Mitsui and Co. Limited and Mitsui and Co.
(Canada) Limited (Appellants)
v.
W. W. Buchanan, J. P. C. Gauthier, A. P. Mills,
Board Members of the Anti-dumping Tribunal of
Canada (Respondents)
Court of Appeal, Jackett C.J., Perrier and Cho-
quette D.JJ.—Montreal, June 23, 1972.
Customs and Excise—Dumping—Investigation by Deputy
Minister—Not limited to goods actually imported but to
class of goods—Inquiry by Anti-dumping Tribunal—Anti-
dumping Act, R.S.C. 1970, c. A-15, section 13.
Appellants, who were exporters of bicycle tires and
tubes, applied for a writ of prohibition to restrain the
Anti-dumping Tribunal from conducting an inquiry into the
alleged dumping by appellants of other than "16"-20""
tires and tubes. The ground of the application was that the
investigation held by the Deputy Minister of National Reve
nue for Customs and Excise under section 13 of the Anti-
dumping Act, R.S.C. 1970, c. A-15, was restricted there-
under to tires and tubes of that size as was his determina
tion that there was dumping. Tires and tubes of a larger size
were also imported into Canada.
Held, affirming the Trial Division, the application must be
dismissed. Section 13(1) does not restrict the Deputy Minis
ter's investigation to specific goods that have been imported
but permits an investigation of a class of goods and leaves
the formulation of the class to the Deputy Minister.
APPEAL from Gibson J. (unreported).
Ian Outerbridge, Q.C. and Don Rogers for
appellants.
Robert Vincent for Anti-dumping Tribunal.
Jack Coyne, Q.C. for Dunlop of Canada Ltd.
The judgment of the Court was delivered by:
JACKETT C.J. (orally)—This is an appeal from
a decision of the Trial Division [Gibson J.]
made on June 19, 1972, dismissing an applica
tion by the appellant for an order for a writ of
prohibition against the respondents prohibiting
them from conducting an inquiry or making any
finding in respect of goods other than "16"-20"
bicycle tires and tubes exported to Canada by
the applicant", and for an order declaring that
the scope of a hearing to be held on June 26,
1972, is to be restricted to an enquiry into
"16"-20" bicycle tires and tubes and is not to
extend to tires and tubes of any other size or
type".
This application relates to certain proceedings
under the Anti-dumping Act, R.S.C. 1970, c.
A-15. To appreciate the basic undisputed facts,
preliminary reference must be made to certain
key provisions of that statute. The following
references may be sufficient for that purpose:
1. Sections 3, 4 and 5 impose a duty on
"dumped" goods in respect of which the
Anti-dumping Tribunal has made an order or
finding.
2. Section 13 requires the Deputy Minister
of National Revenue for Customs and Excise
to institute an investigation respecting the
dumping "of any goods" if (a) he is of opin
ion that there is evidence that "the goods"
have been or are being dumped, and (b) he is
of opinion, or the Tribunal advises that it is of
opinion, that there is evidence that such
dumping has caused, is causing or is likely to
cause, among other things, material injury to
the production in Canada of like goods.
3. Section 14(1) provides for the Deputy
Minister making, after an investigation under
section 13, a "preliminary determination of
dumping" specifying "the goods or descrip
tion of goods to which such determination
applies."
4. Section 14(2)(c) requires that notice of a
preliminary determination made under sec
tion 14(1) be filed with the Secretary of the
Tribunal.
5. Section 16(1) requires the Tribunal,
upon receipt of notice of a preliminary deter
mination of dumping, to make an enquiry "in
respect of the goods to which the preliminary
determination of dumping applies."
The basic undisputed facts in this case are as
follows:
1. On April 2, 1971, the Department of
National Revenue wrote to the appellant
advising that the Deputy Minister had caused
an investigation to be initiated respecting the
dumping of "bicycle tires and tubes originat
ing in Austria, Japan, The Netherlands,
Sweden and Taiwan".
2. On May 18, 1972, the Deputy Minister
wrote to the Secretary of the Tribunal, advis
ing that he had, on that day made a prelimi
nary determination of dumping respecting
"bicycle tires and tubes originating in Austria,
Japan, The Netherlands, Sweden and
Taiwan".
3. On May 23, 1972, the Tribunal issued a
"Notice of Public Hearing" stating, among
other things:
(1) That notice had been received from the
Deputy Minister stating that a preliminary
determination of dumping had been made
respecting "bicycle tires and tubes originat
ing in Austria, Japan, The Netherlands,
Sweden and Taiwan".
(2) Pursuant to section 16 of the Anti-
dumping Act, the Tribunal had initiated an
enquiry.
(3) A public hearing relating to this enquiry
will be held at Ottawa commencing on June
26, 1972.
The application for a Writ of Prohibition and
declaration made in the Trial Division last
Monday relates to the enquiry announced by
the Tribunal's "Notice of Public Hearing".
In support of the application, an affidavit was
filed containing certain statements concerning
matters other than those already referred to on
which the appellant relied. The following are
the parts of that affidavit containing such
statements:
4. By letter dated April 8th, 1971 we were requested by
the Department of National Revenue to provide certain
information concerning the manufacture and distribution of
bicycle tires and tubes. At the time of this request our
export business was in 16", 18", 20" and 24" tires and in
16", 18", 24", 26" and 28" tubes. We did not export 26",
27" or 28" tires to Canada at that time. ..
5. Pursuant to the request of April 8th, 1971 full disclo
sure was made by Mitsui and the manufacturers to the
Department of National Revenue concerning the sale of
bicycle tires and tubes by the Mitsui Company. At that time
the bulk of the information available concerned 16" and
20" bicycle tires and bicycle tire tubes which formed the
bulk of the export market.
7. I am advised by Mitsui and Co. Limited, and verily
believe, that in May of 1972 they were informed by the
Department of National Revenue that the alleged dumping
violations concerned 16", 18" and 20" tires and tubes
exclusively and that there was no determination of dumping
in Canada of other sized tires or tubes.
9. At the time of the investigation and preliminary deter
mination by the Deputy Minister no information had been
requested nor had any information been supplied by Mitsui
to the Department of National Revenue concerning size
26", 27" and 28" bicycle tires.
10. Since the time of the first request for information the
market for bicycle tires and tubes in Canada has changed
drastically and the demand for bicycle tubes and tires of
20" and smaller has reduced considerably. The major
market presently in Canada is for 26" and 27" bicycle tires
and has been so, increasingly, for some time. Since Novem-
ber of 1971 exports to Canada of 26" and 27" bicycle tires
have far surpassed all smaller tires combined.
11. By letter dated the 23rd day of May, 1972, supple
mented by a list of questions, a request was made by the
Department of National Revenue for further information
concerning the manufacture and sale of bicycle tires and
tubes which had not previously been requested or
supplied. ...
12. It could take several months to accumulate and pro
vide the information requested by Exhibit "E" and "F".
These figures will relate largely to 26" and 27" tires which
now form the largest proportion of the tire and tube exports
to Canada. These tires are larger than, and of different
width and construction from the smaller tires and generally
sell for a higher price.
13. Should the Anti-Dumping Tribunal make inquiries
into 26" and 27" bicycle tires and tubes on June 26th we
would be unable to present the required evidence because
there is insufficient time to prepare the required facts and
figures concerning the operations of Mitsui and Co. Limited
and its subsidiary companies engaged in the manufacture
and distribution of bicycle tires and bicycle tubes of this
size.
14. Because of the rapid rise in interest in bicycles in
Canada the bicycle tire and tube industry has changed
substantially over the past two years. Accordingly, informa
tion concerning the bicycle tire industry of 1971 is of
limited relevance in assessing the situation today. At the
present time 16" and 20" bicycle tires represent a much
small [sic] proportion of our total exports of tires to Canada
than do the 26" and 27" tires.
On this material the Trial Division was asked,
in effect, to prohibit the Anti-dumping Tribu
nal, which had given notice, in effect, that it had
pursuant to section 16 instituted an enquiry in
respect of "bicycle tires and tubes originating in
Austria, Japan, The Netherlands, Sweden and
Taiwan", from conducting an enquiry or making
any finding as to goods other than "16"-20"
bicycle tires and tubes exported to Canada by
the applicant". The application was more limit
ed as amended by counsel during the argument
of the appeal.
At first blush, there would appear to be no
doubt that the enquiry that the Tribunal has
announced is precisely the enquiry that the stat
ute requires it to make. The Deputy Minister,
having been authorized and required by section
14(1) to make a preliminary determination of
dumping "specifying the goods or description of
goods" to which it applies, made a preliminary
determination specifying "bicycle tires and
tubes originating in Austria, Japan, The Nether-
lands, Sweden and Taiwan", and the Tribunal,
being required by section 16, upon receipt of
notice of such a preliminary determination, to
make an enquiry "in respect of the goods to
which the preliminary determination of dump
ing applies", gave notice that it had initiated
such an enquiry, that is an enquiry in respect of
"bicycle tires and tubes originating in Austria,
Japan, The Netherlands, Sweden and Taiwan".
Counsel for the appellant has, however, made
a very powerful argument for the proposition
that such inquiry must be restricted to goods
that were the subject of shipments that were
being made at the time when the Deputy Minis
ter started his enquiry under section 13. That
argument was very skilfully summarized in the
appellant's memorandum and put orally before
the Court with some modifications.
In effect, as I understand it, the appellant's
argument is based on the following contentions:
(a) that the Tribunal's enquiry must be limit
ed to an enquiry "in respect of the goods to
which the preliminary determination of
dumping applies";
(b) that the Deputy Minister's preliminary
determination of dumping must be restricted
to the `goods' that (he is satisfied, by his
section 13 investigation) have been dumped;
and
(c) that the section 13 investigation must be
in relation to specific goods that have been
imported.'
For the purposes of the present appeal, it can
be assumed that the first two of these conten
tions are well founded. The point at which the
appellant's argument founders, in my opinion, is
on the third contention, namely, that an investi
gation under section 13 must be restricted to
particular goods that have come into Canada
before the Deputy Minister causes the investi
gation to be initiated even though they fall
within a well defined class of goods, which
class of goods was being imported at that time.
At the outset, it must be noted that a mere
verbal analysis of the statute, having regard to
the assumption that words used in a statute in
the same general context are prima facie used in
the same sense, provides a powerful base for
the appellant's argument. Sections 3, 4 and 5
impose a duty on "goods" entered into Canada
and section 15 provides for payment of provi
sional duty, where the Deputy Minister has
made a preliminary determination of dumping in
respect "of any goods or description of goods"
by the importer of "the goods or any goods of
the same description that are entered into Cana-
da". In all these cases where duty is payable, it
is clear that the statute is talking of specific
goods that have been imported. When one turns
to section 13(1) and one finds that its operative
words are that the Deputy Minister shall cause
an investigation to be initiated respecting the
dumping "of any goods", it is not unnatural to
assume that Parliament here also is talking of
the dumping of specific goods in the sense of
goods that have been imported.
When, however, one approaches section
13(1) with the general scheme of the statute in
mind and attempts to give a realistic meaning to
the whole of the subsection with that scheme in
mind, in my view one is constrained to conclude
that section 13(1) is not referring to specific
goods but to a class of goods and leaves the
formulation of the class to the Deputy Minister.
This is, in my view, inescapable when one con
siders that the second condition to an investiga
tion under the subsection is that there is evi
dence that the dumping of the goods "has
caused, is causing or is likely to cause material
injury to the production in Canada of like goods
..." Not only is this test not worded so as to
refer to the effect of past shipments of goods
but it would not be a realistic exercise to inves
tigate the effect of importations of such a limit
ed type of goods on the production of goods in
Canada. In section 13(1), it is quite clear to me
that Parliament is having regard to a movement
into Canada of a class of goods and is directing
an investigation of the past, present and future
effects of such movement if it is allowed to
continue.
There are many detailed provisions in the Act
that can be analyzed, and most of which have
been analyzed by counsel for the appellant,
with a view to considering whether they work
for or against the one view or the other of
section 13(1). I do not suggest that it is easy to
explain all such provisions on the view that I
have adopted although I think that there is an
explanation of most, if not all, of them that
works into the scheme of the Act as I under
stand it. It would not, however, be profitable or
expedient for me to give detailed consideration
to each of them at this time. I content myself
with referring to section 14(1) which, as I read
it, points clearly to the class view of section
13(1) when it requires the Deputy Minister to
specify "the goods or description of goods" to
which a preliminary determination of dumping
applies.
I would merely add that, while no reference
has been made to the application for a declara
tion, I have doubts that it is proper to include a
claim for a declaration in a summary
application.
1 If the appellant were right in all these contentions it
would then become necessary to examine its evidence to
see if it has succeeded in establishing that the investigation
under section 13 was limited in the way that it contends.
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.