Judgments

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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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