A-709-80
Deputy Minister of National Revenue for Customs
and Excise (Appellant)
v.
Trane Company of Canada, Limited (Respondent)
Court of Appeal, Urie and Le Dain JJ. and Kerr
D.J.—Ottawa, June 3 and 30, 1981.
Anti-dumping — Appeal from Tariff Board's decision
allowing an appeal from a final determination of dumping by
the Deputy Minister — Anti-dumping Tribunal made a find
ing of material injury caused by the dumping of integral
horsepower induction motors — Statement of reasons defined
the class of goods in question and excluded two digit frame
size motors from the preliminary determination of dumping —
Deputy Minister levied anti-dumping duty in respect of two
digit frame size motors — Tariff Board held that as the final
determination of dumping applied to the goods described in
the Tribunal's order, it did not apply to two digit frame size
motors — Whether the reasons of the Tribunal may properly
be referred to in order to interpret the scope of the formal
finding — Whether the Tribunal made a finding of material
injury with respect to two digit frame size motors — Appeal is
dismissed — Anti-dumping Act, R.S.C. 1970, c. A-I5, ss. 3, 4,
17, 19, 20.
Appeal from a decision of the Tariff Board which allowed an
appeal from a final determination of dumping by the Deputy
Minister. The Deputy Minister made a preliminary determina
tion of dumping of integral horsepower induction motors. The
Anti-dumping Tribunal found that the dumping was causing
injury to the production in Canada of like goods. In its state
ment of reasons, the Tribunal defined the class of goods in
question and concluded that the preliminary determination of
dumping did not apply to two digit frame size motors. The
Deputy Minister then made a final determination of dumping
and assessed and levied anti-dumping duty in respect of two
digit frame size motors. The respondent appealed to the Tariff
Board which found that the final determination of dumping
and the anti-dumping duty did not apply to two digit frame size
motors. The Tariff Board held that as the final determination
of dumping applied to the goods described in the Tribunal's
order, it did not apply to two digit frame size motors. The
appellant submits that the statement of reasons forms no part
of the order or finding which the Tribunal is required to make
and may not properly be referred to in order to interpret the
finding. The issues are whether the reasons of the Tribunal may
properly be referred to in order to interpret the scope of its
formal finding and whether the Tribunal made a finding of
material injury with respect to two digit frame size motors.
Held, the appeal is dismissed. There is not a clearly estab
lished principle that the reasons for decision may not be
referred to in order to clarify the terms of a formal decision, the
precise application of which is not, as a matter of fact, clear on
its face. As appears from the record in this case it is not clear
whether the words "integral horsepower induction motors ..."
in the finding of the Tribunal apply to two digit, as well as to
three digit, frame size motors. In these circumstances it is
permissible to refer to the reasons of the Tribunal to determine,
if possible, the application that was intended by the Tribunal. It
is an unavoidable conclusion from the Tribunal's reasons for
decision that it did not intend to, and did not in fact, make a
finding of material injury with respect to two digit frame size
motors. The reasons make it quite clear that in the opinion of
the Tribunal the words "integral horsepower" do not include
two digit frame size motors. Nothing in the reasons read as a
whole suggests that the Tribunal forgot or changed the view
which it had earlier expressed when it came to make its finding
of material injury.
Mitsui and Co. Ltd. v. Buchanan [1972] F.C. 944,
referred to. Dryden House Sales Ltd. v. Anti-dumping
Tribunal [1980] 1 F.C. 639, referred to. Thompson and
Taylor v. Ross [1943] N.Z.L.R. 712, referred to. Re
Bullen (No. 2) (1973) 29 D.L.R. (3d) 257, referred to. The
Quebec, Jacques-Cartier Electric Co. v. The King (1915)
51 S.C.R. 594, discussed. The Canadian Pacific Railway
Co. v. Blain (1905) 36 S.C.R. 159, discussed. Marginson
v. Blackburn Borough Council [1939] 2 K.B. 426, dis
cussed. Patchett v. Sterling Engineering Coy., Limited
(1954) 71 R.P.C. 61, reversed sub. nom. Sterling Engi
neering Co. Ld. v. Patchett [1955] A.C. 534, discussed.
Gordon v. Gonda [1955] 2 All E.R. 762, discussed.
APPEAL.
COUNSEL:
E. R. Sojonky for appellant.
A. de Lotbinière Panet, Q.C. and G. A. Jame-
son for respondent.
John M. Coyne, Q.C. and Penny S. Bonner
for intervenant Electrical and Electronic
Manufacturers Association of Canada.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for respondent.
Herridge, Tolmie, Ottawa, for intervenant
Electrical and Electronic Manufacturers
Association of Canada.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an appeal, pursuant to
section 20 of the Anti-dumping Act, R.S.C. 1970,
c. A-15, from a decision of the Tariff Board which
allowed an appeal, pursuant to section 19 of the
Act, from a final determination of dumping made
by the appellant, the Deputy Minister of National
Revenue for Customs and Excise, in respect of
goods described as follows:
integral horsepower induction motors, one horsepower (1 h.p.)
to two hundred horsepower (200 h.p.) inclusive, excluding
vertical-shaft pump motors generally referred to as vertical
P-base or vertical P-flange motors, originating in or exported
from the United States of America, excluding:
1) single phase motors;
2) submersible pump motors for use in oil and water wells;
3) arbor saw motors; and
4) integral induction motors for use as replacement parts in
i) absorption cold generator pumps manufactured by The
Trane Company,
ii) Centravac Chillers manufactured by The Trane Com
pany, and
iii) semi-hermetic compressors and hermetic compressors
manufactured by The Trane Company,
The Tariff Board held that the final determina
tion of dumping and the resulting anti-dumping
duty levied pursuant to sections 3 and 4 of the Act
did not apply to induction motors known in the
industry as "two digit frame size motors". The
appellant contends that the Board erred in law.
The issue turns on the reasons for decision of the
Anti-dumping Tribunal, as distinct from the terms
of its formal finding, and the relationship under
the Act, in so far as the description of the goods is
concerned, of the preliminary determination of
dumping made by the appellant, the inquiry and
finding of material injury by the Tribunal, and the
final determination of dumping.
On April 6, 1978, pursuant to subsection 13(1)
of the Act, the Deputy Minister of National Reve
nue for Customs and Excise caused an investiga
tion to be initiated respecting the dumping into
Canada of "integral horsepower induction motors,
one horsepower (1 h.p.) to two hundred horsepow
er (200 h.p.) inclusive, ... originating in or export
ed from the United States of America." On Octo-
ber 10, 1978 the Deputy Minister made a
preliminary determination of dumping, pursuant
to section 14 of the Act, respecting goods
described as "integral horsepower induction
motors, one horsepower (1 h.p.) to two hundred
horsepower (200 h.p.) inclusive, excluding vertical-
shaft pump motors generally referred to as vertical
P-base or vertical P-flange motors, originating in
or exported from the United States of America".
Following that decision an inquiry was conducted
by the Anti-dumping Tribunal pursuant to subsec
tion 16(1) of the Act, and on January 9, 1979 the
following "Finding" was made by the Tribunal:
The Anti-dumping Tribunal, having conducted an inquiry
under the provisions of subsection (1) of section 16 of the
Anti-dumping Act, consequent upon the issue by the Deputy
Minister of National Revenue, Customs and Excise of a prelim
inary determination of dumping dated October 10, 1978
respecting the dumping into Canada of integral horsepower
induction motors, one horsepower (I h.p.) to two hundred
horsepower (200 h.p.) inclusive, excluding vertical-shaft pump
motors generally referred to as vertical P-base or vertical
P-flange motors, originating in or exported from the United
States of America, finds, pursuant to subsection (3) of section
16 of the Act, that the dumping of the above-mentioned goods,
excluding:
1) single phase motors;
2) submersible pump motors for use in oil and water wells;
3) arbor saw motors; and
4) integral induction motors for use as replacement parts in
i) absorption cold generator pumps manufactured by The
Trane Company,
ii) Centravac Chillers manufactured by the Trane Com
pany, and
iii) semi-hermetic compressors and hermetic compressors
manufactured by The Trane Company,
has caused, is causing, and is likely to cause material injury to
the production in Canada of like goods.
The "Statement of Reasons" which accom
panied the "Finding" of the Tribunal contained
the following discussion at pages 5 and 6 of the
meaning of the words "integral horsepower" in
which the Tribunal concluded that the preliminary
determination of dumping did not apply to two
digit frame size motors:
Evidence was adduced early in the proceedings concerning
the significance of the words "integral horsepower" used in the
Deputy Minister's preliminary determination. One interpreta
tion, based on the usual meaning of the word "integral", and
supported by EEMAC, was that the preliminary determination
applied to motors of one horsepower or more. If this interpreta
tion is correct, inclusion of the words "integral horsepower" is
unnecessary in view of the subsequent more precise specifica
tion, that the motors in question are "one horsepower (1 h.p.)
to two hundred horsepower (200 h.p.) inclusive".
Accordingly, the Tribunal looked for an interpretation which,
avoiding such redundancy, would represent a positive and
relevant contribution to the definition of the class of goods in
question. It did not have far to search, as there was ample
evidence to demonstrate that the terms "integral" and "frac-
tional" are in widespread use in the industry to distinguish
between classes of induction motors on a basis other than their
precise horsepower.
The technical standards of the industry in North America
are established mainly by NEMA (National Electrical Manu
facturers Association), an American association whose stand
ards are, with few exceptions, adopted by EEMAC. NEMA
has issued formal definitions for induction motors, which have
been accepted by EEMAC and are reflected in the price lists
and promotional literature of some EEMAC members, relating
the terms "integral" and "fractional" to frame size identifica
tion. Under these definitions, "integral horsepower" motors
have frames identified by three digit numbers while "fractional
horsepower" motors have two digit frame numbers. Perhaps at
one time, three digit frames were used only for motors of one
horsepower and above, and two digit frames only for those
below one horsepower; this would explain how the present
usage developed. But if this was once the case, it is certainly not
so today; in fact "fractional horsepower" motors (in two digit
frames) may have ratings as high as five horsepower while
there are "integral horsepower" motors (in three digit frames)
having ratings less than one horsepower.
In light of the foregoing, the Tribunal is satisfied that the
preliminary determination of dumping applies to induction
motors having power ratings in the range of one to two hundred
horsepower and constructed in three digit frames. It does not
apply to motors with two digit frames ("fractional horsepower"
motors), even if their power ratings are in the one to two
hundred horsepower range, or to motors with three digit frames
("integral horsepower" motors) of power ratings less than one
horsepower. In addition, of course, there is the specific exclu
sion of "vertical-shaft pump motors generally referred to as
vertical P-base or vertical P-flange motors".
Following the decision of the Tribunal the
Department sent questionnaires to importers,
including the respondent, to enable the appellant
to make the final determination of dumping
required by subsection 17(1) of the Act as follows:
17. (1) Subject to subsection (1.1), the Deputy Minister,
upon receipt of an order or finding of the Tribunal, shall make
a final determination of dumping in the case of any goods
described in the said order or finding that were entered into
Canada before the order or finding of the Tribunal,
(a) by determining whether the goods are goods described in
the order or finding of the Tribunal, and
(b) by appraising the normal value and export price of the
goods,
and subject to subsection 18(4) and subsection 19(1), such
decision is final and conclusive.
The questionnaire, enclosed in a letter of Janu-
ary 24, 1979, after setting out the description of
the goods in the terms of the "Finding" of the
Anti-dumping Tribunal, stated:
This definition does not apply to motors with two digit frames
("fractional horsepower" motors), even if their power ratings
are in the one to two hundred horsepower range, or to motors
with three digit frames ("integral horsepower" motors) of
power ratings less than one horsepower.
On February 23, 1979 the Department further
advised importers as follows:
This refers to our letter and the attached questionnaire in re
integral induction motors. This is to inform you that two digit
three phase motors are now considered to be within the scope of
this review and are therefore subject to final determination.
In a letter dated March 13, 1979 to the respond
ent the Department explained its position as
follows:
This refers to our telephone conversation of March 7, 1979,
at which time we discussed the Department's interpretation of
the Anti-dumping Tribunal injury finding of January 9, 1979,
as it relates to the two digit, three phase, one to two hundred
horsepower integral induction motors.
After a careful review of representations made on behalf of
the complainant and of a number of importers, as well as a
review of the legal implications, the Department is of the
opinion that the Finding applies to all induction motors in the
range one to two hundred horsepower, regardless of frame size.
This opinion is based on subsection 16(3) of the Anti-dump
ing Act which limits the authority of the Tribunal to making an
order or finding in respect of the goods to which the prelim
inary determination applies, not to the goods to which, in its
opinion, the preliminary determination applies. Its finding need
not, however, apply to all these goods; it may not find injury
with respect to all of them.
The investigation which revealed the existence of dumping of
integral induction motors and, subsequently, led to a prelim-
inary determination of dumping covered all induction motors in
the range one to two hundred horsepower, regardless of frame
size.
Furthermore, the Tribunal did not specifically exclude 2-
digit frame size, 3 phase, one to two hundred (1-200) horse
power induction motors from its Finding as it did for single
phase motors, submersible pump motors, arbor saw motors and
integral induction motors used as replacement parts in Trane
air conditioning equipment. As a result, the Department has
concluded that these motors are not specifically excluded from
the scope of the Finding and, consequently, are subject to the
provisions of the Anti-dumping Act.
On June 20, 1979 the appellant made a final
determination of dumping and notice of it was
issued on July 3, 1979. An amended notice was
given on July 10, 1979 correcting a clerical error
in the description of the goods. The description of
the goods in the final determination of dumping,
as amended, which was quoted at the beginning of
these reasons, was in exactly the same terms as the
description in the "Finding" of the Anti-dumping
Tribunal. Pursuant to the final determination of
dumping the appellant assessed and levied anti-
dumping duty in respect of two digit frame size
motors. The respondent appealed to the Tariff
Board pursuant to section 19 of the Act, subsec
tions (1) and (3) of which are as follows:
19. (1) A person who deems himself aggrieved by a decision
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.
(3) On any appeal under subsection (1) the Tariff Board
may make such order or finding as the nature of the matter
may require and, without limiting the generality of the forego
ing, may declare what duty is payable or that no duty is
payable on the goods with respect to which the appeal was
taken, and an order, finding or declaration of the Tariff Board
is final and conclusive subject to further appeal as provided in
section 20.
At the hearing before the Tariff Board evidence
was adduced showing that the investigation ini
tiated by the appellant had covered two digit
frame size motors, that the respondent had import
ed several of these motors during the provisional
period, and that it had paid provisional duty in
respect of them, although apparently with a claim
for refund.
The conclusion of the Tariff Board that the final
determination of dumping and the anti-dumping
duty did not apply to two digit frame size motors,
and the reasoning which led to it, are found in the
following passages from the Board's decision ren
dered on August 22, 1980:
The Anti-dumping Tribunal, as stated in its reasons, accept
ed the definitions of the electrical industry for induction motors
and concluded that the preliminary determination of dumping
applied to three-digit frames and did not apply to motors with
two-digit frames. Section 16(3) of the Anti-dumping Act pro
vides that in addition to making an order or finding the
Tribunal "shall declare to what goods or description of goods
including, where applicable, from what supplier and from what
country of export, the order or finding applies." Whether or not
the Tribunal erred in applying the industry definition, rather
than returning to the respondent for a more precise description
of the goods, as suggested by counsel for the intervenant, is not
a matter for the Board to consider. What is relevant to this
appeal is that the Tribunal decided to include only three-digit
frame size motors in its investigation and in its finding. As the
final determination of dumping applies to the goods described
in the Tribunal's order or finding, it therefore does not apply to
two-digit frame size motors.
The Board therefore declares that the anti-dumping duty,
levied in accordance with the respondent's final determination
of dumping of June 20, 1979, is applicable to the integral
horsepower induction motors having frames identified by three-
digit numbers which were imported into Canada by the appel
lant between October 10, 1978 and January 9, 1979; and that
the anti-dumping duty is not applicable to induction motors
having frames identified by two-digit numbers, imported by the
appellant during the same period.
The Deputy Minister of National Revenue for
Customs and Excise appeals from this decision
pursuant to section 20 of the Act, which is as
follows:
20. (1) Any of the parties to an appeal under section 19,
namely,
(a) the person who appealed,
(b) the Deputy Minister, or
(c) any person who entered an appearance in accordance
with subsection 19(2), if he has a substantial interest in the
appeal and has obtained leave from the Court or a judge
thereof,
may, within 60 days from the making of an order or finding
under subsection 19(3), appeal therefrom to the Federal Court
of Canada upon any question of law.
(2) The Federal Court of Canada may dispose of an appeal
by making such order or finding as the nature of the matter
may require and, without limiting the generality of the forego
ing, may
(a) declare what duty is payable or that no duty is payable
on the goods with respect to which the appeal to the Tariff
Board was taken; or
(b) refer the matter back to the Tariff Board for re-hearing.
(3) The provisions of section 48 of the Customs Act apply
mutatis mutandis to any appeal taken under this section as if it
were an appeal taken under section 48 of that Act.
The appellant is supported in the appeal by the
Electrical and Electronic Manufacturers Associa
tion of Canada, which represents manufacturers of
induction motors in Canada. It filed the complaint
which gave rise to the investigation initiated by the
appellant, it participated in the inquiry by the
Anti-dumping Tribunal (and is, incidentally, the
Association referred to by the letters "EEMAC"
in the reasons of the Tribunal quoted above), it
appeared as an intervenant in the appeal before
the Tariff Board, and it is, by virtue of that
appearance and the terms of subsection 48(5) of
the Customs Act referred to in subsection 20(3) of
the Anti-dumping Act, a party in this appeal.
The issue in the appeal, as I see it, is whether
the Anti-dumping Tribunal made a finding of
material injury with respect to two digit frame size
motors. If it did not do so a final determination of
dumping could not be made and anti-dumping
duty could not be levied with respect to such
motors. That issue turns, however, on whether the
reasons of the Tribunal may properly be referred
to in order to interpret the scope of its formal
finding, and if so, whether it is a necessary conclu
sion from those reasons that the Tribunal did not
make a finding of material injury with respect to
two digit frame size motors.
It is clear from the terms of subsection 17(1) of
the Act, which has been quoted above, that a final
determination of dumping can only be made with
respect to goods described in a finding of material
injury by the Tribunal and from sections 3, 4 and
5 of the Act that anti-dumping duty may only be
levied with respect to goods for which the Tribunal
has made such a finding. It is sufficient to quote
section 4, which applies to duty levied in respect of
goods on which provisional duty has been paid:
4. There shall be levied, collected and paid upon all dumped
goods entered into Canada
(a) in respect of which the Tribunal has made an order or
finding, after the entry of the goods, that the dumping of the
goods or of goods of the same description
(i) has caused material injury to the production in Canada
of like goods, or
(ii) would have caused material injury to such production
except for the fact that provisional duty was applied in
respect of the goods, and
(b) that were entered provisionally into Canada during the
period commencing on the day that the Deputy Minister
made a preliminary determination of dumping in respect of
the goods or of goods of the same description and ending on
the day the order or finding referred to in paragraph (a) was
made by the Tribunal,
an anti-dumping duty in an amount equal to the margin of
dumping of the entered goods but not exceeding the provisional
duty, if any, payable in respect of the goods.
The appellant's contention, supported by counsel
for EEMAC, is that the goods with respect to
which the Tribunal has made a finding of material
injury are to be determined from the description in
its formal "Finding" and not from its "Statement
of Reasons", which, in the submission of counsel,
forms no part of the order or finding which the
Tribunal is required by subsection 16(3) to make
and may not properly be referred to in order to
interpret the finding. Alternatively, counsel for the
appellant and EEMAC contended that when the
reasons of the Tribunal are read as a whole it is
not a necessary conclusion from them that the
Tribunal failed to make a finding of material
injury with respect to two digit frame size motors.
In their submissions counsel for the appellant
and EEMAC laid great stress on the contention
that it was for the Deputy Minister to determine
the class of goods to which an investigation, a
preliminary determination of dumping and an
inquiry by the Tribunal would apply, and that in
so far as the Tribunal in its reasons purported to
determine or define the class of goods to which its
inquiry applied it exceeded its authority. From this
it was argued that the expression of opinion in the
Tribunal's reasons as to the motors to which the
preliminary determination of dumping applied
should be ignored, or alternatively, it should be
assumed that in making its inquiry and its finding
of material injury the Tribunal did not exceed its
authority by excluding two digit frame size
motors, when it had no basis in the form of a
clarification from the Deputy Minister for doing
so.
It is clear that under sections 13 and 14 of the
Act it is the Deputy Minister who is to determine
the class of goods to which an investigation and
preliminary determination of dumping shall apply,
and this has been judicially observed on several
occasions: Mitsui and Co. Ltd. v. Buchanan
[ 1972] F.C. 944; Dryden House Sales Ltd. v.
Anti-dumping Tribunal [1980] 1 F.C. 639. It is
also clear from the terms of subsection 16(1) that
the Tribunal is required to conduct an inquiry in
respect of the goods to which the preliminary
determination of dumping applies. In conducting
its inquiry the Tribunal must ascertain the class of
goods which is described by the preliminary deter
mination of dumping, but, in the submission of
counsel for the appellant and EEMAC, if there is
any uncertainty or ambiguity as to what goods are
contemplated it is to be resolved as a question of
fact, and not of interpretation, by referring for
clarification to the Deputy Minister as the only
person who has the authority to determine the
class of goods to which the preliminary determina
tion of dumping applies.
Counsel were unable to cite any authority, and I
have been unable to find any, as to whether the
reasons of an administrative tribunal may be
referred to in order to interpret the terms of its
formal decision or order. I am far from certain
how far the principles governing the interpretation
of the formal judgments or orders of courts, in so
far as they afford clear guidance, should be
applied to an administrative decision, particularly
where, as in the present case, it takes the form of a
finding of fact expressed in technical or trade
language.
The only apparently pertinent authority respect
ing judgments of the courts to which we were
referred by counsel is the judgment of the
Supreme Court of Canada in The Quebec,
Jacques-Cartier Electric Company v. The King
(1915) 51 S.C.R. 594, in which a majority of the
Court held that on a question of costs the Regis
trar should follow the directions in the Trial
Judge's reasons in interpreting the award of costs
in the formal judgment. Duff J. (as he then was),
dissenting, held that the Registrar was bound to
follow the terms of the formal judgment. I note
that in an earlier decision of the Supreme Court in
The Canadian Pacific Railway Company v. Blain
(1905) 36 S.C.R. 159, there also appears to have
been conflicting opinions as to whether a formal
order of the Court should be construed in the light
of the opinion on which it was based. Taschereau
C.J. held that it should be so construed, although
he also spoke of the Court's power to correct its
order to conform with the opinion. Girouard J.
expressed a contrary opinion, saying at pages 166-
167: "The reasons of judgment are mere opinions
which may be considered as part of the judgment
in so far as they disclose the grounds upon which it
is rendered, but they cannot vary the text or
dispositif of the formal judgment."
The right to consult the reasons of the Court to
determine what has been decided by its formal
judgment or order has also been considered in
connection with the subject of res judicata. Here
too there would appear to be some conflict or
divergence, of opinion. See Spencer Bower and
Turner, The Doctrine of Res Judicata, 2nd ed.,
1969, pages 183 to 187 and cases cited there. In
Marginson v. Blackburn Borough Council [1939]
2 K.B. 426, the Court of Appeal held that in
considering a plea of res judicata the Court is
entitled to look at the reasons for judgment, and
this opinion has been followed by other courts: see
Thompson and Taylor v. Ross [1943] N.Z.L.R.
712; Re Bullen (No. 2) (1973) 29 D.L.R. (3d) 257.
In Patchett v. Sterling Engineering Coy., Limited
(1954) 71 R.P.C. 61 (reversed on other grounds
sub. nom. Sterling Engineering Co. Ld. v. Patchett
[1955] A.C. 534), the Court of Appeal looked at
reasons for judgment to determine a question of
res judicata in what was admittedly an unusual
case, but in doing so Jenkins L.J. made the follow
ing affirmation of general principle at page 73:
"As a general rule, we believe it to be the case that
in applying the principle of res judicata the
Judge's reasons cannot be looked at for the pur
pose of excluding from the scope of his formal
order any matter which, according to the issues
raised on the pleadings and the terms of the order
itself, is included therein: (cf. In re Bank of Hin-
dustan, China and Japan, Alison's case (1873)
L.R., 9 Ch. 1, at p. 26)." This statement of
principle is adopted as a statement of the law in
Halsbury's Laws of England, 4th ed., vol. 16,
para. 1527, page 1027. At the same place in note 6
the decision of the Court of Appeal in Gordon v.
Gonda [1955] 2 All E.R. 762, is cited for the
proposition that "If a declaration made in a judg
ment is unambiguous regard cannot be had to the
pleadings in the action or to the history of the case
for the purpose of attributing another meaning to
the declaration."
Having regard to this authority, there is not in
my opinion a clearly established principle that the
reasons for decision may not be referred to in
order to clarify the terms of a formal decision the
precise application of which is not, as a matter of
fact, clear on its face. As appears from the record
in this case it is not clear whether the words
"integral horsepower induction motors, one horse
power (1 h.p.) to two hundred horsepower (200
h.p.) inclusive" in the finding of the Tribunal
apply to two digit, as well as three digit, frame size
motors. In these circumstances it is permissible to
refer to the reasons of the Tribunal to determine, if
possible, the application that was intended by the
Tribunal. Whether the Tribunal had the authority
to determine the scope of its inquiry by purporting
to define the class of goods described in the pre
liminary determination of dumping is not in my
opinion the issue in this appeal. The issue is wheth
er, as a matter of fact, the Tribunal made a
finding of material injury with respect to two digit
frame size motors. If the Tribunal erred in exclud
ing such motors from its inquiry and finding, the
error might affect the validity of the Tribunal's
decision, but that result would not create the find
ing of material injury which is an essential condi
tion of a final determination of dumping and a
levying of anti-dumping duty with respect to such
motors.
In my opinion it is an unavoidable conclusion
from the last paragraph quoted above from the
Tribunal's reasons for decision that it did not
intend to, and did not in fact, make a finding of
material injury with respect to two digit frame size
motors. This paragraph makes it quite clear that in
the opinion of the Tribunal the words "integral
horsepower" do not include two digit frame size
motors. That the Tribunal considered such motors
to be excluded by definition from the class of
goods described in the preliminary determination
of dumping is further emphasized by the reference
in the last sentence of the paragraph to "the
specific exclusion" of vertical P-base or vertical
P-flange motors. Having adopted and clearly
expressed this view of the meaning of the words
"integral horsepower" in the description of the
goods, the Tribunal would have been expressing a
contradictory view if it had thereafter made an
express exclusion of two digit frame size motors in
its description of the goods. I can find nothing in
the reasons read as a whole to suggest that the
Tribunal forgot or changed the view which it had
earlier expressed when it came to make its finding
of material injury. I do not, for example, find such
an indication in the references to two digit frame
size motors when summarizing the submissions of
counsel for importers at pages 8 and 9 of the
reasons.
For these reasons I am of the opinion that the
Tariff Board did not err in law and that according
ly the appeal should be dismissed.
* * *
URIE J.: I concur.
* * *
KERR 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.