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.
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.