A-146-80
Japan Electrical Manufacturers Association,
Japan Machinery Exporters Association, Fuji
Electric Co. Ltd., Hitachi Ltd., Mitsubishi
Canada Ltd., Mitsubishi Electric Corporation, C.
Itoh & Co. (Canada) Ltd., Marubeni Canada Ltd.,
Nissho-Iwai (Canada) Ltd., Toshiba Corporation
and Toshiba International Corporation (Appli-
cants)
v.
Anti-dumping Tribunal (Respondent)
Court of Appeal, Pratte, Ryan JJ. and Hyde
D.J.—Montreal, April 19 and 22, 1982.
Judicial review — Applications to review — Anti-dumping
— Application to set aside decision of Anti-dumping Tribunal
that injury likely to result in future from dumping of electric
generators imported from Japan, although such dumping had
not caused and was not causing material injury to production
in Canada of like goods — Deputy Minister made preliminary
determination of dumping — Answer to submission that Tri
bunal made erroneous findings of facts is that Court cannot
reweigh evidence and substitute its findings for those of Tri
bunal — S. 14(1) of Anti-dumping Act provides that prelim
inary determination of dumping must specify goods or
description of goods to which such determination applies — S.
16(1) of Act requires Tribunal to make inquiry in respect of
goods to which preliminary determination of dumping applies
and determine whether dumping of those goods has caused, is
causing or is likely to cause material injury to production in
Canada of like goods — Answer to submission that Tribunal
erred in finding future injury since it should have limited
inquiry to consequences of dumping which preliminary deter
mination found to have occurred, is that Tribunal's inquiry is
only limited by description of goods in preliminary determina
tion — Applicants allege that Tribunal misinterpreted s. 16(4)
of Act, more particularly phrase "major proportion" in Art.
4(a) of Agreement on implementation of article VI of the
General Agreement on Tariffs and Trade — Meaning of
"major proportion" found in McCulloch of Canada Limited v.
Anti-dumping Tribunal 11978J 1 F.C. 222 — Applicants
allege that Tribunal violated principle of natural justice by
relying on preliminary determination of dumping without
giving applicants opportunity to contradict preliminary deter
mination — Answer to allegation of breach of natural justice
found in Remington Arms of Canada Limited v. Les Industries
Valcartier Inc. 11982J 1 F.C. 586 — Submissions that Tri
bunal (1) based finding of future injury on possibility rather
than probability of injury and (2) divided country into two or
more markets and in doing so ignored Art. 4(a)(ii) of Agree
ment which specifies when Tribunal may so divide country to
determine injury — Decision of Tribunal misinterpreted with
respect to last two submissions — Application dismissed —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Anti-dumping Act, R.S.C. 1970, c. A-15, ss. 14(l), 16(1),(4) —
Agreement on implementation of article VI of the General
Agreement on Tariffs and Trade, Arts. 4(a), 4(a)(ii).
McCulloch of Canada Limited v. Anti-dumping Tribunal
[1978] 1 F.C. 222, followed. Re Brunswick International
(Canada) Ltd. and Anti-dumping Tribunal (1979) 108
D.L.R. (3d) 216 (Fed. C.A.), followed. Remington Arms
of Canada Limited v. Les Industries Valcartier Inc.
[1982] 1 F.C. 586, followed.
APPLICATION for judicial review.
COUNSEL:
R. Gottlieb and A. Elbaz for applicants.
J. L. Shields for respondent.
D. M. Brown and J. L. Ronson for British
Columbia Hydro and Power Authority.
J. M. Coyne, Q.C. and P. S. Bonner for
Canadian General Electric Company Ltd.
F. Garneau for Marine Industries Limited.
SOLICITORS:
Gottlieb, Kaylor, Swift & Stocks, Montreal,
for applicants.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent.
Blake, Cassells & Graydon, Toronto, for
British Columbia Hydro and Power Author
ity.
Herridge, Tolmie, Ottawa, for Canadian
General Electric Company Ltd.
Desjardins, Ducharme, Desjardins &
Bourque, Montreal, for Marine Industries
Limited.
Stitt, Baker & MacKenzie, Toronto, for Mit-
subishi Electric Corporation.
Courtois, Clarkson, Parsons & Tétrault,
Montreal, for Toshiba Corporation and
Toshiba International Corporation.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: These reasons for judgment apply to
the two section 28 applications (A-146-80 and
A-151-80) which were brought against a decision
of the Anti-dumping Tribunal dated February 29,
1980. That decision was made following a prelim
inary determination of dumping in respect of a
certain type of electric generators imported from
Japan; it found that the dumping of those genera
tors before the date of the decision had not caused
and was not causing any material injury to the
production in Canada of like goods; it also found,
however, that such injury was likely to result from
the dumping of those goods in the future. The two
section 28 applications are directed against that
last finding.
Many grounds of attack were raised by the
applicants. First, it was argued by Mr. Gottlieb
that the decision of the Tribunal was based on
erroneous findings of facts made without regard to
the evidence. That argument must, in my view, be
rejected. On a section 28 application, the Court
cannot reweigh the evidence and substitute its
findings for those of the Tribunal which made the
decision sought to be set aside. In my view, there
was at least some evidence to support the various
findings of the Tribunal that Mr. Gottlieb singled
out for criticism.
It was also said that the decision of the Tribunal
was vitiated by a number of errors of law. The first
one of those errors, according to Mr. Gottlieb, was
that the finding of injury was made with respect to
the dumping of goods that might take place in the
future. He submitted that the inquiry and decision
of the Tribunal should have been limited to the
consequences of the dumping which the prelim
inary determination made by the Deputy Minister
had found to have taken place. In order to answer
that submission, one must turn to sections 14 and
16 of the Anti-dumping Act, R.S.C. 1970, c.
A-15. Pursuant to subsection 14(1), the prelim
inary determination of dumping must specify "the
goods or description of goods to which such deter
mination applies". Under subsection 16(1), the
Tribunal must make an inquiry "in respect of the
goods to which the preliminary determination of
dumping applies" and determine whether the
dumping of those goods "has caused, is causing or
is likely to cause material injury to the production
in Canada of like goods". The inquiry of the
Tribunal must relate, therefore, to the goods
described in the preliminary determination but is
not limited to the very goods which have been
found by the Deputy Minister to have been
dumped. Moreover, if the decision of the Tribunal
must relate to the effect of the dumping (past,
present and future) of goods described in the
preliminary determination, it is not restricted to
the effect of the dumping which, according to the
preliminary determination, has occurred in the
past. It is only the description of the goods in the
preliminary determination which sets the limits of
the inquiry of the Tribunal. In the present case, a
mere reading of the preliminary determination
made by the Deputy Minister shows that it applied
to all electric generators of the type described
coming from Japan whatever be their date of
importation.
Mr. Gottlieb finally argued that the Tribunal
had made two further errors of law. He submitted
that it had misinterpreted subsection 16(4) of the
Act and, more particularly, the phrase "major
proportion" in Article 4(a) of the AGREEMENT ON
IMPLEMENTATION OF ARTICLE VI OF THE GEN
ERAL AGREEMENT ON TARIFFS AND TRADE; he
argued also that it had violated a principle of
natural justice by relying on the preliminary deter
mination of dumping and the margins of dumping
established by the Deputy Minister without having
given the applicants an opportunity to contradict
those determinations of the Deputy Minister. As
was intimated at the hearing, those two submis
sions are answered by previous decisions of the
Court. The answer to the first submission, con
cerning the meaning of the expression "major
proportion", is found in the decisions rendered in
McCulloch of Canada Limited v. Anti-dumping
Tribunal ([1978] 1 F.C. 222) and in Re Bruns-
wick International (Canada) Ltd. and Anti-dump
ing Tribunal ((1979) 108 D.L.R. (3d) 216 (Fed.
C.A.)); as to the other submission, concerning
natural justice, it is answered by the recent judg
ment rendered by this Court in Remington Arms
of Canada Limited v. Les Industries Valcartier
Inc. ([1982] 1 F.C. 586).
Mr. Brown made two submissions on behalf of
British Columbia Hydro and Power Authority.
First, he contended that the Tribunal had erred in
law by basing its finding of likelihood of material
injury for the future on a mere possibility rather
than a probability of injury. That contention, in
my opinion, is based on a misinterpretation of the
decision. While it is true that the Tribunal
referred, in its reasons, to the possibility that
certain difficulties between Canadian General
Electric and British Columbia Hydro and Power
Authority might be resolved, a careful reading of
those reasons shows, in my view, that the Tribunal
did not rest its decision on that possibility but,
rather, on other facts which, in its view, created a
probability of injury.
I consider that Mr. Brown's second submission
is also based on a misreading of the reasons of the
Tribunal. He contended that the Tribunal, in
making the decision under attack, had ignored the
provisions of Article 4(a)(ii) of the AGREEMENT
ON IMPLEMENTATION OF ARTICLE VI OF THE
GENERAL AGREEMENT ON TARIFFS AND TRADE
which specify the circumstances in which the Tri
bunal may, for the purpose of determining injury,
divide a country into two or more markets. That
contention was founded on the assumption that the
Tribunal had, for the purpose of the decision,
made such a division of the Canadian market.
That assumption is, in my view, unwarranted. The
Tribunal, as I read its decision, never made such a
division.
For those reasons, I would dismiss the
application.
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