A-811-77
Dryden House Sales Limited, carrying on business
under the firm name and style of Ambassador-
Dryden House (Applicant)
v.
Anti-dumping Tribunal (Respondent)
Court of Appeal, Urie and Ryan JJ. and Kelly
D.J.—Toronto, September 14; Ottawa, October 5,
1979.
Judicial review — Anti-dumping — Application to review
and set aside Anti-dumping Tribunal decision that dumping of
goods in question caused, causing or likely to cause material
injury to production in Canada of like goods — Whether or
not Tribunal declined jurisdiction by failing to inquire into
whether dumping had caused, was causing or was likely to
cause material injury to production in Canada of like goods
Whether or not jurisdiction declined by failure to make ruling
that like goods produced in Canada — Anti-dumping Act,
R.S.C. 1970, c. A-15, ss. 13, 14(1), 16(1),(3) — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside
respondent's decision that the dumping into Canada of a class
of goods—ladies' genuine and simulated leather handbags
originating in or exported from Korea, Hong Kong and Tai-
wan—caused, is causing and is likely to cause material injury
to the production in Canada of like goods. Prior to this decision
the Deputy Minister of Revenue, Customs and Excise, made a
preliminary determination with respect to this class of goods,
filed a notice of preliminary determination with the Secretary
of respondent, and notified respondent Tribunal of the descrip
tion of the goods. Applicant's counsel argues that respondent
declined jurisdiction by failing to inquire into the question of
whether the dumping of the goods in question had caused, was
causing or was likely to cause material injury to the production
in Canada of like goods and by not dealing with the question of
there being "like goods" produced in Canada.
Held, the application is dismissed. From a fair reading of
respondent's reasons, it can be concluded that respondent, as
part of its statutory duty of inquiry, gave full consideration to
the submissions of the applicant and found as a fact that, while
its goods had themselves distinctive qualities and as well were
subject to a somewhat different distribution system, they fell
within the class of goods defined in the preliminary determina
tion, were therefore "like goods" within paragraph (b) of the
statutory definition of that term and ought not to be excluded
from that class. There was ample evidence to support this
finding of fact and no error in principle has been shown.
APPLICATION for judicial review.
COUNSEL:
P. J. Brunner and E. Kirshenbaum for
applicant.
J. L. Shields for respondent.
SOLICITORS:
Minden, Gross, Grafstein & Greenstein,
Toronto, for applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is an application pursuant to
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to review and set aside a
decision of the respondent dated October 21, 1977
in which it was found that the dumping into
Canada of ladies' genuine and simulated leather
handbags originating in or exported from the
Republic of Korea, Hong Kong and Taiwan has
caused, is causing and is likely to cause material
injury to the production in Canada of like goods.
This decision was made pursuant to section 16(3)
of the Anti-dumping Act, R.S.C. 1970, c. A-15,
(hereinafter referred to as the Act).
Prior thereto, after compliance with the provi
sions of section 13 of the Act, and pursuant to
section 14(1) thereof, the Deputy Minister of Na
tional Revenue, Customs and Excise made a pre
liminary determination of dumping in respect of
the class of goods which were the subject matter of
the investigation namely, ladies' genuine and simu
lated leather handbags originating in or exported
from the Republic of Korea, Hong Kong and
Taiwan. The Deputy Minister then caused to be
filed with the Secretary of the respondent a notice
of the preliminary determination. On the same
day, July 25, 1977, the respondent Tribunal was
notified that:
(a) For the purpose of subsection 14(1) of the Act, the goods
or description of goods to which the preliminary determination
of dumping applies is:
Ladies' genuine and simulated leather handbags originating in
or exported from the Republic of Korea, Hong Kong and
Taiwan.
NOTE:
Ladies' handbags feature single or multi-compartments with
handle and/or shoulder strap and may include outside pock-
ets and/or flaps. The subject goods measure, generally, in an
overall range of 67.5 to 160 square inches, measured on one
side, i.e. the length across the top by the depth of the bag.
Not included are articles such as clutch, flight and tote bags;
evening purses; change purses; cosmetic, camera and utility
bags, etc.
After appropriate notices to interested parties,
requests for information and submissions in writ
ing, the matter came on before the respondent
Tribunal in accordance with section 16(1)' of the
Act on September 7, 1977 and from September 12
to 23, 1977. It comprised both public and in
camera proceedings.
' 16. (1) The Tribunal, forthwith upon receipt by the Secre
tary under subsection 14(2) of a notice of a preliminary
determination of dumping, shall, in respect of the goods to
which the preliminary determination of dumping applies, make
inquiry as to whether
(a) the dumping of the goods that are the subject of the
inquiry
(i) has caused, is causing or is likely to cause material
injury to the production in Canada of like goods,
(ii) has materially retarded or is materially retarding the
establishment of the production in Canada of like goods, or
(iii) would have caused material injury to the production
in Canada of like goods except for the fact that provisional
duty was applied in respect of the goods; or
(b) in the case of any goods to which the preliminary
determination of dumping applies,
(i) either
(A) there has occurred a considerable importation of
like goods that were dumped, which dumping has caused
material injury to the production in Canada of like
goods or would have caused material injury to such
production except for the application of anti-dumping
measures, or
(B) the importer of the goods was or should have been
aware that the exporter was practising dumping and
that such dumping would cause material injury to the
production in Canada of like goods, and
(ii) material injury has been caused to the production in
Canada of like goods by reason of the fact that the entered
goods constitute a massive importation or form part of a
series of importations into Canada of dumped goods that
in the aggregate are massive and that have occurred within
a relatively short period of time, and in order to prevent
the recurrence of such material injury, it appears necessary
to the Tribunal that duty be assessed on the entered goods.
The complainant in the proceedings was the
Canadian Handbag Manufacturers' Council Inc.
which was represented by counsel at the hearing,
as was the applicant herein which is an importer.
Also represented at the hearing were the Interna
tional Leathergoods, Plastics & Novelty Workers'
Union and The Canadian Handbag Importers
Association which represented fourteen other
importers. Only the applicant, Dryden House
Sales Limited sought to set aside the decision of
the Tribunal. It took the position at the hearing, as
it did in this Court, that the handbags which it
imports, being unique and patented had " not
caused, were not causing and were unlikely to
cause material injury to the production in Canada
of like goods.
Counsel for the applicant at the outset advised
the Court that he took issue with the decision on
one ground only that being that the respondent
Tribunal declined jurisdiction in failing to inquire
into the question of whether the dumping of the
goods in question had caused, was causing or was
likely to cause material injury to the production in
Canada of like goods.
The scheme of the Act has been discussed in
several judgments of this Court, the conclusions
from which may be summarized as follows:
(1) The formulation of the class of goods pursu
ant to section 13 (1) of the Act for the purpose of
the preliminary determination, is the responsibility
of the Deputy Minister. 2
(2) When the Tribunal finds that certain
dumped goods which are within the class defined
by the Deputy Minister in his preliminary determi
nation, were in its view "like goods" to certain
goods produced in Canada, it has made a finding
of fact which ought not to be disturbed by this
Court unless there was no evidence upon which it
could have been made or because a wrong princi
ple was applied in making it.'
2 Mitsui and Co. Ltd. v. Anti-dumping Tribunal of Canada
[1972] F.C. 944.
3 In re Y.K.K. Zipper Co. of Canada Ltd. [1975] F.C. 68.
(3) In determining whether the goods in issue
are "like goods" the respondent is required to
consider all of the characteristics or qualities of
the goods, and not restrict itself to a consideration
of something less than the totality of those
considerations. 4
(4) Under section 16(3), the respondent may
make its order in respect of all or any of the
"goods to which the preliminary determination
applies" and its decision as to whether there
should be an exclusion or not is a question of fact
or the exercise of a discretion, neither of which is a
question of law falling within section 28(1)(b) of
the Federal Court Act. 5
It was the applicant's contention here that under
section 16(1) the respondent must, once the issue
is raised, deal squarely with the question of there
being "like goods" produced in Canada, and must
make a finding on that issue, having regard to all
relevant circumstances and considerations. It was
further contended that the respondent failed to
reach a finding on that issue and thus declined to
exercise its jurisdiction.
I am of the opinion that the reasons for decision
of the respondent do not support the applicant's
contentions. The Tribunal summarized the
grounds of attack of the complainant, Canadian
Handbag Manufacturers' Council Inc., of The
Canadian Handbag Importers Association and of
the applicant. Of the latter's submission the
respondent had this to say:
Dryden House stressed the unique features of its patented
organizer line of handbags which it imports from Taiwan, and
argued that they are not "like goods" to the goods produced in
Canada. Dryden House also urged that its marketing tech
niques created a special market which does not directly com
pete or injure Canadian production in any significant way,
since a large proportion of its sales is made to outlying rural
areas which are not served in any significant way by normal
distribution systems. It further stated that over 44% of its sales
are made outside the provinces of Ontario and Quebec, which
4 Sarco Canada Limited v. Anti-dumping Tribunal [1979] 1
F.C. 247.
5 Hetex Garn A.G. v. Anti-dumping Tribunal [1978] 2 F.C.
507.
represent the major markets for most retailers. It also contend
ed that because of its unique design, its organizer handbag is
not directly competitive with the Canadian product on the basis
of style.
As I recall it, counsel did not allege that this
was not a fair exposition of his client's submissions
to the respondent.
The Tribunal then proceeded to its "Considera-
tion of Material Injury" wherein it reviewed the
evidence and submissions of the various parties in
respect thereto in considerable detail. The appli
cant was the only party which argued that its
importations were in respect of goods which were
"unique" and thus were not like the goods of
producers in Canada and that accordingly it
should be excluded from any finding of material
injury to the goods within the class produced in
Canada.
This argument was succinctly dealt with by the
respondent in the penultimate paragraph of its
reasons reading as follows:
Dryden House requested the Tribunal to exclude its organiz
er line of handbags from any finding of injury on the grounds
that both these handbags and the distribution system used to
sell them are unique. Although Dryden House's claims of
uniqueness were largely corroborated the evidence also shows
that sales of imported Dryden House handbags found to have
been dumped have displaced sales of domestically-manufac
tured handbags. It is the opinion of the Tribunal, on the
evidence, that the important factor in such displacement has
been price. In these circumstances, the Tribunal cannot accept
Dryden House's request.
In my view, any fair reading of the quoted
paragraph irresistibly impels one to the conclusion
that the respondent, as part of its statutory duty of
inquiry, gave full consideration to the submissions
of the applicant and found as a fact that, while its
goods had themselves, distinctive qualities and as
well were subject to a somewhat different distribu
tion system, they fell within the class of goods
defined in the preliminary determination, thus
were "like goods" within paragraph (b) of the
statutory definition of that term 6 and ought not to
be excluded from the class. There was ample
evidence to support this finding of fact and no
error in principle has, to my mind, been shown.
Accordingly, in my view, this Court ought not to
disturb the Tribunal's finding and the application
should, therefore, be dismissed.
* * *
RYAN J.: I concur.
* * *
KELLY D.J.: I concur.
6 2. (1) In this Act
"like goods" in relation to any goods means
(a) goods that are identical in all respects to the said
goods, or
(b) in the absence of any goods described in paragraph
(a), goods the characteristics of which closely resemble
those of the said goods;
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.