canada.
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.