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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.
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PRATTE J. concurred.
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HYDE D. J. concurred.
4 [1966] S.C.R. 260.
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