A-335-74
In re Anti-dumping Act and in re Sabre Interna
tional Ltd., Minami Sangyo Limited, Takashima
and Co. Ltd., Iwata Boeki Kabushiki Kaisha,
Aoyama Trading, Sanyei Corporation, Chiyoda
Album Manufacturing Co. Ltd. and Fuji Trading
Company Ltd. (Applicants)
Court of Appeal, Jackett C.J., Pratte J. and
Hyde D.J.—Montreal, December 6, 1974.
Judicial review—Whether a preliminary determination of
dumping is subject to review—Anti-dumping Act, R.S.C.
1970, c. A-15, ss. 13 and 14—Federal Court Act, s. 28.
A preliminary determination of dumping made under sec
tion 14(1) of the Anti-dumping Act by the Deputy Minister
is a decision or order of an administrative nature and is not
required to be made on a judicial or quasi-judicial basis. It is
therefore not a decision or order that is subject to review
under section 28 off the Federal Court Act.
The Queen v. Randolph [1966] S.C.R. 260, followed.
Magnasonic Canada Ltd. v. Anti-dumping Tribunal
[1972] F.C. 1239, compared.
APPLICATION for judicial review.
COUNSEL:
P. Evraire for Minister of National
Revenue.
R. Gottlieb for applicants.
SOLICITORS:
Deputy Attorney General of Canada for
Minister of National Revenue.
Rappaport, Whelan, Bessner, Gottlieb,
Agard & Feldman, Montreal, for appli
cants.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an application to quash
a section 28 1 application to review and set aside
a preliminary determination of dumping made
under section 14(1) of the Anti-dumping Act. 2
1 Section 28(1) of the Federal Court Act reads as follows:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to
hear and determine an application to review and set aside
a decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding
of fact that it made in a perverse or capricious manner
or without regard for the material before it.
2 Section 13(1) and section 14(1) of the Anti-dumping Act
read as follows;
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 4n 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.
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 investiga
tion, 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
specifying the goods or description of goods to which
such determination applies.
The sole ground for the application that, in
my view, requires consideration is that a prelim
inary determination of dumping is a decision or
order of an administrative nature not required
by law to be made on a judicial or quasi-judicial
basis.
Clearly such a determination does not have to
be made on a judicial basis and there is no
express requirement of any basis on which it
must be made that might be described as quasi-
judicial. The sole question, therefore, is whether
any such basis is to be implied from the nature
of the determination having regard to the
scheme of the Anti-dumping Act.
As far as I know, there is no general rule that
can be invoked to decide in every case when
such a basis is to be implied when it is not
expressed. The usual, if not the exclusive, facet
of a judicial basis for a decision that is
expressed or implied so as to make the basis
required for a particular class of order or deci
sion a quasi-judicial basis is a right, on the part
of those whose interests may be affected by a
proposed order or decision, to know what is
alleged against their interests and to have a
reasonable opportunity to reply thereto. The
real question, in my view, in this case, is wheth
er such a right is to be implied as a condition
precedent to the validity of a preliminary deter
mination of dumping.
The scheme of the Anti-dumping Act is dif
ficult to discern from a simple reading of the
Act. In effect, it imposes a dumping duty in
respect of the importation of goods of a certain
class when certain consequences are found by
the Anti-dumping Tribunal to flow from "dump-
ing" goods of that class. The preliminary deter
mination by the Deputy Minister is a step in the
course of the normal processing of a matter
towards such a finding of the Tribunal. The
Tribunal's finding itself must be made on a
quasi-judicial basis' and there is a procedure, in
respect of each importation, for determination,
on a quasi-judicial or judicial basis, of the ques
tions whether there was dumping and whether
7 Compare Magnasonic Canada Limited v. Anti-dumping
Tribunal [1972] F.C. 1239.
the goods imported fell within the Tribunal's
finding. Having regard to such decisions as that
of the Supreme Court of Canada in The Queen
v. Randolph,' I am of the view that the Deputy
Minister's preliminary determination is not
required to be made on a quasi-judicial basis. I
do not come to this conclusion without consid
erable doubt as to its correctness. I have taken
into consideration the requirements of section
13(5) re notices of the investigation preceding
the preliminary determination and also the fact
that the Canadian manufacturer whose com
plaint gives rise to the Deputy Minister's inves
tigation may have no recourse in certain circum
stances adverse to him. I have also taken into
account the nature of the matters to be investi
gated by the Deputy Minister and the adverse
effect on the carrying out of the scheme of the
Act that would be occasioned by an investiga
tion such as would be necessary to make the
preliminary determination on a quasi-judicial
basis.
I am of opinion that the section 28 application
should be quashed.
* * *
PRATTE J. concurred.
* * *
HYDE D. J. concurred.
4 [1966] S.C.R. 260.
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.