Federal Court of Appeal Decisions

     A-473-96

CORAM:      HUGESSEN J.A.

     McDONALD J.A.

     CHEVALIER D.J.

B E T W E E N :

IN THE MATTER of an application for judicial review pursuant to subsection 28(1)(e) of the Federal Court Act

AND IN THE MATTER of an Inquiry by the Canadian International Trade Tribunal under section 42 of the Special Imports Measures Act respecting the dumping and subsidization of dry pasta, not stuffed or otherwise prepared, and not containing eggs, in packages up to and including 2.3 kg in weight, originating in or exported from Italy.

     THE CANADIAN PASTA MANUFACTURERS' ASSOCIATION

     Applicant

     - and -

AURORA IMPORTING & DISTRIBUTING LTD., BELLA INTERNATIONAL FOOD BROKERS INC., BERTOLLI CANADA INC., CANADIAN GLOBAL FOODS CORPORATION, FALESCA IMPORTING LTD., ITALFINA INC., MOLISANA IMPORTS, NUMAGE TRADING INC., SA-GER FOOD PRODUCTS INC., SANTA MARIA FOODS LIMITED, SIENE FOODS LTD., WESTON PRODUCE, DIVISION OF F & F SUPERMARKETS INC., UNIONE INDUSTRIALI PASTAI ITALIANI, BARILLA ALIMENTARE S.p.A., COLAVITA IND. AL. CO. SPA, LLI DE CECCO DI FILIPPO S.p.A., DELVERDE, S.R.K., F. DIVERLLA S.P.A., PASTIFICIO FABIANELLI S.p.A., LA MOLISANA INDUSTRIE ALIMENTARI S.p.A., NESTLÉ ITALIANA S.p.A., MARCUS RÖSSL, RUD-AL CO. LTD.

     Respondents

     - and -

     THE CANADIAN WHEAT BOARD

     Interested Party

     Heard at Ottawa, Ontario, Tuesday, January 21, 1997.

     Judgment rendered at Otawa, Ontario, Friday, January 31, 1997.

REASONS FOR JUDGMENT BY:      HUGESSEN J.A.

CONCURRED IN BY:      McDONALD J.A.

     CHEVALIER D.J.

     A-473-96

CORAM:      HUGESSEN J.A.

     McDONALD J.A.

     CHEVALIER D.J.

B E T W E E N :

IN THE MATTER of an application for judicial review pursuant to subsection 28(1)(e) of the Federal Court Act

AND IN THE MATTER of an Inquiry by the Canadian International Trade Tribunal under section 42 of the Special Imports Measures Act respecting the dumping and subsidization of dry pasta, not stuffed or otherwise prepared, and not containing eggs, in packages up to and including 2.3 kg in weight, originating in or exported from Italy.

     THE CANADIAN PASTA MANUFACTURERS' ASSOCIATION

     Applicant

     - and -

AURORA IMPORTING & DISTRIBUTING LTD., BELLA INTERNATIONAL FOOD BROKERS INC., BERTOLLI CANADA INC., CANADIAN GLOBAL FOODS CORPORATION, FALESCA IMPORTING LTD., ITALFINA INC., MOLISANA IMPORTS, NUMAGE TRADING INC., SA-GER FOOD PRODUCTS INC., SANTA MARIA FOODS LIMITED, SIENE FOODS LTD., WESTON PRODUCE, DIVISION OF F & F SUPERMARKETS INC., UNIONE INDUSTRIALI PASTAI ITALIANI, BARILLA ALIMENTARE S.p.A., COLAVITA IND. AL. CO. SPA, LLI DE CECCO DI FILIPPO S.p.A., DELVERDE, S.R.K., F. DIVERLLA S.P.A., PASTIFICIO FABIANELLI S.p.A., LA MOLISANA INDUSTRIE ALIMENTARI S.p.A., NESTLÉ ITALIANA S.p.A., MARCUS RÖSSL, RUD-AL CO. LTD.

     Respondents

     - and -

     THE CANADIAN WHEAT BOARD

     Interested Party

     REASONS FOR JUDGMENT

    

HUGESSEN J.A.

     This is an application for judicial review of a negative finding of injury made by the Canadian International Trade Tribunal following a determination of dumping and subsidization made by the Deputy Minister. The subject goods are packaged dry pasta from Italy.

     In the decision under attack, the Tribunal carefully identified and reviewed the history and current situation of the domestic manufacturers of packaged dry pasta and analyzed the state of the Canadian market for that product. While it found that the Canadian manufacturers were suffering, it concluded that there was not a sufficient causal link between such injury and the dumping of Italian pasta. For the purposes of its analysis of the Canadian market, it examined in detail the two principal segments of such market, the 900-g and the 450- and 500-g package sizes; it described those segments as "the heart of the retail dry pasta market". It also looked separately at the market for retailers' private brands and at certain specific accounts alleged to have been lost by the domestic manufacturers. The Tribunal summarized its conclusions in these terms:

The Canadian pasta market grew over the period of inquiry. However, this growth occurred primarily not in sales of 900-g pasta which is dominated by domestic production but in sales of 450- and 500-g pasta and, in particular, of 450- and 500-g Italian pasta. Furthermore, this growth in the smaller package size was captured largely by well-recognized premium Italian brands which, over the period of inquiry, generally sold at retail and wholesale price points that are situated at the high end of the market. According to the evidence, there is essentially one major domestic brand competing at the high end in the 450- and 500-g package configurations. The data available to the Tribunal do not indicate that this brand is being sold at injurious price points.

According to the evidence, retail and wholesale prices for 900-g pasta, including private label, are suppressed particularly in Toronto and Montréal. However, the Tribunal finds that this is primarily the result of aggressive competition among retailers for consumers and among domestic producers for volume sales which are critical for efficient overall pasta plant operations.

There is a variety of non-premium Italian-sourced pasta selling on the Canadian market at low prices, including secondary manufacturers' brands, distributor brands and retailers' private labels. However, the Tribunal finds that these brands represent a small proportion of total Italian imports, and their share of the market showed little or no growth over the period of inquiry. While they may set a floor price and act as a drag on some prices at some locations, their small and sporadic market presence limits any injurious effect that they have had to date on the domestic industry, in the Tribunal's estimation.

While the domestic industry, as a whole, was unprofitable for most of the period of inquiry, there are a number of important factors unrelated to competition from Italian imports that appear to have contributed to this situation. These include the sharp rise in semolina flour costs, especially in 1993-94, and the inability of prices to keep pace with these increases, in part, because of common pricing practices which require, in this industry, substantial notice periods to be given to major customers before price increases can be implemented. They also include the effects of substantial industry restructuring, over the period of inquiry starting in 1992 and in the three or four years prior to 1992.

On the basis of the foregoing, the Tribunal concludes that Italian imports have not caused material injury to the domestic industry.

(Statement of Reasons, Applicant's application record, page 89)

     In their memorandum of points to be argued filed with their original application record, the applicants take issue with a very large number of alleged errors of law and fact committed by the Tribunal. However, in their reply memorandum and, at the oral hearing of the application, the great majority of these were explicitly or implicitly abandoned. Only four points remain and, as will shortly appear, in my opinion three of those are without any merit whatsoever.

     Before turning to the grounds of attack upon the decision, I think it is appropriate to say a word about the standard of review even though it was not a matter of debate or disagreement before us. The parties are in fact agreed that we are dealing with a specialized expert tribunal whose decisions are entitled to a high degree of deference and should only be overturned if they manifest that character of patent unreasonableness which is the modern standard for judicial review in such cases.

     That standard was specifically applied to the predecessor of the Canadian International Trade Tribunal in National Corn Growers v. Canadian Import Tribunal¹ where Gonthier J. said:

In this particular case, s. 76 of SIMA provides that the Tribunal's decision, with certain limited exceptions, is final and conclusive. Given this provision, this Court, therefore, will only interfere with the Tribunal's ruling if it acted outside the scope of its mandate by reason of its conclusions being patently unreasonable.

[at page 1370]

     It should be noted that Gonthier J.'s reasoning turned in part on the then current wording of section 76 of the Special Import Measures Act² (SIMA). That section was amended with effect January 1, 1994, and no longer contains a privative or finality clause. However, the other factors which point towards a need for judicial deference, most particularly the scheme of the statute, the subject matter of the inquiry and the specialized and expert nature of the Tribunal, are still in place. Furthermore, the new version of section 76 of SIMA makes specific reference to subsection 18.1(4) of the Federal Court Act³, a reference, which led us in Stelco Inc. v. Canadian International Trade Tribunal et al⁴ to say the following:

Whether or not the Tribunal's decisions are protected by a privative or finality clause, the standard of review in this Court for alleged errors of fact is that set out in paragraph 18.1(4)(d) of the Federal Court Act:

18.1 ... (4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal ... (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

18.1 ... (4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas: ... d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;

We cannot see any practical difference between that standard and the standard of patent unreasonableness.

[Emphasis added]

     I conclude, therefore, that the parties have correctly agreed that the standard of review in this case is patent unreasonableness.

     This brings me to the grounds of attack. As I have indicated earlier, three of them are entirely without merit.

     In two separate submissions, the applicants assert that the Tribunal committed errors of law when it failed to find that the loss of market share by the domestic manufacturers and the financial injury suffered by them were not causally connected to the dumping. As we have said on at least two previous occasions,⁵ the question of the causal relationship between dumping and injury is quintessentially one of fact. Indeed, if it were otherwise the Tribunal would have simply no role to play in cases such as this where both dumping and injury have been established; it would follow as a matter of law that the former caused the latter. Indeed, the applicants' position on these two points, which are really only one, amounts to no more than the classic fallacy of post hoc ergo propter hoc.

     The third point taken by the applicants asserts that the Tribunal erred in law by disregarding the SIMA regulations and failing to take account of the volume of dumped and subsidized imports. The criticism is manifestly unfounded. The Tribunal cited the applicable regulations and the heart of its decision turns on its analysis of the role played by the dumped imports in the Canadian market, both in terms of volume and of market share.

     This brings me to the fourth ground of attack asserted by the applicants which is considerably more serious and requires detailed study. It turns upon the finding of the Tribunal which is summarized in the underlined words of the following paragraph of the passage from its reasons which I have already quoted:

There is a variety of non-premium Italian-sourced pasta selling on the Canadian market at low prices, including secondary manufacturers' brands, distributor brands and retailers' private labels. However, the Tribunal finds that these brands represent a small proportion of total Italian imports, and their share of the market showed little or no growth over the period of inquiry. While they may set a floor price and act as a drag on some prices at some locations, their small and sporadic market presence limits any injurious effect that they have had to date on the domestic industry, in the Tribunal's estimation.

[Emphasis added]

     In order to understand the applicant's argument, it is necessary to go back to the more detailed analysis made by the Tribunal.

     In the first place, the Tribunal made a finding that the domestic industry had generally suffered injury during the period under review. Such injury took the form both of financial loss and of diminished market share. The Tribunal said:

In sum, over the period of inquiry, the domestic industry experienced a reduction in the share that it held of the retail dry pasta market and, in aggregate, the domestic industry lost substantial sums of money on the portion of its business represented by dry pasta in packages of 2.3 kg or less. In the Tribunal's opinion, the extent of the injury suffered, especially on the financial side, is material.

...

As indicated under "Analysis of Economic Indicators", over the period of this inquiry, the market for dry pasta in packages of 2.3 kg or less also grew at a relatively constant average rate of about 3 percentage points a year. However, unlike 1987, in the current inquiry, the statistical data indicate that the domestic industry did not participate in this growth. Rather, the increase in the market was captured almost entirely by imports from Italy, as well as by imports from the United States. As a result, though sales volumes by domestic producers remained relatively flat from 1992 to 1995, the domestic industry's market share fell by 9 percentage points, from 89 to 80 percent. These 9 percentage points were shared almost equally between Italian imports, which took about 5 percentage points of share to hold 13 percent of the market in 1995, and U.S. imports, which took about 4 percentage points of share to hold 7 percent of the market in 1995.

(Statement of Reasons, Applicant's application record, page 78)

     The Tribunal then properly turned to the question of causation in order to see whether such injury was a consequence of the presence of dumped and subsidized imports in Canada. The first segment of the market which it examined was the 450- and 500-g package sizes where the domestic producers had suffered a very substantial loss of market share. In dealing with this segment of the market, the Tribunal said:

In 1987, the CIT found that most of the Italian dry pasta sold in the Canadian market was packed in 500-g packages. The evidence in this inquiry indicates that the vast majority of Italian dry pasta continues to be sold in the small package, with the 500-g package now having been joined by the 450-g package. The Tribunal notes that the statistical data collected for this inquiry indicate that, from 1992 to 1995, all of the growth in the market, in the principal package sizes, was in 450- and 500-g packages, representing an increase of about 7.3 million kg. The 900-g package, which is overwhelmingly dominated by sales from domestic production, exhibited no sustained growth over the same four-year period.

The data also indicate that about 80 percent of the increase in the 450- and 500-g package configurations or about 6 million kg accrued to sales from Italian imports, with the balance going to U.S. imports. The information available from the importer's questionnaire further indicates that, of the many Italian brands sold in the Canadian market, the vast majority of the sales, and the increase in sales from 1993 to 1995, is accounted for by sales of a limited number of well-known Italian manufacturers' brands, including Barilla, De Cecco, Delverde, La Molisana and Buitoni.

Specifically, the analysis of retail sales by brand name, for the years from 1993 to 1995 (brand name sales for 1992 were not available), shows that these five Italian brands grew from about 53 percent of total Italian sales in 1993 to about 75 of total Italian sales in 1995. This growth in percentage share by the five brands resulted from the fact that they captured some 93 percent of the volume growth in sales of pasta from Italy in the 450- and 500-g package sizes over the three-year period. This amounted to an increase in sales volume by the five brands of about 3.8 million kg, out of a total increase of 4.0 million kg in sales of 450- and 500-g packages.

A further analysis of Italian dry pasta sales indicates that, in terms of price, there is a distinction between sales of premium Italian manufacturers' brands and other Italian production sold in the Canadian market, which includes lesser known manufacturers' brands, distributor private label brands and retailers' brands. More particularly, at the retail level, the various Nielsen reports indicate that, from 1993 to 1996, the five Italian brands, which accounted for almost all of the growth in Italian sales, consistently sold at 10 to 50 percent premiums over other Italian-sourced brands.

The retail price point occupied by the five brands, for regular cut common shapes, was consistently at or near $1.00 or more for 450- and 500-g packages. For example, according to the Nielsen survey of major national grocery supermarket banners, in the 52 weeks ending in each of February 1994, 1995 and 1996, Delverde and De Cecco spaghetti, in the 450-g cellophane pack, sold for between $1.00 and $1.20. Other brands, such as Bertolli and Fabianelli, retailed, for 500-g spaghetti packages, at around $0.65 to $0.80 over the period. At the low end of the market are brands such as San Marco, retailing 500-g spaghetti packages at about $0.50 throughout the period.

This distinction, at the retail price level, between the five Italian brands and the other Italian brands is confirmed by a comparison of the wholesale prices of these major brands against the other brands, as contained in the Tribunal's pricing report and the questionnaires. Since 1993, at the wholesale price level, the five major Italian brands of 450- and 500-g regular cuts have sold at a substantial premium compared to other Italian-sourced brands. For example, the wholesale prices of major brands ranged from 42 to over 100 percent above those of other Italian-sourced brands.

Several witnesses described the pasta market as consisting of high-, middle- and low-end dry pasta. Using this terminology, it is evident to the Tribunal from the foregoing analysis that, over the period of inquiry, Italian pasta imports generally targeted the high or premium end of the market. It is this end of the market where the vast majority of the growth occurred in Canada, and it is premium Italian pasta brands which captured nearly all of this growth.

[Emphasis added]

(Statement of Reasons, Applicant's application record, pages 79-80)

     It is evident from this passage that the Tribunal was of the view that "premium" pastas from Italy had been most successful in this growing segment of the market and it identified five name brands in particular as being the premium brands.

     The Tribunal then went on to find that the Canadian domestic manufacturers were to a large extent not present in the market for these smaller package sizes of premium pasta. Furthermore, to the extent that they were so present, the Tribunal found that they were profitable and were not adversely affected by dumped imports.

     Finally, in its analysis of this segment of the market, the Tribunal looked very briefly at the effect of the dumping of the non-premium or lower priced pastas from Italy. This is what it said:

It is clear from the evidence that there is a variety of low-priced, non-premium 450- and 500-g Italian pasta in the market. However, these secondary brands appear to come and go, from time to time, and they do not comprise, and have not comprised, over the past 10 to 15 years, more than a small percentage of total imports from Italy. Nevertheless, in the Tribunal's opinion, their presence could well have a certain price-suppressive effect in the non-premium end of the market, where price is a more important consideration. However, given that the vast majority of domestic and Italian sales are of premium 450- and 500-g pasta, any injury that may have been caused by these non-premium Italian imports has not, to date, been significant, in the Tribunal's estimation.

[Emphasis added]

(Statement of Reasons, Applicant's application record, page 81)

     In the following part of its analysis, where it dealt with the 900-g package segment, as well as in its consideration of retailers' private brands and individual accounts, the Tribunal returned on a number of occasions to the effect of non-premium Italian brands on the domestic industry.

     Thus, in dealing with the 900-g package size, it said:

After reviewing the evidence in this inquiry, the Tribunal is of the view that the situation which prevailed in this market segment [the 900-g package size] over the current period of inquiry is substantially similar to the situation which prevailed over the period of inquiry some 10 years ago. Specifically, the domestic industry still overwhelmingly dominates this market segment. Imports from Italy comprised from 2 to 5 percent of this market from 1992 to 1994 and virtually disappeared in 1995. Most of these Italian imports were brought in by one company, Unico, which effectively was the only source of Italian competition to domestic production in the 900-g package configuration over the period of inquiry.

(Statement of Reasons, Applicant's application record, page 82)

     And again in the final paragraph of this part of its analysis:

As noted in the previous section, in the non-premium end of the retail dry pasta market, there is a certain amount of low-priced Italian pasta. This Italian dry pasta may, in certain competitive locations, be setting a floor price which could well be dragging down the price of some domestic 900-g pasta. However, as noted above, these secondary Italian brands have a relatively small presence in the Canadian market, and they are narrowly and sporadically distributed, primarily in Toronto and Montréal. Hence, their ability to cause injury to Canadian production is rather limited, in the Tribunal's estimation.

[Emphasis added]

(Statement of Reasons, Applicant's application record, page 85)

     Equally, on the question of retailers' private brands, the Tribunal had this to say about low-priced Italian imports:

Nevertheless, the Tribunal accepts that the presence and availability of low-priced Italian sources of supply has had some price-suppressive effect on the prices that domestic suppliers can achieve on their private label business with retailers. These Italian sources of supply include Italian manufacturers that produce low-priced pasta directly for retailers under controlled label brands, those that produce such pasta for importers and distributors that market it under their own proprietary name, and those that target the lower end of the market with their own manufacturers' brands.

However, the Tribunal considers that the principal factor which is weighing down prices in the private label category is the low pricing in the market for brand name 900-g pasta. Private label pasta, which is largely a 900-g market, is generally positioned at price points that are at a discount to brand name pasta. If brand name pasta pricing is suppressed, it invariably follows that private label pasta pricing will also be suppressed. As discussed above, the Tribunal finds that the main problem in the 900-g category is competition among retailers and intra-industry competition. In the Tribunal's opinion, the private label situation is simply an extension of that problem.

[Emphasis added]

(Statement of Reasons, Applicant's application record,, page 87)

     And on specific account losses it said:

In any event, the Tribunal has examined each of the specific examples submitted by the domestic industry and accepts that this evidence shows that, in some cases, Italian imports have had an injurious effect. However, in other cases, the effect is less clear. For example, the Tribunal finds that, in the case of one of the domestic producers, a disproportionate number of the examples involve lost shelf space that occurred at primarily ethnic-oriented independent stores in Toronto and the neighbouring area. Many of these stores tend to serve a multicultural clientele. They also tend to over-represent pasta from Italy on their shelves compared to the chain stores because they have a higher concentration of customers who demand exclusively Italian-made pasta to meet their pasta requirements.

Furthermore, in some examples provided by the domestic industry, the injury allegations describe lost sales to Italian imports generally, but they do not provide details on the brand, the package size involved or the name of the importer. This makes it difficult for the Tribunal to evaluate the various competitive factors discussed in the preceding sections that might have a bearing on why particular sales may have been lost. In certain other examples where details are provided, the information indicates that the competing Italian brand is a secondary brand. The Tribunal has previously concluded that, although these non-premium brands have had some injurious effect, they occupy a limited place in the market, and they showed little or no growth over the period of inquiry.

The Tribunal has also examined other documents on the record in conjunction with its evaluation of the examples of injury at specific accounts. It is clear from this evidence that, in some cases, sales were lost because of brand pricing and positioning strategies that were less than successful for a variety of reasons that are not linked to dumped or subsidized Italian imports. It is also clear from these and other data available to the Tribunal that, in aggregate terms, a substantial proportion of the sales lost by certain producers were captured not by Italian imports but by other domestic producers.

[Emphasis added]

(Statement of Reasons, Applicant's application record, page 88)

     The applicants say, and with respect I must say that I find it impossible to disagree with them, that these passages demonstrate clearly that the Tribunal has made contradictory and irreconcilable findings. In the Tribunal's summary of its reasons the non-premium Italian pastas are described as representing "a small proportion of total Italian imports". In the more detailed analysis which precedes the summary they are described as being only "a small percentage of total imports from Italy".

     These statements are manifestly erroneous when they are compared with the Tribunal's own previous finding that the five identified premium Italian brands "grew from about 53% of total Italian sales in 1993 to about 75% of total Italian sales in 1995". Other figures, developed by both the parties at the hearing before us and based on the confidential material before the Tribunal, confirm that these percentages are substantially accurate. Thus, the applicants suggest that the Italian premium brands represented 47% by volume of Italian imports in 1994 and went to 65% in 1995. The figures produced by the respondents show corresponding percentages of 47% and 70%.

     The discrenpacies between the various figures given by the Tribunal and each of the parties do not appear to be significant and can probably be accounted for not only by the difficulties of extrapolitation from incomplete material but also by such factors as the absence of complete concordance between sales and imports over any given period and the differences between figures based on price and those based on volume.

     What is important and significant is that if the premium Italian brands represented something in the range of 50% of Italian sales or imports in 1993 and 1994 and about 70% of those same sales or imports in 1995, it must necessarily follow that the non-premium brands would have ranged from a high of about 50% to a low of about 30%.

     In my view, it is simply not reasonably possible to describe a share which varies between 30% and 50% as being a "small proportion" or "small percentage". Respondents' counsel conceded as much at the hearing.

     Clearly the Tribunal has erred and manifestly that error is unreasonable. Furthernore, since the reference to the low-priced non-premium brands recurs, as is shown by the passages quoted above, in each section of the Tribunal's analysis of the Canadian market, the entire decision is infected with the error and cannot stand.

     The applicants urge, as might be expected, that since the Tribunal made findings of injury the consequence of the error must be not only the setting aside of the decision but also a direction that the Tribunal find a causal relationship between the dumping and the injury. I do not agree.

     It does not follow, in my view, that simply because the error which I have identified invalidates every section of the analysis the Tribunal would necessarily have reached a different conclusion if it had not committed the error. On the contrary, the erroneous finding is only one of several possible reasons invoked by the Tribunal in support of its conclusion that dumping was not the cause of the injury suffered by the domestic manufacturers in any of the relevant market segments. In other words, the error is not the only factor considered by the Tribunal in support of its conclusion that the non-premium Italian pastas did not play a significant role in such injury.

     It is hard to know what weight, if any, the Tribunal thought should be attached to such other factors. The fact that the non-premium brands enjoyed "little or no growth" in market share is not determinative; just as loss of market share by domestic producers does not have a necessary causal relation to dumping, neither does absence of growth by imports necessarily show that they caused no injury. In some of the other quoted passages the Tribunal seems to suggest a different denominator and, in place of Italian sales or imports, talks of the non-premium brands having "a small presence in the Canadian market"; it is not clear whether the Tribunal thought this was a different finding from the one I have already identified as erroneous, and if so what weight should be given to it. Likewise, it is difficult to know what importance if any was given to the view that these brands "appear to come and go"; the relevance of that finding to the question of causation is not self evident.

     In the circumstances, the only proper course, in my view, is to set aside the Tribunal's finding and to remit the matter to it for a new hearing at which the parties will have an opportunity to be heard. Such hearing should be on the basis of the existing record although I would not exclude the possibility of the Tribunal, in the exercise of its discretion, calling or allowing new evidence.

     For these reasons, I would allow the application, set aside the finding of the Tribunal and return the matter to the Tribunal for a new hearing on a basis not inconsistent with the present reasons.

     "James K. Hugessen"

     J.A.

"I agree,

     F.J. McDonald, J.A."

"I agree,

     François Chevalier, D.J."

     FEDERAL COURT OF APPEAL

     A-473-96

B E T W E E N :

IN THE MATTER of an application for judicial review pursuant to subsection 28(1)(e) of the Federal Court Act

AND IN THE MATTER of an Inquiry by the Canadian International Trade Tribunal under section 42 of the Special Imports Measures Act respecting the dumping and subsidization of dry pasta, not stuffed or otherwise prepared, and not containing eggs, in packages up to and including 2.3 kg in weight, originating in or exported from Italy.

     THE CANADIAN PASTA MANUFACTURERS' ASSOCIATION

     Applicant

     - and -

AURORA IMPORTING & DISTRIBUTING LTD., BELLA INTERNATIONAL FOOD BROKERS INC., BERTOLLI CANADA INC., CANADIAN GLOBAL FOODS CORPORATION, FALESCA IMPORTING LTD., ITALFINA INC., MOLISANA IMPORTS, NUMAGE TRADING INC., SA-GER FOOD PRODUCTS INC., SANTA MARIA FOODS LIMITED, SIENE FOODS LTD., WESTON PRODUCE, DIVISION OF F & F SUPERMARKETS INC., UNIONE INDUSTRIALI PASTAI ITALIANI, BARILLA ALIMENTARE S.p.A., COLAVITA IND. AL. CO. SPA, LLI DE CECCO DI FILIPPO S.p.A., DELVERDE, S.R.K., F. DIVERLLA S.P.A., PASTIFICIO FABIANELLI S.p.A., LA MOLISANA INDUSTRIE ALIMENTARI S.p.A., NESTLÉ ITALIANA S.p.A., MARCUS RÖSSL, RUD-AL CO. LTD.

     Respondents

     - and -

     THE CANADIAN WHEAT BOARD

     Interested Party

     REASONS FOR JUDGMENT

__________________

¹      [1990] 2 S.C.R. 1324

²      1985 R.S.C., c. S-15

³      R.S.C. 1985, c. F-7

⁴      (May 23, 1995), A-360-93, (F.C.A.)[unreported]

⁵      See Sacilor Aciéries v. Anti-dumping Tribunal (1985), 9 C.E.R. 210; Stelco Inc., supra