In re Anti-dumping Tribunal and re transparent
sheet glass
Court of Appeal, Thurlow J., Cameron and
Bastin D.JJ.—Ottawa, June 20, 21, 22 and 29,
1973.
Judicial review—Certiorari—Anti-dumping Tribunal—
Chairman formerly adviser to litigants—Signature of deci
sion by Chairman—No actual bias—Reasonable apprehen
sion of bias—Order in Court not signed—Whether sufficient
for certiorari—Federal Court Act, s. 18.
Crown—Certiorari—Right of Attorney General to apply
for writ—Federal Court Act, s. 18.
B was appointed Chairman of the Anti-dumping Tribunal
on January 1, 1969, and a Vice-Chairman and one other
member were appointed at the same time. For several years
prior to his appointment B had been employed as a consult
ant by two Canadian manufacturers of sheet glass, for
whom he had made representations to governmental authori
ties with respect to alleged dumping of imported sheet glass
into Canada. On his appointment to the Tribunal B terminat
ed his association with his two clients and while he made no
further representations on their behalf he did advise them
concerning a complaint of dumping made by them. The
complaint was brought before the Tribunal in February
1970. B informed the other two members of the Tribunal of
his association with the Canadian companies and, pursuant
to section 23(1)(a) of the Anti-dumping Act, R.S.C. 1970, c.
A-15, assigned the other two members to conduct hearings
on the complaint. These took place in February 1970 and B
was not present. On March 13, 1970, the other two mem
bers ordered that anti-dumping duty be assessed against
imported sheet glass. At the request of the Vice-Chairman B
read the final draft of their decision and made three gram
matical changes which did not affect its substance. B signed
the decision of the other two members, in the belief that
although his signature was not necessary it would be pru
dent for him to sign it. The decision signed by all three
members was forwarded to the Deputy Minister of Customs
and Excise and an unsigned copy of the order was retained
in the records of the Tribunal (which is a court of record).
On a motion for certiorari by the Attorney General under
section 18 of the Federal Court Act to quash the decision,
the unsigned copy of the decision was removed into this
Court.
Held, reversing Cattanach J., [1972] F.C. 1078, the deci
sion must be quashed.
Per Thurlow J. and Cameron D.J.: (1) In signing the
decision under the circumstances B adopted it as his own
and thus took part in it. It was immaterial that no copy of
the decision signed by B could be found in the records of
the Tribunal. B's name was listed on the unsigned copy of
the decision as the Chairman of the Tribunal and this was
conclusive as to his participation in the decision and could
not be contradicted by oral testimony as to the actual extent
of his participation or the reason for its insertion. Moreover,
if oral testimony were admissible to show what actually
occurred it would establish that the signed document was
the decision of the Tribunal.
(2) To disqualify a person presiding in a judicial proceed
ing on the ground of bias the test is a reasonable apprehen
sion of bias. Szilard v. Szasz [1955] S.C.R. 3, referred to.
(3) The Court had no jurisdiction to refuse an application
by the Attorney General on behalf of the Crown for a writ
of certiorari to quash the decision of the Tribunal once it has
been determined that the decision is invalid.
Per Bastin D.J.: On the evidence it must be concluded that
B participated in the decision. Since B did not take part in
the public hearing his participation in the decision vitiated
the decision.
(4) The Trial Division has jurisdiction under section 18 of
the Federal Court Act to hear this application by the Attor
ney General, and under section 61(2) such jurisdiction was
exercisable in respect to a matter arising before the coming
into force of the Federal Court Act.
APPEAL from Cattanach J. [1972] F.C. 1078.
COUNSEL:
C. R. O. Munro, Q.C., and R. Vincent for
applicant.
G. Killeen, Q.C., and J. P. C. Gauthier for
Anti-dumping Tribunal.
G. F. Henderson, Q.C., and G. Hynna for
W. W. Buchanan.
R. A. Smith, Q.C., for Canadian Pittsburgh
Industries.
J. F. Howard, Q.C., and D. J. M. Brown for
Pilkington Bros. (Canada) Ltd.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright and Houston, Ottawa, for
Anti-dumping Tribunal.
Gowling and Henderson, Ottawa, for W. W.
Buchanan.
Wahn, Mayer and Smith, Toronto, for
Canadian Pittsburgh Industries.
Blake, Cassels and Graydon, Toronto, for
Pilkington Bros. (Canada) Ltd.
Gottlieb and Agard, Montreal, for
Mineralimportexport.
THURLOW J. (orally)—This is an appeal from
the judgment of the Trial Division [Cattanach J.,
[1972] F.C. 1078] dismissing the application of
the Attorney General of Canada to quash an
order or finding of the Anti-dumping Tribunal
with respect to transparent glass from certain
eastern European countries. The grounds for
the application as stated in the notice of motion,
as amended, were that:
1. The Chairman of the said Tribunal participated in the
making of the decision although he had a pecuniary interest
in its subject matter;
2. The Chairman of the said Tribunal participated in the
making of the decision although he had or may have had, by
reason of his association with the Canadian firms whose
complaint in writing led to the institution of proceedings
under the Anti-dumping Act, a bias in their favour;
3. The Chairman of the said Tribunal participated in the
making of the decision although he was not present at the
hearing at which evidence was adduced and argument
advanced on behalf of the interested parties.
Of these, ground 1 was withdrawn by counsel
for the Attorney General on July 4, 1972. With
respect to the other two grounds Mr. Justice
Cattanach, before whom the application came
for hearing, after a careful and detailed exami
nation of the evidence, found that the Chairman
did not have a bias in favour of the Canadian
firms referred to but that he was disqualified
from participating in the making of the decision
of the Tribunal for the two-fold reason that:
(1) his relationship with the two Canadian Corporations
whose complaint in writing led to the institution of proceed
ings under the Anti-dumping Act gave rise to a reasonable
apprehension of bias in their favour and
(2) he was not present at the hearing.
The learned judge then considered the ques
tion whether in the circumstances the Chairman
did participate in the making of the decision by
the Tribunal and found that he did not do so
other than by signing a document which was
presented to him for signature in the circum
stances to be related. He went on to hold that as
it had not been established that the record of the
Tribunal contained a decision signed by the
Chairman the application to quash the decision
failed.
The material facts follow. Prior to January 1,
1969, when the Anti-dumping Act, which con
stituted the Anti-dumping Tribunal, came into
effect and when Mr. W. W. Buchanan became
its Chairman he had been acting as an adviser
on tariff matters to Canadian Pittsburgh Indus
tries Limited and Pilkington Brothers (Canada)
Limited. On his appointment Mr. Buchanan
severed his professional relationship with these
companies but for some time thereafter he con
tinued, free of charge, to give them advice and
suggestions and to make inquiries of govern
ment officials and to pass on to them the results
of such inquiries. These services were rendered
in connection with an application which the two
companies made to the Deputy Minister of
National Revenue for Customs and Excise in
February 1969 seeking the imposition of dump
ing duty, which application resulted in the refer
ence of the matter to the Tribunal for determi
nation of the questions referable to it and in the
decision attacked in these proceedings. In the
summer of 1969, when it was anticipated that
the matter would eventually be referred to the
Tribunal, Mr. Buchanan also arranged for the
other two members of the Tribunal to visit the
manufacturing plants of one or both of these
companies to acquaint them with their
operations.
There is evidence that early in the year 1969,
at the time when the Deputy Minister published
a notice of the glass companies' application in
the Canada Gazette, Mr. Buchanan advised the
other members of the Board that he would not
be sitting on the hearing of the application and
either before or after the matter was referred by
the Deputy Minister to the Tribunal in Decem-
ber 1969 the Chairman disqualified himself and
under section 23(1)' of the Anti-dumping Act
designated Mr. Gauthier and Mr. Barrow, the
other two members of the Tribunal, to deal with
it. He, therefore, did not attend or sit at the
hearings which were subsequently held in Feb-
ruary 1970 and indeed was out of Canada on
vacation when they were held. He returned,
however, before the decision was rendered.
A few days after his return a question arose
as to whether the two members were required
by section 28 2 to make a report to him on the
evidence they had heard and it appears from the
evidence of Mr. Gauthier that at that time the
Chairman thought such a report was necessary.
This at least suggests that the Chairman thought
at that time that he had some part to play in
rendering the decision of the Tribunal, notwith
standing the fact that he had disqualified him
self. The question of a report under section 28
was therefore referred to a solicitor of the
Treasury who advised that section 28 was not
applicable and, though not requested to do so,
went on to express the opinion that in view of
the absence of any provision in the Act respect
ing a quorum the safest practice would be to
have all members of the Tribunal sign the
formal judgment embodying the decision. Six
days later the solicitor expressed a further opin
ion that under the Interpretation Act the two
members who heard the evidence could give a
decision on behalf of the Tribunal. It does not
appear that the solicitor was ever informed of
the Chairman having disqualified himself or of
his reasons therefor.
The learned trial judge further found that Mr.
Gauthier and Mr. Barrow collaborated in writing
their finding or order without reference to or
consultation with Mr. Buchanan save that the
fifth draft was submitted to him for comments
on the grammar and composition and he sug
gested three changes to improve the wording,
grammar or construction. He was not asked to
comment on the substance of the finding or
order and did not do so and it was admitted
before the learned trial judge that Mr. Buchanan
did not influence or attempt to influence the
other members of the Tribunal. He did not even
suggest the elimination from the draft finding of
a paragraph, which he knew to be inappropriate,
purporting to order the Deputy Minister to
impose dumping duty.
Mr. Buchanan also said, in answer to ques
tions by his own counsel, that he gave no advice
to either company as to the contents of its brief,
that he never saw the brief of either company,
that he did no research on the case, prepared no
drafts of findings for the final decision, did not
discuss the case with his colleagues either
before, or after the hearing or during the delib
erations and had no association with the result.
However, when the fifth revised draft was
completed in its final form on March 13, 1970,
two copies of it, one in the English language and
the other in the French language, were present
ed to Mr. Buchanan for his signature and he
thereupon signed them on a line at the end
provided for the Chairman to sign and with his
name typed below it. The other members also
signed them and the Secretary signed them as
witness. Both signed copies were thereupon for
warded to the Deputy Minister. This was appar
ently done to comply with section 16(5) 3 of the
Act. No other copies were signed by anyone.
Those sent to the other parties to the proceed
ings in compliance with the same statutory
provision and those kept in the records of the
Tribunal bore no signatures at all. In the case of
Canadian Pittsburgh Industries Limited the
copies sent were accompanied by a letter signed
by the Secretary stating that the Tribunal had
made a finding under section 16(3) of the Act
and that he was enclosing copies thereof in both
English and French.
How Mr. Buchanan came to sign the docu
ment when he had earlier disqualified himself
from taking part in the case was explained by
him as follows:
A. In my view signing the document was a pure formality
and having regard for the two memoranda from Mr. Gray I
am bound to say I didn't feel compelled to sign it, the
decision, I thought it was perhaps the more prudent thing to
do.
The learned trial judge dealt with this aspect
of the matter in the following passage [at page
1119] from his reasons:
Whoever presented the document to him for signature or
caused it to be presented to him, either the Secretary or Mr.
Gauthier its presentation was made by reason of acceptance
by them of the advice of Mr. Gray in his letter of February
12, 1970 that "the safest practice would be to have all of the
members sign the formal document embodying the
decision."
Mr. Buchanan had also seen the correspondence from Mr.
Gray. There is no question that all three members of the
Tribunal as well as the Secretary were under the impression
that Mr. Gray's advice was that all three members of the
Tribunal must sign even if one of the signatories had not sat
at the hearings or participated in making the decision.
This was the first time the problem arose because at all
previous references all three members had sat and made the
decision.
This advice by Mr. Gray may have coincided with an
opinion held by Mr. Buchanan as early as October 27, 1969
because Mr. German indicated in his memorandum of that
date (Exhibit 11) that Mr. Buchanan had informed him "It
appears to be a little known fact that in withdrawing from
participation in the actual hearing, he cannot withdraw from
participation in the decision making."
Mr. Buchanan therefore signed the document dated
March 13, 1970 which was presented to him for that
purpose.
I am satisfied upon the evidence that Mr. Buchanan did
not actually participate in the making of the decision of the
Tribunal other than by signing the document which was
presented to him.
I know of no legal basis on which the memo
randum of Mr. German could properly be admit
ted in evidence as it was over the objection of
counsel as evidence of Mr. Buchanan's opinion
but the fact that Mr. Buchanan held such an
opinion may, I think, be inferred from the evi
dence of Mr. Gauthier that Mr. Buchanan
leaned to the view that a section 28 report on
the evidence heard by the two members should
be made to him and that that was the occasion
for referring the question of the application of
section 28 to the solicitor for an opinion.
The finding or order was typed of some four
teen sheets of paper the first two of which were
not numbered. The first of these was on a
letterhead of the Anti-dumping Tribunal and
consisted of a title page identifying the inquiry
and stating the place and date. On the second
sheet were typed the words:
Anti-dumping Tribunal
Chairman W. W. Buchanan
Member J. P. C. Gauthier
Member B. G. Barrow
Secretary and Director of Inquiries C. D. Arthur
Address all communications to
The Secretary, Anti-dumping Tribunal
Justice Building,
Ottawa, Canada.
The next page commenced with the wording
"finding by the Anti-dumping Tribunal on" etc.
and from there onward the Tribunal is referred
to as the Tribunal and no mention is made of
any particular member or members of it. Nor
does the unsigned copy in evidence, as typed,
purport as did the signed copies, to show places
for signature or signatures by anyone.
The principal issue in the appeal, as I see it, is
whether in these circumstances the Chairman
should be held to have participated in the deci
sion of the Tribunal and thus to have rendered it
void by reason of the fact that he was disquali
fied from participating in it. In considering this
issue I do not think it is necessary to go so far
as to say that a mere signature on a document
such as the decision here in question, or the
inference of participation which seems to me to
arise from it, can in no circumstances be
explained. One can conceive, for example, of a
situation where mistake as to the document
being signed could account for a signature
appearing thereon. Here, however, it is apparent
from the evidence that the Chairman knew what
it was that he was signing and that it was not
necessary for him to sign it and to my mind the
answer which I have cited from his evidence
shows that regardless of what led him to do so
and whether it was regarded as a formality or
not, he in fact signed it because he considered it
appropriate to indicate by his signature thereto
that he adopted the decision as his own. More
over, he signed it in the place provided for the
signature of the Chairman and it seems to me
that to anyone to whose attention it may there
after have come the implication that he par
ticipated in giving the decision is as plain as if
he and the other members had been present at a
sittings and he had read out the finding and
announced it as being his own and that of the
other members. It appears from subsection
16(5) that it was not intended that decisions of
the Tribunal should be pronounced in open
court but it seems to me that that feature of the
situation gives added importance to the docu
ment by which the judgment is pronounced as
evidence of the action of the Tribunal. To my
mind it matters not that the Chairman had done
little or no work on the case or had exercised no
influence whatever on the result. As I see it, he
adopted the decision as his own when he signed
it as Chairman of the Tribunal and he thus took
part in it. Accordingly I agree with the conclu
sion of the learned trial judge that by his signing
of the decision Mr. Buchanan did in fact partici
pate in the decision.
I am, however, with respect, unable to accept
the conclusion that, because no copy of the
decision purporting to be signed by Mr. Bucha-
nan is to be found in the record of the Tribunal,
it has not been established that Mr. Buchanan
participated in the decision. Examples are not
hard to find of courts of record wherein the
practice does not call for signature of the judg
ment by the judge or judges who make it and
there is no statutory or other rule of which I am
aware that required the members or the Secre
tary of the Anti-dumping Tribunal or anyone
else to sign the finding or order. I do not think
therefore that the lack of a signature of Mr.
Buchanan, or of anyone else, on the document
on file in the records of the Anti-dumping Tri
bunal purporting to be the finding or order of
the Tribunal is critical or that it has much to do
with the case. What appears to me to be of
some, though not necessarily of critical, impor
tance is whether there was a record of the
Tribunal from which it appeared that the Chair
man had taken part in the decision.
If it is accepted that the unsigned document
on file in the Tribunal is its finding, or the only
authentic record thereof, and if, as the learned
judge held, only the record of the Tribunal may
be looked at in this proceeding it seems to me
that the correct interpretation of that document
is that it is a finding made by the members of
the Tribunal whose names appear on the second
sheet of the document as constituting the Tri
bunal. On the same basis it also seems to me
that oral evidence as to the actual extent of
participation, by any of the members named, in
reaching the decision is irrelevant and for that
reason inadmissible and that evidence that one
of them did not participate at all would be
inadmissible as contradicting the plain purport
of the document. Moreover, the evidence of
witnesses of the purpose of such a sheet in the
document is likewise inadmissible as being a
usurpation by the witness of the Court's func
tion to interpret the document. In my opinion,
therefore, the unsigned record copy, if viewed
alone, says and means, and thus establishes,
that the Chairman participated in the decision.
On the other hand if evidence is admissible to
show what actually occurred—as it seems to me
must be permissible whenever records are miss
ing or destroyed or have, whether properly or
improperly, left the custody of the Court—it
appears to me that the evidence in this case
shows that the fifth draft of the document was
intended to be and in fact became the finding of
the Tribunal when it was signed and thus
authenticated as the finding by the Chairman
and members of the Tribunal, and by the Secre
tary as a witness to their signatures, but that
instead of filing it or otherwise recording it in
full in the records of the Tribunal, in accordance
with the usual practice of courts of record, the
Secretary, whether by mistake or misdirection
or unfamiliarity with such practice, in purported
compliance with his duty to send a copy of it to
the Deputy Minister, instead of sending a copy,
sent the original document. In this view the
document so signed was the finding of the Tri
bunal and I do not think it can be said that it has
not been established that the Chairman signed
it.
In my opinion therefore participation by the
Chairman in the decision has been established.
In the course of the argument of the appeal
three further issues were raised.
First, it was submitted by counsel for Mr.
Buchanan and Canadian Pittsburgh Industries
Limited that to disqualify on the ground of bias
the true test is not whether there is "a reason
able apprehension of bias" but whether there
was "a real likelihood of bias" and that the
reasonable apprehension of bias found by the
learned trial judge was not sufficient to disquali
fy the Chairman. On this point it seems to me
that a reasonable apprehension of bias imports
more than a mere fanciful suspicion; it requires
what has been referred to as "a reasoned suspi
cion" and I doubt that it differs in substance
from what has been referred to as "a real likeli
hood of bias". The latter expression was
explained by Denning M.R. in Metropolitan
Properties Co. v. Lannon [1968] 3 All E.R. 304
at p. 309, as follows:
So far as bias is concerned, it was acknowledged that
there was no actual bias on the part of Mr. Lannon, and no
want of good faith. But it was said that there was, albeit
unconscious, a real likelihood of bias. This is a matter on
which the law is not altogether clear; but I start with the
oft-repeated saying of Lord Hewart, C.J., in R. v. Sussex
Justices, Ex p. McCarthy ([1923] All E.R. Rep. 233 at p.
234):
... it is not merely of some importance, but of fundamen
tal importance, that justice should both be done and be
manifestly seen to be done.
In R. v. Barnsley County Borough Licensing Justices, Ex p.
Barnsley & District Licensed Victuallers' Assocn. ([1960] 2
All E.R. 703 at pp. 714, 715) Devlin, L.J., appears to have
limited that principle considerably, but I would stand by it.
It brings home this point; in considering whether there was a
real likelihood of bias, the court does not look at the mind of
the justice himself or at the mind of the chairman of the
tribunal, or whoever it may be, who sits in a judicial
capacity. It does not look to see if there was a real likeli
hood that he would, or did, in fact favour one side at the
expense of the other. The court looks at the impression
which would be given to other people. Even if he was as
impartial as could be, nevertheless, if right-minded persons
would think that, in the circumstances, there was a real
likelihood of bias on his part, then he should not sit. And if
he does sit, his decision cannot stand: see R. v. Huggins
([1895-99] All E.R. Rep. 914); R. v. Sunderland Justices
([1901] 2 K.B. 357 at p. 373) per Vaughan Williams, L.J.
Nevertheless, there must appear to be a real likelihood of
bias. Surmise or conjecture is not enough: see R. v. Cam-
borne Justices, Ex p. Pearce ([1955] 1 Q.B. 41 at pp. 48-51);
R. v. Nailsworth Justices, Ex. p. Bird ([1953] 2 All E.R.
652). There must be circumstances from which a reasonable
man would think it likely or probable that the justice, or
chairman, as the case may be, would, or did, favour one side
unfairly at the expense of the other. The court will not
enquire whether he did, in fact, favour one side unfairly.
Suffice it that reasonable people might think he did. The
reason is plain enough. Justice must be rooted in confi
dence; and confidence is destroyed when right-minded
people go away thinking: "The judge was biased."
However, whether or not there is a difference
between "a reasonable apprehension of bias"
and "a real likelihood of bias" the test of a
reasonable apprehension of bias is what has
been applied by the Supreme Court in Szilard v.
Szasz [1955] S.C.R. 3, and more recently in
Blanchette v. C.I.S. Limited (May 3, 1973, not
yet reported) and must therefore be regarded as
the applicable test. In the Szilard case Rand J.
put the matter thus at page 6:
These authorities illustrate the nature and degree of busi
ness and personal relationships which raise such a doubt of
impartiality as enables a party to an arbitration to challenge
the tribunal set up. It is the probability or the reasoned
suspicion of biased appraisal and judgment, unintended
though it may be, that defeats the adjudication at its thresh
old. Each party, acting reasonably, is entitled to a sustained
confidence in the independence of mind of those who are to
sit in judgment on him and his affairs.
Especially so is this the case where he has agreed to the
person selected. The Court of Appeal took the view that
"from that circumstance alone" (the joint ownership of the
property) "it is not to be inferred that the arbitrator would
not act in an entirely impartial manner, and there is no
evidence before us that he did not in fact act in an impartial
manner." But as the facts show, it is not merely a case of
joint ownership. Nor is it that we must be able to infer that
the arbitrator "would not act in an entirely impartial man
ner"; it is sufficient if there is the basis for a reasonable
apprehension of so acting. I think it most probable, if not
indubitable, that had the facts been disclosed to Szilard, he
would have refused, and justifiably, to accept Sommer.
Having regard to the evidence of the relation
ship and association of the Chairman with the
glass companies and their representatives during
the period after he became Chairman of the
Tribunal there is, in my opinion, no basis for
disturbing the finding of the learned trial judge
that the Chairman was disqualified because of a
reasonable apprehension of bias.
Apart from the question of bias, however,
there is the fact that Mr. Buchanan had not
heard the evidence, which alone is a sufficient
basis of disqualification from participating in
the decision.
Next it was submitted that, notwithstanding
the disqualification of the Chairman and his
participation in the decision, the Court has a
discretion to decline relief and should on the
facts of the present case refuse it. It was said
that there was delay of some two years after the
facts were known before the proceedings were
brought, that the Chairman's participation, if
there was any, was minimal, that the learned
trial judge though considering that there was a
reasonable apprehension of bias found that the
Chairman was not in fact biased, that none of
the importers whose rights were affected by the
decision was concerned about the decision or
the appearance of participation by the Chairman
therein and if sufficiently concerned to inquire
would have been apprised by the Secretary of
the fact that the Chairman had not taken part in
the decision making process, that there was
misconduct on the part of the applicant in a
wide variety of respects relating to the inquiries
made before bringing these proceedings, the
allegations made in them and the steps taken by
the applicant in the course of bringing them,
that no good will come of quashing the decision
but the glass companies will be adversely affect
ed if it is quashed, that the objections to the
decision are really only technical since there is
no challenge to its correctness and that there
was an avenue of recourse under section 31' of
the Anti-dumping Act which was open and
which if taken would have afforded a means of
correcting the faults without necessarily disturb
ing the result.
In my opinion while some of these matters, if
established, and in particular those relating to
delay, and an alternative remedy, and the
absence of any attack on the correctness of the
decision, might well have been taken into con
sideration on an application by a subject for
leave to issue a writ of certiorari none of them,
even if established, can operate to bar the claim
of the Attorney General acting on behalf of the
Crown to have a decision of the Tribunal
quashed on certiorari if proper grounds for
voiding it are shown. The question of discretion,
in my understanding of the principles applied in
the former two step certiorari procedure, only
arose on the application for leave to issue the
prerogative writ. If the writ issued there never
was, so far as I am aware, any question on the
subsequent motion to quash other than that of
the legality of the decision attacked.
In the modern type of procedure, in which the
two applications are compressed into one, the
two questions of discretion to grant the relief
claimed and the merits of the legal objections to
the decision under attack are considered to
gether and it is not surprising to find that
applications are frequently refused in the exer
cise of the court's discretion notwithstanding
that valid objections to the decision may have
been established. However, no case having such
a result was referred to in which the application
had been made by the Attorney General on
behalf of the Crown and as the writ formerly
issued of right when applied for by him there
appears to me to be no legal basis upon which it
could be held that the Court now has any discre
tion to refuse his application when a valid
objection to the decision under attack is
established.
The scope of the discretion of the Court is
described in 11 Hals. 3rd ed., page 139 as
follows:
263. Certiorari as of course. The order of certiorari is
granted as of course upon the application of the Attorney-
General, acting on behalf of the Crown, in all cases in which
the court has jurisdiction over the subject matter of the
proceedings in the inferior court.
264. When the order is discretionary. In cases other than
those which have been mentioned the order is discretionary.
See also The King v. Eaton (1787) 2 T.R. 49,
The King v. Bass (1793) 5 T.R. 251, Re Ruggles
35 N.S.R. 57 and The King v. Amendt [1915] 2
K.B. 276.
I am accordingly of the opinion that the Court
has no discretion to refuse to quash the decision
made by the Anti-dumping Tribunal once it has
been determined that the decision is invalid.
The final point, which was raised by counsel
for Mr. Buchanan in the course of his argument
though it was not stated in his memorandum,
was that the Trial Division did not have jurisdic
tion to entertain an application by the Attorney
General for relief in the nature of certiorari to
quash the decision of the Anti-dumping Tri
bunal. The submission, as I understood it, was,
first, that in order for the Court to have jurisdic
tion the application must be shown to fall within
section 18 of the Federal Court Act and that
section 18 is retrospective, and, second, that
since section 18 does not purport to confer
expressly upon the Attorney General the right
to bring proceedings of the kind therein men
tioned (as does section 28(2) in the case of
proceedings under that section) and seems to
contemplate that the Attorney General can only
be a respondent the Court did not have jurisdic
tion to entertain an application by him.
Prior to June 1, 1971 section 30 of the Anti-
dumping Act had provided with respect to deci
sions of the Anti-dumping Tribunal as follows:
30. (1) Subject to section 31, every order or finding of
the Tribunal is final and conclusive.
(2) The Exchequer Court of Canada has exclusive origi
nal jurisdiction to hear and determine every application for a
writ of certiorari, prohibition or mandamus or for an injunc
tion in relation to any order or finding of the Tribunal or any
proceedings before the Tribunal.
(3) An order or finding of the Tribunal is not subject to
review or to be restrained, removed or set aside by certior-
ari, prohibition, mandamus or injunction or any other pro
cess or proceeding in the Exchequer Court on the ground
(a) that a question of law or fact was erroneously decided
by the Tribunal; or
(b) that the Tribunal had no jurisdiction to entertain the
proceedings in which the order or finding was made or to
make the order or finding.
It seems to me that the effect of this section
was (1) that prior to June 1, 1971 there was no
jurisdiction, and indeed never had been any
jurisdiction, in any provincial superior court to
entertain proceedings of the kind referred to in
the section in respect of any decision or order
of the Anti-dumping Tribunal, (2) that exclusive
jurisdiction to entertain any proceeding of that
kind in respect of an order of the Tribunal had
been vested from the outset in the Exchequer
Court of Canada and (3) that the limits of the
situations in which the Exchequer Court might
act in such proceedings had been strictly cir
cumscribed, if not entirely eliminated, by sub
section 30(3). In particular, subsection 30(3)
pre-empted the Exchequer Court from quashing
any such order or finding in certiorari proceed
ings on the ground of lack of jurisdiction to
make the order or finding.
The repeal of these provisions by subsection
64(3) 5 of the Federal Court Act coupled with the
conferring, by section 18 of the same Act, on
the Trial Division of the same Court under its
new name of general jurisdiction to issue writs
of certiorari and to hear applications or other
proceedings for relief in the nature of certiorari
directed against the decision of any federal
board, commission or tribunal appears to me to
have created a jurisdiction to quash an order or
finding of the Anti-dumping Tribunal on the
ground of lack of jurisdiction in the Tribunal to
make it and it further appears to me that the
effect of subsection 61(2) 6 of the Federal Court
Act is that such jurisdiction is exercisable in
respect of matters arising before June 1, 1971.
It is quite true that in creating this jurisdiction
the Act does not expressly say that it may be
invoked by a proceeding brought by the Attor
ney General. Indeed, it does not mention
anyone by whom such a proceeding may be
brought. But I think it is plain that it was intend
ed that the jurisdiction might be invoked by
someone and I see no reason why it should be
restricted to such proceedings when brought by
someone other than the Attorney General acting
on behalf of the Crown when what is provided
was not a new or theretofore unknown type of
review procedure, as was that provided by sec
tion 28, but a well known procedure which for
centuries has been open to the Attorney General
in other courts and situations and in which the
relief has been demandable by him as of right.
Nor do I see anything in the provisions of
subsection 18(2) providing for proceedings to be
brought against him as representing a federal
board, commission or tribunal which is incon
sistent with this conclusion. I would therefore
reject the submission.
In the result therefore the appeal, in my opin
ion, succeeds and should be allowed. I would
not disturb the order of the learned trial judge in
so far as it awards to Mr. Buchanan his party
and party costs up to and including July 4, 1972
when the allegation that he had a pecuniary
interest was withdrawn, but in all other respects
I would set aside the judgment of the Trial
Division and order that the decision of the Anti-
dumping Tribunal be quashed. The Attorney
General has not asked for costs and, save as
mentioned, there should be no costs to any
party either in the Trial Division or on the
appeal.
* * *
CAMERON D.J. concurred.
* * *
BASTIN D.J. (orally)—In my opinion there is
only one issue in this case which is: Did Mr.
Buchanan, the Chairman of the Anti-dumping
Tribunal, participate in the decision of the Tri
bunal? The learned Trial Judge made a finding
that he participated if he actually signed the
decision, but he held that he was precluded
from finding that he signed the decision on the
principle of law enunciated in the case of Rex v.
Nat Bell Liquors, Ld. [1922] 2 A.C. 128, which
required him to confine himself to an examina
tion of the record.
The learned Trial Judge has based his deci
sion on his opinion that the record of the Anti-
dumping Tribunal as a court of record must
consist of a document embodying the decision
bearing the actual signatures of the members
who made it. He says at page 1132 of his
reasons ([1972] F.C. 1078):
First the original document embodying the order or finding
of the Tribunal signed by the members who made that order
or finding should constitute the most material part of the
record.
Earlier in his reasons he had stated at page
1130:
There is no doubt whatsoever that Mr. Buchanan signed a
document which he thought was a finding of the Tribunal.
Equally there is no doubt, for the reasons I have stated
above, that the record of the Tribunal does not contain a
finding signed by Mr. Buchanan. The document that was
signed by him and the members of the Tribunal as well as
the Secretary as witness was sent to the Deputy Minister.
The document in the possession of the Deputy Minister is
not a copy of the document in the record of the Tribunal
because it bears the signature of all members of the Tribunal
and the Secretary, whereas the document in the record of
the Tribunal bears none of those signatures.
At page 1132 he stated:
In my view Mr. Buchanan was disqualified from par
ticipating in making the decision. There was ample evidence
to that effect. Evidence is properly adduced on the question
of bias. His participation would consist of signing the deci-
sion. It has been established that the record of the Tribunal
does not contain a decision that was signed by Mr. Bucha-
nan. That being so it follows that he did not participate in
making the decision.
In my opinion, the document without signature
which was retained on the files of the Tribunal
is the record of its proceedings. It consisted of
14 pages, the second sheet listing the Chairman
and the two other members by name and the
fourteenth sheet being blank and devoid of sig
natures after the ending of the text of the find
ing. Apparently the document produced by the
Tribunal to the Court was not an exact copy of
the one on file as it had inserted on the last page
copies of the signatures of the three members of
the Tribunal. The Court was entitled to inspect
the actual record of the Tribunal so the copy of
the decision on the file of the Tribunal should
have been produced.
The record of the proceedings of a court of
record is not the documents signed by the
judges but the permanent record in the books
kept for that purpose. Jowitt's Dictionary of
English Law defines courts of record as
follows:
Record, Courts of, courts whose judicial acts and pro
ceedings are enrolled for a perpetual memorial and testimo
ny, which rolls are called the records of the court, and are of
such high and supereminent authority that their truth is not
to be called in question.
Rule 338 of the Rules of the Federal Court,
bearing the marginal title "recording", reads in
part as follows:
Rule 338. (1) Every judgment and order shall be recorded
by the proper officer of the Registry by an entry in a book
kept for the purpose, forthwith after it is pronounced,
delivered or made.
It was revealed that the Anti-dumping Tribunal
had made no rules, but there is nothing illegal in
treating unsigned copies of the decisions of the
Tribunal as the record of its proceedings and
these can, therefore, be considered the official
record.
The copy of the decision of the Tribunal on
the files of that body, which bears the names of
the Chairman and the other two members, indi
cates that they made the decision; it was avail
able to the learned Trial Judge and was proof
that Mr. Buchanan had participated in the deci-
sion. Having properly found that Mr. Buchanan
was disqualified from participating in making
the decision, the learned Trial Judge should
have held that Mr. Buchanan had participated
and that the decision of the Anti-dumping Tri
bunal was therefore invalid.
If it should have been held that the decision
signed by the members of the Tribunal was the
record of the Tribunal, there is no principle of
law which precludes the Court from ascertain
ing what had become of it and what it con
tained. On any other reasoning, an inferior tri
bunal could prevent a review of its proceedings
by keeping no record, secreting its record, or
destroying it. It is beyond dispute that Mr.
Buchanan and the two other members of the
Tribunal signed copies of the decision in French
and English and that both were sent to the
Deputy Minister. The learned Trial Judge should
not have ignored these facts which proved that
Mr. Buchanan participated in the decision.
Admittedly, Mr. Buchanan did not take part
in the public hearings at which evidence was
adduced so on that ground alone, without con
sidering the matter of apprehension or likeli
hood of bias, his participation in the decision
vitiated the decision.
The question as to whether in all the circum
stances of the case, Mr. Buchanan participated
in the decision of the Tribunal by signing it is a
question of fact. After reviewing all the facts in
detail, the learned Trial Judge has this to say [at
page 1121]:
I fail to follow that, when a member of a Tribunal affixes
his signature to a finding, it can be said that he did not adopt
the finding as his own. Therefore if the finding should come
to the attention of an interested person in the ordinary
course, with the signature of a member thereon or a clear
indication that his signature was affixed, then that person is
entitled to assume that the member participated in making
the finding.
I believe the evidence justified a finding that
Mr. Buchanan signed the decision and par
ticipated in it. I would dispose of the appeal as
proposed by Mr. Justice Thurlow.
23. (1) The Chairman is the chief executive officer of
the Tribunal and has supervision over and direction of the
work of the Tribunal including
(a) the apportionment of the work among the members
thereof and the assignment of members to sit at hearings
of the Tribunal and to preside thereat, and
(b) generally, the conduct of the work of the Tribunal, the
management of its internal affairs and the duties of the
staff of the Tribunal.
2 28. (2) A member by whom evidence relating to any
hearing has been received pursuant to subsection (1) shall
make a report thereon to the Tribunal and a copy of the
report shall be provided to each of the parties to the hearing.
3 16. (5) The Secretary shall forward by registered mail a
copy of each order or finding to the Deputy Minister, the
importer, the exporter and such other persons as may be
specified by the rules of the Tribunal.
4 31. The Tribunal may, at any time after the date of any
order or finding made by it, review, rescind, change, alter or
vary the said order or finding or may re-hear any matter
before deciding it.
64. (3) The Acts or parts of Acts set out in Column I of
Schedule B to this Act are repealed or amended in the
manner and to the extent indicated in Column II of that
Schedule.
6 61. (2) Subject to subsection (1), any jurisdiction creat
ed by this Act shall be exercised in respect of matters
arising as well before as after the coming into force of this
Act.
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.