T-1687-87
Hyundai Motor Company, Hyundai Auto Canada
Inc., Hyundai Canada Inc. (Applicants)
v.
Attorney General of Canada, Deputy Minister of
National Revenue for Customs and Excise and
Canadian Import Tribunal (Respondents)
INDEXED AS: HYUNDAI MOTOR CO. v. CANADA (ATTORNEY
GENERAL)
Trial Division, Strayer J.—Ottawa, August 11 and
21, 1987.
Anti-dumping — Importers having no right to be advised of
decision to initiate investigation into alleged dumping or of
reference to Canadian Import Tribunal on question of material
injury.
Judicial review — Prerogative writs — Certiorari — Initia
tion of investigation into alleged dumping and reference to
Canadian Import Tribunal on question of material injury
administrative decisions — No reasonable apprehension of
bias — Decisions involving no rights Judicial review
unavailable.
Following complaints respecting the dumping of automobiles
imported into Canada by the applicant companies, the Deputy
Minister of National Revenue for Customs and Excise caused
an investigation to be initiated and referred to the Canadian
Import Tribunal the question of material injury to the produc
tion of automobiles in Canada. The applicants sought certiorari
to have these decisions quashed, prohibition to have the pro
cesses stopped and mandamus to have, in effect, an input into
the decision as to whether an investigation should be initiated.
Held, the application should be dismissed.
There had been no denial of fairness with respect to either
decision. There is no statutory or common law requirement to
advise those suspected of dumping before an investigation is
launched or before a reference is made to the Tribunal. Nor is
there a requirement, at common law or under the Canadian
Bill of Rights—since no rights or obligations are involved in
these decisions—to give importers an opportunity to be heard
at any stage before a preliminary determination of dumping is
made. The decision to investigate being administrative in
nature, the Deputy Minister is free to fix his own procedure.
The fact that the applicants are being investigated and that
the information in the complaints is relied upon does not, in
itself, support allegations of bias or of reasonable apprehension
thereof.
It is clear that the Deputy Minister's authority, under sub
section 31(1) of the Act, to cause investigations to be initiated
was properly delegated to the Assistant Deputy Minister and
that, even though it was not expressly stated, the required
opinion that there was some evidence of dumping and of
material injury was formed.
It is not the role of this Court to act as an appeal tribunal on
the substance of the Deputy Minister's decisions as to the facts.
Applications for judicial review of initial factual determinations
made by the Deputy Minister where there is clearly evidence to
support those findings are ill-conceived attempts to judicialize
an administrative, pre-investigative process.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III.
Interpretation Act, R.S.C. 1970, c. I-23.
Special Import Measures Act, S.C. 1984, c. 25, ss. 2(9)
(as added by S.C. 1985, c. 14, s. 4), 8 (as am. by S.C.
1986, c. 1, s. 196), 31(1), 34, 37, 38(1), 41, 42, 75.
CASES JUDICIALLY CONSIDERED
APPLIED:
Chisholm (Ronald A.) Ltd. v. Canada (Deputy Minister
of National Revenue for Customs and Excise) et al.
(1986), 1 F.T.R. 1; Smith, Kline & French Laboratories
Ltd. v. Frank W. Horner Ltd. (1983), 79 C.P.R. (2d) 1
(F.C.A.); Irvine v. Canada (Restrictive Trade Practices
Commission), [1987] 1 S.C.R. 181; Guay v. Lafleur,
[1965] S.C.R. 12.
COUNSEL:
Richard S. Gottlieb and Michael W. Swin-
wood for applicants.
M. F. Ciavaglia for respondents Attorney
General of Canada and Deputy Minister of
National Revenue for Customs and Excise.
James L. Shields for respondent Canadian
Import Tribunal.
John M. Coyne, Q.C. and P. A. Magnus for
respondents Ford Motor Company of Canada
Limited and General Motors Company of
Canada Limited (added as parties respondent
by order of the Court dated August 11, 1987).
SOLICITORS:
Gottlieb, Kaylor & Stocks, Montréal, for
applicants.
Deputy Attorney General of Canada for
respondents Attorney General of Canada and
Deputy Minister of National Revenue for
Customs and Excise.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent
Canadian Import Tribunal.
Osler, Hoskin & Harcourt, Ottawa, for
respondents Ford Motor Company of Canada
Limited and General Motors Company of
Canada Limited.
The following are the reasons for order ren
dered in English by
STRAYER J.: This is an application for certiorari
to quash a decision of the Deputy Minister of
National Revenue (Customs and Excise) made on
July 15, 1987 to cause an investigation to be
initiated respecting alleged dumping in Canada of
automobiles by the applicants; for prohibition to
restrain the said Deputy Minister from continuing
the investigation; certiorari to quash a reference
made by the Deputy Minister to the Canadian
Import Tribunal on July 15, 1987 of the question
whether the evidence discloses a reasonable indica
tion that the alleged dumping has caused or is
likely to cause material injury with respect to
production in Canada of like goods; prohibition to
restrain the Canadian Import Tribunal from
giving its advice upon that reference; and man-
damus to require the Deputy Minister to provide
the applicants with all the material considered by
him in making his decision to initiate the investiga
tion and providing for an opportunity for the appli
cants to make representations before a new deci
sion might be made with respect to the initiation of
such an investigation. After the hearing of this
application commenced, but before it was com
pleted, the Canadian Import Tribunal rendered its
opinion on the reference, as it was required by law
to do, on August 14, 1987. Its opinion was to the
effect that the evidence did disclose such a reason
able indication of material injury.
At the end of the hearing of this motion I
dismissed it and said I would provide reasons later.
Following are those reasons.
Essentially, the applicants seek these remedies
on the basis that the Deputy Minister of National
Revenue (Customs and Excise) has failed to meet
a standard of fairness imposed on him by law, and
that he has acted without jurisdiction or in error of
law in reaching the decisions he has reached.
First with respect to the allegation of denial of
fairness, this has two aspects: fairness in relation
to the decision to initiate an investigation, and
fairness in relation to the making of the reference
to the Canadian Import Tribunal.
With respect to the decision to initiate an inves
tigation, the basic complaint of the applicants is
that they were denied fairness because they were
not informed prior to that decision that the Deputy
Minister had received a complaint and was consid
ering the possibility of an investigation, and thus
they were denied the opportunity to make submis
sions to the Deputy Minister prior to his decision
being taken. On June 1, 1987 General Motors of
Canada Limited and Ford Motor Company filed a
complaint respecting the alleged dumping by the
Hyundai companies. The complainants were
advised by a letter of June 19, 1987 that the
complaint was properly documented. The decision
to initiate an investigation was issued by T. C.
Greig, Assistant Deputy Minister, Customs Pro
gramme on July 15, 1987 and at that time the
applicants were informed of the decision to investi
gate. On the same date the reference was made to
the Canadian Import Tribunal and the applicants
were also advised of it. Since that date the appli
cants have made certain written representations to
the Deputy Minister in relation to the question of
dumping, the matter in respect of which the inves
tigation is continuing. Depending on the results of
that investigation, the Deputy Minister may make
a preliminary determination of dumping pursuant
to subsection 38(1) of the Special Import Meas
ures Act, S.C. 1984, c. 25.
It is clear that the statute does not require that
any notice be given by the Deputy Minister to
persons in the position of the applicants prior to a
decision being taken under subsection 31(1) of the
Act to initiate an investigation. I so decided in the
case of Chisholm (Ronald A.) Ltd. v. Canada
(Deputy Minister of National Revenue for Cus-
toms and Excise) et al.' and have nothing to add
to the reasons stated there.
I also held in the Chisholm case that the statute
implicitly excluded any possible common law duty
of fairness involving notice to importers before a
decision is taken to initiate an investigation. I
remain of that view. I would add that in my view
the decision whether or not to launch an investiga
tion is a "threshold" decision for the Deputy Min
ister, an administrative act in respect of which he
can fix his own procedure subject to any require
ments of the Act. 2 At this preliminary stage prior
to a decision being taken to initiate an investiga
tion, no rights or interests of the applicants are
being determined.' Nothing which has any direct
impact on the applicants will happen unless a
preliminary determination of dumping is made by
the Deputy Minister under section 38. Prior to
that determination the applicants have already had
an opportunity to make certain submissions in
writing to the Deputy Minister. If the Deputy
Minister does make such a preliminary determina
tion, the applicants concede that they would have
the opportunity for the making of both written and
oral submissions to the Deputy Minister or his
representative, and an opportunity for a dialogue
with such person, all prior to any final determina
tion of dumping being made pursuant to section 41
of the Act. Also, following any preliminary deter
mination which may be made, the Tribunal would
be required under section 42 to make an inquiry
with respect to whether the dumping referred to in
the preliminary determination has caused or is
likely to cause material injury to the production in
Canada of like goods. The jurisprudence is clear
that during the conduct of this inquiry the Tri
bunal must hold a hearing, as referred to in section
75 of the Act, at which all parties including the
applicants will have an opportunity of knowing
and meeting any case against them. While there
will be some direct effect on the complainants if a
preliminary determination of dumping is made, in
that a provisional duty may then be imposed under
' (1986), 1 F.T.R. 1.
2 See e.g., Smith, Kline & French Laboratories Ltd. v. Frank
W. Horner Ltd. (1983), 79 C.P.R. (2d) 1, at p. 12 (F.C.A.).
3 See e.g., Irvine v. Canada (Restrictive Trade Practices
Commission), [1987] 1 S.C.R. 181, at pp. 231-232.
section 8 of the Act [as am. by S.C. 1986, c. 1, s.
196], if ultimately they succeed in their represen
tations to the Deputy Minister after that prelim
inary determination, and prior to his final determi
nation, or if they succeed before the Canadian
Import Tribunal with respect to the question of
material injury, then they will be entitled to a
refund of the provisional duty with interest. Alter
natively, they can avoid paying any provisional
duty by posting a bond. There may be some
interim inconvenience which may well indeed have
some unfavourable commercial consequences, but
this will only commence after a preliminary deter
mination of dumping (prior to which they have
already had some opportunity to make representa
tions to the Deputy Minister) and will be of a
temporary nature only. As counsel for the respon
dents pointed out, such temporary consequences,
while somewhat unfortunate, are not dissimilar to
the consequences which may flow from a civil
action being commenced in the courts against any
business man or company even if the action ulti
mately fails. To this I would add that the prejudi
cial consequences are likely a good deal less than
what would flow from the laying of a criminal
charge against any person, even if that charge is
ultimately dismissed. Yet the common law require
ment of fairness has not been taken to mean that a
person must be consulted before the police under
take an investigation of him with a view to possible
charges being laid, nor does it require him to have
an opportunity to make submissions before a
charge is laid. Therefore I am unable to find any
common law fairness requirement on the Deputy
Minister to advise the applicants before an investi
gation is launched into their alleged dumping, or
to conduct a full hearing before a preliminary
determination of dumping is made.
The applicants also contended that, even if the
common law did not require such a process, such is
required by the Canadian Bill of Rights. 4 They
rely on paragraph 2(e) which provides that every
law of Canada shall be construed and applied so as
not to
2....
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
For the reasons set out above I do not believe that
any "rights and obligations" of the applicants were
involved in the decision to initiate an investigation.
Even the conduct of the investigation itself does
not as such involve rights and obligations, nor does
it give rise to the right to a fair hearing under
paragraph 2(e) of the Canadian Bill of Rights. 5
Another contention of the applicants which
really amounts to alleged denial of natural justice
or fairness is that there is a reasonable apprehen
sion of bias on the part of the Deputy Minister of
National Revenue. It might first be observed that
this is put forward as a ground for quashing the
decision of the Deputy Minister and for prohibit
ing the investigation. The principal basis for the
alleged apprehension of bias is that the Deputy
Minister decided to initiate the investigation only
against the applicants' goods without including
those of other importers or without including all
automobiles imported from Korea. It was agreed
during argument that while in the majority of
investigations the subject-goods for investigation
are selected by reference to a particular country
rather than a particular company, investigations
related to products of one company alone are not
unknown: in the past out of some forty investiga
tions launched, four prior to this one have been
related to a single company. The broader implica
tion of the allegation of bias seems to be that the
Deputy Minister has relied heavily on the terms of
the complaint for the purpose of defining the
subject-goods and for the information on which he
relied to launch the investigation. I can see here no
evidence of actual bias nor is there evidence that
would support an allegation of reasonable appre
hension of bias. It is not entirely surprising that an
investigation is launched on the basis of the par
ticular complaint which has been made. The whole
" R.S.C. 1970, Appendix III.
5 Guay v. Lafleur, [1965] S.C.R. 12.
purpose of the investigation is to determine wheth
er the complaint is supportable in fact and law.
With respect to the alleged denial of fairness in
the making of the reference to the Canadian
Import Tribunal, the same considerations general
ly apply. The reference was made in accordance
with the Act which clearly did not permit input to
the reference from persons such as the applicants
once a decision was taken to initiate an investiga
tion. The Deputy Minister by section 34 is only
required to give notice of an investigation to an
importer once the decision is taken to hold the
investigation, and by that section he is required, if
he wishes to make a reference to the Tribunal with
respect to material injury, to make such reference
on the same day. By section 37 he is required to
provide to the Tribunal such information and ma
terial on the subject as he then has and the Tri
bunal is required to give its opinion on the basis of
that material and nothing else. This excludes the
possibility that the importer will have had notice of
the investigation in time to make submissions
which might be in the hands of the Deputy Minis
ter at the time of his decision to initiate an investi
gation so as to make it part of the material that he
would provide to the Tribunal for purposes of the
reference. For reasons stated earlier I am unable
to find any implied common law obligation on the
Deputy Minister to allow the importer to make
representations prior to the reference. The refer
ence is not determinative of anything. It seeks an
expression of opinion from the Tribunal. No deci
sion affecting rights or obligations will be made by
the Tribunal unless and until the Deputy Minister
makes a preliminary determination of dumping
and the Tribunal conducts an inquiry under sec
tion 42. During such an inquiry there will be a
hearing by the Tribunal at which the importer will
have full rights to participate. For the same reason
it follows that there is no violation of paragraph
2(e) of the Canadian Bill of Rights.
As noted earlier, the other attack made on the
decision of the Deputy Minister to launch an
investigation alleges errors of jurisdiction or of
law.
First, it is contended that the evidence does not
show that the Deputy Minister himself formed the
opinion required under subsection 31(1) before he
could launch an investigation; or alternatively, that
the person who did form that opinion was not
properly delegated to do so. I think I need go no
farther than deal with the second point because I
think it is clear that the decision to initiate an
investigation was taken by T. C. Greig, Assistant
Deputy Minister, that he formed the requisite
opinion, and that he was properly delegated to do
so. His decision of July 15 does not, it is true,
expressly state that he formed the necessary opin
ion that there was some evidence of dumping and
of material injury. Nevertheless it states
Pursuant to section 31 of the Special Import Measures Act and
as authorized by the Deputy Minister of National Revenue for
Customs and Excise, I hereby initiate an investigation with
respect to ....
It is clear that he is exercising the Deputy Minis
ter's powers under section 31. That power can only
be exercised on condition that the requisite opinion
is formed. It is not necessary for the decision-mak
er to spell out that he has formed the requisite
opinion if he states that he is taking the decision
for which such an opinion is a prerequisite. Fur
ther, it is clear that the Deputy Minister's author
ity under subsection 31(1) was properly delegated
to him. Subsection 2(9) of the Special Import
Measures Act [as added by S.C. 1985, c. 14, s. 4],
as amended, provides that:
2....
(9) Any power, duty or function of the Deputy Minister
under this Act may be exercised or performed by any person
authorized by him to do so and, if so exercised or performed,
shall be deemed to have been exercised or performed by the
Deputy Minister.
By a written designation of persons authorized by
the Deputy Minister to exercise his functions
under the Act, dated May 19, 1987, there was
delegated to this Assistant Deputy Minister the
Deputy Minister's function or duty under subsec
tion 31(1) to
... cause an investigation to be initiated respecting the dump
ing or subsidizing of any goods.
Read in conjunction with subsection 31(1), this
can only be taken to mean that the Assistant
Deputy Minister could do the things which the
Deputy Minister could do under subsection 31(1),
subject to the same conditions upon which the
Deputy Minister could do those things. This would
include forming the requisite opinion. I need not
go beyond this finding and deal with the applica
tion of the Interpretation Act [R.S.C. 1970, c.
I-23] or the implied authority for delegation of
statutory functions, although I would not wish to
be taken to have rejected those grounds as support
for what was done here.
Finally, the contentions related to alleged errors
of jurisdiction or law essentially involve an attack
on the terms of the decision to initiate an investi
gation and the reasons given therefor. A number of
allegations of fact were brought forward to demon
strate that the Assistant Deputy Minister, acting
on behalf of the Deputy Minister, had erred with
respect to the definition of the class of goods
allegedly dumped, the size of the market in
Canada, future market trends, and the failure to
segregate among cars sold in Canada those pro
duced here and those imported. Essentially the
applicants contend that the Deputy Minister or his
representative failed to consider the relevant evi
dence and instead considered irrelevant evidence.
It must first be emphasized, as I emphasized in the
Chisholm case, that it is not the role of the Court
to act as an appeal tribunal on the substance of the
Deputy Minister's decision as to the facts. It would
only be in circumstances where it could be shown
that the Deputy Minister or his representative had
very clearly committed an error of law, by failing
to take into account the legally relevant issues or
facts, or by basing his decision solely on facts or
issues which as a matter of law were irrelevant,
that a court might intervene to quash the decision.
In such case, it could be said that the Deputy
Minister had exceeded his jurisdiction by purport
ing to exercise powers which had been granted for
a completely different purpose, or it could be said
that he erred in law in so doing. The evidence
establishes no such case here. At most, what the
applicants have demonstrated is that the Deputy
Minister might have defined the class of goods
differently or might have taken into account other
evidence, some of which was inconsistent with the
evidence he apparently relied on and some of
which was not really inconsistent. In certain cases,
it is clear that there was other evidence before the
Deputy Minister, as part of the complaint, of
which he was aware even if he did not reflect it in
his reasons for the decision. But he clearly had
some evidence before him upon which he could
base his conclusion that an investigation should be
initiated and there was certainly no basis for
saying that he acted on clearly irrelevant consider
ations. It must be kept in mind at all times that the
decision in question here was one to initiate an
investigation. That implies an interim decision
which is to be tested by full examination of the
facts and law, a process in which at the proper
time the persons being investigated have an oppor
tunity to state their position.
It is indeed surprising that applications such as
this are brought to seek judicial review of initial
factual determinations made by the Deputy Minis
ter, where it is clear that the Deputy Minister had
before him some evidence upon which he could
find as he did. In my view such applications
involve an ill-conceived attempt to judicialize an
administrative, pre-investigative process.
It is therefore obvious that the applications for
certiorari and prohibition concerning the initiation
and continuation of the investigation by the
Deputy Minister must be dismissed. With respect
to the order of reference to the Canadian Import
Tribunal, the application to quash that order has
probably become moot because the Tribunal has
already given its opinion but in any event I have
for the reasons given dismissed the application to
quash the reference. For the same reason I dis
missed the application for prohibition against the
Tribunal asked for in paragraph 5 of the notice of
motion because in my view the reference was
proper and authorized by law. Again, this request
for relief has become moot since the Tribunal has
already rendered its opinion. With respect to the
application for an order requiring the Deputy Min
ister to give the applicants all the material con
sidered by him in making his decision to initiate an
investigation, for the reasons given I am satisfied
that the applicants are not entitled to such ma-
terial at this stage and prior to a decision being
taken under subsection 31(1), and this is really the
premise upon which such relief is sought.
The alternative relief is also inappropriate in
that it would involve the Court in redefining the
investigation. This would require the setting aside
of decisions which the Deputy Minister was en
titled to make and there is no basis for holding
that he made those decisions without jurisdiction
or in error of law. Such relief is therefore not
justified.
The application has therefore been dismissed in
its entirety, with costs.
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