T-2726-85
Electrohome Limited, Mitsubishi Electric Sales
Canada Inc., Hitachi (H.S.C.), Canada Inc., Mat-
sushita Industrial Canada Limited, RCA Inc. and
Sanyo Industries Canada Inc. (Applicants)
v.
Deputy Minister of National Revenue for Customs
and Excise, Daewoo Electronics Company Ltd.
and Goldstar Co. Ltd. (Respondents)
INDEXED AS: ELECTROHOME LTD. V. CANADA (DEPUTY
M.N.R., CUSTOMS AND EXCISE)
Trial Division, Rouleau J.—Ottawa, January 10,
17 and 31, 1986.
Construction of statutes — Meaning of "may" in s. 84(3) of
Special Import Measures Act — Deputy Minister refusing to
disclose confidential information — S. 84(3) conferring discre
tion on Deputy Minister re: whether to disclose confidential
information — Necessary to look at whole Act — Parliament
recognizing certain types of information remaining confidential
— Mandatory construction of s. 84(3) rendering provisions for
designation of confidential information pointless — Use of
"shall" in other provisions — Nothing in context to give
"may" other meaning than permissive one ascribed to it in
Interpretation Act — Special Import Measures Act, S.C. 1984,
c. 25, ss. 2(1), 8, 31(1), 38(1),(2)(b), 41(1),(2)(b), 42(1), 43(1),
83, 84(1),(3), 85(1) — Anti-dumping Act, R.S.C. 1970, c. A-15
— Interpretation Act, R.S.C. 1970, c. I-23, s. 28.
Judicial review — Prerogative writs — Duty of fairness —
Motion for certiorari to quash refusal to disclose confidential
information provided under Special Import Measures Act, for
mandamus compelling disclosure of information and for
prohibition to prevent proceeding with investigation — Deputy
Minister's investigation for purpose of calculating normal
value, export price and margin of dumping 'fact-finding
expedition", nature of which administrative — Classification
of function necessary to define content of duty of fairness in
particular fact situation — No evidence of unfair treatment —
No common law right to information nor right to force Deputy
Minister to solicit applicants' assistance in performance of
statutory duty — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 18.
Anti-dumping — Motion for certiorari quashing Deputy
Minister's refusal to disclose confidential information, dis
missed — S. 84(3) conferring on Deputy Minister discretion
whether to disclose confidential information — Disclosure of
information balanced against measure of reassurance to for
eign companies confidential information not disclosed upon
request — Mandatory interpretation of "may" in s. 84(3)
rendering confidentiality provisions void — Special Import
Measures Act, S.C. 1984, c. 25, s. 84(3).
This is a motion for an order of certiorari quashing the
refusal of the Deputy Minister of National Revenue for Cus
toms and Excise to disclose confidential information, an order
for mandamus compelling him to disclose such information and
an order for prohibition prohibiting him from proceeding with
his investigation under the Special Import Measures Act.
The Deputy Minister made a preliminary determination of
dumping of Korean colour television sets, based on a calcula
tion of the "normal value" and "export price" of the goods, and
the "margin of dumping". These calculations were based on
information provided by all companies involved in the sale or
manufacture of colour television sets. Section 83 of the Special
Import Measures Act provides that every party to the proceed
ings has a right on request to examine the information provided
for the purposes of any proceedings under the Act unless it has
been designated as confidential pursuant to subsection 84(1). A
person who provides information to the Deputy Minister is
entitled to have the information designated as confidential.
Notwithstanding a designation of information as confidential,
the Minister may disclose that information in accordance with
the conditions set out in subsection 84(3). The Deputy Minister
refused to disclose certain confidential information, stating that
it was departmental policy to consider complainants in an
anti-dumping case not to be parties to the proceedings. The
applicant argues that the only discretion which the Deputy
Minister has, once a request is made, is to subject the disclosure
to certain terms and conditions. Alternatively, it is argued that
the Deputy Minister has failed to exercise his discretion or has
capriciously exercised it, in that his decision was based on the
fact that the applicants were not considered to be "parties to
the proceedings". Finally, the applicants argue that without
knowledge of how the Deputy Minister used the confidential
information they are unable to determine if all the require
ments of the Act and regulations have been met. The respond
ents submit that in making a preliminary determination under
the Act, the Deputy Minister is exercising an administrative
decision. Therefore he is not obligated to abide by the rules of
natural justice, although he is under a duty to act fairly. They
allege that there is no indication that the applicants have been
treated unfairly.
The issues are the meaning of "may" in subsection 84(3) in
the context of the whole Act, and a determination of the nature
of the decision-making power vested in the Deputy Minister
and the resulting duty of fairness.
Held, the motion should be dismissed.
The applicants are parties to "other proceedings under this
Act arising out of those proceedings" and as such could be
entitled to the confidential information. Subsection 84(3) con
fers upon the Deputy Minister a discretion as to whether he will
disclose confidential information. One must look not only to the
provisions dealing with disclosure of confidential information,
but also to the sections allowing a person providing information
to designate it as confidential. Although Parliament intended
greater disclosure of the information collected than existed
under previous legislation, it also recognized that certain types
of information must remain confidential. Disclosure of certain
proprietary or commercial data could threaten the interests of
the person providing it if it were revealed to a competitor.
Disclosure of information must be balanced against some meas
ure of reassurance to foreign companies that the confidential
information provided will not be disclosed. If subsection 84(3)
is mandatory, there would be little point in a foreign company
designating the information provided by it as confidential.
Many provisions of the Act direct the Deputy Minister to
take certain action by the use of "shall". Since words should be
given the same meaning throughout the whole Act, Parliament
would not have used "may" had it intended that the disclosure
of confidential information be mandatory. Nothing in the con
text would give "may" any other meaning than the permissive
one ascribed to it in section 28 of the Interpretation Act. This is
not a case for the application of the principle that permissive
words may be construed as creating a duty where they confer a
power the exercise of which is necessary to effectuate a right.
In conducting his investigation for the purpose of calculating
normal value, export price and the margin of dumping, the
Deputy Minister is embarking on a "fact-finding expedition",
the nature of which is administrative. The purpose of classify
ing function is to define the content of the duty of fairness as it
relates to a specific factual situation. The applicants failed to
provide any evidence of unfair treatment. No evidence was
produced indicating that the Deputy Minister may have used
incorrect information. The only reason provided as to why the
Deputy Minister's decision should be reversed is that the
applicants want the confidential information in order to ensure
that the Deputy Minister has correctly fulfilled his statutory
duty in determining normal value, export price and the result
ant margin of dumping. The applicants have no statutory nor
common law right to the confidential information nor do they
have the right to force the Deputy Minister to solicit their
assistance in the performance of his statutory duty.
CASES JUDICIALLY CONSIDERED
APPLIED:
Maple Lodge Farms Ltd. v. R., [1981] I F.C. 500
(C.A.); affd. [1982] 2 S.C.R. 2; Mitsui & Co. v. M.N.R.;
Okura & Co. v. Minister of Revenue (1977), 2 B.L.R.
281 (F.C.T.D.); Inuit Tapirisat of Canada v. The Right
Honourable Jules Léger, [1979] 1 F.C. 710 (C.A.).
CONSIDERED:
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311; Bates v.
Lord Hailsham of St. Marylebone, [1972] 1 W.L.R.
1373 (Ch. D.); Martineau v. Matsqui Institution Disci
plinary Board, [1980] 1 S.C.R. 602; Minister of Nation
al Revenue v. Coopers and Lybrand, [1979] I S.C.R.
495.
COUNSEL:
Thomas A. McDougall, Q.C. and Anne Mac-
tavish for all applicants.
Donald Kubesh for applicants Hitachi
(H.S.C.) Canada Inc. and Sanyo Industries
Canada Inc.
Dogan Akman and K. Wayne MacLean for
respondent Deputy Minister of National
Revenue for Customs and Excise.
Darrel H. Pearson and Peter Kirby for
respondent (intervenant) Goldstar Co. Ltd.
Simon V. Potter and Pierre Bienvenu for
respondent (intervenant) Daewoo Electronics
Company, Ltd.
SOLICITORS:
Perley-Robertson, Panet, Hill & Mac-
Dougall, Ottawa, for all applicants.
Stikeman, Elliott, Ottawa, for applicants
Hitachi (H.S.C.) Canada Inc. and Sanyo
Industries Canada Inc.
Deputy Attorney General of Canada for
respondent Deputy Minister of National
Revenue for Customs and Excise.
Gottlieb, Kaylor and Stocks, Toronto, for
respondent (intervenant) Goldstar Co. Ltd.
Ogilvy, Renault, Montreal, for respondent
(intervenant) Daewoo Electronics Company,
Ltd.
The following are the reasons for order ren
dered in English by
ROULEAU J.: This motion by the applicants is
made pursuant to section 18 of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10] for an order
in the nature of certiorari quashing the refusal of
the Deputy Minister of National Revenue for Cus
toms and Excise to disclose certain confidential
information to counsel for the applicants, an order
for mandamus compelling the Deputy Minister to
disclose the confidential information and an order
for prohibition prohibiting the Deputy Minister
from proceeding with his investigation under the
Special Import Measures Act [S.C. 1984, c. 25]
until such time as he discloses the confidential
information in question.
This matter originally came on for hearing on
December 19, 1985 at which time it was adjourned
on consent. The matter was then heard by me on
January 10 and 17, 1986 on which dates the
applicants and the Deputy Minister consented to
Daewoo Electronics Company Ltd. and Goldstar
Co. Ltd. being granted leave to intervene and
added as respondents to the proceedings.
The issue in this case is whether the applicants
are entitled to the disclosure of certain confidential
information in the respondents' possession pursu
ant to the provisions of the Special Import Mea
sures Act.
On September 3, 1985 the Deputy Minister of
National Revenue for Customs and Excise ini
tiated an investigation into the dumping into
Canada of certain colour television receiving sets
originating in or exported from the Republic of
Korea. The decision to commence the investigation
was made pursuant to subsection 31(1) of the
Special Import Measures Act in response to a
complaint filed by the Canadian colour television
industry. In this case the applicants provided the
Deputy Minister with evidence substantiating loss
of market share and sales, price erosion and sup
pression, loss of profitability, retardation, loss of
production, increase in inventory and decrease in
utilization of capacity. The Deputy Minister was
satisfied that the evidence disclosed a reasonable
indication of material injury to Canadian pro
ducers resulting from the allegedly dumped
imports.
On November 29, 1985 the Deputy Minister
made a preliminary determination of dumping
respecting the colour television receiving sets. This
decision was made pursuant to subsection 38(1) of
the Special Import Measures Act.
A determination as to whether dumping of
goods has occurred involves a calculation of the
"normal value" of the goods in question, the
"export price" of the goods and the "margin of
dumping". Those terms are defined in subsection
2(1) of the Act as follows:
2. (1) In this Act,
"export price" means export price determined in accordance
with sections 24 to 30;
"margin of dumping", in relation to any goods, means the
amount by which the normal value of the goods exceeds the
export price thereof;
"normal value" means normal value determined in accordance
with sections 15 to 23 and 29 and 30;
In order to make these calculations, all known
manufacturers and all companies involved in the
sale of colour television receiving sets originating
in or exported from Korea were requested by the
Department of National Revenue, Customs and
Excise to provide certain information to the
Deputy Minister for the period covering July 1,
1984 to August 31, 1985. This information en
abled the Deputy Minister to determine the
normal value, export price and the resultant
margin of dumping, if any. In the present case, it
was found that of the goods reviewed, 69.82 per
cent were dumped by margins ranging from 0.20
to 22.14 percent, with a weighted average margin
of 8.22 percent. The Deputy Minister was satisfied
that the evidence provided a reasonable indication
of material injury to Canadian production.
Pursuant to paragraph 38(2)(b) of the Act,
where the Deputy Minister makes a preliminary
determination of dumping he is to file notice of the
determination with the Canadian Import Tribunal.
Upon receipt of such notice the Tribunal must
make an inquiry with respect to the matters set out
in subsection 42(1). Following the preliminary
determination of dumping, the investigation by the
Deputy Minister continues with a view to making
the final determination. Within ninety days of
making a preliminary determination of dumping
the Deputy Minister is required to make a final
determination in accordance with subsection
41(1). Where the Deputy Minister makes a final
determination of dumping he must file notice of
that determination with the Canadian Import Tri
bunal pursuant to paragraph 41(2)(b). It is then
incumbent on the Tribunal to make an order or
finding with respect to the goods to which the
determination applies. Subsection 43(1) of the Act
provides that this order or finding is to be made
forthwith after receiving notice of the final deter
mination but in any event, the order or finding is
not to be made any later than one hundred and
twenty days after receiving notice of the prelim
inary determination made by the Deputy Minister.
In the present case the Deputy Minister must
make a final determination of dumping by Febru-
ary 27, 1986. Thereafter, the Tribunal is required
to make an order or finding with respect to the
goods in question. If the Tribunal makes an order
or finding that the dumping of goods has caused or
is causing or is likely to cause material injury to
the production of colour television receiving sets or
material retardation to the establishment of the
production of like goods in Canada then the provi
sional anti-dumping or countervailing duties
imposed under section 8 of the Act become final
and the liability for anti-dumping and countervail-
ing duty provisions contained in sections 3 through
7 of the Act become applicable to the import of
the goods in issue.
Sections 82 to 88 of the Special Import Mea
sures Act deal with the disclosure of information
which has been provided to the Deputy Minister
for the purposes of any proceedings under the Act.
Section 83 provides that every party to the pro
ceedings has a right on request to examine the
information unless it has been designated as confi
dential pursuant to subsection 84(1). A person
who provides information to the Deputy Minister
is entitled to have the information designated as
confidential. Subsection 85(1) of the Act provides
as follows:
85. (1) Where a person who provides information to the
Deputy Minister for the purposes of proceedings under this Act
wishes some or all of the information to be kept confidential, he
shall submit, at the time the information is provided,
(a) a statement designating as confidential the information
that he wishes to be kept confidential, together with an
explanation of why he designated that information as confi
dential; and
(b) a summary of the information designated as confidential
pursuant to paragraph (a) in sufficient detail to convey a
reasonable understanding of the substance of the information
or a statement
(i) that such a summary cannot be made, or
(ii) that such a summary would disclose facts that the
person has a proper reason for wishing to keep
confidential,
together with an explanation that justifies the making of any
such statement.
It is then for the Deputy Minister to consider
whether such designation is warranted and to
ensure that the person providing the information
and wishing the designation of the information as
confidential has complied with paragraph
85(1)(b). Notwithstanding a designation of infor
mation as confidential, the Deputy Minister may
disclose that information in accordance with the
conditions set out in subsection 84(3) of the Act.
84....
(3) Notwithstanding subsection (1), information to which
that subsection applies that has been provided to the Deputy
Minister in any proceedings under this Act may be disclosed by
the Deputy Minister to counsel for any party to those proceed
ings or to other proceedings under this Act arising out of those
proceedings for use by such counsel only in those proceedings
or other proceedings, subject to such conditions as the Deputy
Minister considers are reasonably necessary or desirable to
ensure that the information will not, without the written con
sent of the person who submitted it to the Deputy Minister, be
disclosed to any person by counsel in any manner that is
calculated or likely to make it available to
(a) any party to the proceedings or other proceedings, includ
ing a party who is represented by that counsel; or
(b) any business competitor or rival of any person to whose
business or affairs the information relates.
It is this provision of the Act which is in issue in
the case at bar. On December 2, 1985 applicants'
counsel met with two officials of the Department
of National Revenue for Customs and Excise and
requested copies of the confidential information
provided to the Deputy Minister by the exporters
and importers involved in the investigation. Coun
sel were advised that while they would be provided
with the non-confidential information submitted to
the Deputy Minister, the officers did not have the
authority to provide any confidential information.
On December 4, 1985 pursuant to section 83 of
the Act, counsel for the applicants were provided
with copies of the non-confidential information
which had been provided to the Deputy Minister in
the course of his investigation. However, counsel
were not provided with the confidential informa
tion to which subsection 84(1) applied. On Decem-
ber 6, 1985 counsel for the applicants wrote to the
Deputy Minister requesting that the confidential
information be disclosed pursuant to subsection
84(3). By letter dated December 30, counsel were
advised by the Deputy Minister that their request
was refused.
It is the applicants' argument that it is the
statutory duty of the Deputy Minister to comply
with subsection 84(3) of the Act and disclose the
confidential information in question. The perform
ance of that duty is due once a request for the
information is made and the Deputy Minister,
notwithstanding the "may" which appears in the
subsection, has no discretion to refuse the informa
tion. The only discretion which the Deputy Minis
ter has once a request is made is to subject the
disclosure to certain terms and conditions in order
to prevent the information from being made avail
able to any party to the proceedings or any busi
ness competitor or rival of the person who gave the
information to the Deputy Minister. Where coun
sel will meet those terms and conditions the word
"may" is to be treated as imperative rather than
permissive.
Alternatively, the applicants argue that if the
word "may" in subsection 84(3) is construed as
permissive, the Deputy Minister has failed to exer
cise his discretion or has capriciously exercised it,
in that he has based his decision not to release the
confidential information on the fact that he does
not consider the applicants to be "parties to the
proceedings" as is required by subsection 84(3). In
his letter of December 30, 1985 to the applicants,
the Deputy Minister stated that it was the Depart
ment's policy to consider the complainants in an
anti-dumping case not to be parties to the proceed
ings, and therefore counsel for the complainants
are not entitled to the information. I would like to
now dispose of this argument made by the Crown.
The applicants argue that they are parties to the
proceedings by virtue of the wording in subsection
84(3) which allows for disclosure of confidential
information provided to the Deputy Minister in
any proceedings under the Act to "counsel for any
party to those proceedings or to other proceedings
under this Act arising out of those proceedings". I
am of the opinion that the applicants are parties to
"other proceedings under this Act arising out of
those proceedings" and as such could be entitled to
the confidential information. As a result, the
Crown's argument in this regard must fail.
In addition, the applicants argue that without
knowledge of how the Deputy Minister used and
applied or did not use or apply the confidential
information in his determination of the normal
value, export price and the resultant margin of
dumping, counsel for the applicants are unable to
make meaningful submissions to the Deputy Min
ister and his officials to protect the interests of the
domestic industry. The information requested is
required so that the applicants' counsel can deter
mine if all the requirements of the Act and the
regulations have been met. The refusal by the
Deputy Minister to disclose this information is a
breach of his common law duty of fairness and will
not only prejudice the interests of the applicants in
the investigation into dumping, as well it will have
an effect at the inquiry before the Canadian
Import Tribunal into material injury and retarda
tion. The applicants are being denied a fair oppor
tunity to correct or contradict any facts alleged by
the exporters or importers or to make their case in
reply in a meaningful manner.
The respondents argue on the other hand, that
the word "may" in subsection 84(3) bestows a
discretion upon the Deputy Minister as to whether
or not to disclose the confidential information.
They maintain that the Act is to be read as a
whole in its entire context in order to ascertain the
intention of Parliament, the object of the Act and
the scheme of the Act. The words of the individual
provisions to be applied to the particular case
under consideration are then to be read in their
grammatical and ordinary sense in light of the
object and scheme of the Act as a whole. The Act
contains a number of mandatory provisions which
require the Deputy Minister to take certain action.
Sections 31 to 41 which deal with the commence
ment of the initial investigation, the making of a
preliminary determination and a final determina
tion use the "mandatory" "shall" in directing the
Deputy Minister to take action. Since words
should be given the same meaning throughout the
whole Act, the respondents argue that had Parlia
ment intended a duty to rest with the Deputy
Minister instead of a discretion it would have so
indicated by using the word "shall" in subsection
84(3).
In addition, the respondents submit that in
making a preliminary determination under the
Act, the Deputy Minister is exercising an adminis
trative decision and not one of a quasi-judicial
nature. Consequently, he is not obliged to abide by
the rules of natural justice although he is under a
duty to act fairly. The content of the duty to act
fairly is dependent on the legislative context of the
power as a whole. In this case the respondents
contend that there is no indication that the appli
cants have been treated unfairly by the Deputy
Minister; their only argument in support of unfair
treatment is that they are being denied disclosure
of confidential information which they want.
Because the nature of the Deputy Minister's deci
sion under subsection 84(3) is administrative, the
respondents maintain that it is the Deputy Minis
ter who is the fact finder and the Court has no
jurisdiction to substitute its opinion on a matter
within the administrative discretion of the Deputy
Minister.
Generally, the purpose of the Special Import
Measures Act is to protect Canadian manufactur
ers and producers from the dumping of goods into
the Canadian market which results from goods
being imported into Canada at lower prices than
they would be sold in their home market. The
domestic market is entitled to protection under the
Act if it is established that dumped goods have
caused or threaten to cause injury to Canadian
production of the same goods. Anti-dumping duty
may be levied on these imports to offset the price
advantage caused by dumping.
The general question which must be answered in
this case is what is the Deputy Minister's statutory
duty in light of the circumstances of this particular
case. The answer to that lies in the resolution of
two issues, namely, the meaning of the word
"may" as used in subsection 84(3) in light of the
legislative context of the Act as a whole and a
determination of the nature of the decision-making
power vested in the Deputy Minister and the
resulting duty of fairness owed by him to the
applicants.
In construing a statute the words must be inter
preted in their ordinary grammatical sense, unless
there is something in the context, or in the object
of the Act, to show that they were used in a special
sense different from their ordinary grammatical
sense. Looking at the provisions of the Special
Import Measures Act as a whole, I am of the
opinion that subsection 84(3) confers upon the
Deputy Minister a discretion as to whether or not
he will disclose the confidential information
obtained by him in the course of his investigation.
Counsel for the applicants have argued that provi
sions allowing for disclosure were not contained
within the Anti-dumping Act [R.S.C. 1970, c.
A-15], the predecessor to the Act in question.
From that fact counsel submit that I should infer
that Parliament intended that confidential infor
mation must be released by the Deputy Minister
upon request. That argument however is contrary
to well-established principles of statutory interpre
tation. The words of an individual provision in an
Act are not to be interpreted in vacuo; rather they
are to be read in their ordinary and grammatical
sense in the light of the intention of Parliament
embodied in the Act as a whole, the object of the
Act and the scheme of the Act, and if they are
clear and unambiguous and in harmony with that
intention, object and scheme and with the general
body of the law, there is no reason to attach a
different meaning to them.
In the present case it is not sufficient to look
only to the provisions dealing with disclosure of
confidential information; one must also consider
the sections of the Act which allow a person
providing information to the Deputy Minister to
designate it as confidential. While it is clear that
Parliament intended greater disclosure of the
information collected by Revenue Canada during
an investigation than existed under the previous
legislation, it is also apparent that the legislators
recognized that certain types of information must
remain confidential. This represents a recognition
by Parliament that the disclosure of certain pro
prietary or commercial data could threaten the
interests of the person providing it should it be
revealed to a competitor. Disclosure of informa
tion, which is an essential element of the scheme
and purpose of the Act must be balanced against
some measure of reassurance to foreign companies
that the confidential information with which they
entrust our public officials will not be disclosed
upon request. Consequently, even if I were pur-
suaded that the word "may" in subsection 84(3)
could have two possible interpretations I would be
precluded from finding that it was mandatory as
such a finding would fail to achieve the manifest
purpose of the Act. The Court should avoid a
construction which would reduce the legislation to
futility and should rather accept the construction
based on the view that Parliament would legislate
only for the purpose of bringing about an effective
result. Were I to accept the applicants' argument
that once a request is made for confidential infor
mation the Deputy Minister no longer has any
discretion in the matter, except to set out the terms
and conditions under which it was released, I
would be rendering the confidentiality provisions
of the Act null and void. In effect, there would be
little point in a foreign company designating the
information provided by it as confidential since the
Deputy Minister would have to disclose it upon
request in any event.
I am persuaded as well by the argument that the
Special Import Measures Act contains many
provisions which direct the Deputy Minister to
take certain action. For example, sections 31 to 41
of the Act which deal with the commencement of
the initial investigation, the making of a prelim
inary determination and a final determination use
the mandatory "shall". Since words should be
given the same meaning throughout the whole Act,
one must ask why Parliament used the word
"may" had it intended that the disclosure of confi
dential information by the Deputy Minister be
mandatory. The word "may" is used in subsection
84(3) and there is nothing in the context which
would give it any meaning other than the permis
sive one ascribed to it in section 28 of the Interpre
tation Act [R.S.C. 1970, c. I-23]. This is not a
case for the application of the principle that per
missive words may be construed as creating a duty
where they confer a power the exercise of which is
necessary to effectuate a right. The Special
Import Measures Act does not create or recognize
a legal right on the part of the applicants to the
disclosure of confidential information in the
Deputy Minister's possession. The words in subsec
tion 84(3) "subject to such conditions as the
Deputy Minister considers are reasonably neces
sary or desirable to ensure that the information
will not ... be disclosed" do not define a right or
entitlement to the disclosure of confidential infor
mation but rather set out the terms and conditions
to which the disclosure may be subject. In this
regard, I have adopted the approach taken by Le
Dain J. in Maple Lodge Farms Ltd. v. R., [1981]
1 F.C. 500 (C.A.), affirmed by the Supreme Court
of Canada [1982] 2 S.C.R. 2.
I turn now to a consideration of the nature of
the decision-making power vested in the Deputy
Minister by virtue of the Special Import Measures
Act. The same question was considered by this
Court in Mitsui & Co. v. M.N.R.; Okura & Co. v.
Minister of Revenue (1977), 2 B.L.R. 281
(F.C.T.D.) with regards to the Deputy Minister's
role under the Anti-dumping Act. In that case the
applicants contended that they had a right to know
the information before the Deputy Minister as a
result of his investigation. Cattanach J. stated at
pages 290-291:
In my view, in the absence of an express or implicit obliga
tion imposed upon the Deputy Minister by the Act to disclose
that information to the parties affected, which I do not think
the Anti-Dumping Act imposes, then the obligation to disclose
that information is dependent on whether the preliminary
determination of dumping is to be made on an administrative or
quasi-judicial basis. If the decision is administrative, then no
obligation lays upon the Deputy Minister to disclose the infor
mation, nor to give reasons for his conclusion. On the other
hand, if the decision is quasi-judicial, then the principles of
natural justice are applicable, and disclosure should be made in
order that an answer may be made.
To determine into which category the decision of the Deputy
Minister falls, it becomes necessary to consider precisely what
duty is imposed upon the Deputy Minister, and in so doing
resort may be had to the subject-matter with which the statute
deals and the object it has in view. I accept that the object of
the Anti-Dumping Act is to protect the interest of the Canadi-
an public from dumped goods which might cause material
injury or retard the production of like goods in Canada. That
being so, the Deputy Minister is required by the Act to embark
upon an investigation.
[The Deputy Minister] is an officer of the executive branch of
government. He is empowered to make an investigation, to
gather information and on the basis of the information gath
ered to make a preliminary determination and ultimately a
final determination. The investigation is merely a fact-finding
expedition. There is no quasi -lis between quasi-parties.
For these reasons I reach the conclusion that the Deputy
Minister is acting in a purely administrative capacity and there
are no parties with the right to be informed of material before
the Deputy Minister or to be heard with respect thereto.
I am of the opinion that in conducting his
investigation under the Special Import Measures
Act for the purpose of calculating normal value,
export price and the resultant margin of dumping,
the Deputy Minister is not exercising a quasi-judi
cial function but is embarking on a "fact-finding
expedition" the nature of which is administrative.
In Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police, [1979] 1
S.C.R. 311, the Supreme Court eschewed the dis
tinction between judicial and administrative func
tions for the purpose of the threshold determina
tion of whether any procedural obligations can be
imposed. Nevertheless, it expressly retained the
distinction to differentiate between the content of
the rules of natural justice and the duty of fair
ness. Laskin C.J. accepted as a common law prin
ciple the dictum of Megarry J. in Bates v. Lord
Hailsham of St. Marylebone, [1972] 1 W.L.R.
1373 (Ch. D.), at page 1378, "that in the sphere of
the so-called quasi-judicial the rules of natural
justice run, and that in the administrative or
executive field there is a general duty of fairness".
While this is a sound principle when used as a
general guide nevertheless, the distinction between
natural justice and fairness can lead to anomalous
results. Strict reliance upon a distinction between
the two has been criticized by Dickson J., as he
was then, in Martineau v. Matsqui Institution
Disciplinary Board, [1980] 1 S.C.R. 602, at page
629:
In general, courts ought not to seek to distinguish between the
two concepts, for the drawing of a distinction between a duty to
act fairly, and a duty to act in accordance with the rules of
natural justice, yields an unwieldy conceptual framework.
However, the real purpose of continued reliance
upon the classification of function is to define the
content of the duty of fairness as it is applied to a
specific factual situation. The broad range of
powers exercised by public officials cannot be nor
should they be rigidly categorized. Nevertheless,
the courts have recognized that administrative
agency determinations may be characterized as
falling anywhere along a wide spectrum between
judicial and administrative functions which require
varying degrees of procedural protection. This was
the opinion expressed by Dickson J., as he was
then, in Minister of National Revenue v. Coopers
and Lybrand, [1979] 1 S.C.R. 495, at page 505.
Therefore, the real issue before the Court in cases
of this kind is whether the procedure followed is
fair in view of the nature of the power being
exercised. In this case the applicants maintain that
they are being treated unfairly by virtue of the
Deputy Minister's refusal to provide them with the
confidential information as requested. That argu
ment must fail. The applicants have failed to
provide this Court with any evidence of unfair
treatment; they have failed to produce any evi
dence to indicate that the Deputy Minister may
have used or been provided with incorrect informa
tion in his investigations. In effect, the applicants
have failed to provide any reason as to why I
should reverse the decision of the Deputy Minister
except that they want the confidential information
in order to ensure that the Deputy Minister has
correctly fulfilled his statutory duty in determining
normal value, export price and the resultant
margin of dumping. In my view, the applicants
have no statutory nor common law right to the
confidential information nor do they have the right
to force the Deputy Minister to solicit their assist
ance in the performance of his statutory duty. I am
not satisfied that the Deputy Minister's refusal to
disclose the confidential information in his posses
sion is a breach of any common law duty of
fairness. As stated by Le Dain J. in Inuit Tapirisat
of Canada v. The Right Honourable Jules Léger,
[1979] 1 F.C. 710 (C.A.), at page 717:
It is necessary to consider the legislative context of the power as
a whole. What is really in issue is what it is appropriate to
require of a particular authority in the way of procedure, given
the nature of the authority, the nature of the power exercised
by it, and the consequences of the power for the individuals
affected. The requirements of fairness must be balanced by the
needs of the administrative process in question. [Emphasis
added.]
Were I to find that the Deputy Minister was
required to provide such confidential information
on request, I cannot avoid the conclusion that the
whole legislative process would eventually come to
a grinding halt, while every complainant requested
the confidential information provided to the
Deputy Minister in order to make their own calcu
lations of normal value, export price and margin of
dumping. Counsel for the applicants argue that the
Court is precluded from taking this into account as
no affidavit evidence was submitted in support of
it. That argument however is an empty one; any
case involving statutory interpretation requires a
judge to take such considerations into account.
For the reasons expressed the applicants' motion
is dismissed.
In my view, the circumstances are such that I
should not grant costs to the successful respond
ents but rather the parties should each bear their
own costs.
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.