P.P.G. Industries Canada Ltd. v. A.G. of Canada, [1976] 2 SCR 739

Supreme Court of Canada

P.P.G. Industries Canada Ltd. v. A.G. of Canada, [1976] 2 S.C.R. 739

Date: 1975-11-27

P.P.G. Industries Canada Ltd. (Formerly Canadian Pittsburgh Industries Limited) and Pilkington Brothers (Canada) Limited Appellants;

and

The Attorney General of Canada Respondent.

1975: October 23; 1975: November 27.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Administrative law—Judicial review—Bias—Reasonable apprehension of bias—Chairman disqualifying himself from hearing and deliberations—Chairman’s signature on decision—Anti-dumping Act, R.S.C. 1970, c. A-15—Department of Justice Act, R.S.C. 1970, c. J-2, s. 4—Federal Court Act, R.S.C. 1970, c. 10 (2nd supp), s. 18.

Judicial review—Certiorari—Motion to quash—Motion by Crown two years after decision—Decision not challenged by parties—Crown not a party—Right of Attorney General to have certiorari issue—Discretion of Court to refuse certiorari or motion—Federal Court Act, R.S.C. 1970, c. 10 (2nd supp.), s. 18.

Appellants, firms engaged in glass manufacturing in Canada, had complained in 1969 of the injurious dumping of transparent sheet glass into Canada from certain European countries. The Deputy Minister of National Revenue made a preliminary determination of dumping and an inquiry proceeded before the Anti-dumping Tribunal. The Tribunal consisted of three members, the chairman and two others. The chairman, who had previously been a consultant to the two appellants and had advised them on the complaint subsequently made to the Deputy Minister, had on his appointment to the Tribunal dissociated himself from his clients and also disqualified himself from sitting on the inquiry which was conducted by the other two members without intervention of or consultation with him. The chairman was asked to look at the final joint draft reasons from the standpoint of phraseology only. The two originals of the decision signed by all three members of the Tribunal on legal advice were sent to the Deputy Minister of National Revenue. Other copies unsigned but also including the

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second page, listing all members of the Tribunal, were retained by the Tribunal and sent to the interested parties.

After two years the Attorney General of Canada, who neither had been a party before the Tribunal nor had attempted to intervene in the inquiry while it was on foot, brought an application supported by affidavits, to the Federal Court to quash the decision of the Tribunal, on the bases that the chairman had (1) participated in the decision although not present at the hearing which preceded it (2) had a pecuniary interest in the subject matter and (3) had a bias in favour of appellants.

Cattanach J. dismissed the application on the ground that the decision in the records of the Tribunal was unsigned and showed that the chairman had not participated in it. The Court of Appeal however held that it was enough to show participation that there was a record of the Tribunal with the chairman’s signature on it and, alternatively, that the document on file with the Tribunal should be interpreted as having been made by the three members whose names appeared on the second page.

Held: The appeal should be allowed.

In the circumstances the mere signing of the decision did not involve participation in the making of that decision by the chairman. The signature added nothing to the validity of the decision which could properly have been signed and given effect by the two members who conducted the inquiry. As the Attorney General was aware of all the facts surrounding the chairman’s signature, and called the chairman as a witness, and examined him as to the facts, he could not seek refuge in the parole-evidence rule as if these facts did not exist. The signature of the chairman did not therefore give rise to disqualifying participation so as to make the decision vulnerable to a motion to quash by the Attorney General, nor did the fact that the second page of the decision listed all three members of the Tribunal.

Certiorari or its modern equivalent, the motion to quash, is a discretionary remedy. The Attorney General does have an ancient right to have it issue as of course, i.e. to have the matter brought before a superior Court, but, on the matter of the substantive determination of the motion to quash he is in no different position from any other applicant. Discretionary bars are as applicable to the Attorney General on motions to quash as on

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motions by him for prohibition or in actions for declaratory orders. The unexplained two year delay in bringing the motion, and the fact that none of the parties affected by the decision took exception to it, justify the exercise of discretion to refuse the relief sought.

R. v. Amendt, [1915] 2 K.B. 276 referred to.

APPEAL from a judgment of the Federal Court of Appeal[1] reversing the judgment of Cattanach J.[2] dismissing an application by the Attorney General of Canada to quash a decision of the Antidumping Tribunal.

R.A. Smith, Q.C., and L.J. Levine, for the appellant, P.P.G. Industries Limited.

Donald J.M. Brown, for the appellant, Pilkington Brothers (Canada) Ltd.

G.W. Ainslie, Q.C., and R. Vincent, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The Attorney General of Canada applied to the Federal Court on May 4, 1972, pursuant to s. 18 of the Federal Court Act, 1970 (Can.), c. 1, to quash a finding or decision of the Anti-dumping Tribunal made on March 13, 1970 in respect of the importation of transparent sheet glass from certain European countries. The application was dismissed by Cattanach J. in a judgment of August 4, 1972, but this judgment was reversed by the Federal Court of Appeal in a judgment of June 29, 1973. Leave to appeal here was at the same time refused by the Federal Court of Appeal but was granted by this Court on October 2, 1973.

I must underline the extraordinary nature of the proceedings taken by the Attorney General of Canada. He was not a party to the inquiry which resulted in the decision of the Anti-dumping Tribunal that he seeks to impeach, nor did he attempt in any way to intervene in the inquiry while it was on foot. None of the many interested parties who might be said to have been adversely affected by

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the decision has sought to attack it. The Attorney General does not question the decision on its merits by reason of any error of jurisdiction or of law relating to it. There is no special statutory provision that the Attorney General invokes in support of his right to bring a motion to quash the decision of a federal adjudicative agency, an agency which has been established by Parliament to carry out independent functions without subordination to the Department of the Attorney General. What the Attorney General of Canada claims here is, on the admission of his counsel, relief which he says he can claim against a decision of any other federal administrative agency and on any ground which is open in support of a motion to quash. In short, the Attorney General asserts a general competence, by virtue of his office (and he invokes s. 4 of the Department of Justice Act, R.S.C. 1970, c. J-2 as imposing a duty to “see that the administration of public affairs is in accordance with law”), to require the Courts, at his behest, to inquire into any allegation of legal frailty of any decision of federal administrative boards, even though the parties to the decisions are satisfied with them or have no desire to attack them.

I do not see how the Attorney General of Canada can obtain any assistance from s. 4 of the Department of Justice Act where the key phrase is “public affairs”. The real question is whether he is in any better position than a stranger who seeks to quash an adjudication of a board and, if so, how far the Attorney General may go in claiming standing to seek a veto over decisions of statutory tribunals: see de Smith, Judicial Review of Administrative Action (1973, 3rd ed.), at pp. 369-372. The matter was considered briefly by Cattanach J. and not at all by the Federal Court of Appeal, nor was it made an issue by the appellants on the appeal to this Court. Cattanach J. proceeded on the basis that the Attorney General of Canada had an unfettered right to move to quash, the Court’s concern being only the merits. I am content, in these circumstances, to proceed here on the assumption that the Attorney General of Canada may freely apply to quash under s. 18 of the Federal Court Act.

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Three grounds of attack were levelled against the decision of the Anti-dumping Tribunal, all relating to the conduct of its Chairman. The first ground was that he participated in the making of the decision although he had a pecuniary interest in its subject matter; the second was that he participated in the making of the decision although he had or may have had, by reason of his association with the appellants, a bias in their favour; and the third was that he participated in the making of the decision although he was not present at the hearing which preceded it.

The appellants are firms engaged in the manufacture of glass in Canada. They had complained in early 1969 of the injurious dumping of transparent sheet glass into Canada from Czechoslovakia, East Germany, Poland, the Union of Soviet Socialist Republics and Romania. A preliminary determination of dumping was made by the Deputy Minister of National Revenue on December 15, 1969 and thereupon, pursuant to s. 16(1) of the Anti‑dumping Act, now R.S.C. 1970, c. A-15, as amended, the Anti-dumping Tribunal constituted under the Act proceeded to make the inquiry prescribed by that provision.

Although the Tribunal, a new one, consisted of three members, the Chairman being W.A. Buchanan and the other two being J.P. C. Gauthier and B.G. Barrow, only the latter two conducted the inquiry. Prior to his appointment as Chairman on January 3, 1969, Buchanan, as a private business consultant, had done work for the two appellants and, indeed, had advised them in connection with the complaint that they later lodged with the Deputy Minister of National Revenue in respect of the alleged dumping of transparent sheet glass. Upon becoming Chairman of the Tribunal Buchanan dissociated himself from his clients and disqualified himself from sitting on the inquiry which was conducted by Gauthier and Barrow without any intervention of or consultation with Buchanan. The two members, after holding hearings and taking evidence from interested parties, proceeded to consider what their finding should be and to draft reasons. They asked Buchanan to look at their final joint draft from the standpoint of phraseology only and he recommended some slight

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changes in wording. The decision embodied a conclusion that dumped imports of the particular glass were likely to cause material injury to the production in Canada of like goods.

The two members were concerned as to who should sign their decision and sought the advice of the solicitor to the Treasury who, noting that the Anti-dumping Act did not prescribe a quorum for the Tribunal, advised in a letter of February 12, 1970, that the safest practice would be to have all three members sign the formal document embodying the decision. The solicitor may not have known that Buchanan did not participate in the inquiry and in the hearings (Buchanan was in fact then out of the country) but, at any rate, a few days later he revised his opinion as a result of considering s. 21 of the Interpretation Act, R.S.C. 1970, c. I‑23 and he wrote to the secretary of the Tribunal on February 18, 1970, that “the two members who took the evidence could give a decision on behalf of the Tribunal”. Nonetheless, the final version of the decision dated March 13, 1970, was presented to Buchanan for signature, quite apparently under the influence of the solicitor’s advice as to the safest course, and Buchanan signed one English version and one French version. The two documents carried on their second page (following the formal letterhead and title page which referred to the nature of the inquiry) a listing of all the members of the Tribunal, the name of the secretary, and a notice to address all communications to him. The two signed originals of the decision were sent to the Deputy Minister of National Revenue. The Tribunal, itself a court of record under its constituent statute, retained an unsigned copy as its formal record and other unsigned copies were sent to the interested parties. All copies included the second page listing all members of the Tribunal, but there was no signature indication on them, not even signature lines.

So matters stood for two years. What precipitated the motion of May 4, 1972, brought by the

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Attorney General, an unprecedented proceeding so far as I am aware, is nowhere disclosed. It was supported by five affidavits, one dated April 28, 1972, two dated May 1, 1972, one dated May 3, 1972 and one dated May 4, 1972. The affidavit of April 28, 1972, made by one McMullen, an employee of the Department of Consumer and Corporate Affairs, related to documents seized from the appellants on September 24, 1971 and copies were attached as exhibits to the affidavit. The affidavit of May 3, 1972, by one Davis, a senior field examiner employed by the Department of National Revenue, referred to certain billing records which he swore were furnished to him by Buchanan, among them two invoices directed respectively to the two appellants for fees and expenses.

The material seized from the appellants and the billing records examined in Buchanan’s office were apparently the proofs upon which the Attorney General of Canada hoped to establish that Buchanan had a pecuniary interest in the anti-dumping inquiry. I resist the temptation to expatiate on the way in which the records were obtained from Buchanan and on the attempted use of the appellants’ documents against Buchanan although obtained, on a confidential basis, for the purpose of the Combines Investigation Act, R.S.C. 1970, c. C-23, or of the Income Tax Act, R.S.C. 1970, c. I-5. I say only that unjustified tactics were employed. Davis, who was cross-examined on his affidavit, said he thought he was making a routine audit for tax purposes to which Buchanan readily agreed, not knowing that a case was being prepared against him to impeach the decision of the Anti-dumping Tribunal. Despite what Davis said he was commissioned to do, it is strange that all he took away were the details of two accounts billed to the appellants. This was a sordid and, as it turned out, also a sloppy business because the records intended to show that Buchanan was billing for services rendered after he became Chairman of the Tribunal showed no such thing. No care was apparently taken to check the accounts with respect to the services for which they were rendered. In the result, the Attorney General of

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Canada withdrew the allegation of pecuniary interest before he had got very far into his case.

Cattanach J. found that Buchanan was disqualified from participating in the making of the decision on two grounds; first although he had no actual bias, there was, by reason of his relationship with the appellants whose complaint led to the anti-dumping proceedings, a reasonable apprehension of bias; and, second, he was not present at the hearing of the Anti‑dumping Tribunal. This left for determination the question whether Buchanan did participate by reason of the signing of the two documents embodying the decision of the Antidumping Tribunal. The learned Judge of first instance took what may be said to be a technical ground in concluding that because the decision in the records of the Anti-dumping Tribunal was unsigned, it followed that Buchanan did not participate in the decision. He did hold, however, that had the record shown that Buchanan had signed the decision this would have meant that he adopted it as his own and would have meant that he had participated in making it.

It was on this point that the Federal Court of Appeal differed from Cattanach J. That Court held that it was enough to show participation if there was a record of the Tribunal with Buchanan’s signature on it even if there was no such signed record in the files of the Tribunal and, alternatively, if the document on file with the Tribunal was the only authentic record of the decision, then it should be interpreted as having been made by the three members whose names appeared on the second page.

The issue of what was the formal record of the decision arose in a peculiar way because one of the affidavits sworn on May 1, 1972, that of the then secretary of the Anti-dumping Tribunal, had annexed to it a purported copy of the decision of the Tribunal, including as the signature page the signed names of all three members of the Tribunal. This was hence a “composite”, because such a

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copy could not have come from the files of the Tribunal, the only signed copies being in the hands of the Deputy Minister of National Revenue. It is unnecessary to dwell on this collagenous exercise, whatever one may think was the reason for engaging in it. I am content to adopt the approach of the Federal Court of Appeal to the question of the proper record and, on that approach, I am unable to agree that by signing the decision in the circumstances detailed above Buchanan participated in the making of that decision.

There were two bases for the Federal Court of Appeal’s conclusion on the question of participation. The first was that by knowingly signing a document embodying the Tribunal’s decision Buchanan committed himself to it, and oral evidence was not admissible to contradict this effect as it would be if an issue had been raised of mistake as to the document being signed. The second ground taken by the Federal Court of Appeal was that on Buchanan’s evidence, “regardless of what led him to do so and whether it was regarded as a formality or not, he in fact signed it because he considered it appropriate to indicate by his signature thereto that he adopted the decision as his own”. This is not an accurate assessment of the evidence and is an untenable conclusion from the evidence. So much for the Federal Court of Appeal’s factual determination, a determination which counsel for the respondent Attorney General of Canada could not support. Its legal determination, which was supported by an invocation of the parole evidence rule, is likewise unacceptable in so far as it is relied upon to show a reasonable apprehension of bias upon which the Attorney General of Canada could rely to quash the Tribunal’s decision.

The Federal Court of Appeal would have it that it is not open to explain how Buchanan came to sign the two documents embodying the Tribunal’s decision although he took no part in the hearings or in the deliberations upon which it was based. Since his signature added nothing to the validity of the decision—it could properly be signed and given effect by the two members who conducted the inquiry—we are left with the submission of the

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Attorney General of Canada, in support of the reasons of the Federal Court of Appeal, that the signature created a ground of invalidity which was not susceptible of explanation that would remove the basis of impeachment.

It is plain on the record that, apart from the signature, Buchanan did not participate in the decision of the Tribunal and hence, the injunction that “he who decides must hear” does not apply in this case. Had he so participated, a different question would be presented and one which would have led to a different conclusion than that which I reach here. It is argued, however, that the signature of Buchanan created a reasonable apprehension of participation and, hence, a reasonable apprehension of bias in the same way as such an apprehension would arise if there had been proof of actual participation in the decision by Buchanan without having been present at the hearings. Even assuming this to be a tenable proposition, I do not think it lies in the mouth of the Attorney General to advance it.

As a result of his investigations, undertaken as he contends in pursuance of his duties, the Attorney General was aware of all the facts surrounding Buchanan’s signature and, what is more, he called Buchanan as a witness and examined him as to the facts. In these circumstances, I do not think that he can now seek refuge in the parole evidence rule as if those facts did not exist. The Attorney General is in a different position here than a private interested party would be in objecting to the introduction of evidence to explain away a situation which raised a reasonable apprehension of bias affecting that party’s position in respect of a decision which he challenged. In the result, I cannot find that the signature of Buchanan gave rise to disqualifying participation so as to make the Tribunal’s decision vulnerable to a motion by the Attorney General to quash.

Nor do I think that participation, sufficient to make the decision vulnerable to quashing, arose from the fact that the second page thereof listed

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the names of the members of the Tribunal including Buchanan. The way in which copies of the decision were distributed to the public betrayed perhaps a failure of the Tribunal or its staff to differentiate between a press release and a formal adjudication embodying the reasons for reaching it. I would not put this objection on any higher ground than that on which the question of the signature was put, and I would reject it for the same reasons.

There is another ground upon which I think this appeal should be allowed and it is that certiorari or its modern equivalent, the motion to quash, is a discretionary remedy and as much so where the Crown moves to quash as where a private person does so. I am not concerned here with the anterior question whether certiorari should issue in the first instance to have the impugned proceedings brought up—I do not need to question the Attorney General’s ancient right to have it issue as of course—but rather with the substantive operation of the motion to quash. On this issue, the Attorney General should be in no different position from any other applicant who seeks to quash an adjudication or a decision: see R. v. Amendt[3], at p. 281. The contrary view taken by the Federal Court of Appeal is based on a mistaken appreciation of the significance of the rule that certiorari is granted as of course to the Attorney General. This rule refers only to the formal issue of the writ and not to the substantive consideration of the relief sought by it: see 1 Hals. (4th ed. 1973), at p. 156.

In my opinion, discretionary bars are as applicable to the Attorney General on motions to quash as they admittedly are on motions by him for prohibition or in actions for declaratory orders. The present case is an eminently proper one for the exercise of discretion to refuse the relief sought by the Attorney General. Foremost among the factors which persuade me to this view is the unexplained two year delay in moving against the Anti-dumping Tribunal’s decision. There is also the fact that

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none of the parties affected by the decision took exception to it, nor are any of them lending their support to the Attorney General of Canada in the present case. Even if there be some taint in the decision by reason of Buchanan’s signature, I cannot regard it as sufficient to warrant a Court in quashing it at the instance of the Attorney General of Canada acting not from an aggrieved position but in purported protection of the public interest. There is wanting here any such abuse of power that might support intervention by the Attorney General in the public interest. The appellants also urged as a factor to be considered the pretext and breach of confidence used by the respondent in seeking to make his case against the Tribunal’s decision. I find no need to rely on this but this does not mean that conduct is acceptable.

I would, accordingly, allow the appeal, set aside the judgment of the Court of Appeal except in so far as it affirmed the award of costs to Buchanan and I would restore the judgment of Cattanach J. dismissing the motion to quash the Tribunal’s decision. The appellants should have their costs throughout against the Attorney General of Canada.

Appeal allowed with costs.

Solicitors for the appellant, P.P.G. Industries Canada Ltd.: Smith, Lyons, Torrance, Stevenson A Mayer, Toronto.

Solicitors for the appellant, Pilkington Brothers (Canada) Limited: Blake, Cassels & Graydon, Toronto.

Solicitor for the respondent: D.S. Thorson, Ottawa.