Reviews (Section 76)
BLACK GRANITE MEMORIALS AND BLACK GRANITE SLABS
Review No.: RR-98-006
TABLE OF CONTENTS
Mr. James P. McIlroy
McIlroy & McIlroy
Commerce Court North
25 King Street West
Dear Mr. McIlroy:
Subject: Black Granite Memorials
Review Number RR-98-006
In letters dated April 21 and 23, 1999, addressed to the
Tribunal, you raise concerns regarding the participation of Mr.
David Attwater as counsel for the Government of India in the
above-referenced review. In your letter of April 23, 1999, you
state that it would not be proper for Mr. Attwater to participate
in this review.
I have been instructed by the Tribunal to inform you that your
submission to deny the paticipation of Mr. Attwater in the
above-referenced review has been rejected. The statement of reasons
in support of the Tribunal decision will be issued shortly.
Please note that the Tribunal has extended to close of business
on May 5, 1999, the deadline for the submission of the case of the
Government of India. The deadline for the submission of the
manufacturer’s/producer’s reply submission has also been extended
to May 11, 1999.
Michel P. Granger
cc: Parties of Record
Ottawa, Tuesday, May 18, 1999
Review No.: RR-98-006
IN THE MATTER OF a notice of appearance (counsel) and a
declaration and undertaking filed by Mr. David Attwater on April
19, 1999, as counsel for the High Commission of India, on behalf of
the Ministry of Commerce, Government of India;
AND IN THE MATTER OF a review, under subsection 76(2) of the
Special Import Measures Act, with respect to black granite
memorials and black granite slabs originating in or exported from
On April 19, 1999, Mr. David Attwater filed with the Canadian
International Trade Tribunal (the Tribunal) a notice of appearance
(counsel) and a declaration and undertaking as counsel for the High
Commission of India, on behalf of the Ministry of Commerce,
Government of India, a party before the Tribunal in this
On April 20, 1999, the Secretary of the Tribunal sent a letter
informing participants in the review of the fact that Mr. Attwater
had been in-house counsel for the Tribunal in Inquiry No.
NQ-93-006,  the
finding of which is under review. The Secretary asked that views on
Mr. Attwater’s participation in the review be filed with the
Tribunal no later than 5:00 p.m. on April 20, 1999. On the same
day, Mr. James P. McIlroy, counsel for the Canadian Granite
Association (CGA), left a voice message with the Tribunal’s
Assistant Secretary and Registrar expressing his concerns about the
prospect of Mr. Attwater acting for the Government of India and
requesting additional time to consult with his client in order to
provide the Tribunal with more comments.
On April 21, 1999, Mr. Attwater commented on the Tribunal’s
letter of April 20, 1999, by expressing, among other things, his
dismay that the Tribunal would raise, on its own, “the legitimacy
of [his] role as counsel for the Government of India” and
requesting the right to respond to adverse views, if any.
On April 21, 1999, the Tribunal received a letter from Mr.
McIlroy, in which he stressed that he and his client wished to
ensure that participation in the review by the Tribunal’s former
in-house counsel would not result in Mr. Attwater having any real
or perceived advantage over other counsel, hence depriving his
client of the right to a fair hearing. In addition, Mr. McIlroy
asked two specific questions regarding Mr. Attwater’s participation
as counsel in the inquiry:
1. did [Mr. Attwater] have access to any internal Tribunal
memoranda, documents, discussions, or any other information that
was not available to other Counsel in this case?
2. did [Mr. Attwater] participate in the Tribunal’s internal
decision-making process or in any other discussions that could
provide him with any information or insight not available to other
Counsel in this case?
The Tribunal forwarded a copy of Mr. McIlroy’s letter to Mr.
On April 22, 1999, the Tribunal responded, by letter, in the
affirmative to Mr. McIlroy’s two questions.
On April 23, 1999, the Tribunal informed the participants in
this review that the submission made by counsel for the CGA to deny
the participation of Mr. Attwater had been rejected and that a
statement of reasons would be issued shortly by the Tribunal.
The issue is whether the participation of Mr. Attwater as
counsel of record for the Government of India in this review is
appropriate, given the fact that he was in-house counsel for the
Tribunal during the original inquiry in 1994. Among other things,
this requires that the Tribunal consider whether this situation
could raise a reasonable apprehension of bias.
On April 23, 1999, Mr. McIlroy responded to the Tribunal’s
letters of April 20 and 22, 1999, by submitting that, as a result
of Mr. Attwater’s access to internal Tribunal information not
available to other counsel, Mr. Attwater would have, or would be
perceived to have, an advantage over other counsel and that an
uneven playing field would deprive his client of its right to a
fair hearing. Mr. McIlroy, therefore, submitted that it would not
be proper for Mr. Attwater to participate in the review as counsel
for the Government of India.
Mr. Attwater did not respond to the submissions made by counsel
for the CGA.
The Tribunal will deal, first, with its jurisdiction to
disqualify counsel of record, then with Mr. Attwater’s concerns as
to the Tribunal informing the participants in this review that he
was formerly in-house counsel for the Tribunal in the original
inquiry, the finding of which is under review, and, finally, with
the submissions made by counsel for the CGA in support of the
disqualification of Mr. Attwater as counsel for the Government of
With respect to its jurisdiction in this matter, the Tribunal
considered, in a recent decision, whether a person who was formerly
in-house counsel for the Tribunal should be disqualified from
appearing as counsel of record in a Tribunal inquiry.  In addressing this issue,
the Tribunal relied on subsection 17(2) of the Canadian
International Trade Tribunal Act  (the CITT Act) which provides the Tribunal with
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. The Tribunal referred, in this
regard, to the Binational Panel’s decision in Certain Flat
Hot-Rolled Carbon Steel Sheet Products Originating in or Exported
From the United States (Injury),  in which the Binational 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
conferred the power to disqualify counsel of record for a
reasonable apprehension of bias. In that case, the Binational Panel
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, in dealing with this recent matter, adopted the
Binational Panel’s comments and carried on by noting that, while a
reasonable apprehension of bias would normally give rise to a
member of the panel having to disqualify himself from the
proceeding, it is appropriate for counsel of record, in certain
circumstances, to be disqualified from a proceeding. 
It is a well-established principle of law that administrative
boards and tribunals, such as the Tribunal, are masters of their
own procedure. The only limitations to this principle are those
contained in the enabling statutes of such boards and tribunals and
the requirements of procedural fairness and natural justice.
Being the master of its own procedure and having the
jurisdiction to rule on the question of reasonable apprehension of
bias resulting from the participation of counsel of record in a
proceeding demand that issues, which indicate that there may be a
problem, be raised, if not by the parties, then by the Tribunal. In
this case, the Tribunal decided that it was appropriate to note Mr.
Attwater’s participation as in-house counsel for the Tribunal in
the original inquiry. In the Tribunal’s view, Mr. Attwater is
incorrect in suggesting that the Tribunal should not have done
Having said that, the Tribunal now turns to the issue of
reasonable apprehension of bias. The rule against bias was well
expressed in Old St. Boniface Residents Assn. Inc. v.
Winnipeg (City),  where Sopinka J. wrote that “[t]he party alleging
disqualifying prejudgment must establish that any representations
at variance with the adopted view would be futile.  ” Again, the test to be applied
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.  ” In other words, the
“question is whether a reasonable person, adequately informed of
the facts, would consider that the circumstances raised an
apprehension of bias.  ” This clearly requires a case-by-case analysis
of all the circumstances surrounding the matter. It also means that
similar circumstances could lead to different conclusions,
depending on the context.
In this matter, the general circumstances regarding Mr. Attwater
are as follows. Mr. Attwater was in-house counsel for the Tribunal
during the period from February 1, 1991, to August 2, 1997. As
described in a recent decision, counsel for the Tribunal work
closely with Tribunal members and staff.  They participate in seminars and
training sessions for members, provide legal advice to members and
assist them in substantive, as well as 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. Attwater has, thus, worked on a certain number of files
with members of the Tribunal who are hearing this review. More
significantly, Mr. Attwater was in-house counsel for the Tribunal
in the inquiry, the finding of which is under review.
Those are the general circumstances which, at first sight, could
well support allegations of a reasonable apprehension of bias.
However, this does not represent the full picture.
In fact, Mr. Attwater left the Tribunal for private practice
some 20 months ago. He did not appear as counsel of record before
the Tribunal on any matter for some 10 months following his
departure. The members assigned to this review are not those to
whom Mr. Attwater provided legal advice as part of the legal team
in the original inquiry. In fact, two of the members assigned to
this review were appointed to the Tribunal in 1997, only a few
months before Mr. Attwater’s departure from the Tribunal, and one
was appointed in 1995. In any case, none of these members were with
the Tribunal at the time of the original inquiry in 1994.
Furthermore, the issues in a review under subsections 76(2) and (5)
of the Special Import Measures Act  (SIMA) are, generally,
substantially different from those in an inquiry under section 42
of SIMA. Also, the record in the review is not the same as the
record in the inquiry. More importantly, the facts at play in this
review are not the same as those in the inquiry.
As to the specific grounds on which counsel for the CGA relied,
i.e. Mr. Attwater’s access to internal memoranda, documents,
discussions or any other information with respect to the inquiry
and his participation in the internal decision-making process for
that inquiry, the Tribunal again notes that the record in this
review is different from the one in the inquiry, that the facts
(and significant portions of SIMA  ) have changed since the issuance of the
Tribunal’s finding and that the members in this review are not the
same as those in the original inquiry.
In light of all these facts and circumstances, the Tribunal is
of the view that a reasonably informed person, adequately informed
of all these facts, would not consider that the circumstances in
this matter raise an apprehension of bias. Moreover, in the
Tribunal’s view, there are no grounds on which to sustain that
there could be a “prejudgment” of the matter or that any
representations made to oppose Mr. Attwater’s arguments in the
review “would be futile,” to use the words of Sopinka J. in Old
St. Boniface. 
On a more general basis, the Tribunal finally notes that, as
in-house counsel for the Tribunal for more than six years, Mr.
Attwater, when he left the Tribunal, took with him his know-how,
experience and expertise of the Tribunal’s practice and trade law.
While this, per se, does not prevent Mr. Attwater in any way
from appearing before the Tribunal,  the Tribunal notes that former counsel are
under a professional responsibility, pursuant to the Rules of
Professional Conduct of the Law Society of Upper Canada, not to
divulge information to which they were privy while acting as
counsel for the Tribunal. Moreover, former public servants, as in
the case of Mr. Attwater, generally are prohibited, both during and
after service to the Government of Canada, from revealing
information, which they obtained while engaged as public servants,
under such acts as the Official Secrets Act,  the Access to Information
Act,  the
Privacy Act  or other acts of Parliament. These are, in the
Tribunal’s view, adequate safeguards to ensure that former
counsel/public servants do not, without proper authorization, use
information obtained either in a solicitor/client relationship or
in carrying out their responsibilities as public servants.
Patricia M. Close
Patricia M. Close
Peter F. Thalheimer
Peter F. Thalheimer
1. Black Granite
Memorials of All Sizes and Shapes and Black Granite Slabs in
Thicknesses Equal to or Greater Than Three Inches, Originating in
or Exported from India, Canadian International Trade Tribunal,
Finding, July 20, 1994, Statement of Reasons, August 4, 1994.
2. Notice of motion
for an order disqualifying Mr. Joël Robichaud from acting as
counsel of record for IPSCO Inc., Inquiry No. NQ-98-004, Statement
of Reasons, May 7, 1999.
3. R.S.C. 1985, c. 47
4. Secretariat File
No. CDA-93-1904-07, Decision and Reasons of the Panel, May 18,
5. Ibid. at 19.
6. Supra note 2 at 5.
See also Bailey v. Saskatchewan Registered Nurses' Assn.,
Saskatchewan Court of Queen's Bench, [ 1998 ] S.J. No. 332, April
7. Cannon v. Canada
(Assistant Commissioner, RCMP) (T.D.), [ 1998 ] 2 F.C. 104 at
8.  3 S.C.R.
9. Ibid. at 1172.
10. The Committee
for Justice and Liberty v. The National Energy Board,  1
S.C.R. 369 at 394.
11. Supra note 4 at
12. Supra note 2 at
13. R.S.C. 1985, c.
14. World Trade
Organization Agreement Implementation Act, S.C. 1994, c. 47.
15. Supra note 8 at
16. Ontario New
Home Warranty Program v. Campbell, Ontario Court of Justice
(General Division),  O.J. No. 366 at para. 45.
17. R.S.C. 1985, c.
18. R.S.C. 1985, c.
19. R.S.C. 1985, c.
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Initial publication: June 2, 1999