T-156-81
Nissho-Iwai Canada Ltd., Nissho-Iwai Corpora
tion and Fuji Electric Co. Ltd. (Plaintiffs)
v.
Minister of National Revenue for Customs &
Excise, Deputy Minister of National Revenue for
Customs & Excise, Anti-dumping Tribunal and
Attorney General of Canada (Defendants)
Trial Division, Walsh J.—Montreal, February 2;
Ottawa, February 13, 1981.
Practice — Parties — Motion to add trade association as
defendant — Anti-dumping investigation initiated by associa
tion present at hearings before the Anti-dumping Tribunal —
Appeal to Tariff Board filed by plaintiffs — Applicant not
made party to it notwithstanding its right to be heard pursuant
to s. 19(2) of the Anti-dumping Act — Applicant having
interest in outcome of proceedings, but no relief sought against
it — Whether genera! policy of Rule 1716, that in such a case,
a party should not be permitted to participate in an action as
defendant, applies — Whether provisions of the Anti-dumping
Act prevail — Motion granted — Anti-dumping Act, R.S.C.
1970, c. A-15, ss. 19(1),(2), 20(1)(c) — Federal Court Rules
1404(1), 1716(2)(b),(4).
Adidas (Canada) Ltd. v. Skoro Enterprises Ltd. [1971]
F.C. 382, applied. Mitsui & Co. of Canada Ltd. v. Minis
ter of National Revenue, T-3267-77, applied.
MOTION.
COUNSEL:
J. M. Coyne, Q.C. for applicant Electrical and
Electronic Manufacturers Association of
Canada.
R. S. Gottlieb for plaintiffs.
J. L. Shields for defendant Anti-dumping
Tribunal.
R. W. Côté for defendants Minister of Na
tional Revenue for Customs & Excise, Deputy
Minister of National Revenue for Customs &
Excise and Attorney General of Canada.
SOLICITORS:
Herridge, Tolmie, Ottawa, for applicant Elec
trical and Electronic Manufacturers Associa
tion of Canada.
Gottlieb, Kaylor, Swift & Stocks, Montreal,
for plaintiffs.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for defendant Anti-
dumping Tribunal.
Deputy Attorney General of Canada for
defendants Minister of National Revenue for
Customs & Excise, Deputy Minister of Na
tional Revenue for Customs & Excise and
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is a motion by the Electrical
and Electronic Manufacturers Association of
Canada for an order adding it as a party defendant
to the proceedings herein. It is a trade association
representing inter alia the manufacturers in
Canada of transformers of the type subject to
anti-dumping duties in the present case and it is as
a result of a complaint filed by it on January 2,
1969, that the anti-dumping investigation herein
was initiated resulting in findings made. It was
represented at a public hearing before the Anti-
dumping Tribunal pursuant to section 16 of the
Anti-dumping Act' and led evidence and made
representations to that Tribunal. This was with
respect to both the initial hearing leading to the
decision of August 8, 1969, and the subsequent
hearing leading to the decision of November 6,
1970. There was a further public hearing seeking a
review of the decision of November 6, 1970, which
commenced on January 25, 1977, in which counsel
for applicant also participated which resulted in
the Tribunal deciding on April 1, 1977, that there
was no reason to vary its findings of November 6,
1970.
When on March 14, 1980, plaintiffs, pursuant
to section 19(1) of the Act, filed an appeal to the
Tariff Board from the decision of the Deputy
Minister of National Revenue for Customs and
Excise made on January 23, 1980, respecting the
transformers imported from Japan by the plaintiff
Nissho-Iwai Canada Ltd., applicant became en
titled pursuant to the provisions of section 19(2) of
the Anti-dumping Act to appear and be heard on
the appeal. It was not made a party to the present
proceedings although it was evident that the elec-
R.S.C. 1970, c. A-15.
trical producers in Canada whom it represented
might be affected by the outcome of the
proceedings.
Considerable difficulty arises from the fact that
the Rules of the Federal Court make no specific
provision for intervenants as such. Rule
1716(2)(b) provides:
Rule 1716... .
(2) At any stage of an action the Court may, on such terms
as it thinks just and either of its own motion or on application,
(b) order any person who ought to have been joined as a
party or whose presence before the Court is necessary to
ensure that all matters in dispute in the action may be
effectually and completely determined and adjudicated upon,
to be added as a party,
Paragraph (4) reads:
Rule 1716... .
(4) Where an order is made under this Rule, it shall contain
directions as to consequential pleadings or other proceedings;
and any interested party may apply for supplementary
directions.
No relief is sought in the proceedings nor can any
such relief be sought against the applicant or
against the parties it represents so that it is dif
ficult to find that it "ought to have been joined" or
that its "presence before the Court is necessary".
The arguments which it would present would be
the same as those which will no doubt be ade
quately presented by defendants the Minister of
National Revenue for Customs and Excise, the
Deputy Minister of National Revenue for Customs
and Excise, the Anti-dumping Tribunal, and the
Attorney General of Canada, so what the motion if
granted would accomplish would merely be to
allow counsel for applicant to participate in the
hearing along with the various other learned
counsel.
At first sight it would appear that Rule 1716 is
a Rule which should be applied strictly and that
parties against whom no relief is sought should not
as a general rule be permitted to participate in an
action as defendants merely because they have an
interest in the outcome of the proceedings. This
general policy may be held to yield in the present
case to the provisions of the Anti-dumping Act
itself which permits any interested party to partici
pate in inquiries and hearings made pursuant to
the provisions of that Act, as applicant has in fact
already done. Section 19(2) provides that notice of
the hearing of an appeal to the Tariff Board from
the decision of the Deputy Minister shall be pub
lished in the Canada Gazette and "any person who
on or before that day enters an appearance with
the Secretary of the Tariff Board may be heard on
the appeal". Section 20 provides that any party to
an appeal under section 19 which includes (c) "any
person who entered an appearance in accordance
with subsection 19(2) if he has a substantial inter
est in the appeal and has obtained leave from the
Court or a judge thereof" may appeal to the
Federal Court of Canada upon any question of
law. Moreover Federal Court Rule 1404(1) reads
as follows:
Rule 1404. (1) Each person who desires to participate in the
argument of a section 28 application should file a notice of
intention to participate in the argument, which shall contain a
statement of his address and, if he has a solicitor or attorney,
his name and business address.
It would therefore appear undesirable to refuse
to permit the participation of applicant in the
proceedings in this Court seeking a declaratory
judgment on the same issues, solely on the basis of
a strict interpretation of Rule 1716. Moreover
there is some authority for the intervention. In the
case of Adidas (Canada) Limited v. Skoro Enter
prises Limited 2 the judgment of the Court of
Appeal, although on a slightly different issue is set
out in part of the headnote where it is stated:
There being no Federal Court Rule dealing with joinder of
parties on originating motions as distinct from actions, the
practice established in England and Ontario, which is similar to
that prescribed by this Court's Rules for joinder of parties in
actions (Rule 1716), should be adopted having regard to Rule
5. The appellant's rights under the Exchequer Court judgment
were so affected by the mandamus order that justice required
that the appellant be made a party to those proceedings to
enable it to appeal therefrom.
Reference was also made to the case of Chitty v.
Canadian Radio-television and Telecommunica
tions Commission' although in that case the facts
were somewhat different in that the applicants
sought to be added were two parties directly
affected by the issue.
2 [1971] F.C. 382.
3 [1978] 1 F.C. 830.
In the somewhat similar case of Mitsui & Co. of
Canada Ltd. v. M.N.R. (in which one of the
applicants was the present plaintiff Nissho-Iwai,
Canada Ltd., Court No. T-3267-77, an unreported
judgment dated August 29, 1977), Algoma Steel
Corporation was added as a party respondent in
judgment of Justice Cattanach granted by consent
of plaintiffs. It was on the complaint of Algoma
Steel that the anti-dumping investigation which
was the subject-matter of the proceedings had
been initiated and it was therefore vitally affected
by the proceedings. The only difference between
that action and the present one is that it was the
Canadian manufacturer itself which had initiated
the complaint rather than an association. In the
present case, as in that case, no objection is made
by plaintiffs nor any of the other defendants to the
adding of applicant as a defendant.
I therefore conclude that the motion should be
granted, but pursuant to paragraph (4) of Rule
1716 (supra) will direct that although all proceed
ings should be served on the applicant Electrical
and Electronic Manufacturers Association of
Canada it will not file any separate pleadings to
the proceedings as no relief is directly sought
against it, but may participate in any hearing,
whether on preliminary motions or discoveries, or
at trial, participate in the cross-examination of
witnesses, call witnesses if desired, and participate
fully in argument and representations to the
Court.
The style of cause will be amended to provide
for the adding of applicant as a party defendant.
Costs shall be in the event.
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.