Date: 20021029
Docket: A-455-01
Neutral citation: 2002 FCA 419
CORAM: DÉCARY J.A.
ROTHSTEIN J.A.
EVANS J.A.
BETWEEN:
DOFASCO INC.
Applicant
- and -
MACSTEEL INTERNATIONAL (CANADA) LTD., MACSTEEL INTERNATIONAL SOUTH AFRICA (PTY) LTD., ISCOR LIMITED,
JINDAL IRON & STEEL COMPANY LIMITED
Respondents
- and -
SOREVCO
Intervener
- and -
STELCO INC.
Intervener
Heard at Toronto, Ontario, on Monday, October 28, 2002.
Judgment delivered from the Bench at Toronto, Ontario,
on Monday, October 28, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20021029
Docket: A-455-01
Neutral citation: 2002 FCA 419
CORAM: DÉCARY J.A.
ROTHSTEIN J.A.
EVANS J.A.
BETWEEN:
DOFASCO INC.
Applicant
- and -
MACSTEEL INTERNATIONAL (CANADA) LTD., MACSTEEL INTERNATIONAL SOUTH AFRICA (PTY) LTD., ISCOR LIMITED,
JINDAL IRON & STEEL COMPANY LIMITED
Respondents
- and -
SOREVCO
Intervener
- and -
STELCO INC.
Intervener
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto,
Ontario on Monday, October 28, 2002)
EVANS J.A.
[1] This is an application for judicial review of a decision by the Canadian International Trade Tribunal, dated July 18, 2001, finding that the applicant, Dofasco Inc., and other domestic producers of corrosion-resistant-steel, including the interveners, Stelco Inc., and Sorevco Inc., had not been injured in 1999 and that they had not proved that the injury to their business that they had sustained in 2000 was caused by the dumping of corrosion-resistant steel in Canada by the respondents.
[2] In oral argument, the applicant alleged that the Tribunal had based its decision on an erroneous finding of fact, namely the absence of a causal connection between injury and dumping, without regard to the material before it and that, accordingly, the decision should be set aside pursuant to paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7. It was submitted that the Tribunal committed a reviewable error when it based its finding of no causal connection on average pricing of a range of corrosion-resistant steel products, and did not refer to the evidence submitted to the Tribunal by the applicant and others relating specifically to the average pricing of particular products within this range, especially lighter gauge steel.
[3] We have not been persuaded that the Tribunal erred as alleged, and are consequently all of the opinion that the application must be dismissed.
[4] As for the allegation with respect to the Tribunal's use of average pricing to determine whether domestic producers had been injured by the dumped goods, counsel conceded that average pricing could be used in some circumstances for this purpose. The choice of the appropriate methodology for making this finding of fact very much depended on the circumstances of the particular case, including the cogency of other evidence before the Tribunal. Counsel also suggested that, even if the Tribunal had relied on more specific evidence, it erred by attaching too much significance to the generic average pricing data.
[5] In our view, these are questions that lie at the heart of the Tribunal's expertise in making findings of fact of a specialist and technical nature. Moreover, the Tribunal was clearly alert to the concern of the domestic industry that variations in the product mix made average pricing an unreliable method of determining causation. In response to this concern, the Tribunal took a "micro" view by also looking at the average pricing of specified products within the range of the disputed goods. It concluded that this evidence supported the inference that it had drawn from its examination of the "macro" data derived from the average pricing of the range as a whole, namely that the price of the imports was not the cause of the financial decline of the applicant`s business in corrosion-resistant steel for non-automotive use in the year 2000.
[6] It is not for the Court on an application for judicial review to determine if the Tribunal selected a methodology appropriate to the facts of a given case, relied too heavily on generic average pricing, or failed adequately to pursue its analysis of the "micro" evidence relating to the average pricing of particular products. These are matters, as we have already noted, that are quintessentially within the Tribunal's province as specialist fact finder. Counsel did not persuade us that, in finding as it did, the Tribunal committed an error that was either so serious or so obvious as to render the decision patently unreasonable or to establish that it was made without regard to the material before it.
[7] Nor are we persuaded by the argument that the Tribunal's reasons were so deficient that it may be inferred from them that the Tribunal failed to have regard to important evidence that the dumping of the disputed goods caused the injury to the domestic producers. Given the confidential nature of that evidence and the doubts about its reliability to which counsel for the respondent, Jindal Iron and Steel Company Limited, drew our attention, the Tribunal's statement that the industry's allegations of injury resulting from "price suppression or lost sales due to the presence of imports from subject countries, including imports of lighter gauge products, cannot be sustained by the evidence" was sufficient in all the circumstances of this case to satisfy us that the applicant had not established that the Tribunal failed to have regard to the evidence in question.
[8] For these reasons, the application for judicial review will be dismissed with costs payable by Dofasco to the respondents, Jindal Iron and Steel, and Iscor Limited.
"John M. Evans"
J.A.
FEDERAL COURT OF CANADA
Appeal Division
Names of Counsel and Solicitors of Record
DOCKET: A-455-01
STYLE OF CAUSE: DOFASCO INC.
Applicant
- and -
MACSTEEL INTERNATIONAL (CANADA) LTD.,
MACSTEEL INTERNATIONAL SOUTH AFRICA
(PTY) LTD., ISCOR LIMITED, JINDAL IRON &
STEEL COMPANY LIMITED
Respondents
- and -
SOREVCO
Intervener
- and -
STELCO INC.
Intervener
DATE OF HEARING: MONDAY, OCTOBER 28, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: EVANS, J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON MONDAY, OCTOBER 28, 2002.
DATED: TUESDAY, OCTOBER 29, 2002
APPEARANCES BY: Mr. John T. Morin
Mr. Steven K. D'Arcy
For the Applicant (Dofasco Inc.)
Page: 2
APPEARANCES BY: Mr. Geoffrey C. Kubrick
(Cont'd)
For the Respondent (Jindal Iron & Steel
Company Limited)
Mr. Gordon Lafortune
For the Respondent (Iscor Ltd.)
No appearance
For the Intervener (Sorevco)
Mr. Riyaz Dattu
For the Intervener (Stelco Inc.)
SOLICITORS OF RECORD: FASKEN MARTINEAU DuMOULIN LLP
Barristers & Solicitors
Toronto Dominion Bank Tower
Box 20, Suite 4200
66 Wellington Street West
Toronto, Ontario
M5K 1N6
BENNETT JONES LLP
One First Canadian Place
P.O. Box 130, Suite 3400
Toronto, Ontario
M5X 1A4
For the Applicant (Dofasco Inc.)
FLAVELL KUBRICK LLP
Barristers & Solicitors
280 Slater Street
Suite 1700
Ottawa, Ontario
K1P 1C2
For the Respondent (Jindal Iron & Steel
Company Limited)
Page: 3
SOLICITORS OF RECORD:
(Cont'd) GORDON LAFORTUNE
Barrister & Solicitor
100 Sparks Street, Suite 901
Ottawa, Ontario
K1P 5B7
For the Respondent (Iscor Ltd.)
OSLER, HOSKIN & HARCOURT
Barristers & Solicitors
Suite 1500
50 O'Connor Street
Ottawa, Ontario
K1P 6L2
For the Intervener (Sorevco)
MCCARTHY TÉTRAULT LLP
Barristers & Solicitors
Toronto Dominion Bank Tower
Suite 4700, Box 48
Toronto, Ontario
M5K1E6
For the Intervener (Stelco Inc.)
FEDERAL COURT OF APPEAL
Date: 20021029
Docket: A-455-01
BETWEEN:
DOFASCO INC.
Applicant
- and -
MACSTEEL INTERNATIONAL (CANADA)
LTD., MACSTEEL INTERNATIONAL SOUTH
AFRICA (PTY) LTD., ISCOR LIMITED,
JINDAL IRON & STEEL COMPANY
LIMITED
Respondents
- and -
SOREVCO
Intervener
- and -
STELCO INC.
Intervener
REASONS FOR JUDGMENT
OF THE COURT
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