A-560-76
McCulloch of Canada Limited and McCulloch
Corporation (Applicants)
v.
Anti-dumping Tribunal (Respondent)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Ottawa, June 7, 8 and 9, 1977.
Judicial review — Application to set aside decision of
Anti-dumping Tribunal for error in law — General Agreement
on Tariffs and Trade "Major proportion of the total
domestic production" Whether "major" to be interpreted as
meaning more than one-half or as significant Applicants
importing only power unit of chainsaw — Whether power unit
without a bar and chain a chainsaw in law — Anti-dumping
Act, R.S.C. 1970, c. A-15, ss. 16(1),(4) — Agreement on
Implementation of Article VI of the General Agreement on
Tariffs and Trade, Article 4(a).
The applicants apply to the Court to set aside a decision of
the Anti-dumping Tribunal on the ground of an error in law.
The Tribunal is required to take section 16(4) of the Anti-
dumping Act into account in coming to its conclusion. It was
argued that "major", in the phrase "a major proportion of the
total domestic production of those products", found in Article
4(a) of the Agreement on Implementation off Article VI of the
General Agreement on Tariffs and Trade, was to be interpreted
as "more than one-half" as opposed to "significant". Further,
the applicants submit that as far as present or future injury is
concerned, the "Finding" was invalid: the conclusion, in the
reasons of the Tribunal, that the object in question without a
bar and chain was a chainsaw, was wrong in law.
Held, the application is dismissed. When the various senses
that may be attributed to the word "major" are examined, the
sense in which it is used in Article 4(a) is "significant" and not
the more precise mathematical sense of more than one-half that
may be dictated by the context in certain cases. To interpret the
word in the mathematical sense would tend to frustrate in part
the obvious intent of the statute. Although it was argued that
the Tribunal's "Finding" was wrong in law and therefore
invalid, it is not necessary to reach any conclusion on the
question because the Tribunal's decision was reached by refer
ence to facts arising only when complete chainsaws were being
imported. Nevertheless, if the Tribunal's conclusion were
wrong, it was as a result of an error of fact, not an error of law,
and hence outside the jurisdiction of this Court.
APPLICATION for judicial review.
COUNSEL:
John D. Richard, Q.C., for applicants.
James L. Shields for respondent.
Robert J. Cowling for Homelite-Terry &
Desa Industries Ltd.
SOLICITORS:
Gowling & Henderson, Ottawa, for appli
cants.
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for respondent.
Ogilvy, Cope, Porteous, Montgomery,
Renault, Clarke & Kirkpatrick, Montreal,
for Homelite-Terry & Desa Industries Ltd.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a "Finding" of the Anti-dumping Tri
bunal, which reads as follows:
The Anti-dumping Tribunal, having conducted an inquiry
under the provisions of subsection (1) of section 16 of the
Anti-dumping Act consequent upon the issue by the Deputy
Minister of National Revenue for Customs and Excise of a
preliminary determination of dumping dated May 12, 1976,
respecting the dumping into Canada of gasoline powered chain
saws, having an engine displacement of 2.5 cubic inches or less,
manufactured by McCulloch Corporation, Los Angeles, Cali-
fornia and Beaird-Poulan, a Division of Emerson Electric Com
pany, Shreveport, Louisiana, United States of America, finds
that such dumping into Canada has caused material injury to
the production in Canada of like goods.
We only found it necessary to call on counsel for
the "interested parties"' to answer two submis
sions made on behalf of the applicants.
The first of the two submissions was that the
Tribunal erred in law in the manner in which it
attempted compliance with section 16(4) of the
Anti-dumping Act, R.S.C. 1970, c. A-15, which
reads:
(4) The Tribunal, in considering any question relating to the
production in Canada of any goods or the establishment in
Canada of such production, shall take fully into account the
provisions of paragraph 4(a) of the Agreement on Implementa
tion of Article VI of the General Agreement on Tariffs and
Trade signed at Geneva, Switzerland, on June 30, 1967.
when read with Article 4(a) of the Agreement
referred to therein, the relevant portion of which
reads:
The Tribunal was represented by counsel but only in respect
of jurisdictional questions if any arose. Other parties had filed
notices of intention to participate and were represented by
counsel who opposed the application.
(a) In determining injury the term "domestic industry" shall
be interpreted as referring to the domestic producers as a whole
of the like products or to those of them whose collective output
of the products constitutes a major proportion of the total
domestic production of those products ....
when it concluded:
For the purpose of assessing whether material injury is being
caused to the production in Canada of the subject saws, the
Tribunal has accepted Desa and Homelite as constituting the
industry within the meaning of Article 4(a) of the Anti-Dump
ing Code, which the Tribunal is required to take into account
under the provisions of section 16(4) of the Anti-dumping Act.
This first submission was based on the conten
tion that the word "major" in the expression "a
major proportion of the total domestic production
of those products" required that the "domestic
industry" represent more than one-half of the
Canadian production.
As I have reached the conclusion that this con
tention is incorrect, I do not need to reach any
conclusion on the many questions that would arise
as to the interaction of subsections (1) 2 and (4) of
section 16 if the contention were correct.
2 Section 16(1) reads:
16. (1) The Tribunal, forthwith upon receipt by the
Secretary under subsection 14(2) of a notice of a preliminary
determination of dumping, shall, in respect of the goods to
which the preliminary determination of dumping applies,
make inquiry as to whether
(a) the dumping of the goods that are the subject of the
inquiry
(i) has caused, is causing or is likely to cause material
injury to the production in Canada of like goods,
(ii) has materially retarded or is materially retarding
the establishment of the production in Canada of like
goods, or
(iii) would have caused material injury to the produc
tion in Canada of like goods except for the fact that
provisional duty was applied in respect of the goods; or
(b) in the case of any goods to which the preliminary
determination of dumping applies,
(i) either
(A) there has occurred a considerable importation of
like goods that were dumped, which dumping has
caused material injury to the production in Canada of
like goods or would have caused material injury to
such production except for the application of anti-
dumping measures, or
(B) the importer of the goods was or should have
been aware that the exporter was practising dumping
and that such dumping would cause material injury to
the production in Canada of like goods, and
(ii) material injury has been caused to the production in
Canada of like goods by reason of the fact that the
My reason for rejecting the contention is that,
when one examines the various senses that may be
attributed to the word "major", 3 in my view, the
sense in which it is used in Article 4(a) is "signifi-
cant" and not the more precise mathematical sense
of more than one-half that may be dictated by the
context, in certain cases, as, for example, where
one speaks of the major of two portions of a whole.
Reading the Anti-dumping Act in its entirety, the
meaning urged by applicants' counsel for the word
"major" would, in my view, if it has any effect at
all, tend to frustrate in part the obvious intent of
the statute.
The second submission upon which we called
upon opposing counsel was with reference to the
Tribunal's finding in that part of its reasons that
reads as follows:
entered goods constitute a massive importation or form
part of a series of importations into Canada of dumped
goods that in the aggregate are massive and that have
occurred within a relatively short period of time, and in
order to prevent the recurrence of such material injury,
it appears necessary to the Tribunal that duty be
assessed on the entered goods.
3 The Concise Oxford Dictionary defines "major" as follows:
major 1. a. Greater (not foll. by than) of two things, classes,
etc.; of full age; (in schools) Smith etc.—, the elder of the
two Smiths or the first to enter the school;—axis (of conic,
passing through its foci); *—league, highest-ranking base
ball etc. league (or fig.);—part, majority (of); major
PLANET, PROPHET;—Suit, (Bridge) spades or hearts;
FRIARS Major. 2. Unusually important or serious or sig
nificant (major road, war); (of operation) presenting pos
sible danger to patient's life. 3. (Logic). (Of term) occur
ring in predicate of conclusion of syllogism; (of premiss)
containing major term. 4. (Mus.) (Of interval) normal or
perfect (cf. MINOR), as in major scale, (major third); (of
key) in which scale has major third; (of scale) with
semitones above third and seventh notes. 5. (Mil.) Officer
in charge of section of band instruments (DRUM major,
PIPE major, TRUMPET-major); SERGEANT-major. 6. n.
Person of full age; (Logic) major term or premiss; *stu-
dent's special subject or course; *student specializing in a
subject (is a philosophy major). 7. v.i. *(Of student)
undertake study or qualify in as special subject. [ME f. L,
compar. of magnus great]
Another question which was raised was whether the expres
sion "chain saws" used in the Deputy Minister's preliminary
determination could be interpreted as including the chain saw's
power unit only when imported separately. In its public brief
McCulloch Canada drew attention to the fact that, beginning
April 1, 1976, it had imported only the power unit from
McCulloch USA, and had acquired the blade and chain from a
Canadian producer. The argument by McCulloch Canada was
that since that time it had not imported a "complete" chain saw
from McCulloch USA, or from anyone else in the United
States, and that the preliminary determination of dumping
made by the Deputy Minister "covers complete chain saws only
and not parts or components thereof." At the preliminary
sitting the Tribunal invited argument as to whether the descrip
tion of the goods in the preliminary determination included
power units imported separately. The question is, of course,
particularly relevant to any consideration of likelihood of ma
terial injury.
The Tribunal, in considering this problem, has taken note of
the claims in the McCulloch Canada brief that the power unit
was one which could be used to power implements other than
chain saws, and, specifically, that the power unit was identical
to the power unit sold in Canada by McCulloch Canada and by
McCulloch USA in the United States as a power unit for an
all-purpose drill and a hedge-trimmer. Counsel for McCulloch
argued that the preliminary determination applied only to
"complete" chain saws. Counsel for Beaird-Poulan also argued
that the power head was not a chain saw, although noting that
the evidence had not established whether the power head was a
multi-purpose power unit.
The Tribunal also notes that, apparently, substantial modifi
cations would be required to the power head of chain saws in
order to be used with any other tool or implement. For exam
ple, the automatic oiling features on the power head are
obviously intended for oiling the chain on the guide bar and for
no other purpose; the chain brake on the power head is similar
ly intended solely for the chain saw; the functioning of the
power head in other respects is also designed solely for a chain
saw, and would require modification in order to be used for any
other purpose. It is also to be noted that the cost of the guide
bar and chain generally represents about 10% of the cost of a
complete chain saw. Furthermore, one witness for the Canadian
industry testified that various applications had been tried for
the power unit but without success. His statement was not
challenged by McCulloch. The Tribunal also regards as signifi
cant the fact that McCulloch failed to submit evidence that it is
in fact selling the unit in Canada for other end-uses.
While the imported power unit cannot, of course, be used as
a chain saw until a guide bar and chain are attached, the
Tribunal finds as a fact, in the circumstances of this case, that
gasoline powered chain saws having an engine displacement of
2.5 cubic inches or less, with or without guide bar and chain
when entering Canada, are included in the scope of the prelim
inary determination. 4
Having reached this conclusion (and the conclu
sion concerning "industry" already referred to),
the Tribunal examined the facts for the period
beginning with 1972 and ending with the first
quarter of 1976 relevant to the question of
"injury" and reached the following conclusion with
regard thereto:
The rise in market share achieved by the named exporters in
1975 is striking. The increase in volume of the dumped product
in the first three months of 1976 over the same period in 1975
approached massive proportions. Discounting, as it does the
importance attached by McCulloch, in particular, to alleged
superiority or reliability of product and the impact of a new
marketing strategy, the Tribunal concludes that it is the dump
ing which has led to the depressed state in which the domestic
industry now finds itself. Sales, employment, utilization of
capacity and profitability have seriously declined. Material
injury has been inflicted. Continued dumping of the described
chain saws into Canada is also likely to cause material injury in
the future, whether or not the guide bar and chain are attached
thereto when entering Canada.
As will be seen, upon reading the formal decision
or "Finding" quoted at the beginning of these
reasons, this conclusion did not affect the wording
of the Tribunal's actual decision, which refers to
chainsaws and does not refer to objects without
bar or chain.
This second submission was, in effect, as I
understand it, that, in so far as present or future
injury is concerned (but not in so far as past injury
is concerned), the "Finding" was invalid because
the conclusion in the reasons of the Tribunal that
the object in question without a bar and chain is a
chainsaw was wrong in law.
I tend to the view that, if such conclusion was
wrong, it was as a result of an error of fact and not
an error of law, in which event this Court has no
jurisdiction to review, it. Compare Brutus v.
° It is, as I understand it, common ground that, once having
received the Deputy Minister's preliminary determination, the
Tribunal had to proceed under the statute to a decision under
section 16 even if there was evidence that importation of the
goods described therein had ceased and there was no prospect
of future importations.
Cozens. However, I do not find it necessary to
reach any conclusion on that question because, as I
read the Tribunal's reasons, the conclusion was
reached by reference to facts arising when only
complete chainsaws were being imported and
deductions from those facts. In so far as I can see,
the conclusion with reference to chainsaws with
bar and chain is in no way dependent on the
Tribunal's conclusion that certain objects that did
not have bars and chains were chainsaws.
In my view, the section 28 application should be
dismissed.
* * *
PRATTE J. concurred.
* * *
LE DAIN J. concurred.
5 [1973] A.C. 854. We did not have an example of the object
in question before us and I tend to the view that it would be
necessary to have very complete evidence before us before we
could conclude that the Tribunal, being a specialized tribunal
with background knowledge not available to this Court, could
not reasonably have held that the power unit was contained in a
casing and had such specialized attachments as to bring it
within the relatively new class of machine called "chainsaws".
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.