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In the matter of certain appeals nos. 1010, 1011, 1012, 1063 and 1067 before the Tariff Board under section 19 of the Anti-dumping Act and section 47 of the Customs Act from decisions of the Deputy Minister of National Revenue, Cus toms & Excise, made on November 29, 1971 and March 19, 1973.
and
Danmor Shoe Company Ltd., Créations Marie- Claude Inc., and General Footwear Co. Ltd.
and
Crosley Shoe Corp. Ltd.
and
Joseph Sprackman, Chartered Accountant, of the City of Toronto, Province of Ontario, in his qual ity as Trustee to the Estate of Creative Shoes Limited (Applicants)
Court of Appeal (A-147-73), Jackett C.J., Pratte J. and Hyde D.J.—Montreal, January 24, 1974.
Judicial review—Whether declaration by Tariff Board that it did not have jurisdiction to review validity of certain `prescriptions" is a decision subject to review—Customs Act, R.S.C. 1970, c. C-40, s. 47(3); Anti-dumping Act, R.S.C. 1970, c. A-15, s. 19(3); Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), s. 28.
At a preliminary stage before the Tariff Board, the Board was asked whether, in deciding `value for duty" or "normal value", it is authorized to hold that certain "prescriptions" are inoperative because they are invalid.
Held, whether or not the Board is so authorized is a question of law that the Board has no jurisdiction or power to decide independently of the appeals. Any declaration by the Board apart from the actual disposition of an appeal has no legal effect. A declaration by the Board that it did not have jurisdiction to review the validity of the "prescrip- tions" had no legal effect so long as the declaration was made apart from the decisions disposing of the appeals. The declaration was, therefore, not a "decision" that this Court has jurisdiction to review under section 28(1) of the Federal Court Act.
Held also, refusal by the Tariff Board to receive certain evidence is not subject to review under section 28(1) of the Federal Court Act.
Attorney General of Canada v. Cylien [1973] F.C. 1166 and British Columbia Packers Ltd. v. Canada Labour Relations Board [1973] F.C. 1194, followed. Toronto Newspaper Guild v. Globe Printing Co. [1953] 2 S.C.R.
18; Bell v. Ontario Human Rights Commission [1971] S.C.R. 756 and R. v. Tottenham and District Rent Tribunal, Ex p. Northfield (Highgate) Ltd. [1957] 1 Q.B. 103, discussed.
APPEAL. COUNSEL:
Richard Gottlieb for applicants. Peter T. Mclnenly for respondents. SOLICITORS:
Gottlieb and Agard, Montreal, for applicants.
Deputy Attorney General of Canada for respondents.
JACKETT C.J. (orally)—This section 28 application was argued with the section 28 application on Court File A-148-73 which has the same style of cause. I propose, therefore, to express my views with reference to both applications at this time. The two applications raise questions as to the extent of the jurisdic tion of this Court under section 28 of the Feder al Court Act, R.S.C. 1970, c. 10 (2nd Supp.). In each case the applicants seek a judgment setting aside a conclusion or ruling reached by the Tariff Board in the course of a joint hearing of appeals under the Anti-dumping Act, R.S.C. 1970, c. A-15, and the Customs Act, R.S.C. 1970, c. C-10, respectively.
As the Court was of the view that there was a doubt as to whether it had jurisdiction to hear the applications, counsel for the applicants addressed the Court at the outset on the ques tion whether the applications should be dis missed for lack of jurisdiction. The Court having then concluded that it had no jurisdiction to hear the applications, counsel were not heard on the merits. I am now going to give my reasons for that conclusion.
As a preliminary step in the computation of customs duty payable under the Customs Act, "value for duty" must be determined; and, as a preliminary step in the computation of the anti-
dumping duty payable under the Anti-dumping Act, "normal value" of imported goods must be determined. The concepts "value for duty" and "normal value" are concepts arbitrarily created by the respective statutes for the purposes of those statutes and, in respect of any particular importation, "value for duty" and "normal val ue" must be computed in accordance with more or less arbitrary rules laid down in the respec tive statutes.
Sections 36 and 37 of the Customs Act con tain rules for determining "value for duty", which rules involve inter alia determination of "cost of production", "gross profit" and "fair market value"; and those sections must be read with section 40 of the Customs Act, which reads as follows:
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.
Section 11 of the Anti-dumping Act contains a similar rule with reference to computation of anti-dumping duty. That section reads as follows:
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.
The various rules that the Minister has pre scribed under these two sections have, it appears, been referred to as "prescriptions". It has, however, been determined by this Court in Minister of National Revenue v. Creative Shoes Ltd. [1972] F.C. 993 that the rules that the Minister has so prescribed are of general application and I should have thought that the more appropriate word for them would have been "regulations". However, in view of the practice that has developed, it will be more convenient to refer to them as "prescriptions". Such "prescriptions" are delegated legislation containing rules that, along with the rules in the statute, must be applied in the computation of
"value for duty" or "normal value" as the case may be.
In respect of each importation of goods, "val- ue for duty" and "normal value" are determined for the purposes of the respective statutes by departmental officers subject to re-determina tion by the Deputy Minister of National Reve nue for Customs and Excise at the request of the importer.' Such a determination by the Deputy Minister under the Customs Act may be appealed to the Tariff Board under section 47 of that Act, which reads, in part:
47. (1) A person who deems himself aggrieved by a deci sion of the Deputy Minister
(a) as to ... value for duty,
may appeal from the decision to the Tariff Board by filing a notice of appeal in writing with the secretary of the Tariff Board within sixty days from the day on which the decision was made.
Such a determination by the Deputy Minister under the Anti-dumping Act may be appealed to the Tariff Board under section 19(1) of that Act, which reads as follows:
19. (1) A person who deems himself aggrieved by a deci sion of the Deputy Minister made pursuant to subsection 17(1) or subsection 18(4) with respect to any goods may appeal from the decision to the Tariff Board by filing a notice of appeal in writing with the Deputy Minister and the Secretary of the Tariff Board within 60 days from the day on which the decision was made.
section 18(4) of that Act being the provision under which the Deputy Minister may inter alia, in the ordinary case, make a decision re-deter mining "normal value", and section 17(1) being the provision by which the Deputy Minister is empowered, in certain special cases, to make "a final determination of dumping" by inter alia "appraising the ... export price of the goods".
Pursuant to section 47 of the Customs Act, the applicants appealed to the Tariff Board against a decision of the Deputy Minister as to "value for duty" of certain imported goods, in the computation of which "value for duty" "prescriptions" under section 40 of that Act had
' The provision for such re-determination under the Cus toms Act is section 46(4) of that Act and the similar provi sion under the Anti-dumping Act is section 18(4) of that Act.
been applied. Pursuant to section 19 of the Anti-dumping Act, the applicants appealed to the Tariff Board from a decision of the Deputy Minister as to the "normal value" of the same goods, in the calculation of which "normal val ue" "prescriptions" under section 11 of that Act had been applied. The appeals came on for hearing together. During that hearing, by prelim inary submissions, the applicants indicated to the Tariff Board that they were attacking the appraisals of value for duty and normal value on the ground inter alia that the "prescriptions" were invalid and counsel for the Attorney Gen eral of Canada objected to the jurisdiction of the Tariff Board to deal with the validity of the "prescriptions" or to consider evidence in respect thereof. After hearing argument, at that preliminary stage in the hearing, the Tariff Board declared that it did not have jurisdiction to review the "prescriptions" and, at a later stage, it maintained objections of the Attorney General of Canada to certain evidence tendered by the applicants with regard thereto.
These section 28 applications have been launched to have set aside the Tariff Board's "declaration" that it has no jurisdiction to deal with the validity of the "prescriptions" and its rulings against the admission of evidence.
I am of opinion that this Court has no juris diction under section 28(1) of the Federal Court Act to set aside the declaration or the rulings in question. Section 28(1) 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.
It is important to have in mind that what is before the Tariff Board under section 47 of the Customs Act is an appeal from "a decision .. . as to value for duty" and what is before that Board under section 19 of the Anti-dumping Act (read with section 18(4)) is an appeal from a decision by which the Deputy Minister re-deter mined "normal value". What the Tariff Board has jurisdiction to decide under the Customs Act is, as I read the statute, "the value for duty of the ... goods" (section 47(3)); and what that Board has jurisdiction to decide under the Anti- dumping Act, on an appeal from a determination of "normal value", is, I should have thought, "normal value" and, apparently, also "what duty is payable or that no duty is payable" (section 19(3)). A decision of any such question is, of course, a proper subject matter for a section 28 application. The Tariff Board has, of course, in addition to its jurisdiction to decide the appeals, a duty, and therefore jurisdiction, to hold the hearings that are a necessary prelim inary to the making of the decisions that it is. required by the statutes to make; and, in the course of such a hearing, it has an incidental power to make rulings that are necessary for the proper conduct thereof. In my view, however, such a ruling is not a proper subject matter for a section 28 application.
I shall explain first my reasons for concluding that the Board's declaration, at a preliminary stage in the hearing, that it had no jurisdiction to deal with the "prescriptions" does not fall within section 28.
In my view, the declaration by the Tariff Board that it had no jurisdiction to review the "prescriptions" is, for present purposes, not dif ferent in character from the decision of the Immigration Appeal Board that was held by this Court not to fall under section 28 in The Attor ney General of Canada v. Cylien [1973] F.C. 1166* or from the decision of the Canada
* [Unreported at the time this decision was rendered— Ed.]
Labour Relations Board that was held by this Court not to fall under section 28 in the British Columbia Packers Ltd. v. Canada Labour Rela tions Board [1973] F.C. 1194*. I must be for given therefore, if, to a large extent, my expla nation of my conclusion in this matter is a repetition of my reasoning in the Cylien case.
In considering whether the Tariff Board's declaration that it has no jurisdiction to deal with the "prescriptions" is a "decision" that falls within the ambit of section 28(1), it is to be remembered that the Tariff Board is a federal board, commission or other tribunal within the meaning of those words in the Federal Court Act because it is a body having, exercising or purporting to exercise "jurisdiction or powers" conferred by an Act of the Parliament of Canada (section 2 (g) of the Federal Court Act). A decision that may be set aside under section 28(1) must, therefore, be a decision made in the exercise or purported exercise of "jurisdiction or powers" conferred by an Act of Parliament. A decision of something that the statute expressly gives such a tribunal "jurisdiction or powers" to decide is clearly such a "decision". A decision in the purported exercise of the "jurisdiction or powers" expressly conferred by the statute is equally clearly within the ambit of section 28(1). Such a decision has the legal effect of settling the matter or it purports to have such legal effect. Once a tribunal has exer cised its "jurisdiction or powers" in a particular case by a "decision" the matter is decided even against the tribunal itself. 2
What we are concerned with here is some thing different. The Tariff Board has jurisdic tion or powers to decide the appeals against "value for duty" and to decide the appeals against "normal value". It has not, however, as yet, delivered any decision disposing of any of those appeals. The problem that was raised at a preliminary stage before the Tariff Board, and in respect of which the Board has made a pre-
* [Unreported at the time this decision was rendered— Ed.]
2 Unless, of course, it has express or implied powers to undo what it has done, which would be an additional jurisdiction.
liminary "declaration", is whether, in deciding value for duty or normal value, it is authorized to hold that the "prescriptions" are inoperative because they are invalid. Whether or not it is so authorized is a question of law that the Board has no jurisdiction or power to decide as a question of law independently of the appeals that it has jurisdiction to decide. The Board must, of course, when it comes to dispose of the appeals, take a position on that question that will be reflected in its decision disposing of the appeals; but, in my view, any declaration by the Board on the question prior to, and therefore apart from, the actual disposition of an appeal has no legal effect. 3
There is a clear difference between a "deci- sion" by the Board of something that it has "jurisdiction or powers" to decide and a decla ration by the Board as to the nature of the powers to be exercised by it when it comes to make the decision that it has "jurisdiction or powers" to make. Once the Board decides something in a particular case that it has "juris- diction or powers" to decide, that decision has legal effect and the Board's powers in regard to that question are spent. When, however, the Board takes a position with regard to the nature of its powers upon which it intends to act, that "decision" has no legal effect. In such alcase, as a matter of law, nothing has been decided. The Board itself, whether differently constituted or not, in the very case in which such a position has been taken, can change its view at any time before it disposes of the appeals and, having changed its view, can decide the appeals on the basis of the changed view.
My conclusion, therefore, is that the Board's declaration that it did not have jurisdiction to review the validity of the "prescriptions" had no legal effect so long as that declaration was made prior to, and therefore apart from, the decisions disposing of the applicants' appeals. It follows that the declaration is not a "decision" that this Court has jurisdiction to set aside under section 28(1) of the Federal Court Act.
7 The Statutes do not, as they might have done, confer on the Board jurisdiction to determine its own jurisdiction.
I turn now to the section 28 application to set aside certain rulings made by the Tariff Board upholding objections to the reception of evi dence. In my view, the reasoning whereby I have reached the conclusion that a preliminary declaration by the Board as to the extent of its jurisdiction does not, as such, fall within section 28(1) leads equally to the conclusion that a refusal by the Board to receive certain evidence does not, as such, fall within section 28(1).
What this Court has jurisdiction to do under section 28(1) is to set aside a "decision" of a tribunal on certain grounds. One ground on which a "decision" may be set aside is that, in making the "decision", the tribunal refused to exercise its jurisdiction. When a tribunal refuses to permit a hearing leading to a "decision" to follow a relevant line of inquiry (which is really the applicant's complaint here), on one way of analyzing the matter, the decision resulting from the inadequate inquiry may be set aside because, in making it, the tribunal refused to exercise its jurisdiction. (See Toronto Newspa per Guild v. Globe Printing Company [1953] 2 S.C.R. 18 per Kellock J. at page 35. 4 ) On the other hand, there may be rulings incidental to the conduct of such a hearing that may, after the matter has been decided, be a basis for setting aside the ultimate "decision" on the ground that, by virtue of such rulings, the tri bunal, in making the decision attacked, failed to observe a principle of natural justice. In my view, neither a refusal to follow a relevant line of inquiry nor any other ruling incidental to the conduct of a hearing is a "decision" that may itself be set aside under section 28(1). 5 Neither
4 Such a refusal to exercise jurisdiction may be contrasted with a wrongful refusal to grant relief on the ground of lack of jurisdiction to grant it. Apart from section 28(3) of the Federal Court Act, such a case may be remedied by man- damus (Commission des Relations de Travail du Québec v. L'Association Unie des Compagnons et Apprentis de L'In- dustrie de la Plomberie et Tuyauterie des États-Unis et du Canada [1969] S.C.R. 466) Whether it falls under section 28(1) is a question that does not require to be answered at this time).
5 Unless, of course, the tribunal has special authority to make such interlocutory ruling so as to give it independent legal effect. It should be emphasized that we are here considering the effect of the word "decision" in section 28(1). Entirely different considerations may be applicable in the case of an application to set aside an "order".
such a refusal nor such a ruling has, or purports to have, any legal effect even as against the tribunal. In either case, the tribunal can, before giving its decision on the matter before it, have second thoughts and take correcting action, in which event, no harm will have been done, and, even if the tribunal does not have such second thoughts, the ultimate decision may not be adversely affected by the wrong view taken, or the wrong ruling given, during the course of the hearing. In my view, such an incorrect position or ruling by a tribunal during the course of a hearing is not, in itself, a subject for a section 28 application. Indeed, it has no bearing on a decision given by the tribunal in the exercise of its jurisdiction to give decisions unless it has resulted in the decision being invalid.
To put it another way, in most cases to which section 28(1) applies, the tribunal has a principal jurisdiction to make decisions or orders and, as part of the process leading to the making of such decisions or orders, it has an incidental jurisdiction to conduct hearings as required by law; and, as I understand section 28(1), it only authorizes the setting aside of a decision or order that the tribunal makes in the exercise or purported exercise of its decision or order making jurisdiction. It follows that a mistake made by a tribunal in conducting a hearing leading up to the making of such a decision or order is only material to the determination of a section 28 application if it has rendered invalid the decision or order made in the exercise of the decision or order making jurisdiction. 6
I am, therefore, of opinion that both the sec tion 28 applications should be dismissed because this Court has no jurisdiction under section 28(1) to set aside the declaration and rulings referred to in them.
6 Section 28(1) itself indicates the distinction. A tribunal ordinarily has jurisdiction to hear and determine or decide something. If it does not give a hearing such as is required by law, its determination or decision may become invalid. What section 28(1) gives this Court is jurisdiction to "hear" an application to review and set aside a tribunal's "decision" and to "determine" that application. Section 28(1) does not give any jurisdiction to this Court to deal with the tribunal's "hearing" except in so far as it bears on the validity of the tribunal's ultimate "decision".
APPENDIX
I. I consider it worthwhile repeating here, by way of an appendix, what I said in the appendix to my Reasons in the Cylien case.
II. In coming to the conclusion that I have reached in this matter, I have not overlooked the express reference in section 28(1)(a) to excess of jurisdiction and refusal of jurisdiction. When paragraph (a) is considered in its context, in my view, it is not only not inconsistent with that conclusion but it supports it. The relevant portion of section 28(1) confers a jurisdiction to determine an application to set aside a "decision or order" upon the "ground" that the tribunal by which it was made
(i) "failed to observe a principle of natural justice",
(ii) "acted beyond ... its jurisdiction", or
(iii) "refused to exercise its jurisdiction".
This does not confer an independent jurisdiction to decide that a tribunal has failed to observe a principle of natural justice, has exceeded its jurisdiction or has refused to exercise its juris diction. Rather it establishes "grounds" for set ting aside a "decision or order". Just as a "deci- sion or order" may be set aside because, in reaching or making it, there was a failure by the tribunal to observe a principle of natural justice, so a "decision or order" may be set aside because it was a purported exercise of a juris diction that the tribunal did not have or because, in the course of reaching the decision or making the order, the tribunal refused to exercise some part of its jurisdiction. An example of a decision or order that was set aside because, in reaching it, the tribunal refused to exercise its jurisdic tion is to be found in Toronto Newspaper Guild v. Globe Printing Company [1953] 2 S.C.R. 18, where Kellock J. giving judgment on behalf of himself and Estey and Locke JJ., in the course of holding that an order of a board should be quashed because the board had refused to inquire into one of the facts that was essential to its decision, said, at page 35, "This was the very obligation placed upon the Board by the statute. By refusing to enter upon it, the board in fact declined jurisdiction".
III. It is not irrelevant, in considering the prob lem raised by this section 28 application to note that, in cases to which section 28 does not apply, certiorari does not lie where there has been a refusal by a board to find that it has no jurisdiction until there has been a decision made by the board in the purported exercise of the jurisdiction that it does not have. In Bell v. Ontario Human Rights Commission [1971] S.C.R. 756, there had been such a refusal (see per Martland J. at page 764) and an application was made for prohibition. The Ontario Court of Appeal held that the application for prohibition was premature but was overruled by the Supreme Court of Canada. With reference to the relative roles of prohibition and certiorari, Martland J. (delivering the judgment of the majority in the Supreme Court of Canada) referred at page 772 to R. v. Tottenham and District Rent Tribunal, Ex p. Northfield (High- gate) Ltd. [1957] 1 Q.B. 103, where Lord Goddard said at page 107:
But Mr. Winn asked us to express some opinion whether it was right for the applicants to apply to this court for prohibition or whether they ought not to have gone to the tribunal and taken the point there. Of course, they could have taken the point before the tribunal, and if the tribunal had decided in their favour, well and good. If the tribunal had decided contrary to their contention, then they would have had to come here and, instead of asking for prohibi tion, asked for certiorari; but I think it would be impossible and not at all desirable to lay down any definite rule as to when a person is to go to the tribunal or come here for prohibition where the objection is that the tribunal has no jurisdiction. Where one gets a perfectly simple, short and neat question of law as we have in the present case, it seems to me that it is quite convenient, and certainly within the power of the applicants, to come here for prohibition. That does not mean that if the tribunal, during the time leave has been given to move for prohibition and the hearing of the motion, like to continue the hearing they cannot do so; of course, if prohibition goes it will stop them from giving any decision, and if prohibition does not go they can give their decision. For myself, I would say that where there is a clear question of law not depending upon particular facts— because there is no fact in dispute in this case—there is no reason why the applicants should not come direct to this court for prohibition rather than wait to see if the decision goes against them, in which case they would have to move for certiorari.
What Lord Goddard is referring to in that pas sage when he uses the word "decision" is a decision by the tribunal in the purported exer cise of its "jurisdiction or powers" and not a decision as to whether it has jurisdiction in the particular matter. This is clear from his state ment that "if the prohibition does not go, they can give their decision".
IV. I think it is worthwhile adding a further comment to what I said in the Appendix to my Reasons in the Cylien case. It is, of course, for Parliament to decide, as a matter of policy, to what extent the proceedings of administrative tribunals should be subject to judicial supervi sion. The task of the courts is to interpret and implement the statutes whereby Parliament manifests its decisions. However, it is not entirely irrelevant to judicial interpretation of a statute that the view adopted is calculated, and the alternative view is not calculated, to attain the object of the st tute. See section 11 of the Interpretation Act.' in my view, the object of sections 18 and 28 of the Federal Court Act is to provide a speedy and effective judicial super vision of the work of federal boards, commis sions and other tribunals with a minimum of interference with the work of those tribunals. Applying section 11 of the Interpretation Act, with that object in mind, to the question raised by these section 28 applications, it must be recognized that the lack of a right to have the Court review the position taken by a tribunal as to its jurisdiction or as to some procedural matter, at an early stage in a hearing, may well result in some cases, in expensive e�kl�arings_ 'being abortive. On the other hand, a right, vested in a party who is reluctant to have the tribunal finish its job, to have the Court review separately each position taken, or ruling made, by a tribunal in the course of a long hearing would, in effect, be a right vested in such a party to frustrate the work of the tribunal. On balance, it would seem that the object of section
7 Section 11 of the Interpretation Act, R.S.C. 1970, c. I-23, reads as follows:
11. Every enactment shall be deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
28 is more effectively achieved by leaving the right to invoke judicial review to the stage after the tribunal has rendered its decision. There will then have been no unnecessary delay in cases where the tribunal has been guilty of no error in its intermediate positions and rulings and, even when the tribunal has erred at an intermediate stage, in the vast majority of cases, such errors will not have affected the ultimate result in such a way as to warrant invoking judicial review. Admitting that there may be problems that should be solved judicially at an intermediate stage, surely no party should have the right to decide whether a situation has arisen in which that should be done. It is not without interest, in this connection, that Parliament has given the tribunal the necessary discretion to deal with such problems. See section 28(4) of the Federal Court Act which authorizes a tribunal "at any stage of its proceedings" to refer "any question or issue of law, of jurisdiction or of practice and procedure" to the Court for "hearing and determination".
* * *
PRATrE J. and HYDE D.J. concurred.
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