A-147-74
In re Anti-dumping Act and in re Y.K.K. Zipper
Co. of Canada Ltd. (Applicant)
Court of Appeal, Jackett C.J., Pratte and Urie
JJ.—Ottawa, January 7, 8 and 17, 1975.
Judicial review—Decision of Anti-dumping Tribunal—
Imports harming production of "like goods"—Finding
upheld—Anti-dumping Act, R.S.C. 1970, c. A-15, as am. ss.
13, 14, 15, 16, 29—Federal Court Act, s. 28 and Federal Court
Rule 201.
On complaint by the Society of Canadian Slide Fastener
Manufacturers, the Deputy Minister of National Revenue for
Customs and Excise initiated an investigation, under section
13(1) of the Anti-dumping Act, into alleged dumping into
Canada of slide fasteners or zippers and parts thereof, manu
factured by a Japanese exporter. After inquiry under section
14(1) of the Act, the Deputy Minister made a preliminary
determination of dumping respecting the goods in question. At
the resulting inquiry before the Anti-dumping Tribunal, under
section 16(1) of the Act, it was found that the dumping
described in the preliminary determination was causing
"material injury to the production in Canada of like goods". A
section 28 application was made to review and set aside this
decision.
Held, dismissing the application, the basic error alleged by
the applicant was that finished zippers and zipper parts were
not, taken together, "like goods" within the meaning of the
Act; and that the Tribunal should have considered the effect of
the dumping of parts, not only on the production in Canada of
finished zippers, but also on the production in Canada of parts.
However, the finding of the Tribunal was that the applicant
was an importer of certain dumped finished or partly finished
zippers which were, in its view, "like goods" to certain zippers
produced in Canada, and thus within the class formulated by
the Deputy Minister in his preliminary determination. The
Tribunal's finding was eminently sound in the determination of
this case.
Mitsui & Co. Ltd. v. Anti-Dumping Tribunal [1972] F.C.
944, considered.
JUDICIAL review.
COUNSEL:
R. S. Gottlieb and M. Kaylor, for applicant.
J. L. Shields for respondent, Tribunal.
J. M. Coyne, Q.C., for Society of Canadian
Slide Fastener Manufacturers.
SOLICITORS:
Rappaport, Whelan, Bessner, Gottlieb, Agard
& Feldman, Montreal, for applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent,
Tribunal.
Herridge, Tolmie, Gray, Coyne & Blair,
Ottawa, for Society of Canadian Slide Fas
tener Manufacturers.
The following are the reasons for judgment
delivered orally in English by
URIE J.: This is an application made pursuant to
section 28 of the Federal Court Act to review and
set aside a decision of the Anti-dumping Tribunal
rendered on June 7, 1974, following an inquiry
conducted under the provisions of section 16(1)' of
the Anti-dumping Act, R.S.C. 1970, c. A-15
(hereinafter called the Act).
' 16. (1) The Tribunal, forthwith upon receipt by the Secre
tary under subsection 14(2) of a notice of a preliminary
determination of dumping, shall, in respect of the goods to
which the preliminary determination of dumping applies, make
inquiry as to whether
(a) the dumping of the goods that are the subject of the
inquiry
(i) has caused, is causing or is likely to cause material
injury to the production in Canada of like goods,
(ii) has materially retarded or is materially retarding the
establishment of the production in Canada of like goods, or
(iii) would have caused material injury to the production
in Canada of like goods except for the fact that provisional
duty was applied in respect of the goods; or
(b) in the case of any goods to which the preliminary
determination of dumping applies,
(i) either
(A) there has occurred a considerable importation of
like goods that were dumped, which dumping has caused
material injury to the production in Canada of like
goods or would have caused material injury to such
production except for the application of anti-dumping
measures, or
(B) the importer of the goods was or should have been
aware that the exporter was practising dumping and
that such dumping would cause material injury to the
production in Canada of like goods, and
(ii) material injury has been caused to the production in
Canada of like goods by reason of the fact that the entered
goods constitute a massive importation or form part of a
series of importations into Canada of dumped goods that
in the aggregate are massive and that have occurred within
a relatively short period of time, and in order to prevent
the recurrence of such material injury, it appears necessary
to the Tribunal that duty be assessed on the entered goods.
The events leading to the inquiry arose as a
result of a complaint made by the Society of
Canadian Slide Fastener Manufacturers. In
accordance with the provisions of section 13(1) of
the Act 2 , the Deputy Minister of National Reve
nue for Customs and Excise initiated an investiga
tion in respect of allegations of dumping into
Canada of slide fasteners or zippers and parts
thereof, manufactured by Yoshida Kogyo K.K.,
(hereinafter referred to as "Yoshida" or "the
exporter") of Tokyo, Japan. All preliminary
requirements of the Act respecting notice to inter
ested parties appear to have been complied with.
On March 11, 1974, pursuant to section 14(1) 3
of the Act, the Deputy Minister made a prelim
inary determination of dumping in respect of the
class of goods being investigated, in the following
terms:
As a result of the investigation herein, I am satisfied that slide
fasteners or zippers, consisting of a pair of tapes, each with a
series of interlocking elements on one edge, a slider for engag
ing or disengaging the interlocking elements by movement
along the interlocking elements, and stops for limiting the
travel of the slider at either end of the interlocking elements,
and parts thereof, manufactured by Yoshida Kogyo K.K.,
Tokyo, Japan, have been or are being dumped and that the
margin of dumping of the dumped goods and the actual or
potential volume thereof is not negligible. "Parts" as referred to
above, includes all articles and materials, whether finished or
2 13. (1) The Deputy Minister shall forthwith cause an
investigation to be initiated respecting the dumping of any
goods, on his own initiative or on receipt of a complaint in
writing by or on behalf of producers in Canada of like goods, if
(a) he is of the opinion that there is evidence that the goods
have been or are being dumped; and
(b) either
(i) he is of the opinion that there is evidence, or
(ii) the Tribunal advises that it is of the opinion that there
is evidence,
that the dumping referred to in paragraph (a) has caused, is
causing or is likely to cause material injury to the production
in Canada of like goods or has materially retarded or is
materially retarding the establishment of the production in
Canada of like goods.
3 14. (1) Where an investigation respecting the dumping of
any goods has not been terminated under subsection 13(6) and
the Deputy Minister, as a result of the investigation, is satisfied
that
(a) the goods have been or are being dumped, and
(b) the margin of dumping of the dumped goods and the
actual or potential volume thereof is not negligible,
he shall make a preliminary determination of dumping specify
ing the goods or description of goods to which such determina
tion applies.
not and regardless of length, so advanced in manufacture as to
commit them by their design or construction to intended end
use as components of slide fasteners, e.g., without limiting the
generality of the foregoing, chain or stringer of any length;
interlocking elements of any length, whether in spiral, coil,
ladder or other form; and-tape of any length designed or
constructed to have interlocking elements attached thereto.
Therefore, pursuant to subsection 14(1) of the Anti-dumping
Act, I have made a preliminary determination of dumping
respecting the said goods.
Under subsection 15(1) of the said Act, the mentioned goods
are deemed to be entered provisionally and the importer of any
goods so entered during the period commencing on this day and
ending on the day that an order or finding is made by the
Anti-dumping Tribunal with respect thereto, shall pay a provi
sional duty in an amount not greater than the margin of
dumping of the said goods.
In accordance with the provisions of the Act,
notice of the preliminary determination was given
to the Anti-dumping Tribunal (hereinafter
referred to as "the Tribunal"). As a consequence,
the Tribunal, with appropriate notices to all inter
ested parties, announced that it had initiated an
inquiry to determine whether the dumping of the
goods referred to in the preliminary determination
"has caused, is causing or is likely to cause ma
terial injury to the production in Canada of the
like goods, or has materially retarded or is materi
ally retarding the establishment of the production
in Canada of like goods". Filing of submissions or
briefs was invited and a public hearing was com
menced in Ottawa on April 22, 1974, and con
tinued for six days during which evidence was
adduced both in public and in camera. Following
an adjournment of several days, representations
were made by counsel for the complainant, the
exporter and the importer.
The Tribunal reserved its decision to June 7,
1974, on which date it handed down the following
finding:
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 for Customs and Excise of a
preliminary determination of dumping dated March 11, 1974,
finds that the dumping of slide fasteners, or zippers, and parts
thereof, as described in the preliminary determination, manu
factured by Yoshida Kogyo K.K., Tokyo, Japan, (excluding
slide fasteners or zippers, currently marketed as zippers of
Delron, the interlocking elements of which consist of discrete
teeth of plastic whether imported in finished form or in chain or
stringer form of any length and sliders and stops therefor), has
caused, is causing, and is likely to cause material injury to the
production in Canada of like goods.
It is this finding that this application seeks to
review and set aside. The Tribunal delivered a
statement of reasons for its decision when its find
ing was handed down. The applicant, by its memo
randum filed in this Court, submitted that the
statement of reasons discloses that the Tribunal
(a) failed to observe a principle of natural jus
tice or otherwise acted beyond or refused to
exercise its jurisdiction;
(b) erred in law in making its finding;
(c) based its decision or order on an erroneous
finding of fact without due regard for the ma
terial before it.
During the course of argument counsel for the
applicant abandoned his allegation of the failure of
the Tribunal to observe a principle of natural
justice and of having based its decision on errone
ous findings of fact, relying solely on the allegation
that the Tribunal erred in law in making its find
ing, the particulars of which alleged errors will be
dealt with below.
When the hearing of the application opened,
counsel for each of the parties made submissions
with respect to the maintenance of the confiden
tiality of that part of the evidence which had been
adduced before the Tribunal in camera and of the
documentary evidence filed by the various mem
bers of the Society and by the applicant as confi
dential in nature, all of which had been filed by
the Tribunal in this Court. Reference was made to
the consent order of Thurlow J. made July 30,
1974, the material parts of which read as follows:
2. AND IT IS ORDERED that the Anti-Dumping Tribunal shall
prepare four copies of the material (other than the physical
exhibits) for the use of the Court and one copy for the use of
each of the following counsel:
For the Applicant: Mr. Richard S. Gottlieb
c/o Messrs. Rappaport,
Whelan, Bessner, Gottlieb,
Agard and Feldman
For the Society of Canadian Mr. J.M. Coyne, Q.C.
Slide Fastener Manufacturers: c/o Messrs. Herridge, Tolmie,
Gray, Coyne & Blair
For the Anti-Dumping Mr. James L. Shields, Esq.
Tribunal: c/o Messrs. Soloway, Wright,
Houston, Greenberg, O'Grady
Morin
3. AND IT IS FURTHER ORDERED that copies of the material
comprising the transcript of any in camera sessions conducted
by the Tribunal and all confidential exhibits filed during the
course of the inquiry shall be bound separately from all other
material and clearly marked confidential, and neither such
confidential material nor the contents thereof shall be disclosed
by counsel to any other person except in the course of argument
under direction of the Court.
4. AND IT IS FURTHER ORDERED that counsel shall return to the
Anti-dumping Tribunal all copies of the said confidential ma
terial in their possession when it is no longer required for the
purpose of the application.
It will be seen that this order does not purport to
deal with the matters raised by counsel at the
opening. The problem of the maintenance of confi
dentiality during the course of the hearing of the
section 28 application arises by virtue of section
29(3) of the Anti-dumping Act, reading as follows:
29. (3) Where evidence or information that is in its nature
confidential, relating to the business or affairs of any person,
firm or corporation is given or elicited in the course of any
inquiry under section 16, the evidence or information shall not
be made public in such a manner as to be available for the use
of any business competitor or rival of the person, firm or
corporation.
It was maintained by counsel for the Tribunal,
with the support of counsel for the applicant and
the respondent, that the section was broad enough
to preclude the application of Rule 201 of the
General Rules and Orders of this Court relating to
the access of members of the public to Court files.
On the assumption, without deciding, that this
submission was valid and on consent of counsel for
the applicant, respondent and Tribunal, the follow
ing order was made:
Upon an application on behalf of the Anti-Dumping Tri
bunal and upon the consent of all parties, having regard to
Section 29 of the Anti-Dumping Act and notwithstanding Rule
201 of the General Rules and Orders of the Federal Court;
It is ordered that the confidential material referred to in
paragraph 3 of the Court's Order dated the 30th day of July,
1974, shall be withheld from the public except under order of
this Honourable Court.
As a logical result of this order having been
made, it was indicated to counsel that if during the
course of argument it became necessary to refer to
any of the evidence adduced in camera, or docu
ments filed as being confidential in nature, a
request that discussions relating to such material
be held in camera would be favourably considered.
The basic error alleged by the applicant was
that finished zippers and zipper parts are not,
taken together, "like goods" within the meaning of
the Act. It contended that, notwithstanding the
undoubted right of the Deputy Minister under
section 13 (1) to formulate the class of goods in his
preliminary determination, (see Mitsui & Co. Ltd.
v. Anti-dumping Tribunal [1972] F.C. 944), the
Tribunal is obligated to make an inquiry into parts
produced by the exporter, and to ascertain the
effect of dumping of parts produced by it on the
production in Canada of parts. It objected to the
fact that, in effect, the Tribunal considered only
the result of dumping of parts on the production in
Canada of finished zippers. Because it elicited no
evidence of injury to the producers of parts in
Canada by the dumping and failed, in the appli
cant's view, to consider the applicant's submissions
in respect to the absence of such evidence, it erred
in law with the result that its finding should be set
aside.
The fallacy in this argument, it seems to me, is
that it fails to take into account the clear indica
tions in the statement of reasons that not only did
the Tribunal consider the relevant evidence and
submissions but also made a clear finding in
respect thereto. At page 10 of its statement of
reasons, the Tribunal said:
"COMPONENTS" OR "PARTS"
An issue of some importance which was raised was whether,
when the preliminary determination includes components or
parts of a product, each component or part is to be considered
as an article of commerce and a case made to establish injury
to the production in Canada of that component or part.
That proposition cannot hold in this case. The Deputy Minis
ter has been extremely careful in stating that the parts he has
determined were dumped were articles manufactured by
Yoshida "so advanced in manufacture as to commit them by
their design or construction to intended end use as components
of slide fasteners". Granted that zipper chain, or sliders, can be
sold separately and in that context considered articles of coin-
merce, one cannot ignore the fact that all Yoshida exports of
components are being sold to its wholly-owned subsidiary in
Canada, and that the components which the Deputy Minister
says are being dumped are being assembled for the most part in
Canada by the subsidiary for distribution and sale in Canada as
finished zippers at prices, one can assume, which reflect the
dumped prices of the components.
As the various decisions of the Tribunal to
which the respondent referred disclosed, the Tri
bunal has in the past made separate investigations
of goods within the class formulated by the Deputy
Minister and could have done so in this case with
respect to the dumping of finished zippers and the
dumping of parts. However, it did not do so in this
case because it found that the applicant was the
sole importer of the parts, the largest proportion of
which were assembled by it into finished zippers
sold and distributed in Canada. Thus, it seems to
me that, in effect, the Tribunal found that the
applicant was an importer of certain dumped fin
ished or partly finished zippers which were, in its
view, "like goods" to certain zippers produced in
Canada and thus within the class formulated by
the Deputy Minister in his preliminary determina
tion. This was a question of fact determined by a
statutorily created body having the legal authority
and expertise necessary to evaluate the evidence
and to make such a finding.
It would be quite improper, therefore, for this
Court to disturb such finding unless it be satisfied
that there was no evidence upon which it could
have been made or that a wrong principle was
applied in making it. Far from being able to satisfy
the Court of either of these requirements, the
finding appears to be eminently sound in the cir
cumstances of this case.
The applicant further argued that the Tribunal
failed to establish that there was material injury to
the production in Canada of parts by the dumping
of parts imported by the applicant and failed also
to ascertain whether the margin of dumping in
respect of the dumped parts was the cause of such
material injury. Essentially, these arguments are
dependent on the applicant having succeeded in
establishing that the Tribunal ought to have made
a separate inquiry on the effect of the dumping of
parts produced by it on the production in Canada
of parts. Since this submission was rejected for the
reasons heretofore given, it follows that the ancil
lary contentions also must fail.
Accordingly, the section 28 application should
be dismissed.
* * *
JACKETr C. J. concurred.
* * *
PRATTE J. concurred.
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.