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A-146-77
Hetex Garn A.G. (Applicant)
v.
Anti-dumping Tribunal (Respondent)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Montreal, December 13; Ottawa, December 20, 1977.
Judicial review Application to set aside order of Anti-
dumping Tribunal Whether or not Tribunal required by
statute to decide whether dumping of particular segment of class of goods was a cause of "injury" to the production of like goods — Whether or not Tribunal's findings of fact made without evidentiary basis so as to constitute error of law — Anti-dumping Act, R.S.C. 1970, c. A-15, s. 16(1),(3) — Fed eral Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1)(b),(c).
APPLICATION for judicial review. COUNSEL:
A. Pollack for applicant.
J. L. Shields for respondent.
J. D. Richard, Q.C., for Canadian Textiles
Institute.
SOLICITORS:
Aaron Pollack, Montreal, for applicant. Soloway, Wright, Houston, Greenberg, O'Grady & Morin, Ottawa, for respondent. Gowling & Henderson, Ottawa, for Canadian Textiles Institute.
The following are the reasons for judgment rendered in English by
JACKETT C.J.: This is a section 28 application, in effect, to set aside an order of the Anti-dumping Tribunal under section 16(3) of the Anti-dumping Act, R.S.C. 1970, c. A-15. It came on for hearing at Montreal on December 13, 1977, at which time, after hearing counsel for the applicant, judgment was delivered dismissing the application, without calling on counsel opposing it, on the understand ing that reasons for such judgment would be given later. These are my reasons for such judgment.
The attacks made on that decision had to be considered having regard to the restricted powers
conferred on the Court by section 28 of the Feder al Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
So considered, the substance of such attacks, as I understood them, may be summarized as follows:
(a) that the Tribunal was required by the stat ute, in considering whether the dumping of "the goods to which the preliminary determination
. applies" was a cause of "injury to the pro duction in Canada of like goods", to decide whether the dumping of the particular segment of that class of goods in which the applicant was interested was, taken by itself, a cause of "injury", within the meaning of the statute, to the production of goods "like" that segment, and
(b) that certain of the Tribunal's findings of fact were made without any evidentiary basis so that they constituted error in law within section 28(1)(b) of the Federal Court Act or that such findings were "erroneous" findings falling within section 28(1)(c).
With reference to the first attack, the statute, in my view, contains no such requirement in the circumstances of this case. As I read section 16(3), the Tribunal may make its order in respect of all or any of the "goods to which the preliminary determination ... applies" and it was for the Tribunal, if requested to make the order in respect of some, and not all, of such goods, to decide, as a matter of fact or discretion,
(a) whether or not there should be any exclu sion, and
(b) if it decided that there should be an exclu sion, what portion or portions of the goods should be excluded.
Whether regarded as a matter of fact or discre tion, neither question is a question of law falling within section 28(1)(b) of the Federal Court Act.'
1 Compare Dominion Engineering Works Limited v. The Deputy Minister of National Revenue [1958] S.C.R. 652, and Memorial Gardens Association (Canada) Limited v. Colwood Cemetery Company [1958] S.C.R. 353.
With reference to the second attack, no attempt was made, as it seemed to me, to show
(a) that any finding of fact on which the Tri bunal based its order was made without eviden- tiary basis so as to constitute error of law within section 28(1) (b), or
(b) that any finding of fact on which the Tri bunal based its order was "erroneous" so as to establish the condition precedent to bringing it within section 28(1)(c).
* * *
PRATTE J.: I am of the opinion that this section 28 application should be dismissed.
* * *
LE DAIN J.: I concur.
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