A-407-78
In re Anti-dumping Act and in re the Re-hearing
ordered by the Federal Court of Appeal, in Deci
sion No. A-16-77 and in re a proposed Reference
by the Anti-dumping Tribunal pursuant to section
28(4) of the Federal Court Act
Court of Appeal, Pratte, Heald and Ryan JJ.—
Ottawa, May 2 and 4, 1979.
Anti-dumping — Reference concerning issues of jurisdiction
and procedure at re-hearing of a matter before Anti-dumping
Tribunal held as a result of successful s. 28 application
Whether or not Tribunal still had jurisdiction despite expira
tion of time limit statutorily imposed on its decisions — If
without jurisdiction on that basis, whether or not it otherwise
had jurisdiction to continue — If the Tribunal had jurisdic
tion, whether or not its finding was subject to a time limit —
Whether or not authors of released confidential material had
to be available for cross-examination — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28(4) — Anti-dumping Act,
R.S.C. 1970, c. A-15, ss. 16(3), 17(1.1).
The Federal Court of Appeal allowed a section 28 applica
tion and ordered the Anti-dumping Tribunal to re-hear a
matter because of the Tribunal's non-disclosure of information
to the applicant therein. At the preliminary setting of the
re-hearing, issues arose with respect to jurisdiction and proce
dure. Since the re-hearing was ordered by the Federal Court of
Appeal, did the original preliminary determination continue to
provide the basis for the Tribunal's jurisdiction even though the
ninety-day time limit imposed by section 16(3) had expired and
the Deputy Minister of Revenue, Customs and Excise had
terminated the proceedings pursuant to section I7(1.1)? If the
Tribunal were without jurisdiction on that basis, did it other
wise have jurisdiction to conduct the re-hearing and issue a
finding? If the Tribunal did have jurisdiction, was it under a
time limit as to when a finding should issue? With respect to
the issue of procedure, had the Tribunal complied with the
judgment of the Federal Court of Appeal by releasing all the
confidential exhibits that it had previously withheld and by
allowing counsel to call witnesses and make final argument
with respect to those exhibits, or were the authors of those
exhibits required to be available for cross-examination?
Held, the Tribunal had jurisdiction and had complied with
the Court of Appeal in the procedure it proposed. Neither the
notice given by the Deputy Minister nor section 17(1.1) have
the effect of depriving the Board of its jurisdiction to re-hear
the matter. The notice given by the Deputy Minister had no
legal effect since it was not given pursuant to any statutory
provision and since the Deputy Minister does not possess the
power under the Act to terminate an inquiry commenced by the
Tribunal. Although section 17(1.1) provides that certain deci
sions of the Board have the effect of terminating the proceed
ings, the decision of the Board that is said to have had that
effect in this case has been set aside, and is therefore a nullity
without effect. Section 16(3) requires the Board to render a
decision within "a period of 90 days from the date of receipt of
a notice of preliminary determination of dumping" but it does
not follow that the Tribunal is relieved of its duty to make an
inquiry on the question referred to it and is deprived of the
power to make any order or finding in the matter. In order to
comply with the judgment of the Court, the Tribunal merely
has to disclose the information that had been previously kept
secret and give all interested parties the "opportunity to
respond to that information". The Tribunal, however, is under
no duty to take active steps to permit the testing of the
accuracy of that information through cross-examination.
APPLICATION.
COUNSEL:
D. J. M. Brown for Sarco Canada Limited.
M. Kaylor for Sarco Company Inc.
D. T. Sgayias for Attorney General of
Canada.
J. L. Shields for Anti-dumping Tribunal.
SOLICITORS:
Blake, Cassels & Graydon, Toronto, for
Sarco Canada Limited.
Gottlieb, Agard, Schleifer, Dupras & Kaylor,
Montreal, for Sarco Company Inc.
Deputy Attorney General of Canada for
Attorney General of Canada.
Soloway, Wright, Houston, Greenberg,•
O'Grady, Morin, Ottawa, for Anti-dumping
Tribunal.
The following are the reasons for judgment
rendered in English by
PRATTE J.: On the 11th day of August 1978, the
Anti-dumping Tribunal made an order referring
certain questions of law and procedure to this
Court under section 28(4) of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10.
The facts which led to that Reference are sum
marized as follows in the order of the Tribunal:
STATEMENT OF FACTS
1. On the 4th day of October, 1976, the Deputy Minister of
National Revenue, Customs and Excise issued a Preliminary
Determination of Dumping respecting the dumping into
Canada of steam traps, pipeline strainers, automatic drain traps
for compressed air service, thermostatic air vents and air
eliminators including parts, screens and repair kits pertaining
thereto, produced by or on behalf of Sarco Company Inc. of
Allentown, Pennsylvania, U.S.A.
2. Prior to the commencement of the public hearing, the
Secretary of the Tribunal sent a manufacturer's questionnaire
to all known Canadian manufacturers of the goods in question.
The questionnaires requested each manufacturer to submit, in
confidence to the Tribunal, detailed information concerning the
financial and commercial affairs of the company over a period
of five years, including audited financial statements, detailed
sales data, source and cost of material, capacity and utilization
rate of its production.
3. In addition, the Secretary of the Tribunal sent an importer's
questionnaire to all of the known companies who imported the
said goods, requesting that each company submit to the Tri
bunal detailed information of a similar nature concerning its
financial and commercial affairs over a period of five years.
4. Upon receipt of the replies to the manufacturer's and
importer's questionnaires, the research staff of the Tribunal
contacted manufacturers who had not answered the question
naire, to obtain information relating to their production of the
goods in question. The information given by each person con
tacted was confirmed in a letter from the Tribunal's staff.
5. On the 10th day of November, 1976, in Ottawa, the Anti-
dumping Tribunal conducted a preliminary sitting and a public
hearing was held from the 15th day of November, 1976,
through to the 19th day of November, 1976.
6. At the original public hearing of this matter, the Tribunal
decided that the questionnaire replies of companies which were
not present or represented during the proceedings would not be
released to counsel and that the letters confirming the informa
tion would not be released.
7. Pursuant to subsection (3) of Section 16 of the said Act, the
Tribunal issued its Finding including a statement of reasons on
the 31st day of December, 1976.
8. On the 12th day of January, 1977, Sarco Canada Limited
filed an originating motion under Section 28 of the Federal
Court Act, for the Federal Court of Appeal to review and set
aside the finding of the Anti-dumping Tribunal dated the 31st
day of December, 1976.
8. (a) On the 4th day of March, 1977, an application was filed
by Sarco Company Inc. to quash the application by Sarco
Canada Ltd. The Federal Court of Appeal dismissed this
application by Order dated the 11th day of May, 1977.
9. On the 2nd day of February, 1977, the Deputy Minister of
National Revenue, Customs and Excise gave notice of the
termination of the dumping proceedings pursuant to Section
17(1.1) of the Act, which notice was published in Part I of the
Canada Gazette of February 12, 1977 (Appendix I).
10. On the 9th day of June, 1978, the Federal Court of Appeal
issued its Judgment allowing the application by Sarco Canada
Limited which reads as follows:
The Section 28 application is allowed, the decision of the
respondent dated December 31st, 1976 is set aside, and the
matter is referred back to the Tribunal for a re-hearing in a
manner not inconsistent with the Reasons.
Appendix II
In the Reasons for Judgment of the Federal Court of Appeal,
Heald J., stated at Page 20, [[1979] 1 F.C. 247, at page 265]:
[... ] I have concluded that the Tribunal did not conduct
the inquiry required by the statute since it acted on informa
tion not disclosed to the parties with the result that the
applicant was given no opportunity to respond to that infor
mation. Likewise, I am of the opinion that in the circum
stances of this case, the Tribunal's refusal to grant to the
applicant the adjournment asked for was an improper exer
cise of the Tribunal's discretion.
Appendix III
11. In preparing for the re-hearing of the case pursuant to the
Judgment, the Tribunal requested counsel for Sarco Canada
Limited and Sarco Company Inc. to submit their views as to
the manner in which the re-hearing should be conducted.
12. The Anti-dumping Tribunal received, through its counsel,
written submissions from both counsel.
Appendix IV and Appendix V
13. Pursuant to Section 23(1)(a) of the Act, the Chairman of
the Tribunal appointed the following panel of members to
conduct the hearing:
A.L. Bissonnette, Presiding
W.J. Lavigne
H. Perrigo
Each counsel present was in agreement that the newly con
stituted panel was appropriate for the re-hearing as the original
panel was not available because G.R. D'Avignon who had
chaired the original hearing had been appointed to another
position.
14. On July 26, 1978, at the preliminary sitting, counsel for
Sarco Company Inc. took the position that the Tribunal had no
further jurisdiction because there was no preliminary determi
nation in place, in view of the Deputy Minister of National
Revenue, Customs and Excise having discontinued the investi
gations into the question of dumping pursuant to Section
170.1). In addition, counsel took the position that Section
16(3) of the Act required the Tribunal to make its finding
within ninety (90) days of the Preliminary Determination of
Dumping, which time period was expired.
15. Further, counsel agreed that the Tribunal should look only
at factors of production, imports, sales, employment, etc. prior
to December 31st, 1976, and that, assuming jurisdiction, the
Tribunal is no longer under any particular time restraint as it
would be under a Section 16(1) inquiry.
16. The Presiding Member of the panel proposed that the
record for the re-hearing should consist of the cases prepared
for the Federal Court of Appeal, namely thirteen (13) volumes,
including public and confidential portions. The confidential
material was to be released to all independent counsel upon
their usual undertaking of confidentiality.
17. The Presiding Member proposed that counsel for Sarco
Canada Ltd. would then be free to adduce such further evi
dence as required to complete the case of the complainants
based on the confidential information given to him.
18. Counsel for Sarco Canada Limited objected to this proce
dure and proposed that if the Tribunal wished to put the
confidential questionnaires and other confidential information
obtained by the Tribunal relating to the telephone survey into
the record, the Tribunal should request those individuals who
had submitted the confidential information to be present at the
re-hearing for purposes of cross-examination on such informa
tion, thus not placing the onus on Sarco Canada Limited to
respond to the confidential information. Counsel for Sarco
Canada Limited stated:
Our basic position, Mr. Chairman, Members of the Tribunal,
is that the information which is now released to us should be
disregarded and that information relating to the industry and
all other factors, insofar as it's not already before the Tri
bunal through either Sarco U.S. Company or Sarco Canada,
should be put in as evidence during the hearing that is to take
place on the re-hearing and not merely the acceptance of
what was held before.
Appendix VI, page 29
The questions that were referred to the Court
are expressed as follows in the order of the
Tribunal:
1. With respect to the issue of jurisdiction:
A. Since this is a re-hearing ordered by the Federal Court
of Appeal, does the original preliminary determination con
tinue to provide the basis for jurisdiction for the Anti-dump
ing Tribunal to proceed with the re-hearing and issue a
finding even through the ninety (90) day time limit provided
by subsection 16(3) of the Anti-dumping Act has expired
and the proceedings have been terminated by the Deputy
Minister of National Revenue, Customs and Excise pursuant
to Section 17(1.1) of the Act?
B. If the answer to question "A" is in the negative, does
the Tribunal otherwise have jurisdiction to conduct the
re-hearing and issue a finding?
C. If the answer to either question "A" or "B" is in the
affirmative, is the Tribunal under any time limitation within
which it must render a new finding and if so by what date
must a new finding be issued?
2. With respect to the issue of procedure:
A. Has the Tribunal complied with the Judgment of the
Federal Court of Appeal by releasing to counsel for the
interested parties at the re-hearing all confidential exhibits
including those confidential exhibits withheld from counsel
for Sarco Canada Limited at' the original hearing (that were
the subject matter of the appeal) and allowing counsel to call
witnesses and make final argument on the said confidential
exhibits?
B. In the alternative, is the Tribunal required, as proposed
by counsel for Sarco Canada Limited, to have available for
questioning the authors of all such confidential information
prior to the confidential information being accepted into the
record of the re-hearing by the Tribunal?
I—The jurisdictional issue.
The Tribunal entertains doubts as to its jurisdic
tion to re-hear the matter that was referred back
to it by this Court for the following two reasons:
1. The Deputy Minister, on February 2, 1977,
gave notice of the termination of the anti-dump-
ing proceedings pursuant to section 17(1.1) of
the Act which provides that an order of the
Board, other than a finding of material injury,
"terminates the proceedings respecting the
dumping of any goods described therein ...".
Does that termination of the proceedings pre
vent the Tribunal from re-hearing the matter?
2. Under section 16(3) of the Act, the Tribunal
must render its decision within 90 days from the
date of receipt of a notice that the Deputy
Minister has made a preliminary determination
of dumping. As that 90-day time limit has now
expired, has the Board still the jurisdiction to
make a decision in the matter?
In my view, it is clear that neither the notice
given by the Deputy Minister nor section 17(1.1)
have the effect of depriving the Board of its juris
diction to re-hear the matter. The notice given by
the Deputy Minister had, in itself, no legal effect
since it was not given pursuant to any statutory
provision and since the Deputy Minister does not
possess the power, under the Act, to terminate an
inquiry commenced by the Tribunal. As to section
17(1.1), it merely provides that certain decisions of
the Board have the effect of terminating the pro
ceedings. In the present case, the decision of the
Board that is said to have had that effect, has been
set aside by this Court. That decision was there
fore found to be a nullity and cannot, once it has
been set aside, have any effect.
Under section 16(3), the Board is clearly under
a duty to render a decision within "a period of 90
days from the date of receipt of a notice of a
preliminary determination of dumping". It does
not follow, however, that at the expiry of the
90-day period, the Tribunal is relieved of its duty
to make an inquiry on the question that has been
referred to it and is deprived of the power to make
any order or finding in the matter. In order to
reach such a conclusion, which certainly would not
help to achieve the purposes of the Anti-dumping
Act, R.S.C. 1970, c. A-15, clear language to that
effect would, in my view, be necessary. I do not
find any such clear language in the statute. Once
the 90-day time limit is expired, the interested
parties may take the necessary steps to protect
their rights and force the Tribunal to proceed, but,
in my opinion, the jurisdiction of the Board to
continue its inquiry remains unimpaired.
I would, therefore, answer the jurisdictional
questions in the following manner:
A. Yes.
C. No, since that time limitation has already
expired. The Tribunal is in the same situation as
if, for a valid reason, it had failed to complete its
inquiry within the 90-day period.
II—The procedural issue.
The Tribunal wishes to know whether the proce
dure it proposes to follow during the re-hearing
would comply with the judgment pronounced by
the Court on June 9, 1978 [[1979] 1 F.C. 247]. By
that judgment, the decision of the Tribunal was set
aside and the matter was "refer[red] ... back to
the Tribunal for a re-hearing in a manner not
inconsistent with [the] reasons." Now, what did
the reasons say? They can, in my view, easily be
summarized: the Court found [at page 265] that
the Tribunal had "acted on information not dis
closed to the parties with the result that the appli
cant was given no opportunity to respond to that
information." In order to comply with the judg
ment of the Court, as I understand it, the Tribunal
merely has, in my opinion, to disclose the informa
tion that had previously been kept secret and give
all interested parties the "opportunity to respond
to that information."
It is common ground that the Tribunal has now
communicated to all parties concerned the infor
mation that it had previously failed to disclose and,
in my opinion, the Tribunal would give them the
"opportunity to respond to that information" by
allowing the parties to call witnesses and make
final arguments on that information. I failed to
understand the argument of counsel for Sarco
Canada Limited that, in the circumstances of this
case, he would not be given a full opportunity to
respond to the information previously withheld
from him unless the Tribunal took the necessary
steps to have available for cross-examination by
him all the authors of the confidential information.
The Tribunal is under no duty to take active steps
so as to permit Sarco Canada Limited to test the
accuracy of that information.
I would, therefore, answer as follows the ques
tion relating to the procedural issue:
A. Yes.
* * *
HEALD J.: I concur.
* * *
RYAN J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.