The Honourable Paul M. Martin, P.C., M.P.
Minister of Finance
House of Commons
Ottawa, Ontario
K1A 0A6
Dear Minister:
I have the honour of transmitting to you, for tabling in the
House of Commons, pursuant to section 41 of the Canadian
International Trade Tribunal Act, the Annual Report of the
Canadian International Trade Tribunal for the fiscal year ending
March 31, 2000.
| |
CHAPTER I
|
| |
TRIBUNAL HIGHLIGHTS IN
FISCAL YEAR
|
Members
|
On July 5, 1999, Mr. Zdenek Kvarda began his term as Member of
the Canadian International Trade Tribunal (the Tribunal). From 1986
to 1998, Mr. Kvarda was President and Chief Executive Officer
of Aluminum Star Products Limited, one of Canada's finest
manufacturers of architectural signage products. In 1991, he was
presented with the Award of Merit for Outstanding Business
Achievement by the Ontario Chamber of Commerce. Mr. Kvarda occupied
various positions with the Eastern Ontario Development Corporation,
including the position of Chair. As well as serving as Director of
the Ontario Development Corporation, Mr. Kvarda was the founding
President of the Belleville Junior Chamber of Commerce, the
President and District President of the Ontario Junior Chamber of
Commerce and Director of the Canadian Junior Chamber of
Commerce.
On November 15, 1999, Mr. James Angus Ogilvy began his term as
Member of the Tribunal. Prior to his appointment, Mr. Ogilvy was
the Director, Internal Trade, with Alberta Intergovernmental and
Aboriginal Affairs and also served as Alberta's Internal Trade
Representative. Previously, he was the Director, Planning and
Policy Development for the Alberta Liquor Control Board. Mr. Ogilvy
was the Senior Editor, Humanities, of the Canadian
Encyclopedia, as well as the Manuscript Editor of the
Dictionary of Canadian Biography. He was also a lecturer at
Bishop's University and Victoria College, University of
Toronto.
On June 1, 1999, Mr. Arthur B. Trudeau began his term as
temporary Member of the Tribunal. Until March 31, 1998, Mr. Trudeau
was a Vice-Chair of the Tribunal. Prior to joining the federal
government in 1971, he held managerial positions in accounting and
finance with DuPont of Canada Ltd. He has held positions with the
Department of Regional Economic Expansion and was the Secretary of
the Anti-dumping Tribunal and of its successor, the Canadian Import
Tribunal. In 1988, Mr. Trudeau was appointed to the position of
Member of the Canadian Import Tribunal. He was a Member of the
Tribunal starting in December 1988 and was appointed to the
position of Vice-Chair on January 1, 1992.
During the fiscal year, the term of Ms. Anita Szlazak as Member
of the Tribunal expired. The Tribunal would like to take this
opportunity to recognize Ms. Szlazak's valuable contribution to the
Tribunal's work.
|
| |
|
Dumping and Subsidizing
Inquiries and Reviews
|
In the fiscal year, the Tribunal issued four findings following
injury inquiries under section 42 of the Special Import Measures
Act (SIMA) and seven orders following reviews under section 76.
At the end of the year, there were two inquiries and five reviews
in progress.
|
| |
|
Legislative Amendments
to SIMA and the Canadian International Trade Tribunal
Act
|
Legislative amendments to SIMA and the Canadian International
Trade Tribunal Act (CITT Act) will come into force on April 15,
2000. These amendments will bring changes to the jurisdiction,
procedures and processes of the Tribunal.
In order to familiarize stakeholders with those changes, the
Tribunal will issue a series of interim guidelines dealing with
preliminary injury inquiries, public interest inquiries, interim
reviews and expiry reviews. These documents will be available on
the Tribunal's Web site (www.citt-tcce.gc.ca). Chapter VII of this
report describes how the Tribunal will conduct each of those
proceedings under the new regime.
|
| |
|
Trade and Tariff
Reference
|
|
Textiles
|
During the fiscal year, the Tribunal issued six reports to the
Minister of Finance concerning requests for tariff relief. In
addition, the Tribunal's fifth annual status report on the
investigation process was submitted to the Minister of Finance on
January 27, 2000.
|
| |
|
Appeals
|
The Tribunal issued decisions on 64 appeals from decisions of
the Department of National Revenue (Revenue Canada) (now the Canada
Customs and Revenue Agency [CCRA]) made under the Customs
Act and the Excise Tax Act. On November 1, 1999, the
CCRA was established to carry out the mandate of Revenue
Canada.
|
| |
|
Procurement
Review
|
The Tribunal received 53 complaints during the fiscal year. The
Tribunal issued 26 written determinations of its findings and
recommendations. Eleven of these determinations related to cases
that were in progress at the end of fiscal year 1998-99. In 14
of the 26 written determinations, the complaints were determined to
be valid or valid in part.
|
| |
|
Access to Tribunal
Notices, Decisions and Publications
|
Tribunal notices and decisions are published in the Canada
Gazette. Those relating to procurement complaints are also
published in Government Business Opportunities.
The Tribunal's Web site provides an exhaustive repository of all
Tribunal notices, decisions and publications, as well as other
information relating to the Tribunal's current activities. The
Tribunal alerts subscribers of each new posting on its Web site.
This service is available on request free of charge.
|
| |
|
Rules of
Procedure
|
The Tribunal has completed its review of the Canadian
International Trade Tribunal Rules (Rules of Procedure). The
purpose of the review was to eliminate unnecessary rules, to
increase efficiency and transparency and to preserve fairness.
Procedures have been modified to reflect technological changes. The
review also allowed the Tribunal to incorporate new rules to
accommodate legislative amendments to SIMA and the CITT Act that
will come into effect on April 15, 2000. The revised
Rules of Procedure will be published in the
April 26, 2000, edition of the Canada Gazette,
Part II, and will come into effect on April 15, 2000.
|
| |
|
Meeting Statutory
Deadlines (Timeliness)
|
All the Tribunal inquiries were completed on time, and decisions
were issued within the statutory deadlines. For appeals of CCRA
decisions that are not subject to statutory deadlines, the Tribunal
usually issues, within 120 days of the hearing, a decision on
the matter in dispute, including the reasons for its decision.
|
1. As a result of a different method of reporting expiries, the
first column refers to expiries for which decisions had not been
made prior to the end of the previous fiscal year. The fourth
column refers to decisions to review.
2. The Tribunal actually issued 6 reports to the Minister of
Finance which related to 8 requests for tariff relief.
3. The Tribunal actually issued 26 written determinations which
related to 27 procurement complaints.
| |
CHAPTER II
|
| |
MANDATE, ORGANIZATION
AND ACTIVITIES OF THE TRIBUNAL
|
Introduction
|
The Tribunal is an administrative tribunal operating within
Canada's trade remedies system. It is an independent quasi-judicial
body that carries out its statutory responsibilities in an
autonomous and impartial manner and reports to Parliament through
the Minister of Finance.
The main legislation governing the work of the Tribunal is the
CITT Act, SIMA, the Customs Act, the Excise Tax Act, the Canadian
International Trade Tribunal Regulations (CITT Regulations), the
Canadian International Trade Tribunal Procurement Inquiry
Regulations and the Tribunal's Rules of Procedure.
|
| |
|
Mandate
|
The Tribunal's primary mandate is to:
· conduct inquiries into whether dumped or subsidized imports
have caused, or are threatening to cause, material injury to a
domestic industry;
· hear appeals of decisions of the CCRA made under the Customs
Act, the Excise Tax Act and SIMA;
· conduct inquiries into complaints by potential suppliers
concerning federal government procurement that is covered by the
North American Free Trade Agreement (NAFTA), the
Agreement on Internal Trade (AIT) and the World Trade
Organization (WTO) Agreement on Government Procurement
(AGP);
· conduct investigations into requests from Canadian producers for
tariff relief on imported textile inputs that they use in their
production operations;
· conduct safeguard inquiries into complaints by domestic producers
that increased imports are causing, or threatening to cause,
serious injury to domestic producers; and
· conduct inquiries and provide advice on such economic, trade and
tariff issues as are referred to the Tribunal by the Governor in
Council or the Minister of Finance.
|
| |
|
Method of
Operations
|
In carrying out most of its responsibilities, the Tribunal
conducts inquiries with hearings that are open to the public. These
are normally held in Ottawa, Ontario, the location of the
Tribunal's offices, although hearings may also be held elsewhere in
Canada, in person or through videoconferencing facilities. The
Tribunal has rules and procedures similar to those of a court of
law, but not quite as formal or strict. The CITT Act states that
hearings, conducted generally by a panel of three members, should
be carried out as "informally and expeditiously" as the
circumstances and considerations of fairness permit. The Tribunal
has the power to subpoena witnesses and require parties to submit
information. The CITT Act contains provisions for the
protection of confidential information. Only independent counsel
who have filed declarations and confidentiality undertakings may
have access to confidential information.
The Tribunal's decisions may be reviewed by or appealed to, as
appropriate, the Federal Court of Canada and, ultimately, the
Supreme Court of Canada, or a binational panel under NAFTA, in the
case of a decision affecting U.S. and/or Mexican interests in SIMA.
Governments that are members of the WTO may challenge some of the
Tribunal's decisions before a dispute settlement panel under the
WTO Understanding on Rules and Procedures Governing the
Settlement of Disputes.
|
| |
|
Membership
|
The Tribunal may be composed of nine full-time members,
including a Chairman and two Vice-Chairs, who are appointed by the
Governor in Council for a term of up to five years that is
renewable one time. A maximum of five additional members may
be temporarily appointed. The Chairman is the Chief Executive
Officer responsible for the assignment of members and for the
management of the Tribunal's work. Members come from a variety of
educational backgrounds, careers and regions of the country.
|
| |
|
Organization
|
Members of the Tribunal, currently 8 in number, are supported by
a permanent staff of 86 people. Its principal officers are the
Secretary, responsible for corporate management, relations with the
public, dealings with other government departments and other
governments, and the court registrar functions of the Tribunal; the
Executive Director, Research, responsible for the investigative
portion of the inquiries, for the economic and financial analysis
of firms and industries and for other fact finding required for
Tribunal inquiries; and the General Counsel, responsible for the
provision of legal services to the Tribunal.
|
| |
|
Consultations
|
The Tribunal, through the Tribunal/Canadian Bar Association
Bench and Bar Committee, provides a forum to promote discussion on
issues of importance with the bar. The committee also includes
representatives from the trade consulting community. The Tribunal
consults with the bar and representatives of industries and others
that appear or that are likely to appear before the Tribunal to
exchange views on new procedures being considered by the Tribunal
prior to their distribution as guidelines or practice notices. The
Tribunal also briefs federal government departments and trade
associations on its procedures.
|
| |
|
Amendments to the
Tribunal's Rules of Procedure
|
Bill C-35, amending SIMA and the CITT Act, received Royal Assent
on March 25, 1999, and will be proclaimed into force on April 15,
2000. The amendments to the Tribunal's Rules of Procedure flow from
the amendments to SIMA and the CITT Act.
The changes to the Tribunal's Rules of Procedure deal primarily
with five areas: (1) notice provisions; (2) exchange of information
between the Tribunal and the CCRA; (3) procedures governing the
conduct of interim and expiry reviews of orders and findings; (4)
disclosure of confidential information to counsel and expert
witnesses; and (5) public interest.
The amended Rules of Procedure maintain the basic framework, and
the changes are intended to provide comprehensive and transparent
guidance to those appearing before the Tribunal. Their aim is also
to facilitate fair and efficient Tribunal proceedings. The changes
include:
· the establishment of a process for the timely and
comprehensive exchange of information between parties before a
hearing by way of requests for information;
· the establishment of earlier filing deadlines for certain types
of documents, such as subpoenas and expert witness reports;
· the possibility of filing and serving documents by electronic
transmission;
· the possibility of using three types of hearings, that is, oral
hearings, hearings by way of written submissions and electronic
hearings; and
· the defining of procedures for a less formal application process
for parties to obtain direction and rulings of the Tribunal on
specific matters, such as the filing and communication of
confidential information, late submissions, postponements and
adjournments.
|
|
Section
|
Authority
|
|
CITT Act
|
|
| 18 |
Inquiries on Economic, Trade or Commercial Interests of Canada
by Reference from the Governor in Council
|
| 19 |
Inquiries Into Tariff-related Matters by Reference from the
Minister of Finance
|
| 19.01 |
Safeguard Inquiries Concerning Goods Imported from the United
States and Mexico
|
| 19.02 |
Mid-term Reviews of Safeguard Measures and Report
|
| 20 |
Safeguard Inquiries Concerning Goods Imported Into Canada and
Inquiries Into the Provision, by Persons Normally Resident Outside
Canada, of Services in Canada
|
| 23 |
Safeguard Complaints by Domestic Producers
|
|
23(1.01) and (1.02)
|
Safeguard Complaints by Domestic Producers Concerning Goods
Imported from the United States and Mexico
|
|
30.08 and 30.09
|
Safeguard Measures
|
| 30.11 |
Complaints by Potential Suppliers in Respect of Designated
Contracts
|
|
SIMA (Anti-dumping and Countervailing Duties)
|
|
33, 34, 35 and 37
|
Advice to Commissioner
|
| 42 |
Inquiries With Respect to Injury Caused by the Dumping and
Subsidizing of Goods
|
| 43 |
Findings of the Tribunal Concerning Injury
|
| 44 |
Recommencement of Inquiry (on Remand from the Federal Court of
Canada or a Binational Panel)
|
| 45 |
Public Interest
|
| 61 |
Appeals of Re-determinations of the Commissioner Made Pursuant
to Section 59 Concerning Whether Imported Goods are Goods of the
Same Description as Goods to which a Tribunal Finding Applies,
Normal Values and Export Prices or Subsidies
|
| 76 |
Reviews of Findings of Injury Initiated by the Tribunal or at
the Request of the Commissioner or Other Interested Persons
|
| 76.1 |
Reviews of Findings of Injury Initiated at the Request of the
Minister of Finance
|
| 89 |
Rulings on Who is the Importer
|
|
Customs Act
|
| 67 |
Appeals of Decisions of the Commissioner Concerning Value for
Duty and Origin and Classification of Imported Goods
|
| 68 |
Appeals to the Federal Court of Canada
|
| 70 |
References of the Commissioner Relating to the Tariff
Classification or Value for Duty of Goods
|
|
Excise Tax Act
|
|
81.19, 81.21, 81.22,
81.23, 81.25 and 81.33
|
Appeals of Assessments and Determinations of the Minister of
National Revenue
|
| 81.32 |
Requests for Extension of Time for Objection or Appeal
|
|
Softwood Lumber Products Export Charge Act
|
| 18 |
Appeals of Assessments and Determinations of the Minister of
National Revenue
|
|
Energy Administration Act
|
| 13 |
Declarations Concerning the Amount of Oil Export Charge
|
| |
CHAPTER
III
|
| |
DUMPING AND
SUBSIDIZING INJURY INQUIRIES AND REVIEWS
|
The
Process
|
Under SIMA, Canadian producers may have access to anti-dumping
and countervailing duties to offset unfair and injurious
competition from goods exported to Canada:
· at prices lower than sales in the home market or lower than
the cost of production (dumping), or
· that have benefited from certain types of government grants or
other assistance (subsidizing).
The determination of dumping and subsidizing is the
responsibility of the CCRA. The Tribunal determines whether such
dumping or subsidizing has caused "material injury" or
"retardation" or is threatening to cause material injury to a
domestic industry.
A Canadian producer or an association of Canadian producers
begins the process of seeking relief from alleged injurious dumping
or subsidizing by making a complaint to the Commissioner of the
CCRA. The Commissioner may then initiate a dumping or subsidizing
investigation leading to a preliminary and then a final
determination of dumping or subsidizing. The Tribunal commences its
inquiry when the Commissioner issues a preliminary determination of
dumping. The CCRA levies provisional duties on imports from the
date of the preliminary determination of dumping.
|
| |
|
Inquiries
|
When it commences an inquiry, the Tribunal seeks to make all
interested parties aware of the inquiry. It issues a notice of
commencement of inquiry that is published in the Canada
Gazette and forwarded to all known interested parties.
In conducting inquiries, the Tribunal requests information from
interested parties, receives representations and holds public
hearings. Parties participating in these proceedings may conduct
their own cases or be represented by counsel. The Tribunal staff
carries out extensive research for each inquiry. The Tribunal sends
questionnaires to domestic manufacturers, importers and purchasers
and to foreign producers. Questionnaire responses are the primary
source of information for staff reports. These reports focus on the
factors that the Tribunal considers in arriving at decisions
regarding material injury or retardation or threat of material
injury to a domestic industry. The reports become part of the case
record and are made available to counsel and parties. Confidential
or business-sensitive information is protected in accordance with
provisions of the CITT Act. Only independent counsel who have filed
declarations and confidentiality undertakings may have access to
such confidential information.
The CITT Regulations prescribe factors that the Tribunal may
consider in its determination of whether the dumping or subsidizing
of goods has caused material injury or retardation or is
threatening to cause material injury to a domestic industry. These
factors include, among others, the volume of dumped or subsidized
goods, the effects of the dumped or subsidized goods on prices and
the impact of the dumped or subsidized goods on production, sales,
market shares, profits, employment and utilization of production
capacity.
The Tribunal holds a public hearing about 90 days after the
commencement of the inquiry. At the public hearing, domestic
producers attempt to persuade the Tribunal that the dumping or
subsidizing of goods has caused material injury or retardation or
is threatening to cause material injury to a domestic industry.
Importers and exporters challenge the domestic producers' case.
After cross-examination by parties and examination by the Tribunal,
each side has an opportunity to respond to the other's case and to
summarize its own. In many inquiries, the Tribunal calls witnesses
who are knowledgeable about the industry and market in question.
Parties may also seek exclusions from a Tribunal finding of
material injury or retardation or threat of material injury to a
domestic industry.
The Tribunal must issue its finding within 120 days from the
date of the preliminary determination by the Commissioner. The
Tribunal has an additional 15 days to issue a statement of
reasons explaining its finding. A Tribunal finding of material
injury or retardation or threat of material injury to a domestic
industry is the legal authority for the imposition of anti-dumping
or countervailing duties by the CCRA.
|
| |
|
Advice Given Under
Section 37 of SIMA
|
When the Commissioner decides not to initiate a dumping or
subsidizing investigation because there is no reasonable indication
of injury, the Commissioner or the complainant may, under section
33 of SIMA, refer the matter to the Tribunal for an opinion as to
whether or not the evidence before the Commissioner discloses a
reasonable indication that the dumping or subsidizing has caused
material injury or retardation or is threatening to cause material
injury to a domestic industry. When the Commissioner decides to
initiate an investigation, a similar recourse is available to
the Commissioner or any person or government under section 34 of
SIMA. The same recourse is available under section 35 of SIMA, if
the Commissioner terminates an investigation because of
insufficient evidence of injury.
Section 37 of SIMA requires the Tribunal to render its advice
within 30 days. The Tribunal makes its decision, without holding a
public hearing, on the basis of the information before the
Commissioner when the decision regarding initiation was
reached.
The Tribunal issued three advices during the fiscal year. They
concerned Certain Iodinated Contrast Media (Reference No.
RE-99-001), Certain Hot-rolled Carbon Steel Plate (Reference
No. RE-99-002) and Certain Household Appliances (Reference
No. RE-99-003). In each of the three cases, the Tribunal concluded
that the evidence before the Commissioner disclosed a reasonable
indication that the dumping had caused material injury or was
threatening to cause material injury to a domestic industry. The
first two cases subsequently proceeded to inquiries under section
42 of SIMA before the end of the fiscal year.
|
| |
|
Inquiries Completed
in the Fiscal Year
|
The Tribunal completed four inquiries under section 42 of SIMA
in the fiscal year. They concerned Certain Stainless Steel Round
Bar (Inquiry No. NQ-98-003), Certain Flat Hot-rolled
Carbon and Alloy Steel Sheet Products (Inquiry No. NQ-98-004),
Certain Cold-rolled Steel Sheet Products (Inquiry
No. NQ-99-001) and Certain Concrete Reinforcing Bar
(Inquiry No. NQ-99-002). In 1998, the Canadian markets for
these products were estimated to be approximately $30 million,
$2.8 billion, $1.1 billion and $290 million respectively. On
April 14, 1999, following the acceptance of an undertaking by the
Deputy Minister of National Revenue (the Deputy Minister), the
Tribunal suspended its inquiry in Certain Filter Tipped
Cigarette Tubes (Inquiry No. NQ-98-002).
|
| |
|
|
Certain Stainless Steel Round
Bar
NQ-98-003
Finding:
Injury
(June 18, 1999)
|
This inquiry involved dumped imports from the Republic of Korea
(Korea). The sole domestic producer was Atlas Specialty Steels, A
Division of Atlas Steels Inc. (Atlas).
This was the second inquiry during a 12-month period concerning
the dumping of stainless steel round bar. In Inquiry No. NQ-98-001,
the Tribunal made a finding of material injury respecting stainless
steel round bar originating in or exported from the Federal
Republic of Germany (Germany), France, India, Italy, Japan, Spain,
Sweden, Taiwan and the United Kingdom. In its statement of reasons,
the Tribunal advised the Deputy Minister, under section 46 of SIMA,
that, based on the evidence before it, certain stainless steel
round bar originating in or exported from Korea was being dumped in
the Canadian market and that the dumping was threatening to cause
injury to the domestic industry. Subsequent to this advice, on
November 16, 1998, Atlas filed a dumping complaint with the Deputy
Minister respecting certain stainless steel round bar from Korea,
and the Deputy Minister initiated an investigation.
In the previous case, dumping from the nine named countries had
caused Atlas to lose sales and market share and had forced it to
lower prices, which led to reduced revenues and lost profits. In
the current case, Atlas had benefited from the injury finding
against the nine named countries, as it was able to increase its
sales volume and market share. However, it continued to face
competition from low price offerings from Korea and other
countries. Consequently, Atlas was forced to continue discounting
its prices and suffered injury in the form of price erosion.
In addition, Atlas was unsuccessful in its attempt to increase
prices in order to recover some of the losses that it had incurred
earlier. The Tribunal, therefore, also found injury in the form of
price suppression. After consideration of all relevant factors, the
Tribunal was satisfied from the evidence that Korean imports
materially injured the domestic industry.
|
| |
|
|
Certain Flat Hot-rolled Carbon and Alloy
Steel Sheet Products
NQ-98-004
Finding:
Injury
(July 2, 1999)
|
This inquiry involved dumped imports from France, Romania, the
Russian Federation and the Slovak Republic. There were five
Canadian producers of hot-rolled steel sheet: Stelco Inc. (Stelco)
of Hamilton, Ontario; Dofasco Inc. (Dofasco) of Hamilton; Algoma
Steel Inc. (Algoma) of Sault Ste. Marie, Ontario; IPSCO Inc. of
Regina, Saskatchewan; and Ispat Sidbec Inc. (Ispat) of Montréal,
Quebec. Several importers and end users, as well as exporters from
France, Romania and the Russian Federation, participated in the
inquiry.
The full impact of the substantial quantities of dumped imports
on prices in the market became apparent in the fourth quarter of
1998 and in the first quarter of 1999, as the domestic industry's
production capacity utilization declined. In the third quarter of
1998, with the beginning of the General Motors strike and the
continuing softness of the oil country tubular goods market and
certain other industries, the domestic industry began discounting
the price of like goods. It continued to do so through the first
quarter of 1999 to meet the dumped import competition. Domestic
producers experienced serious price declines, particularly in the
pipe and tube and service centre sectors, which resulted in a major
decline in the overall price level of hot-rolled steel sheet. These
lower prices resulted in a significant negative impact on the
revenues and profitability of the domestic producers of hot-rolled
steel sheet, especially in the latter part of 1998 and in the first
quarter of 1999.
Although the Tribunal found that the domestic producers of
hot-rolled steel sheet experienced a significant loss of market
share, it was of the opinion that the loss of market share was, in
part, the result of supply constraints in 1997 and the first two
quarters of 1998 and the result of the domestic industry's
unwillingness to meet the low prices of dumped imports.
The Tribunal concluded that the material injury suffered by the
domestic industry in the form of price erosion was caused primarily
by the low prices at which dumped imports were being sold in the
Canadian market.
The Tribunal excluded from its finding certain hot-rolled
cut-to-length manganese alloy steel sheet products.
|
| |
|
|
Certain Cold-rolled Steel Sheet
Products
NQ-99-001
Finding:
No injury and threat of injury
(August 27, 1999)
|
This inquiry involved dumped imports from Argentina, Belgium,
New Zealand, the Russian Federation, the Slovak Republic, Spain and
the Republic of Turkey (Turkey). The domestic industry consisted of
the four Canadian producers of cold-rolled steel sheet products:
Dofasco, Stelco, Ispat and Algoma. Several importers and end users,
as well as exporters from the subject countries, participated in
the inquiry.
The Tribunal found that the volumes of dumped goods from New
Zealand and Spain were negligible. In a separate injury analysis,
the Tribunal found that these imports had not caused and did not
threaten to cause material injury to the domestic industry.
The Tribunal made a cumulative analysis of the effects on the
domestic industry of dumped imports from Argentina, Belgium, the
Russian Federation, the Slovak Republic and Turkey. It concluded
that there was material injury to the domestic industry in 1998,
since there was a loss of sales volume, price erosion and price
suppression, with a reduction of almost one third in the industry's
net income before taxes for cold-rolled steel sheet products
between 1997 and 1998. However, in the Tribunal's view, there were
many causes of the material injury in 1998. These included a
contraction in the domestic market of 5 percent, an oversupply of
cold-rolled steel sheet in the global market, a decline in world
cold-rolled steel spot prices, an increase in the cost of goods
manufactured by two of the domestic producers, the General Motors
strike in the third quarter of 1998, production problems
experienced by two of the domestic producers, a surge of
non-subject Korean imports in 1998, and a significant volume of
sales of dumped goods from the cumulated countries at service
centres. The Tribunal did not find a sufficient causal link between
the dumped imports and changes in the domestic industry's prices or
its lost sales.
However, the Tribunal found that, in the absence of an injury
finding, imports from these countries would threaten to cause
material injury to the domestic industry. In reaching this
conclusion, the Tribunal took into account the growth in imports
from 1996 to 1998, low capacity utilization rates, the importance
of exports as a way of maintaining capacity utilization, trade
measures in place in other countries against Russian cold-rolled
steel sheet and against Russian and Slovak hot-rolled steel sheet
products in Canada, and the falling prices of the Belgian, Russian,
Slovak and Turkish goods. In reaching this conclusion, the Tribunal
found that factors other than dumping would not cause material
injury in the near future. The Tribunal found that sales from
imports from Korea in the first quarter of 1999 were only a
small percentage of its sales volume in the fourth quarter of
1998, suggesting a withdrawal of Korea from the Canadian market.
With respect to the other factors that had been affecting the
domestic industry in 1998, the Tribunal considered that they
had run their course and would not be continuing influences on
domestic producers.
The Tribunal excluded Argentina from its finding of threat of
material injury, concluding that the expected volume of imports
would not threaten domestic prices in the near future.
|
| |
|
|
Certain Concrete Reinforcing
Bar
NQ-99-002
Finding:
Injury
(January 12, 2000)
|
This inquiry concerned dumped imports of certain concrete
reinforcing bar from the Republic of Cuba (Cuba), Korea and Turkey.
The domestic industry consisted of eight Canadian producers of
rebar: Co-Steel Inc. of Toronto, Ontario; Ispat; Stelco; AltaSteel
of Edmonton, Alberta; Stelco McMaster Ltée. of Contrecoeur, Quebec;
Gerdau Courtice Steel Inc. of Cambridge, Ontario; Gerdau MRM Steel
Inc. of Selkirk, Manitoba; and Slater Steel Inc. of North York,
Ontario. Several exporters from the subject countries participated
in the inquiry.
The Tribunal found that the domestic producers of rebar
experienced a significant loss of market share. In addition, to
combat the market share losses, they were forced to reduce selling
prices, leading to reductions in revenue and profitability,
especially in the latter part of 1998 and in the first half of
1999. The Tribunal found that the magnitude of the market share
losses, the price declines and the resulting financial losses were
such as to conclude that the domestic producers had been materially
injured. The Tribunal concluded that the material injury suffered
by the domestic industry was caused by the low prices at which
large volumes of dumped imported rebar were being sold in the
Canadian market. Furthermore, the lost sales and the price erosion
accounted for a significant proportion of the decline in financial
performance experienced by the domestic industry in the latter part
of 1998 and in the first half of 1999.
The Tribunal also considered whether factors other than dumping
caused any injury suffered by the domestic producers. These factors
included decreased scrap steel prices, the ability of the domestic
industry to supply the market, a switch to higher-margin products,
recent developments in the world market for rebar, imports of rebar
from non-subject countries, principally the United States, and the
international competitiveness of Canadian producers of rebar. The
Tribunal determined that none of these other factors individually
or collectively satisfactorily explained the injury suffered by the
domestic industry.
|
| |
|
Inquiries in
Progress at the End of the Fiscal Year
|
There were two inquiries in progress at the end of the fiscal
year: Iodinated Contrast Media (Inquiry No. NQ-99-003) and
Certain Carbon Steel Plate (Inquiry No. NQ-99-004).
The inquiry on iodinated contrast media concerns dumped imports
from the United States. The sole domestic producer is Mallinckrodt
Medical, Inc., of Pointe-Claire, Quebec. Nycomed Canada Inc.,
Nycomed Amersham Canada Limited and Bracco Diagnostics Canada Inc.
are parties to the inquiry.
The inquiry on certain carbon steel plate concerns dumped
imports from the Federative Republic of Brazil (Brazil), Finland
and the Ukraine and dumped and subsidized imports from India,
Indonesia and Thailand. The domestic producers are Algoma, Stelco
and IPSCO Inc. of Regina, Saskatchewan. The exporters that are
parties to the inquiry are Azovstal Iron & Steel Works
(Ukraine), Usinas Siderúrgicas de Minas Gerais S.A (Brazil),
Companhia Siderúrgica Paulista (Brazil) and Steel Authority of
India Limited (India).
Table 1 summarizes the Tribunal's inquiry activities during the
fiscal year.
|
| |
|
Public Interest
Consideration Under Section 45 of SIMA
|
Where, after a finding of injury or threat of injury, the
Tribunal is of the opinion that the imposition of anti-dumping or
countervailing duties may not be in the public interest, it reports
this opinion to the Minister of Finance with a statement of the
facts and reasons that led to its conclusions and recommendations.
The Minister of Finance decides whether there should be a reduction
in duties.
During the injury inquiry, interested parties may make a request
to make representations to the Tribunal on the matter of public
interest. Representations may be made after the completion of the
inquiry. The Tribunal will then conduct a public interest
investigation if it considers that there is a public interest
concern worthy of further investigation.
The Tribunal received one request for a public interest
investigation during the fiscal year. On August 3, 1999, the
Tribunal received a joint request from Atlas Tube Inc., Bolton
Steel Tube Co. Ltd. and Thyssen Canada Limited for a public
interest investigation to eliminate the anti-dumping duties on the
subject goods originating in or exported from Romania and the
Russian Federation as a result of the Tribunal's injury finding in
Certain Flat Hot-rolled Carbon and Alloy Steel Sheet
Products (Inquiry No. NQ-98-004). On August 19 and 20, 1999,
Stelco, Dofasco, Algoma, IPSCO and Ispat made submissions opposing
a public interest investigation. The Tribunal received several
other submissions opposing a public interest investigation. On
September 20, 1999, in its consideration (Public Interest
Investigation No. PB-99-001), the Tribunal found that the joint
request did not reflect a public interest which warranted further
investigation. Accordingly, the Tribunal did not conduct a public
interest investigation into the matter.
|
| |
|
Importer
Ruling
|
Under section 90 of SIMA, the Commissioner may request the
Tribunal to rule on the question as to which of two or more persons
is the importer of goods on which anti-dumping or countervailing
duties are payable. If the Tribunal identifies as the importer a
person other than the one specified by the Commissioner, the
Tribunal may reconsider its original finding of material injury
under section 91.
There were no requests for an importer ruling in the fiscal
year.
|
| |
|
Requests for
Review
|
The Tribunal may review its findings of injury or orders at any
time, on its own initiative or at the request of the Commissioner
or any other person or government (subsection 76(2) of SIMA).
However, the Tribunal will initiate a review only if it determines
that one is warranted, usually on the basis of changed
circumstances. In such a review, the Tribunal determines if the
changed circumstances are such that the finding or order remains
necessary.
There were no requests for review in the fiscal year.
|
| |
|
Expiries and
Reviews
|
Subsection 76(5) of SIMA provides that a finding or order
expires after five years, unless a review has been initiated.
It is Tribunal policy to notify parties nine months prior to the
expiry date of a finding or order. If a review is requested, the
Tribunal will initiate one if it determines that it is
warranted.
During the fiscal year, the Tribunal issued nine notices of
expiry. The Tribunal decided that reviews were warranted in six
cases and initiated reviews. In Refill Paper (Expiry No.
LE-99-005), the Tribunal received a request for the initiation of a
review, but decided that a review was not warranted. In Photo
Albums (Expiry No. LE-99-006) and in Caps, Lids and Jars
(Expiry No. LE-99-008), there were no requests for the
initiation of reviews.
The purpose of a review is to determine whether anti-dumping or
countervailing duties remain necessary. In the case of reviews upon
expiry, the Tribunal assesses whether dumping or subsidizing is
likely to continue or resume and, if so, whether the dumping or
subsidizing is likely to cause material injury to a domestic
industry. The Tribunal's procedures in reviews are similar to those
in inquiries.
Upon completion of a review, the Tribunal issues an order with
reasons, rescinding or continuing a finding or order, with or
without amendment. If the Tribunal continues a finding or order, it
remains in force for a further five years, unless a review has been
initiated and the finding or order is rescinded. If the finding or
order is rescinded, imports are no longer subject to anti-dumping
or countervailing duties.
|
| |
|
Reviews Completed
in the Fiscal Year
|
In the fiscal year, the Tribunal completed seven reviews.
On April 21, 1999, the Tribunal rescinded its finding in
Synthetic Baler Twine (Review No. RR-98-003) respecting
dumped imports from the United States. The Tribunal reached this
conclusion after determining that, in the absence of economic and
financial information from the major domestic producer, it could
not make a finding on the likelihood of material injury to a major
proportion of domestic production.
On May 17, 1999, the Tribunal continued its finding in
Certain Hot-rolled Carbon Steel Plate and High-strength
Low-alloy Plate (Review No. RR-98-004) respecting dumped
imports from Italy, Korea, Spain and the Ukraine. Algoma, Stelco
and IPSCO, domestic producers accounting for most of Canadian
production, and several exporters from Korea, Spain and the Ukraine
participated in the review.
On June 22, 1999, the Tribunal continued its finding in
12-gauge Shotshells (Review No. RR-98-005) respecting dumped
imports from the Czech Republic and the Republic of Hungary. The
Société d'expansion commerciale Libec Inc.,
Sainte-Justine-de-Newton, Quebec, a domestic producer accounting
for most of Canadian production, participated in the review.
On July 19, 1999, the Tribunal continued its finding in Black
Granite Memorials and Black Granite Slabs (Review No.
RR-98-006) respecting dumped and subsidized imports from India. The
Canadian Granite Association, representing most domestic producers,
an exporter and an importer, as well as the Government of India,
participated in the review.
On July 28, 1999, in Certain Corrosion-resistant Steel Sheet
Products (Review No. RR-98-007), the Tribunal rescinded its
finding respecting dumped imports from Australia, France, New
Zealand, Spain, Sweden and the United Kingdom and continued its
finding, excluding certain corrosion resistant steel products for
automotive use, respecting imports from the United States, Brazil,
Germany, Japan and Korea. Three domestic producers, Dofasco, Stelco
and Sorevco, two importers and several exporters from Brazil,
France, Germany, Korea, Spain and the United States, as well as
several Canadian automotive stampers, participated in the
review.
On February 8, 2000, the Tribunal rescinded its finding in
Fresh, Whole, Delicious and Red Delicious Apples (Review No.
RR-99-001) respecting dumped imports from the United States. The
Canadian Horticultural Council, representing domestic growers, the
Northwest Horticultural Council, representing Washington State
growers and exporters, and the Ontario Produce Marketing
Association participated in the review.
On March 20, 2000, in Subsidized Canned Ham and Canned
Pork-based Luncheon Meat (Review No. RR-99-002), the Tribunal
continued its finding respecting subsidized imports of canned ham
from Denmark and the Netherlands and rescinded its finding
respecting subsidized imports of canned pork-based luncheon meat
from the European Union. The Canadian Meat Council and Maple Leaf
Consumer Foods, the sole Canadian producer of canned ham and the
main Canadian producer of canned luncheon meat, and an importer
participated in the review. The European Union also made
submissions in the review.
|
| |
|
Reviews in Progress
at the End of the Fiscal Year
|
Four reviews were in progress at the end of the fiscal year.
They were reviews of the findings and orders in: (1) Women's
Boots and Women's Shoes (Review No. RR-99-003) respecting
dumped imports from the People's Republic of China (China);
(2) Carbon Steel Welded Pipe (Review No. RR-99-004)
respecting dumped imports from Korea; (3) Whole Potatoes
(Review No. RR-99-005) respecting dumped imports from the United
States; and (4) Refined Sugar (Review No. RR-99-006)
respecting dumped imports from the United States, Denmark, Germany,
the Netherlands and the United Kingdom and subsidized imports from
the European Union.
Table 2 summarizes the Tribunal's review activities during the
fiscal year. Table 3 lists Tribunal findings and orders in force as
of March 31, 2000.
|
| |
|
Judicial or Panel
Review of SIMA Decisions
|
Any person affected by Tribunal findings or orders can request
judicial review by the Federal Court of Canada on grounds of
alleged denial of natural justice and error of fact or law. In
cases involving goods from the United States and Mexico, requests
may be made for judicial review by the Federal Court of Canada or
for panel review by a binational panel. Table 4 lists the
Tribunal's decisions under section 43, 44 or 76 of SIMA that were
before the Federal Court of Canada for judicial review or a
binational panel for review in the fiscal year.
During the fiscal year, the Federal Court of Canada affirmed the
Tribunal's findings in Certain Stainless Steel Round Bar
(Inquiry No. NQ-98-001) and in Certain Hot-rolled Carbon Steel
Plate (Review No. RR-97-006). At the end of the fiscal year,
the Federal Court of Canada had not yet heard applications to
review the Tribunal's orders in Certain Cold-rolled Steel
Sheet (Review No. RR-97-007) and in Certain
Corrosion-resistant Steel Sheet Products (Review No.
RR-98-007).
During the fiscal year, binational panels affirmed on remand the
Tribunal's finding (Mexico) in Certain Hot-rolled Carbon Steel
Plate (Inquiry No. NQ-97-001) and its finding (United States)
in Certain Prepared Baby Foods (Inquiry No. NQ-97-002). Also
at the end of the fiscal year, binational panels had heard the
applications to review but had not yet issued decisions regarding
the Tribunal's orders (United States) in Certain Cold-rolled
Steel Sheet (Review No. RR-97-007) and in Certain
Copper Pipe Fittings (Review No. RR-97-008).
|
| |
|
WTO Dispute
Resolution
|
Governments that are members of the WTO may challenge Tribunal
injury findings or orders in dumping and countervailing cases
before the WTO dispute settlement bodies. This is initiated by
inter-governmental consultations. There are no Tribunal findings or
orders before the dispute settlement bodies of the WTO.
|
|
Review No. or
Inquiry No.
|
Date of Decision
|
Product
|
Country
|
Earlier Decision No.
and Date
|
|
RR-94-003
|
May 2, 1995
|
Women's Boots and Women's Shoes
|
China
|
NQ-89-003
(May 3, 1990)
|
|
RR-94-004
|
June 5, 1995
|
Carbon Steel Welded Pipe
|
Korea
|
ADT-6-83
(June 28, 1983)
RR-89-008
(June 5, 1990)
|
|
RR-94-007
|
September 14, 1995
|
Whole Potatoes
|
United States
|
ADT-4-84
(June 4, 1984)
CIT-16-85
(April 18, 1986)
RR-89-010
(September 14, 1990)
|
|
NQ-95-002
|
November 6, 1995
|
Refined Sugar
|
United States, Denmark, Germany, Netherlands, United Kingdom and
European Union
|
|
|
RR-95-001
|
July 5, 1996
|
Oil and Gas Well Casing
|
Korea and United States
|
CIT-15-85
(April 17, 1986)
R-7-86
(November 6, 1986)
RR-90-005
(June 10, 1991)
|
|
RR-95-002
|
July 25, 1996
|
Carbon Steel Welded Pipe
|
Argentina, India, Romania, Taiwan, Thailand, Venezuela and
Brazil
|
NQ-90-005
(July 26, 1991)
NQ-91-003
(January 23, 1992)
|
|
RR-96-001
|
September 12, 1996
|
Stainless Steel Welded Pipe
|
Taiwan
|
NQ-91-001
(September 5, 1991)
|
|
NQ-96-002
|
March 21, 1997
|
Fresh Garlic
|
China
|
|
|
NQ-96-003
|
April 11, 1997
|
Polyiso Insulation Board
|
United States
|
|
|
RR-96-004
|
April 21, 1997
|
Machine Tufted Carpeting
|
United States
|
NQ-91-006
(April 21, 1992)
|
|
NQ-96-004
|
June 27, 1997
|
Concrete Panels
|
United States
|
|
|
RR-97-001
|
October 20, 1997
|
Waterproof Rubber Footwear
|
China
|
ADT-2-82
(April 23, 1982)
R-7-87
(October 22, 1987)
RR-92-001
(October 21, 1992)
|
|
NQ-97-001
|
October 27, 1997
|
Certain Hot-rolled Carbon Steel Plate
|
Mexico, China, Republic of South Africa and Russian
Federation
|
|
|
RR-97-002
|
November 28, 1997
|
Fresh Iceberg (Head) Lettuce
|
United States
|
NQ-92-001
(November 30, 1992)
|
|
RR-97-003
|
December 10, 1997
|
Bicycles and Frames
|
Taiwan and China
|
NQ-92-002
(December 11, 1992)
|
|
NQ-97-002
|
April 29, 1998
|
Certain Prepared Baby Foods
|
United States
|
|
|
RR-98-001
|
November 18, 1998
|
Preformed Fibreglass Pipe Insulation
|
United States
|
NQ-93-002
(November 19, 1993)
|
|
NQ-98-001
|
September 4, 1998
|
Certain Stainless Steel Round Bar
|
Germany, France, India, Italy, Japan, Spain, Sweden, Taiwan and
United Kingdom
|
|
|
RR-98-004
|
May 17, 1999
|
Certain Hot-rolled Carbon Steel Plate and High-strength
Low-alloy Plate
|
Italy, Korea, Spain and Ukraine
|
NQ-93-004
(May 17, 1994)
|
|
RR-98-005
|
June 22, 1999
|
12-gauge Shotshells
|
Czech Republic and Republic of Hungary
|
NQ-93-005
(June 22, 1994)
|
|
RR-98-006
|
July 19, 1999
|
Black Granite Memorials and Black Granite Slabs
|
India
|
NQ-93-006
(July 20, 1994)
|
|
RR-98-007
|
July 28, 1999
|
Certain Corrosion-resistant Steel Sheet Products
|
Brazil, Germany, Japan, Korea and United States
|
NQ-93-007
(July 29, 1994)
|
|
NQ-98-003
|
June 18, 1999
|
Certain Stainless Steel Round Bar
|
Korea
|
|
|
NQ-98-004
|
July 2, 1999
|
Certain Flat Hot-rolled Carbon and Alloy Steel Sheet
Products
|
France, Romania, Russian Federation and Slovak Republic
|
|
|
NQ-99-001
|
August 27, 1999
|
Certain Cold-rolled Steel Sheet Products
|
Belgium, Russian Federation, Slovak Republic and Turkey
|
|
|
NQ-99-002
|
January 12, 2000
|
Certain Concrete Reinforcing Bar
|
Cuba, Korea and Turkey
|
|
|
RR-99-002
|
March 20, 2000
|
Subsidized Canned Ham
|
Denmark and Netherlands
|
GIC-1-84
(August 7, 1984)
RR-89-003
(March 16, 1990)
RR-94-002
(March 21, 1995)
|
1. To determine the precise product coverage, refer to the
findings or orders as identified in the first column of the
table.
| |
CHAPTER IV
|
| |
APPEALS
|
Introduction
|
The Tribunal hears appeals from decisions of the Commissioner
under the Customs Act and SIMA or of the Minister of
National Revenue (the Minister) under the Excise Tax Act.
The Tribunal hears appeals relating to the tariff classification
and value for duty of goods imported into Canada and relating to
the origin of goods imported from the United States, Mexico and
Chile under the Customs Act. The Tribunal also hears and
decides appeals concerning the application, to imported goods, of a
Tribunal finding or order concerning dumping or subsidizing and the
normal value or export price or subsidy of imported goods under
SIMA. Under the Excise Tax Act, a person may appeal to the
Tribunal the decision of the Minister about an assessment or
determination of federal sales tax or excise tax.
The Tribunal strives to be informal and accessible. However,
there are certain procedures and time constraints that are imposed
by law and by the Tribunal. For example, the appeal process is set
in motion with a notice (or letter) of appeal, in writing, sent to
the Secretary of the Tribunal within the time limit specified in
the act under which the appeal is made.
|
| |
|
|
Rules of
Procedure
|
Under the Tribunal's Rules of Procedure, the person launching
the appeal (the appellant) normally has 60 days to submit to
the Tribunal a document called a "brief". Generally, the brief
states under which act the appeal is launched, gives a description
of the goods in issue and an indication of the points at issue
between the appellant and the Minister or Commissioner (the
respondent) and states why the appellant believes that the
respondent's decision is incorrect. A copy of the brief must also
be given to the respondent.
The respondent must also comply with time and procedural
constraints. Normally, within 60 days after having received the
appellant's brief, the respondent must provide the Tribunal and the
appellant with a brief setting forth the CCRA's position. The
Secretary of the Tribunal then contacts both parties in order to
schedule a hearing. Hearings are generally conducted before
Tribunal members in public. Depending on the complexity and
precedential nature of the matter at issue, appeals will be heard
by a panel of one or three members. Persons may intervene in an
appeal by specifying the nature of their interest in the appeal and
by indicating the reason for intervening and how they may assist
the Tribunal in the resolution of the appeal.
|
| |
|
|
Hearings
|
An individual may present a case before the Tribunal in person,
or be represented by legal counsel or by any other representative.
The respondent is generally represented by counsel from the
Department of Justice.
Hearing procedures are designed to ensure that the appellant and
the respondent are given a full opportunity to make their case.
They also enable the Tribunal to have the best information possible
to make a decision. As in a court, the appellant and the respondent
can call witnesses, and these witnesses are questioned under oath
or affirmation by the opposing parties, as well as by Tribunal
members, in order to test the validity of their evidence. When all
the evidence is gathered, parties may present arguments in support
of their respective position.
The Tribunal, on its own initiative or on the request of the
appellant or the respondent, may decide to hold a hearing by way of
written submissions. In that case, the Tribunal publishes a notice
of the hearing in the Canada Gazette so that other
interested persons can make their views known. In the notice, the
Tribunal establishes the manner and timing for filing the
submissions and the requirement, if appropriate, for the parties to
file an agreed statement of facts.
The Tribunal also hears appeals by way of electronic
transmission, either by teleconference or videoconference.
Teleconference hearings are used mainly to dispose of
preliminary motions and jurisdictional issues where witnesses are
not required to attend or give evidence.
Videoconference hearings are used as an alternative to holding
hearings in locations across Canada or requiring parties from
outside Ontario or Quebec to present themselves at the Tribunal's
premises in Ottawa. The procedures are very similar to hearings
held before the Tribunal at its premises. However, the Tribunal
requires that written materials, exhibits, aids to arguments, etc.,
be filed with the Tribunal prior to the videoconference
hearing.
Usually, within 120 days of the hearing, the Tribunal issues a
decision on the matters in dispute, including the reasons for its
decision.
If the appellant, the respondent or an intervener disagrees with
the Tribunal's decision, the decision can be appealed to the
Federal Court of Canada.
|
| |
|
|
Appeals
Considered
|
During the fiscal year, the Tribunal heard 60 appeals of which
55 related to the Customs Act and 5 to the Excise Tax
Act. Decisions were issued in 64 cases, of which 42 were heard
during the fiscal year.
|
| |
|
| |
Decisions on Appeals
|
| |
Act
|
Allowed
|
Allowed
in Part
|
Dismissed
|
Total
|
| |
Customs Act
|
18 |
1 |
41 |
60 |
| |
Excise Tax Act
|
-
|
-
|
4 |
4 |
| |
SIMA
|
-
|
-
|
-
|
-
|
| |
|
|
| |
Table 1 of this chapter lists the appeal decisions rendered in
the fiscal year.
|
| |
|
Summary of Selected
Decisions
|
The following are summaries of a representative sample of
significant decisions in appeals under section 67 of the Customs
Act. These summaries have been prepared for general information
purposes only and have no legal status.
|
| |
|
|
Reha Enterprises and Cosmetic Import v.
DMNR
AP-98-053 and AP-98-054
Decision:
Appeals dismissed
(October 28, 1999)
|
These were appeals regarding classification from decisions of
the Deputy Minister made under subsection 63(3) of the Customs
Act. Prior to the hearing, the parties agreed that the goods in
issue were not soap, but organic surface-active products and
preparations. The appeals dealt with two products: Ombra and Fa.
The Tribunal had to determine whether Ombra body wash, in various
fragrances, was properly classified under tariff item No.
3305.10.00 as shampoo, as determined by the respondent, or should
have been classified under tariff item No. 3401.11.90 as other
organic surface-active products for toilet use or under tariff item
No. 3401.20.90 as other liquid soap, as claimed by Reha
Enterprises Ltd. It also had to determine whether Fa shower gel, in
various fragrances, was properly classified under tariff item No.
3307.90.00 as other toilet preparations, as determined by the
respondent, or, as argued by counsel for the respondent at the
hearing, under tariff item No. 3307.30.00 as other bath
preparations, or should have been classified under tariff item No.
3401.11.90 as other organic surface-active products for toilet use
or under tariff item No. 3401.20.90 as other liquid soap, as
claimed by Cosmetic Import Co. Limited. It also considered whether
another heading would be more accurate, such as heading No. 34.02,
organic surface-active agents (other than soap).
The Tribunal first considered whether the goods should be
classified as a preparation for use on the hair, i.e. shampoo. It
reviewed the products and the directions for use as a body wash, in
conjunction with the common and ordinary meaning of the word
"shampoo". While the Tribunal accepted that the products may be a
substitute for shampoo, the products were used most notably for
washing the body. The Tribunal was not persuaded to classify the
products as a preparation for the use on the hair or as shampoo in
heading No. 33.05.
The Tribunal examined whether the products should be classified
as organic surface-active products and preparations for toilet use
or as other liquid soaps in heading No. 34.01. The wording to
heading No. 34.01 expressly excludes organic surface-active
products which are not in the form of bars, cakes, moulded pieces
or shapes. The Tribunal was not persuaded to broaden the scope or
coverage of heading No. 34.01 to include more forms than those
expressly provided for in the words of that heading.
The Tribunal then had to consider whether the products should be
classified in heading No. 33.07 as either bath preparations or
toilet preparations. The Tribunal determined that heading No. 33.07
is intended to cover goods which play only a secondary role in the
act of washing one's body and, at best, the soaps or organic
surface-active agents contemplated in this heading would have a
passive role in cleaning the body and only because of their
presence in the bath water. With respect to toilet preparations,
the Tribunal looked at the interpretation of the phrase "toilet
preparations" and was not persuaded that the products, described on
their labels as preparations used for washing oneself, were
properly covered by that expression. Therefore, the products were
not classified in heading No. 33.07.
It was evident to the Tribunal that none of the headings
adequately described the goods in issue. In view of the
difficulties that the Tribunal encountered in attempting to
classify the goods in issue according to the headings proposed by
the parties, the Tribunal reviewed other headings. It found
authority in subsection 67(3) of the Customs Act, which
directs it to "make such order, finding or declaration as the
nature of the matter may require". The Tribunal considered that
this subsection allowed it to classify a product without accepting
either party's choice, in cases where it is appropriate to do so;
in other words, to arrive at what it considers to be the correct
classification. This was consistent with the Tribunal's reasons in
earlier decisions: Research Products/Blankenship of Canada
v. DMNR and Rigel Shipping Canada v. DMNR.
While this happens only occasionally, it is an important tool
available to the Tribunal to ensure that the correct
classification, based on the evidence, is given to a product.
In addition to the classification options proposed by the
parties, the Tribunal also considered the applicability of heading
No. 34.02 as it read before the February 1998 changes. The Tribunal
was of the view that heading No. 34.02 was a reasonable alternative
to consider, as the ones proposed by the parties had significant
obstacles to the classification of the goods in issue. On the face
of it, both Ombra and Fa could fall in this heading. Heading No.
34.02 does not limit the goods in issue as do heading Nos. 34.01
(organic surface-active products in the form of bars, cakes,
moulded pieces or shapes), 33.05 (shampoos) and 33.07 (bath and
toilet preparations). Therefore, the Tribunal was of the view that
it was not unreasonable to consider heading No. 34.02 as one that
might accommodate the classification of the products at the time of
their importation.
The Tribunal agreed that it had to consider the Customs
Tariff as it existed on the date of importation of the goods in
issue. However, it was of the view that it would be irresponsible
to ignore the relevant amendments to the Explanatory Notes to
the Harmonized Commodity Description and Coding System which
help to confirm or clarify the classification of an imported
product. This is particularly so where the classification of
imports is very difficult, if not impossible, taking into account
the heading, the Explanatory Notes, etc. as they were at the
time of importation. The Tribunal was of the view that the 1998
amendments confirmed the appropriateness of classifying the goods
in issue in subheading No. 3402.20 as surface-active preparations
put up for retail sale.
|
| |
|
|
Asea Brown Boveri v.
DMNR
AP-97-137
Decision:
Appeal dismissed
(December 21, 1999)
|
This was an appeal from a decision of the Deputy Minister made
under section 63 of the Customs Act. There were two issues:
(1) whether the respondent's decision under appeal was made in
accordance with section 63 or 64 and, therefore, whether the
Tribunal had jurisdiction to hear the appeal; and (2) whether
the goods in issue qualified for duty relief under Code 2101 as
articles for use in the goods of tariff item No. 9032.89.20 as
process control apparatus, excluding sensors, which converts analog
signals from or to digital signals.
The Tribunal derives its jurisdiction from section 67 of the
Customs Act which, at the relevant time, stated that the
Tribunal could hear appeals of the respondent's decisions made
pursuant to section 63 or 64. If the decision or any aspect of it
before the Tribunal was not one made pursuant to section 63 or 64,
then the Tribunal was of the opinion that it had no jurisdiction to
hear an appeal from that decision or any aspect of it. In this
case, six different types of goods were imported under one customs
invoice. The classification of the goods was deemed to have been
made 30 days after the time the goods were accounted for pursuant
to subsection 58(5). The appellant requested a re-determination
pursuant to paragraph 63(1)(a) in respect of two of the
goods in issue - the resistors and the capacitors. However, the
respondent re-determined the tariff classification of all the
goods.
In the Tribunal's view, the only question properly before it was
whether the resistors and capacitors qualified for duty relief
under Code 2101. It held that, as the respondent re-determined the
classification of the resistors and capacitors as a result of the
appellant's request for re-determination pursuant to
paragraph 63(1)(a) of the Customs Act, a
decision was made by the respondent pursuant to section 63.
Therefore, the appeal on the classification of the resistors and
capacitors was properly before the Tribunal. However, the Tribunal
found that the respondent's re-determination of the classification
of the four other types of goods was not a re-determination
resulting from a request for re-determination by the appellant
pursuant to section 63 nor was it a re-determination made pursuant
to section 64. As there was no decision by the respondent on these
four other types of goods, the Tribunal was not seized of the
matter. The Tribunal also found that it could not declare the
respondent's decision in respect of those four other goods a
nullity. Its jurisdiction is set out in section 67 and, without a
decision of the respondent made under section 63 or 64 in respect
of those four goods, the Tribunal had no jurisdiction to make a
pronouncement in relation to their classification. The Customs
Act does not give the Tribunal the jurisdiction to judicially
review a decision of the respondent. That is a matter for the
Federal Court of Canada.
Once the jurisdictional issue decided, the Tribunal had to
determine whether the resistors and capacitors qualified for duty
relief under Code 2101. Code 2101 applies to articles for use in
the goods in tariff item No. 9032.89.20, which covers process
control apparatus, excluding sensors, which converts analog signals
from or to digital signals. The Tribunal had to determine whether
the resistors and capacitors were "for use in" a process control
apparatus of tariff item No. 9032.89.20. The Tribunal examined
the expression "for use in" found at section 4 of the Customs
Tariff as it was at the time of importation of the goods in
issue. The expression includes "attached to", and the Tribunal
adopted that term as it was used in Sony of Canada v.
DMNR, whereby goods are attached to other goods if they are
"physically connected and are functionally joined" to the latter.
Before deciding whether the goods in issue were physically
connected and functionally joined to process control apparatus, the
Tribunal examined what constituted process control apparatus of
tariff item No. 9032.89.20. The Tribunal was of the view that
"process control" included the functioning of devices that
collectively monitor the system, interpret the data received and
take action to restore the system to pre-set values. Therefore,
devices that participate in control or management decisions engage
in process control. In addition, devices that participate in
certain protective decisions can also be engaging in process
control. The Tribunal was of the view that the control of a single
element of the process, or an aspect of a single element of the
process, may constitute process control. The evidence before the
Tribunal was that the functional unit, composed of the voltage and
current transformers, control relays and circuit breakers, monitors
the transmission of electricity to ensure that the voltage and
other variables are at appropriate settings. The evidence also
showed that the control relays interpret the data received from the
voltage and current transformers and send a signal to other
equipment, such as circuit breakers or switchgear, to direct that
equipment to take action to restore the system to pre-set values.
The Tribunal found that the functional unit, composed of the
voltage and current transformers, control relays and circuit
breakers, participates in management and control decisions and is
process control apparatus under tariff item No. 9032.89.20. The
Tribunal was of the view that, although the resistors and
capacitors were physically connected to the control relays and
circuit breakers, they were not functionally joined to the process
control apparatus and were passive devices. As they did not have an
active role in carrying out directions from the process control
apparatus, they were not functionally joined to the process control
apparatus. Therefore, the resistors and capacitors did not qualify
for duty relief under Code 2101 as goods for use in process control
apparatus of tariff item No. 9032.89.20. The appeal was
dismissed.
|
| |
|
|
Regal Confections v.
DMNR
AP-98-043, AP-98-044 and AP-98-051
Decision:
AP-98-043 and AP-98-051, dismissed
AP-98-044, allowed
(June 25, 1999)
|
These were three appeals regarding the tariff classification of
the following products: candy-filled baby bottles labelled
"Dino·Rocks" (Baby Bottles) in Appeal No. AP-98-043; blister cards
containing a motorized candy dispenser and two packages of PEZ
candy (Power PEZ) in Appeal No. AP-98-044; and clear plastic toy
banks in the shape of a duck (Duck Banks) in Appeal No. AP-98-051.
Appeal Nos. AP-98-043 and AP-98-044 raised the issue of
whether the Baby Bottles and Power PEZ were properly classified
under tariff item No. 1704.90.90 as other sugar confectionery not
containing cocoa, as determined by the respondent, or should have
been classified as other toys, reduced-size ("scale") models and
similar recreational models under tariff item No. 9503.90.00 for
the Baby Bottles, and as other toys, other than of metal,
incorporating a motor under tariff item No. 9503.80.90 for the
Power PEZ, as claimed by the appellant. Appeal No. AP-98-051 raised
the issue of whether the Duck Banks were properly classified under
tariff item No. 3923.90.90 as other plastic containers, as
determined by the respondent, or should have been classified under
tariff item No. 9503.90.00 as other toys, as claimed by the
appellant.
Regarding the Baby Bottles, unable to classify the goods
according to Rule 1 of the General Rules for the Interpretation
of the Harmonized System (the General Rules), the Tribunal
moved to Rule 3 (b), as these goods consisted of more than one
product. The Tribunal had to determine the essential character of
the goods as either toys in heading No. 95.03 or candy in heading
No. 17.04. On balance, the evidence that the Baby Bottles were,
first and foremost, toys was not convincing, rather the bottles
provided novelty packaging that contributed to the marketing of the
candy. These goods were properly classified under tariff item
No. 1704.90.90 as other sugar confectionery not containing
cocoa.
With respect to the Power PEZ, these goods again could not be
classified solely on the basis of Rule 1 of the General Rules. The
Tribunal was directed to Rule 3 (b), given that the blister card
contains the motorized candy dispenser, which could be classified
as a toy, and the two packages of candy, which could be classified
as confectionery. It was the Tribunal's opinion that, for purposes
of classification, novelty packaging was not usually determinative;
however, in the case of the Power PEZ, the novelty was so extensive
that it actually transformed the essential character of the
product. The play value of the Power PEZ predominates over the
candy. It is designed for play prior to the candy being eaten and
even prior to the package being opened. Furthermore, the play value
is also durable, as evidenced by the fact that the Power PEZ
dispenser has a replaceable battery and is a collectible. The
Tribunal, therefore, agreed with the appellant, given the fact that
the play value of the Power PEZ not only endures but also precedes
any eating of the candy. As a result, the Power PEZ should be
classified as other toys, other than of metal, incorporating a
motor under tariff item No. 9503.80.90.
Regarding the Duck Banks, the Tribunal was of the view, based on
Rule 1 of the General Rules, that these goods were properly
classified under tariff item No. 3923.90.90. Although their
many features made them appealing, the Duck Banks were plastic
containers, not toys, at the time of importation. They were used by
the appellant as containers to sell all kinds of candy. Their
secondary use, as premium products for the retailer, was irrelevant
for the purpose of tariff classification. What retailers did with
the Duck Banks when they were empty, whether they put something
else in them or sold them as toys, was merely circumstantial and
had no bearing on the tariff classification of these goods. The
appeals with respect to the Baby Bottles and the Duck Banks were
dismissed. The appeal with respect to the Power Pez was
allowed.
|
1. The Tribunal has made reasonable efforts to ensure that the
information listed is complete. However, since the Tribunal does
not participate in appeals to the Federal Court of Canada, it is
unable to confirm that the list contains all Tribunal decisions
appealed to the Federal Court of Canada between April 1, 1999, and
March 31, 2000.
1. The Tribunal has made reasonable efforts to ensure that the
information listed is complete. However, since the Tribunal does
not participate in appeals to the Federal Court of Canada, it is
unable to confirm that the list contains all appeals that were
decided between April 1, 1999, and March 31, 2000.
| |
CHAPTER
V
|
| |
ECONOMIC, TRADE,
TARIFF AND SAFEGUARD INQUIRIES
|
Introduction
|
The CITT Act contains broad provisions under which the
government or the Minister of Finance may ask the Tribunal to
conduct an inquiry on any economic, trade, tariff or commercial
matter. In an inquiry, the Tribunal acts in an advisory capacity,
with powers to conduct research, receive submissions and
representations, find facts, hold public hearings and report, with
recommendations as required, to the government or the Minister of
Finance.
|
| |
|
Textile
Reference
|
Pursuant to a reference from the Minister of Finance dated July
6, 1994, as amended on March 20 and July 24, 1996, on November
26, 1997, and on August 19, 1999, the Tribunal was directed to
investigate requests from domestic producers for tariff relief on
imported textile inputs for use in their manufacturing operations
and to make recommendations in respect of those requests to the
Minister of Finance.
|
| |
|
Scope of the Reference
|
A domestic producer may apply for tariff relief on an imported
textile input used, or proposed to be used, in its manufacturing
operations. The textile inputs on which tariff relief may be
requested are the fibres, yarns and fabrics of Chapters 51, 52, 53,
54, 55, 56, 58, 59 and 60; certain monofilaments or strips and
textile and plastic combinations of Chapter 39; rubber thread and
textile and rubber combinations of Chapter 40; and products of
textile glass fibres of Chapter 70 of the schedule to the
Customs Tariff. Since July 24, 1996, and at least until July
1, 2002, the following yarns are not included in the textile
reference:
Knitting yarns, solely of cotton or solely of cotton and
polyester staple fibres, measuring more than 190 decitex, of
Chapter 52 or subheading No. 5509.53 other than those used to
make sweaters, having a horizontal self-starting finished edge and
the outer surfaces of which are constructed essentially with 9
or fewer stitches per 2 centimetres (12 or fewer stitches
per inch) measured in the horizontal direction.
|
| |
|
Types of Relief Available
|
The tariff relief that may be recommended by the Tribunal to the
Minister of Finance ranges from the removal or reduction of tariffs
on one or several, partial or complete, tariff lines, textile-
and/or end-use-specific tariff provisions. In the case of requests
for tariff relief on textile inputs used in the manufacture of
women's swimsuits, co-ordinated beachwear and co-ordinated
accessories only, the recommendation could include company-specific
relief. The recommendation could be for tariff relief for either a
specific or an indeterminate period of time. However, the Tribunal
will only recommend tariff relief that is administrable on a
cost-effective basis.
|
| |
|
Process
|
Domestic producers seeking tariff relief must file a request
with the Tribunal. Producers must file with the request either
samples of the textile input for which tariff relief is being
sought or a National Customs Ruling from the CCRA covering the
input. If the Tribunal determines that the request is properly
documented, it will conduct an investigation to determine if it
should recommend tariff relief.
|
| |
|
Filing and Notification of a Request
|
Upon receipt of a request for tariff relief, and before
commencement of an investigation, the Tribunal issues a brief
electronic notice on its Web site announcing the request. The
minimum period of time for the notification of a request before an
investigation is commenced is 30 days.
This notification is designed to increase transparency, identify
potential deficiencies in the request, avoid unnecessary
investigations, provide an opportunity for the domestic textile
industry to contact the requester and agree on a reasonable
domestic source of supply, inform other users of identical or
substitutable textile inputs, prepare the domestic industry to
respond to subsequent investigation questionnaires and give
associations advance time for planning and consultation with their
members.
|
| |
|
Investigations
|
When the Tribunal is satisfied that a request is properly
documented, it commences an investigation. A notice of commencement
of investigation is sent to the requester, all known interested
parties and any appropriate government department or agency, such
as the Department of Foreign Affairs and International Trade, the
Department of Industry, the Department of Finance and the CCRA. The
notice is also published in the Canada Gazette.
In any investigation, interested parties include domestic
producers, certain associations and other persons who are entitled
to be heard by the Tribunal because their rights or pecuniary
interests may be affected by the Tribunal's recommendations.
Interested parties are given notice of the request and can
participate in the investigation. Interested parties include
competitors of the requester, suppliers of goods that are identical
to or substitutable for the textile input and downstream users of
goods produced from the textile input.
To prepare a staff investigation report, the Tribunal staff
gathers information through such means as plant visits and
questionnaires. Information is obtained from the requester and
interested parties, such as a domestic supplier of the textile
input, for the purpose of providing a basis for determining whether
the tariff relief sought will maximize net economic gains for
Canada.
In normal circumstances, a public hearing is not required, and
the Tribunal will dispose of the matter on the basis of the full
written record, including the request, the staff investigation
report and all submissions and evidence filed with the
Tribunal.
The procedures for the conduct of the Tribunal's investigation
envisage the full participation of the requester and all interested
parties. A party, other than the requester, may file submissions,
including evidence, in response to the properly documented request,
the staff investigation report and any information provided by a
government department or agency. The requester may subsequently
file submissions with the Tribunal in response to the staff
investigation report and any information provided by a government
department or agency or other party.
Where confidential information is provided to the Tribunal, such
information falls within the protection of the CITT Act. Only
independent counsel who have filed declarations and confidentiality
undertakings may have access to such confidential information.
|
| |
|
Recommendations to the Minister
|
The Tribunal will normally issue its recommendations, with
reasons, to the Minister of Finance within 120 days from the date
of commencement of the investigation. In exceptional cases, where
the Tribunal determines that critical circumstances exist, the
Tribunal will issue its recommendations within an earlier specified
time frame which the Tribunal determines to be appropriate. The
Tribunal will recommend the reduction or removal of customs duties
on a textile input where it will maximize net economic gains for
Canada.
|
| |
|
Request for Review
|
Where the Minister of Finance has made an order for tariff
relief pursuant to a recommendation of the Tribunal, certain
domestic producers may make a request to the Tribunal to commence
an investigation for the purpose of recommending the renewal,
amendment or termination of the order. A request for the amendment
or termination of the order should specify what changed
circumstances justify such a request.
|
| |
|
Review on Expiry
|
Where the Minister of Finance has made an order for tariff
relief subject to a scheduled expiry date, the Tribunal will,
before the expiry date, issue a formal notice that the tariff
relief provided by the order will expire unless the Tribunal issues
a recommendation that tariff relief should be continued and the
Minister of Finance implements the recommendation. The notice
invites interested parties to file submissions for or against
continuation of tariff relief.
If no opposition to the continuation of tariff relief is
received, upon receipt of submissions and information supporting
the request for continuation of tariff relief, the Tribunal may
decide to recommend the continuation of tariff relief. Conversely,
if no request for continuation of tariff relief is submitted, the
Tribunal may decide to recommend the termination of tariff relief.
If it appears that a more complete review is warranted, the
Tribunal will conduct an investigation to consider whether all
relevant factors which led it to recommend tariff relief continue
to apply and whether extending tariff relief under such conditions
would continue to provide net economic benefits for Canada.
|
| |
|
Annual Status Report
|
In accordance with the terms of reference received by the
Tribunal directing it to conduct investigations into requests from
Canadian producers for tariff relief on imported textile inputs
that they use in their manufacturing operations, the Tribunal
provided the Minister of Finance, on January 27, 2000, with its
fifth annual status report on the investigation process. The
status report covered the period from October 1, 1998, to September
30, 1999.
|
| |
|
Recommendations Submitted During the Fiscal
Year
|
During the fiscal year, the Tribunal issued 6 reports to the
Minister of Finance which related to 8 requests for tariff relief.
In addition, the Tribunal issued one report further to a review of
recommendations that were previously issued. At year end, 5
requests were outstanding, of which investigations had been
commenced in respect of 4 requests. Table 1 at the end of this
chapter summarizes these activities.
|
| |
|
Recommendations in Place
|
By the end of the fiscal year, the Government had implemented
73 recommendations by the Tribunal, of which 66 are still
subject to tariff relief orders. Table 3 provides a summary of
recommendations currently implemented.
The implementation of Tribunal recommendations is made by adding
new tariff items to the Customs Tariff. During the fiscal
year, these tariff items covered imports worth $160 million
(estimated) and provided tariff relief worth $21 million
(estimated), the latter representing a decrease of 16 percent
over 1998-99.
A summary of a representative sample of Tribunal recommendations
issued during the fiscal year follows.
|
| |
|
|
Certain Ring-spun Yarns
TA-98-004
Recommendation:
Tariff relief to be continued for an additional period of three
years
(June 18, 1999)
|
The Tribunal recommended to the Minister of Finance that tariff
relief on importations of certain ring-spun yarns be continued
beyond June 30, 1999, for an additional period of three years. In
its report, the Tribunal noted that there was a broad consensus in
the textile spinning and knitting industries that, as a minimum,
the tariff relief for certain ring-spun yarns should be continued
for an additional period of three years. The Tribunal indicated
that tariff relief had provided domestic users of these yarns with
benefits that were worth millions of dollars each year. The
Tribunal also noted that it did not receive any evidence that could
allow it to conclude that the factors that led it to recommend that
tariff relief be granted had significantly changed since it issued
its original recommendations in 1995 and 1996. The Tribunal
concluded that, in the absence of such evidence, extending tariff
relief should continue to provide net economic gains for
Canada.
|
| |
|
|
Tribal Sportswear Inc.
TR-98-019
Recommendation:
Indeterminate tariff relief
(August 24, 1999)
|
The Tribunal recommended to the Minister of Finance that tariff
relief on importations of woven fabrics of cotton, 3-thread twill,
containing 98 percent by weight of cotton and 2 percent by weight
of elastomeric strip, dyed, weighing more than 200 g/m², of
subheading No. 5209.32, for use in the manufacture of women's
pants, skirts and shorts, be granted for an indeterminate period of
time. In its report, the Tribunal noted that it did not view the
cotton and cotton/polyester fabrics produced by the domestic
industry as being substitutable for the fabrics for which tariff
relief was requested. With regard to the domestic cotton/spandex
fabric that was being developed, the Tribunal noted that market
acceptance and the industry's ability to supply had not, at that
time, been demonstrated. Accordingly, the Tribunal could not
attribute any costs that might be incurred by the domestic industry
to the assessment of the net economic gains for Canada from the
requested tariff relief. The Tribunal concluded that tariff relief
would provide a yearly benefit to Tribal Sportswear Inc. and other
users of the subject fabrics estimated at more than $200,000.
|
| |
|
|
Ballin Inc.
TR-97-012
Recommendation:
Indeterminate tariff relief
(October 27, 1999)
|
The Tribunal recommended to the Minister of Finance that tariff
relief on importations of: (1) woven fabrics, of yarns of different
colours, of polyester filaments mixed solely with polynosic rayon
staple fibres, the 2-ply warp yarns and the single weft yarns
measuring not less than 190 decitex but not more than 250 decitex
per single yarn, the staple fibres measuring not more than 2.4
decitex per single staple fibre, of a weight exceeding 170 g/m², of
subheading No. 5407.93; and (2) woven fabrics, of yarns of
different colours, of polynosic rayon staples fibres, mixed mainly
with polyester filaments or polyester staple fibres, measuring not
less than 85 decitex but not more than 250 decitex per single yarn,
the staple fibres measuring not more than 3.4 decitex per single
staple fibre, weighing at least 120 g/m² but not more than 210
g/m², of subheading No. 5516.23, both for use in the
manufacture of men's trousers and shorts, be granted for an
indeterminate period of time.
The Tribunal was of the view that the polyester/rayon fabrics
and the fabrics made from Tencel or Tencel blends produced by the
domestic industry were not substitutable for the fabrics for which
tariff relief was requested. With regard to the Micro-Diamond
fabric that was under development, the Tribunal did not attribute
any costs that might be incurred by the domestic industry to the
assessment of the net economic gains for Canada from the requested
tariff relief because the said fabric was not directly
substitutable. The Tribunal concluded that, considering that tariff
relief would provide yearly benefits to Ballin Inc. and other users
of the subject fabrics in excess of $500,000, granting the tariff
relief requested would result in net economic benefits for
Canada.
|
|
Request No./
Review No.
|
Expiry No.
(Original Request No.)
|
Requester/Textile Input
|
Tariff Item No./Order in Council
|
Duration
|
|
TR-94-001
|
|
Canatex Industries (Division of Richelieu
Knitting Inc.)
|
5402.41.12 |
Indeterminate tariff relief
|
|
TR-94-004
|
|
Woods Canada Limited
|
5208.52.10 |
Indeterminate tariff relief
|
|
TR-94-010
|
|
Palliser Furniture Ltd.
|
5806.20.10 |
Indeterminate tariff relief
|
|
TR-94-012
|
|
Peerless Clothing Inc.
|
5309.29.20 |
Indeterminate tariff relief
|
|
TR-94-013 and TR-94-016
|
|
MWG Apparel Corp.
|
5208.42.20
5208.43.20
5208.49.20
5513.31.10
5513.32.10
5513.33.10
|
Indeterminate tariff relief
|
|
TR-94-017 and TR-94-018
|
|
Elite Counter & Supplies
|
9943.00.00 |
Indeterminate tariff relief
|
|
TR-95-003
|
|
Landes Canada Inc.
|
5603.11.20
5603.12.20
5603.13.20
5603.14.20
5603.91.20
5603.92.20
5603.93.20
5603.94.20
|
Indeterminate tariff relief
|
|
TR-95-004
|
|
Lingerie Bright Sleepwear (1991) Inc.
|
5208.12.20
5208.52.20
|
Indeterminate tariff relief
|
|
TR-95-005
|
|
Lingerie Bright Sleepwear (1991) Inc.
|
5513.11.10
5513.41.10
|
Indeterminate tariff relief
|
|
TR-95-009
|
|
Peerless Clothing Inc.
|
5408.21.10
5408.21.20
5408.22.21
5408.22.30
|
Indeterminate tariff relief
|
|
TR-95-010 and TR-95-034
|
|
Freed & Freed International Ltd. and
Fen-nelli Fashions Inc.
|
5111.19.10
5111.19.20
|
Indeterminate tariff relief
|
|
TR-95-011
|
|
Louben Sportswear Inc.
|
5408.31.10
5408.32.20
|
Indeterminate tariff relief
|
|
TR-95-012
|
|
Perfect Dyeing Canada Inc.
|
5509.32.10 |
Indeterminate tariff relief
|
|
TR-95-013A
|
|
Doubletex
|
5208.11.30
5208.12.40
5208.13.20
5208.19.30
5208.21.40
5208.22.20
5208.23.10
5208.29.20
5209.11.30
5209.12.20
5209.19.30
5209.21.20
5209.22.10
5209.29.20
|
Indeterminate tariff relief
|
|
TR-95-036
|
|
Canadian Mill Supply Co. Ltd.
|
5208.21.20 |
Indeterminate tariff relief
|
|
TR-95-037
|
|
Paris Star Knitting Mills Inc.
|
5408.24.11
5408.24.91
5408.34.10
5516.14.10
5516.24.10
|
Indeterminate tariff relief
|
|
TR-95-051
|
|
Camp Mate Limited
|
5407.41.10
5407.42.10
5407.42.20
5903.20.22
|
Indeterminate tariff relief
|
|
TR-95-053 and TR-95-059
|
|
Majestic Industries (Canada) Ltd. and Caulfeild Apparel Group
Ltd.
|
5802.11.10
5802.19.10
5802.19.20
|
Indeterminate tariff relief
|
|
TR-95-056
|
|
Sealy Canada Ltd.
|
3921.19.10
5407.69.10
5407.73.10
5407.94.10
5516.23.10
5903.90.21
6002.43.20
|
Indeterminate tariff relief
|
|
TR-95-057 and TR-95-058
|
|
Doubletex
|
5407.51.10
5407.61.92
5407.69.10
5515.11.10
5516.21.10
5516.91.10
|
Indeterminate tariff relief
|
|
TR-95-060
|
|
Triple M Fiberglass Mfg. Ltd.
|
7019.59.10 |
Indeterminate tariff relief
|
|
TR-95-061
|
|
Camp Mate Limited
|
6002.43.30 |
Indeterminate tariff relief
|
|
TR-95-064 and
TR-95-065
|
|
Lady Americana Sleep Products Inc. and el ran Furniture Ltd.
|
6002.43.10 |
Indeterminate tariff relief
|
|
TR-96-003
|
|
Venture III Industries Inc.
|
5407.61.92 |
Indeterminate tariff relief
|
|
TR-96-004
|
|
Acton International Inc.
|
5906.99.21 |
Indeterminate tariff relief
|
|
TR-96-006
|
|
Alpine Joe Sportswear Ltd.
|
P.C. 1998-1118
|
Six-year tariff relief
|
|
TR-96-008 and
TR-96-010 to
TR-96-013
|
|
Les Collections Shan Inc.
|
P.C. 1997-1668
|
Five-year tariff relief
|
|
TR-97-001
|
|
Jones Apparel Group Canada Inc.
|
5407.91.10
5407.92.20
5407.93.10
5408.21.30
5408.22.40
5408.23.20
5408.31.30
5408.32.40
5408.33.10
|
Indeterminate tariff relief
|
|
TR-97-002 and
TR-97-003
|
|
Universal Manufacturing Inc.
|
5208.43.30
5513.41.20
|
Indeterminate tariff relief
|
|
TR-97-006
|
|
Peerless Clothing Inc.
|
5407.51.30
5903.90.22
5903.90.23
5903.90.24
6002.43.40
6002.43.50
|
Indeterminate tariff relief
|
|
TR-97-004, TR-97-007, TR-97-008 and
TR-97-010
|
|
Blue Bird Dress of Toronto Ltd.
|
5407.51.20
5407.52.20
5407.61.94
5407.69.20
|
Indeterminate tariff relief
|
|
TR-97-011
|
|
Australian Outback Collection (Canada) Ltd.
|
5209.31.20
5907.00.16
|
Indeterminate tariff relief
|
|
TR-97-012
|
|
Ballin Inc.
|
5407.93.30
5516.23.20
|
Indeterminate tariff relief
|
|
TR-97-014
|
|
Lenrod Industries Ltd.
|
5603.93.40 |
Indeterminate tariff relief
|
|
TR-97-015,
TR-97-016 and
TR-97-020
|
|
Helly Hansen Canada Ltd.
|
5903.20.24 |
Indeterminate tariff relief
|
|
TR-98-001
|
|
Cambridge Industries
|
5608.19.20 |
Indeterminate tariff relief
|
|
TR-98-002
|
|
Distex Inc.
|
6002.92.20 |
Indeterminate tariff relief
|
|
TR-98-004,
TR-98-005 and
TR-98-006
|
|
Ladcal Investments Ltd., O/A Pintar Manufacturing
Nour Trading House and
T.S. Simms and Company Limited
|
5806.10.20 |
Indeterminate tariff relief
|
|
TR-98-007
|
|
Caulfeild Apparel Group Ltd.
|
5208.43.30 |
Indeterminate tariff relief
|
|
TR-98-016
|
|
Peerless Clothing Inc.
|
5407.93.20 |
Indeterminate tariff relief
|
|
TR-98-017
|
|
Jones Apparel Group Canada Inc.
|
5408.32.50
5408.33.20
5408.34.20
|
Indeterminate tariff relief
|
|
TR-98-019
|
|
Tribal Sportswear Inc.
|
5209.12.30
5209.22.20
5209.32.10
|
Indeterminate tariff relief
|
|
TR-99-002
|
|
Albany International Canada Inc.
|
5405.10.20 |
Indeterminate tariff relief
|
|
TA-98-001
|
TE-97-004
(TR-95-009)
|
Certain dyed woven fabrics of rayon and polyester
|
5408.31.20
5408.32.30
|
Indeterminate tariff relief
|
|
TA-98-002
|
TE-97-003
(TR-94-009)
|
Vinex FR-9B fabric
|
5512.99.10 |
Indeterminate tariff relief
|
|
TA-98-003
|
TE-98-001
(TR-95-014)
|
Woven cut warp pile fabrics
|
5801.35.10 |
Indeterminate tariff relief
|
|
TA-98-004
|
TE-98-002
(TR-94-002 and TR-94-002A)
|
Certain ring-spun yarns
|
5205.14.20
5205.15.20
5205.24.20
5205.26.20
5205.27.20
5205.28.20
5205.35.20
5205.46.20
5205.47.20
5205.48.20
5206.14.10
5206.15.10
5206.24.10
5206.25.10
5509.53.10
5509.53.20
5509.53.30
5509.53.40
|
Three-year tariff relief
|
| |
CHAPTER
VI
|
| |
PROCUREMENT
REVIEW
|
Introduction
|
Suppliers may challenge federal government procurement decisions
that they believe have not been made in accordance with the
requirements of the following: Chapter Ten of NAFTA, Chapter Five
of the AIT or the AGP. The bid challenge portions of these
agreements came into force on January 1, 1994, July 1, 1995,
and January 1, 1996, respectively.
Any potential suppliers who believe that they may have been
unfairly treated during the solicitation or evaluation of bids, or
in the awarding of contracts on a designated procurement, may lodge
a formal complaint with the Tribunal. A potential supplier
with an objection is encouraged to resolve the issue first with the
government institution responsible for the procurement. When this
process is not successful or a supplier wants to deal directly with
the Tribunal, the complainant may ask the Tribunal to consider the
case by filing a complaint within the prescribed time limit.
When the Tribunal receives a complaint, it reviews the
submission against the criteria for filing. If there are
deficiencies, the complainant is given an opportunity to correct
these within a specified time limit. If the Tribunal decides to
conduct an inquiry, the government institution and all other
interested parties are sent a formal notification of the complaint.
An official notice of the complaint is also published in
Government Business Opportunities and the Canada
Gazette. If the contract in question has not been awarded, the
Tribunal may order the government institution to postpone awarding
any contract pending the disposition of the complaint by the
Tribunal, unless the government institution certifies that the
procurement is urgent or that the delay would be against the public
interest.
After receipt of its copy of the complaint, the government
institution responsible for the procurement files a Government
Institution Report (GIR) responding to the allegations.
The complainant is then sent a copy of the GIR and has seven
days to submit comments. These are forwarded to the government
institution and any interveners.
A staff investigation, which can include interviewing
individuals and examining files and documents, may be conducted and
result in the production of a Staff Investigation Report. This
report is circulated to the parties for their comments. Once this
phase of the inquiry is completed, the Tribunal reviews the
information collected and decides whether a hearing should be
held.
The Tribunal then makes a determination, which may consist of
recommendations to the government institution (such as
re-tendering, re-evaluating or providing compensation) and the
award of reasonable costs to a prevailing complainant for filing
and proceeding with the bid challenge and/or costs for preparing
the bid. The government institution, as well as all other parties
and interested persons, is notified of the Tribunal's decision.
Recommendations made by the Tribunal in its determination are to be
implemented to the greatest extent possible.
|
| |
|
| |
Summary of Procurement Review
Activities
|
| |
|
1998-99
|
1999-2000
|
| |
CASES RESOLVED BY OR BETWEEN PARTIES
|
|
|
| |
Resolved Between Parties
|
-
|
-
|
| |
Withdrawn
|
6 |
4 |
| |
Abandoned While Filing
|
4 |
-
|
| |
Subtotal
|
10
|
4
|
| |
INQUIRIES NOT INITIATED OR CONTINUED ON PROCEDURAL
GROUNDS
|
|
|
| |
Lack of Jurisdiction
|
6 |
6 |
| |
Late Filing
|
7 |
9 |
| |
No Valid Basis
|
4 |
13 |
| |
Subtotal
|
17
|
28
|
| |
CASES DETERMINED ON MERIT
|
|
|
| |
Complaint not Valid
|
14 |
13 |
| |
Complaint Valid
|
10 |
14 |
| |
Subtotal
|
24
|
27*
|
| |
IN PROGRESS
|
15 |
9 |
| |
TOTAL
|
66
|
68
|
| |
* The Tribunal actually issued 26 written determinations which
related to 27 procurement complaints.
|
| |
|
Summary of
Selected Determinations
|
During the fiscal year, the Tribunal issued 26 written
determinations of its findings and recommendations which related to
27 procurement complaints. In 14 of the 26 written
determinations, the complaints were determined to be valid or valid
in part. In these cases, various remedies were granted in the form
of cost awards or recommendations. Nine other cases were in
progress at year end. Table 1 at the end of this chapter
summarizes these activities.
Of the cases heard by the Tribunal in carrying out its
procurement review functions, certain decisions stand out from
among the others because of the legal significance of the cases.
Brief summaries of a representative sample of such cases have been
prepared for general information purposes only and have no legal
status.
|
| |
|
|
Polaris Inflatable Boats (Canada)
Ltd.
PR-98-032
Determination:
Complaint valid
(March 8, 1999)
|
The Tribunal made a determination with respect to a complaint
filed by Polaris Inflatable Boats (Canada) Ltd. (Polaris)
concerning a solicitation of the Department of Public Works and
Government Services (the Department). The solicitation was to
establish a National Master Standing Offer for the purchase of a
range of rigid hull inflatable boats for various government
departments and agencies.
Polaris alleged that, contrary to the provisions of NAFTA and
the AIT, certain government departments were applying unspecified
and unannounced criteria in deciding which manufacturer's product
to purchase from a National Master Standing Offer. This action had
the effect of unfairly favouring its dominant competitor.
Having examined the evidence and arguments presented by the
parties and considered the subject matter of the complaint, the
Tribunal determined that the complaint was valid. The Tribunal
recommended that the Department reopen the solicitation to
competition. The Department was to ensure that the solicitation
documents clearly and fully disclosed all the requirements of the
procurement and clearly set out the criteria that would be used in
the evaluation of bids, as well as the method of weighting and
evaluating the criteria.
|
| |
|
|
Keystone Supplies Company
PR-98-034 and PR-98-035
Determination:
Complaints not valid
(April 19, 1999)
|
The Tribunal made a determination with respect to complaints
filed by Keystone Supply Company (Keystone) concerning two
solicitations of the Department for the procurement of shackles,
swivels and chain for the Canadian Coast Guard of the Department of
Fisheries and Oceans.
Keystone alleged that the procurement process unfairly
discriminated against offshore suppliers by requiring testing at a
single Canadian port of entry.
After careful consideration, the Tribunal determined that NAFTA,
the AGP and the AIT did not apply to the goods (from a non-Party to
the agreements) proposed to be supplied by Keystone and that, as
such, the procurement of these goods could not be found to have
been conducted contrary to the requirements set out in the trade
agreements. Therefore, the Tribunal determined that the complaints
were not valid.
|
| |
|
|
Mason·Shaw·Andrew Management
Consultants
PR-99-026
Determination:
Complaint valid
(December 17, 1999)
|
The Tribunal made a determination with respect to a complaint
filed by Mason·Shaw·Andrew Management Consultants (MSA) concerning
a solicitation of the Department on behalf of the Department of
Health. The solicitation was for a study on the business impact
analysis of proposed new tobacco reporting and labelling
requirements for the Department of Health.
MSA alleged that, contrary to the provisions of NAFTA, the
Department failed to use open tendering procedures and, thus,
deprived MSA of equal access to all available information.
Having examined the evidence and arguments presented by the
parties and considered the subject matter of the complaint, the
Tribunal determined, first, that the procurement was for a service
covered by NAFTA and of an amount that exceeded the minimum
required threshold. The Tribunal then determined that the complaint
was valid. The Tribunal recommended that the Department compensate
MSA in the amount of one half of the profit that MSA would have
made had it been awarded the contracts relating to this
procurement.
|
| |
|
|
TrizecHahn Office Properties
Ltd.
PR-99-047
Inquiry not initiated/
Procurement process not initiated
(February 17, 2000)
|
The Tribunal made a decision with respect to a complaint filed
by TrizecHahn Office Properties Ltd. (TrizecHahn) concerning an
alleged solicitation of the Department for property management
services for Canada Place in Edmonton, Alberta.
TrizecHahn alleged that the Department had announced that it
would compete the requirement for property management services for
Canada Place, whereby it was obligated to procure the services on a
sole-source basis from TrizecHahn.
Having examined the evidence contained in the complaint, the
Tribunal decided not to initiate an inquiry into this complaint
because it related to a procurement that had not yet been
initiated, as might have been evidenced by the publication of a
Notice of Proposed Procurement.
|
| |
|
Judicial Review
of Procurement Decisions
|
The Federal Court of Canada dismissed an application by the
Attorney General of Canada to review a decision of the Tribunal in
File Nos. PR-98-012 and PR-98-014 (Corel Corporation) that found
the complaints valid.
The Federal Court of Canada dismissed an application by MIL
Systems (a Division of Davie Industries Inc.) and Fleetway
Inc. to review a decision of the Tribunal in File No. PR-99-034 not
to issue a postponement of award order.
The Federal Court of Canada dismissed an application by Jastram
Technologies Inc. to review a decision of the Tribunal in File No.
PR-98-008 not to accept a complaint for inquiry due to late
filing.
Table 2 lists the procurement decisions that were appealed to or
decided by the Federal Court of Canada during the fiscal year.
|
|
File No.
|
Complainant
|
Date of Receipt of
Complaint
|
Status/Decision
|
|
PR-98-034 and PR-98-035
|
Keystone Supplies Company
|
December 1, 1998
|
Decision issued April 19, 1999
Complaints not valid
|
|
PR-98-037
|
ITS Electronics Inc.
|
January 4, 1999
|
Decision issued April 8, 1999
Complaint not valid
|
|
PR-98-038
|
MIL Systems
|
January 5, 1999
|
Decision issued April 14, 1999
Complaint valid
|
|
PR-98-039
|
Wescam Inc.
|
January 19, 1999
|
Decision issued April 19, 1999
Complaint valid
|
|
PR-98-040
|
Cougar Aviation Limited
|
January 22, 1999
|
Decision issued June 7, 1999
Complaint not valid
|
|
PR-98-042
|
Discover Training Inc.
|
February 1, 1999
|
Decision issued May 17, 1999
Complaint valid in part
|
|
PR-98-045
|
Ruiter Construction Ltd.
|
February 5, 1999
|
Decision issued April 30, 1999
Complaint not valid
|
|
PR-98-046
|
Deloitte & Touche Consulting Group
|
February 8, 1999
|
Decision issued May 4, 1999
Complaint not valid
|
|
PR-98-047
|
Novell Canada, Ltd.
|
February 11, 1999
|
Decision issued June 17, 1999
Complaint valid
|
|
PR-98-050
|
Douglas Barlett Associates Inc.
|
March 1, 1999
|
Decision issued June 7, 1999
Complaint valid
|
|
PR-98-051
|
National Airmotive Corporation
|
March 10, 1999
|
Decision issued June 3, 1999
Complaint dismissed/No jurisdiction
|
|
PR-98-052
|
Marathon Management Company
|
March 11, 1999
|
Decision issued May 26, 1999
Complaint valid
|
|
PR-98-054
|
Mediascan
|
March 22, 1999
|
Not accepted for inquiry/Late filing
|
|
PR-98-055
|
MxI Technologies Ltd.
|
March 31, 1999
|
Complaint withdrawn
|
|
PR-99-001
|
Novell Canada, Ltd.
|
April 8, 1999
|
Decision issued July 7, 1999
Complaint valid
|
|
PR-99-002
|
Northern Micro Inc.
|
April 12, 1999
|
Decision issued July 12, 1999
Complaint not valid
|
|
PR-99-003
|
Pricewaterhousecoopers
|
April 12, 1999
|
Not accepted for inquiry/Late filing
|
|
PR-99-004
|
Detox Environmental Inc.
|
April 14, 1999
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-005
|
Mediascan
|
March 22, 1999
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-006
|
Quality Service International Inc.
|
April 19, 1999
|
Decision issued June 28, 1999
Complaint not valid
|
|
PR-99-007
|
IT/NET
|
April 21, 1999
|
Decision issued July 20, 1999
Complaint valid
|
|
PR-99-008
|
OM Video
|
April 26, 1999
|
Not accepted for inquiry/Late filing
|
|
PR-99-009
|
Offshore Systems Ltd.
|
May 11, 1999
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-010
|
Navair Inc.
|
May 13, 1999
|
Not accepted for inquiry/Late filing
|
|
PR-99-011
|
IBM Canada Ltd./Lotus Development Canada Ltd.
|
May 21, 1999
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-012
|
APG Solutions & Technologies Inc.
|
May 26, 1999
|
Not accepted for inquiry/Late filing
|
|
PR-99-013
|
Akela Multimedia Productions Ltd.
|
May 27, 1999
|
Complaint withdrawn
|
|
PR-99-014
|
Collectcorp. Inc., the Collection House, Allied International
Audit Corp.
|
June 4, 1999
|
Not accepted for inquiry/No jurisdiction
|
|
PR-99-015
|
BMCI Consultants Inc.
|
June 23, 1999
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-016
|
Metro Excavation Inc. and Entreprise Marissa Inc.
|
July 7, 1999
|
Decision issued November 5, 1999-Complaint not valid
|
|
PR-99-017
|
Liftow Limited
|
July 7, 1999
|
Decision issued October 13, 1999-Complaint not valid
|
|
PR-99-018
|
Am-Tech Power Systems Ltd.
|
July 12, 1999
|
Decision issued September 29, 1999-Complaint not valid
|
|
PR-99-019
|
Colebrand Limited
|
July 13, 1999
|
Not accepted for inquiry/Not a designated contract
|
|
PR-99-020
|
IBM Canada
|
July 14, 1999
|
Decision issued November 5, 1999-Complaint valid
|
|
PR-99-021
|
BMCI Consulting Inc.
|
July 28, 1999
|
Decision issued October 20, 1999-Complaint not valid
|
|
PR-99-022
|
KB Electronics Limited
|
August 10, 1999
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-023
|
Novell Canada, Ltd.
|
August 11, 1999
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-024
|
Alcatel Canada Inc.
|
August 30, 1999
|
Decision issued December 7, 1999-Complaint valid
|
|
PR-99-025
|
Alcatel Canada Inc.
|
August 30, 1999
|
Decision issued November 16, 1999-Complaint valid
|
|
PR-99-026
|
Mason·Shaw·Andrew Management Consultants
|
September 18, 1999
|
Decision issued December 17, 1999-Complaint valid
|
|
PR-99-027
|
Navatar
|
September 21, 1999
|
Not accepted for inquiry/Late filing
|
|
PR-99-028
|
TNT Digitizing & Embroidery
|
September 21, 1999
|
Not accepted for inquiry/Late filing
|
|
PR-99-029
|
Interfax Systems Inc.
|
September 21, 1999
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-030
|
Novell Canada, Ltd.
|
October 1, 1999
|
Not accepted for inquiry/Not a designated contract
|
|
PR-99-031
|
Material Resource Recovery Inc.
|
October 8, 1999
|
Not accepted for inquiry/Late filing
|
|
PR-99-032
|
Quatratech Services Inc.
|
October 12, 1999
|
Decision issued January 26, 2000-Complaint not valid
|
|
PR-99-033
|
Pall Aeropower Corporation
|
October 18, 1999
|
Complaint withdrawn
|
|
PR-99-034
|
MIL Systems (a Division of Davie Industries Inc.) and Fleetway
Inc.
|
October 21, 1999
|
Decision issued March 6, 2000-Complaint valid
|
|
PR-99-035
|
Dr. John C. Luik
|
November 9, 1999
|
Decision issued March 28, 2000-Complaint valid
|
|
PR-99-036
|
Unisource Techonology
|
December 8, 1999
|
Accepted for inquiry
|
|
PR-99-037
|
Educom Training Systems Inc.
|
December 16, 1999
|
Accepted for inquiry
|
|
PR-99-038
|
Checker Movers 1994
|
December 16, 1999
|
Not accepted for inquiry/Not a designated contract
|
|
PR-99-039
|
ISO Matrix.com
|
December 17, 1999
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-040
|
Brent Moore & Associates
|
December 20, 1999
|
Accepted for inquiry
|
|
PR-99-041
|
Ruiter Construction Ltd.
|
December 23, 1999
|
Complaint withdrawn
|
|
PR-99-042
|
Canada Live News Agency Inc.
|
January 4, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-043
|
Navatar
|
January 7, 2000
|
Accepted for inquiry
|
|
PR-99-044
|
Navatar
|
January 10, 2000
|
Accepted for inquiry
|
|
PR-99-045
|
Magellan Jacques Whitford
|
January 27, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-046
|
Asia Communications Québec Inc. (AsiaCom)
|
February 8, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-047
|
TrizecHahn Offices Ltd.
|
February 10, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-99-048
|
Tecmotiv Corporation
|
February 24, 2000
|
Not accepted for inquiry/Late filing
|
|
PR-99-049
|
Telus Communications
|
February 25, 2000
|
Accepted for inquiry
|
|
PR-99-050
|
StorageTek Canada Inc.
|
February 28, 2000
|
Accepted for inquiry
|
|
PR-99-051
|
ACE/ClearDefense Inc.
|
March 8, 2000
|
Accepted for inquiry
|
|
PR-99-052
|
Landsdowne Technologies Inc.
|
March 10, 2000
|
Not accepted for inquiry/Not a designated contract
|
|
PR-99-053
|
Rolls-Royce Industries Canada Inc.
|
March 22, 2000
|
Accepted for inquiry
|
| |
CHAPTER
VII
|
| |
SIMA
AMENDMENTS: INQUIRIES AND REVIEWS
|
Amendments to
SIMA
|
Under the amendments to SIMA, the Tribunal will make the
preliminary injury determination currently made by the Commissioner
of the CCRA. The amendments also change the way in which the public
interest is dealt with after a finding of injury. Finally, the
amendments create distinct interim and expiry reviews. In an expiry
review, the Commissioner will make the determination of whether
there is a likelihood of continued or resumed dumping or
subsidizing, a determination now made by the Tribunal under the
current SIMA. The Tribunal will continue to make the determination
of whether the continued or resumed dumping or subsidizing is
likely to cause injury.
This chapter describes how the Tribunal will conduct each of the
four proceedings. The Tribunal has established new or modified
guidelines for these proceedings. The interim guidelines will
contain more details on how parties may participate in the
proceedings.
|
| |
|
Preliminary
Injury Inquiry
|
Subsection 34(2) of SIMA requires the Tribunal to initiate a
preliminary injury inquiry at the same time as the Commissioner
initiates a dumping or subsidizing investigation. The Tribunal will
publish a notice in the Canada Gazette and send a copy of
that notice to the Commissioner and all known interested
persons
In the inquiry, the Tribunal will determine whether the evidence
discloses a "reasonable indication" that the dumping or subsidizing
has caused injury or retardation, or is threatening to cause
injury. The primary evidence will be the information received from
the Commissioner and submissions from parties. The Tribunal will
seek the views of parties on what are the like goods and which
domestic producers comprise the domestic industry. In most cases,
the Tribunal will not issue questionnaires or hold a public
hearing. The Tribunal will make a preliminary determination after
an inquiry of up to 60 days.
Approximately 22 days following the commencement of the inquiry,
the Tribunal will distribute the public information received from
the Commissioner to all parties that filed notices of participation
and the confidential information to counsel who filed declarations
and confidentiality undertakings. This information will include the
Commissioner's reasons for initiation, the public and confidential
versions of the domestic producer's complaint and any other
information that the Commissioner took into consideration when
deciding to initiate an investigation.
Parties opposed to the complaint (importers, exporters and
others) will be invited to file submissions with evidence
approximately 32 days after the commencement of the inquiry. The
complainant and other parties supporting the complaint will have 7
days to make rebuttal submissions.
If the Tribunal finds that there is a reasonable indication that
the dumping or subsidizing has caused injury or retardation, or is
threatening to cause injury, it will make a determination to that
effect, and the Commissioner will continue the dumping or
subsidizing investigation. If the Commissioner subsequently makes a
preliminary determination of dumping or subsidizing, the Tribunal
will commence a final injury inquiry under section 42 of SIMA. If
there is no reasonable indication that the dumping or subsidizing
has caused injury or retardation, or is threatening to cause
injury, the Tribunal will terminate the inquiry and the
Commissioner will terminate the dumping or subsidizing
investigation. The Tribunal will issue reasons 15 days after its
decision to terminate the inquiry.
|
| |
|
Public Interest
Inquiry
|
Subsection 45(1) of SIMA creates two distinct phases in the
consideration of the public interest. Subsection 45(5) clarifies
the options for reducing anti-dumping or countervailing duties if
the Tribunal makes a report to the Minister of Finance recommending
that a reduction in duties would be in the public interest. A new
regulation identifies the factors that the Tribunal may take into
account in its consideration of the public interest.
In the commencement phase, the Tribunal decides whether
there are reasonable grounds to commence a public interest inquiry.
In the investigation phase, the Tribunal conducts its
inquiry. The Tribunal may choose to commence, on its own, a public
interest inquiry immediately after an injury finding, or interested
persons may request a public interest inquiry.
|
| |
|
Commencement Phase
|
Any party to the injury inquiry or any other group or person
affected by the application of the duties may make a written
request for a public interest inquiry no later than 45 days
after the injury finding. The guideline will detail the information
to be included in a request. The key elements will be the
identification of the public interest issue with supporting
information. This may include, among other things, the availability
of goods from other sources; the effects of the duties on domestic
competition, on Canadian downstream producers of the goods and on
access to goods used as inputs by downstream producers of other
goods and services or access to technology; the effects on
availability or prices of goods for consumers; and the effects on
upstream suppliers of the goods. The Tribunal will return requests
that do not meet these requirements for completion within the same
45-day time frame.
When it receives a properly documented request, the Tribunal
will notify all those who were sent a copy of the Tribunal's injury
finding and invite responses. Responses will be due no later than
21 days after the Tribunal's notice of receipt of a request.
No later than 10 days after the deadline for responses, the
Tribunal will decide whether to commence a public interest inquiry.
If it decides to commence an inquiry, it will issue a notice of
commencement of public interest inquiry and publish it in the
Canada Gazette. If the Tribunal decides not to commence a
public interest inquiry, it will inform all persons who filed
requests or responses of that decision. Reasons will be issued
within 15 days of the decision.
|
| |
|
Investigation Phase
|
The Tribunal's notice of inquiry will set out the procedures for
the inquiry. These will vary depending on such factors as the
complexity of the public interest issues raised and the number of
parties involved. There will be an opportunity for parties to file
and reply to submissions. A public hearing will normally be held.
Persons interested in making representations will be required to
make a written request to the Secretary no later than 21 days from
the date of the Tribunal's notice.
In conducting a public interest inquiry, the Tribunal will
examine, in depth, the factors that it considered in reaching a
decision to commence an inquiry. Parties will be invited to
discuss, in their submissions and replies, potential duty reduction
remedies that the Tribunal could apply if it were to be of the
opinion that a reduction of duties would be in the public
interest.
If, on completion of its inquiry, the Tribunal determined that
no reduction or elimination of duties is warranted, it will publish
a brief report with reasons. If, however, the Tribunal concluded
that it is in the public interest to reduce or eliminate the
duties, it will issue a report to the Minister of Finance. The
report will contain specific recommendations, with supporting
reasons, to eliminate or reduce the anti-dumping or countervailing
duties, or a price or prices that are adequate to eliminate injury,
retardation or threat of injury to the domestic industry.
The Tribunal will publish a notice of its report in the
Canada Gazette, and a copy of the report will be sent to all
parties to the inquiry.
|
| |
|
Interim
Review
|
Section 76.01 of SIMA creates a distinct interim review. In
deciding whether an interim review is warranted, the Tribunal will
take into account factors such as whether there is a change in
circumstances or new facts since the order or finding was made. It
will then determine if the order or finding (or any aspect of it)
should be rescinded or continued, with or without amendment. For
example, the domestic industry may have ceased production of like
goods. An interim review may also be warranted where there are
facts that were not put into evidence because they were not
discoverable by the exercise of reasonable diligence during the
inquiry.
|
| |
|
Request for a Review
|
The Minister of Finance, the Commissioner or any other person or
government may make a written request to the Tribunal for an
interim review. The Tribunal will send copies of a properly
documented request to the parties to the previous inquiry or
review. They will have 15 days to file replies. The Tribunal will
send a copy of any confidential requests or replies to counsel who
have filed declarations and confidentiality undertakings. Where
warranted, the Tribunal may consider accepting further submissions
following the replies.
The Tribunal will decide whether an interim review is warranted
approximately 30 days after receiving a request. If the Tribunal
decides that an interim review is not warranted, it will make an
order to that effect and publish it in the Canada Gazette.
It will issue the reasons for its decision approximately
15 days following the decision. If the Tribunal determines
that an interim review is warranted, it will issue a notice of
review setting out the procedures for the review. The notice will
be published in the Canada Gazette and will be sent to all
known interested parties.
|
| |
|
Conduct of an Interim Review
|
The Tribunal will conduct such proceedings as the nature of the
issues warrants. Parties will be given the opportunity to make
written submissions to the Tribunal. The Tribunal may make its
decision solely on the basis of written submissions, or it may
decide to hold a public hearing to receive evidence and submissions
from parties. The proceeding may include the issuance of
questionnaires.
On completion of an interim review, the Tribunal will, for the
review of an entire order or finding, continue, amend or rescind
it. For the partial review of an order or finding, the Tribunal may
make any other order, as the circumstances require. An order which
amends or continues the original order or finding will expire
either: (i) on the date that the original order or finding
expires; or (ii) where an expiry review is commenced before that
date, on the date on which the Tribunal makes its order in that
review.
|
| |
|
Expiry
Review
|
Section 76.03 of SIMA creates a distinct expiry review. The
Tribunal will be responsible for issuing a notice of expiry of an
order or finding, deciding if an expiry review is warranted,
commencing an expiry review, and deciding if an order or finding
should be rescinded or continued, with or without amendment. There
will be three major phases in an expiry review. The first will be
the Tribunal's expiry proceeding to decide whether a review is
warranted. If the Tribunal decides that a review is warranted, the
second phase will be the investigation by the Commissioner to
determine whether there is a likelihood of resumed or continued
dumping or subsidizing if the order or finding expires. Finally, if
the Commissioner determines that such a likelihood exists, the
third phase will be the Tribunal's inquiry into the likelihood of
injury or retardation.
|
| |
|
Expiry Proceeding
|
The Tribunal will issue a notice of expiry at least 10 months
prior to the expiry of the order or finding. Persons and
governments will be invited to submit their views on whether the
order or finding should be reviewed. The notice will give direction
on the issues that should be addressed. These include the
likelihood of a continuation or resumption of dumping or
subsidizing, the likely volume and price ranges of dumped or
subsidized imports, information on the domestic industry's recent
performance, the likelihood of injury to the domestic industry if
the order or finding were allowed to expire, any other developments
affecting, or likely to affect, the performance of the domestic
industry, changes in circumstances, domestically or
internationally, and any other relevant matter.
Submissions will be made 25 days after the notice of expiry. If
there are submissions opposing a review, the Tribunal will
circulate all the submissions to those that filed a submission.
They will have one week to reply. The Tribunal will circulate
confidential submissions to counsel who filed declarations and
confidentiality undertakings. Absent exceptional circumstances, the
Tribunal will not accept any further submissions following the
replies.
On the 50th day after the notice of expiry, the Tribunal will
determine whether a review of the order or finding is warranted. If
the Tribunal determines that a review is warranted, it will issue a
notice of review and notify the Commissioner, interested persons
and governments of its decision. If the Tribunal determines that a
review is not warranted, it will issue an order, and the reasons
for its decision will be issued approximately 15 days following the
order. The notice of review or the order not to review will be
published in the Canada Gazette.
|
| |
|
Notice of Review
|
The notice will set out how the Tribunal will conduct the review
and briefly describe the functions of the Tribunal and those of the
Commissioner in the review. It will also indicate the deadline for
the Commissioner's determination concerning the likelihood of
continued or resumed dumping or subsidizing.
|
| |
|
Commissioner's Investigation
-Dumping or Subsidizing
|
The Commissioner will have 120 days to determine whether the
expiry of the order or finding is likely to result in the
continuation or resumption of dumping or subsidizing. CCRA
guidelines in respect of expiry review investigations will provide
details on the process.
If the Commissioner finds that there is a likelihood of
continued or resumed dumping or subsidizing, the Commissioner will
provide the Tribunal with the reasons for the determination,
information relating to the enforcement of the order or finding and
any other information that has been taken into consideration by the
Commissioner, including replies to questionnaires from exporters,
importers and domestic producers. If the Commissioner finds that
there is no likelihood of continued or resumed dumping or
subsidizing, the Tribunal will issue an order rescinding the order
or finding.
|
| |
|
Tribunal's Inquiry
-Injury
|
The Tribunal will conduct the injury phase of the expiry review
if the Commissioner determines that there is a likelihood of
continued or resumed dumping or subsidizing to determine if the
continued or resumed dumping or subsidizing is likely to result in
injury or retardation. The Tribunal will issue its decision with
reasons approximately 130 days after the Commissioner's
determination.
Public and protected pre-hearing staff reports will be prepared
and, along with the information forwarded by the Commissioner and
other information collected by the Tribunal, will be distributed to
parties that filed notices of participation. Confidential
information and documents will be provided to counsel who filed
declarations and confidentiality undertakings. Parties will be
given an opportunity to make submissions and to request further
information from other parties. A public hearing will normally be
held.
In its inquiry, the Tribunal may take into account the factors
to be set out in the Special Import Measures Regulations.
These include factors such as the likely volume and prices of the
dumped or subsidized goods, the likely performance of the domestic
industry, the likely performance of the foreign industry, the
likely impact of the dumped or subsidized goods on the domestic
industry, anti-dumping or countervailing measures in a country
other than Canada, any changes in market conditions, domestically
or internationally, and any other factors relevant in the
circumstances.
If the Tribunal determines that the continued or resumed dumping
or subsidizing is likely to cause injury or retardation, it will
issue an order continuing the order or finding, with or without
amendment. If the Tribunal determines that the continued or resumed
dumping or subsidizing is not likely to cause injury or
retardation, the order or finding will be rescinded.
|
