Inquiries (Section 42)
CERTAIN FLAT HOT-ROLLED CARBON AND ALLOY STEEL SHEET
PRODUCTS ORIGINATING IN OR EXPORTED FROM FRANCE, ROMANIA, THE
RUSSIAN FEDERATION AND THE SLOVAK REPUBLIC
Inquiry No.: NQ-98-004
TABLE OF CONTENTS
May 4, 1999
To: Counsel of Record
Subject: Certain Flat Hot-Rolled Carbon and Alloy Steel
Sheet Products (Inquiry No.: NQ-98-004)
In a letter dated April 13, 1999, Mr. Denis Gascon counsel for
Sollac, Aciers D’Usinor and Aciers Francosteel Canada Inc. raised
concerns regarding the participation of Mr. Joël Robichaud as
counsel for IPSCO Inc. in the above-noted inquiry on the grounds of
conflict of interest and a reasonable apprehension of bias.
I have been directed by the Tribunal to inform you that the
request that Mr. Robichaud be disqualified from participating in
the above-noted inquiry has been accepted. The Tribunal will issue
the statement of reasons in support of its decision shortly.
Michel P. Granger
Ottawa, Friday, May 7, 1999
Inquiry No.: NQ-98-004
IN THE MATTER OF a notice of motion for an order disqualifying
Mr. Joël Robichaud from acting as counsel of record for IPSCO Inc.
in this inquiry;
AND IN THE MATTER OF an inquiry under section 42 of the
Special Import Measures Act in respect of certain flat
hot-rolled carbon and alloy steel sheet products originating in or
exported from France, Romania, the Russian Federation and the
On March 25, 1999, Mr. Joël Robichaud filed a notice of
appearance (counsel) with the Canadian International Trade Tribunal
(the Tribunal) representing IPSCO Inc. (IPSCO) in the above-noted
inquiry. On April 13, 1999, Mr. Denis Gascon, counsel for Sollac,
Aciers d’Usinor (Sollac) and Aciers Francosteel Canada Inc.
(Francosteel), filed a letter with the Tribunal requesting that Mr.
Robichaud, counsel for IPSCO, be disqualified from participating in
the above-noted inquiry on the grounds that his appearance raises a
conflict of interest and a reasonable apprehension of bias. On
April 14, 1999, Mr. Dalton Albrecht, counsel for IPSCO, opposed the
request for disqualification.
The Tribunal directed, on April 21, 1999, that submissions in
support of the views expressed by Mr. Gascon be filed by April 23,
1999, and that submissions in support of the views expressed by Mr.
Albrecht be filed by April 28, 1999. No submissions were made in
support of the views expressed by Mr. Gascon, and one submission
was made in support of the views expressed by Mr. Albrecht. On May
4, 1999, the Tribunal informed counsel that Mr. Robichaud was
disqualified from participating in the above-noted inquiry and that
it would issue its statement of reasons in support of its decision
The issue is whether the participation of Mr. Robichaud, as
counsel of record for IPSCO, before the Tribunal in the above-noted
inquiry raises a conflict of interest or a reasonable apprehension
Counsel for Sollac and Francosteel bases his concerns on the
fact that, until recently, Mr. Robichaud had been in-house counsel
for the Tribunal and that he was still in the employ of the
Tribunal when the investigation by the Deputy Minister of National
Revenue (the Deputy Minister) leading to the preliminary
determination of dumping in this matter was initiated and when the
Tribunal would have begun preliminary work on the above-noted
matter. Furthermore, as counsel for the Tribunal, Mr. Robichaud had
been directly involved in steel cases which are closely related to
the matter under inquiry and in which many of the current parties
Given the foregoing reasons, counsel submits that a reasonable
person, adequately informed of the facts, would consider that these
circumstances give rise to a reasonable apprehension of bias.
Counsel also argues that the Conflict of Interest and
Post-Employment Code for the Public Service  (the Guidelines) apply to Mr.
Robichaud. He points to section 42 of Part III of the Guidelines
which provides for a limitation period of one year after former
employees at or above the Senior Management level leave office
before they can make representations for or on behalf of a person
or entity to any department with which they had significant
official dealings or give counsel concerning the programs or
policies of the department with which they were employed or with
which they had a direct and substantial relationship.
Finally, counsel submits that section 17 of the Canadian
International Trade Tribunal Act  (the CITT Act), which confers on the Tribunal
all the powers, rights and privileges for the due exercise of its
jurisdiction, gives the Tribunal authority to disqualify counsel
if, in permitting counsel to participate in the process, counsel’s
participation may create an apprehension of bias.
Counsel for IPSCO submits that Mr. Robichaud left the employ of
the Tribunal on January 8, 1999, and began his employment with the
law firm of McMillan Binch on February 1, 1999. He submits that the
Tribunal was seized with jurisdiction in this inquiry on March 4,
1999, the day after the Deputy Minister issued a preliminary
determination of dumping on March 3, 1999. By then, Mr. Robichaud
had left the employ of the Tribunal and, therefore, could not have
had prior involvement in the matter before joining the law firm.
Mr. Robichaud has not previously been involved in hot-rolled steel
cases, and the fact that he would have been involved in any steel
case is not relevant to the present inquiry, as those were separate
cases and are closed matters.
Counsel for IPSCO argues that section 42 of Part III of the
Guidelines does not apply to Mr. Robichaud, as he did not hold a
position at or above the Senior Management level. Further, counsel
submits that Mr. Robichaud’s appearance does not raise a conflict
of interest, in that he does not have a previous relationship with
Sollac and Francosteel or any other party to this inquiry.
Moreover, Mr. Robichaud would not have been privy to confidential
or other information relevant to the inquiry while employed with
the Tribunal. Therefore, there is clearly no risk of prejudice to
Sollac and Francosteel or to other parties to the inquiry. Mr.
Robichaud is in compliance with Rule 29 of the Rules of
Professional Conduct  of the Law Society of Upper Canada which deals
with issues of conflict arising as a result of transfer between law
Further, counsel argues that, while the Tribunal does not have
the inherent jurisdiction of a superior court of record, he cites
Inquiry No. NQ-93-007,  where the Tribunal stated that it had the
jurisdiction to rule on the question of conflict of interest.
With respect to the issue of bias, counsel for IPSCO notes that,
where there would be bias or an apprehension of bias on the part of
the Tribunal or one of its members, the result is that the Tribunal
or member cannot act. There is no basis in law for asking that
counsel be removed from a file because an administrative tribunal
or one of its members is biased. Counsel can only be disqualified
by a court from acting as counsel if there is a conflict of
interest. Counsel further argues that it would be “preposterous” to
say that the Tribunal would be biased simply because a former
employee appeared before it. He notes that there has been one
instance where a former member of the Tribunal appeared before it
and where the Tribunal dismissed a motion for an order to
disqualify that member from acting as counsel of record.  In that case, the Tribunal
was not satisfied that counsel’s participation in the inquiry
raised a reasonable apprehension of bias. Counsel concludes that
there is no basis to deny Mr. Robichaud the right to act as counsel
for IPSCO in the present inquiry.
The Tribunal will deal with the issue of jurisdiction first.
Subsection 17(2) of the CITT Act provides that the Tribunal has all
the powers, rights and privileges as are vested in a superior court
of record regarding matters necessary or proper for the due
exercise of its jurisdiction. In the Binational Panel’s decision in
Certain Flat Hot-Rolled Carbon Steel Sheet Products Originating
in or Exported From the United States (Injury),  the Panel considered whether the
words “other matters necessary or proper for the due exercise of
its jurisdiction” in subsection 17(2) of the CITT Act gave the
Tribunal the jurisdiction to disqualify counsel for a reasonable
apprehension of bias. The Panel stated the following :
To the extent that a statutory tribunal is not otherwise limited
by its enabling statute, it has the jurisdiction to control the
natural justice content of its own proceedings. This jurisdiction
includes the ability to refuse to hear counsel if in hearing them a
reasonable apprehension of bias would arise. In the Panel’s view,
the Tribunal did have jurisdiction to deal with this issue and so
does this Panel. 
The Tribunal is of the view that it has jurisdiction to rule on
the questions of conflict of interest and reasonable apprehension
of bias. Moreover, having been seized of the issue, the Tribunal
has a duty to dispose of the matter.
The Tribunal has given careful consideration to the submissions
of the parties.
The Tribunal is of the view that, with respect to the conflict
of interest issue, section 42 of Part III of the Guidelines does
not apply to this particular case. The leading authority relating
to the disqualification of counsel on the basis of a conflict of
interest is MacDonald Estate v. Martin.  That case dealt with a
circumstance where counsel had obtained confidential information in
a former position that could be used against his former client in
adversarial proceedings. The question for the Tribunal is whether
the participation of Mr. Robichaud in this proceeding before the
Tribunal would be adverse to the interests of the Tribunal. There
is no suggestion in any submission that Mr. Robichaud possesses
confidential information belonging to the Tribunal which could be
used to the Tribunal’s detriment in this case. Moreover, unlike the
situation in Martin, Mr. Robichaud has not gone from acting
for one party to acting for another party. The Tribunal is
satisfied that, in this case, there is no adverse interest and,
therefore, no basis to disqualify Mr. Robichaud on the grounds of
conflict of interest.
This leaves the issue of a reasonable apprehension of bias. It
is a matter of public record that, on December 3, 1998, the Deputy
Minister initiated an investigation into the alleged injurious
dumping in Canada of certain flat hot-rolled carbon and alloy steel
sheet products originating in or exported from France, Romania, the
Russian Federation and the Slovak Republic. It is that
investigation which led the Deputy Minister to make a preliminary
determination of dumping on March 3, 1999. It is also a matter of
public record that, on December 18, 1998, pursuant to paragraph
34(1)(b) of the Special Import Measures Act  (SIMA), counsel for a
Canadian importer, Francosteel, and an exporter from France,
Sollac, referred to the Tribunal the question of whether the
evidence before the Deputy Minister disclosed a reasonable
indication that the dumping of the subject goods originating in or
exported from France had caused material injury or retardation or
was threatening to cause material injury to the domestic industry.
After considering the information provided by Revenue Canada, the
Tribunal rendered its advice to the Deputy Minister on January 18,
1999.  In its
advice, the Tribunal concluded that it was satisfied that, for the
purposes of sections 34 and 37 of SIMA, the evidence disclosed a
reasonable indication that the dumping of certain flat hot-rolled
carbon and alloy steel sheet products originating in or exported
from France, Romania, the Russian Federation and the Slovak
Republic had caused or was threatening to cause injury. In this
inquiry, the Tribunal will consider, inter alia, whether the
goods found to have been dumped have caused injury or retardation
or are threatening to cause injury. In other words, in rendering
its advice and in this inquiry, the Tribunal will have considered
questions of injury relating to the subject goods.
In reviewing the information before it, the Tribunal notes that
Mr. Robichaud was still employed by the Tribunal when the
investigation by the Deputy Minister was initiated on December 3,
1998. Mr. Robichaud was employed by the Tribunal at the time that
it received the reference on December 18, 1998. Mr. Robichaud did
not leave the employ of the Tribunal until January 8, 1999.
Therefore, Mr. Robichaud was present at, and employed by, the
Tribunal during the time that it would have been reviewing the
information provided by the Deputy Minister in the reference and
while the Tribunal was in the midst of its deliberations before
rendering its advice to the Deputy Minister on January 18,
The Tribunal is also mindful that Mr. Robichaud was legal
counsel for the Tribunal for six years. Tribunal counsel work
closely with Tribunal members and staff, as did Mr. Robichaud.
Further, in the course of their duties, Tribunal counsel
participate in seminars and training sessions for members, provide
legal opinions to members and assist members in substantive legal
and procedural matters before, during and after oral hearings.
Counsel also represent the Tribunal in matters before the Federal
Court of Appeal and Binational Panels. Mr. Robichaud worked closely
on files with every current member at the Tribunal, including those
members who will hear this case.
The test applied by the courts is that “the apprehension of bias
must be a reasonable one, held by reasonable and right minded
persons, applying themselves to the question and obtaining thereon
the required information.  ” The Tribunal is of the view that a reasonable
person, informed with the above-noted facts, would consider that,
if Mr. Robichaud were allowed to participate in this inquiry, these
circumstances would raise a reasonable apprehension of bias.
In the Tribunal’s view, the close working relationship which Mr.
Robichaud had with Tribunal members, the fact that he was employed
by the Tribunal when it received a reference relating to this
matter and was reviewing the information provided by the Deputy
Minister and his recent departure from the Tribunal are such as to
raise a reasonable apprehension of bias.
The Tribunal is well aware that a reasonable apprehension of
bias normally gives rise to a member of the panel having to recuse
himself from the proceeding. However, the Tribunal is of the view
that, in certain circumstances, it is appropriate for counsel to be
disqualified from a proceeding. 
For all of the above reasons, the Tribunal disqualifies Mr.
Robichaud from participating as counsel in the above-noted
Peter F. Thalheimer
Peter F. Thalheimer
1. Canadian Government
Publishing - PWGSC, ISBN 0-660-531119, Revised 1987, Reprinted
2. R.S.C. 1985, c. 47
Conduct Handbook, Law Society of Upper Canada, as amended to June
4. IN THE MATTER OF a
notice of motion for an order disqualifying Mr. Daniel W. Romanko
from acting as counsel of record, Canadian International Trade
Tribunal, Inquiry No. NQ-93-007, Decision of the Tribunal and
Statement of Reasons, June 21, 1994.
5. The Dumping in
Canada of Refined Sugar Originating in or Exported from the United
States of America, Denmark, the Federal Republic of Germany, the
Netherlands, the United Kingdom and the Republic of Korea, and the
Subsidizing of Refined Sugar Originating in or Exported from the
European Union, Inquiry No. NQ-95-002, Findings, November 6, 1995,
Statement of Reasons, November 21, 1995.
6. Secretariat File
No. CDA-93-1904-07, Decision and Reasons of the Panel, May 18,
7. Ibid. at 19.
8.  3 S.C.R.
9. R.S.C. 1985, c.
S-15, as amended by S.C. 1994, c. 47, s. 164.
10. Certain Flat
Hot-rolled Carbon and Alloy Steel Sheet Products Originating in or
Exported from France, Romania, the Russian Federation and the
Slovak Republic, Reference No. RE-98-002.
11. The Committee
for Justice and Liberty v. The National Energy Board,  1
S.C.R. 369 at 394.
12. Bailey v.
Saskatchewan Registered Nurses' Assn., Saskatchewan Court of
Queen's Bench,  S.J. No. 332, April 20, 1998.
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Initial publication: May 18, 1999