T-7614-82
Salco Footwear Industries Ltd. (Applicant)
v.
Minister of National Revenue, Deputy Minister of
National Revenue for Customs and Excise, and
Deputy Attorney General of Canada (Respond-
ents)
and
Anti-dumping Tribunal (Mis -en-cause)
Trial Division, Dubé J.—Ottawa, September 30
and October 13, 1982.
Judicial review — Prerogative writs — Certiorari — Motion
for certiorari to set aside Deputy Minister's preliminary deter
mination of dumping and Minister's determination of actual
normal values of imported goods — S. 9(7) of Anti-dumping
Act provides that normal value of goods imported from coun
try where domestic prices determined by government shall be
determined in manner prescribed by Minister — Direction not
registered in accordance with s. 6(a) of Statutory Instruments
Act — Whether direction a regulation or statutory instrument
— If so, whether Deputy Minister exceeded jurisdiction by
making preliminary determination of dumping based on direc
tion not in effect because not registered — Whether Minister
exceeded jurisdiction by prescribing actual normal values
instead of manner of determining values — Motion dismissed
— Minister of National Revenue et al. v. Creative Shoes Ltd.,
et al., [1972] F.C. 993 (C.A.) and In re Anti-dumping Act and
in re Danmor Shoe Company Ltd., et al., /1974] 1 F.C. 22
(C.A.) authorities that phrase "as the Minister prescribes"
confers legislative powers not subject to certiorari — Minister
has power to make rules to be applied along with rules in
statute — Preliminary determination of dumping is adminis
trative decision (In re Anti-dumping Act and in re Sabre
International Ltd., et al., 11974] 2 F.C. 704 (C.A.)) and subject
to general duty of fairness — Direction made in exercise of
legislative power conferred by s. 9(7) of Anti-dumping Act —
Given above common law and wide ambit of definition in
Statutory Instruments Act, direction is statutory instrument,
but not effective because not registered — However, prelim
inary determination of dumping not based on ineffective direc
tion, but on Deputy Minister's own initiative and s. 14 — No
excess of jurisdiction or breach of duty of fairness because
direction not registered — No excess of jurisdiction by Minis
ter in prescribing actual values because he did prescribe
manner for determining values — In any case, direction not
subject to certiorari because involves exercise of legislative
power — Anti-dumping Act, R.S.C. 1970, c. A-15, ss. 9(7), 11,
13(1), 14(1),(2) (as rep. by R.S.C. 1970 (2nd Supp.), c. 1, s. 1),
15(1) — Statutory Instruments Act, S.C. 1970-71-72, c. 38,
ss. 2(1)(b),(d), 6(a), 9(1) — Customs Act, R.S.C. 1970, c. C-40,
s. 40 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss.
18, 28.
Motion for writs of certiorari to set aside Deputy Minister's
preliminary determination of dumping and Minister's determi
nation of actual normal values of imported goods. Subsection
9(7) of the Anti-dumping Act provides that the normal value of
goods imported from a country where the domestic values are
determined by the government shall be determined in such
manner as the Minister prescribes. The Minister's direction was
not registered in accordance with paragraph 6(a) of the Statu
tory Instruments Act. The applicant submits that the Minister's
direction is a statutory instrument and a regulation within the
meaning of paragraphs 2(1)(b) and (d) of the Statutory
Instruments Act, and that because it was not registered the
Minister's direction was not in effect when the preliminary
determination of dumping was made. Subsection 9(1) of the
Statutory Instruments Act provides that no regulation shall
come into effect before the day on which it is registered. The
applicant further submits that the Deputy Minister exceeded
his jurisdiction by making a preliminary determination of
dumping on a basis other than that provided by the Act.
Finally, the applicant submits that the Minister is only empow
ered by the Anti-dumping Act to prescribe the manner in
which the normal value of imported goods is to be determined
and not the actual normal values. Thus, it is alleged that the
Minister exceeded his jurisdiction by prescribing the value of
the goods.
Held, the motion is dismissed. In Minister of National
Revenue et al. v. Creative Shoes Ltd., et al., [1972] F.C. 993
(C.A.), it was held that the phrase "as the Minister prescribes"
confers a power to legislate. The Trial Division does not have
jurisdiction to grant writs of certiorari to set aside Ministerial
prescriptions because the Minister's power is legislative. In In
re Anti-dumping Act and in re Danmor Shoe Company Ltd., et
al., [1974] 1 F.C. 22 (C.A.), Ministerial prescriptions were
held to be delegated legislation containing rules that, along
with the rules in the statute, must be applied. A preliminary
determination of dumping was held to be an administrative
decision not required to be made on a judicial or quasi-judicial
basis in In re Anti-dumping Act and in re Sabre International
Ltd., et al., [1974] 2 F.C. 704 (C.A.), and therefore not subject
to review under section 28 of the Federal Court Act. However,
the Trial Division has jurisdiction to grant a writ of certiorari
under section 18 based on a general duty of fairness resting on
all public decision-makers (see Martineau v. Matsqui Institu
tion Disciplinary Board, [1980] 1 S.C.R. 602). Clearly, the
Minister's direction was made in the exercise of the legislative
power conferred by subsection 9(7) of the Anti-dumping Act.
Given the wide ambit of the definitions of "regulation" and
"statutory instrument" in section 2 of the Statutory Instru
ments Act, and the Danmor and Creative Shoes decisions, the
Minister's direction was in fact a statutory instrument, made in
the exercise of legislative power conferred by the Anti-dumping
Act, and consequently a regulation which must be registered to
be effective. The procedure in Part II of the Anti-dumping Act
indicates that it is the Deputy Minister who must cause an
investigation to be initiated respecting dumping, either on his
own initiative or upon receipt of a complaint. The power of the
Deputy Minister to make a preliminary determination is based
on the provisions of section 14. Since the preliminary determi
nation of dumping was not based on the Minister's direction,
even if the direction was not in effect because it had not been
registered, the Deputy Minister did not exceed his jurisdiction
by making his preliminary determination when he did. Failure
to register the direction does not constitute a breach by the
Deputy Minister of the principles of natural justice or of his
duty of fairness. The Minister did not exceed his jurisdiction by
specifying the exact amounts of normal values because he did
in fact prescribe the manner in which the values were to be
determined. In any case, certiorari does not lie against a
Ministerial direction made in performance of his duties pursu
ant to a legislative power.
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of National Revenue et al. v. Creative Shoes
Ltd., et al., [1972] F.C. 993 (C.A.); In re Anti-dumping
Act and in re Danmor Shoe Company Ltd., [1974] 1 F.C.
22 (C.A.); In re Anti-dumping Act and in re Sabre
International Ltd., et al., [1974] 2 F.C. 704 (C.A.);
Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602.
REFERRED TO:
Mitsui & Co. of Canada Ltd. et al. v. Minister of
National Revenue et al. (1977), 2 B.L.R. 281 (F.C.T.D.).
COUNSEL:
Pierre Barnard and Steven Chaimberg for
applicant.
Jean-Marc Aubry for respondents and mis -
en-cause.
SOLICITORS:
Lapointe Rosenstein, Montreal, for applicant.
Deputy Attorney General of Canada for
respondents and mis -en-cause.
The following is the English version of the
reasons for order rendered by
DuBÉ J.: This motion asks the Court to issue a
writ of certiorari setting aside the preliminary
determination of dumping made by the Deputy
Minister of National Revenue on August 11, 1982
pursuant to section 14' of the Anti-dumping Act,
and a writ of certiorari setting aside the determi
nation of the normal value of goods imported by
the applicant, made by the Minister of National
Revenue under subsection 9(7) 2 of the Anti-
dumping Act. 3
The motion further seeks to obtain a declaratory
judgment, but this point was withdrawn at the
request of the Court as such a declaratory judg
ment cannot be obtained by motion, but must
result from the filing of an action.
' 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 investigation, 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 specify
ing the goods or description of goods to which such determina
tion applies.
(2) When the Deputy Minister has made a preliminary
determination of dumping in respect of any goods or descrip
tion of goods, he shall
(a) cause notice of the determination to be given to the
importer, the exporter, the government of the country of
export, the complainant, if any, and such other persons as
may be specified by the regulations, stating the reasons for
such determination;
(b) cause notice of the determination to be published in the
Canada Gazette;
(c) cause to be filed with the Secretary of the Tribunal notice
in writing of the determination, stating the reasons therefor,
together with such other material relating to the determina
tion as may be required under the rules of the Tribunal; and
(d) in accordance with directions given by the Minister, take
such proceedings as may be necessary in order to make a
final determination of dumping, in accordance with subsec
tion 17(1), within 90 days from the date of the preliminary
determination.
(7) Notwithstanding subsections (1) and (5), the normal
value of any goods that are shipped directly to Canada from a
country where, in the opinion of the Minister,
(a) the government of that country has a monopoly or
substantial monopoly of its export trade, or
(b) domestic prices are substantially determined by the gov
ernment of that country,
shall be determined in such manner as the Minister prescribes.
3 R.S.C. 1970, c. A-15.
On June 17, 1982 the applicant was advised by
letter that in accordance with subsection 13(1) 4 of
the Act, the Deputy Minister of National Revenue
for Customs and Excise had caused an investiga
tion to be initiated respecting the dumping of
certain goods imported by the applicant from
Romania.
On August 11, 1982 the applicant was advised
by letter that, as a consequence of the foregoing
investigation, the Deputy Minister had made a
preliminary determination of dumping in accord
ance with subsection 14(1) of the Act, and that the
normal values of the products imported (in this
case boots) had been determined as indicated in an
appendix to the said letter. The letter further
informed the applicant that under subsection
15(1) 5 of the Act, the goods were deemed to be
entered provisionally, and that the importer should
pay provisional duty or a security not greater than
the margin of dumping of the said goods.
The document attached to the letter of August
11, 1982 is titled: "Notice of Preliminary Determi-
4 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 in 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.
5 15. (1) Where the Deputy Minister has made a preliminary
determination of dumping in respect of any goods or descrip
tion of goods, the goods or any goods of the same description
that are entered into Canada during the period commencing on
the day the preliminary determination was made and ending on
the day that an order or finding is made by the Tribunal with
respect thereto are deemed, for all purposes of this Act, to be
entered provisionally, and the importer of any goods so entered
during such period shall
(a) pay or cause to be paid, on demand of the Deputy
Minister, provisional duty in an amount not greater than the
margin of dumping of the said goods; or
(b) post security, on demand of the Deputy Minister, in a
prescribed form and in an amount or to a value not greater
than the margin of dumping of the said goods.
nation respecting lined lace-up style footwear
originating in or exported from Romania". In the
first paragraph, titled: "Preliminary Determina
tion", it states that as the result of an investigation
initiated on June 17, 1982, the Deputy Minister is
of the opinion that the boots in question imported
from Romania were or are being dumped and that
the margin of dumping and the actual or potential
volume of the dumped goods are not negligible. In
the third paragraph, titled "Statement of Rea
sons", it states that the Minister is of the opinion
that domestic prices in Romania are substantially
determined by the government of that country,
and that in such circumstances normal values are
usually determined on the basis of sales of like
goods in a third country having a market economy.
The statement indicates that, in this case, the
seasonality of the delivery of winter boots has
caused the Minister to be of the opinion that
normal values should be determined in a more
expeditious fashion: "Accordingly, the Minister
has prescribed, pursuant to subsection 9(7) of the
Act, normal values for the Romanian goods which
are based on the cost of production of like goods in
Canada plus an amount for selling and administra
tive costs and for profits". The paragraph con
cludes: "In the event of an injury finding by the
Anti-dumping Tribunal with respect to the subject
goods, it is intended that normal values for a final
determination will be determined on the basis of
sales of like goods in a third country".
Attached to this statement, which contains a
number of other paragraphs, is a schedule of
normal values, which includes a description of the
boots and their valuations.
It was admitted that this direction by the Minis
ter, made pursuant to subsection 9(7) of the Act,
was not registered by the Clerk of the Privy Coun
cil in accordance with paragraph 6(a) 6 of the
Statutory Instruments Act. 7
Counsel for the applicant initially submitted
that this direction by the Minister is a statutory
instrument and a regulation within the meaning of
6 6. Subject to subsection (1) of section 7, the Clerk of the
Privy Council shall register
(a) every regulation transmitted to him pursuant to subsec
tion (1) of section 5;
S.C. 1970-71-72, c. 38.
the Statutory Instruments Act, and that as it was
not registered the said direction was not in effect
on the date when the preliminary determination of
dumping was made against the applicant. Subsec
tion 9(1) 8 of that Act clearly provides that no
regulation shall come into effect before the day on
which it is registered. He therefore submitted that
the Deputy Minister exceeded his jurisdiction by
making a preliminary determination of dumping
on a basis other than that provided by the Act.
The term "regulation" is defined as follows in
paragraph 2(1)(b) of the Statutory Instruments
Act:
2. (1) In this Act,
(b) "regulation" means a statutory instrument
(i) made in the exercise of a legislative power conferred by
or under an Act of Parliament, or
(ii) for the contravention of which a penalty, fine or
imprisonment is prescribed by or under an Act of
Parliament,
and includes a rule, order or regulation governing the prac
tice or procedure in any proceedings before a judicial or
quasi-judicial body established by or under an Act of Parlia
ment, and any instrument described as a regulation in any
other Act of Parliament;
The phrase "statutory instrument" is defined in
paragraph 2(1)(d) of the same Act as follows:
2....
(d) "statutory instrument" means any rule, order, regulation,
ordinance, direction, form, tariff of costs or fees, letters
patent, commission, warrant, proclamation, by-law, resolu
tion or other instrument issued, made or established
(i) in the execution of a power conferred by or under an
Act of Parliament, by or under which such instrument is
expressly authorized to be issued, made or established
otherwise than by the conferring on any person or body of
s 9. (1) No regulation shall come into force on a day earlier
than the day on which it is registered unless
(a) it expressly states that it comes into force on a day earlier
than that day and is registered within seven days after it is
made, or
(b) it is a regulation of a class that, pursuant to paragraph
(b) of section 27, is exempted from the application of subsec
tion (1) of section 5,
in which case it shall come into force, except as otherwise
authorized or provided by or under the Act pursuant to which it
is made, on the day on which it is made or on such later day as
may be stated in the regulation.
powers or functions in relation to a matter to which such
instrument relates, or
(ii) by or under the authority of the Governor in Council,
otherwise than in the execution of a power conferred by or
under an Act of Parliament,
but does not include
(iii) any such instrument issued, made or established by a
corporation incorporated by or under an Act of Parliament
unless
(A) the instrument is a regulation and the corporation
by which it is made is one that is ultimately accountable,
through a Minister, to Parliament for the conduct of its
affairs, or
(B) the instrument is one for the contravention of which
a penalty, fine or imprisonment is prescribed by or
under an Act of Parliament,
(iv) any such instrument issued, made or established by a
judicial or quasi-judicial body, unless the instrument is a
rule, order or regulation governing the practice or proce
dure in proceedings before a judicial or quasi-judicial body
established by or under an Act of Parliament,
(v) any such instrument in respect of which, or in respect
of the production or other disclosure of which, any privi
lege exists by law or whose contents are limited to advice
or information intended only for use or assistance in the
making of a decision or the determination of policy, or in
the ascertainment of any matter necessarily incidental
thereto, or
(vi) an ordinance of the Yukon Territory or the Northwest
Territories or any instrument issued, made or established
thereunder.
(2) In applying paragraph (b) of subsection (I) for the
purpose of determining whether or not an instrument described
in subparagraph (iii) of paragraph (d) of that subsection is a
regulation, such instrument shall be deemed to be a statutory
instrument, and any instrument accordingly determined to be a
regulation shall be deemed to be a regulation for all purposes of
this Act.
In Minister of National Revenue et al. v.
Creative Shoes Ltd., et a1., 9 the Federal
Court of Appeal held that certiorari and pro
hibition proceedings do not lie to remove into
the Trial Division of this Court the record
relating to the making by the Minister of National
Revenue of certain prescriptions purporting to
be made in the exercise of powers conferred on
him by section 40 1 ° of the Customs Act" and
9 [1972] F.C. 993 (C.A.).
15 40. Where sufficient information has not been furnished or
is not available to enable the determination of cost of produc
tion, gross profit or fair market value under section 36 or 37,
the cost of production, gross profit or fair market value, as the
case may be, shall be determined in such manner as the
Minister prescribes.
R.S.C. 1970, c. C-40.
section 11 12 of the Anti-dumping Act, and to
prohibit the Minister of National Revenue from
collecting duties based thereon pending the deter
mination of their validity. Like subsection 9(7) of
the Anti-dumping Act, these two sections provide
that the fair market value "shall be determined in
such manner as the Minister prescribes". The
Court of Appeal held that the power vested in the
Minister is legislative in nature, not judicial or
quasi-judicial, and accordingly that the Trial Divi
sion had no jurisdiction under section 18 1 s of the
Federal Court Act. 14 Thurlow J. (as he then was)
held that the phrase "as the Minister prescribes" is
an apt one to confer a power to legislate. He said
that the scheme of these provisions is to confer on
the Deputy Minister administrative authority and
responsibility, and to reserve to the Minister the
power to supplement by prescriptions of a legisla
tive nature the rules for determination of value
contained in the provisions. In his view, the word
"prescribes" differs from the words "determines"
or "decides", and connotes the making of a rule to
be followed: the Minister does not decide the value
of the goods but provides the manner of determin
ing such value when the method prescribed by the
Act cannot be applied.
This decision assists the applicant in the sense
that the learned Judge regarded the direction by
the Minister as the making of a rule to be fol
lowed, and thus a regulation; on the other hand, it
establishes that the certiorari procedure is not
admissible in connection with such a direction.
'211. Where, in the opinion of the Deputy Minister, suffi
cient information has not been furnished or is not available to
enable the determination of normal value or export price under
section 9 or 10, the normal value or export price, as the case
may be, shall be determined in such manner as the Minister
prescribes.
13 18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
14 R.S.C. 1970 (2nd Supp.), c. 10.
In In re Anti-dumping Act and in re Danmor
Shoe Company Ltd., et al. 15 Jackett C.J. referred
to the aforementioned decision of the Court of
Appeal, and concluded that the rules prescribed by
the Minister under the two aforesaid sections
should be regarded as regulations. He said the
following at pages 24-25:
The various rules that the Minister has prescribed under these
two sections have, it appears, been referred to as "prescrip-
tions". It has, however, been determined by this Court in
Minister of National Revenue v. Creative Shoes Ltd. [1972]
F.C. 993 that the rules that the Minister has so prescribed are
of general application and I should have thought that the more
appropriate word for them would have been "regulations".
However, in view of the practice that has developed, it will be
more convenient to refer to them as "prescriptions". Such
"prescriptions" are delegated legislation containing rules that,
along with the rules in the statute, must be applied in the
computation of "value for duty" or "normal value" as the case
may be.
The applicant therefore concludes that this
direction by the Minister pursuant to subsection
9(7) of the Anti-dumping Act constitutes a statu
tory instrument within the meaning of section 2 of
the Statutory Instruments Act, and that, as it was
not registered, it was not in effect on the date
when the determination was made. Consequently,
it submitted, even if this Court does not have
jurisdiction to issue a writ of certiorari setting
aside the directions of the Minister, it nonetheless
has complete jurisdiction to issue such a writ
against the administrative decisions of the Deputy
Minister, as the latter was attempting to imple
ment a direction or regulation that was not in
effect.
In In re Anti-dumping Act and in re Sabre
International Ltd., et al., 16 Jackett C.J. held that a
preliminary determination of dumping made by
the Deputy Minister pursuant to subsection 14(1)
of the Anti-dumping Act is a decision or order of
an administrative nature 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 of the Federal Court Act. In the
course of his reasons the learned Judge sought to
discern the scheme of the Anti-dumping Act, and
this passage [at pages 706-707] should be specially
noted:
15 [1974] 1 F.C. 22 (C.A.).
16 [1974] 2 F.C. 704 (C.A.).
The scheme of the Anti-dumping Act is difficult 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 "dumping" goods of that
class. The preliminary determination 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 (compare Magna-
sonic Canada Limited v. Anti-dumping Tribunal [1972] F.C.
1239) and there is a procedure, in respect of each importation,
for determination, on a quasi-judicial or judicial basis, of the
questions whether there was dumping and whether 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, ([1966] S.C.R. 260) 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 considerable 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 manufactur
er whose complaint gives rise to the Deputy Minister's investi
gation may have no recourse in certain circumstances adverse
to him. I have also taken into account the nature of the matters
to be investigated by the Deputy Minister and the adverse
effect on the carrying out of the scheme of the Act that would
be occasioned by an investigation such as would be necessary to
make the preliminary determination on a quasi-judicial basis.
A recent decision of the Supreme Court of
Canada, Martineau y. Matsqui Institution Disci
plinary Board," held that section 18 vests in the
Trial Division the jurisdiction to grant the
common law remedy of certiorari, and this remedy
is based on a general duty of fairness resting on all
public decision-makers.
At the start of his argument counsel for the
respondents and the mis -en-cause filed at the
request of the Court all the documents in the
Department's records which might constitute the
direction or regulation of the Minister. He filed
the first document, titled "Deputy Minister's Deci
sion", which was in fact the preliminary determi
nation by the latter dated August 11, 1982. The
second document is a letter from the Deputy Min
ister to the Minister dated August 10, 1982 recom
mending that he prescribe that the normal values
of the goods be determined in the manner indicat
ed. The third document is a memorandum from
the Minister to the Deputy Minister dated August
11, 1982, the heading of which reads as follows:
17 [1980] 1 S.C.R. 602.
"Subject: Lined lace-up style footwear with a shaft
of padded or quilted appearance, made of man-
made material or leather cemented to a unit sole,
commonly known as a balloon boot or pillow boot,
originating in or exported from Romania". The
next paragraph, headed "Normal Value", reads as
follows:
I hereby prescribe, pursuant to subsection 9(7) of the Anti-
dumping Act, that because Romanian domestic prices are
substantially determined by the government of that country,
the normal values of the above-captioned goods shall be, in
Canadian funds, as follows:
Height of Boot Normal Value
Men's Ladies' and Boys'
5" $30.20 $26.36
5 1 / 2 " $31.00 $27.16
6" $31.79 $27.96
6 1 / 2 " $32.59 $28.76
71/2" — $30.37
The final paragraph is headed "Export Price",
and reads as follows:
I hereby prescribe, pursuant to section 11 of the Anti-dumping
Act, that where information is not available to permit the
determination of the export price of the above-captioned goods
pursuant to section 10 of the Act, the export price shall be the
importer's purchase price for the goods less an amount equal to
11 percent of that export price, for export charges.
Both counsel agreed that it is in fact the latter
document which constitutes the Minister's direc
tion.
It has then to be decided whether the document
in question is a statutory instrument within the
meaning of the provisions of the Statutory Instru
ments Act, and in particular pursuant to the provi
sions of paragraphs 2(1)(b) and 2(1)(d) of the
Act.
At the outset, it is clear that the Minister's
direction was made in the exercise of the legisla
tive power conferred by an Act of Parliament, in
the case at bar the Anti-dumping Act, and in
particular subsection 9(7) cited above. Then, it can
be seen that the legislator has given a very wide
and inclusive definition of the word "regulation",
embracing the following related terms: a rule,
order or regulation governing practice or proce
dure.
The phrase "statutory instrument" is even wider
and means any rule, order, regulation, ordinance,
direction, form, tariff of costs or fees, by-law,
resolution or other instrument made in the execu
tion of a power conferred by an Act of Parliament.
Paragraph 2(1)(d) creates specific exceptions
which are not related to the foregoing direction of
the Minister.
The wide ambit of these two definitions and the
judgments of Thurlow and Jackett C.JJ. cited
above have persuaded me that the direction of the
Minister dated August 11, 1982 is in fact a statu
tory instrument made in the exercise of the legisla
tive power conferred by the Anti-dumping Act,
and consequently a regulation which must be reg
istered under section 6 of the Statutory Instru
ments Act, and which under the provisions of
section 9 of that Act cannot come into effect
before the day of its registration. Does it follow
that the Deputy Minister exceeded his jurisdiction
by making a preliminary determination of dump
ing based on a direction which had not come into
effect, as the applicant argues?
The first question that arises is whether the
preliminary determination of the Deputy Minister
is really based on the Minister's direction. A sum
mary review of the procedure provided in Part II
of the Anti-dumping Act indicates that it is the
Deputy Minister who must forthwith cause an
investigation to be initiated respecting dumping,
either on his own initiative or on receipt of a
complaint. Where an investigation has not been
terminated and the Deputy Minister is satisfied
that the goods have been dumped and the margin
of dumping and volume are not negligible, it is he
who must make a preliminary determination, and
this determination must specify the goods or mer
chandise to which such determination applies.
The procedure to be followed by the Deputy
Minister is examined in detail in a judgment of my
brother Cattanach J. in Mitsui & Co. of Canada
Ltd. et al. v. Minister of National Revenue et al. 18
This passage, taken from page 290, clearly sum
marizes the function of the Deputy Minister.
I accept that the object of the Anti-dumping Act is to protect
the interest of the Canadian public from dumped goods which
might cause material injury or retard the production of like
goods in Canada. That being so, the Deputy Minister is
18 (1977), 2 B.L.R. 281 (F.C.T.D.).
required by the Act to embark upon an investigation. That
investigation is for the purpose of enabling the Deputy Minister
to be satisfied that goods are being dumped, the margin of
dumping and the volume of goods. If he is so satisfied, he then
makes a preliminary determination to that effect. When a
preliminary determination is made, other steps and conse
quences follow, but not until that point.
The power of the Deputy Minister to make a
preliminary determination is based on the provi
sions of section 14. Such a preliminary determina
tion is on his own initiative and is not based on the
Minister's direction of the same date: the latter is
made in accordance with section 9, which pre
scribes the manner in which the normal value of
goods is to be determined. In other words, even if
the Minister's direction was not in effect on
August 11, 1982, as it had not been registered on
this date, the Deputy Minister did not exceed his
jurisdiction by making his preliminary determina
tion on the date when he made it.
Moreover, the failure to register the direction
does not, in my opinion, constitute a breach by the
Deputy Minister of the principles of natural justice
or of his duty of fairness, which could be a basis
for certiorari within the meaning of Martineau,
cited above.
Alternatively, the applicant asked that a writ of
certiorari be issued setting aside the determination
of the normal value of the goods made by the
Minister in accordance with subsection 9(7) of the
Anti-dumping Act, as the latter prescribed the
normal value of the merchandise directly, and the
Act only empowers him to prescribe the manner in
which the said normal value is to be determined.
In my view, this allegation cannot be allowed.
Subsection 9(7) of the Anti-dumping Act provides
that the normal value of any goods that are
shipped directly to Canada from a country in
which the government has a monopoly of trade
must be determined in such manner as the Minis
ter prescribes. The Minister did in fact prescribe,
in accordance with a recommendation by his
Deputy Minister, the manner in which this value is
to be determined. It is true that the direction goes
further and, again at the suggestion of the Deputy
Minister, specifies the exact amounts of the
normal values in the case of the applicant's goods.
I am not satisfied that the Minister thereby
exceeded the jurisdiction conferred on him by the
subsection mentioned. Moreover, this alternative
allegation is purely academic since, as we have
seen, this Court cannot issue a writ of certiorari
against a direction of a minister made with regard
to the performance of his duties in accordance
with a power that is legislative in nature.
For all these reasons, therefore, this motion
cannot be allowed.
ORDER
The motion is dismissed with costs.
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.