In re Anti-dumping Tribunal and re transparent
sheet glass
Trial Division, Cattanach J.—Ottawa, July 4, 5,
6, 7, and August 4, 1972.
Judicial review—Certiorari—Anti-dumping Tribunal—
Chairman of tribunal former adviser to litigants—Chairman
absent from hearings but signs decision—No actual bias—
Reasonable apprehension of bias—Signed order not removed
into Court—Certiorari refused—Federal Court Act, section
18.
Civil rights—Evidence—Bill of Rights—Documents
obtained from persons in inquiry under Combines Investiga
tion Act—Admissible against persons in civil proceedings.
Crown—Certiorari—Right of Attorney General to writ of
certiorari—Federal Court Act, section 18.
B was appointed chairman of the Anti-dumping Tribunal
on January 1, 1969, and a vice-chairman and one other
member were appointed at the same time. For several years
prior to his appointment B had been employed as a consult
ant by two Canadian manufacturers of sheet glass, for
whom he had made representations to governmental
authorities with respect to alleged dumping of imported
sheet glass into Canada. On his appointment to the Tribunal
B terminated his employment with his two cliénts and while
he made no further representations on their behalf he did
advise them concerning a complaint of dumping made by
them. The complaint was brought before the Tribunal in
February 1970. B informed the other two members of the
Tribunal of his association with the Canadian companies
and, pursuant to section 23(1)(a) of the Anti-dumping Act,
R.S.C. 1970, c. A-15, assigned the other two members to
conduct hearings on the complaint. These took place in
February 1970 and B was not present. On March 13, 1970,
the other two members ordered that anti-dumping duty be
assessed against imported sheet glass. At the request of the
vice-chairman B read the final draft of their decision and
made three grammatical changes which did not affect its
substance. B signed the decision of the other two members
in the mistaken belief that the signatures of all three mem
bers were necessary. The decision signed by all three mem
bers was forwarded to the Deputy Minister of Customs and
Excise and an unsigned copy of the order was retained in
the records of the Tribunal (which is a court of record). On
a motion for certiorari by the Attorney General under
section 18 of the Federal Court Act to quash the decision,
the unsigned copy of the decision was removed into this
Court.
Held, the motion must be dismissed. While actual bias by
B was not established, he was disqualified from participat
ing in the making of the decision because of his relationship
to the complainants which gave rise to a reasonable appre
hension of bias and moreover because he was not present at
the hearing. In signing the decision he adopted it as his own
and accordingly it ought to be quashed. Since, however, the
copy of the decision removed into this Court was unsigned,
certiorari could not be granted.
R. v. Sussex Justices [1924] 1 K.B. 256; Ghirardosi v.
Min. of Highways (B.C.) [1966] S.C.R. 367; R. v.
Huntingdon Confirming Authority [1929] 1 K.B. 698;
Hughes v. Seafarers' International Union (1962) 31
D.L.R. (2d) 441, referred to; R. v. Nat Bell Liquors
Ltd. [1922] 2 A.C. 128; R. v. Northumberland Compen
sation Appeal Tribunal [1952] 1 K.B. 338, applied.
Held also, nothing in the Canadian Bill of Rights rendered
inadmissible as evidence in these proceedings documents
obtained by the Attorney General from the premises of the
two Canadian manufacturers in the course of an inquiry
under the Combines Investigation Act.
Held also, although not specifically authorized to institute
certiorari proceedings by section 18 of the Federal Court
Act, the Attorney General, nevertheless, retains his
common law right to apply for the writ. Certiorari is issued
as a matter of course on the application of the Attorney
General.
CERTIORARI application under section 18
of the Federal Court Act to quash decision of
Anti-dumping Tribunal.
C. R. O. Munro, Q.C., D. H. Aylen, Q.C., and
Robert Vincent for Attorney General of
Canada.
Gordon Henderson, Q.C. for William W.
Buchanan.
Gordon Killeen and J. Shields for Anti-dump
ing Tribunal.
R. A. Smith, Q.C. for Canadian Pittsburgh
Industries Ltd.
H. Soloman, Q.C. for Glassexport Ltd.
J. F. Howard and D. J. Brown for Pilkington
Bros. (Canada) Ltd.
CATTANACH J.—By notice of motion, dated
May 4, 1972, it was moved on behalf of the
Attorney General of Canada, pursuant to sec
tion 18 of the Federal Court Act, R.S.C. 1970,
c. 10 (2nd Supp.) (1) for an order removing into
this Court the finding or decision of the Anti-
dumping Tribunal made on March 13, 1970
with respect to transparent sheet glass from
Czechoslovakia, East Germany, Poland, the
Union of Soviet Socialist Republics and
Romania and all other matters, things and docu
ments incidental or relevant thereto and all
other papers and matters in connection there-
with and all things touching the same as fully
and entirely as they remain in its custody and
(2) for an order or judgment quashing the find
ing or decision of the Anti-dumping Tribunal on
the grounds that
(a) the Chairman of the said Tribunal par
ticipated in the making of the decision
although he had an interest in its subject
matter;
(b) the Chairman of the said Tribunal par
ticipated in the making of the decision
although he had, or may have had, by reason
of his association with the Canadian firms
whose complaint in writing led to the institu
tion of the proceedings under the Anti-dump
ing Act, a bias in their favour; and
(c) the Chairman of the said Tribunal par
ticipated in the making of the decision
although he was not present at the hearing at
which evidence was adduced and argument
advanced on behalf of the interested parties.
The notice of motion was supported by
affidavits of
(1) Robert Kerr Paterson, an officer of the
Customs and Excise Division of the Depart
ment of National Revenue, who swore that he
knew William Buchanan, who became Chair
man of the Anti-dumping Tribunal, that he,
the affiant, was concerned with a complaint
lodged by Pilkington Brothers (Canada) Ltd.
and Canadian Pittsburgh Industries Limited
with respect to the dumping in Canada of
window glass imported from communist
countries of Eastern Europe, which com
plaint was being investigated and which led to
a preliminary determination of dumping by
the Deputy Minister on December 15, 1969,
that on more than one occasion in 1969 he
discussed with William Buchanan the valua
tion of glass so imported but was unable to'
recall the particular nature of those discus
sions or whether Mr. Buchanan personally
attended at his office or called by telephone.
(2) Murray Joseph Patrick Collins, also an
officer in the Customs and Excise Division of
the Department of National Revenue who
swore that on many occasions in 1968, and in
earlier years, Mr. Buchanan on behalf of his
clients, Pilkington Brothers (Canada) Ltd. and
Canadian Pittsburgh Industries Limited, dis
cussed with him the inroads being made in
the Canadian market for sheet glass by
imports of that product from communist
countries of Eastern Europe, that the purpose
of those discussions was to persuade the
Department to adopt a method for determin
ing the value for duty of these imports which
would afford greater tariff protection to his
clients by increasing the value for duty so
that greater regular duty would be payable
and so that dumping duty would be payable
under the then applicable legislation, and
appended to his affidavit as an exhibit was a
letter dated February 21, 1968 addressed to
the affiant by Mr. Buchanan setting forth
those representations;
(3) Charles Douglas Arthur, who was the
Secretary of the Anti-dumping Tribunal at the
relevant dates, and appended to his affidavit
as an exhibit was a "true Xerox copy of the
decision of the Anti-dumping Tribunal", in
the matter of the inquiry as to material injury
under section 16 of the Anti-dumping Act
with respect to transparent glass from the
Eastern European countries, which decision
bore date of March 13, 1970 and bore at the
end of the signature of W. W. Buchanan, as
Chairman, J. P. C. Gauthier, as member, B.
G. Barrow, as member and the signature of
the affiant as witness to the foregoing signa
tures; that the public hearings were held on
February 2, 3, 4, 5 and 6, 1970 at which Mr.
Buchanan was not present;
(4) Ronald A. Davis, a senior field examin
er in the Taxation Branch, Department of
National Revenue, who swore that on April
13, 1972 he examined the records of billings
by Mr. Buchanan "for the year 1969", that he
found (a) an invoice dated February 8, 1969
directed to Canadian Pittsburgh Industries
endorsed "Re: Value for duty on sheet glass
from Iron Curtain Countries and far east" in
the amounts of $375 for fees and $19.75 for
expenses and (b) an invoice dated March 1,
1969 directed to Pilkington Brothers
(Canada) Ltd. in the amounts of $1325 for
fees and $181.60 for expenses; and
(5) Clary Gerald McMullen, an employee
of the Department of Consumer and Corpo
rate Affairs, who swore that on September
24, 1971 he attended at the business premises
of Canadian Pittsburgh Industries Limited
and Pilkington Brothers (Canada) Ltd. and
received from officers of those corporations
certain documents, attached to his affidavit is
a bundle of documents consisting of 18
pages.
This affiant received the documents in ques
tion from an officer who had conducted a
search during an inquiry under the Combines
Investigation Act. He acted as a courier in that
he made photo copies of the documents given
to him and I believe returned the originals to the
corporations. All of such documents are dated
subsequent to January 1, 1969 and refer to
advice and suggestions made to the corpora
tions by Mr. Buchanan.
By notice of motion dated May 5, 1972, it
was moved ex parte on behalf of the Attorney
General for directions as to the conduct of the
first notice of motion dated May 4, 1972 as to
service of that motion and for leave to call
witnesses to testify in open court.
The motion dated May 5, 1972 was heard by
Mr. Justice Heald who ordered that notice be
served upon twenty-seven enumerated persons.
It is quite obvious that Mr. Justice Heald exer
cised great care to ensure that every person
who had an interest in the matter should be
served. It ensures that all importers and export
ers of sheet glass to whom the Deputy Minister
of National Revenue for Customs and Excise
gave notice of the investigation into dumping
prior to the hearing before the Anti-dumping
Tribunal, should be served, including the com
plainants in the matter, Pilkington Brothers
(Canada) Ltd. and Canadian Pittsburgh Indus
tries Limited. It directed the manner of service
on individuals and corporations in Canada and
the manner of service of those who were not in
business in Canada by service on their agents.
More particularly it was ordered that Mr.
Buchanan, the Chairman of the Anti-dumping
Tribunal and Mr. Barrow and Mr. Gauthier, the
members of that Tribunal should be served.
Service on the Secretary of the Anti-dumping
Tribunal was also ordered.
In addition leave was granted by Mr. Justice
Heald to the Attorney General to call as wit
nesses to testify in open court, William Wallace
Buchanan, the Chairman of the Anti-dumping
Tribunal as at March 13, 1970, Lionel C.
Bosanquet, Vernon C. German, J. Ray Faulds
and Frank J. Doyle, the last four persons being
officers of Pilkington Brothers (Canada) Ltd.
and Canadian Pittsburgh Industries Limited
who were authors of the letters and memoranda
appended to the affidavit of Clary Gerald
McMullen as exhibits.
It is of significance that Mr. Justice Heald
further ordered that since a copy of the decision
of the Anti-dumping Tribunal dated March 13,
1970 had been filed no further return of such
additional material referred to in the notice of
motion dated May 4, 1972 was required of the
Anti-dumping Tribunal as at that time.
In view of the numerous persons required to
be served Mr. Justice Heald ordered that the
notice of motion dated May 4, 1972 should be
returnable on June 8, 1972 rather than on May
25, 1972 as originally requested.
The matter came on for hearing before me on
June 8, 1972. At that time Mr. Buchanan was
represented by counsel as were Pilkington
Brothers (Canada) Ltd. and Canadian Pitts-
burgh Industries Limited. So too were Glassex-
port Limited and Mineralimportexport. Pursu
ant to the order of Mr. Justice Heald service
upon Glassexport Limited had been effected by
service upon its agent Peter Reiner, Reiner
Trading Company, Montreal, Quebec and upon
Mineralexportimport by service on the Senior
Trade Commissioner, Romanian Commercial
office in Montreal, Quebec. In addition the
Anti-dumping Tribunal and the Vice-Chairman
thereof, J. P. C. Gauthier were represented by
counsel.
At that time counsel for William Wallace
Buchanan moved for leave to call specified
witnesses. Notice of such motion had been
given and I granted such leave.
Counsel for Mr. Buchanan applied for leave
to cross-examine the deponents of the affidavits
filed in support of the notice of motion dated
May 4, 1972 by the Attorney General. In this
application he was supported by counsel for the
persons adverse in interest to the Attorney Gen
eral. I granted such application and cross-
examinations on the affidavits took place on
June 12, 1972.
At this same time counsel for Mr. Buchanan
required particulars of the first ground relied
upon by the Attorney General for quashing the
finding of the Anti-dumping Tribunal. For con
venience I repeat that ground as contained in
the notice of motion dated May 4, 1972. It
reads as follows:
The Chairman of the said Tribunal participated in the
making of the decision although he had an interest in its
subject matter.
Counsel for Mr. Buchanan was adamant and
insistent in the representation that he was enti
tled to particulars of the "interest" so alleged in
order that he might make answer thereto. In my
view he was entitled to that information. The
matter was resolved by counsel for the Attor
ney General amending the notice of motion by
inserting the word "pecuniary" before the word
"interest". The result in short was that the
Attorney General alleged a "pecuniary interest"
on the part of Mr. Buchanan.
Counsel for the Anti-dumping Tribunal and
the Vice-Chairman thereof requested particu
lars of the circumstances which would consti
tute a bias by the Chairman of the Tribunal in
favour of the two Canadian firms whose com
plaints led to the institution of proceedings
under the Anti-dumping Act. In this application
counsel was supported by counsel for the par-
ties adverse in interest to the Attorney General.
This allegation of bias is relied upon by the
Attorney General on the second ground for
quashing the finding of the Tribunal. Since I
concluded that the application was well founded
I so directed and counsel for the Attorney Gen
eral supplied those particulars on June 9, 1972
in the following terms:
The association referred to is the association between W.
W. Buchanan and Canadian Pittsburgh Industries Limited
and Pilkington Brothers Canada Limited. Mr. Buchanan was
retained by those corporations prior to his appointment as
Chairman of the Anti-dumping Tribunal to advise and assist
them and to make representations to the Government of
Canada with regard to the injury being caused and likely to
be caused to the production in Canada of sheet glass, and in
particular to the businesses of the said corporations, by the
importation at low prices of sheet glass from Europe, and
with regard to the desire of the said corporations to have
additional duty imposed upon dumped sheet glass imported
into Canada from Europe. Mr. Buchanan rendered such
advice and assistance and made such representations on
behalf of the said corporations both before and after his
appointment to the Anti-dumping Tribunal.
I, therefore, adjourned the motion to July 4,
1972 in order to permit of compliance with my
order in the interval.
On July 4, 1972 the same persons who were
represented by counsel on June 8, 1972 were
again represented excepting counsel for Min-
eralimportexport. Counsel for Glassexport Lim
ited was present on July 4, 1972 but was not
present thereafter.
Mr. Buchanan had a distinguished career in
the public service of Canada. He had been a
farmer in Manitoba. He then attended the Uni
versity of Manitoba where he attained a Bache
lor of Arts degree in economics. He then
obtained a Master of Arts degree in economics
from the University of Toronto. He had no legal
training. From 1949 to 1959 he was the Vice-
Chairman of the Tariff Board. He was also
appointed as a member of a Royal Commission
on Patents, Copyright and Industrial Designs.
At the conclusion of his public service in 1959
he set up a business of consultant on matters
pertaining to copyright, patents, industrial
designs, trade marks, labour relations and, I
believe more particularly with respect to mat
ters of customs and excise which constituted
the greater bulk of his work. His past experi
ence and intimate knowledge of the government
departments charged with the administration of
these matters eminently qualified him to under
take this work on behalf of clients engaged in
industry. His association with the Canadian
Pittsburgh Industries Limited and Pilkington
Brothers (Canada) Ltd. as clients began in
1966. From that date and particularly in the
years 1968 and 1969 these two corporations
were the only manufacturers of sheet glass in
Canada. Since 1969 about three manufacturers
have undertaken the manufacture of sheet glass
in Canada and subsequent to 1969 Pilkington
Brothers (Canada) Ltd. has ceased to manufac
ture this product.
At this point it is expedient to summarize the
effect of the statutes then applicable and the
matters in respect of which Mr. Buchanan made
representations to various governmental
authorities on behalf of these clients as well as
the underlying purpose and objective of those
representations.
Section 6(1) of the Customs Tariff, R.S.C.
1952, c. 60, provided that in the case of goods
exported to Canada of a class or kind produced
in Canada if the export or actual selling price to
an importer in Canada is less than the fair
market value or the value for duty of the goods
as determined under the Customs Act there
shall, in addition to other duties payable, be
levied a special or dumping duty, equal to the
difference between the selling price of the
goods for export and the value for duty.
By section 6(2)(b) it was provided that the
special or dumping duty shall not exceed 50%
ad valorem and that certain goods may be
declared exempt from duty by order or regula
tion made by the Governor in Council.
Pursuant to section 6(2)(b) of the Customs
Tariff the Governor in Council by Order-in-
Council, P.C. 4600 dated December 4, 1952
ordered that sheet glass was declared to be
exempt from dumping duty.
Mr. Buchanan was engaged by Pilkington
Brothers (Canada) Ltd. and Canadian Pitts-
burgh Industries Limited to advise upon and to
make representations on their behalf to the
appropriate governmental authorities with the
view to removing that exemption. Mr. Bucha-
nan did so. He had numerous interviews with
government officials and his representations
culminated in his letter dated September 20,
1966 (Exhibit 18) addressed to the Assistant
Deputy Minister of Finance summarizing the
case for his clients. From this time forward Mr.
Buchanan was in the constant engagement of
these particular clients advocating the
implementation of procedures advantageous to
them.
Apparently his representations with respect
to the removal of the exemption of sheet glass
from dumping duty achieved the desired result.
By Order-in-Council P.C. 1967-1844 dated Sep-
tember 28, 1967 the Governor in Council on the
recommendation of the Minister of Finance
revoked Order-in-Council P.C. 4600 so that
sheet glass became subject to dumping duty.
Under section 6(1) it is obvious that it was in
the interests of Canadian manufacturers of
sheet glass to have a sufficiently high value for
duty fixed for that product to enable them to
compete in the Canadian market.
Throughout 1968 Mr. Buchanan was engaged
in making representations on behalf of his two
clients respecting the inroads being made by
exporters of sheet glass from Eastern Europe in
the Canadian market, the adverse effects of
what might be termed dumped glass under sec
tion 6(1) of the Customs Tariff and most par
ticularly he made representations to the Depart
ment of National Revenue as to the methods
which might properly be used to determine the
value for duty of sheet glass from those
sources.
On December 19, 1968 Royal assent was
given to the Anti-dumping Act, R.S.C. 1970, c.
A-15, and by proclamation this Act came into
force on January 1, 1969.
Under section 8 of this Act goods are
dumped if the normal value of the goods
exceeds the export price of the goods. Basically
the normal value of goods is the price for which
goods are sold in the ordinary course of trade
for home consumption under competitive condi
tions. Section 9 sets out the rules by which
normal value is determined in a variety of cir
cumstances and similarly section 10 provides
for the determination of the export price.
By virtue of section 3 of this Act it is a
condition precedent to the imposition of dump
ing duty that the dumping of goods in Canada
has caused, is causing or is likely to cause
material injury to the production of like goods
in Canada.
Section 21 of this Act created the Anti-dump
ing Tribunal consisting of not more than five
members to be appointed by the Governor in
Council, one of whom shall be designated the
Chairman and another to be the Vice-Chairman.
It is provided in section 21(6) that in the event
of the absence or incapacity of any member a
temporary substitute may be appointed and by
subsection (7) it is provided that each member
shall devote the whole of his time to the per
formance of his duties as a member of the
Tribunal and shall not accept or hold any office
or employment inconsistent with his duties and
functions under the Act.
The duties of the Chairman are outlined in
section 23 and include the assignment of mem
bers to sit at hearings and to preside thereat.
Section 27 provides that the Tribunal is a
court of record and shall have an official seal
which shall be judicially noted.
Under section 28 the Chairman may direct
that evidence shall be received by a member of
the Tribunal who may exercise all powers of the
Tribunal in so doing. The member must then
make a report on the evidence heard by him to
the Tribunal and a copy of that report must be
furnished to the parties to the hearing.
The procedure for the imposition of dumping
duty is outlined in Part II of the Act.
Under section 13 the Deputy Minister of
National Revenue for Customs and Excise initi
ates an investigation respecting the dumping of
goods on his own accord or on receipt of a
complaint in writing by or on behalf of pro
ducers in Canada of like goods if he is of the
opinion that there is evidence that goods have
been dumped and either he is of that opinion or
the Tribunal advises that it is of the opinion that
the dumping is causing material injury to pro
duction in Canada. Where the Deputy Minister
decides not to initiate an investigation by reason
only that in his opinion there is no evidence of
material injury either he or the complainant
may refer the question of material injury to the
Tribunal.
Under section 14 where the Deputy Minister,
as a result of his investigation, is satisfied that
goods have been dumped and that the extent of
the dumping was not negligible then the Deputy
Minister shall make a preliminary determination
of dumping. He then files with the Secretary of
the Tribunal notice of that determination.
Upon receipt of such notice the Tribunal by
virtue of section 16 shall forthwith make an
inquiry as to whether dumping of the goods has
caused material injury. When the Tribunal has
made its finding the Secretary is required by
subsection (5) to forward by registered mail a
copy thereof to the Deputy Minister and to the
interested parties.
On receipt of the order or finding of the
Tribunal the Deputy Minister then makes a final
determination of dumping by first determining
that the goods are those described in the order
or finding of the Tribunal and then by apprais
ing the normal value and export price of the
goods. There is provision for a review of the
determination of the appraisal of the normal
value and the export price.
When these steps have been concluded an
anti-dumping duty is imposed in an amount
equal to the margin of dumping of the entered
goods.
From the foregoing it follows that the func
tion of the Tribunal is limited to finding whether
the dumping of goods has caused, is causing or
is likely to cause material injury to the produc
tion in Canada of like goods or has materially
retarded or is materially retarding the establish
ment of the production in Canada of like goods.
By Order-in-Council, P.C. 1969-1, dated
January 3, 1969 W. W. Buchanan, J. P. C.
Gauthier and B. G. Barrow were appointed
members of the Anti-dumping Tribunal effec
tive January 1, 1969 for a period of seven years
and Mr. Buchanan was designated to be
Chairman.
At the discussions preliminary to his appoint
ment Mr. Buchanan testified that he informed
the then Minister of Finance, the responsible
Minister, of his association with Pilkington
Brothers (Canada) Ltd. and Canadian Pitts-
burgh Industries Limited, and that he had other
matters current most of which related to sales
tax which had not been concluded and that he
would wish to conclude those outstanding mat
ters. With respect to the two manufacturers of
sheet glass who were his clients, he informed
the Minister that he would forthwith terminate
his engagement with them but that he felt a
moral responsibility to give them suggestions as
to how they should proceed if that advice
should be sought from him but that he would
accept no compensation. Mr. Buchanan further
testified that the Minister gave his approval to
such arrangement.
Immediately following his appointment as
Chairman of the Tribunal Mr. Buchanan ter
minated his engagement as consultant by these
two clients. He carried on his work alone with
out partners so that there was no firm left to
continue the work. He recommended another
consultant to his clients and they engaged that
other consultant. Apparently he must have
indicated to his former clients that he would be
available to give them advice and suggestions as
to matters of form and procedure should they
seek it but he made it clear to them that he
would do so gratuitously and that he would
undertake no active representations on their
behalf.
Mr. Buchanan's testimony that he terminated
his engagement by his clients, the two sheet
glass manufacturers, on his appointment and
that he received no fees from either of them is
fully confirmed by Mr. German, the President
of Pilkington Brothers (Canada) Ltd. and by
Mr. Doyle, the President of Canadian Pittsburgh
Industries Limited.
Mr. German wrote Mr. Buchanan a letter
dated January 7, 1969 (Exhibit Dl) in which he
referred to a telephone call from Mr. Buchanan
to the Vice-President of the Company a week
earlier and then continued to express regret at
the end of their business relationship which was
considered a matter of great loss. He then
expressed satisfaction that persons of Mr.
Buchanan's competence should accept the
responsibilities of public service and concluded
by offering his congratulations and best wishes.
It is evident from this letter that Mr. Buchanan
terminated his engagement by Pilkington Broth
ers (Canada) Ltd. about a week prior to January
7, 1969.
Mr. Buchanan testified that at no time subse
quent to January 1, 1969 did he call any govern
ment official to make representations on behalf
of his former clients.
The only matter then outstanding was the
complaint of dumping lodged by the Canadian
glass manufacturers with the Deputy Minister.
All representations he had made on behalf of
his clients had been made in 1968 prior to his
appointment as Chairman of the Anti-dumping
Tribunal and those representations were direct
ed to the determination of value for duty. With
the advent of the Anti-dumping Act those
representations were not necessarily abortive
because the Deputy Minister still had to deter
mine the normal value of the goods and the
export price, which considerations now appli
cable differed from those formerly applicable to
value for duty. Mr. Buchanan testified that he
made no representations on behalf of his former
clients with respect to matters now pertinent.
He gave his former clients no assistance of any
kind in preparing material that might come
before the Tribunal.
The difficulty now facing his former clients
was the determination of normal value. To them
it was taking an inordinately long time. Mr.
Buchanan testified that he still retained a "hu-
man" interest in the matter and he did not deny
that he made telephone calls to ascertain where
the matter stood. He testified that he did so for
a two-fold reason (1) to be able to inform his
former clients where the matter stood if they
should enquire of him as they did and (2)
because the Tribunal had just been established
and no work was before it, so that the members
were becoming restless. He was anxious to
know when they may have a hearing to occupy
them and he was aware of the possibility that
the matter of ascertaining material injury by the
dumping of sheet glass might be referred to the
Tribunal.
Mr. Paterson in his affidavit filed in support
of the notice of motion swore that on more than
one occasion in 1969 he discussed with Mr.
Buchanan the matter of valuation of sheet glass
from European communist countries but that
his memory of the nature of those discussions
was vague.
Therefore I can see no valid reason why I
should not accept the testimony of Mr. Bucha-
nan in those respects and I accordingly do so.
It is well established law that any direct
pecuniary interest, however small, disqualifies
the adjudicator. The leading case concerning
pecuniary interest is Dimes v. Grand Junction
Canal Co. (1852) 3 H. of L. 759, where a
judgment was rendered by the Lord Chancellor
who had a large interest as a shareholder in the
Canal Company. His decision was appealed to
the House of Lords and it was held that the
Lord Chancellor was disqualified on the ground
of interest and his decision had to be quashed.
Lord Campbell said (at pp. 792-3):
No one can suppose that Lord Cottenham could be, in the
remotest degree, influenced by the interest that he had in
this concern; but, my Lords, it is of the last importance that
the maxim that no man is to be a judge in his own cause
should be held sacred. And that is not to be confined to a
cause in which he is a party, but applies to a cause in which
he has an interest. Since I have had the honour to be Chief
Justice of the Court of Queen's Bench, we have again and
again set aside proceedings in inferior tribunals because an
individual, who had an interest in a cause, took a part in the
decision. And it will have a most salutary influence on these
tribunals when it is known that this High Court of last
resort, in a case in which the Lord Chancellor of England
had an interest, considered that his decree was on that
account a decree not according to law, and was set aside.
This will be a lesson to all inferior tribunals to take care not
only that in their decrees they are not influenced by their.
personal interest, but to avoid the appearance of labouring
under such an influence.
Thus where a judge has a financial interest in
the result, he is disqualified, ipso facto, from
sitting on the hearing of the case. A bias is
conclusively presumed in those circumstances.
Any order made while he is sitting on the case
or after he has sat on the case is void.
It will be recalled that the first ground
advanced by the Attorney General for quashing
the order or finding of the Anti-dumping Tribu
nal was that the Chairman had a pecuniary
interest. This allegation was predicated upon
the affidavit of Ronald A. Davis who swore
following his examination of the records of
billings by Mr. Buchanan for the year 1969,
(Mr. Buchanan had been appointed Chairman of
the Tribunal on January 1, 1969) that there was
an invoice dated February 8, 1969 to Canadian
Pittsburgh Industries Limited and another dated
March 1, 1969 directed to Pilkington Brothers
(Canada) Ltd.
During the interval of the adjournment of the
hearing of the notice of motion from June 8 to
July 4, 1972 counsel for the Attorney General
was provided with copies of the invoices and
the originals thereof. Mr. Davis apparently
overlooked that the invoice he swore to have
been dated February 8, 1969 did not bear the
figures 1969 and that there was a notation on
the invoice dated March 1, 1969 which clearly
indicated that it was for services rendered in
1968. Counsel for the Attorney General indicat
ed that he was satisfied beyond doubt that both
invoices were for services rendered by Mr.
Buchanan to his clients in 1968 and accordingly
he indicated that he would place no reliance on
the allegation of pecuniary interest and quite
properly withdrew that allegation.
However that withdrawal did not completely
resolve this matter. Counsel for Mr. Buchanan
indicated that in his view, the manner in which
the Attorney General obtained such evidence
that he had available to him on the question of
pecuniary interest was reprehensible as it was
as well as with respect to other evidence and
that he proposed to submit for that reason that
costs in favour of his client should be awarded
against the Attorney General on a solicitor and
client basis in the event the notice of motion
was denied. It was for that reason alone that I
heard evidence on this subject which otherwise
would have been irrelevant.
Following upon the withdrawal of the allega
tion of pecuniary interest on the part of the
Chairman there remains the allegations that
(1) the Chairman participated in the
making of the decision of the Tribunal
although he had a bias in the favour of his
former clients by reason of that association
and
(2) that he participated in making the deci
sion although he was not present at the
hearings.
Counsel for the Attorney General submitted
that (1) there was actual bias on the part of Mr.
Buchanan and (2) the circumstances were such
that to a reasonable man viewing the case from
the outside there would be an apprehension of a
likelihood of bias.
The evidence relied upon by counsel for the
Attorney General was basically the correspond
ence and memoranda annexed to the affidavit
of Clary Gerald McMullen all of which are
dated subsequent to January 1, 1969. This
material was obtained during the course of an
inquiry during 1971 relating to production,
manufacture, sale and supply of sheet glass
under the Combines Investigation Act, R.S.C.
1970, c. C-23, from the premises of Canadian
Pittsburgh Industries Limited and Pilkington
Brothers (Canada) Ltd. where a search was
conducted. I might add that a similar search was
conducted on the premises of Mr. Buchanan.
It will be recalled that by the order of Mr.
Justice Heald dated May 11, 1972 leave was
granted to the Attorney General to call Lionel
C. Bosanquet, Vernon C. German, J. Ray
Faulds and Frank J. Doyle to give viva voce
evidence. These persons were the authors of
the correspondence. The Attorney General
called these persons as witnesses and sought to
introduce as evidence the correspondence and
inter-office memoranda of which they were the
authors.
At this point counsel for Pilkington Brothers
(Canada) Ltd. objected to the admissibility of
these documents. In this submission he was
joined by counsel for Canadian Pittsburgh
Industries Limited and counsel for Mr. Bucha-
nan who put forward the additional objection
that the documents were not relevant.
The objection on the ground of lack of rele
vance was predicated upon (1) the admission by
the Attorney General that there was no pecuni
ary interest in the part of the Chairman, (2) that
the Attorney General did not attack the correct
ness of the order or finding of the Tribunal
which he construed as an admission that there
was no miscarriage of justice and (3) that the
Chairman did not influence the decision of the
other members of the Tribunal. As I understood
the ground of this objection to admissibility it
was fundamentally that the issue to be deter
mined was exclusively that of whether the
Chairman had participated in the making of the
decision. If that issue should be resolved by a
finding that the Chairman did so participate
then the admissibility of the evidence as to the
bias of the Chairman was material. It was not
admitted by the Attorney General that the
Chairman did not have a bias in fact or that the
circumstances of his association with the two
sheet glass manufacturers who were former cli
ents would not give rise to a reasonable appre
hension of bias. I therefore denied the objection
so put forward on the ground that the evidence
was irrelevant. It is relevant to the issue of bias
in fact and bias by way of the association
between Mr. Buchanan and his clients.
The other objection was that the evidence
came to the attention of the Attorney General
as a consequence of an inquiry under the Com
bines Investigation Act. It was submitted that
the tenor of that Act is that information
received during the course of the inquiry should
be treated as confidential and that the officers
of the two corporations were so assured by the
responsible officer conducting the investigation.
Counsel referred to section 10(1) of the Act
which authorizes the search for evidence rele
vant to the inquiry being conducted and that the
remittance of any material obtained to the
Attorney General under section 15 of the Act
must be for consideration of matters germane to
an offence under the Combines Investigation
Act exclusively. I have noted that section 27
provides that inquiries shall be conducted in
private unless the Chairman of the Commission
orders that they be conducted in public. It was,
therefore, submitted that the information was
obtained as confidential and that that confiden
tiality should not be breached by seeking to
introduce the evidence in a cause different and
unrelated to the Combines Investigation Act
even though it was being introduced by the
actual authors of the documents.
I suggested to counsel that even if the manner
of obtaining evidence was illegal or merely
unfair, that did not constitute a bar to the
admissibility of that evidence if relevant. Coun
sel readily conceded the correctness of that
proposition which is supported by the authority
of a long line of cases but it was the principal
thrust in his submission that the question to be
decided was whether that common law rule of
admissibility of such evidence was changed by
the Canadian Bill of Rights, S.C. 1960, c. 44.
By section 1(a) of the Canadian Bill of Rights
it is recognized and declared that there exists
the fundamental freedom of "the right of the
individual to ... enjoyment of property, and the
right not to be deprived thereof except by due
process of law".
By section 2(d) every law of Canada shall be
construed and applied as not to abrogate,
abridge or infringe any of the rights or freedoms
enshrined in section 1 and "no law of Canada
shall be construed or applied so as to ... (d)
authorize a court, tribunal, commission, board
or other authority to compel a person to give
evidence if he is denied counsel, protection
against self-crimination or other constitutional
safeguards".
The question therefore arises as to what is
included in the words "other constitutional
safeguards". As I understood the position of
counsel it was that "other constitutional safe
guards" included a person's "enjoyment of
property" no doubt in the sense that such prop
erty should not become evidence and that the
person should not be compelled to testify with
respect thereto. It was my view which I
expressed at the time the objection was made
that the Canadian Bill of Rights did not alter the
common law principle of the admissibility of
evidence in the circumstances above outlined.
In the first instance it is my view that none of
the witnesses were being deprived of the enjoy
ment of property, nor were any constitutional
rights being infringed. In any event the wit
nesses were required to testify by due process
of law. They were served with a subpoena
duces tecum to give evidence upon matters
within their personal knowledge. Accordingly I
permitted the evidence to be adduced.
It was a contention by the Attorney General
that the Chairman had an "actual bias". To
support that contention it must be proved that
there was a bias which did in fact influence the
result before it can serve as a ground of dis
qualification. In my opinion the evidence falls
far short of doing so.
Mr. Buchanan did make representations to a
number of government officials directed to
having the Order-in-Council exempting sheet
glass from dumping duty removed, to having
"float" and "plate" glass deemed to be a class
of goods made in Canada and to having a suffi
ciently high value for duty fixed so as to result
in a heavier dumping duty being imposed. These
representations were made prior to his appoint
ment to the Tribunal on January 1, 1969.
Mr. Buchanan did testify that subsequent to
January 1, 1969 he made no representations to
any governmental officials on behalf of his
former clients. For the reasons I have given
previously I have accepted this testimony.
He further testified that he made no represen
tations to any person respecting the matter of
material injury caused to producers of sheet
glass in Canada by the dumping of such product
in Canada which is the question that would
come before the Anti-dumping Tribunal for its
determination.
By a joint letter dated February 17, 1969,
addressed to the Deputy Minister of National
Revenue for Customs and Excise, Canadian
Pittsburgh Industries Limited and Pilkington
Brothers (Canada) Ltd. lodged a complaint of
dumping (Exhibit 5). In a letter dated February
7, 1969 from V. C. German to F. J. Doyle
(Exhibit 4) Mr. German referred to a telephone
conversation with Mr. Buchanan (it is not clear
who called whom) in which Mr. Buchanan
volunteered to review the complaint in its final
form and comment thereon before its submis
sion. Mr. Doyle agreed. Mr. Buchanan then
reviewed the letter and suggested three changes
by letter dated February 13, 1969 (Exhibit 20).
The three suggested changes made by Mr.
Buchanan, and which were adopted, were
merely changes in language and did not consti
tute a departure from the substance of the con
tent in the letter submitted to him.
By letter dated May 12, 1969 (Exhibit 8) the
Deputy Minister advised Mr. German that an
investigation had been initiated under section
13(1) of the Anti-dumping Act. Mr. German
forthwith telephoned Mr. Buchanan and
endorsed a notation of that fact and the sub
stance of the conversation on that letter. It was
to the effect (1) that Mr. Buchanan was pleased,
(2) that he said the Department would have to
review and develop its 1969 data which should
not take long, (3) that a third country value
would be set, (4) that a temporary finding of
dumping would be made and (5) that the matter
would then be referred to the Tribunal for a
ruling on injury "to make the whole thing legiti
mate". The choice of the words quoted was an
unhappy one since they bear a sinister implica
tion of connivance to make something legiti
mate which was illegitimate. The words were
Mr. German's whose qualifications are for
manufacturing glass rather than a precise use of
words. I doubt if Mr. Buchanan would have
used those words. To me this is merely an
outline and intelligent forecast of the proce
dures and events that would ensue.
There is an inter-office memorandum dated
July 23, 1969 with respect to a visit by Mr.
Buchanan's "colleagues", whom I ascertained
to be the other members of the Tribunal, to the
plants of the two manufacturers. The visit did
take place but Mr. Buchanan did not attend. Mr.
Gauthier testified that it was the invariable
custom for the Tribunal to visit the plants of
Canadian manufacturers of the goods which
were the subject of a dumping inquiry to famil
iarize the members with the industry involved.
There were other memoranda referring to
luncheon meetings with Mr. Buchanan during
which he informed the authors of the stage of
the investigation initiated by the Deputy
Minister.
In a memorandum dated August 18, 1969
(Exhibit 15) which records the substance of the
conversations at a luncheon meeting between L.
C. Bosanquet and Mr. Buchanan on August 14,
1969 there are statements which caused me
concern. The first one was to the effect that Mr.
Buchanan purportedly said that he felt that
there would be little difficulty in proving
material injury. The other is that he is reported
as stating that he was going to the Department
that day and would have a word with the offi
cers who were conducting the inquiry to
attempt to explain to them the facts of the glass
industry so they would draw the proper conclu
sion in arriving at their decision.
The question of material injury is the very
question that the Tribunal would be called upon
to decide. However, under section 13 of the
Anti-dumping Act the Deputy Minister must be
of the opinion that there is evidence of material
injury if he has not previously referred that
question to the Tribunal for determination
under subsection (3) of section 13. If the
Deputy Minister makes a preliminary determi
nation of dumping, then under section 16 the
question of material injury is determined by the
Tribunal subsequent to the preliminary determi
nation by the Deputy Minister. Therefore the
reference to "little difficulty in proving material
injury" would be a reference to satisfying the
Deputy Minister to that effect, but it is also
susceptible of the interpretation that Mr.
Buchanan had predetermined the question that
he might be required to decide.
As to the second statement attributed to Mr.
Buchanan by Mr. Bosanquet that he would
inform the officers of the Department of the
salient facts in order that they might make the
"proper conclusion in arriving at their decision"
it is at variance with the testimony of Mr.
Buchanan that he had made no representations
to departmental officers. Once again this is an
unhappy choice of words, but they were not
Mr. Buchanan's words. Even though the words
were designed for private reading there is a
sinister undertone to them. On the other hand
the statement is susceptible of the interpretation
that Mr. Buchanan would speak of the factors
to be utilized in determining the "normal value
for duty" but there is no evidence that Mr.
Buchanan did speak to those officers.
At this point I would mention that I perceive
there to be a difference between "actual bias"
which I construe to mean conduct suggesting
partiality because the judge has prejudged the
issue and "bias because of interest" which I
construe to mean an association with one of the
parties to a dispute. In either case in order to
disqualify the judge on that ground there must
exist a "real likelihood" or a "reasonable appre
hension", that the judge will not act impartially.
It has been repeatedly held that mere suspi
cion of bias will not suffice. Denning M.R. said
in Metropolitan Properties Co. (F.G.C.), Ltd. v.
Lannon [1968] 3 All E.R. 304 at page 310:
Nevertheless, there must appear to be a real likelihood of
bias. Surmise or conjecture is not enough.
These tests depend upon an appearance of bias
rather than its presence in actuality. Appear
ances dominate the tests whether arising out of
a connection between the judge and a party to a
dispute before him such as kinship, words or
conduct or otherwise.
Dysart J. summed up the law on this subject
when he said in Nichols v. Graham [1937] 3
D.L.R. 795 at p. 799:
The law is clear that no person shall act as a Judge in any
case in which he is accuser or prosecutor, or in which he
has, or may reasonably appear to have, any interest or bias
in favour of or against any party thereto. The inhibition
goes not only to the propriety of his acting, but to his very
capacity to act at all, so that if he does purport to act, his
judgment will be set aside as a nullity. This great principle
of our law applies to all cases without exception in which a
person is called upon to act judicially, and extends to every
member of the judicial tribunal, and to every judicial act.
It has been held in Re R. v. Jackson 125
C.C.C. 205 that "mere possession of a tentative
point of view in the case" is not sufficient to
disqualifying the judge possessing that view.
In Ex. p. Wilder (1902) 66 J.P. 761, it was
held that because a judge was notoriously pre
judiced against automobiles he was not
debarred from trying a motor-car case.
In Re Doherty and Stewart 86 C.C.C. 253;
[1946] O.W.N. 752, it was held that a magis
trate who had expressed strong views in other
proceedings before him on a matter akin to the
charge upon which an applicant for prohibition
stood accused before him did not disqualify the
magistrate.
In Regina v. Pickersgill (1971) 14 D.L.R. (3d)
717, Mr. Justice Wilson after an extensive
review of the authorities concluded as a ques
tion of fact that there was not a real likelihood
of bias on the part of the Chairman of the
railway transport committee of the Canadian
Transport Commission who, some two months
before the hearing of an application to discon
tinue the service of a passenger train, had made
a widely publicized speech expressing the view
that Canada's new transportation policy, as
expressed in the National Transportation Act,
was to permit railways to operate efficiently
and at a profit by ending uneconomical services
which were no longer in the public interest.
After a careful analysis of the speech Mr. Jus
tice Wilson concluded that reasonable people
would not conclude from that speech that the
speaker had prejudged the fate of the passenger
service which was the subject of the application
before the committee and therefore he refused
to grant prohibition.
In the four immediately foregoing cases the
ratio was that despite general views expressed it
must be presumed that the judge will recognize
• that to perform his duty properly "he must
remain constantly in the grip of his judicial
function, and not yield to his preconceptions, or
become captive to his unexamined and untested
preliminary impressions"—per Freedman J.A.
in Re Golliah and Minister of Citizenship and
Immigration (1967) 63 D.L.R. (2d) 224. In short
that he would not be precluded from bringing to
bear upon the facts and issues before him an
impartial and judicial mind in disregard of views
he has expressed.
I, therefore, apply that test to Mr. Buchanan.
What he had done was to advocate the views of
his clients on matters affecting their interests.
That does not necessarily make those views his
views, nor does it necessarily mean that he
accepted the validity of those views. After
having given very careful consideration to the
matter I have come to the conclusion for the
reasons I have expressed above that Mr. Bucha-
nan did not have an "actual bias" in the sense
that I construe that term.
On the other hand I have come to the oppo
site conclusion on the question whether Mr.
Buchanan had such an interest in the matter by
reason of his association with his former clients
as gives rise to a reasonable apprehension of
bias in favour of his former clients.
I do not accept the submission by counsel for
Mr. Buchanan that the relationship between Mr.
Buchanan and his clients was with respect to a
subject matter different from that which the
Tribunal would decide.
In 1967 Mr. Buchanan made representations
on behalf of his clients directed to the removal
of the exemption of sheet glass from liability
for dumping duty. He referred to the inroads in
the Canadian market made by foreign exporters
to the detriment of his clients. It is implicit in
those representations that his clients suffered
material injury. When the exemption was
revoked Mr. Buchanan then throughout 1968
continued to make representations on behalf of
his clients directed to fixing a sufficiently high
value for duty under the Customs Tariff to
enable his clients to effectively compete in the
Canadian market with foreign exporters. Again
it is implicit that the competition from those
sources prejudicially affected the Canadian
manufacturers which is in itself material injury.
It is true that under the Customs Tariff if it
were established that the export or actual sell
ing price to an importer in Canada is less than
the fair market value or value for duty the
goods shall then be subject to dumping duty.
There was no requirement that there should be
an express finding that Canadian producers of
like goods suffered material injury.
The purpose of the legislation is obviously to
afford protection to Canadian producers from
foreign competition by the unfair means of the
product being sold in Canada for less than it is
sold in the home market. The logical inference
is that Canadian producers are being materially
injured by being deprived of a share in the
Canadian market by the tactics of foreign pro
ducers in dumping goods. The clear object of
the imposition of dumping duty is to remedy
that condition so that Canadian producers can
compete in the Canadian market on an equal
basis of price.
The underlying objective of the whole exer
cise conducted by Mr. Buchanan on behalf of
his clients was that the net result would be the
imposition of a high dumping duty on sheet
glass made by foreign producers and all
representations were directed to that end.
Upon the Anti-dumping Act coming into
force there was in reality no change in the basic
purpose. The changes were procedural in
nature. There is dumping if the normal value of
the goods exceeds their export price. Rules are
outlined in the Act to establish the normal
value. It is still advantageous to the Canadian
producer to establish a high normal value so
that the dumping duty will be correspondingly
high. As Mr. Buchanan pointed out to his
former clients as is indicated by the endorsation
on Exhibit 8, that all the Department would
have to do would be to review and update the
data it had in 1969. There was the additional
condition precedent to the imposition of dump
ing duty that the Tribunal must find that the
dumping of goods has caused, is causing or is
likely to cause material injury to Canadian pro
ducers of like goods or that it has materially
retarded or is materially retarding the establish
ment of production of such goods in Canada.
Whereas that fact was necessarily inferred from
the fact of dumping under the previous legisla
tion, now it must be found as a fact by the
Tribunal that such is the result. However the
underlying purpose remains the same. The ulti
mate result will be that dumping duty is
imposed. It was the original purpose of Mr.
Buchanan's clients to secure the imposition of
dumping duty on sheet glass under the previous
legislation and that remained their basic pur
pose under the new legislation. All representa
tions made under the former legislation and
under the new legislation were directed to
achieving that ultimate result.
All representations made are so inextricably
devoted to the same end that I fail to follow
how Mr. Buchanan's representations on behalf
of his clients can be said to be related to a
different subject matter bearing in mind that
they were made with the imposition of a high
dumping duty as the objective.
It is for these reasons that I have rejected the
submission of counsel for Mr. Buchanan in this
respect.
In support of my conclusion that there would
be a real apprehension of bias on the part of
Mr. Buchanan in favour of his former clients by
reason of that association with them, raised in
the minds of reasonable men, I would refer to
authorities illustrative of the nature and degree
of business and personal relationships and the
kind of facts which have raised such doubts of
impartiality in a member of a tribunal which
conducted the adjudication.
First I would refer to the oft-quoted case of
Rex v. Sussex Justices [1924] 1 K.B. 256. There
the Justices heard a summons against the driver
of a motor-cycle allegedly driving in a danger
ous manner. The deputy clerk was the brother
and partner of a solicitor who was acting in a
civil claim for damages against the driver. At
the conclusion of the evidence when the Jus
tices retired (obviously to consider their deci
sion) the deputy clerk retired with them, as was
customary, taking his notes of the evidence in
case the Justices desired to be advised on any
point of law. In fact the Justices came to their
decision to convict without consulting the
deputy clerk. Lord Hewart C.J. said the ques
tion was whether the deputy clerk was so relat
ed to the case in its civil aspect as to be unfit to
act as clerk to the Justices in the criminal
matter. It was held that he was and Lord
Hewart then coined his famous words "it is not
merely of some importance but is of fundamen
tal importance that justice should not only be
done, but should manifestly and undoubtedly be
seen to be done."
The relationship of solicitor and client
between a member of a tribunal and one party
before it, either existing or previously existing
has been held to justify an apprehension of
bias. See Ghirardosi v. Minister of Highways
(British Columbia) [1966] S.C.R. 367.
In the Ghirardosi case an arbitrator in an
expropriation matter was engaged as solicitor
by the Department in an expropriation of land
some 250 miles distant from the land which was
the subject of the arbitration. Cartwright J. (as
he was then) said at page 371:
... but the disqualification arises from the circumstance
that, ... the confidential and mutually beneficial relation
ship of solicitor and client existed at all relevant times ..
In McKay v. Campbell 36 N.S.R. 522, an
examiner under the Collections Act was prohib
ited from examining a debtor because he was
the solicitor of another creditor on the ground
that the examiner would have such an interest
in the result of the examination that he would
not be absolutely free from the suspicion of
bias or interest.
In Re Public Schools Act (1962) 38 W.W.R.
106, a solicitor had acted in a dispute between a
teacher and a school board before an investigat
ing committee. He was disqualified from sitting
as an arbitrator in a subsequent arbitration
because of the knowledge that he had gained in
his capacity in the prior dispute and because
there was the possibility that he could not free
his mind of the inevitable partisanship of the
advocate.
In Sims v. Seller [1927] 2 D.L.R. 251, it is
stated that a person who has been actively
interested in previous litigation between the
parties should not be appointed an arbitrator.
In Cormee v. C.P.R. (1888) 16 O.R. 639, the
fact that pending a reference and before a find
ing a member of a board received an intimation
that the solicitorship of the defendant's compa
ny would be offered to him and after the finding
the offer was made and accepted, was held fatal
to the adjudication. It was said "In a matter of
so tender a nature, even the appearance of evil
is to be avoided".
In Flin Flon Division Association v. Flin Flon
School Division (1964) 49 W.W.R. 426, the
relationship of auditor to a party was held to
constitute bias.
In Szilow v. Szaze [1955] S.C.R. 3, where an
arbitrator was jointly engaged in a real estate
transaction with a party to arbitration some six
months prior to the arbitration which, because
of its continuing nature, called for a relationship
in management and consultation it was held to
be an association which from its inevitable per
sonal intimacy and the mutual interests
involved, was sufficient to disqualify the arbi
trator by reason of bias.
In several statutes to which I was referred it
is prescribed that a certain time having elapsed
from the termination of a relationship until one
party to that relationship takes part in an
adjudication to which the other person in the
relationship is a party, will remove disqualifica
tion.
The period varies from six months to two
years. This indicates that a time lapse will serve
to remove any reasonable apprehension of bias.
But Mr. Buchanan, after having terminated his
formal relationship with his clients, still held
himself available to and did give them the bene
fit of his advice, albeit without fee, throughout
the year 1969 when he had been appointed
Chairman of the Anti-dumping Tribunal on
January 1, 1969 and even into 1970 so that the
gratuitous relationship of adviser still persisted,
but it was understood that Mr. Buchanan would
not make representations on their behalf.
Furthermore Mr. Buchanan himself recog
nized that he was disqualified from sitting at the
hearings to be conducted by the Tribunal well in
advance thereof and even before it was a cer
tainty that there would be a reference to the
Tribunal. The preliminary determination of
dumping was made by the Deputy Minister on
December 15, 1969. A conversation between
Mr. Buchanan and Mr. German is recorded by
Mr. German in a memorandum dated October
27, 1969 (Exhibit 11) in the following language:
He spoke to great length about the propriety of his being
involved with the hearings and finally announced that he
definitely would not be present, in fact intended to be
somewhere in the Caribbean on vacation. He felt that this
was best in our interests for an exposure of his past position
with our industry in the court proceedings could be quite
damaging.
Mr. Buchanan disclosed to the other mem
bers of the Tribunal his association with
Canadian Pittsburgh Industries Limited and
Pilkington (Brothers) Canada, Ltd. the complai
nants respecting the dumping of sheet glass
which led to the initiation of the investigation
by the Deputy Minister and ultimately to the
reference to the Tribunal. He made no secret of
that relationship. He informed the other mem
bers that he was disqualified from sitting at the
hearings conducted by the Tribunal on Febru-
ary 2 to 6, 1970 and he did not sit thereat.
It is for these reasons that I have concluded
that Mr. Buchanan by reason of his association
with his clients had a personal interest in the
proceedings of such a kind as must raise a
reasonable apprehension of bias in their favour.
I fail to follow that however conscientiously
Mr. Buchanan may have striven to be an impar
tial Chairman of the Tribunal, if he had sat at
the hearing, how any party thereto would have
anything but reasonable apprehension of bias
on his part by reason of the knowledge he had
acquired from his relationship with his clients
and an accordingly inevitable apprehension of
partisanship.
The further ground upon which the Attorney
General relies for questioning the order or find
ing of the Anti-dumping Tribunal is that Mr.
Buchanan participated in the making of the
decision despite the undisputed and conclusive
ly established fact that he was not present at the
hearings conducted by the Tribunal on Febru-
ary 2 to 6, 1970 at which evidence was adduced
and argument was advanced on behalf of the
interested parties.
To me it appears axiomatic that no person is
qualified to render a decision on any matter
with respect to which he has not heard the
evidence pertaining thereto and the rival con
tentions advanced with respect to the matter in
issue and the significance of the evidence and
that a decision so rendered is invalid.
Authority for such proposition, if any be
needed, is found in Rex v. Huntingdon Confirm
ing Authority [1929] 1 K.B. 698.
In that case the members of the Confirming
Authority who heard the evidence at a first
hearing differed from those at a second meeting
at which a decision was made to confirm a
licence in that members who had not heard the
evidence at the first meeting were present at the
second meeting and participated in making the
decision.
Lord Hanworth said at page 714:
One more point I must deal with, and that is the question
of the justices who had not sat when evidence was taken on
April 25, but who appeared at the meeting of May 16. We
think that the confirming authority ought to be composed in
the same way on both occasions: that new justices who
have not heard the evidence given ought not to attend. It is
quite possible that all the justices who heard the case and
the evidence on April 25 may not be able to attend on any
further hearing, but however that may be, those justices
who did hear the case must not be joined by other justices
who had not heard the case for the purpose of reaching a
decision, on this question of confirmation.
Romer J. who agreed with Lord Hanworth
added at page 717:
... Further, I would merely like to point this out: that at
that meeting of May 16 there were present three justices
who had never heard the evidence that had been given on
oath on April 25. There was a division of opinion. The
resolution in favour of confirmation was carried by eight to
two, and it is at least possible that that majority was
induced to vote in the way it did by the eloquence of those
members who had not been present on April 25, to whom
the facts were entirely unknown.
The two foregoing extracts were referred to
with approval by Cartwright J. in Mehr v. Law
Society of Upper Canada [1955] S.C.R. 344. In
that case at a hearing before the Discipline
Committee of the Law Society on September
18 six members were present. The same six
members and two additional members were
present at a hearing on October 2. At a hearing
on November 19 the eight members who had
been present on October 2 were present and
one additional member was present. There was
nothing to indicate that all nine did not take part
in deciding on the report to be made by the
Committee to Convocation. Only six members
were present at all three meetings. Two other
members were present at two meetings having
been absent from the first meeting and one
member was present at only one and he was
absent from the first two meetings.
Cartwright J. said at page 351:
While it is not necessary to express any final opinion as
to whether such course would render the report invalid I am
much impressed by the reasoning of Lord Hanworth and
Romer J. in Rex v. Huntingdon Confirming Authority.
He then quoted the passages which I have
quoted above.
In Re Ramm (1957) 7 D.L.R. (2d) 378,
MacKay J.A. quoted the foregoing extracts
from the Huntingdon (supra) case and the Mehr
(supra) case that I have quoted and said at page
382:
What is objectionable is their presence during the consul
tation when they were in a position which made it impossi
ble for them to discuss in a judicial way, the evidence that
had been given on oath days before and in their absence and
on which a finding must be based.
A statement to like effect was made by Ver-
chere J. in Hughes v. Seafarers' International
Union (1962) 31 D.L.R. (2d) 441.
Section 28 of the Anti-dumping Act provides
that the Chairman of the Tribunal may direct
that evidence relating to any hearing before the
Tribunal be received, in whole or part by a
member of the Tribunal, but it is further provid
ed that in the event of such direction being
made the member who heard the evidence shall
make a report thereon to the Tribunal.
This section does not detract from the princi
ple that the person who makes a decision must
have been present at the hearings relating there
to. What it does do is to provide for a means
whereby one member of the Tribunal may hear
evidence on behalf of all members but those
members are apprised of that evidence by the
expedient of the report thereon by the member
who heard the evidence.
But this was not the procedure adopted by
the Chairman of the Tribunal. He assigned the
Vice-Chairman, Mr. Gauthier and the remaining
member Mr. Barrow to sit, at the hearings and
Mr. Gauthier presided. The Chairman was
authorized to do this by section 23(1)(a) of the
Anti-dumping Act which provides that the
Chairman "has supervision over and direction
of the work of the Tribunal including (a) the
apportionment of work among the members
thereof and the assignment of members to sit at
hearings of the Tribunal and to preside
thereat, ..."
In my opinion therefore Mr. Buchanan was
disqualified from participating on the decision
of the Tribunal by reason of his absence from
the hearing.
In the result I have found that the Chairman
was disqualified from participating in the
making of the decision of the Tribunal for the
twofold reasons, that
(1) his relationship with the two Canadian
Corporations whose complaint in writing led
to the institution of proceedings under the
Anti-dumping Act gave rise to a reasonable
apprehension of bias in their favour and
(2) he was not present at the hearing.
These findings do not resolve the matter.
There still remains for determination the ques
tion which I conceive to be crucial.
That question is: Did the Chairman partici
pate in the making of the decision by the Tribu
nal? If he did then it follows that by reason of
the twofold disqualifications of the Chairman
that I have found to exist, the decision of the
Tribunal must be quashed. Viscount Cave said
in Frome United Breweries Co. v. Bath Justices
[1926] A.C. 586 at p. 590:
... and it has been held over and over again that, if a
member of such a body is subject to a bias—whether
financial or other—in favour of or against either party to a
dispute or is in a position that a bias must be assumed, he
ought not to take part in a decision or even sit upon the
tribunal.
It is also clear that if one member of a tribu
nal is biased then the tribunal itself is infected
even though the other members are without
bias. (See The Queen v. Meyer (1875) 1 Q.B.D.
173 and Frome United Breweries Co. v. Bath
Justices (supra) both referred to in Ex parte
Hall [1963] 2 O.R. 239.)
The point next arises whether the statute
creating the tribunal provides, or by necessary
implication requires that a member, who would
be disqualified at common law from sitting and
participating in the decision because of bias,
shall or must sit and if so then that person is
qualified to sit regardless of bias provided that
the bias is the kind contemplated by the statute.
Lord Sumner in Frome United Breweries Co. v.
Bath Justices (supra) said at p. 616:
If bias in such a case was inevitable, of course the Act, in
making them (certain justices who had an interest in the
proceedings) members of the compensation authority would
have made that authority pro tanto a biased body, whose
conduct could not be impugned on that ground.
Closely akin to the foregoing principle is the
doctrine of ex necessitate. A member of a tribu
nal who is subject to disqualification at
common law "may be required to sit if there is
no other competent tribunal to do so or if a
quorum cannot be formed without him. Then
the doctrine of necessity applies to prevent a
failure of justice."
In The Judges v. Attorney General of Sas-
katchewan [1937] 2 D.L.R. 209, the judges of
Saskatchewan were obliged to determine the
constitutionality of legislation requiring them to
pay income tax on their salaries. Similarly my
brother Noël was obligated in Martel v. M.N.R.
[1970] Ex.C.R. 68 to determine if additional
salary paid to judges as compensation for
extrajudicial duties they were called upon to
perform and for incidental expenditures that the
execution of their office required of them was
exempt from income tax. He held it was not. In
these instances there was no other competent
authority to decide the issues.
n
With these considerations in mind I have
reviewed the Anti-dumping Act to ascertain if
the provisions thereof require the Chairman to
take part in the decision either by virtue of his
office or to make up a quorum.
Mr. Buchanan was apparently of the opinion
that he was obliged to do so as at October 27,
1969 because Mr. German in his memorandum
of that date (Exhibit 11) recorded a telephone
conversation with Mr. Buchanan as follows:
He also stated that he would be home from vacation in
time to participate in the post hearing deliberation and
decision. It appears to be a little known fact that in with
drawing from participation in the actual hearings, he cannot
withdraw from participation in the decision making.
My review of the statute does not disclose any
basis for holding that opinion.
Section 23(1)(a) permits of the assignment of
members to sit at hearings and to preside
thereat.
The Tribunal as constituted consisted of three
members.
The Act does not make provision for a
quorum but section 21(2) of the Interpretation
Act, R.S.C. 1970, c. I-23 provides that where
any enactment establishes a board, court or
tribunal consisting of three or more members at
least one-half of the number of members pro
vided for by the enactment, if that number is a
fixed number or if the number of members is
not a fixed number but 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, shall constitute a quorum.
Section 21(1) of the Anti-dumping Act pro
vides for a Tribunal consisting of not more than
five members. Three members were appointed
by Order-in-Council, P.C. 1969-1 dated January
3, 1969 (Exhibit 3). Therefore by virtue of
section 21 of the Interpretation Act two mem
bers of the Tribunal constitute a quorum.
Even if no quorum had been provided for
then section 21(6) of the Anti-dumping Act
provides that in the absence or incapacity of
any member the Governor in Council may
appoint a temporary substitute. If it was consid
ered necessary that three members of the Tribu
nal should participate in the decision, then the
disqualification of the Chairman by reason of
bias could have been resolved by resort to
section 21(6) and a temporary substitute
appointed as was done in a case cited by Frank
in an article on "Disqualification of Judges" in
1947, 56 Harvard Law Review. A case came
before the Supreme Court of Texas involving a
male organization of which all the judges of the
court were members. The Governor solved the
problem by appointing an ad hoc court consist
ing of three females.
The problem as to what members were
required to sign the finding of the Tribunal
caused concern to the members, Mr. Gauthier
and Mr. Barrow immediately following the con
clusion of the hearing on February 6, 1970.
Accordingly the Secretary of the Tribunal, by
letter dated February 11, 1970 (Exhibit B1)
requested an opinion on the point from Mr. J. T.
Gray, the Solicitor to the Treasury. In that letter
he posed the problem as follows:
The Chairman assigned the two members "to sit at the
hearing and to preside thereat" pursuant to Section 23(1)(a).
The question has arisen whether the provisions of Section
28 are operative under these circumstances, although this
section does envisage a report by a member of the Tribunal
who has taken evidence.
In your opinion, is it required of the two members to
prepare a written report for submission to the Chairman and
to each of the parties (subsection (2) of Section 28)? It is
not clear to us that this provision would apply under the
conditions stipulated in subsection (1)(a) of Section 23.
Mr. Gray replied by letter dated February 12,
1970 (Exhibit B2) as follows:
As requested by you, I have reviewed the provisions of
the Anti-dumping Act and Regulations. In my opinion, sec
tion 28 of the Act does not apply in the circumstances
described in your memorandum. I understand that in this
case two members of the Tribunal conducted the hearing
and took the evidence. In my view, it is only when one
member of the Tribunal is designated to take the evidence
that section 28 applies.
I was surprised to note that the Act did not specify a
quorum for the Tribunal. The provision in the Act authoriz
ing the chairman to allocate members of the Tribunal to
conduct hearings and carry out other duties would raise an
inference that less than the total number of members could
validly act for the complete Tribunal. On the other hand, the
fact that no quorum has been specified casts some doubt on
the validity of a decision of the Tribunal participated in by
less than all of the members. I think perhaps the safest
practice would be to have all of the members sign the
formal document embodying the decision. Of course, if one
member dissents, the decision would have to indicate this. I
note the Act authorizes the Tribunal to adopt rules of
procedure but I entertain some doubt that this authorization
would permit the Tribunal to fix its own quorum. It is
unusual to create a tribunal of this type without specifying a
quorum in the Act and it seems to me that this is a matter
which might be considered the first time the Act is
amended.
I am in agreement with the opinion expressed
by Mr. Gray that section 28 of the Anti-dump
ing Act does not apply to the circumstances
prevailing in this matter and as outlined to Mr.
Gray. The Chairman did designate the two other
members to conduct the hearing by virtue of the
authority vested in him by section 23. He did
not invoke the procedure in section 28 for that
would be tantamount to his participating in the
hearing by being a recipient of the report of the
member designated by him. It was Mr. Bucha-
nan's firm conclusion that he should not be
present at the hearings because of his relation
ship of consultant to the complainants. I com
mend his discretion in this respect. The Inter
pretation Act provides that the singular includes
the plural unless a contrary intention appears.
The language of section 28 clearly contemplates
that only one member of the Tribunal may be
directed to take evidence, not two.
Mr. Gray then considered the question of
quorum. He concluded that since no quorum
was provided in the statute doubt was cast on
the validity of a decision of the Tribunal par
ticipated in by less than all the members. He
therefore expressed the view that "the safest
practice would be to have all the members sign
the formal document embodying the decision."
I am in disagreement with the advice given by
Mr. Gray in this respect. If the signing of the
formal document embodying the decision con
stitutes participation in the decision, (and there
is authority to the effect that it does which I
shall consider later) then the advice that a
member who did not hear the evidence, a fact
which was made known to Mr. Gray in the
letter of the Secretary requesting his opinion,
should sign the decision would be in contraven
tion of the principle enunciated in Rex v. Hunt-
ingdon Confirming Authority (supra) that those
who had not heard the evidence ought not to
take part in making the decision. It is possible
that Mr. Gray was of the opinion that "signing
the formal document embodying the decision"
did not amount to participation in the making
thereof but he does not so state.
In fairness to Mr. Gray I should point out that
the Secretary did not mention that the Chair
man refrained from attending the hearings
because of his interest in the matter. This fact
was known to the Secretary who was a layman
and may not have appreciated the significance
of this circumstance. Had Mr. Gray been alert
ed to this fact, as I think he should have been,
he would have directed his mind to the problem
so raised.
Mr. Gray countermanded the opinion
expressed by him in his letter of February 12,
1970 by a letter dated February 18, 1970
(Exhibit B3) which reads as follows:
This will confirm my telephone conversation concerning
the opinion I provided you on February 12th. In giving the
opinion set out in the second paragraph of my memoran
dum, I overlooked section 21 of the Interpretation Act
which creates a quorum in the case of boards, courts,
commissions or other bodies where no quorum is provided
for in the legislation. The general rule is that at least
one-half of the number of members in office constitutes a
quorum. In the case of the Anti-dumping Tribunal, a
quorum would consist, under this rule, of two members. If
the Tribunal were increased to five members, the quorum
would consist of three members. In the case you referred to
me, the two members who took the evidence could give a
decision on behalf of the Tribunal.
His conclusion is "the two members who took
the evidence could give a decision on behalf of
the Tribunal".
I have carefully read both letters written by
Mr. Gray and I do conclude that in his second
letter he retracted the opinion he expressed in
his first letter, but I reached that conclusion
only after subjecting the language used in both
letters to a minute scrutiny. Bearing in mind
that the recipient of the letters was a person
without legal qualifications as were the persons
on whose behalf the opinion was sought, I think
that Mr. Gray's second letter should have been
couched in express, precise and unequivocal
language. It should have stated that the two
,
members who heard the evidence must make
the decision to the exclusion of the Chairman
and not on behalf of the Tribunal because they
were the Tribunal and that only they must sign
the formal document embodying the decision.
While by implication Mr. Gray must have meant
to retract his previous advice that "the safest
practice would be to have all the members sign
the formal document embodying the decision"
he did not do so in specific terms. Accordingly
the letters were susceptible of the interpretation
by laymen that the advice given about signing
the formal instrument still stood. That was, in
fact, the interpretation given to the letters by all
three members of the Tribunal. But again I
would emphasize that the letter of the Secretary
only asked Mr. Gray's opinion as to the applica
bility of section 23 and 28 of the Act and he
was not apprised of the problem which in real
ity faced the members of the Tribunal which
was that Mr. Buchanan was precluded from
sitting at the hearings and participating in the
decision for the reasons I have indicated and of
which problem they should have been aware or
at least suspected and sought advice on that
specific problem rather than putting their
request for a legal opinion in general rather than
specific terms. There was no indication to Mr.
Gray that he should have sought further infor
mation. He advised only upon what he was
asked.
Mr. Buchanan was on vacation during the
hearings conducted by the other members of
the Tribunal but he returned to the Tribunal
offices before an order or finding had been
made.
It is admitted that he did not influence the
other members nor did he attempt to do so. This
is at variance with the implication in the lan
guage used by Mr. German in his memorandum
of October 27, 1969 (Exhibit 11) where he said
"He indicated clearly that his compatriots have
been well primed to hear the case."
Mr. Gauthier and Mr. Barrow collaborated in
writing their finding or order. It was their joint
effort and it was done without any reference to
or consultation with Mr. Buchanan. They went
through five drafts, the fifth draft being the
final one.
Mr. Gauthier had developed a respect for Mr.
Buchanan's facility in the use of the English
language and he asked Mr. Buchanan to read
the final draft for the purpose of obtaining Mr.
Buchanan's suggestions for improvement of the
phraseology but he did not invite Mr. Buchanan
to comment on its substance. Mr. Buchanan did
so and he refrained from commenting on the
substance. The draft was compared with the
final order and Mr. Buchanan accepted respon
sibility for three very minor changes in words,
grammar or construction. For example he sug
gested the replacement of the word "dilemma"
by the word "difficulties" which was a distinct
improvement and was accepted, he noted an
incorrect use of the plural for the singular
which was changed and he also corrected a split
infinitive.
In the penultimate paragraph the finding of
the Tribunal stated, "Accordingly, the Tribunal
orders that anti-dumping duty be assessed
against dumped imports of transparent sheet
glass . .. entered into Canada on or after March
15, 1970".
Mr. Buchanan was of the opinion that under
section 16 of the Anti-dumping Act the Tribu
nal's jurisdiction is limited to determining if
material injury had been caused to Canadian
producers. If the Tribunal finds in the affirma
tive then the dumping duty is imposed by the
Deputy Minister. He, therefore, felt, with jus
tification, that for the Tribunal to "order" the
imposition of a dumping duty was exceeding its
jurisdiction. Although he held that opinion, he
did not suggest that the paragraph should be
deleted, or its language appropriately revised or
even mention to the other members his reserva
tions as to the propriety of the paragraph
because as he stated, that would be a change in
substance and "it was their decision".
When the fifth draft was revised and com
pleted in its final form on March 13, 1970 it
was presented to him for his signature. The
recollections of the witnesses were vague as to
who presented the document to Mr. Buchanan
for signature. It may have been the Secretary,
Mr. Gauthier or it may have been sent to him.
Whoever presented the document to him for
signature or caused it to be presented to him,
either the Secretary or Mr. Gauthier its presen
tation was made by reason of acceptance by
them of the advice of Mr. Gray in his letter of
February 12, 1970 that "the safest practice
would be to have all of the members sign the
formal document embodying the decision."
Mr. Buchanan had also seen the correspond
ence from Mr. Gray. There is no question that
all three members of the Tribunal as well as the
Secretary were under the impression that Mr.
Gray's advice was that all three members of the
Tribunal must sign even if one of the signatories
had not sat at the hearings or participated in
making the decision.
This was the first time the problem arose
because at all previous references all three
members had sat and made the decision.
This advice by Mr. Gray may have coincided
with an opinion held by Mr. Buchanan as early
as October 27, 1969 because Mr. German
indicated in his memorandum of that date
(Exhibit 11) that Mr. Buchanan had informed
him "It appears to be a little known fact that in
withdrawing from participation in the actual
hearing, he cannot withdraw from participation
in the decision making."
Mr. Buchanan therefore signed the document
dated March 13, 1970 which was presented to
him for that purpose.
I am satisfied upon the evidence that Mr.
Buchanan did not actually participate in the
making of the decision of the Tribunal other
than by signing the document which was pre
sented to him.
The second sheet of the finding lists the
membership of the Tribunal. It identifies the
Chairman by name and the two other members
by name, and includes a reference to the Secre
tary and Director of Inquiries by name in a
position under a title being the words, "Anti-
dumping Tribunal". There is also included on
the bottom of the sheet the words "Address all
communications to The Secretary, Anti-dump
ing Tribunal, Justice Building, Ottawa, Cana-
da". The third page begins with the words
"Finding by the Anti-dumping Tribunal", but no
reference is made to the members of the Tribu
nal who made the finding.
This second sheet standing by itself is sus
ceptible as being informative only. It identifies
the membership of the Tribunal as constituted
by the Order-in-Council. It also includes the
Secretary who is not a member of the Tribunal
but an officer of it. This seems to be the intend
ed significance of the sheet. There is also a
further possible interpretation that it identifies
the membership of the Tribunal which took part
in the hearing and decision particularly since
the members who actually did so are not any
where identified and the finding is described as
that of the Tribunal. This is contradicted some
what by the inclusion of the Secretary in a
manner which may infer that he is part of the
constitution of the Tribunal.
During the course of the hearing of the notice
of motion I expressed the view that the inclu
sion of this second sheet in the form and
manner in which it was composed was bad
practice. With the benefit of hindsight I still
adhere to that view particularly since the text of
the finding does not identify the participating
members. On balance however I have conclud
ed that the sheet is innocuous.
The question is, did Mr. Buchanan by signing
the document presented to him participate in
the finding of the Tribunal.
The question of a disqualified member of a
committee signing a report came before Ver-
chere J. in Hughes v. Seafarers' International
Union (supra).
The facts applicable to this question are set
out in the first paragraph of the headnote which
reads as follows:
Plaintiff was charged with breach of defendant trade
union's constitution and a hearing was held by a trial
committee elected at a meeting of the union. After two
sittings of the committee, one member could no longer
attend and although the union constitution provided that a
majority of the committee should constitute a quorum, and
although there was no provision for filling a vacancy once a
trial had begun, a special meeting of the union elected a
replacement. The minutes of the two sittings were brought
to the attention of the new member, who then sat with the
committee, took part in consideration of the charges and
signed the majority report recommending plaintiff's expul
sion from the union.
The relevant statement of Verchere J.
appears at page 446 where he said,
... Here it is obvious that Clarke signed the report, and it
must therefore, I think, be presumed that he participated in
the final deliberations of the Committee.
I fail to follow that, when a member of a
Tribunal affixes his signature to a finding, it can
be said that he did not adopt the finding as his
own. Therefore if the finding should come to
the attention of an interested person in the
ordinary course, with the signature of a member
thereon or a clear indication that his signature
was affixed, then that person is entitled to
assume that the member participated in making
the finding.
Counsel for Pilkington Brothers (Canada)
Ltd. contended that the Attorney General was
without status to bring the application herein.
The basis of his contention was a comparison of
sections 18 and 28 of the Federal Court Act.
Section 18 reads as follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohi
bition, writ of mandamus or writ of quo warranto, or
grant declaratory relief, against any federal board, com
mission or other tribunal; and
(b) to hear and determine any application or other pro
ceeding for relief in the nature of relief contemplated by
paragraph (a), (including any proceeding brought against
the Attorney General of Canada), to obtain relief against
a federal board, commission or other tribunal.
Section 28 reads as follows:
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.
Counsel pointed out that section 28(2) con
tains a specific authorization to the Attorney
General to make an application respecting the
matters covered by section 28(1) which is that
the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside
a decision or finding on the grounds that the
tribunal failed to observe the principles of natu
ral justice, acted beyond its jurisdiction,
declined to exercise its jurisdiction, erred in law
or based its decision on an erroneous finding of
fact perversely or capriciously made.
It has been conceded by counsel for all per
sons represented that the present application is
a proceeding in the nature of certiorari.
Under section 18 the Trial Division has
exclusive original jurisdiction to hear and deter
mine matters of this nature. The order or find
ing herein was made prior to June 1, 1971.
However counsel pointed out that section
18(2) specifically provides by the inclusion of
the words, "including any proceeding brought
against the Attorney General of Canada", that
action may be brought against the Attorney
General but there are no corresponding words
in the subsection whereby the Attorney General
is authorized to bring such proceedings.
Fundamentally his submission is based on the
maxim of expressio unius est exclusio alterius.
The prerogative writs do not lie against the
Crown. It is for this reason that the Attorney
General is made subject to proceedings similar
thereto in section 18(2).
Under the common law there is no question
that the Attorney General may institute pro
ceedings by way of prerogative writs. Therefore
there was no necessity to include such a specif
ic authorization in section 18. Provision need be
made only for the reverse situation.
Further the jurisdiction in the Court of
Appeal is purely statutory. It is for that reason
that the statute provides that the Attorney Gen
eral may bring an application under section 28.
For these reasons I do not accept the submis
sion of counsel for Pilkington Brothers
(Canada) Ltd. that the Attorney General has no
status to bring the present application but on
the contrary I think that the Attorney General
has that status.
The writ of certiorari is a prerogative writ
which issues out of a superior court to which
recourse may be had to control the actions of
inferior jurisdictions.
The theory is that the Sovereign has been
appealed to by some one of his subjects who
complains of an injustice done him in an inferi
or court. The Sovereign thereupon says that he
wishes to be informed (i.e. certiorari which in
juridical Latin means "I inform, apprise, shew")
of the matter, and orders that the record be
transmitted into a court where he is sitting.
It is an unusual remedy limited to proceed
ings of a judicial character, not administrative,
and is not normally granted where there is a
right of appeal. It differs from an appeal. An
appeal is not a matter of common right and
must be granted by statute. On the other hand
certiorari is a common law remedy to review
the judicial proceedings of inferior tribunals and
can only be taken away by express words of a
statute.
There is at common law a discretion to grant
or refuse a writ of certiorari which discretion is
exercised on well defined principles established
at common law. If certiorari is a creation by
statute the discretion depends on the terms of
the statute.
Bearing in mind the theory underlying the
writ of certiorari it is not surprising to find that
it is well established by long standing authority
that an order for certiorari is granted as of
course on application of the Attorney General,
acting on behalf of the Crown, in all cases
where the court has jurisdiction over the sub
ject matter of the proceedings in the inferior
court. This does not mean that because the writ
is issued ex debito justitiae to the Attorney
General that the subject matter of the proceed
ings must not be decided upon the merits. It is
for this reason I have concluded that I have no
discretion to refuse to quash the order made by
the Anti-dumping Tribunal because of extrane
ous matters but rather whether the order is to
be vitiated depends upon a determination of the
merits of the matter upon the evidence appli
cable to the merits as adduced before me.
I am aware that S. A. de Smith in his admi
rable text entitled "Judicial Review of Adminis
trative Action" said at page 432:
In a number of cases it has been held that certiorari issues
as of course when applied for by the Attorney General on
behalf of the Crown. The rule is sometimes assumed to
extend to every application for certiorari made in this
manner. This assumption is intolerable: if it were correct,
the Crown would have, in effect, a right of veto over the
decisions of all inferior statutory tribunals, civil as well as
criminal, and could at any time lawfully divert the course of
administrative justice into such channels as it thought
convenient.
In the foregoing passage the learned profes
sor is not stating what the law is but what he
thinks it should be.
On the authorities the writ of certiorari issues
as of course when applied for by the Attorney
General. I do not think that the professor's
concern is warranted because, while the writ
issues as of course, whether the order of the
inferior court is quashed or not still remains, as
I have said above, for the Court to decide on
the merits, upon which full argument is heard.
In the order of Mr. Justice Heald dated May
11, 1972 he ordered,
that a copy of the decision of the Anti-dumping Tribunal
dated March 13, 1970, having been filed, no further return
is required of the Anti-dumping Tribunal at this time.
Amongst the material before Heald J. at the
time he made his order was the affidavit of
Charles Douglas Arthur who had been the
Secretary of the Tribunal on March 13, 1970
and appended to his affidavit as Exhibit A was
"a true Xerox copy of the decision of the Anti-
dumping Tribunal" dated March 13, 1970. It is
significant to note that the Secretary did not
swear that Exhibit A to his affidavit was a true
copy of the original finding filed as of record in
the Tribunal. On concluding page 12 the signa
ture of W. W. Buchanan appears as Chairman,
followed by the signatures of J. P. C. Gauthier
and B. G. Barrow as members and that of C. D.
Arthur, the Secretary, as witness.
In evidence before me the Attorney General
produced what purports to be a copy of the
finding of the Tribunal certified to be a true
copy by the present Secretary, Mr. D. M. Allan,
under the official seal of the Tribunal of which
seal I can take judicial notice under section 27
of the Anti-dumping Act. Here again it is sig
nificant to note that Mr. Allan merely certified
the document "to be a true copy" not to be a
true copy of the original document filed as of
record in the Tribunal.
Also under section 27 (supra) the Tribunal is
constituted a court of record.
In Wharton's Law Lexicon 14th ed., page
846, courts of record are defined as,
... those whose judicial acts and proceedings are enrolled
on parchment, for a perpetual memorial and testimony,
which rolls are called the Records of the Court, and are of
such high and supereminent authority that their truth is not
to be called in question.
It was conclusively established before me
that there were only two documents which were
signed by the Chairman and the other members
of the Tribunal, one the English version of the
finding and the other the French translation
thereof. Both of those documents forthwith
upon their completion were mailed by the
Secretary to the Deputy Minister of National
Revenue for Customs and Excise.
This was done, no doubt, by the Secretary in
purported compliance with section 16(5) of the
Anti-dumping Act which reads:
(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.
The subsection contemplates that a copy of
the order or finding shall be mailed to the
Deputy Minister and the other persons men
tioned in the subsection. It is not contemplated
that the original document signed by the mem
bers shall be forwarded to the Deputy Minister.
It is somewhat incongruous that a document
bearing the original signatures was not also sent
to the importer, the exporter and other persons
entitled to a copy excepting that the Deputy
Minister is the person who, on receipt of the
finding, must take further action, but the sub
section is clear that it is a copy that is to be sent
to the Deputy Minister. There is no justification
in the statute for sending an original document
to the Deputy Minister.
Mr. Gauthier testified that what was done in
this instance was the routine practice adopted
and followed by the Tribunal.
Mr. Doyle the president of Canadian Pitts-
burgh Industries Limited, testified that the find
ing forwarded to that Company did not bear
signatures of the Chairman and the members or
even that of the Secretary, nor did it bear
representations of those signatures or any indi
cation of who signed the finding. The conclud
ing page, which is page 12, was blank after the
ending of the text of the finding. He further
testified that twelve additional copies ordered
and received by him were identical to the one
forwarded to the Company, that is without sig
natures or representation of signatures.
Furthermore it was disclosed that when the
Attorney General requested a copy of the find
ing, certified by the Secretary under the seal of
the Tribunal, for use in these present proceed
ings, that the concluding sheet of the document
forwarded to the Deputy Minister was obtained
from him and included in the certified copy
which was produced in evidence as Exhibit 4.
The same thing applies to the copy of the find
ing appended to the affidavit of C. D. Arthur as
Exhibit A thereto.
A close visual examination of the upper left-
hand corner of page 12 of Exhibit 4 reveals that
there is a hole made by a punch which was
made to facilitate its placement on a spike for
filing. The preceding pages do not disclose simi
lar holes. Therefore Exhibit 4 is a composite
document, the first eleven pages being from one
source and page 12 from another. This confirms
the oral testimony as I have recited it.
Therefore it is readily apparent that neither
Exhibit 4 or Exhibit A to the affidavit of C. D.
Arthur is a certified copy of an original docu
ment filed of record in the Tribunal. The origi
nal documents were in the possession of the
Deputy Minister.
In Rex v. Nat Bell Liquors [1922] 2 A.C. 128,
Lord Sumner in advising His Majesty on behalf
of the Judicial Committee of the Privy Council
quoted Lord Cairns, speaking generally of certi-
orari (at p. 155):
... If there was upon the face of the order of the Court of
Quarter Sessions anything which showed that that order
was erroneous, the Court of Queen's Bench might be asked
to have the order brought into it, and to look at the order,
and view it upon the face of it, and if the Court found error
upon the face of it, to put an end to its existence by
quashing it.
Lord Cairns then said the order of the Sessions
was a speaking one, and an order which on
certiorari could be criticized as one which told
its own story, and which for error could accord
ingly be quashed.
Lord Sumner then said at pages 155 and 156:
It is to be observed on this passage, that the key of the
question is the amount of material stated or to be stated on
the record returned and brought into the superior Court. If
justices state more than they are bound to state, it may, so
to speak, be used against them, and out of their own mouths
they may be condemned, but there is no suggestion that,
apart from questions of jurisdiction, a party may state
further matters to the Court, either by new affidavits or by
producing anything that is not on or part of the record. So
strictly has this been acted on, that documents returned by
the inferior Court along with its record, for example, the
information, have been excluded by the superior Court from
its consideration. That the superior Court should be bound
by the record is inherent in the nature of the case. Its
jurisdiction is to see that the inferior Court has not exceed
ed its own, and for that very reason it is bound not to
interfere in what has been done within that jurisdiction, for
in so doing it would itself, in turn, transgress the limits
within which its own jurisdiction of supervision, not of
review, is confined. That supervision goes to two points:
one is the area of the inferior jurisdiction and the qualifica
tions and conditions of its exercise; the other is the observ
ance of the law in the course of its exercise.
The Nat Bell Liquors case is the leading case
and the principle established by it is that errors
of law are available as a basis for certiorari
when they are apparent on the face of the
record and not otherwise so that in order to
discover them it is not proper to stray outside
the record.
In the present matter the question arises as to
what constitutes the relevant record and what
kind of a defect is an error on its face and what
are errors of law so as to bar a superior court
from extending its inquiries.
It is well established that certiorari lies to
quash a decision where there is an error on the
face of the record and that it also lies to quash
an order that has been made without jurisdic
tion to do so and on the ground of bias or fraud.
In the present matter the Anti-dumping Tribu
nal would be without jurisdiction if a member
who was disqualified participated in making the
decision. For the reasons I have outlined above
Mr. Buchanan was disqualified from participat
ing because he was biased and he had not heard
the evidence. But, as I have also outlined
above, his participation in making the decision
is predicated upon his having signed the
decision.
As I have pointed out before, my brother
Heald by his order dated May 11, 1972 ordered
that because a copy of the decision of the
Tribunal had been filed, no further material was
required from the Tribunal at that time.
I am in complete agreement with Mr. Justice
Heald's conclusion in this respect but Mr. Jus
tice Heald had no reason to suspect that the
document which had been produced before him
was not a copy of the document preserved in
the archives of the Anti-dumping Tribunal but
was a composition of material retained by the
Tribunal and material which had been sent to
the Deputy Minister of National Revenue, Cus
toms and Excise Division.
Counsel for the Attorney General pointed out
that there had been produced what on its face,
purported to be a true copy of the decision of
the Tribunal. The implication of doing so was
that I need not look beyond that document. But
the evidence before me conclusively established
that this was not the decision retained by the
Tribunal and that the document that was
retained bore no signatures of any member of
the Tribunal. In my opinion I am not precluded
from hearing and giving credence to that evi
dence. Here certiorari is being sought on the
basis of bias. Evidence is admissible on that
point. The question I have to resolve is whether
a biased member of a tribunal participated in
making its decision.
In Rex v. Northumberland Compensation
Appeal Tribunal [1952] 1 K.B. 338, Lord Den-
ning said at page 351:
It will have been seen that throughout all the cases there
is one governing rule: Certiorari is only available to quash a
decision for error of law if the error appears on the face of
the record.
At page 352 he posed for himself the ques
tion "What, then, is the record?" and he
answered it thus:
It has been said to consist of all those documents which are
kept by the tribunal for a permanent memorial and testimo
ny of their proceedings: see Blackstone's Commentaries,
Vol. III, at p. 24.... It appears that the Court of King's
Bench always insisted that the record should contain, or
recite, the document or information which initiated the
proceedings and thus gave the tribunal its jurisdiction; and
also the document which contained their adjudication. Thus
in the old days the record sent up by the justices had, in the
case of a conviction, to recite the information in its precise
terms; and in the case of an order which had been decided
by quarter sessions by way of appeal, the record had to set
out the order appealed from: see Anon. The record had also
to set out the adjudication, but it was never necessary to set
out the reasons (see South Cadbury (Inhabitants) v. Brad-
don, Somerset (Inhabitants)), nor the evidence, save in the
case of convictions. Following these cases, I think the
record must contain at least the document which initiates
the proceedings; the pleadings, if any; and the adjudication;
but not the evidence, nor the reasons, unless the tribunal
chooses to incorporate them. If the tribunal does state its
reasons, and those reasons are wrong in law, certiorari lies
to quash the decision.
These remarks are dictum because there had
been a binding admission by counsel that error
on the record existed. Singleton L.J. and Morris
L.J. disassociated themselves from the remarks
of Lord Denning as unnecessary in view of the
binding admission but they concurred in holding
that certiorari lay for error of law on the record.
There is no question that the formal order is
included in the "record". The order itself is so
obviously part of the record that this has never
been disputed. It is uniformly assumed without
explicit expression by all authority while noting
it is an open question whether anything beyond
that is examinable.
Lord Goddard has said, in Rex v. Northum-
berland Compensation Tribunal Ex parte Shaw
[1951] 1 K.B. 711 at p. 718, anything that is
stated in the instrument characterized as an
order which is brought upon certiorari may be
examined.
There is no doubt whatsoever that Mr.
Buchanan signed a document which he thought
was a finding of the Tribunal. Equally there is
no doubt, for the reasons I have stated above,
that the record of the Tribunal does not contain
a finding signed by Mr. Buchanan. The docu
ment that was signed by him and the members
of the Tribunal as well as the Secretary as
witness was sent to the Deputy Minister. The
document in the possession of the Deputy Min
ister is not a copy of the document in the record
of the Tribunal because it bears the signature of
all members of the Tribunal and the Secretary,
whereas the document in the record of the
Tribunal bears none of those signatures. While
it is not necessary for me to decide, I do not
think that the Deputy Minister was precluded
from acting on the document in his possession,
if he did, because it obviously bore the official
seal of the Tribunal and to him was regular on
its face even though he must have seen that it
was an original document and not merely a
copy.
For the reasons I have outlined above and
which I reiterate for convenience at this point,
the Chairman was precluded from participating
in the decision of the Tribunal by reason of the
fact that his association with the complainants
in this matter gives rise to a reasonable appre
hension of his bias in their favour and by reason
of the fact that he did not hear the evidence. It
follows as a matter of course that the decision
of the Tribunal must be quashed if Mr. Bucha-
nan participated in it.
For the reasons I have outlined above and
which I also reiterate at this point, if Mr.
Buchanan signed the decision of the Tribunal he
adopts that decision as his own and must be
taken to have partaken in it. It was his act of
signing the decision that constitutes his partici
pation in the making of that decision.
The crux of the matter is whether there is
evidence before me that Mr. Buchanan signed
the decision.
In my opinion the preponderance of authori
ty, which I am compelled to follow, is that it is
to the face of the record of the Tribunal that I
must look to determine whether certiorari to
quash should be granted.
It is my opinion that the only material part of
the record of the Tribunal for the purpose of
this matter is the finding of the Tribunal. That
this is part of the record permits of no doubt.
The document forwarded to the Deputy Minis
ter by the Tribunal does not form part of its
record, nor is it a copy of that record.
In my view Mr. Buchanan was disqualified
from participating in making the decision. There
was ample evidence to that effect. Evidence is
properly adduced on the question of bias. His
participation would consist of signing the deci
sion. It has been established that the record of
the Tribunal does not contain a decision that
was signed by Mr. Buchanan. That being so it
follows that he did not participate in making the
decision.
Accordingly I would dismiss the application
of the Attorney General to quash the finding of
the Anti-dumping Tribunal dated March 13,
1970 in this matter.
I cannot refrain from saying that the Anti-
dumping Tribunal, being a court of record by
virtue of section 27 of the Anti-dumping Act
should act as a court of record acts and main
tain its records as a court of record does. First
the original document embodying the order or
finding of the Tribunal signed by the members
who made that order or finding should consti
tute the most material part of the record. This is
elementary. Secondly the order or finding
should identify the members of the Tribunal
who made the order or finding. It should not
merely state that the Tribunal made the order or
finding and this is especially so when a quorum
of the membership may make a finding which is
the finding of the Tribunal. Thirdly a sheet
which sets out the composition of the Tribunal
as established by the Order-in-Council and con
taining other material by way of information is
not properly part of the order or finding. It was
incumbent on the officers of the Tribunal, if
they did not know how to keep the records of
the court, as they obviously did not, to find out
how to do so.
I now turn to the matter of costs. The costs
of and incidental to all proceedings are in the
discretion of the Court and shall follow the
event unless otherwise ordered. (See Rule 344.)
Counsel for the Anti-dumping Tribunal, who
was also counsel for Mr. Gauthier, requested
that costs be awarded to both of his clients on a
solicitor and client basis.
In exercising my discretion I do not award
costs to the Anti-dumping Tribunal. I recognize
that a court of record is not necessarily the
same as the courts of the land which are some
times referred to as the courts of justice. For
the limited purposes of section 172 of the Cus
toms Act the Tribunal is by section 27(3) of the
Anti-dumping Act deemed to be a court of
justice. It is not usual for a court to appear in
support of its own decision, a court of justice
does not do so, although I am well aware that
there have been instances where an administra
tive tribunal exercising quasi-judicial functions
has been named as party in an adversary action.
This is not so in the present style. I have not
overlooked the fact that Mr. Justice Heald in
the order he made on May 11, 1972 directed
that service should be effected on the Secretary
of the Anti-dumping Tribunal. He did not direct
service on the Secretary by referring to him by
name but by his office. It was for this reason
that I heard submissions by counsel made on
behalf of the Tribunal. But because I did so
does not alter my conclusion that I should not
exercise my discretion to award costs to the
Tribunal.
There is a further reason for declining to
award costs to the Tribunal. It was the failure
of the Tribunal to keep proper records which
led to the conclusion that I have reached not to
quash the finding made by the Tribunal. It is
incongruous that since the success of the Tribu
nal was because of its failure to maintain proper
records that it should be rewarded with costs
for that error.
Counsel appeared for Glassexport Limited at
the hearing of the notice of motion held on June
8, 1972 and on the first day of the hearing
beginning on July 4, 1972 and continuing until
July 7, 1972. The interest of Glassexport Limit
ed was in support of the motion of the Attorney
General to quash the finding of the Tribunal.
Therefore, there will be no order as to costs on
behalf of Glassexport Limited.
The interest of Mineralimportexport was
identical to that of Glassexport Limited. Coun
sel for Mineralimportexport appeared at the
hearing on June 8, 1972 but he did not appear at
the subsequent hearing. Therefore Mineralim-
portexport shall bear its own costs.
Counsel for Mr. Buchanan, submitted that his
client should have costs on a solicitor and client
basis. In this submission he was joined by coun
sel for Pilkington Brothers (Canada) Ltd., coun
sel for Canadian Pittsburgh Industries Limited
and counsel for Mr. Gauthier.
I am being asked to exercise the discretion
inherent in me in a disciplinary manner against
the Attorney General by reason of his alleged
misconduct, default or negligence and award
costs on the higher basis of solicitor and client
rather than party and party.
The foundation of this submission on behalf
of Mr. Buchanan is that the Attorney General
alleged that Mr. Buchanan had a pecuniary
interest in the matter which the Attorney Gen
eral by the exercise of diligence could have
ascertained was not so. Between June 8, 1972
and July 4, 1972 information came to the
knowledge of the Attorney General that Mr.
Buchanan did not have a pecuniary interest and
the Attorney General withdrew that allegation.
At the time the allegation of pecuniary interest
on the part of Mr. Buchanan was made the
Attorney General had before him evidence
which entitled him to assume, with reason, that
such interest existed. I am here concerned with
the lack of diligence on the part of the Attorney
General and not the means by which he
obtained the information he had before him.
Therefore I do not consider the ground so
advanced as a sufficient reason for exercising
my discretion in the manner that has been
requested.
There is a further ground advanced by coun
sel for Mr. Buchanan. This is, that the informa
tion which came to the attention of the Attor
ney General was a consequence of confidential
material obtained under the Income Tax Act. In
the circumstances peculiar to this matter it is
not incumbent upon me to determine whether
the Attorney General is precluded from making
use of information filed under the Income Tax
Act for a purpose other than income tax matters
which has come to his attention. This informa
tion was the basis of an allegation of pecuniary
interest on the part of Mr. Buchanan. The alle
gation was withdrawn and accordingly was not
an issue. Therefore I refrain from making any
comment on an issue which I am not obliged to
determine.
The ground advanced by counsel for Pilking-
ton Brothers (Canada) Ltd. and counsel for
Canadian Pittsburgh Industries Limited is simi
lar. Information came to the Attorney General
from material obtained during the course of an
investigation under the Combines Investigation
Act which was furnished on the basis that the
material was to be treated as confidential. All
three counsel alleged that these were but sub
terfuges. In the circumstances of the matter I
am not entitled to assume that the investigations
in question were not conducted for the purpose
they purported to be conducted for. Neither is it
necessary for me to decide the question wheth
er the information obtained by the Attorney
General was improperly obtained.
I have held that the evidence adduced by the
Attorney General was properly admissible. In
my view that is sufficient to conclude the
matter.
Accordingly Canadian Pittsburgh Industries
Limited and Pilkington Brothers (Canada) Ltd.
are entitled to their taxable costs on a party and
party basis.
Mr. Buchanan is also entitled to his costs on a
party and party basis. I would add that in my
view Mr. Buchanan was not without fault in
that his conduct, although explained in most
respects, lacked the discretion to be expected of
a person holding quasi-judicial office.
The reason advanced on behalf of the two
corporations and Mr. Buchanan for an award of
costs on a solicitor and client basis, in my view,
does not apply with equal force to Mr. Gau-
thier. Mr. Gauthier is entitled to his taxable
costs on a party and party basis.
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.