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T-4190-80
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, Mahoney J.—Toronto, September 15; Ottawa, September 19, 1980.
Prerogative writs — Mandamus and prohibition — Anti- dumping — Application by interested parties in an inquiry instituted under s. 16.1 of the Anti-dumping Act to enforce their claimed rights to disclosure of information received by the respondent and to cross-examine on information given by persons whose interests differ from theirs — Whether the respondent is required to afford a fair opportunity to meet an adverse case in the conduct of an inquiry under s. 16.1 of the Act — Anti-dumping Act, R.S.C. 1970, c. A-15, ss. 16, 16.1 — Export and Import Permits Act, R.S.C. 1970, c. E-17, par. 5 ( 2 )(b)
APPLICATION. COUNSEL:
I. A. Blue and T. Pinos for applicants. E. Bowie 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
MAHONEY J.: The Anti-dumping Tribunal is clearly enjoined to afford a fair opportunity to meet an adverse case in the conduct of inquiries under section 16 of the Anti-dumping Act.' There are a number of decisions of the Federal Court of
R.S.C. 1970, c. A-15, as amended.
Appeal to that effect. 2 The issue here is whether it is required to afford a like opportunity in the conduct of an inquiry under section 16.1 of the Act:
16.1 The Tribunal shall inquire into and report to the Governor in Council on any other matter or thing in relation to the importation of goods into Canada that may cause or threaten injury to the production of any goods in Canada that the Governor in Council refers to the Tribunal for inquiry and report.
The applicants, who are interested parties in Inquiry Footwear 1980, initiated under section 16.1 by Order-in-Council P.C. 1980-1950, seek writs of mandamus and prohibition to enforce their claimed rights to disclosure to them of infor mation received by the Tribunal, subject to the undertakings usual in section 16 inquiries with respect to confidential information, and to cross- examine on information given by persons whose interests differ from theirs.
Numerous similarities may be drawn between inquiries conducted under sections 16 and 16.1. Both are initiated by the action of an authority external to the Tribunal and both are concerned with the importation of goods into Canada having, actually or potentially, an adverse effect on the production of goods in Canada. Should the Gover nor in Council act under paragraph 5(2)(b) of the Export and Import Permits Act 3 upon a report under section 16.1, as the Deputy Minister of National Revenue may be required to act upon receipt of a report under section 16, the adverse results, in so far as exporters and importers are concerned, may be very similar.
2 Magnasonic Canada Ltd. v. Anti-dumping Tribunal [1972] F.C. 1239. Sarco Canada Ltd. v. Anti-dumping Tri bunal [1979] 1 F.C. 247.
3 R.S.C. 1970, c. E-17, as amended. 5....
(2) Where at any time it appears to the satisfaction of the Governor in Council on a report of the Minister made pursuant to
Notwithstanding those similarities, an inquiry under section 16.1 remains an inquiry to obtain information, on which the Governor in Council may, or may not, act. There is no lis, real or quasi, among the parties interested in presenting their views and information to the Tribunal. It can make no decision affecting the rights of anyone. The Deputy Minister is bound to act on a section 16 report and, thus, it does affect the rights of interested persons. In conducting a section 16.1 inquiry "fairly", as that term is used in the context of administrative law, the Tribunal is not required to permit cross-examination of persons appearing before it nor to disclose to interested persons the information it may receive in closed sessions, or otherwise under the cloak of confidentiality. I note that section 27 of the Anti-dumping Tribunal Rules of Procedure" excludes the conduct of a section 16.1 inquiry from their application, subject to publication of a notice of commencement of the inquiry in the prescribed manner.
JUDGMENT
The application is dismissed with costs.
(b) an inquiry made under section 16.1 of the Anti-dumping Act by the Anti-dumping Tribunal in respect of any goods other than textile and clothing goods within the meaning of the Textile and Clothing Board Act
that goods of any kind are being imported or are likely to be imported into Canada at such prices, in such quantities and under such conditions as to cause or threaten serious injury to Canadian producers of like or directly competitive goods, any goods of the same kind may, by order of the Governor in Council, be included on the Import Control List in order to limit the importation of such goods to the extent and for the period that, in the opinion of the Governor in Council, is necessary to prevent or remedy the injury.
4 C.R.C. 1978, Vol. III, c. 300.
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