Minister of National Revenue and The Queen
(Appellants)
v.
Creative Shoes Ltd., Danmor Shoe Co. and Créa-
tions Marie-Claude Inc. (Respondents)
Court of Appeal, Thurlow J., Cameron and
Sheppard D.JJ.—Montreal, June 21, 22, 23 and
30, 1972.
Customs and Excise—Dumping imports—Absence of
information as to value—Minister's prescription for deter
mining value—Whether judicial or quasi-judicial act—
Whether challengeable by certiorari and prohibition—Cus-
toms Act, R.S.C. 1970, c. C-40, s. 40; Anti-dumping Act,
R.S.C. 1970, c. A-15, s. 11.
Judicial review—Jurisdiction of Trial Division—Certiorari
and prohibition—Relief obtainable—Crown not a proper
party—Federal Court Act, secs. 18, 28—Federal Court Rule
603(b).
On May 31, 1971, the Minister of National Revenue,
pursuant to section 40 of the Customs Act and section 11 of
the Anti-dumping Act prescribed that the fair market value
and the normal value of women's footwear imported from
Italy and Spain should be determined on the basis of export
price plus specified percentages. Under section 40 of the
Customs Act the Minister is empowered to so prescribe
where sufficient information is not furnished or available to
make a determination. Under section 11 of the Anti-dump
ing Act the Minister is empowered to do so where in the
opinion of the Deputy Minister sufficient information is not
furnished or available to make a determination. Subsequent
ly, in June and August, the Anti-dumping Tribunal made
determinations of dumping. In November three importers of
women's footwear from Italy and Spain applied to the Trial
Division under Federal Court Rule 603(b) for writs of
certiorari and prohibition and for declaratory relief against
the Minister, the Deputy Minister, the Queen and the Anti-
dumping Tribunal.
Held, reversing Walsh J., the application must be dis
missed. The Minister's power under the two enactments to
prescribe the manner of determining the value of imported
goods is a legislative power, i.e. one capable of being
exercised, as here, to lay down rules of general application
and not merely to decide individual cases as they arise: it
was thus not required to be exercised on a judicial or
quasi-judicial basis with respect to each importer or each
importation of goods. International Harvester Co. of
Canada v. Provincial Tax Com'n [1941] S.C.R. 325,
referred to.
Semble. When the Deputy Minister applies the Minister's
prescription under section 40 of the Customs Act an import
er has an undoubted right to challenge by appeal to the
Tariff Board the facts which are considered to make that
prescription applicable, viz., that sufficient information was
not furnished or available for the determination.
While the application by the Deputy Minister of the
Minister's prescription under section I I of the Anti-dump
ing Act cannot be challenged on appeal to the Tariff Board,
an importer is entitled to be heard as to why the prescrip
tion was not applicable before the collection of duties
thereunder, which is plainly of a judicial or quasi-judicial
nature and therefore to be determined fairly in accordance
with the principles of natural justice. Board of Education v.
Rice [1911] A.C. 179, applied.
Held also: (1) In a proceeding for judicial review under
section 18 of the Federal Court Act, the Court cannot
entertain a claim for relief obtainable only in an action
commenced by a statement of claim.
(2) The Crown cannot be made a respondent in a proceed
ing under section 18 of the Federal Court Act for judicial
review of the decision of a federal board, commission or
tribunal.
(3) Section 28(3) of the Federal Court Act ousts the
jurisdiction of the Trial Division to grant relief under sec
tion 18 in respect of decisions or orders of federal boards,
commissions or tribunals made after May 31, 1971.
APPEAL from judgment of Walsh J. [1972]
F.C. 115.
C. R. O. Munro, Q.C. and L. M. Sali for
appellants.
R. Gottlieb and P. Phaneuf for respondents.
The judgment of the Court was delivered by
THURLOW J.—The main issue raised in this
appeal is whether certiorari and prohibition pro
ceedings lie to remove into the trial division of
this Court the record relating to the making by
the Minister of National Revenue on May 31,
1971, of certain prescriptions purporting to be
made in the exercise of powers conferred on
him by section 40 of the Customs Act and
section 11 of the Anti-dumping Act, and to
prohibit the Minister of National Revenue from
collecting duties based thereon pending the
determination of their validity.
Broadly speaking the scheme of the Customs
Act is that on the importation of goods into
Canada their value for duty must be determined
and with this in view there is provided in sec
tions 36 and 37 a series of methods to be
adopted in turn where possible to determine as
nearly as may be that value. In this context
section 40 provides:
40. Where sufficient information has not been furnished
or is not available to enable the determination of cost of
production, gross profit or fair market value under section
36 or 37, the cost of production, gross profit or fair market
value, as the case may be, shall be determined in such
manner as the Minister prescribes.
One of the prescriptions here in question reads
as follows:
MEMORANDUM FOR
Mr. Raymond C. Labarge,
Deputy Minister of National Revenue,
Customs and Excise.
RE: Women's Footwear Originating in Italy
Pursuant to section 40 of the Customs Act, where sufficient
information has not been furnished or is not available to
enable the determination of fair market value under section
36 or 37 of the said Act, the fair market value of women's
footwear originating in Italy shall be determined on the
basis of the export price determined under section 10 of the
Anti-dumping Act, advanced by 7.5 per cent.
"Herb Gray"
Herb Gray
Dated May 31, 1971.
The other prescription under section 40 is in
the same terms save that it applies to footwear
from Spain rather than Italy and the advance is
12% rather than 74%.
I turn now to the Anti-dumping Act. Again
speaking generally, the scheme of Part I of this
Act is to impose dumping duties on goods
imported into Canada equivalent to the amount
by which the value of the goods in the country
of their origin, referred to as their normal value,
exceeds the price paid for them by the importer.
The price so paid is referred to as the export
price. In section 9 there is a scheme of alterna-•
tive methods prescribed for determining such
normal value and in section 10 a further scheme
is provided for determining their export price.
Section 11 then provides:
11. Where, in the opinion of the Deputy Minister, suffi
cient information has not been furnished or is not available
to enable the determination of normal value or export price
under section 9 or 10, the normal value or export price, as
the case may be, shall be determined in such manner as the
Minister prescribes.
One of the prescriptions in question purport
ing to be made under this section reads as
follows:
MEMORANDUM FOR
Mr. Raymond C. Labarge,
Deputy Minister of National Revenue,
Customs and Excise.
RE: Women's Footwear Originating in Italy
Pursuant to section 11 of the Anti-Dumping Act, I hereby
prescribe that where, in your opinion, sufficient information
has not been furnished or is not available to enable the
determination of normal value under section 9 of the Act
the normal value of women's footwear originating in Italy
shall be determined on the basis of the export price deter
mined under section 10 of the Act advanced by 7.5 per
cent.
"Herb Gray"
Herb Gray
Dated May 31, 1971.
The other prescription is in the same terms
save that it applies instead to footwear imported
from Spain and the advance is 12% rather than
7 i% .
The making of these four prescriptions on
May 31, 1971, was followed, on June 3, 1971,
by a preliminary determination of dumping
under section 1 , 4 of the Anti-dumping Act, by a
decision of the Anti-dumping Tribunal, made on
August 25, 1971, and by a final determination
of dumping made on August 27, 1971, under
section 17 of that Act.
On November 2, 1971, the three respondents,
who are importers of ladies' footwear of Italian
and Spanish manufacture, brought a proceeding
in the trial division by the filing of a document
resembling in some respects a declaration or
statement of claim in an ordinary action but
which was entitled "Application for a writ of
certiorari and prohibition and for declaratory
relief". The document names the respondents
as plaintiffs and the Deputy Minister of Nation
al Revenue for Customs and Excise, the Minis
ter of National Revenue, Her Majesty the
Queen and the Anti-dumping Tribunal as
defendants. It consists of some 110 paragraphs
of allegations of fact and argumentation and
concludes with claims for a writ calling upon
the defendants "to answer the demand of the
present application", several species of relief
pending final judgment, the transmission to the
Court of
all records and documents relating to its investigation ini
tiated in June, 1970 and to the imposition and collection of
duty and anti-dumping duty on footwear originating in Italy
and Spain on the basis of the advance of the export price by
74% and 12%, respectively;
and a final judgment voiding the prescriptions
of May 31, 1971 and subsequent ministerial and
judicial determinations allegedly founded there
on, certain declaratory relief, the reimburse
ment of duties and injunctive relief as well.
Accompanying the document were four affida
vits verifying to some extent some of the allega
tions in it and a notice that it would be present
ed for hearing on November 7, 1971.
The proceeding came on for hearing before
Mr. Justice Walsh who treated it as an applica
tion for certiorari and prohibition under Rule
603(b) of the Rules of the Court and made an
order reading as follows:
Plaintiffs' application for a writ of certiorari and prohibi
tion is granted against defendant, the Minister of National
Revenue, and said defendant is required to certify and
return to the Office of the Administrator .of the Federal
Court of Canada, at Ottawa, within thirty days of the date
of this judgment or such further delay as this honourable
Court may permit on application duly made, all records and
documents relating to the investigation initiated in June
1970 and to the imposition and collection of duty and
anti-dumping duty on women's footwear originating in Italy
and Spain on the basis of the advance of the export prices
by 74% and 12% respectively, together with the Ministerial
prescriptions dated May 31, 1971 and the reasons for same
and all things touching the same, as fully and entirely as
they remain in the custody of the said defendant, and a
copy of this order, so that this Court may further cause to
be done thereupon what it shall see fit to be done, and
further that said defendant suspend all proceedings in virtue
of the said Ministerial prescriptions dated May 31, 1971 and
the application of them by the Deputy Minister of National
Revenue, and pending final judgment herein, refrain from
collecting duty and anti-dumping duty on the bases of such
Ministerial prescriptions on women's footwear including
last made dress or casual shoes and boots originating in
Italy and Spain, the costs of this application to be in the
event of the cause.
At the same time Mr. Justice Walsh dealt
with an application by the defendants to dismiss
the proceedings or strike out the pleadings by
granting an order (1) striking out as defendants
the Anti-dumping Tribunal and the Deputy Min
ister of National Revenue for Customs and
Excise, (2) striking out some thirty paragraphs
of the application which dealt with matters
occurring on or after June 1, 1971, and (3)
striking out as well paragraphs B(2) and B(5) of
the claims for relief which related to such mat
ters. He declined, however, to strike out the
remaining claims for relief or to dismiss the
application.
The present appeal was then brought seeking
(1) that the first mentioned order be set aside
and failing that that the prohibitory provision
thereof be set aside and that a more restricted
definition of the material to be returned to the
Court be made, and (2) the striking out of the
remaining portions of the application and claims
for relief and the dismissal of the proceedings.
The respondents also appealed asking that the
struck defendants and the struck allegations and
claims be restored. We dismissed that appeal
after hearing counsel for the appellants therein
but without calling upon counsel for the
respondents thereto as we were all of the opin
ion that Mr. Justice Walsh was right in conclud
ing that, with respect to decisions or orders of
federal boards, commissions or tribunals, as
defined in section 2(g) of the Federal Court Act,
made on or after June 1, 1971, section 28(3) of
that Act applies to oust the jurisdiction of the
trial division which otherwise would arise under
section 18 of the Act to grant relief in respect
of such decisions or orders and that the claims
of the appellants in that appeal for relief in
respect of the preliminary determination of
dumping, the decision of the Anti-dumping
Tribunal and the final determination of dumping
were properly struck out.
I am further of the opinion that Mr. Justice
Walsh correctly treated the proceeding as an
application under Rule 603(b) for the exercise
by the Court of its jurisdiction under section 18
of the Federal Court Act but the consequence
of this appears to me to be that claims for relief
obtainable only by an action commenced by a
statement of claim cannot be entertained in
such a proceeding and that the Crown coulot
in any even ro erly be made a respondent in
su rszceeding since & ecti,onJ 8__c onfers _the
jurisdiction only in respect of the conduct of a
"federal board commission .. or tribunal" which
as defined in section 2(g), does_not include the
Crown. On these matters being pointed out
during the course of argument counsel for the
respondents abandoned paragraphs B(4), B(6)
and B(7) of the claims for relief. The Crown
must accordingly be struck out as a party in any
event and paragraphs B(4), B(6) and B(7) of the
claims for relief need not be further considered.
There remains that part of the proceeding
against the Minister on which what I have
referred to as the main issues arises.
On this question the basis of the decision of
Mr. Justice Walsh appears to have been his
conclusion that the authority of the Minister
under section 11 of the Anti-dumping Act to
prescribe the manner in which normal value is
to be determined when the exigency referred to
in section 11 occurs must be exercised in a
judicial or quasi-judicial manner. Thus the
learned judge says at page 134 of the case on
appeal [1972] F.C.:
In his Ministerial Prescriptions of May 31, 1971, the Minis
ter was not determining the export price, for which he
admittedly had sufficient information, but rather the normal
value for which he did not feel he had sufficient informa
tion. The real question before the Court is not whether he
had the right to make such a determination, which he
undoubtedly had, but whether in exercising the right he
acted improperly, without giving due consideration to the
information which he had or without confronting the oppos
ing parties, i.e. the importers and their representatives with
his so-called "confidential information" and giving them an
opportunity to answer it and be heard. In short, without
considering the matter in a judicial or quasi-judicial manner
as he is required to do even though the decision be an
administrative one.
The learned judge also appears to have applied
similar reasoning with respect to the authority
of the Minister under section 40 of the Customs
Act when he said at page 143:
When section 11 of the Anti-dumping Act and section 40 of
the Customs Act permit the normal value or fair market
value, as the case may be, to be determined "in such
manner as the Minister prescribes", surely this does not
give him a free hand to prescribe percentage figures taken
out of the air without any explanation as to how they were
arrived at. The plaintiffs are entitled to an explanation as to
how they were arrived at, and should have been given an
opportunity to dispute them before a decision was reached.
The Court is not in a position to decide, in the absence of
any explanation, whether these figures were arrived at after
a proper judicial or quasi-judicial consideration of the evi
dence before the Minister at the time these determinations
were made.
and at pages 144-145:
The absence of explanation appears to constitute an error of
law on the face of the record. Moreover, the plaintiffs were
not given a hearing before the Ministerial Prescriptions
which affected their personal rights were made. The deci
sion was based at least in part on confidential information
with which the plaintiffs were not confronted nor were they
given any opportunity to answer it. Moreover, it appears
that at least some of the exporters were not dumping and
there is no indication as to how many instances of dumping
were disclosed as a result of the investigation. To apply the
Ministerial Prescriptions to plaintiffs under these circum
stances would seem to constitute a denial of natural justice.
With respect, I am of the opinion that the
conclusion of the learned judge, that the
authority to prescribe the manner of determina
tion of value which is conferred by these provi
sions must be exercised on a judicial or a quasi-
judicial basis, is erroneous. The expression "as
the Minister prescribes", which appears in both
sections is an apt one to confer a power to
legislate and in my opinion that is the nature of
the power which each of them confers. The
scheme of these and the other provisions, as I
see it, is to confer on the Deputy Minister
administrative authority and responsibility for
the collection of the duties imposed by the two
statutes but to reserve to and confer on the
Minister the power to supplement by prescrip
tions of a legislative nature the rules for deter
mination of value contained in the provisions
which precede the sections in question. (Com-
pare Procureur general du Canada v. La Com-
pagnie de Publication La Presse, Ltée [1967]
S.C.R. 60, per Abbott J. at page 75.) Moreover,
the word used is not "determines" or "decides"
but "prescribes" and it appears to me that the
use of that word, which in the context of such a
section connotes the making of a rule to be
followed, indicates that the power is not merely
to decide individual cases as they arise but is
capable of being exercised to lay down rules of
general application to be applied by the Deputy
Minister and subordinate departmental officers
in the case of all importers engaged in the
importation of goods and whether with or with
out particular goods in customs awaiting the
ascertainment of the duty to be paid on them as
well as to the cases of persons who may subse
quently during the continuance of the prescrip
tion become importers. In so doing, as I see it,
the Minister does not determine or decide the
value of the goods of any particular importer
but merely provides a manner of determining
such value when the method prescribed by the
statute fails for lack of the information neces
sary to apply it. To require that the making of
such a prescription be done on a judicial or a
quasi-judicial basis with respect to each import
er or possible importer who might be affected
thereby would seem to me to be calculated to
render the authority ineffective and useless as a
practical expedient to serve the purpose for
which it appears to me to be designed.
Nor do I think that these provisions require a
separate prescription by the Minister of a
manner of valuation for each particular impor
tation of goods for this, as I see it, would also
be impracticable. The correct construction of
these provisions in my view is reached, as sug
gested by Mr. Munro, by treating the prelimi
nary wording, i.e., "where sufficient informa
tion" etc. as applying to the words "shall be
determined" and not as modifying "as the Min
ister prescribes". In my opinion, therefore, the
Minister was within his authority in each case in
making a rule or prescription of general applica
tion for the cases in which the statutory rules
would not serve, that is to say, the cases that
would fall within the definition of the scope of
the Minister's power to prescribe. Compare the
opinion of Rinfret J. (as he then was) speaking
for himself, Crockett and Kerwin, JJ. in Inter
national Harvester Co. of Canada Ltd. v. Pro
vincial Tax Commission [1941] S.C.R. 325,
when he said at page 348:
The regulations were made pursuant to subsection 4 of
section 7 of the Act of 1932 (a similar provision is con
tained in the Act of 1936, subsection 4 of section 9). These
subsections, both in the Act of 1932 and in the Act of 1936,
read as follows:
Where the minister is unable to determine or to obtain
the information required to ascertain the income within
the province of any corporation or joint stock company
or of any class of corporations or joint stock companies,
the Lieutenant-Governor in Council may, on the recom
mendation of the minister, make regulations for determin
ing such income within the province or may fix or deter
mine the tax to be paid by a corporation or joint stock
company liable to taxation.
It was contended by the appellant that the regulations
did not apply to the appellant's returns in the present
case, because the Act apparently provides for a special
regulation for the purpose of determining a special
income in each particular case of persons or corporations
liable to taxation; but the statute does not seem to be
incapable of being construed as authorizing the Lieuten-
ant-Governor in Council to make regulations, such as
those we have before us, to apply in all cases "where the
minister is unable to determine or to obtain the informa
tion required to ascertain the income."
Indeed it would seem that such construction is more
reasonable and equitable because the effect would then
be to put on an equal footing all cases where that situa
tion obtains, instead of being limited to empowering the
Lieutenant-Governor in Council to make for each case
different regulations which might operate in a way to
discriminate between the several taxpayers.
The regulations as made by the Lieutenant-Governor in
Council, in the premises, avoid this possible objection and
would appear, therefore, to be more within the purpose of
the Act.
If, as I think, the Minister was entitled under
the statutory provisions in question to make
prescriptions of general application, as he did in
this case, it seems to me that it could not have
been intended to require him to exercise the
power to do so only on a judicial or a quasi-
judicial basis and I can find nothing in the
legislation in which either section is found that
appears to point to or necessitate such a
procedure.
Moreover, in the two statutory schemes it
does not appear to me that the conferring of
such power on the Minister deprives importers
of a reasonable opportunity to establish the
value of the goods they import and thus to
avoid the effect of the prescription.
In the case of section 40 of the Customs Act
the manner so prescribed is applicable only
"when sufficient information has not been fur
nished or is not available to enable the determi
nation" to be made under sections 36 and 37.
The furnishing or availability of sufficient infor
mation to enable the determination to be made
under sections 36 and 37 is a matter of fact in
each situation that arises and when the prescrip
tion is applied by the Deputy Minister the
importer has an undoubted right to challenge by
appeal to the Tariff Board the facts which are
considered to make the prescription applicable.
Moreover, I know of no reason why the validity
of the prescription itself cannot be challenged
and brought to judgment on such an appeal
within the same very narrow limits (see Canadi-
an Electrical Ass'n v. C.N.R. [1932] S.C.R.
451) as that may be done in any court of
competent jurisdiction. This latter observation
applies as well to a prescription under section
11 of the Anti-dumping Act though the determi
nation of the application of a prescription under
that section is different. In this case the Deputy
Minister is constituted as the judge of whether
the preliminary conditions for the application of
the prescription exist and there is no appeal
from his judgment as to the existence of such
conditions. However, this particular function of
the Deputy Minister in collecting the duties
imposed by the Act is plainly of a judicial or
quasi-judicial nature. It would require an oppor
tunity for the importer of goods the value of
which was to be determined by the application
of the prescription to be heard as to why the
prescription was not applicable and it would
require as well that that question be determined
fairly in accordance with the principles of natu
ral justice expounded in the oft quoted passage
from the judgment of Lord Loreburn, L.C., in
Board of Education v. Rice [1911] A.C. 179 at
p. 182 where he said:
Comparatively recent statutes have extended, if they
have not originated, the practice of imposing upon depart
ments or officers of State the duty of deciding or determin
ing questions of various kinds. In the present instance, as in
many others, what comes for determination is sometimes a
matter to be settled by discretion, involving no law. It will, I
suppose, usually be of an administrative kind; but some-
times it will involve matter of law as well as matter of fact,
or even depend upon matter of law alone. In such cases the
Board of Education will have to ascertain the law and also
to ascertain the facts. I need not add that in doing either
they must act in good faith and fairly listen to both sides,
for that is a duty lying upon every one who decides any
thing. But I do not think they are bound to treat such a
question as though it were a trial. They have no power to
administer an oath, and need not examine witnesses. They
can obtain information in any way they think best, always
giving a fair opportunity to those who are parties in the
controversy for correcting or contradicting any relevant
statement prejudicial to their view. Provided this is done,
there is no appeal from the determination of the Board
under s. 7, sub-s. 3, of this Act.
Provided these principles are followed there
is indeed no effective appeal from the "opin-
ion" of the Deputy Minister that the conditions
for the application of the prescription under
section 11 exists, but, subject to that limitation,
the importer's right of appeal to the Tariff
Board remains intact and if he can show that
the Deputy Minister's opinion was not reached
on a proper application of the principles the
Board, in my opinion, has jurisdiction to afford
the same relief in respect thereto as would be
obtainable in any other Court of competent
jurisdiction.
It may be desirable as well, in view of some
of the arguments advanced, to observe that an
investigation by the Deputy Minister under Part
II of the Anti-dumping Act, of suspected dump
ing is not a prerequisite to the making of a
prescription by the Minister under section 40 of
the Customs Act and that there is no legal
reason why he may not exercise the power and
apply the prescription in appropriate situations
whether dumping is suspected or not. Nor does
the exercise of the power under section 11 of
the Anti-dumping Act form part of the proce
dure for the determination of dumping under
that statute. Section 11 is a provision of Part I
of the Act which deals with the imposition and
measurement of duties to be levied and collect
ed when dumping has been found as a result of
carrying out the procedures prescribed by Part
II of the Act. While therefore an investigation
will normally precede the making of a prescrip
tion under section 11 there is in my opinion no
legal necessity for the Minister to defer making
it until the results of such an investigation are
known or to relate it in any way to the results or
lack of results of the investigation. From this
point of view as well therefore there does not
appear to be any reason for holding that either
power must be exercised judicially or
quasi-judicially.
My conclusion accordingly is that neither
under section 40 of the Customs Act nor under
section 11 of the Anti-dumping Act is the power
of the Minister to prescribe the manner of
determining value required to be exercised by
him on a judicial or quasi-judicial basis and that
certiorari and prohibition, which are procedures
by which the superior courts control the exer
cise by inferior courts or by public officials of
judicial or quasi-judicial functions, do not lie to
review the prescriptions attacked in the present
case or to prohibit the exercise of ministerial
functions based on them.
I would allow the appeal, set aside the order
for certiorari and prohibition and dismiss the
application with costs of the appeal and of the
application. The costs of the appeal, however,
should not include any items which were
common to this appeal and to the appeal by the
respondents referred to earlier in these reasons
and which are or may be included in the costs
awarded to the successful parties in that appeal.
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.