The Honourable Paul M. Martin, P.C., M.P.
Minister of Finance
House of Commons
Ottawa, Ontario
K1A 0A6
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, 2001.
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CHAPTER I
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TRIBUNAL HIGHLIGHTS IN
FISCAL YEAR
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Members
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On January 1, 2001, Ms. Patricia M. Close was reappointed to the
position of Vice-Chairperson of the Canadian International Trade
Tribunal (the Tribunal). Prior to her appointment to the Tribunal
in 1997, she was Director of the Tariffs Division at the Department
of Finance. Ms. Close also held various senior positions with the
departments of Industry, Natural Resources and Finance and, on
executive exchanges, with the Bank of Montreal and
Petro-Canada.
On September 19, 2000, Mr. Richard Lafontaine was appointed
Vice-Chairperson of the Tribunal. Mr. Lafontaine was originally
appointed to the position of Member of the Tribunal in 1998. Prior
to his appointment, he was Chair of the Standards Council of
Canada. He also held senior positions with Warnock Hersey
Professional Services Ltd., Lavallin and its successor,
SNC-Lavallin, and Inchcape Testing Services.
On November 10, 2000, Mr. Peter F. Thalheimer was reappointed to
the position of Member of the Tribunal. Prior to his appointment in
1997, he owned a private law practice in Timmins, Ontario, for the
period from 1964 to 1993. Mr. Thalheimer was elected to the
House of Commons in 1993, representing the riding of
Timmins-Chapleau, and served as Vice-Chair of the Standing
Committee on Natural Resources.
On February 19, 2001, Ms. Ellen Fry was appointed to the
position of Member of the Tribunal. Prior to her appointment, she
was General Counsel at the Department of Justice, Client Driven
Services Secretariat. Ms. Fry previously held the position of
General Counsel at the Department of Industry and the Department of
Transport and subsequently at the Department of the Environment
where she managed legal work on trade issues. Ms. Fry also had
experience working in a private law firm.
During the fiscal year, Mr. Raynald Guay resigned as
Vice-Chairperson of the Tribunal and the term of Mr. Arthur B.
Trudeau as temporary Member of the Tribunal expired. The Tribunal
takes this opportunity to recognize these Members' valuable
contribution to the Tribunal's work.
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Senior Staff
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On January 26, 2001, Mr. Gerry Stobo resigned as General Counsel
of the Tribunal to pursue his career in a private law firm. The
Tribunal would like to take this opportunity to recognize Mr.
Stobo's significant contribution to the Tribunal's work and the
quasi-judicial community. He was instrumental in developing, in
conjunction with the Canadian Centre for Management Development, a
training program for members who are newly appointed to federal
boards and tribunals. He was also involved in initiatives relating
to ethics and values in the quasi-judicial environment. Finally,
Mr. Stobo was actively involved in the activities of the Canadian
Bar Association and was elected first President of the Canadian Bar
Association's Public Sector Lawyers' Conference whose objective is
to promote a forum for public sector lawyers whose interests are
different from those of lawyers in private practice.
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Legislative Amendments
to the Special Import Measures Act and the Canadian International
Trade Tribunal Act
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Legislative amendments to the Special Import Measures Act
(SIMA) and the Canadian International Trade Tribunal Act
(CITT Act) came into force on April 15, 2000, bringing changes
to the jurisdiction, procedures and processes of the Tribunal.
In order to familiarize stakeholders with those changes, the
Tribunal issued a series of interim guidelines dealing with
preliminary injury inquiries, public interest inquiries, interim
reviews and expiry reviews. These documents are available on the
Tribunal's Web site (www.citt-tcce.gc.ca).
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Dumping and Subsidizing
Inquiries and Reviews
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In the fiscal year, the Tribunal issued five preliminary
determinations of injury under subsection 37.1(1) of SIMA. One
preliminary injury inquiry was terminated, and one was still in
progress at the end of the year. The Tribunal also issued six
findings following injury inquiries under section 42 of SIMA and
four orders following reviews under section 76. One injury inquiry
was suspended as a result of the acceptance by the Commissioner of
the Canada Customs and Revenue Agency (CCRA) of an undertaking
offered by the exporter of the subject goods. At the end of the
year, there were three inquiries and two reviews in progress.
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Public Interest
Investigations
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On May 1, 2000, the Tribunal, under subsection 43(1) of SIMA,
found that the dumping in Canada of iodinated contrast media used
for radiographic imaging, originating in or exported from the
United States (including the Commonwealth of Puerto Rico)
(NQ-99-003) had caused material injury to the domestic industry.
Having received representations on the question of public interest,
the Tribunal decided to initiate a public interest investigation
under section 45 of SIMA. On August 29, 2000, the Tribunal issued
its report to the Minister of Finance recommending a reduction in
the anti-dumping duties on certain iodinated contrast media from
the United States (including the Commonwealth of Puerto Rico).
On August 1, 2000, the Tribunal, under subsection 43(1) of SIMA,
found that the dumping in Canada of certain refrigerators,
dishwashers and dryers originating in or exported from the United
States (NQ-2000-001) had caused material injury to the domestic
industry. Having received representations on the question of public
interest, the Tribunal determined that there was no public interest
issue that warranted further investigation under section 45 of
SIMA.
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Trade and Tariff
Reference
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Textiles
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During the fiscal year, the Tribunal issued eight reports to the
Minister of Finance concerning requests for tariff relief. Four
requests for tariff relief were in progress at the end of the year.
In addition, the Tribunal's sixth annual status report on the
investigation process was submitted to the Minister of Finance on
January 31, 2001.
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Appeals
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The Tribunal issued decisions on 58 appeals from decisions of
the Department of National Revenue and the CCRA made under the
Customs Act and the Excise Tax Act.
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Procurement
Review
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The Tribunal received 78 complaints during the fiscal year. The
Tribunal issued 28 written determinations of its findings and
recommendations. Nine of these determinations related to cases that
were in progress at the end of fiscal year 1999-2000. In 13 of
the 28 written determinations, the complaints were determined to be
valid or valid in part.
In July 1999, the governments of the Republic of Korea and
Canada signed the Agreement on the Procurement of
Telecommunications Equipment establishing rules and procedures
with respect to government procurement of telecommunications
equipment and incidental services by manufacturers and service
providers of both countries. The agreement also provides for the
application of non-discriminatory rules with respect to the
procurement of telecommunications equipment by listed government
entities. Under the terms of the agreement, the federal government
is required to adopt and maintain bid protest procedures for
procurement that it covers.
Given that the Tribunal is the bid challenge authority for
procurement complaints under the North American Free Trade
Agreement (NAFTA), the Agreement on Internal Trade (AIT)
and the Agreement on Government Procurement (AGP), the
federal government has determined that the Tribunal would be
Canada's bid challenge authority in respect of the Agreement on
the Procurement of Telecommunications Equipment. The
Canadian International Trade Tribunal Procurement Inquiry
Regulations were therefore amended. These amendments came into
force on November 1, 2000.
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Rules of
Procedure
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The revised Canadian International Trade Tribunal Rules
(Rules of Procedure) came into force on April 15, 2000. They
eliminate unnecessary rules, increase efficiency and transparency
and preserve fairness. Procedures have also been modified to
reflect technological changes. The revised Rules of Procedure also
incorporate new rules to accommodate legislative amendments to SIMA
and the CITT Act that came into effect on April 15, 2000. An
unofficial version of the Rules of Procedure is available on the
Tribunal's Web site.
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Access to Tribunal
Notices, Decisions and Publications
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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 also launched a new subscriber alert service. This new
service gives a subscriber the flexibility to choose those areas of
the Tribunal's jurisdiction for which it wants to be notified of
each new posting on the Tribunal's Web site. It also allows
subscribers to register and deregister on-line. This service is
available free of charge.
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Meeting Statutory
Deadlines (Timeliness)
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All the Tribunal's inquiries were completed on time, and
decisions were issued within the statutory deadlines. For appeals
of customs and excise 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.
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1. As a result of a different method of reporting expiries,
expiries for which decisions had not been made prior to the end of
the previous fiscal year are detailed in column one. The fourth
column refers to decisions to review.
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CHAPTER
III
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DUMPING AND
SUBSIDIZING INJURY INQUIRIES AND REVIEWS
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The
Process
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Under SIMA, the CCRA may impose anti-dumping and countervailing
duties when domestic producers are injured by imports of goods into
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.
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Preliminary Injury
Inquiries
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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. If the Commissioner initiates a dumping or subsidizing
investigation, the Tribunal initiates a preliminary injury inquiry
under subsection 34(2) of SIMA. The Tribunal seeks to make all
interested parties aware of the inquiry. It issues a notice of
commencement of preliminary injury inquiry that is published in the
Canada Gazette and forwarded to all known interested
persons.
In the inquiry, the Tribunal determines 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 is the information received from the
Commissioner and submissions from parties. The Tribunal seeks the
views of parties on what are the like goods and which domestic
producers comprise the domestic industry. In most cases, the
Tribunal does not issue questionnaires or hold a public hearing.
The Tribunal makes a preliminary determination after an inquiry of
up to 60 days.
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 makes a determination to that
effect, and the Commissioner continues the dumping or subsidizing
investigation. If there is no reasonable indication that the
dumping or subsidizing has caused injury or retardation, or is
threatening to cause injury, the Tribunal terminates the inquiry,
and the Commissioner terminates the dumping or subsidizing
investigation. The Tribunal issues reasons 15 days after its
determination.
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Preliminary Injury
Inquiries Completed in the Fiscal Year
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The Tribunal completed five preliminary injury inquiries in the
fiscal year. They concerned Certain Grain Corn
(PI-2000-001), Garlic (PI-2000-002), Certain Concrete
Reinforcing Bar (PI-2000-003), Certain Corrosion-resistant
Steel Sheet (PI-2000-005) and Certain Flat Hot-rolled Carbon
and Alloy Steel Sheet and Strip (PI-2000-006). The Tribunal
terminated its inquiry with respect to Pulp-dewatering Screw
Presses (PI-2000-004) after the Commissioner terminated his
dumping investigation. One preliminary injury inquiry was still in
progress at the end of the fiscal year.
Table 1 summarizes the Tribunal's preliminary injury inquiry
activities during the fiscal year.
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Advice Given Under
Section 37 of SIMA
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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.
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.
There were no references under section 33 of SIMA during the
fiscal year.
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Final Injury
Inquiries
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If the Commissioner makes a preliminary determination of dumping
or subsidizing, the Tribunal commences a final injury inquiry under
section 42 of SIMA. The CCRA may levy provisional duties on imports
from the date of the preliminary determination. The Commissioner
continues his investigation to a final determination of dumping or
subsidizing.
As in a preliminary injury inquiry, the Tribunal seeks to make
all interested parties aware of its 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 final injury inquiries, the Tribunal requests
information from interested parties, receives representations and
holds public hearings. The Tribunal's staff carries out extensive
research for each inquiry. The Tribunal sends questionnaires to
domestic manufacturers, importers and purchasers and to foreign
producers. Based primarily on questionnaire responses, the
Tribunal's staff prepares a report that focuses 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.
Parties participating in the proceedings may conduct their own
cases or be represented by counsel. Confidential or
business-sensitive information is protected in accordance with
provisions of the CITT Act.
The Special Import Measures 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, usually starting just before the
Commissioner makes a final determination of dumping or subsidizing.
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.
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Final Injury
Inquiries Completed in the Fiscal Year
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The Tribunal completed six final injury inquiries in the fiscal
year. They concerned Iodinated Contrast Media (NQ-99-003),
Certain Carbon Steel Plate (NQ-99-004), Certain
Refrigerators, Dishwashers and Dryers (NQ-2000-001), Certain
Stainless Steel Round Bar (NQ-2000-002), Waterproof Footwear
and Bottoms (NQ-2000-004) and Certain Grain Corn
(NQ-2000-005). In 1999, the estimated values of the Canadian
markets were $20 million for iodinated contrast media, $520 million
for carbon steel plate, $280 million, $175 million and
$160 million, respectively, for refrigerators, dishwashers and
dryers, $30 million for stainless steel round bar and $100 million
for waterproof footwear. The western Canadian regional market for
grain corn in 1999 was estimated to be $75 million.
The Tribunal suspended its inquiry in Bingo Paper
(NQ-2000-003) following the acceptance of an undertaking by the
Commissioner.
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Iodinated Contrast Media
NQ-99-003
Finding:
Injury
(May 1, 2000)
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This inquiry involved dumped imports from the United States. The
sole domestic producer was Mallinckrodt Canada Inc. (MCI), a wholly
owned subsidiary of Mallinckrodt Inc. Iodinated contrast media is a
medical imaging agent used in X-ray diagnostic procedures.
The Tribunal concluded that dumped imports had caused injury to
MCI in the form of eroded prices and that the injury was material.
The evidence showed aggressive price offers for dumped imports at
several accounts and the loss of a major account by MCI. While
recognizing that other factors contributed to the price declines in
the Canadian market, such as the purchasing power of buying groups,
healthcare budget constraints, product cycles and the phasing out
of patent protection, the Tribunal was of the view that the
magnitude of the price erosion could only be attributed to the
dumping.
In response to a submission that MCI had led prices down, the
Tribunal was of the view that importers could compete with the
domestic industry's prices, but only up to a point where the
product was offered at dumped prices, which caused injury to the
domestic industry. With respect to the fact that the vast majority
of MCI's production was exported, the Tribunal found that the
industry had benefited from its export performance because, by
distributing the fixed costs on a larger volume, it helped offset
the injurious effects of dumping in the domestic market.
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Certain Carbon Steel Plate
NQ-99-004
Finding:
Injury
(June 27, 2000)
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This inquiry concerned dumped imports from Brazil, Finland and
Ukraine, and dumped and subsidized imports from India, Indonesia
and Thailand. There were three domestic producers of carbon steel
plate: Algoma Steel Inc., Stelco Inc. (Stelco) and IPSCO Inc.
(IPSCO). Several exporters from Brazil, Ukraine, India and
Indonesia participated in the inquiry.
The Tribunal found that sales of the dumped and subsidized
subject carbon steel plate at prices substantially below the
domestic producers' and non-subject countries' selling prices had
caused material injury to the domestic industry. The Tribunal was
of the view that the subject imports gained significant sales
volume and market share in 1998 and 1999 at the expense of the
domestic producers. In an effort to regain sales volume and market
share that were lost in late 1998 and in 1999, the domestic
producers continued to reduce transaction prices in order to meet
the lower prices of the subject imports. Together, the price
erosion and the loss in sales volume and market share resulted in a
deterioration of the domestic producers' financial performance.
Exporters of carbon steel plate argued that other factors had
caused injury to the domestic producers. These factors included
supply constraints within the domestic industry, efficiency
enhancements by domestic producers that drove prices down,
increased costs and financial expenses unrelated to plate
production, intra-industry competition and the impact of U.S.
pricing on the Canadian market. The Tribunal reviewed the effects
of these other factors to ensure that it did not attribute to the
subject goods any injury caused by these other factors.
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Certain Refrigerators, Dishwashers and
Dryers
NQ-2000-001
Finding:
Injury
(August 1, 2000)
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This inquiry concerned dumped imports of three kinds of
household appliances, refrigerators, dishwashers and dryers,
manufactured by White Consolidated Industries, Inc. (WCI) and
Whirlpool Corporation (Whirlpool) of the United States. The sole
domestic producer was Camco Inc. (Camco). Several exporters,
importers, distributors and retailers of household appliances and
the Commissioner of Competition participated in the inquiry.
The Tribunal found that dumped imports had caused material
injury to Camco's production of refrigerators, dishwashers and
dryers. In the Tribunal's view, the dumped imports forced Camco to
meet the low prices of the dumped imports or to lose sales. In this
regard, the Tribunal considered that price was a central factor in
the purchaser's decision to buy a specific line of appliances and
that the extent of the dumping afforded imports a great deal of
room to acquire or maintain market share. The evidence showed that
Camco experienced a significant loss of market share as a direct
result of the increased sales of imports at dumped prices. In
addition, the Tribunal found that Camco experienced price
suppression and, to a lesser extent, price erosion. The Tribunal
found that the magnitude of Camco's market share declines in each
of the product markets, especially during a period of market
growth, was material and constituted injury to the production of
like goods by the domestic industry.
While much of the injury occurred in the builder and authorized
builder-distributor (ABD) market segment, the Tribunal also found
that Camco experienced a significant loss of market share in the
retail segment of the market. The Tribunal also found that Camco's
gross margins for refrigerators, dishwashers and dryers declined
significantly. The Tribunal was convinced that these decreases in
gross margins were related, to a significant degree, to the large
and increasing competition with dumped imports.
In considering factors other than dumping that might have caused
injury to Camco, the Tribunal noted that there were almost always
other factors present. It also stated that the dumping need not be
the only or principal cause of the injury, but that the injury
caused by the dumping must be shown to be material. The Tribunal
was not convinced that the other factors that it examined could
explain the large loss of market share for refrigerators,
dishwashers and dryers. The factors included Camco's selling and
marketing practices, business strategies and decisions, selling
policies in the builder and ABD markets, product quality, the
adequacy of Camco's investment and rationalization of production,
export sales and the impact of imports of non-subject appliances
and Camco's lack of success at the Sears account.
The Tribunal excluded from its findings refrigerators with a
capacity of 18.5 cubic feet and above, dishwashers with
stainless steel tubs, gas or electric dryers with controls at the
front, removable tops and chassis designed to be stacked on top of
washers, and refrigerators, dishwashers and dryers destined for use
in the Habitat for Humanity Program.
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Certain Stainless Steel Round
Bar
NQ-2000-002
Finding:
Injury
(October 27, 2000)
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This inquiry involved dumped and subsidized imports from Brazil
and subsidized imports from India. Atlas Specialty Steels (Atlas)
was the sole domestic producer of stainless steel bar. An exporter
and an importer also participated in the inquiry.
After determining that the acquisition of Atlas by Slater Steel
Inc. (Slater) during the inquiry had no bearing on what constitutes
the domestic industry, the Tribunal concluded that Atlas had
suffered a significant deterioration in performance in the form of
lost sales volumes and market share, price erosion and suppression,
and reduced revenue and profitability. Moreover, the injury
suffered by Atlas as a result of imports of the subject goods was
clearly material. The evidence showed that imports of stainless
steel bar from the subject countries increased steadily and
replaced imports from the countries, other than India, subject to
two previous findings in Inquiry Nos. NQ-98-001 and NQ-98-003. As a
consequence, in 1999, Atlas's sales of stainless steel bar declined
sharply, and it lost significant market share. Despite a strong
market in the first half of 2000, Atlas could not increase its
market share.
The Tribunal also found that Atlas's large loss in market share,
along with eroded prices through 1999, had a direct impact on its
financial performance. The deterioration of Atlas's financial
performance in 1999 and the lack of any significant improvement in
the first quarter of 2000 occurred despite the previous injury
findings. Moreover, the Tribunal was not convinced that any of the
other factors examined had contributed to the injury caused by the
subject imports.
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Waterproof Footwear and
Bottoms
NQ-2000-004
Finding:
Threat of Injury
(December 8, 2000)
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This inquiry involved dumped imports from China. The domestic
industry consisted of 10 known producers, 5 of which were members
of The Shoe Manufacturers' Association of Canada and accounted for
about 99 percent of the total domestic production of waterproof
footwear and bottoms. Several importers, as well as the Retail
Council of Canada, participated in the inquiry.
Although dumped imports from China had increased substantially,
albeit from low levels, in the period leading up to the preliminary
determination, the Tribunal was not convinced that they had caused
injury to the domestic industry. A decline in the market for
waterproof footwear, as a result of warmer climatic conditions, had
a significant negative effect on the domestic industry's
performance. Milder weather also led to a change in demand towards
lighter boots, while the focus of the industry's production had
been on the more traditional type of winter boots. Approximately
two thirds of the subject imports consisted of flocked waterproof
footwear, a product that satisfied consumer demand for
lighter-weight waterproof footwear with a fashion flair. Another
product that was imported from China was women's fully waterproof
nylon boots with non-boat-like construction bottoms that also met
similar consumer demands. There were no comparable products
manufactured by the domestic industry. In addition, while there was
some evidence that other dumped imports had a negative impact on
the domestic industry, the Tribunal was of the view that the injury
was not material.
However, the Tribunal considered that the acquisition of the
Sorel brand name by Columbia Sportswear Company (Columbia) from a
major Canadian producer, Kaufman Footwear, Division of William H.
Kaufman Inc., that declared bankruptcy soon after the preliminary
determination, could have serious consequences for the domestic
industry. In fact, the evidence disclosed a real possibility that
Columbia could supply the Canadian market with Sorel footwear
produced in China and offered in Canada at dumped prices. This
could quickly destabilize prices in the traditional Canadian winter
boot market, which had been the mainstay of the Canadian industry.
This, together with China's huge production capacity, strong export
orientation and history of dumping, led the Tribunal to conclude
that the domestic industry would face a threat of material injury
from dumped imports from China. The Tribunal excluded from its
finding flocked waterproof footwear and women's fully waterproof
nylon boots with non-boat-like construction bottoms.
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Certain Grain Corn
NQ-2000-005
Finding:
No Injury
(March 7, 2001)
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This inquiry involved dumped and subsidized imports from the
United States into Canada for use or consumption west of the
Manitoba-Ontario border. The producers represented by the Manitoba
Corn Growers Association Inc. accounted for about 92 percent of the
western Canadian production of grain corn. Several importers and
users of grain corn also participated in the inquiry.
The Tribunal noted that the injury standard for a regional
market is very stringent. The evidence must disclose that the
subject goods have injured the producers of "all or almost all"
grain corn production in Western Canada.
In this regard, the Tribunal found that dumped and subsidized
imports from the United States had caused the prices of corn sold
in Western Canada to decline, causing financial injury to many
domestic producers. However, the Tribunal also found that there was
a certain proportion of commercial production that had not been
materially injured. Evidence showed that some producers were able
to achieve better than average prices for their corn despite the
presence of dumped and subsidized imports from the United States.
In addition, certain major corn users pay a higher-than-average
price for domestic corn because it has certain qualities or
characteristics that they require for their operations. It was
apparent that some producers were able to achieve reasonable rates
of return, even in the 1999-2000 crop year when U.S. import
prices were at their lowest levels.
In addition, the Tribunal identified another category of corn
grower that was not affected by dumped and subsidized imports in
the same way as producers that operate in the commercial market.
The Tribunal noted that diversified farmers who have livestock
operations and who also grow their own corn for feed are able to
achieve certain synergies between their animal and grain
operations. The evidence showed that they have costs of production
that are much lower than the industry average. On-farm users are
also effectively insulated from most market price fluctuations.
This price protection, combined with their lower-than-average costs
of production, puts them on quite a different footing from
commercial corn growers as far as the effects of dumped and
subsidized imports are concerned. Moreover, corn grown for on-farm
feed use was a significant and growing part of the western Canadian
corn-growing industry, comprising as much as 30 percent of total
production according to some estimates.
Thus, while many domestic producers that sold their corn on the
commercial market had been injured by the subject imports, when the
non-injured production represented by on-farm use was combined with
the portion of commercial sales that had achieved reasonable
returns, there was little doubt that the "all or almost all" injury
threshold had not been met in this case.
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Inquiries in
Progress at the End of the Fiscal Year
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There were three inquiries in progress at the end of the fiscal
year: Garlic, Fresh or Frozen (NQ-2000-006), Certain
Concrete Reinforcing Bar (NQ-2000-007) and Certain
Corrosion-resistant Steel Sheet (NQ-2000-008).
The inquiry on garlic concerns dumped imports from China and
Vietnam. There are over 100 producers of garlic, most of whom are
represented by the Garlic Growers Association of Ontario.
The inquiry on concrete reinforcing bar concerns dumped imports
from Indonesia, Japan, Latvia, Moldova, Poland, Chinese Taipei and
Ukraine. The Canadian producers of concrete reinforcing bar are
Stelco, Co-Steel Inc., Gerdau Courtice, Gerdau MRM Steel, Ispat
Sidbec Inc. (Ispat Sidbec) and Slater. Two exporters are
parties to the inquiry.
The inquiry on corrosion-resistant steel sheet concerns dumped
imports from China, Malaysia, the Russian Federation, South Africa
and Chinese Taipei, and dumped and subsidized imports from India.
The Canadian producers of corrosion-resistant steel sheet are
Dofasco Inc., Stelco, Sorevco and Continuous Colour Coat Limited.
Several importers, exporters and the government of an exporting
country are parties to the inquiry.
Table 2 summarizes the Tribunal's final injury inquiry
activities during the fiscal year.
|
| |
|
Public Interest
Inquiry Under Section 45 of SIMA
|
The Tribunal may initiate a public interest inquiry following a
finding of injury caused by dumped or subsidized imports. The
Tribunal may decide, either as a result of a request from an
interested person or on its own initiative, that there are
reasonable grounds to consider that the imposition of part or all
of the duties may not be in the public interest. The Tribunal then
conducts a public interest inquiry pursuant to section 45 of SIMA.
The result of this inquiry may be a report to the Minister of
Finance recommending that the duties be reduced and by how much.
The Tribunal received two requests for a public interest inquiry
during the fiscal year.
After the Tribunal's finding of injury in Iodinated Contrast
Media (NQ-99-003), several interested persons, including
medical associations, public health advocates, radiologist
associations, hospitals, buying groups, importers and the
Commissioner of Competition, made representations that the Tribunal
should initiate a public interest investigation. MCI, the sole
domestic producer, opposed an investigation. After considering
these representations, the Tribunal was of the view that a number
of factors existed which, taken together, demonstrated a public
interest concern worthy of further investigation. The Tribunal
commenced a public interest investigation (PB-2000-001) on June 15,
2000.
The Tribunal's investigation included a public hearing, where it
heard testimony from witnesses representing the parties that had
expressed an interest in the matter. After the investigation, the
Tribunal reported to the Minister of Finance that it was of the
opinion that the imposition of the anti-dumping duties in the full
amount on contrast media was not in the public interest. The
report, filed on August 29, 2000, included a recommendation for the
reduction of the duties and a description of how the recommendation
should be implemented.
The Tribunal determined that a reduction of the anti-dumping
duties would address the concern that a large increase in prices of
contrast media would lead to pressures on hospital budgets, which
would result in a reduction of the number of procedures that could
be undertaken on patients. A reduction of the duties would also
enable both Nycomed Amersham Canada Ltd. and Bracco Diagnostics
Canada Inc. to continue to be an alternative to MCI for buyers of
contrast media, thus addressing the public interest concern that
radiologists require a choice of products in order to provide the
greatest safety and comfort for patients. On the other hand, a
price for imported contrast media that would be somewhat higher
than during the injury inquiry period would maintain a level of
protection from injurious dumping for the domestic industry and
provide scope for MCI to increase its revenues.
The Tribunal determined a "public interest price" for contrast
media that would balance the various public interests. Although
this public interest price was higher than recent market prices, it
was much less than the estimated full duty-paid price. The effect
of the implementation of the Tribunal's recommendation would be the
reduction of normal values by more than 60 percent. The
recommendation was based on the CCRA's existing method of
anti-dumping enforcement and duty collection.
On August 29, 2000, the Tribunal received requests from several
appliance retailers, importers and exporters and an environmental
group for a public interest inquiry to eliminate or reduce the
anti-dumping duties applied as a result of the Tribunal's injury
findings in Certain Refrigerators, Dishwashers and Dryers
(NQ-2000-001). On September 12, 2000, the domestic producer and an
importer made submissions opposing a public interest inquiry.
On October 3, 2000, in its consideration (PB-2000-002), the
Tribunal concluded that it was not convinced that there was a
public interest that warranted further investigation. Although
price increases normally occur after the removal of injurious
dumping, price competition in the Canadian market continued to be
strong among a number of suppliers of appliances, including WCI and
Whirlpool. The weighted average margins of dumping were relatively
low, and consumers continued to have access to a full range of
products. For the Tribunal to initiate a public interest
investigation, it must see clear and compelling evidence of effects
or potential effects that extend beyond the commercial interests of
industry players into the broader public domain.
|
| |
|
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 importer rulings in the fiscal
year.
|
| |
|
Requests for an
Interim Review
|
The Tribunal may review its findings of injury or orders at any
time, on its own initiative or at the request of the Minister of
Finance, the Commissioner or any other person or government
(section 76.01 of SIMA). The Tribunal commences an interim review
where one is warranted and determines if the finding or order (or
any aspect of it) should be rescinded or continued to its expiry
date, with or without amendment.
An interim review may be warranted where there is a reasonable
indication that sufficient new facts have arisen or that there has
been a sufficient change in the circumstances that led to the
finding or order. For example, since the finding or order, the
domestic industry may have ceased production of like goods or
foreign subsidies may have been terminated. An interim review may
also be warranted where there are sufficient facts that, although
in existence, were not put into evidence during the previous review
or inquiry and were not discoverable by the exercise of reasonable
diligence at that time.
There were two requests for interim reviews of two findings in
the fiscal year.
On February 15, 2000, the Garlic Growers Association of Ontario
requested a review of the Tribunal's finding in Fresh Garlic
(NQ-96-002) to extend the coverage of the finding to a full
calendar year, from the period of July 1 to December 31 during
which the finding now applies. On June 27, 2000, the Tribunal
decided that, because it did not have the jurisdiction to expand
the scope of the finding, an interim review was not warranted
(RD-99-002).
On April 15, 2000, Shaw Industries, Inc. (Shaw) filed a request
for an interim review of the Tribunal's order in Machine Tufted
Carpeting (RR-96-004). Shaw was seeking an exclusion for
certain carpeting manufactured using the patented Zimmer Chromojet
jet dye technology. On August 20, 2000, the Tribunal decided that a
review of the order was not warranted (RD-2000-001). The Tribunal
found that future domestic production was imminent and well
documented and that there was no likelihood of an amendment to the
order if an interim review were conducted.
|
| |
|
Expiry
Reviews
|
Subsection 76.03(1) of SIMA provides that a finding or order
expires after five years, unless an expiry review has been
initiated. Not later than 10 months before the expiry date of the
order or finding, the Secretary publishes a notice of expiry in the
Canada Gazette. The notice invites persons and governments
to submit their views on whether the order or finding should be
reviewed and gives direction on the issues that should be addressed
in the submissions. The Tribunal initiates a review of the order or
finding, as requested, if it determines that such a review is
warranted. It then issues a notice of review and notifies the
Commissioner of its decision. The notice of expiry review is
published in the Canada Gazette and forwarded to all known
interested parties.
During the fiscal year, the Tribunal issued three notices of
expiry. The Tribunal decided that expiry reviews were warranted in
two cases and initiated reviews. In Certain Stainless Steel
Welded Pipe (LE-2000-03), there was no request for the
initiation of an expiry review.
The purpose of an expiry review is to determine whether
anti-dumping or countervailing duties remain necessary. There are
two phases in an expiry review. The first phase is the
investigation by the Commissioner to determine whether there is a
likelihood of resumed or continued dumping or subsidizing if the
finding or order expires. If the Commissioner determines that such
a likelihood exists with respect to any of the goods, the second
phase is the Tribunal's inquiry into the likelihood of injury or
retardation. If the Commissioner determines that such a likelihood
does not exist for any of the goods, the Tribunal does not consider
those goods in its subsequent determination of the likelihood of
injury and issues an order rescinding the order or finding with
respect to those goods.
The Tribunal's procedures in expiry reviews are similar to those
in final injury inquiries.
Upon completion of an expiry 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.
|
| |
|
Expiry Reviews
Completed in the Fiscal Year
|
In the fiscal year, the Tribunal completed four expiry
reviews.
On May 1, 2000, the Tribunal continued its order in Women's
Boots and Women's Shoes (RR-99-003) respecting dumped imports
from China, with an amendment to rescind the portion respecting
women's shoes. The Shoe Manufacturers' Association of Canada,
representing domestic producers, importers and the Retail Council
of Canada participated in the expiry review.
On June 5, 2000, the Tribunal continued its order in Certain
Carbon Steel Welded Pipe (RR-99-004) respecting dumped imports
from Korea. Stelco, IPSCO, Ispat Sidbec and an importer
participated in the expiry review.
On September 13, 2000, the Tribunal continued its order in
Whole Potatoes (RR-99-005) respecting dumped imports into
British Columbia from the United States. The B.C. Vegetable
Marketing Commission, representing growers, and the Washington
State Potato Commission, representing exporters, participated in
the expiry review.
On November 3, 2000, the Tribunal continued its orders in
Refined Sugar (RR-99-006) respecting dumped imports from
Denmark, Germany, the Netherlands, the United Kingdom and the
United States and subsidized imports from the European Union. The
Tribunal made generic certain brand-, producer- or
importer-specific exclusions granted in the initial inquiry, and
its orders excluded one additional product. The Canadian Sugar
Institute, representing domestic producers, the Canadian Sugar Beet
Producers' Association Inc., the Canadian Sugar Users Coalition,
several food manufacturers and importers, the Commissioner of
Competition and the United States Beet Sugar Association
participated in the expiry review.
|
| |
|
Expiry Reviews in
Progress at the End of the Fiscal Year
|
Two expiry reviews were in progress at the end of the fiscal
year. They were reviews of the orders in: (1) Certain Oil and
Gas Well Casing (RR-2000-001) respecting dumped imports from
Korea and the United States; and (2) Carbon Steel Welded
Pipe (RR-2000-002) respecting dumped imports from Argentina,
India, Romania, Chinese Taipei, Thailand, Venezuela and Brazil.
Table 3 summarizes the Tribunal's expiry review activities
during the fiscal year. Table 4 lists Tribunal findings and orders
in force as of March 31, 2001.
|
| |
|
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 a review by a NAFTA binational panel. Table 5 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 for
review by a binational panel in the fiscal year.
During the fiscal year, the Federal Court of Canada affirmed the
Tribunal's orders in Certain Corrosion-resistant Steel Sheet
(RR-98-007). Requests to the Federal Court of Canada for judicial
review in Certain Cold-rolled Steel Sheet (RR-97-007) were
discontinued. At the end of the fiscal year, the Federal Court of
Canada had not yet heard applications to review the Tribunal's
orders in Refined Sugar (RR-99-006).
During the fiscal year, binational panels affirmed the
Tribunal's order (United States) in Certain Copper Pipe
Fittings (RR-97-008) and its order (United States) in
Certain Cold-rolled Steel Sheet (RR-97-007). At the end of
the fiscal year, the proceeding relating to the application to
review the Tribunal's finding (United States) in Iodinated
Contrast Media (NQ-99-003) had been suspended, and a binational
panel had not yet heard an application to review the Tribunal's
finding (Mexico) in Carbon Steel Plate (NQ-97-001) and its
findings (United States) in Certain Refrigerators, Dishwashers
and Dryers (NQ-2000-001).
|
| |
|
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
intergovernmental 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-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, Chinese Taipei, 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
|
Chinese Taipei
|
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
|
Chinese Taipei and China
|
NQ-92-002
(December 11, 1992)
|
|
NQ-97-002
|
April 29, 1998
|
Certain Prepared Baby Foods
|
United States
|
|
|
NQ-98-001
|
September 4, 1998
|
Certain Stainless Steel Round Bar
|
Germany, France, India, Italy, Japan, Spain, Sweden, Chinese
Taipei and United Kingdom
|
|
|
RR-98-001
|
November 18, 1998
|
Preformed Fibreglass Pipe Insulation
|
United States
|
NQ-93-002
(November 19, 1993)
|
|
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)
|
|
NQ-98-003
|
June 18, 1999
|
Certain Stainless Steel Round Bar
|
Korea
|
|
|
RR-98-005
|
June 22, 1999
|
12-gauge Shotshells
|
Czech Republic and Republic of Hungary
|
NQ-93-005
(June 22, 1994)
|
|
NQ-98-004
|
July 2, 1999
|
Certain Flat Hot-rolled Carbon and Alloy Steel Sheet
Products
|
France, Romania, Russian Federation and Slovak Republic
|
|
|
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-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)
|
|
NQ-99-003
|
May 1, 2000
|
Iodinated Contrast Media
|
United States (including the Commonwealth of Puerto Rico)
|
|
|
RR-99-003
|
May 1, 2000
|
Women's Boots
|
China
|
RR-94-003
(May 2, 1995)
NQ-89-003
(May 3, 1990)
|
|
RR-99-004
|
June 5, 2000
|
Carbon Steel Welded Pipe
|
Korea
|
RR-94-004
(June 5, 1995)
RR-89-008
(June 5, 1990)
ADT-6-83
(June 28, 1983)
|
|
NQ-99-004
|
June 27, 2000
|
Certain Carbon Steel Plate
|
Brazil, Finland, India, Indonesia, Thailand and Ukraine
|
|
|
NQ-2000-001
|
August 1, 2000
|
Certain Refrigerators, Dishwashers and Dryers
|
United States (WCI and Whirlpool)
|
|
|
RR-99-005
|
September 13, 2000
|
Whole Potatoes
|
United States
|
RR-94-007
(September 14, 1995)
RR-89-010
(September 14, 1990)
CIT-16-85
(April 18, 1986)
ADT-4-84
(June 4, 1984)
|
|
NQ-2000-002
|
October 27, 2000
|
Certain Stainless Steel Round Bar
|
Brazil and India
|
|
|
RR-99-006
|
November 3, 2000
|
Refined Sugar
|
United States, Denmark, Germany, Netherlands, United Kingdom and
European Union
|
NQ-95-002
(November 6, 1995)
|
|
NQ-2000-004
|
December 8, 2000
|
Waterproof Footwear and Bottoms
|
China
|
|
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 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 his 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. The Tribunal publishes a notice of the hearing in the
Canada Gazette to allow other interested persons to attend.
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 to allow other
interested persons to participate. 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 argument, 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 46 appeals of which
25 related to the Customs Act and 21 to the Excise Tax
Act. Decisions were issued in 58 cases, of which 29 were heard
during the fiscal year.
|
| |
|
| |
Decisions on
Appeals
|
| |
Act
|
Allowed
|
Allowed
in Part
|
Dismissed
|
Total
|
| |
Customs Act
|
12 |
5 |
19 |
36 |
| |
Excise Tax Act
|
15 |
-
|
7 |
22 |
| |
|
| |
Table 1 of this chapter lists the appeal decisions rendered in
the fiscal year.
|
| |
|
Summary of
Selected Decisions
|
Of the many cases heard by the Tribunal in carrying out its
appeal functions, several decisions stand out, either because of
the particular nature of the product in issue or because of the
legal significance of the case. Brief summaries of a representative
sample of such appeals follow, two of which were heard under the
Customs Act and one under the Excise Tax Act. These
summaries have been prepared for general information purposes only
and have no legal status.
|
| |
|
|
GFT Mode Canada
v.
DMNR
AP-96-046 and AP-96-074
Decision:
Motion dismissed
(May 18, 2000)
|
This was a preliminary motion in appeals made under subsection
67(1) of the Customs Act from redeterminations made by the
CCRA in respect of the value for duty of imported goods. In these
decisions, the respondent assessed duty on payments made by the
appellant to the licensors as "royalties" pursuant to paragraph
48(5)(a) of the Customs Act. In his brief, the
respondent argued that, in the alternative, a portion of the fees
paid pursuant to the sublicence and licence agreements should be
added to the price paid or payable as an assist.
In the motion, the appellant requested that the Tribunal strike
out the respondent's brief and that the Tribunal allow the appeals
on the basis of the remaining documentation on file. The appellant
argued that the respondent's pleadings did not establish a prima
facie case. The appellant also argued that the respondent could
not, in an appeal before the Tribunal, present grounds for the
assessment of duty that were not covered by the respondent's
redetermination.
The Tribunal was of the view that this motion, dealing with the
nature of an appeal under section 67 of the Customs Act,
raised three main issues: (1) whether the Tribunal had jurisdiction
to strike out pleadings and decide an appeal on a preliminary
motion; (2) whether the Tribunal should consider the respondent's
alternative argument that the payments made by the appellant to the
licensors were assists; and (3) whether the Tribunal should strike
out the respondent's pleadings and allow the appeals.
On the first question, the appellant argued that the Tribunal
had jurisdiction under subsection 17(2) of the CITT Act and rules
5, 18(1)(f) and 24 of the Rules of Procedure to consider the
motion. As for the respondent, he argued that the Tribunal did not
have jurisdiction to hear a preliminary motion to strike out
pleadings other than with respect to jurisdictional issues. The
Tribunal took the position that section 67 of the Customs
Act does not give the parties the unrestricted right to a
hearing, even when one is unnecessary. In the Tribunal's view,
section 67 should not be interpreted to mean that the Tribunal
cannot control the procedure by which an appeal is determined.
Therefore, the Tribunal was of the view that it had jurisdiction,
on a preliminary motion, to strike out pleadings and dismiss an
appeal, but would only do so when it was "plain and obvious" or
"beyond doubt" that the pleadings disclosed no reasonable cause of
action.
With respect to the issue of whether the Tribunal should
consider the respondent's alternative argument that the payments
made by the appellant to the licensors were assists, the appellant
submitted that the respondent could not raise an alternative ground
for the assessment of duties, i.e. one that was not part of the
respondent's redeterminations pursuant to subsection 63(3) of the
Customs Act, which forms the basis of these appeals. The
appellant argued that the decision of the Supreme Court of Canada
in Continental Bank of Canada v. Canada
(Continental Bank), a tax case, applied to decisions of the
Tribunal, precluding the respondent from raising new arguments
before the Tribunal. The appellant also argued that the Tribunal,
on its own initiative, could not come to a decision in a customs
appeal that is different from the respondent's redetermination or
one that was argued by the appellant. The respondent argued that an
appeal pursuant to section 67 of the Customs Act is made
from the respondent's redetermination or reappraisal, not his
reasons for that decision. Whether the payments made by the
appellant to the licensors were dutiable as "royalties" or as
"assists" constituted the reasons for the decision.
It was the Tribunal's view that, in an appeal, the respondent
may argue alternative or new grounds for the value for duty of
goods in support of his redetermination which were not part of the
reasons for his redetermination. The Tribunal considered that
Continental Bank did not apply to the circumstances of the
present appeals, given that the respondent had, in that case,
attempted to raise a new ground in support of his redetermination
at the appellate level. The Tribunal, by contrast, is a "court of
first instance" where evidence is heard, witnesses are
cross-examined and argument is made. Pursuant to section 67 of the
Customs Act, the Tribunal is given a broad jurisdiction to
make "such order, finding or declaration as the nature of the
matter may require". Therefore, the Tribunal was of the view that
the respondent could raise alternative grounds for his decision. In
the Tribunal's view, whether an item is dutiable arises from the
application of the provisions of the Customs Act, not by
virtue of the respondent's redetermination. The Tribunal's
objective in hearing an appeal is to apply the valuation sections
of the Customs Act to the evidentiary record presented at
the hearing in order to ascertain the proper value for duty of the
goods.
Dealing with the third issue before it, i.e. whether it should
strike out the respondent's pleadings and allow the appeals, the
Tribunal was of the view that the present case was not one in which
it was "plain and obvious" or "beyond doubt" that the pleadings
disclosed no reasonable cause of action. This standard had not been
met, as the legal principles at issue that concern the "value for
duty" under the Customs Act had not yet been settled.
Further, the factual underpinnings of the case were also in dispute
and had not been proven. As such, the Tribunal concluded that a
full hearing should be held in this matter.
The motion was dismissed. The Tribunal's decision is currently
under appeal.
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Western Construction
J-1 Contracting
Penney Construction
S M Construction
Labrador Construction
RDN Construction
Provincial Paving
Terra Nova Industries
Triple C Holdings/Penney Investments
McNamara Construction
Modern Paving
Pyramid Construction and Clifford Sheaves Construction
v.
MNR
AP-99-093 to AP-99-102 and AP-2000-010 to AP-2000-012
Decision:
Appeals allowed
(November 20, 2000)
|
These were appeals made pursuant to section 81.19 of the
Excise Tax Act of assessments of the Minister with respect
to excise tax imposed on diesel fuel used for heating aggregate
rock in the manufacture of asphalt. The appellants carried on
business in Newfoundland and conducted, among other things, road
construction work using asphalt manufactured or produced by them in
portable asphalt drum mixing plants. In this case, the Tribunal had
to determine whether the fuel oil that was intended for use and
actually used by the appellants to heat aggregate rock in the
manufacture of asphalt was "heating oil" within the definition of
"diesel fuel" found in subsection 2(1) of the Excise Tax Act
and, consequently, whether the fuel oil so used was exempt from the
excise tax.
The appellants and the respondent provided the Tribunal with an
agreed statement of facts with respect to the use of the fuel oil
and the manufacturing process. In addition, a senior advisor in
fuels and additives at Petro-Canada was qualified as an expert in
the petroleum fuel standards used in Canada and testified on the
appellants' behalf. The expert witness provided explanations
regarding the standards for heating fuel oil (HFO) adopted by one
of the Canadian General Standards Board committees, the Committee
on Middle Distillate Fuels. He further indicated that the standard
for HFO was, in fact, the national standard in Canada and was used
without modification by the Government of Canada for its purchases
of heating oil. He testified that the standard for HFO specified
that type 0 to 6 fuel oils could be used for the generation of
heat for both domestic and industrial purposes. When asked to
define what was commonly understood by the expression "used for
industrial purposes", he testified that it could be any industrial
use and gave examples of several types of non-domestic
applications, such as in asphalt dryers.
The appellants argued that the standard for HFO was
representative of the common understanding of the industry. The
appellants also noted that fiscal statutes, such as the Excise
Tax Act, were no longer to be construed by a strictly literal
method and were to be interpreted according to the principles that
apply to all legislation. The respondent submitted that the
appellants did not indend to use or did not actually use the fuel
oil as heating oil and that, therefore, it was not exempt from the
provisions of the Excise Tax Act. The respondent urged the
Tribunal to follow the Tariff Board's ruling in Canadian
Utilities v. DMNRCE (Canadian Utilities), in
which it attributed to the term "heating" the meaning of raising
the temperature in buildings for human convenience. Furthermore,
the respondent submitted that the jurisprudence clearly indicated
that a statute must be construed according to the ordinary meaning
of the words when the provision is clear and unambiguous, which was
the case here. The respondent argued that the term "heating oil"
was defined in dictionaries as fuel oil used in domestic heating
units or for residential heating.
As there is no definition of the term "heating oil" in the
Excise Tax Act, the Tribunal had to determine how it was to
be interpreted. The Tribunal was of the view that the evidence
adduced in these appeals clearly led to the conclusion that the
term "heating oil" had to be construed according to the terminology
given by people familiar with the petroleum industry. The evidence
before the Tribunal was that the HFOs covered by the national
standards were intended for use in oil-burning equipment for the
generation of heat for domestic and industrial purposes. The
Tribunal was also of the view that "industrial purposes" could
refer to the heating of aggregate rock in the manufacture of
asphalt. The Tribunal was also convinced that this approach fairly
reflected the object of the Excise Tax Act and the intention
of Parliament. In view of the legislative and definitional
evolution with respect to the term "heating oil", the Tribunal felt
that this case could be distinguished from the Canadian
Utilities decision. Therefore, the Tribunal found that the fuel
oil used by the appellants to heat aggregate rock in the
manufacture of asphalt was heating oil and was exempt from excise
tax under the Excise Tax Act.
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Sharp Electronics of Canada
v.
DMNR
AP-98-092
Decision:
Appeal allowed
(7 June 2000)
|
This was an appeal from a decision of the Deputy Minister of
National Revenue made under section 63 of the Customs Act
regarding the tariff classification of photocopier toner
cartridges. The issue in this appeal was whether the toner
cartridges imported by the appellant were properly classified in
heading No. 37.07 of Schedule I to the Customs Tariff as
chemical preparations for photographic uses, as determined by the
respondent, or should have been classified in heading No. 90.09 as
parts and accessories of photocopying apparatus, as claimed by the
appellant. The photocopier toner cartridges in issue were
temporarily attached to photocopiers in order to transfer toner
contained in the cartridge into the toner hopper of photocopiers.
The toner was used in the photocopying process to make the image
being photocopied visible on plain paper.
The Tribunal heard the expert testimony of a staff member of the
Technical Education Department at Sharp Electronics Canada Ltd.,
who developed instructional courses for the company. Explanations
were given regarding the functioning of the toner cartridges, their
specific design and their different components. The appellant
argued that the toner cartridges were "parts" because they were
committed for use with particular types of photocopiers and could
remain attached to the photocopiers while in operation. In support
of its argument, the appellant referred to two Classification
Opinions published by the World Customs Organization (WCO). The
appellant argued that these opinions classified two types of toner
cartridges, one with moving parts and the other without moving
parts, as parts and accessories of photocopying apparatus. The
respondent argued, among other things, that the toner cartridges
were not parts or accessories, since they were not essential to the
photocopying process. With respect to the Classification Opinions
of the WCO, it was the respondent's position that the cartridges in
issue were distinct from those mentioned in the Classification
Opinions, as they dealt with cartridges with moving parts, while
the toner cartridges in issue did not have moving parts.
While heading No. 37.07 would appear to cover the goods in
issue, the Tribunal was persuaded that the goods should be
classified under tariff item No. 9009.90.90 as parts and
accessories of photocopying apparatus. The Tribunal was of the view
that the cartridges were attached to specific models of
photocopiers and enhanced their effectiveness. The cartridges
facilitated the delivery of toner to the photocopier without
spillage. Pursuant to Rule 1 of the General Rules for the
Interpretation of the Harmonized System, the Tribunal concluded
that Note 2 to Chapter 90, which states that parts and accessories,
if suitable for use solely or principally with a particular kind of
machine, are to be classified with the machines, instruments or
apparatus of that kind, directed the classification of the goods in
issue under tariff item No. 9009.90.90. The Tribunal also relied
upon the Classification Opinions presented by the appellant. In the
Tribunal's view, the evidence indicated that the cartridges were
classifiable under tariff item No. 9009.90.90 as accessories of
photocopying apparatus. For these reasons, the appeal 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, 2000, and
March 31, 2001.
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, 2000, and March 31, 2001.
| |
CHAPTER
V
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ECONOMIC, TRADE,
TARIFF AND SAFEGUARD INQUIRIES
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Introduction
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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.
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Textile
Reference
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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.
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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.
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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.
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Process
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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.
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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.
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Investigations
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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.
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Recommendations to the Minister
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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 that 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.
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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.
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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 that led it to recommend tariff relief continue to
apply and whether extending tariff relief under such conditions
would continue to provide net economic gains for Canada.
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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 31, 2001, with its
sixth annual status report on the investigation process. The
status report covered the period from October 1, 1999, to September
30, 2000.
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Recommendations Submitted During the Fiscal
Year
|
During the fiscal year, the Tribunal issued 8 reports to the
Minister of Finance, which related to 8 requests for tariff relief.
In addition, the Tribunal issued 1 report further to a
reconsideration of a recommendation issued previously by the
Tribunal. At year end, 4 requests were outstanding, of which an
investigation had been commenced in respect of 1 request. Table 1
at the end of this chapter summarizes these activities.
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Recommendations in Place
|
By the end of the fiscal year, the Government had implemented
75 recommendations by the Tribunal, of which 68 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 $170 million
(estimated) and provided tariff relief worth $23 million
(estimated), the latter amount representing an increase of 10
percent over 1999-2000.
A summary of a representative sample of Tribunal recommendations
issued during the fiscal year follows.
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Peerless Clothing
TR-99-004
Recommendation: Indeterminate tariff relief
(July 28, 2000)
|
The Tribunal recommended to the Minister of Finance that tariff
relief be granted for an indeterminate period of time on
importations of: (1) woven fabrics, solely of combed wool with
average fibre diameters of 17.5 microns or less and of combed fine
animal hair, measuring 100 decitex or less per single yarn,
containing not less than 7 percent by weight of fine animal hair,
as certified by the exporter, of a weight of
140 g/m2 or more but not exceeding 300
g/m2, of subheading No. 5112.11 or 5112.19, for use in
the manufacture of men's suits, suit-type jackets, blazers, vests
(waistcoats) and trousers; and (2) woven fabrics, solely of combed
wool and of combed fine animal hair, containing not less than 15
percent by weight of fine animal hair, as certified by the
exporter, of a weight of 140 g/m2 or more but not
exceeding 300 g/m2, of subheading No. 5112.11 or
5112.19, for use in the manufacture of men's sports jackets.
In its report, the Tribunal noted that Peerless's ability to
source wool/fine animal hair fabrics offshore had contributed to
the enormous succes of suits made from lightweight and year-round
fabrics. The Tribunal further noted that Cleyn & Tinker, a
domestic manufacturer of worsted fabrics was not in the niche
market of the very fine wool/fine animal hair blends, but rather in
the broader market of wool fabrics. This led the Tribunal to
believe that Cleyn & Tinker was not now, nor would it be in the
foreseeable future, in a position to produce and supply, in
commercial quantities, the very fine wool/fine animal hair fabrics
required by Peerless, and that tariff relief for these fabrics
would provide net economic gains to Canada. Turning to sports
jackets, the Tribunal noted that the fabrics for this end use are
generally made from coarser yarns and that the content of fine
animal hair is usually higher than that for suit fabrics. While it
noted that Cleyn & Tinker had some jacket fabrics containing 10
to 20 percent fine animal hair that were in production or under
development, the Tribunal was of the view that these fabrics
represented a very small portion of Cleyn & Tinker's overall
activity and were only available in a limited range of patterns and
colours. Consequently, the Tribunal recommended that tariff relief
be provided for this type of fabric as it would provide net
economic gains to Canada, but applied a 15 percent threshold with
regard to the minimum percentage of fine animal hair that these
fabrics should contain.
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Coloridé
TR-99-006
Recommendation: Indeterminate tariff relief
(July 27, 2000)
|
The Tribunal recommended to the Minister of Finance that tariff
relief be granted for an indeterminate period of time on
importations of single filament yarn, solely of nylon, of
subheading No. 5402.41, for use in the manufacture of hair colour
charts.
The Tribunal noted that, based on the information on file, it
appeared unlikely that Plastifil, a domestic producer, could, in
the foreseeable future, sell a given volume of yarn to Coloridé,
even if the customs duty were to remain in effect. Moreover, the
Tribunal noted that, to make its extrusion line more profitable,
Plastifil seemed more interested in exploiting other markets, such
as fishing yarn and sewing thread. Consequently, the Tribunal was
of the view that the limited costs that the domestic industry may
eventually incur as a result of this tariff relief would be more
than offset by future gains for Coloridé.
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JMJ Fashions
TR-99-008
Recommendation: Indeterminate tariff relief
(October 27, 2000)
|
The Tribunal recommended to the Minister of Finance that tariff
relief be granted for an indeterminate period of time on
importations of woven fabric, having a 3/2 right hand twill weave
with a steep twill line of approximately 63 degrees, dyed,
solely of single non-textured polyester filaments, with a twist
exceeding 1,250 turns per metre in the warp and the weft, having
"S" twist yarns in the warp and two "S" twist yarns followed by two
"Z" twist yarns alternating in the weft, of a weight not exceeding
250 g/m2, of subheading No. 5407.61, for use in the
manufacture of women's blouses, jackets, pants, skirts and
dresses.
The Tribunal saw little cost in the requested tariff relief
being granted, as it did not view the fabrics currently produced
domestically by Consoltex as being substitutable for the subject
fabric. With regard to the fabric that was under development by
Consoltex, the Tribunal noted that Consoltex's ability to supply
and market acceptance had not, as yet, been demonstrated.
Accordingly, the Tribunal could not attribute any costs that might
be incurred by Consoltex, and concluded that tariff relief would
provide a yearly benefit to JMJ of more than $150,000.
|
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Request No./
Review No.
|
Expiry No.
(Original Request No.)
|
Requester/Textile Input
|
Tariff Item No./Order in Council
|
Duration
|
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TR-94-001
|
|
Canatex Industries (Division of Richelieu
Knitting Inc.)
|
5402.41.12 |
Indeterminate
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TR-94-004
|
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Woods Canada Limited
|
5208.52.10 |
Indeterminate
|
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TR-94-010
|
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Palliser Furniture Ltd.
|
5806.20.10 |
Indeterminate
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TR-94-012
|
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Peerless Clothing Inc.
|
5309.29.20 |
Indeterminate
|
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TR-94-013 and TR-94-016
|
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MWG Apparel Corp.
|
5208.42.20
5208.43.20
5208.49.20
5513.31.10
5513.32.10
5513.33.10
|
Indeterminate
|
|
TR-94-017 and TR-94-018
|
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Elite Counter & Supplies
|
9943.00.00 |
Indeterminate
|
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TR-95-003
|
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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
|
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TR-95-004
|
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Lingerie Bright Sleepwear (1991) Inc.
|
5208.12.20
5208.52.20
|
Indeterminate
|
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TR-95-005
|
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Lingerie Bright Sleepwear (1991) Inc.
|
5513.11.10
5513.41.10
|
Indeterminate
|
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TR-95-009
|
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Peerless Clothing Inc.
|
5408.21.10
5408.21.20
5408.22.21
5408.22.30
|
Indeterminate
|
|
TR-95-010 and TR-95-034
|
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Freed & Freed International Ltd. and
Fen-nelli Fashions Inc.
|
5111.19.10
5111.19.20
|
Indeterminate
|
|
TR-95-011
|
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Louben Sportswear Inc.
|
5408.31.10
5408.32.20
|
Indeterminate
|
|
TR-95-012
|
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Perfect Dyeing Canada Inc.
|
5509.32.10 |
Indeterminate
|
|
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
|
|
TR-95-036
|
|
Canadian Mill Supply Co. Ltd.
|
5208.21.20 |
Indeterminate
|
|
TR-95-037
|
|
Paris Star Knitting Mills Inc.
|
5408.24.11
5408.24.91
5408.34.10
5516.14.10
5516.24.10
|
Indeterminate
|
|
TR-95-051
|
|
Camp Mate Limited
|
5407.41.10
5407.42.10
5407.42.20
5903.20.22
|
Indeterminate
|
|
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
|
|
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
|
|
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
|
|
TR-95-060
|
|
Triple M Fiberglass Mfg. Ltd.
|
7019.59.10 |
Indeterminate
|
|
TR-95-061
|
|
Camp Mate Limited
|
6002.43.30 |
Indeterminate
|
|
TR-95-064 and
TR-95-065
|
|
Lady Americana Sleep Products Inc. and el ran Furniture Ltd.
|
6002.43.60 |
Indeterminate
|
|
TR-96-003
|
|
Venture III Industries Inc.
|
5407.61.92 |
Indeterminate
|
|
TR-96-004
|
|
Acton International Inc.
|
5906.99.21 |
Indeterminate
|
|
TR-96-006
|
|
Alpine Joe Sportswear Ltd.
|
P.C. 1998-1118
|
Six year s
|
|
TR-96-008 and
TR-96-010 to
TR-96-013
|
|
Les Collections Shan Inc.
|
P.C. 1997-1668
|
Five year st
|
|
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
|
|
TR-97-002 and
TR-97-003
|
|
Universal Manufacturing Inc.
|
5208.43.30
5513.41.20
|
Indeterminate
|
|
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
|
|
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
|
|
TR-97-011
|
|
Australian Outback Collection (Canada) Ltd.
|
5209.31.20
5907.00.16
|
Indeterminate
|
|
TR-97-012
|
|
Ballin Inc.
|
5407.93.30
5516.23.20
|
Indeterminate
|
|
TR-97-014
|
|
Lenrod Industries Ltd.
|
5603.93.40 |
Indeterminate
|
|
TR-97-015,
TR-97-016 and
TR-97-020
|
|
Helly Hansen Canada Ltd.
|
5903.20.24 |
Indeterminate
|
|
TR-98-001
|
|
Cambridge Industries
|
5608.19.20 |
Indeterminate
|
|
TR-98-002
|
|
Distex Inc.
|
6002.92.20 |
Indeterminate
|
|
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
|
|
TR-98-007
|
|
Caulfeild Apparel Group Ltd.
|
5208.43.30 |
Indeterminate
|
|
TR-98-016
|
|
Peerless Clothing Inc.
|
5407.93.20 |
Indeterminate
|
|
TR-98-017
|
|
Jones Apparel Group Canada Inc.
|
5408.32.50
5408.33.20
5408.34.20
|
Indeterminate
|
|
TR-98-019
|
|
Tribal Sportswear Inc.
|
5209.12.30
5209.22.20
5209.32.10
|
Indeterminate
|
|
TR-99-002
|
|
Albany International Canada Inc.
|
5404.10.20 |
Indeterminate
|
|
TR-99-004
|
|
Peerless Clothing Inc.
|
5112.11.20
5112.11.30
5112.19.20
5112.19.30
|
Indeterminate
|
|
TR-99-006
|
|
Coloridé Inc.
|
5402.41.15 |
Indeterminate
|
|
TA-98-001
|
TE-97-004
(TR-95-009)
|
Certain dyed woven fabrics of rayon and polyester
|
5408.31.20
5408.32.30
|
Indeterminate
|
|
TA-98-002
|
TE-97-003
(TR-94-009)
|
Vinex FR-9B fabric
|
5512.99.10 |
Indeterminate
|
|
TA-98-003
|
TE-98-001
(TR-95-014)
|
Woven cut warp pile fabrics
|
5801.35.10 |
Indeterminate
|
|
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 years
|
| |
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, the AGP, or the Agreement on the Procurement of
Telecommunications Equipment. The bid challenge portions
of these agreements came into force on January 1, 1994,
July 1, 1995, January 1, 1996, and November 1, 2000,
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 retendering,
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
|
| |
|
1999-2000
|
2000-2001
|
| |
CASES RESOLVED BY THE PARTIES
|
|
|
| |
Resolved Between Parties
|
-
|
-
|
| |
Withdrawn
|
4 |
5 |
| |
Abandoned While Filing
|
-
|
1 |
| |
Subtotal
|
4
|
6
|
| |
INQUIRIES NOT INITIATED OR CONTINUED ON PROCEDURAL
GROUNDS
|
|
|
| |
Lack of Jurisdiction
|
6 |
6 |
| |
Late Filing
|
9 |
8 |
| |
No Valid Basis
|
13 |
17 |
| |
Subtotal
|
28
|
31
|
| |
CASES DETERMINED ON MERIT
|
|
|
| |
Complaint Not Valid
|
13 |
15 |
| |
Complaint Valid
|
14 |
13 |
| |
Subtotal
|
27
|
28 |
| |
IN PROGRESS
|
9 |
22 |
| |
TOTAL
|
68
|
87
|
| |
|
|
|
Summary of
Selected Determinations
|
During the fiscal year, the Tribunal issued 28 written
determinations of its findings and recommendations, which related
to 28 procurement complaints. In 13 of the 28 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. Twenty-two 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 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.
|
| |
|
|
TELUS Integrated
Communications
PR-2000-017 and PR-2000-035
Determination:
Complaints valid in part
(November 2, 2000)
|
The Tribunal made a determination with respect to two complaints
filed by TELUS Integrated Communications Inc. (TELUS) concerning a
solicitation by the Correctional Service of Canada (CSC). The
solicitation was for the installation and operation, at each
correctional facility in Canada, of telephone equipment and
software and the associated telephone service (Inmate Telephone
System).
TELUS alleged that: (1) contrary to a provision of the AIT, the
CSC selected a supplier whose proposal was not compliant with the
mandatory requirements stipulated in the Request for Proposal
(RFP); (2) the RFP did not clearly identify the requirements of the
procurement and the criteria to be used in the evaluation of bids
and the methods of weighting and evaluating the criteria; and (3)
the procurement discriminated among potential suppliers, in that
not all potential suppliers had access to certain critical
information concerning the CSC's requirements.
Having examined the evidence and arguments presented by the
parties and considered the subject matter of the complaint, the
Tribunal determined that the complaints were valid in part. The
Tribunal recommended that the CSC award the contract to TELUS, the
only compliant bidder in response to this solicitation.
|
| |
|
|
K-Lor Contractors Services
PR-2000-023
Determination:
Complaint not valid
(November 23, 2000)
|
The Tribunal made a determination with respect to a complaint
filed by K-Lor Contractors Services Ltd. (K-Lor) concerning a
solicitation of the Department of Public Works and Government
Services (the Department) for the provision of services for the
construction of a secure landfill site in Argentia,
Newfoundland.
K-Lor alleged that, contrary to the AIT, the Department
improperly rejected its tender for failing to provide the required
"Certification of Mandatory Site Visit", which, K-Lor claims, it
did include in its bid documents.
After consideration, the Tribunal determined that the Department
did not act contrary to the AIT when it declared K-Lor's bid
non-responsive. Therefore, the Tribunal determined that the
complaint was not valid.
|
| |
|
|
AT&T Canada
PR-2000-024
Determination:
Complaint valid
(November 27, 2000)
|
The Tribunal made a determination with respect to a complaint
filed by AT&T Canada Corp. (AT&T) concerning a solicitation
of the Department on behalf of the Department of Industry. The
solicitation was for the provision of asynchronous transfer mode
services.
AT&T alleged that, contrary to the provisions of NAFTA, the
AIT and the AGP, the Department failed to apply the tendering
procedures in a non-discriminatory manner. In its analysis, the
Tribunal emphasized that the purpose of Chapter Five of the AIT is
to establish a framework that will ensure equal access to
procurement for all Canadian suppliers. The Tribunal determined
that discrimination against suppliers is contrary to the AIT, even
if the discrimination is not made on the basis of province or
region. The Tribunal did not determine whether NAFTA and the AGP
were applicable to the procurement in issue.
Having examined the evidence and arguments presented by the
parties and considered the subject matter of the complaint, the
Tribunal found that certain provisions of the RFP, adding costs to
the price of the non-incumbent bidders' proposals, were
discriminatory in their effects. Therefore, the Tribunal determined
that the AIT had been breached and that the complaint was valid.
The Tribunal recommended that the Department, in evaluating the
proposals received in response to this solicitation and in
identifying a successful bidder to be recommended for contract
award, eliminate the effects of the costs that were identified as
being contrary to the AIT.
|
| |
|
|
E.H. Industries
PR-2000-026
Inquiry not initiated/ No reasonable indication of a
breach
(October 30, 2000)
|
The Tribunal made a decision with respect to a complaint filed
by E.H. Industries Limited (EHI) concerning a solicitation of the
Department on behalf of the Department of National Defence. The
solicitation is for the provision of 28 basic vehicles,
related ship alterations and long-term in-service support to
replace the current CH124 Sea King helicopters.
EHI alleged that the Department discriminated against it and its
helicopter, the Cormorant, by choosing a "lowest priced compliant"
selection criterion and by failing to take into account the
additional costs of operating two separate fleets of different
helicopters.
Having examined the evidence contained in the complaint, the
Tribunal decided not to initiate an inquiry into this complaint
because the complaint did not disclose a reasonable indication that
the Department had acted contrary to the AIT. The AIT does not
require that the government use a certain type of selection method
and nothing in the AIT requires the government to purchase a
particular type or brand of product simply because it already owns
some of that product or brand. In addition, the procurement was at
the "letter of interest" stage and, therefore, the final
specifications and selection criteria had not yet been set.
|
| |
|
Judicial Review
of Procurement Decisions
|
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-99-036
|
Unisource Techonology
|
December 8, 1999
|
Decision issued April 5, 2000
Complaint not valid
|
|
PR-99-037
|
Educom Training Systems Inc.
|
December 16, 1999
|
Decision issued May 3, 2000
Complaint not valid
|
|
PR-99-040
|
Brent Moore & Associates
|
December 20, 1999
|
Decision issued May 4, 2000
Complaint not valid
|
|
PR-99-043
|
Navatar
|
January 7, 2000
|
Decision issued May 30, 2000
Complaint not valid
|
|
PR-99-044
|
Navatar
|
January 10, 2000
|
Decision issued May 30, 2000
Complaint valid
|
|
PR-99-049
|
Telus Communications
|
February 25, 2000
|
Complaint withdrawn
|
|
PR-99-050
|
StorageTek Canada Inc.
|
February 28, 2000
|
Decision issued May 29, 2000
Complaint valid
|
|
PR-99-051
|
ACE/ClearDefense Inc.
|
March 8, 2000
|
Decision issued June 30, 2000
Complaint valid
|
|
PR-99-053
|
Rolls-Royce Industries Canada Inc.
|
March 22, 2000
|
Decision issued August 4, 2000
Complaint valid
|
|
PR-2000-001
|
APS-Antian Professional Services
|
April 7, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-002
|
FirstMark Technologies Ltd.
|
April 18, 2000
|
Not accepted for inquiry/Not a designated entity
|
|
PR-2000-003
|
Canadian Computer Rentals
|
April 18, 2000
|
Decision issued August 3, 2000
Complaint valid
|
|
PR-2000-004
|
Kildonan Associates Inc.
|
April 25, 2000
|
Decision issued July 20, 2000
Complaint not valid
|
|
PR-2000-005
|
Radiant Point Inc.
|
April 27, 2000
|
Decision issued September 11, 2000
Complaint valid in part
|
|
PR-2000-006
|
Arp Services
|
May 11, 2000
|
Not accepted for inquiry/Not a designated contract
|
|
PR-2000-007
|
FMD International Inc.
|
May 18, 2000
|
Decision issued August 22, 2000
Complaint not valid
|
|
PR-2000-008
|
Brookfield LePage Johnson Controls Facility Management
Services
|
May 25, 2000
|
Decision issued September 6, 2000
Complaint valid
|
|
PR-2000-009
|
Crain-Drummond Inc.
|
May 29, 2000
|
Decision issued August 18, 2000
Complaint not valid
|
|
PR-2000-010
|
Thomson-CSF Systems Canada Inc.
|
May 30, 2000
|
Decision issued October 12, 2000
Complaint not valid
|
|
PR-2000-011
|
Western Star Trucks Inc.
|
May 31, 2000
|
Decision issued September 11, 2000
Complaint not valid
|
|
PR-2000-012
|
Sirius Consulting Group Inc.
|
June 13, 2000
|
Abandoned while filing
|
|
PR-2000-013
|
Valley Associates Inc.
|
June 13, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-014
|
Via Safe
|
June 14, 2000
|
Not accepted for inquiry/Not a designated contract
|
|
PR-2000-015
|
Trans-Cycle Industries Inc.
|
June 14, 2000
|
Complaint withdrawn
|
|
PR-2000-016
|
Radio Holland (Canada) Ltd.
|
June 15, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-017
|
TELUS Integrated Communications Inc.
|
June 20, 2000
|
Decision issued November 2, 2000
Complaint valid in part
|
|
PR-2000-018
|
Xwave Solutions Inc.
|
June 28, 2000
|
Decision issued September 26, 2000
Complaint not valid
|
|
PR-2000-019
|
TELUS Integrated Communications Inc.
|
June 29, 2000
|
Decision issued November 10, 2000
Complaint not valid
|
|
PR-2000-020
|
Sicom Systems Ltd.
|
June 30, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-021
|
Brookfield LePage Johnson Controls Facility Management
Services
|
June 30, 2000
|
Decision issued September 6, 2000
Complaint valid
|
|
PR-2000-022
|
MIL Systems/Fleetway Inc.
|
July 6, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-023
|
K-Lor Contractors Services Ltd.
|
July 11, 2000
|
Decision issued November 23, 2000
Complaint not valid
|
|
PR-2000-024
|
AT&T Canada Corp.
|
July 13, 2000
|
Decision issued November 27, 2000
Complaint valid
|
|
PR-2000-025
|
PluriVox Media Corp.
|
July 17, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-026
|
Smartnet, Dynasty Components, a division of DCI, and MediaLog
Systems Inc.
|
July 19, 2000
|
Dismissed/Late filing
|
|
PR-2000-027
|
Sciax Technology Inc.
|
July 21, 2000
|
Not accepted for inquiry/Late filing
|
|
PR-2000-028
|
Global Upholstery Co. Inc.
|
August 3, 2000
|
Decision issued November 1, 2000
Complaint not valid
|
|
PR-2000-029
|
K-LOR Contractors Services (BC) Ltd.
|
August 11, 2000
|
Complaint withdrawn
|
|
PR-2000-030
|
E.S.E.
|
August 29, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-031
|
Management 2000
|
September 5, 2000
|
Not accepted for inquiry/Late filing
|
|
PR-2000-032
|
RIV Limited
|
September 11, 2000
|
Complaint withdrawn
|
|
PR-2000-033
|
Dictaphone Canada
|
September 28, 2000
|
Not accepted for inquiry/Late filing
|
|
PR-2000-034
|
C2 Logistics Inc.
|
October 3, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-035
|
TELUS Integrated Communications Inc.
|
June 20, 2000
|
Decision issued November 2, 2000
Complaint valid in part
|
|
PR-2000-036
|
E.H. Industries Limited
|
October 11, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-037
|
Computer Talk Technology Inc.
|
October 25, 2000
|
Decision issued February 26, 2001
Complaint not valid
|
|
PR-2000-038
|
Papp Plastics & Distribution Ltd.
|
November 2, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-039
|
Siemens Westinghouse Incorporated
|
November 3, 2000
|
Decision issued March 19, 2001
Complaint valid in part
|
|
PR-2000-040
|
Canadian Helicopters Limited
|
November 16, 2000
|
Decision issued February 19, 2001
Complaint not valid
|
|
PR-2000-041
|
BancTec (Canada) Inc.
|
November 16, 2000
|
Decision issued February 14, 2001
Complaint valid in part
|
|
PR-2000-042
|
Spallumcheen Band
|
December 13, 2000
|
Accepted for inquiry
|
|
PR-2000-043
|
Sirius Consulting Group Inc.
|
December 13, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-044
|
Polaris Inflatable Boats (Canada) Ltd.
|
December 15, 2000
|
Accepted for inquiry
|
|
PR-2000-045
|
Norleans Technologies Inc.
|
December 19, 2000
|
Not accepted for inquiry/Not a potential supplier
|
|
PR-2000-046
|
Greenbelt Agripark
|
December 21, 2000
|
Not accepted for inquiry/Not a designated contract
|
|
PR-2000-047
|
Valcom Ltd.
|
December 27, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-048
|
The Kirkland Partnership Inc.
|
December 28, 2000
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-049
|
Polaris Inflatable Boats (Canada) Ltd.
|
December 15, 2000
|
Accepted for inquiry
|
|
PR-2000-050
|
Polaris Inflatable Boats (Canada) Ltd.
|
December 15, 2000
|
Accepted for inquiry
|
|
PR-2000-051
|
Polaris Inflatable Boats (Canada) Ltd.
|
December 15, 2000
|
Accepted for inquiry
|
|
PR-2000-052
|
Polaris Inflatable Boats (Canada) Ltd.
|
December 15, 2000
|
Accepted for inquiry
|
|
PR-2000-053
|
Polaris Inflatable Boats (Canada) Ltd.
|
January 4, 2001
|
Accepted for inquiry
|
|
PR-2000-054
|
Cisco Systems Canada Co.
|
January 5, 2001
|
Complaint withdrawn
|
|
PR-2000-055
|
Foundry Networks
|
January 10, 2001
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-056
|
Cannabis Research Institute Inc.
|
January 12, 2001
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-057
|
Foundry Networks
|
January 29, 2001
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-058
|
Boyd Moving & Storage
|
February 7, 2001
|
Not accepted for inquiry/No reasonable indication of a
breach
|
|
PR-2000-059
|
P&L Communications Inc.
|
February 8, 2001
|
Accepted for inquiry
|
|
PR-2000-060
|
Foundry Networks
|
February 8, 2001
|
Accepted for inquiry
|
|
PR-2000-061
|
Foundry Networks
|
February 9, 2001
|
Not accepted for inquiry/Late filing
|
|
PR-2000-062
|
Foundry Networks
|
February 10, 2001
|
Not accepted for inquiry/Late filing
|
|
PR-2000-063
|
FM One Alliance Corp.
|
February 12, 2001
|
Accepted for inquiry
|
|
PR-2000-064
|
Wescam Inc.
|
February 12, 2001
|
Accepted for inquiry
|
|
PR-2000-065
|
Cifelli Systems Corporation
|
February 16, 2001
|
Accepted for inquiry
|
|
PR-2000-066
|
Foundry Networks
|
February 19, 2001
|
Not accepted for inquiry/Late filing
|
|
PR-2000-067
|
Foundry Networks
|
February 19, 2001
|
Accepted for inquiry
|
|
PR-2000-068
|
Cifelli Systems Corporation
|
March 1, 2001
|
Accepted for inquiry
|
|
PR-2000-069
|
Quester Tangent Corporation
|
March 2, 2001
|
Not accepted for inquiry/Late filing
|
|
PR-2000-070
|
Lexmark Canada Inc.
|
March 2, 2001
|
Accepted for inquiry
|
|
PR-2000-071
|
TAB Canada
|
March 5, 2001
|
Accepted for inquiry
|
|
PR-2000-072
|
The Baxter Group Inc.
|
March 7, 2001
|
Accepted for inquiry
|
|
PR-2000-073
|
P&L Communications Inc.
|
March 14, 2001
|
Accepted for inquiry
|
|
PR-2000-074
|
M.D. Charlton Co. Ltd.
|
March 16, 2001
|
Accepted for inquiry
|
|
PR-2000-075
|
M.D. Charlton Co. Ltd.
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March 16, 2001
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Accepted for inquiry
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PR-2000-076
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OdySoft Inc.
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March 20, 2001
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Not accepted for inquiry/Complaint premature
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PR-2000-077
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Volvo Motor Graders Ltd.
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March 23, 2001
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Being filed
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PR-2000-078
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Eurodata Support Services Inc.
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March 29, 2001
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Being filed
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CHAPTER
VII
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TOWARD THE
ELECTRONIC ADMINISTRATIVE RECORD - THE TRIBUNAL'S
EXPERIENCE
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Introduction
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For a number of years, the Tribunal has recognized the value
added of information technology in its day-to-day activities.
Information technology has had an impact on the operations of all
organizational units within the Tribunal. The Tribunal's objective
in relying more and more on information technology is to streamline
and optimize its procedures and processes. The development of a
case-tracking system for appeals of the CCRA's decisions, of a
correspondence-tracking system, of a wizard to assist in the
preparation of staff reports in Tribunal proceedings and of the
Tribunal's Web site are only a few of the Tribunal's information
technology initiatives.
The Tribunal also recognized that information technology could
bring efficiencies in the area of compilation of the administrative
(official) record in its proceedings and in the management of the
hearing process. Therefore, it undertook to assess how the
automation of the administrative record could improve its
operations.
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Planning the
Migration to the Electronic Record
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The Secretariat of the Tribunal, the branch responsible for
corporate services, including infomation technology, was given the
task of developing a strategic plan to support the migation of the
Tribunal's paper-based administrative record to an electronic
record.
Unlike the majority of federal quasi-judicial tribunals and
boards that have a single mandate, the Tribunal has a diversified
mandate comprising five areas of jurisdiction. The challenge was to
develop a strategic plan that could address all the areas of the
Tribunal's jurisdiction, recognizing that each area has its own
specific requirements. Other challenges associated with this
initiative include: the need to process expeditiously substantial
volumes of case-related documents received at cyclical points
during an inquiry; and the need to make available, in a timely
manner, to panel members and staff assigned to a case, incoming
case-related documents.
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Tribunal's Vision
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The strategic plan identified the following three areas where
information technology could help in the management of case-related
information:
· Compilation of the administrative record
· Automation of the activities relating to the hearing stage of an
inquiry
· Electronic communications with parties during a proceeding
The strategic plan recognized that, even though these three
areas relate to activities that take place in the context of an
inquiry, they could not be addressed concurrently. They would have
to be addressed using an incremental approach.
The Tribunal's vision for the electronic record was ambitious.
The Tribunal was looking for more than a tracking system for
documents making up the administrative record. Its objective was to
make the electronic record fully searchable, to use it in the
hearing room to allow better management of available hearing time
and to make it available to parties and counsel participating in an
inquiry.
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Laying Down the Ground Work
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It was recognized early in the process that substantial time
would be needed in the planning stage. Not only did it entail
identifying the required information technology infrastructure, but
also having the Registrar Office staff with the proper skills set,
documenting Tribunal processes and identifying and selecting the
most appropriate application to support the initiative.
Having defined the Tribunal's vision for the electronic record,
it was important to ensure that this vision was shared by Tribunal
members, senior management and staff. To this end, a benefits
realization study was commissioned from a consulting firm. The
purpose of the study was to identify, through a series of
individual interviews with members, senior management and staff,
the benefits of migrating to an electronic record. The findings of
these interviews were reviewed by senior management to acquire a
better understanding of the expectations and benefits identified
and to validate them.
There was also a need to better understand how case-related
documents and information travels within the Tribunal, i.e. where
do documents and information originate, how are they processed and
distributed, what are the end uses. A consulting firm was given the
task of analyzing the flow of information. The results of this
study were of assistance to the Tribunal in validating its
information flows. The resulting report is also used as a training
tool for Registrar Office staff responsible for the compilation of
the administrative record.
At this stage of the project, the operational requirements of
the Registrar Office, in the context of the migration to an
electronic administrative record, were identified and assessed as
to how they would affect the Tribunal's network infrastructure.
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Selecting the RDIMS Application
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Finding the right application for the Tribunal's electronic
record initiative proved to be a difficult undertaking. The
Tribunal considered a number of possible applications. Some of the
problems encountered were: the lack of interest from a potential
supplier; the lack of a bilingual capability of some applications;
the fact that one application was paper based, while the Tribunal
was looking for an electronic solution for the filing of documents;
and the cost element.
The Tribunal finally selected the RDIMS (Records, Document and
Information Management System) as a possible solution for its
initiative. In July 1998, the Government of Canada awarded a
contract for the implementation of the RDIMS to the CGI Group, an
information technology consulting group. The goals of this
initiative were twofold:
· Take advantage of existing technology to modernize records and
information management functions and, in so doing, improve the cost
effectiveness of service delivery to the public and of internal
operations.
· Standardize records and information management practices,
software and systems to facilitate the seamless exchange of
information between federal departments.
The RDIMS is made up of an integrated suite of commercial
off-the-shelf software products that provide key components for a
modern electronic workplace. The suite includes:
· a documents module,
· a records management module,
· a full text indexing and search module,
· a document routing module,
· an imaging module, and
· a reporting module
The Tribunal's interest in the RDIMS application was not the
traditional records management function, but rather the imaging
capability that it offered and the possibility of tailoring the
application to meet the Tribunal's information requirements.
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Experimenting with the Electronic Record - The
RDIMS Pilot Project
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The Tribunal decided that it would use the RDIMS application on
a pilot project basis and that the project would involve the
Tribunal's jurisdiction with regard to inquiries on dumping and
subsidizing complaints, the jurisdiction that generates the most
extensive administrative record (in excess of 30,000 pages). It was
also decided that the pilot project would consist in compiling the
electronic record of a recently completed dumping inquiry. Staff
assigned to that inquiry would use the application to validate its
functionalities.
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The pilot project was launched on May 29, 2000, and took four
months to complete. The objectives were to:
· determine if the Tribunal's case management capability could
be increased to support the deliberative and decision-making
process;
· ascertain the feasibility of implementing an electronic document
management system relying primarily on imaging technology;
· test the capability of the RDIMS to provide panel members and
staff assigned to a case with timely access to a wide spectrum of
documents making up the administrative record;
· test the capability of the RDIMS to carry out effective,
exhaustive and timely research within the administrative
record;
· test the document routing module to ensure that it could provide
timely access to documents making up the administrative record;
and
· assess the capability of the RDIMS to provide proper access
controls and recoverability thereby ensuring adequate protection of
the Tribunal's information holdings.
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The following functions of the RDIMS application were
successfully tested: scanning; digitization (optical character
recognition [OCR]); data capture; storage (electronic repository);
security; access to the information; and reporting. However, the
following functions still required enhancements and further
research: search; annotation; and workflow. This last function was
not robust enough to meet the Tribunal's requirement for
notification of panel members and staff assigned to a case.
A number of lessons were also learned:
· The Tribunal needs to better define its requirements.
· The digitization function is not reliable in terms of quality
(error rate). As a result, there is a need for the Tribunal to
obtain electronic input documents from parties to ensure 100
percent accuracy.
· It will be difficult, if not impossible, to identify a search
engine comparable to Folio Views, which is presently used by the
Tribunal to search the transcript of hearings.
· The application must allow the distribution of case-related
information to be done more rapidly.
· There is a need to improve the user friendliness of the
application.
The Tribunal came to the conclusion that the RDIMS application
lacked the necessary flexibility to make it a viable option for the
Tribunal. Furthermore, the lack of user friendliness of the RDIMS
was of concern to the Tribunal.
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The Tribunal decided that it would pursue its efforts to
identify an application that would meet its operational
requirements, as it recognized the benefits to be derived from a
fully operational electronic administrative record.
In September 2000, the Tribunal decided to carry out a second
pilot project with a package called ToolKit, which uses the
Filemaker Pro application. The ToolKit package was attractive to
the Tribunal because it was developed by people with an
understanding and knowledge of a court environment, it has a
bilingual capability, and there is local technical support for the
product.
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ToolKit Pilot Project
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For its second pilot project, the Tribunal maintained the same
overall objectives that were established for the RDIMS pilot
project. However, the pilot would be conducted in parallel with an
actual dumping inquiry over a four-month period. The Grain
Corn inquiry (NQ-2000-005) was selected. Panel members and
staff would be given the option of working with the paper and/or
electronic administrative record.
Based on the lessons learned from the first pilot project, the
Tribunal recognized that it needed to improve its requirements
definition. A business process analyst was recruited to act as the
intermediary between the information technology specialists and the
users of the application, to assist with the identification of the
Tribunal's operational requirements, to provide training and
assistance to users and to work with the application's developer to
define and implement the necessary enhancements. The Tribunal also
recognized that it could not rely on the OCR application because
the poor quality of the resulting documents and the limitation that
this placed on the search capability. For this reason, it requested
that parties to the inquiry file their submissions and responses to
various questionnaires in electronic format.
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The ToolKit is made up of six modules:
· Documents
· Transcripts
· Work notes
· Participants
· Subjects
· Names
The documents module allows the user to search the
administrative record in its entirety using one of two tools: the
document quick finder or the search screen, which allows for a more
in-depth search.
The transcripts module offers the possibility of searching the
transcript of a hearing in two modes: Folio Views or PDF. Over the
years, the Tribunal has refined the search capabilities available
through Folio Views to meet its specialized requirements. On the
ToolKit, Folio Views is only available to search the transcript,
while the Adobe dictionary can be used to search the entire
administrative record, including the transcript.
The work notes module is presently under construction. It is
expected to allow users to save notes and annotations on specific
documents. It will also provide the possibility of sharing these
notes and annotations with other staff assigned to a case.
The participants module provides access to relevant information
on parties and counsel participating in a case. An interesting
feature of the module is the access to the actual notices of
participation, notices of representation and declarations and
undertakings filed with the Tribunal by parties and counsel.
The subjects module allows the identification of specific
subjects to be tracked throughout the entire record.
The names module allows the user to keep a directory of key
people or other contacts in a case.
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Results of the Toolkit Pilot Project
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As of the end of fiscal year 2000-2001, the pilot project was
still underway. Nevertheless, there are a number of preliminary
observations that can be drawn:
· The ToolKit provides ample flexibility to meet the specific
operational requirements of the Tribunal. The ease with which
enhancements can be made and the availability of the application's
developer are most impressive.
· The recruitment of a business process analyst has proven to be a
key ingredient in the success already achieved. It has allowed the
Tribunal to properly define its requirements.
· The ToolKit has quickly gained the acceptance of users. It is
fair to say that the ToolKit is a user-friendly package.
The Tribunal's decision to request that parties file electronic
versions of their submissions was justified. The time required to
digitize electronic documents is insignificant compared to the time
required to digitize scanned documents. More importantly, the
Tribunal's decision has significantly improved the quality of the
application's search function.
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Future of the
Electronic Record at the Tribunal
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The Tribunal will carry out an in-depth review of the ToolKit
pilot project. The evaluation should be completed by the end of May
2001. If the results are positive, the Tribunal will undertake to
make the electronic administrative record an integral part of its
operations by using a phased-in approach.
Phase I will involve the migration from a pilot project
mode to an operational mode. This migration will apply to SIMA
cases only. It will involve the development of a guideline
governing the filing of electronic documents with the Tribunal.
Phase II will involve making the electronic
administrative record available and accessible in the hearing
room.
Phase III will involve making the ToolKit available to
counsel and parties participating in SIMA proceedings.
Phase IV will focus on the implementation of the ToolKit
in other areas of the Tribunal's jurisdiction, i.e. procurement,
appeals and textile cases.
Phase V will be concerned with the installation of a
secured electronic communications network between the Tribunal and
counsel offices to improve the timeliness of access to the
Tribunal's administrative record.
Phase VI will focus on the implementation of a platform
that will allow the electronic filing of responses to
questionnaires.
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Conclusion
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Over the years, the Tribunal has supported the move towards the
greater use of information technology as a means of improving
service delivery. The Tribunal is convinced that the electronic
administrative record will help to streamline its operations and
facilitate the work of all participants in a Tribunal proceeding.
The initiative has the potential to enhance service delivery to
stakeholders and is therefore in line with the spirit of the
Government On-line initiative.
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Publications can be obtained by contacting the Secretary,
Canadian International Trade Tribunal, Standard Life Centre,
333 Laurier Avenue West, Ottawa, Ontario K1A 0G7
(613) 993-3595, or they can be accessed on the Tribunal's Web
site.
