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T-156-81
Nissho-Iwai Canada Ltd., Nissho-Iwai Corpora tion and Fuji Electric Co. Ltd. (Plaintiffs)
v.
Minister of National Revenue for Customs & Excise, Deputy Minister of National Revenue for Customs & Excise, Anti-dumping Tribunal and Attorney General of Canada (Defendants)
Trial Division, Walsh J.—Montreal, February 2; Ottawa, February 13, 1981.
Practice — Parties — Motion to add trade association as defendant — Anti-dumping investigation initiated by associa tion present at hearings before the Anti-dumping Tribunal — Appeal to Tariff Board filed by plaintiffs — Applicant not made party to it notwithstanding its right to be heard pursuant to s. 19(2) of the Anti-dumping Act — Applicant having interest in outcome of proceedings, but no relief sought against it — Whether genera! policy of Rule 1716, that in such a case, a party should not be permitted to participate in an action as defendant, applies — Whether provisions of the Anti-dumping Act prevail — Motion granted — Anti-dumping Act, R.S.C. 1970, c. A-15, ss. 19(1),(2), 20(1)(c) — Federal Court Rules 1404(1), 1716(2)(b),(4).
Adidas (Canada) Ltd. v. Skoro Enterprises Ltd. [1971] F.C. 382, applied. Mitsui & Co. of Canada Ltd. v. Minis ter of National Revenue, T-3267-77, applied.
MOTION. COUNSEL:
J. M. Coyne, Q.C. for applicant Electrical and Electronic Manufacturers Association of Canada.
R. S. Gottlieb for plaintiffs.
J. L. Shields for defendant Anti-dumping Tribunal.
R. W. Côté for defendants Minister of Na tional Revenue for Customs & Excise, Deputy Minister of National Revenue for Customs & Excise and Attorney General of Canada.
SOLICITORS:
Herridge, Tolmie, Ottawa, for applicant Elec trical and Electronic Manufacturers Associa tion of Canada.
Gottlieb, Kaylor, Swift & Stocks, Montreal, for plaintiffs.
Soloway, Wright, Houston, Greenberg, O'Grady, Morin, Ottawa, for defendant Anti- dumping Tribunal.
Deputy Attorney General of Canada for defendants Minister of National Revenue for Customs & Excise, Deputy Minister of Na tional Revenue for Customs & Excise and Attorney General of Canada.
The following are the reasons for judgment rendered in English by
WALSH J.: This is a motion by the Electrical and Electronic Manufacturers Association of Canada for an order adding it as a party defendant to the proceedings herein. It is a trade association representing inter alia the manufacturers in Canada of transformers of the type subject to anti-dumping duties in the present case and it is as a result of a complaint filed by it on January 2, 1969, that the anti-dumping investigation herein was initiated resulting in findings made. It was represented at a public hearing before the Anti- dumping Tribunal pursuant to section 16 of the Anti-dumping Act' and led evidence and made representations to that Tribunal. This was with respect to both the initial hearing leading to the decision of August 8, 1969, and the subsequent hearing leading to the decision of November 6, 1970. There was a further public hearing seeking a review of the decision of November 6, 1970, which commenced on January 25, 1977, in which counsel for applicant also participated which resulted in the Tribunal deciding on April 1, 1977, that there was no reason to vary its findings of November 6, 1970.
When on March 14, 1980, plaintiffs, pursuant to section 19(1) of the Act, filed an appeal to the Tariff Board from the decision of the Deputy Minister of National Revenue for Customs and Excise made on January 23, 1980, respecting the transformers imported from Japan by the plaintiff Nissho-Iwai Canada Ltd., applicant became en titled pursuant to the provisions of section 19(2) of the Anti-dumping Act to appear and be heard on the appeal. It was not made a party to the present proceedings although it was evident that the elec-
R.S.C. 1970, c. A-15.
trical producers in Canada whom it represented might be affected by the outcome of the proceedings.
Considerable difficulty arises from the fact that the Rules of the Federal Court make no specific provision for intervenants as such. Rule 1716(2)(b) provides:
Rule 1716... .
(2) At any stage of an action the Court may, on such terms as it thinks just and either of its own motion or on application,
(b) order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the action may be effectually and completely determined and adjudicated upon, to be added as a party,
Paragraph (4) reads:
Rule 1716... .
(4) Where an order is made under this Rule, it shall contain directions as to consequential pleadings or other proceedings; and any interested party may apply for supplementary directions.
No relief is sought in the proceedings nor can any such relief be sought against the applicant or against the parties it represents so that it is dif ficult to find that it "ought to have been joined" or that its "presence before the Court is necessary". The arguments which it would present would be the same as those which will no doubt be ade quately presented by defendants the Minister of National Revenue for Customs and Excise, the Deputy Minister of National Revenue for Customs and Excise, the Anti-dumping Tribunal, and the Attorney General of Canada, so what the motion if granted would accomplish would merely be to allow counsel for applicant to participate in the hearing along with the various other learned counsel.
At first sight it would appear that Rule 1716 is a Rule which should be applied strictly and that parties against whom no relief is sought should not as a general rule be permitted to participate in an action as defendants merely because they have an interest in the outcome of the proceedings. This general policy may be held to yield in the present case to the provisions of the Anti-dumping Act itself which permits any interested party to partici pate in inquiries and hearings made pursuant to
the provisions of that Act, as applicant has in fact already done. Section 19(2) provides that notice of the hearing of an appeal to the Tariff Board from the decision of the Deputy Minister shall be pub lished in the Canada Gazette and "any person who on or before that day enters an appearance with the Secretary of the Tariff Board may be heard on the appeal". Section 20 provides that any party to an appeal under section 19 which includes (c) "any person who entered an appearance in accordance with subsection 19(2) if he has a substantial inter est in the appeal and has obtained leave from the Court or a judge thereof" may appeal to the Federal Court of Canada upon any question of law. Moreover Federal Court Rule 1404(1) reads as follows:
Rule 1404. (1) Each person who desires to participate in the argument of a section 28 application should file a notice of intention to participate in the argument, which shall contain a statement of his address and, if he has a solicitor or attorney, his name and business address.
It would therefore appear undesirable to refuse to permit the participation of applicant in the proceedings in this Court seeking a declaratory judgment on the same issues, solely on the basis of a strict interpretation of Rule 1716. Moreover there is some authority for the intervention. In the case of Adidas (Canada) Limited v. Skoro Enter prises Limited 2 the judgment of the Court of Appeal, although on a slightly different issue is set out in part of the headnote where it is stated:
There being no Federal Court Rule dealing with joinder of parties on originating motions as distinct from actions, the practice established in England and Ontario, which is similar to that prescribed by this Court's Rules for joinder of parties in actions (Rule 1716), should be adopted having regard to Rule 5. The appellant's rights under the Exchequer Court judgment were so affected by the mandamus order that justice required that the appellant be made a party to those proceedings to enable it to appeal therefrom.
Reference was also made to the case of Chitty v. Canadian Radio-television and Telecommunica tions Commission' although in that case the facts were somewhat different in that the applicants sought to be added were two parties directly affected by the issue.
2 [1971] F.C. 382.
3 [1978] 1 F.C. 830.
In the somewhat similar case of Mitsui & Co. of Canada Ltd. v. M.N.R. (in which one of the applicants was the present plaintiff Nissho-Iwai, Canada Ltd., Court No. T-3267-77, an unreported judgment dated August 29, 1977), Algoma Steel Corporation was added as a party respondent in judgment of Justice Cattanach granted by consent of plaintiffs. It was on the complaint of Algoma Steel that the anti-dumping investigation which was the subject-matter of the proceedings had been initiated and it was therefore vitally affected by the proceedings. The only difference between that action and the present one is that it was the Canadian manufacturer itself which had initiated the complaint rather than an association. In the present case, as in that case, no objection is made by plaintiffs nor any of the other defendants to the adding of applicant as a defendant.
I therefore conclude that the motion should be granted, but pursuant to paragraph (4) of Rule 1716 (supra) will direct that although all proceed ings should be served on the applicant Electrical and Electronic Manufacturers Association of Canada it will not file any separate pleadings to the proceedings as no relief is directly sought against it, but may participate in any hearing, whether on preliminary motions or discoveries, or at trial, participate in the cross-examination of witnesses, call witnesses if desired, and participate fully in argument and representations to the Court.
The style of cause will be amended to provide for the adding of applicant as a party defendant. Costs shall be in the event.
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