T-4707-80
Taiwan Footwear Manufacturers Association,
Universal Shoe Manufacturing Co. Ltd., Lee Yee
Enterprise Co. Ltd., Elite Enterprise Co. Ltd.,
Tailung Plastic Industrial Co. Ltd., Pou Chen
Corp., Chung Hoo Industrial Co. Ltd., Shuenn
Yng Industrial Co. Ltd., and Kai Tai Enterprise
Co. Ltd. (Applicants)
v.
Anti-dumping Tribunal (Respondent)
Trial Division, Cattanach J.—Ottawa, October 14,
1980.
Prerogative writs — Certiorari — Court of Appeal ordered
Anti-dumping Tribunal to make available to counsel for
appellants all confidential information received by Tribunal,
and to advise said counsel of all private meetings between
Tribunal and other persons — Tribunal refused to permit
applicants' expert to examine confidential information, and
refused to provide written accounts of meetings held in connec
tion with inquiry — Motion for certiorari to set aside Tribu
nal's orders — Motion dismissed — Discretion to grant certio-
rari will not be exercised if other remedies are available —
Show cause order in Court of Appeal under Rule 355(4) is
proper remedy — Federal Court Rules 337(5), 355(4)
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
MOTION.
COUNSEL:
Ian A. Blue for applicants.
E. Sojonky for respondent.
SOLICITORS:
Cassels, Brock, Toronto, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: By order dated September 19,
1980 [[19811 1 F.C. 574] Mr. Justice Mahoney
dismissed the applicants' motion dated September
4, 1980 for an order (inter alia) the relevant
portion of which I summarize as follows:
I. to make available to counsel for the applicants copies of all
confidential information received by the Tribunal, subject to an
undertaking by counsel to protect the confidentiality of this
information;
2. to advise counsel for the applicants of all private or in
camera meetings between the Tribunal and other persons and
permit counsel for the applicants to attend the same again
subject to undertaking as to confidentiality.
On appeal to the Court of Appeal from Mr.
Justice Mahoney's decision that Division allowed
the appeal * and ordered that the Anti-dumping
Tribunal shall:
1. make available to counsel for the appellants all confidential
information received by the Tribunal subject to such undertak
ings by counsel with respect to the confidentiality of this
information as may be satisfactory to the Tribunal and
2. advise counsel for the appellants of all private or in camera
meetings between the Tribunal and their [sic other] persons
and permit counsel for the appellants to attend same (subject to
like conditions as to confidentiality).
I have again summarized the relevant portion of
this order.
The Tribunal refused to permit the expert eco
nomic adviser to counsel for the applicants to
examine confidential information made available
to counsel for the applicants and the Tribunal also
refused to provide counsel for the applicants with
written accounts of visits made by members of the
Tribunal to the plants and facilities of manufac
turers and importers in connection with the inquiry
in which it is engaged.
The applicants now move before me for an order
in the nature of certiorari to set aside these orders
by the Tribunal basically for the reason that such
refusals are contrary to the order of the Court of
Appeal dated September 26, 1980 between the
parties hereto.
In addition the further ground is advanced that
the refusal to permit the economic adviser to coun
sel for the applicants to examine the confidential
information is contrary to the principles of natural
justice and procedural fairness.
If the strict literal interpretation were applied to
the language of the order of the Court of Appeal it
would seem to follow therefrom that only counsel
for the applicants may examine the confidential
information provided by the Tribunal and that,
* [No written reasons for judgment distributed—Ed.]
with respect to the meetings with other persons,
the only right afforded counsel for the applicant
was to be advised thereof and to be present thereat
and not to be provided with transcripts of such
meetings either past or present by the Tribunal.
To give a more liberal interpretation to the
language of the order would be tantamount to
amending the order given by the Court of Appeal.
For example to say that the word "counsel" is to
be read as including counsel's consultants and
advisers would be an extension of that word and so
too would the provision of transcript of meetings
likewise be an extension of the words of the order
in this context.
If I were to supply words not used by the Court
of Appeal that would, in my view, be amending
that order and that I cannot do.
As I mentioned in passing during argument that
if there was any ambiguity in the order which
required clarification or that the order was not
that intended to be given, an amendment could be
accomplished by an application to the Court of
Appeal under Rule 337(5).
The Tribunal, in denying access to the confiden
tial information to counsel's economic adviser, did
so, no doubt, on its interpretation of the language
employed by the Court of Appeal.
If that language truly reflects the intention of
the Court of Appeal (and if it does not then the
remedy of Rule 337(5) would apply), then for me
to conclude that the action of the Tribunal taken
in strict compliance with that order, was contrary
to natural justice and procedural fairness would be
tantamount to stating that the decision of the
Court of Appeal was in error and should not have
been given. This I cannot do. It is tantamount to
me sitting in appeal on the Court of Appeal and I
cannot escape the conclusion that this is what I
would be doing since the true meaning of the order
of the Court of Appeal is crucial to the decision of
this issue.
Further it is inherent in any Court that it may
enforce obedience to its orders. If counsel for the
applicants is convinced that the actions of the
Tribunal are in flagrant disobedience of the order
of the Court of Appeal then resort might be had to
Rule 355(4) for a show cause order. That would
necessitate a decision as to what was meant by the
order by the Court which gave that order even
though I can understand counsel's reluctance to
resort to this remedy.
Under section 18 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, the Trial Division
has exclusive original jurisdiction to issue a writ of
certiorari and proceedings for relief in the nature
thereof against a federal tribunal.
However certiorari is a prerogative writ (as is
the relief of the nature contemplated thereby) and
as such the grant thereof is discretionary. A cardi
nal rule is that the discretion will not be exercised
if other remedies are available.
It is for these reasons that I declined to accept
jurisdiction in the circumstances peculiar to the
present application to hear the matter on the
merits bearing in mind that other remedies are
available which will be decided by the Court of
Appeal which Court, I think, is the proper Court
to interpret what it meant by its own order and to
remove any ambiguity therefrom if such exists. If
no such ambiguity exists it ill behooves me to
conclude that the Court of Appeal should not have
given the order that it did in the terms that it did.
To afford the relief sought by the applicants would
be to do just that.
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.