A-587-80
Remington Arms of Canada Limited (Applicant)
v.
Les Industries Valcartier Inc. (Respondent)
and
Anti-dumping Tribunal (Tribunal)
Court of Appeal, Urie and Ryan JJ. and MacKay
D.J.—Toronto, March 16; Ottawa, May 25 and
June 8, 1981.
Judicial review — Anti-dumping — Application to set aside
decision of Anti-dumping Tribunal wherein it found that the
dumping into Canada of sporting ammunition was likely to
cause material injury to the production in Canada of like
goods — Tribunal considered the weighted average margin of
dumping filed by Deputy Minister of National Revenue as a
factor in the determination of likelihood of future material
injury — Tribunal sought and received explanation of revision
of margin after close of public hearings — Whether Tribunal
breached rules of natural justice by considering the margin of
dumping without having given the parties the opportunity to
test the accuracy of the calculations — Application dismissed
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Anti-dumping Act, R.S.C. 1970, c. A-15, ss. 8, 9, 13, 14(1),
(2)(a),(c), 16, 17, 18, 19, 20 — Anti-dumping Tribunal Rules
of Procedure, C.R.C. 1978, Vol. III, c. 300, Rule 9.
Application to review and set aside a decision of the Anti-
dumping Tribunal wherein it found that the dumping into
Canada of sporting ammunition was likely to cause material
injury to the production in Canada of like goods. Prior to the
public hearings which were held from July 14 to 17, 1980, the
Department of National Revenue reduced the margin of dump
ing. On July 17, 1980 the Tribunal sought information from the
Department as to the reason why the Department had revised
its margin of dumping. The response was dated July 22, 1980.
The Tribunal considered the weighted average margin of
dumping as determined by the Deputy Minister as a factor in
the determination of likelihood of future material injury. The
applicant contends that the parties should have had an opportu
nity to test by cross-examination the accuracy of the margin as
calculated. Accordingly it is submitted that the Tribunal
breached the rules of natural justice by basing its decision in
part on the margin of dumping. It is further submitted that
even if the Tribunal was entitled to consider the margin of
dumping, it ought not to have done so because there was
evidence before it that the calculations were unreliable, and
thus should not have been given any weight. The question is
whether the Tribunal erred in law.
Held, the application is dismissed. The Tribunal has no
statutory power to determine the margin of dumping. It has no
obligation to ascertain how the Deputy Minister calculated it.
If it is a relevant consideration in the inquiry as to material
injury, the Tribunal is entitled to ascertain why a change in the
margin was made between the preliminary determination and
the date of hearing. The reason might be important in deciding
the weight to be given to the margin of dumping as part of its
decision-making. Such an inquiry does not put the matter of
quantum in issue. The parties cannot say that there has been a
breach of the rules of natural justice because it is an issue to
which those rules do not apply, being a calculation made in the
performance of an administrative act by the Deputy Minister.
In re Anti-dumping Act and in re Sabre International Ltd.
[1974] 2 F.C. 704, referred to. Magnasonic Canada Ltd. v.
Anti-dumping Tribunal [1972] F.C. 1239, distinguished.
APPLICATION for judicial review.
COUNSEL:
John T. Morin and Richard J. McClosky for
applicant.
John Richard, Q.C. for respondent.
J. L. Shields for Tribunal.
T. Kerzner, Q.C. for Olin Corporation and
Winchester Canada.
SOLICITORS:
Campbell, Godfrey & Lewtas, Toronto, for
applicant.
Gowling & Henderson, Ottawa, for respond
ent.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for Tribunal.
Perry, Farley & Onyschuk, Toronto, for Olin
Corporation and Winchester Canada.
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside a decision of the Anti-dump
ing Tribunal made after a public hearing wherein,
inter alfa, it found that:
the dumping into Canada of sporting ammunition (rimfire,
centrefire and shotshells) originating in or exported from the
United States of America and produced by or on behalf of Olin
Corporation of Stamford, Connecticut and Remington Arms
Company of Bridgeport, Connecticut is likely to cause material
injury to the production in Canada of like goods.
The applicant, supported by the intervenors,
Olin Corporation and Winchester Canada, a divi
sion of Olin Holdings Ltd., launched a number of
attacks on the decision which, with the exception
of one, appear to require this Court to reweigh the
evidence and, in effect, to retry the case. As has
been said on numerous occasions, that is not our
function. The Anti-dumping Tribunal was
statutorily constituted and provided with the legal
authority and expertise to evaluate the evidence
adduced before it and to make the determinations
required of it by its constituent statute. Those
determinations will be disturbed only if there was
no evidence upon which they could have been
made or a wrong principle was applied when
making them.'
When stripped of the labelling affixed by the
applicant and intervenors that the Tribunal erred
in law in various ways, in essence, (with the excep
tion of one to which I will make reference later
herein), each of the applicant's and intervenors'
attacks on the Tribunal's decision, is that it failed
to appreciate properly the evidence adduced before
it in various aspects or failed to take into account
material facts in deciding that there was a likeli
hood of material injury to Canadian producers of
like goods. In my opinion, those attacks are with
out merit in that it is clear from the record that
the Tribunal weighed the evidence adduced before
it, both that which was helpful and harmful to the
positions adopted by the applicant and the inter-
venors (hereinafter referred to as Winchester), and
made their decision based thereon. I can find no
error in the application of any principle by the
Tribunal nor were any conclusions made without
at least some evidence to support them. Without
detailing the attacks I can, therefore, say that each
must fail.
One submission, however, requires some anal
ysis. In its reasons for decision, after finding that
dumping of the sporting ammunition had not, to
the date of decision, caused injury of a material
kind to the production in Canada of like goods, the
Tribunal had the following to say:
' Compare: In re Anti-dumping Act and in re Y.K.K. Zipper
Co. of Canada Ltd. [1975] F.C. 68; Sarco Canada Limited v.
Anti-dumping Tribunal [1979] 1 F.C. 247; PPG Industries
Limited v. Anti-dumping Tribunal (1978) 22 N.R. 263; Hetex
Garn A.G. v. Anti-dumping Tribunal [1978] 2 F.C. 507; Rohm
and Haas Canada Ltd. v. Anti-dumping Tribunal (1978) 22
N.R. 175.
The threat or likelihood of material injury to Valcartier should
dumping continue is, however, real and imminent. The weight
ed average margin of dumping preliminarily determined on
Winchester Canada and Remington Canada imports from the
United States is 25%.
Counsel for the applicant, Remington, argued
that the Tribunal erred in law in considering the
weighted average margin of dumping as deter
mined by the Deputy Minister of National Reve
nue, Customs and Excise, as a factor in the deter
mination of likelihood of future material injury.
He said that this was so because the calculation of
the margin of dumping was part of the preliminary
determination of dumping which was an adminis
trative decision made by the Deputy Minister.
However, he said, once it became a factor upon
which the Tribunal relied in making the findings it
was required by law to make, the parties must
have an opportunity to test by cross-examination,
the accuracy of the margin as calculated. Since the
Tribunal is a quasi-judicial body, it was, in coun
sel's submission, not entitled to consider facts not
established in evidence before it untested by cross-
examination and hearing submissions thereon.
Basing its decision in part on the margin of dump
ing in such circumstances constituted a breach of
the rules of natural justice. Even if the Tribunal
was entitled to consider the margin of dumping, he
said, it ought not to have done so in this case
because there was evidence before it that the
calculations were unreliable and, thus, should not
have been given any weight.
Counsel for Winchester adopted a different
approach to the Tribunal's apparent use of the
margin of dumping in reaching its decision. In
counsel's view, it was not only relevant to the
Tribunal's inquiry to consider the margin of dump
ing, it was obligatory that it do so. The error it
committed was, therefore, not in considering the
margin but arose because of its failure to permit
an inquiry into or a challenge of, the percentage of
margin of dump. This, in counsel's view, constitut
ed a denial of natural justice. Such a challenge
should have led, for several reasons, to findings
favourable at least to Winchester, and should have
resulted in the Tribunal's rejection of the margin
calculated by the Deputy Minister.
To appreciate the merits of the foregoing con
tentions, brief reference should be made to the
scheme of the Anti-dumping Act, R.S.C. 1970, c.
A-15, as amended.
Section 13 thereof authorizes the Deputy Minis
ter to cause an investigation to be made respecting
the dumping of any goods, either on his own
initiative or following receipt of a claim in writing
by or on behalf of producers in Canada of like
goods.
Section 14(1) provides that where the Deputy
Minister, as a result of the investigation, is satis
fied that the goods have been or are being dumped,
and the margin of dumping of the dumped goods
and the actual or potential volume thereof is not
negligible, he shall make a preliminary determina
tion of dumping specifying the goods or description
of goods to which such determination applies.
Section 8 provides that for the purposes of the
Act "the margin of dumping of any goods is the
amount by which the normal value of the goods
exceeds the export price of the goods." Section 9
prescribes the meaning to be given to the term
"normal value".
Section 14(2)(a) provides that when the Deputy
Minister has made a preliminary determination of
dumping, he shall cause notice of the determina
tion to be given, inter alia, to the exporter and the
complainant, stating the reasons for such determi
nation. Jackett C.J. speaking for the Court in In re
Anti-dumping Act and in re Sabre International
Ltd. 2 held that the preliminary determination is a
decision or order of an administrative nature not
required to be made on a judicial or a quasi-judi
cial basis and is thus not amenable to review under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10.
Section 14(2)(c) requires the Deputy Minister
to cause to be filed with the Tribunal notice in
writing of the determination "... stating the rea
sons therefor, together with such other material
relating to the determination as may be required
under the rules of the Tribunal . ..". Rule 9 of the
Anti-dumping Tribunal Rules of Procedure,
2 [1974] 2 F.C. 704, at p. 707.
C.R.C. 1978, Vol. III, c. 300, requires that among
the material to be filed by the Deputy Minister are
the margins of dump. Even without this Rule I
would have thought that the reasons would have,
of necessity, had to show the margin of dumping in
the process of satisfying the prerequisite that in
the particular circumstances it was not negligible.
Section 16 directs the Tribunal to make the
inquiry specified therein. Subsection (3) thereof
requires the Tribunal to render its decision within
90 days from the date of receipt of a notice of
preliminary determination of dumping.
Thereafter, section 17 provides that the Deputy
Minister must make a final determination of
dumping in the case of any goods described in the
Tribunal's order or finding. He shall make his
determination "... on the basis of such facts and
information as are available to him, and upon the
making of such determination shall thereupon
cause an assessment to be made of the duty pay
able ...". Notice thereof is to be published in the
Canada Gazette.
Under section 18, the importer may appeal the
appraisal of the normal value and export price of
any goods that are entered into Canada subse
quent to an order or finding of the Tribunal.
Sections 19 and 20 provide for appeals to the
Tariff Board and to the Federal Court respectively
on a question of law with respect to any of the
goods described in the order.
From all of the foregoing, I do not think that it
can be doubted that the calculation of the margin
of dumping is a matter for the Deputy Minister
both at the preliminary and final determination
stages. It is a fact which must be accepted by the
Tribunal as part of the reasons of the Deputy
Minister in his preliminary determination of
dumping. It is not a conclusion which it can alter
or upon which it may admit evidence for the
purpose of alteration in the course of its inquiry to
ascertain material injury pursuant to section 16 of
the Act. But, by the same token, it is a given fact
which the Tribunal may consider to be relevant
when taken in conjunction with other facts proper
ly found, in reaching its conclusion on the question
of material injury to Canadian producers of like
goods. Moreover, as I see it, it may be particularly
relevant in deciding whether there is a likelihood
of material injury in the future. The applicant's
contentions on this aspect of the matter must fail.
There has not been a denial of natural justice, in
my opinion, in the Tribunal's consideration of the
margin of dumping without hearing the parties
with respect thereto. If circumstances change in
the future after the rendering of the Tribunal's
decision so that the margin disappears or becomes
negligible, remedies are available in sections 17
through 20 of the Act to ensure that the exporter
is not unfairly subjected to dumping duties.
That does not, however, according to counsel,
end the matter in the particular circumstances of
this case. A short chronology of the events as they
took place would be useful in understanding the
further factor alleged by counsel for Winchester to
constitute a denial of natural justice:
(a) the Deputy Minister's preliminary determi
nation of dumping was made on May 21, 1980;
(b) notice in writing of that determination was
filed with the Tribunal on the same day;
(c) the Tribunal's inquiry was initiated on May
23, 1980;
(d) on June 17, 1980 representatives of Win-
chester met with representatives of the Deputy
Minister to attempt to show that there were
errors in the calculations of the margin of
dumping;
(e) on July 11, 1980, Winchester and the Tri
bunal were informed that the margin of dump
ing had been reduced from 40% to 25%;
(f) the public hearings before the Tribunal were
held on July 14 through July 17, 1980;
(g) it appears that on July 17, 1980, the Secre
tary of the Tribunal sought information from
the Department of National Revenue as to the
reason the Department had revised its margin of
dumping for Winchester;
(h) a letter dated July 22, 1980, from the
Department to the Tribunal's Secretary
informed him of the basis for the reduction in
the margin of dumping;
(i) the Tribunal issued its findings and its rea
sons therefor on August 19, 1980, a day prior to
the expiry of the 90-day time limit for so doing.
The intervenor, Winchester, complains that the
Tribunal's inquiry of July 17 and the response
thereto dated July 22 were made without notice to
it. Had notice been given and had Winchester been
given an opportunity to test the response, to lead
evidence with respect to it and to make submis
sions, it could have demonstrated other errors in
the calculation. The failure to be given such an
opportunity was, in counsel's submission, a denial
of natural justice.
In support of this contention, counsel relied on
the following two passages from the judgment of
Jackett C.J. in Magnasonic Canada Limited v.
Anti-dumping Tribunal'. At pages 1246-1247
Chief Justice Jackett said:
The sole business entrusted to the Board is to conduct
inquiries under section 16 in respect of goods to which prelim
inary determinations of dumping apply and then to make such
orders or findings as the nature of the matters may require
(section 16(3)).
For the conduct of such inquiries, the statute has made
provision for the system of hearings to which I have referred
and has conferred on the "parties" (who must, we should have
thought, include the "importer" and other persons who have a
statutory right to notice of the preliminary determination) a
statutory right to appear at such hearings or to be represented
there. In the absence of some thing in the statute clearly
pointing to the contrary, we have no doubt that such a right
implies a right of the party to be heard, which at a minimum
includes a fair opportunity to answer anything contrary to the
party's interest and a right to make submissions with regard to
the material on which the Tribunal proposes to base its deci
sion. A right of a party to "appear" at a "hearing" would be
meaningless if the matter were not to be determined on the
basis of the "hearing" or if the party did not have the basic
right to be heard at the hearing.
At page 1249 he had the following to say:
Our conclusion is, therefore, that the Tribunal made the
decision under attack without having conducted the inquiry
required by the statute, in that it acted on information that was
not put before it in the course of hearings by the Tribunal or a
single member of the Tribunal such as were provided for by the
statute, with the result that no opportunity was given to the
parties to answer such information (either as obtained or,
where based on confidential communications, as communicated
to them in some way that complied with section 29(3)) and no
opportunity was given to the parties to make submissions with
regard thereto.
No quarrel can, of course, be taken with respect
to what was said in the quoted passages. However,
the matter in issue in this case differs substantially
3 [1972] F.C. 1239.
on its facts from what was found to be the Tribu
nal's error in the Magnasonic case. What the
Tribunal did in that case is disclosed in the follow
ing passage taken from page 1244 of the decision:
The "inquiry" in this case consisted, in part, of a public
hearing, at which Magnasonic and other parties, all of whom
were represented by counsel, adduced evidence and were given
an opportunity to make submissions with reference to the
evidence presented at such hearing. However, this hearing was
conducted on the basis that no person would be required to give
evidence against his will if he took the view that it was
"confidential". In part, the inquiry consisted in the receipt by a
member or members of the Tribunal or by the staff of the
Tribunal, otherwise than during a sittings, of confidential evi
dence requested by the Tribunal or sent to it voluntarily by the
Deputy Minister or others. Finally, the inquiry consisted in
visits paid by one or more members of the Commission or its
staff to premises of Canadian manufacturers and one or more
interviews also conducted by members or staff, during the
course of which visits and interviews evidence and information
was obtained.
The feature of this type of "inquiry" which is to be noted is
that, while the "parties" had full knowledge of the evidence
adduced at the public hearing, they had no opportunity to know
what other evidence and information was accepted by the
Tribunal and had no opportunity to answer it or make submis
sions with regard thereto. [Emphasis mine.]
What the Tribunal failed to disclose to the
parties in the Magnasonic case was information
which the Tribunal required in order for it to
fulfill its statutory obligations but knowledge of
which had to be given to the parties to enable a
proper response thereto. Such an obligation is in
sharp contrast to that which pertains in the case at
bar. As I have previously stated, the Tribunal has
no statutory power to determine the margin of
dumping. That is a given fact which it must
accept. It has no obligation to ascertain how the
Deputy Minister calculated it. However, as a
matter of prudence, it seems to me that if it is a
relevant consideration for it to take into account in
its inquiry as to material injury, and I believe that
it is, the Tribunal is entitled to ascertain why a
change in the margin was made between the .pre-
liminary determination and the date of hearing
when the fact of such a change was adduced in
evidence, as it was. The reason might be important
in deciding the weight to be given to the margin of
dumping as part of its decision-making. Such an
inquiry does not put the matter of its quantum in
issue. That is outside the ambit of the investiga
tion. The parties cannot say, therefore, in my
opinion, that there has been a breach of the rules
of natural justice because it is an issue to which
those rules do not apply, being a calculation made
in the performance of an administrative act by the
Deputy Minister. This branch of the argument
therefore, must also fail.
Accordingly, the section 28 application will be
dismissed.
* * *
RYAN J.: I agree.
* * *
MACKAY D.J.: I concur.
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.