The Honourable John Manley, P.C., M.P.
Deputy Prime Minister and 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, 2002.
| |
CHAPTER
I
|
| |
TRIBUNAL HIGHLIGHTS IN
FISCAL YEAR
|
Dumping and Subsidizing
Inquiries and Reviews
|
In the fiscal year, the Canadian International Trade Tribunal
(the Tribunal) issued four preliminary determinations of injury
under subsection 37.1(1) of the Special Import Measures Act
(SIMA). The Tribunal also issued six findings following injury
inquiries under section 42 of SIMA and three orders following
reviews under section 76.03. At the end of the year, there were two
inquiries and three expiry reviews in progress.
|
| |
|
Public Interest
Investigations
|
Pursuant to section 45 of SIMA, a public interest inquiry may be
conducted by the Tribunal 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 those duties may not be in the public
interest. In fiscal year 2001-2002, no public interest inquiries
were conducted by the Tribunal further to findings of injury in
three inquiries.
|
| |
|
Procurement
Review
|
The Tribunal received 77 complaints during the fiscal year. The
Tribunal issued 32 written determinations of its findings and
recommendations. Twenty-one of these determinations related to
cases that were in progress at the end of fiscal
year 2000-2001.
In July 1999, the governments of the Republic of Korea (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. The Tribunal has been designated as the
bid challenge authority under the agreement. The Canadian
International Trade Tribunal Procurement Inquiry
Regulations were therefore amended. The agreement was ratified
and is in force as of September 1, 2001.
In September 2001, the Tribunal made available on its Web site
an electronic package entitled "Filing a Procurement Complaint".
This package provides potential complainants with an overview of
the Tribunal's jurisdiction and process and allows them to file
their complaints on-line.
|
| |
|
Trade and Tariff
Reference
|
|
Textiles
|
During the fiscal year, the Tribunal issued three reports to the
Minister of Finance concerning four requests for tariff relief. Two
requests for tariff relief were in progress at the end of the year.
In addition, the Tribunal's seventh annual status report on the
investigation process was submitted to the Minister of Finance on
February 25, 2002.
|
| |
|
Safeguard
Inquiry
|
On March 21, 2002, the Tribunal was directed by Her Excellency
the Governor General in Council, on the recommendation of the
Minister of Finance and the Minister for International Trade,
pursuant to paragraph 20(a) of the Canadian International
Trade Tribunal Act (CITT Act), to inquire into and report on
the importation of certain steel goods.
As directed by Her Excellency, the Tribunal will submit a notice
of any determination on July 4, 2002, and its report on any
determination and any recommendation on August 19, 2002.
|
| |
|
Appeals
|
The Tribunal issued decisions on 59 appeals from decisions of
the Department of National Revenue and the Canada Customs and
Revenue Agency (CCRA) made under the Customs Act, the
Excise Tax Act and SIMA.
|
| |
|
Legislative Amendments
Affecting the Tribunal's Jurisdiction
|
The Protocol on the Accession of the People's Republic of China
to the World Trade Organization (WTO) came into effect on December
11, 2001.
Bill C-50, which has been through second reading, amends the
CITT Act, the Customs Tariff and the Export and Import
Permits Act to authorize the Governor in Council to impose,
under certain conditions and after an inquiry by the Tribunal,
special trade measures to protect Canadian industries from injury
that could be caused by imports from the People's Republic of China
(China). The Tribunal could be required to conduct an inquiry where
there had been either a market disruption (i.e. a rapid increase in
imports of Chinese goods that are like or directly competitive with
Canadian goods) or an action (by another WTO Member) causing or
threatening to cause a significant diversion of trade into Canada.
These special trade measures, called safeguards, will be available
until December 11, 2013.
Bill C-50 also amends SIMA to allow the CCRA greater flexibility
in conducting anti-dumping investigations relating to imported
Chinese goods when the price or cost of production of those goods
in China is not determined by market economy conditions.
On February 7, 2002, the Regulations Amending the Special
Import Measures Regulations on massive importation of dumped or
subsidized goods came into effect. On February 23, 2002, they were
published in the Canada Gazette, Part II. They provide
guidance in respect of inquiries conducted by the Tribunal under
paragraphs 42(1)(b) and (c) of SIMA. The
amendments will ensure greater transparency and predictability by
setting out factors to be considered in determining whether injury
has been caused by a massive importation of dumped or subsidized
goods, or by a series of importations of such goods where the
importations have occurred within a relatively short period of time
and, in the aggregate, are massive.
On November 29, 2001, legislative amendments to the Customs
Act came into force. Sections 60.2 and 67.1 of the Customs
Act provide that a person may apply to the Tribunal for an
extension of time. (Refer to Chapter IV for additional
information.)
|
| |
|
Supreme Court of
Canada's Decision on the Standard of Review of the Tribunal's
Decisions
|
On June 7, 2001, the Supreme Court of Canada handed down a
decision that dealt with the standard of review applicable to the
Tribunal's decisions with respect to the value for duty of imported
goods under the Customs Act. In Canada (Deputy Minister
of National Revenue) v. Mattel Canada,
[2001] 2 S.C.R. 100, the Supreme Court of Canada decided
that the appropriate standard of review applicable to the
Tribunal's decisions in such cases is correctness with respect to
questions of law. (Refer to Chapter IV for additional information
on this court decision.)
|
| |
|
Access to Tribunal
Notices, Decisions and Publications
|
Tribunal notices and decisions are published in the Canada
Gazette. Those relating to procurement complaints are also
published on MERX (Canada's Electronic Tendering Service).
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.
|
| |
|
Meeting Statutory
Deadlines (Timeliness)
|
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.
|
1. During the fiscal year, the Tribunal issued three reports to
the Minister of Finance concerning four requests for tariff
relief.
|
|
|
Section
|
Authority
|
|
CITT Act
|
|
|
18
|
Inquiries on Economic, Trade or Commercial Interests of Canada
by Reference from the Governor in Council
|
|
19
|
Inquiries Into Tariff-related Matters by Reference from the
Minister of Finance
|
|
19.01
|
Safeguard Inquiries Concerning Goods Imported from the United
States and Mexico
|
|
19.02
|
Mid-term Reviews of Safeguard Measures and Report
|
|
20
|
Safeguard Inquiries Concerning Goods Imported Into Canada and
Inquiries Into the Provision, by Persons Normally Resident Outside
Canada, of Services in Canada
|
|
23
|
Safeguard Complaints by Domestic Producers
|
|
23(1.01) and (1.02)
|
Safeguard Complaints by Domestic Producers Concerning Goods
Imported from the United States and Mexico
|
|
30.08 and 30.09
|
Safeguard Measures
|
|
30.11
|
Complaints by Potential Suppliers in Respect of Designated
Contracts
|
|
SIMA
|
|
33 and 37
|
Advice to the Commissioner
|
|
34(2) and 35(3)
|
Preliminary Inquiry
|
|
37.1
|
Preliminary Determination of Injury
|
|
42
|
Inquiries With Respect to Injury Caused by the Dumping and
Subsidizing of Goods
|
|
43
|
Findings of the Tribunal Concerning Injury
|
|
44
|
Recommencement of Inquiry (on Remand from the Federal Court of
Canada or a Binational Panel)
|
|
45
|
Public Interest
|
|
46
|
Advice to the Commissioner
|
|
61
|
Appeals of Redeterminations of the Commissioner Made Pursuant to
Section 59 Concerning Whether Imported Goods Are Goods of the Same
Description as Goods to Which a Tribunal Finding Applies, Normal
Values and Export Prices or Subsidies
|
|
76
|
Reviews of Findings of Injury Initiated by the Tribunal or at
the Request of the Commissioner or Other Interested Persons
|
|
76.01
|
Interim Reviews of Orders by the Tribunal
|
|
76.02
|
Reviews of Orders by the Tribunal on Referral Back and
Re-hearing
|
|
76.03
|
Expiry Reviews
|
|
76.1
|
Reviews of Findings of Injury Initiated at the Request of the
Minister of Finance
|
|
89
|
Rulings on Who Is the Importer
|
|
Customs Act
|
|
67
|
Appeals of Decisions of the Commissioner Concerning Value for
Duty and Origin and Classification of Imported Goods
|
|
67.1
|
Requests for Time Extension to File Notices of Appeal
|
|
68
|
Appeals to the Federal Court of Canada
|
|
70
|
References of the Commissioner Relating to the Tariff
Classification or Value for Duty of Goods
|
|
Excise Tax Act
|
|
81.19, 81.21, 81.22,
81.23, 81.25 and 81.33
|
Appeals of Assessments and Determinations of the Minister of
National Revenue
|
|
81.32
|
Requests for Extension of Time for Objection or Appeal
|
|
Softwood Lumber Products Export Charge Act
|
|
18
|
Appeals of Assessments and Determinations of the Minister of
National Revenue
|
|
Energy Administration Act
|
|
13
|
Declarations Concerning the Amount of Oil Export Charge
|
| |
CHAPTER III
|
| |
DUMPING AND
SUBSIDIZING INJURY INQUIRIES AND REVIEWS
|
The
Process
|
Under SIMA, the CCRA may impose anti-dumping and countervailing
duties if 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.
|
| |
|
Preliminary Injury
Inquiries
|
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.
|
| |
|
Preliminary Injury
Inquiries Completed in the Fiscal Year
|
The Tribunal completed four preliminary injury inquiries in the
fiscal year.
Table 1 summarizes the Tribunal's preliminary injury inquiry
activities during the fiscal year.
|
| |
|
Advice Given Under
Section 37 of SIMA
|
When the Commissioner decides not to cause an investigation to
be initiated by reason that the evidence does not disclose a
reasonable indication that the dumping or subsidizing of the goods
has caused injury or retardation or threat 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.
|
| |
|
Final Injury
Inquiries
|
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 producers, 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 questioning 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.
|
| |
|
Final Injury
Inquiries Completed in the Fiscal Year
|
The Tribunal completed six final injury inquiries in the fiscal
year. They concerned Garlic, Fresh or Frozen (NQ-2000-006),
Certain Concrete Reinforcing Bar (NQ-2000-007), Certain
Corrosion-resistant Steel Sheet (NQ-2000-008), Certain Flat
Hot-rolled Steel Sheet and Strip (NQ-2001-001), Certain
Cold-rolled Steel Sheet (NQ-2001-002), and Leather Footwear
with Metal Toe Caps (NQ-2001-003). In 2000, the estimated
values of the Canadian markets for these goods were
$20 million for garlic, $350 million for reinforcing bar, $930
million for corrosion-resistant sheet, $3.3 billion for hot-rolled
steel sheet, $830 million for cold-rolled steel sheet and $175
million for footwear.
|
| |
|
|
Garlic, Fresh or Frozen
NQ-2000-006
Finding:
Injury
(May 2, 2001)
|
This inquiry involved the dumping in Canada of fresh and frozen
garlic from China and Vietnam, excluding fresh garlic subject to
the Tribunal's finding in NQ-96-002 (i.e. garlic imported from
China from July 1 to December 31 inclusive, of each calendar year).
The domestic industry consisted of 96 Ontario growers represented
by the Garlic Growers Association of Ontario. They accounted for
over two thirds of Canada's total production of garlic. The
Tribunal found that fresh and frozen garlic constituted a single
class of goods.
The Tribunal found that the substantial volumes and very low
prices of dumped garlic from China and Vietnam had caused material
injury to the domestic growers in the form of price erosion,
reduced profitability and reduced plantings. The dumped subject
goods forced the market prices down to below the domestic growers'
costs of production. In the Tribunal's view, this resulted in a
financial loss of about $1 million, most of which was related to
the price erosion.
The Tribunal also considered other factors that could have had
an impact on the industry, including the weather, other low-priced
imports, the competitiveness of the domestic growers and the
domestic overproduction in 2000. It found that none of these
factors contributed in any significant way to the injury
experienced by the domestic industry.
|
| |
|
|
Certain Concrete Reinforcing Bar
NQ-2000-007
Finding:
Injury
(June 1, 2001)
|
This inquiry concerned dumped imports of concrete reinforcing
bar (rebar) from Indonesia, Japan, Latvia, Republic of Moldova,
Poland, Chinese Taipei and Ukraine. Eight firms accounted for
Canada's production of rebar. They are Stelco Inc. (Stelco), its
two wholly owned subsidiaries AltaSteel Ltd. and Stelco McMaster
Ltée, Co-Steel Inc., Gerdau Courtice Steel Inc., Gerdau MRM Steel
Inc., Ispat Sidbec Inc. (Ispat) and Slater Steel Inc.
This was the Tribunal's second inquiry into dumped imports of
rebar. In Inquiry No. NQ-99-002, the Tribunal found that dumped
imports from Cuba, Korea and Turkey had caused injury to the
domestic industry and that importers had switched sources of supply
to the countries named in this inquiry.
In this inquiry, the Tribunal found that, as the volume of
subject imports grew, price levels collapsed around the third
quarter of 2000. Witnesses testified that imports from the subject
countries were the undisputed price leaders in the domestic market.
Since rebar is the largest cost component in contract bids and
small differences in its cost can often determine the outcome of
contract bids, fabricators were forced to purchase dumped imports
in order to remain competitive. During the inquiry period, the
domestic industry's gross margins and net income deteriorated
sharply.
The Tribunal concluded that the substantial volumes and low
prices of dumped rebar from the named countries caused injury to
the domestic industry in the form of lost sales, declining market
share and price erosion. Furthermore, these lost sales and price
erosion accounted for a significant proportion of the decline in
financial performance experienced by the domestic industry in
2000.
The Tribunal examined factors other than dumping that may have
caused the injury suffered by the domestic producers. They included
stoppages in production, trends in the price of steel scrap, and
the volume and prices of imports from non-subject countries. The
Tribunal determined that none of these satisfactorily explained the
injury suffered by the domestic industry.
|
| |
|
|
Certain Corrosion-resistant Steel Sheet
NQ-2000-008
Finding:
No Injury/No Threat of Injury
(July 3, 2001)
|
This inquiry concerned dumped imports of corrosion-resistant
steel sheet from China, India, Malaysia, Russia, South Africa and
Chinese Taipei, and subsidized imports from India. The domestic
industry consisted of Dofasco Inc. (Dofasco), Sorevco, Stelco and
Continuous Colour Coat Limited.
The Tribunal was not convinced that the surge of dumped and
subsidized imports from the subject countries in the last half of
1999 and the first half of 2000 caused injury to the domestic
industry. It found that the increase in import sales in 1999 and
2000 was to meet the surging demand of both the automotive and
construction markets, as the domestic industry was essentially at
full capacity and inventories were at normal levels. A dramatic
decline in prices for corrosion-resistant steel, as the domestic
market for automotive product weakened in 2000, resulted in sharp
decreases in the industry's gross margins and net incomes. In the
Tribunal's view, factors other than the dumped and subsidized goods
caused the injury experienced by the domestic industry. While
average industry prices declined significantly in the latter part
of 2000, selling prices of the subject imports actually increased
over the same period and the volumes of imports declined.
The Tribunal attributed the injury to aggressive intra-industry
competition in 2000. Dofasco had increased its production
capacity with the new line from DoSol Galva Limited Partnership and
reduced prices as it sold the additional goods into a softening
market. In addition, Stelco sold a significant percentage of its
production as seconds and excess primes at substantially reduced
prices. The capital-intensive nature of galvanized production and
the need to maintain high capacity rates had the domestic industry
selling these goods into a declining market and put additional
downward pressure on prices.
There was insufficient evidence to suggest that imports of
dumped or subsidized goods from the subject countries threatened to
cause injury. Imported goods were declining and their prices
continued to be higher than domestically produced goods. According
to testimony, the foreign producers had a diversified export
strategy to seek out other more lucrative markets as demand
declined in North America. The Tribunal concluded that imports
appeared to serve as a secondary source of supply to the domestic
market, particularly in periods of tight domestic supply. In
addition, the Tribunal noted that dumping margins for some
countries and suppliers were very low. Given these numbers and the
trend away from the Canadian market, it was difficult to conclude
that dumped and subsidized imports were likely to cause injury to
the domestic industry in the foreseeable future.
|
| |
|
|
Certain Flat Hot-rolled Steel Sheet and Strip
NQ-2001-001
Finding:
No Injury/Injury
(August 17, 2001)
|
This inquiry concerned the dumping of certain hot-rolled steel
sheet and strip from Brazil, Bulgaria, China, Chinese Taipei,
India, Korea, former Yugoslav Republic of Macedonia (Macedonia),
New Zealand, Saudi Arabia, South Africa, Ukraine and Yugoslavia,
and the subsidizing of hot-rolled steel sheet from India. The
domestic industry consisted of Stelco, Dofasco, Algoma Steel Inc.
(Algoma), Ispat and IPSCO Inc. (IPSCO). In Inquiry
No. NQ-98-004 in 1999, the Tribunal had found that dumped
imports from France, Romania, the Slovak Republic and Russia had
caused injury to the domestic industry.
The Tribunal's analysis focused on the impact of the dumping and
subsidizing primarily on domestic sales of hot-rolled sheet to the
merchant market. However, the Tribunal assessed the materiality of
the injury caused by the dumping and subsidizing against the
domestic industry's production of like goods as a whole, including
goods produced for further transformation and export.
The Tribunal assessed the cumulative effect of the dumped and
subsidized goods from all the subject countries, except those from
Korea, New Zealand and Saudi Arabia. For those countries, the
conditions of competition did not warrant a cumulative analysis,
and the Tribunal conducted separate analyses of the effects of the
dumped imports from each country.
In the second half of 2000, the domestic producers suffered a
significant deterioration in performance in the domestic merchant
market in the form of reduced market share, price erosion, and
reduced gross margins and net profits. As the imports covered by
the 1999 finding declined to negligible levels in 2000, almost all
gains in market share made by the cumulated countries and the
United States were at the expense of the domestic industry and
the named countries in the 1999 finding. The domestic
producers saw their market share decrease from 76 percent in
1999 to 65 percent in 2000.
The Tribunal found that the dumping of hot-rolled steel sheet
products from Korea, New Zealand and Saudi Arabia had not caused
material injury to the domestic industry. It also concluded that
there were no clearly foreseen and imminent circumstances under
which the dumping in Canada of hot-rolled steel sheet products from
Korea, New Zealand and Saudi Arabia would threaten to cause
material injury.
The Tribunal found that, while the cumulated imports had little
impact on the end-user sector, which represented 36 percent of
total domestic sales in 2000, they were responsible for a
significant part of the price erosion in the pipe and tube sector
(25 percent of domestic sales in 2000) and most of the price
erosion in the service centre sector. It was clear that the subject
goods from the cumulated countries led the prices down in both of
these key sectors.
The Tribunal concluded that, absent the dumping and subsidizing,
the domestic producers' market share, volume of sales, prices and
utilization of plant capacity would have been higher. Further, the
lost volume and the price erosion accounted for a significant part
of the financial losses incurred by the domestic producers in the
second half of 2000. The Tribunal also concluded that the injury
suffered by the domestic industry was material, when assessed
against the total revenues generated by hot-rolled steel sheet
production, including production for the domestic and export
merchant markets and further internal processing.
The Tribunal also examined other factors to ensure that injury
caused by such factors was not attributed to the dumped and
subsidized imports. They included imports from non-subject
countries, the financial difficulties of Algoma and Maksteel Inc.,
the domestic producers' capacity to supply the market, the
contraction of demand in the second half of 2000 and the
competition between domestic producers. However, the Tribunal found
that many factors did not contribute in a significant way to
domestic industry's injury. It did not ascribe to the dumping and
subsidizing the injury caused by other factors.
|
| |
|
|
Certain Cold-rolled Steel Sheet
NQ-2001-002
Finding:
No Injury
(October 9, 2001)
|
This inquiry concerned dumped imports of cold-rolled steel sheet
from Brazil, China, Chinese Taipei, Macedonia, Italy, Luxembourg,
Malaysia, Korea and South Africa. Cold-rolled sheet for the
production of galvanized sheet and for automotive end use, and for
the production of tin-plate or pre-painted steel were excluded from
the inquiry. The domestic industry consisted of Dofasco, Ispat and
Stelco.
The Tribunal found that the volume of dumped goods from each of
Macedonia, Italy, Luxembourg and Malaysia was negligible, and
terminated its inquiry with respect to those imports. It assessed
the cumulative effect of the dumping from the other five subject
countries.
The Tribunal focused its analysis on the steel service centre
sector, which accounted for about 98 percent of sales of the
subject goods. It found that, prior to mid-2000, when market
conditions were robust due to the strong economy, steel service
centres built up their inventories to meet the expected higher
levels of demand. They turned to imports from the subject countries
because of concerns about the domestic mills' ability to meet their
requirements. The Tribunal also found that, during this period,
domestic prices and subject country prices increased, with subject
country prices eventually matching domestic prices. In the
Tribunal's opinion, the industry was not affected by the import
competition. In fact, the industry experienced increasing gross
margins and net income during this period. Accordingly, the
Tribunal found that the industry had not suffered injury from
dumped imports prior to mid-2000.
In the second half of 2000, the industry's prices softened. The
softening accelerated in the first half of 2001. As domestic prices
declined, the industry's unit gross margins were cut almost in half
from the second to the third quarter of 2000 and fell below
unit costs. By the first quarter of 2001, the industry began to
sustain significant losses at the gross margin level and in average
unit net income. The Tribunal found that the industry suffered
significant injury after mid-2000.
However, the Tribunal was not convinced that dumped imports
caused the industry's injury. It observed that, by mid-2000, in
light of the emerging economic downturn, steel service centres had
collectively cut back on their purchases of both imported and
domestically produced cold-rolled sheet in order to reduce their
inventories. These reached targeted levels by the
fourth quarter of 2000. As sales plummeted in the third
quarter of 2000, the industry began reducing its prices, and its
sales to steel service centres increased substantially in the
fourth quarter of 2000. The Tribunal found that this increase
offset a decline in plant loading for other cold-rolled steel
sheet, in particular that used by the automotive sector. As
domestic prices declined, average import prices from the subject
countries rose in the third and fourth quarters of 2000 before
declining in the first quarter of 2001. The Tribunal found that,
although subject country prices declined below domestic prices, the
price spread was not sufficient to provide an incentive to buy
imports to any great extent.
The Tribunal found that other non-dumping factors had also
adversely affected the industry's performance in the period after
mid-2000. They included Stelco's unanticipated problems with the
upgrade of its four-stand cold-roll mill, resulting in higher costs
and high volumes of seconds that depressed prime prices.
The Tribunal noted that, while the economic downturn made the
industry vulnerable to dumping, it also made the Canadian market
unattractive to imports from the subject countries. Such imports,
as a whole, withdrew from the Canadian market as conditions
deteriorated. The Tribunal had no reason to believe that they would
return under the even worse conditions that eventually prevailed.
Accordingly, it found that there was no threat of injury from
dumping by the subject countries.
|
| |
|
|
Leather Footwear with Metal Toe Caps
NQ-2001-003
Finding:
Threat of Injury
(December 27, 2001)
|
This inquiry concerned dumped imports of leather footwear with
metal toe caps from China. The domestic industry consisted of G.A.
Boulet Inc., Canada West Shoe Manufacturing Inc., L.P. Royer Inc.,
STC Footwear, Tatra Shoe Manufacturing Inc. and Terra Footwear,
members of The Shoe Manufacturers' Association of Canada, and
Dayton Shoe Co. Ltd., Hichaud Inc., Mellow Walk Footwear Inc.,
Vercorp Inc. and Viberg Boot Manufacturing Ltd. The Tribunal was of
the view that leather safety boots and leather safety shoes
resembled one another, had essentially the same functional end use
and were a single class of goods.
The Tribunal found that trends in the producers' main economic
indicators were generally positive for the period of inquiry.
Production rose, and sales and prices increased at a faster rate
than the apparent market. Financial performance also improved, with
producers' combined gross margin increasing from 21 percent of
net sales in 1998 to 24 percent in 2000. Their combined operating
income also increased as a percentage of net sales. The Tribunal
was not convinced that the producers would have increased sales
volume in the absence of dumping. Accordingly, it concluded that
the dumping of leather safety footwear had not caused injury.
However, the Tribunal noted that the subject imports grew
dramatically from near zero in the early 1990s to capture 63
percent of the market in the first six months of 2001. They
continued to grow in the months of August and September. The
Tribunal observed that China accounted for 51 percent of global
footwear production in 1999. Much of the growth in production had
come from an increase in footwear exports.
The Tribunal found that Chinese exports of safety footwear
increasingly included high-end products and branded footwear that
were formerly produced in Canada. It also noted that the average
wholesale unit prices of imports were less than those of the
producers. The Tribunal concluded that price gaps of this
magnitude, combined with the continuing improvement in the quality
of the subject goods, would lead consumers to increasingly question
whether the price spreads were justified. It concluded that the
dumped imports of safety footwear from China threatened to injure
Canadian producers.
The Tribunal excluded from its finding athletic-style and
hiking-style leather safety shoes of cement construction, and
certain leather boots with metal toe caps and rubber outsoles, for
use in motorcycle riding.
|
| |
|
Final Injury
Inquiries in Progress at the End of the Fiscal Year
|
There was one inquiry in progress at the end of the fiscal
year.
Fresh Tomatoes (NQ-2001-004) concerns dumped imports from
the United States. The Canadian Tomato Trade Alliance is
participating in the inquiry for Canadian greenhouse growers of
fresh tomatoes.
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 no requests for public interest inquiries
during the fiscal year.
|
| |
|
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
Interim Reviews
|
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 new facts have arisen or that there has been a
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
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 in the fiscal
year.
On November 20, 2001, the China Chamber of Commerce for Import
& Export of Foodstuffs, Native Produce and Animal By-products
(China Chamber of Commerce) and Cangshan County Beidouxing Co.,
Ltd. (CCBC) filed a properly documented request for an interim
review of the Tribunal's finding in Garlic, Fresh or Frozen
(NQ-2000-006).
The Tribunal considered the likely impact of the new facts and
changes in circumstances referred to by the China Chamber of
Commerce and CCBC and determined that they did not warrant an
interim review.
On February 13, 2002, the BC Vegetable Marketing Commission
requested that the Tribunal rescind immediately its order due to
expire on November 28, 2002, in Fresh Iceberg
Lettuce (RR-97-002). On March 15, 2002, the Tribunal gave
notice (RD-2001-002) that, pursuant to subsection 76.01(1) of SIMA,
it had decided to conduct an interim review of its order made on
November 28, 1997, in Review No. RR-97-002, continuing, without
amendment, its finding made on November 30, 1992, in Inquiry
No. NQ-92-001, concerning fresh Iceberg (head) lettuce,
originating in or exported from the United States of America, for
use or consumption in the province of British Columbia.
|
| |
|
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 eight notices of
expiry. The Tribunal decided that expiry reviews were warranted in
six cases and initiated reviews. In Fresh Iceberg Lettuce
(LE-2001-007), there was no request for an expiry review and no
review was initiated. In Bicycles and Frames (LE-2001-008),
no decision had been taken before the end of the fiscal year.
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
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 a finding or order is continued, 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 three expiry
reviews.
On July 4, 2001, the Tribunal rescinded its order in Certain
Oil and Gas Well Casing (RR-2000-001) respecting dumped imports
from Korea and the United States. The following Canadian producers,
IPSCO, Prudential Steel Limited, Algoma, Algoma Seamless Tubulars
Inc. and Stelpipe Ltd. (Stelpipe), and several importers and
foreign producers participated in the expiry review.
On July 24, 2001 the Tribunal continued its order in Certain
Carbon Steel Welded Pipe (RR-2000-002) respecting dumped
imports from Argentina, India, Romania, Chinese Taipei, Thailand
and Brazil, and rescinded the order respecting imports from
Venezuela. Three domestic producers, Stelpipe, Ispat and IPSCO, and
one foreign producer participated in the expiry review.
On March 20, 2002, the Tribunal continued its finding in
Fresh Garlic (RR-2001-001) respecting dumped imports from
China. The Garlic Growers Association of Ontario, China Chamber of
Commerce and a Chinese grower/exporter participated in the expiry
review.
|
| |
|
Expiry Reviews in
Progress at the End of the Fiscal Year
|
Five expiry reviews were in progress at the end of the fiscal
year. They were reviews of the orders in: (1) Polyiso Insulation
Board (RR-2001-002) respecting dumped imports from the United
States; (2) Machine Tufted Carpeting (RR-2001-003)
respecting dumped imports from the United States; (3) Concrete
Panels (RR-2001-004) respecting dumped imports from the United
States; (4) Certain Waterproof Rubber Footwear
(RR-2001-005) respecting dumped imports from China; and (5)
Certain Hot-rolled Carbon Steel Plate (RR-2001-006)
respecting dumped imports from Mexico, China, South Africa and
Russia.
On November 27 and December 7, 2001, respectively, the
Commissioner determined that that the expiry of the findings made
by the Tribunal in both Polyiso Insulation Board and in
Machine Tufted Carpeting is unlikely to result in the
continuation or resumption of dumping of the subject goods. The
Tribunal will issue orders rescinding these findings on their date
of expiry.
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, 2002.
|
| |
|
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 had not yet
heard applications to review the Tribunal's findings in Certain
Corrosion-resistant Steel Sheet (NQ-2000-008), Oil and Gas
Well Casing (RR-2000-001), Certain Flat Hot-rolled Steel
Sheet (NQ-2001-001), Certain Cold-rolled Steel Sheet
(NQ-2001-002) and Concrete Panels (LE-2001-004).
During the fiscal year, a binational panel affirmed the
Tribunal's findings in Certain Refrigerators, Dishwashers and
Dryers (NQ-2000-001). At the end of the fiscal year, a
binational panel had not yet heard an application to review the
Tribunal's finding in Iodinated Contrast Media
(NQ-99-003).
|
| |
|
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
|
|
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
|
Certain Waterproof Rubber Footwear
|
China
|
ADT-4-79
(May 25, 1979)
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, 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
|
|
|
NQ-2000-006
|
May 2, 2001
|
Garlic, Fresh or Frozen
|
China and Vietnam
|
|
|
NQ-2000-007
|
June 1, 2001
|
Certain Concrete Reinforcing Bar
|
Indonesia, Japan, Latvia, Republic of Moldova, Poland, Chinese
Taipei and Ukraine
|
|
|
RR-2000-002
|
July 24, 2001
|
Certain Carbon Steel Welded Pipe
|
Argentina, India, Romania, Chinese Taipei, Thailand and
Brazil
|
NQ-90-005
(July 26, 1991)
NQ-91-003
(January 23, 1992)
RR-95-002
(July 25, 1996)
|
|
NQ-2001-001
|
August 17, 2001
|
Certain Flat Hot-rolled Steel Sheet and Strip
|
Brazil, Bulgaria, China, Chinese Taipei, India, Macedonia, South
Africa, Ukraine and Yugoslavia
|
|
|
NQ-2001-003
|
December 27, 2001
|
Leather Footwear with Metal Toe Caps
|
China
|
|
|
RR-2001-001
|
March 20, 2002
|
Fresh Garlic
|
China
|
NQ-96-002
(March 21, 1997)
|
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 Minister's decision 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.
|
| |
|
Legislative
Amendments to the Customs Act that Affect the Tribunal's
Jurisdiction
|
On November 29, 2001, legislative amendments to the Customs
Act came into force. Section 67.1 of the Customs Act now
provides a means by which a person who has failed to file a notice
of appeal within the 90-day period set out in section 67 can apply
to the Tribunal for a time extension.
In order to be granted an extension under section 67.1 of the
Customs Act, the person making the application must meet
several conditions. Firstly, the application must have been made
within one year after the expiry of the 90-day period set out in
section 67. Secondly, the person making the application must
demonstrate that the person was unable to act or to give a mandate
to act in the person's name or the person had a bona fide
intention to appeal. Thirdly, the person making the application
must demonstrate that it would be just and equitable to grant the
application. Fourthly, the application must have been made as soon
as circumstances permitted. Lastly, there must exist reasonable
grounds for the appeal. The application must also set out the
reasons why the notice of appeal was not filed on time.
If the person making the application meets the above conditions,
the Tribunal may make an order extending the time for appealing and
may impose any terms that it considers just. Contrary to section
81.32 of the Excise Tax Act, subsection 67.1(3) of the
Customs Act requires that the application for the time
extension be accompanied by the notice of appeal. This means that,
if the Tribunal decides to grant an extension, it will have to
issue an order extending the time limit for filing a notice of
appeal, notwithstanding the fact that the notice of appeal will
have already been filed.
Under section 60 of the Customs Act, an importer can
request a redetermination of the origin, tariff classification or
value for duty of imported goods, within 90 days after being given
a notice of a determination. Prior to the coming into force of
sections 60.1 and 60.2, once the 90-day period had expired, the
importer had no right to request a redetermination and did not have
any other recourse.
Under section 60.1 of the Customs Act, an importer will
have the option, once the 90-day period has expired, but within one
year from the expiry date, to make an application to the
Commissioner for an extension of the time to file a request for a
redetermination. If the Commissioner refuses to grant the
extension, the importer can take advantage of section 60.2 and
request an extension directly from the Tribunal. Section 60.2 of
the Customs Act provides that a person who has made an
application for an extension of time to the Commissioner may apply
to the Tribunal to have that application granted where the
Commissioner refused it or where 90 days have elapsed since the
application was made and the Commissioner has not notified the
person of his decision. The application must be made by filing with
the Commissioner and the Secretary of the Tribunal a copy of the
application or of the notice of decision made by the Commissioner.
The Tribunal may dismiss or grant the application and, in granting
the application, it may impose any terms it considers just or order
that the request is valid as of the date of the order.
In order to be granted an extension under subsection 60.2(4) of
the Customs Act, the person making the application must meet
several conditions. Firstly, the application must have been made
within one year after the expiry of the 90-day period set out in
section 60. Secondly, the person making the application must
demonstrate that the person was unable to act or to give a mandate
to act in the person's name or the person had a bona fide
intention to appeal. Thirdly, the person making the application
must demonstrate that it would be just and equitable to grant the
application. Fourthly, the application must have been made as soon
as circumstances permitted. Lastly, there must exist reasonable
grounds for the appeal. The application must also set out the
reasons why the notice of appeal was not filed on time.
|
| |
|
Appeals
Considered
|
During the fiscal year, the Tribunal heard 33 appeals of which
19 related to the Customs Act, 12 to the Excise Tax
Act and 2 to SIMA. Decisions were issued in 59 cases, of which
17 were heard during the fiscal year.
|
| |
|
| |
Decisions on
Appeals
|
| |
Act
|
Allowed
|
Allowed
in Part
|
Dismissed
|
Total
|
| |
Customs Act
|
10
|
8
|
28
|
46
|
| |
Excise Tax Act
|
-
|
1
|
11
|
12
|
| |
SIMA
|
-
|
-
|
1
|
1
|
| |
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, of which three were heard under the
Customs Act, one under the Excise Tax Act and one
under SIMA. These summaries have been prepared for general
information purposes only and have no legal status.
|
| |
|
|
Costco Canada Inc.
v.
CCRA
AP-2000-050
Decision:
Appeal dismissed
(November 30, 2001)
|
This was an appeal under subsection 67(1) of the former and
current Customs Act from decisions of the Commissioner dated
September 14, 2000, pursuant to subsection 63(3) of the former
Customs Act and subsection 60(4) of the current
Customs Act.
The issue in this appeal concerned the classification of cases
containing art materials. The respondent claimed that these cases
should be classified as other pencils, crayons and pastels (tariff
item No. 9609.90.00) or as felt-tipped pens (tariff item No.
9608.20.00). The appellant argued that the cases should be
classified as other toys (tariff item No. 9503.90.00) or as other
toys, put up in sets or outfits (tariff item No. 9503.70.90).
The appeal was dismissed. The Tribunal determined that the goods
in issue were not classifiable as toys, given that nearly one half
of the contents were made up of articles that are excluded from
heading No. 95.03. Rather, the goods in issue were properly
classified, pursuant to Rule 3 (b) of the General Rules for the
Interpretation of the Harmonized System (the General Rules),
under tariff item No. 9609.90.00 as other pencils, crayons and
pastels. These objects were found to comprise approximately 60
percent of the goods in issue.
|
| |
|
|
Les Produits Bariatrix International Inc.
v.
CCRA
AP-2000-052
Decision:
Appeal dismissed
(February 21, 2002)
|
The respondent issued a redetermination in respect of goods
imported by the appellant, requiring the payment of anti-dumping
duties in accordance with the Tribunal's findings in Inquiry No.
NQ-95-002. The redetermination was based on the respondent's
finding that the product in issue, imported by the appellant from
the United States, was refined sugar and of the same description as
the goods to which the Tribunal's findings apply.
In determining that the product in issue was refined sugar, the
respondent relied on results of polarimetric testing done on
samples of the product by the laboratory at the CCRA. According to
the subheading note in Chapter 17, a polarimeter reading of less
than 99.5 degrees indicates raw sugar.
The appellant argued that criteria for the description of the
sugar, other than its polarimeter reading, indicated that the
product was not refined sugar. Further, the appellant questioned
the accuracy of the polarimetric testing done by the CCRA.
The appeal was dismissed. In Inquiry No. NQ-95-002, anti-dumping
duties were imposed on "refined sugar, refined from sugar cane or
sugar beets, in granulated, liquid and powdered form, originating
in or exported from the United States of America". The sole issue
in this appeal was whether the product in issue was "refined
sugar".
The statement of reasons in Inquiry No. NQ-95-002 referred to
the classification under the Harmonized Commodity Description
and Coding System of the goods to which the findings apply. Of
relevance, the polarimeter reading of sugar was identified in the
subheading note in Chapter 17 as a means of determining whether
sugar is "raw sugar". In addition, the Explanatory Notes to the
Harmonized Commodity Description and Coding System (the
Explanatory Notes) to heading No. 17.01 state, in part, that
"refined cane . . . sugars are produced by the further processing
of raw sugar."
The Tribunal determined that, since the sucrose content by
weight of the product in issue, in the dry state, corresponded to a
polarimeter reading of 99.7 degrees, the product in issue was
not "raw sugar". It was also of the view that some further
processing of the "raw cane sugar" had taken place. This satisfied
the terms of the Explanatory Notes to heading No. 17.01, which
state, in part, that "refined cane . . . sugars are produced by the
further processing of raw sugar." Moreover, in light of the
extended description of the goods in Inquiry No. NQ-95-002,
and specifically the reference to "other" specialty sugars, the
Tribunal determined that the product in issue could also be
characterized as a specialty sugar in granulated form.
|
| |
|
|
1211863 Ontario Inc. O/A A & T Leasing
v.
MNR
AP-2000-021
Decision:
Appeal allowed in part
(August 1, 2001)
|
This was an appeal under section 81.19 of the Excise Tax
Act concerning an application for a refund of the excise tax on
air conditioners installed in automobiles. On March 23, 2000, the
Minister of National Revenue rendered a number of decisions under
section 68.1, denying the appellant's application for a refund of
the excise tax imposed on air conditioners installed in exported
automobiles.
The issue in this appeal was whether the appellant was entitled
to a refund of the excise tax under section 68.1 of the Excise
Tax Act, which was imposed on air conditioners installed in
exported automobiles.
The appeal was allowed in part. According to the Tribunal, to be
refundable under section 68.1 of the Excise Tax Act,
the excise tax must first be payable (i.e. the automobiles must be
equipped with air conditioners). Once established that it is
payable, the excise tax is deemed to be included in the sale price,
pursuant to section 154. Consequently, when the automobiles are
sold, the tax is deemed as paid. Further, the automobiles have to
be both new and exported. The respondent acknowledged that the
above two conditions were met.
The Tribunal determined that the dealers' invoices (with or
without the manufacturer's invoices), which indicated that an
excise tax was included in the price of the automobile or that the
automobile was equipped with an air conditioner, were sufficient to
establish that an excise tax was payable. The Tribunal also noted
that the Goods and Services Tax on the excise tax was reimbursed to
the appellant, indicating that it purchased the automobiles and
that the exporter paid the excise tax in this case.
The Tribunal concluded that, in all cases where the dealers'
invoices, alone or together with the manufacturer's invoices,
expressly stated that the excise tax was included in the sale price
or that the automobiles were equipped with air conditioners, the
appellant was entitled to a refund of the excise tax.
|
| |
|
|
Intersave West Buying and Merchandising Services
v.
CCRA
AP-2000-057
Decision:
Appeal allowed
(January 7, 2002)
|
This was an appeal under section 67 of the Customs Act
from decisions of the Commissioner pursuant to subsection 60(4) of
the Customs Act. The issue was the proper classification of
canned coconut milk.
The respondent argued that the coconut milk was properly
classified as other food preparations not elsewhere specified or
included (tariff item No. 2106.90.99). The appellant claimed
that the product should be classified under tariff item No.
2009.80.19 as other juice of any other single fruit or, in the
alternative, under tariff item No. 2008.99.90 as other fruit,
nuts and other edible parts of plants.
The appeal was allowed. The product was held to be properly
classified as other fruit, nuts and other edible parts of plants
(tariff item No. 2008.99.90). The Tribunal noted that heading
No. 20.09 covers fruit juices and vegetable juices. On reading the
Explanatory Notes to heading No. 20.09, it was clear to the
Tribunal that, for a normal fruit juice to be classified in heading
No. 20.09, it must not contain added water. As the product in issue
contained added water, even if the Tribunal were to consider the
coconut milk a normal fruit juice, it would not meet the
requirements of the Explanatory Notes to heading
No. 20.09.
The Tribunal also examined heading Nos. 20.08 and 21.06. Heading
No. 20.08 deals with fruit, nuts and other edible parts of
plants. Heading No. 21.06 covers food preparations not
elsewhere specified or included. The Explanatory Notes to heading
No. 20.08 allow for other substances to be added to the products of
this heading, as long as they do not alter the essential character
of the fruit or nuts. Thus, the fact that the product in issue
contains added water and a preservative does not prevent it from
being classified in that heading.
The Tribunal agreed with the appellant as to the residual
character of heading No. 21.06 and the fact that the Explanatory
Notes to that heading exclude preparations made from fruit and
nuts, provided the essential character of the preparation is given
by such fruit or nuts. It concluded that the essential character of
the canned coconut milk derives from the coconut itself.
|
| |
|
|
Canadian Tire Corporation Ltd.
v.
CCRA
AP-2000-056
Decision:
Appeal allowed
(February 19, 2002)
|
This was an appeal under section 67 of the Customs Act
from three decisions of the Commissioner dated December 6, 2000,
under subsection 60(4) of the Customs Act. The goods in
issue were multi-driver and bit sets and screwdriver sets. The
issue in this appeal was the proper classification of these
products. The respondent determined that the goods in issue were
properly classified as "screwdrivers" (tariff item No. 8205.40.00).
The appellant argued the products should be classified as other
"interchangeable tools" (tariff item No. 8207.90.90) or as
"tool holders" (tariff item No. 8466.10.00).
The appeal was allowed. The Tribunal determined that the goods
in issue were not classifiable under Rule 1 of the General Rules as
screwdrivers in heading No. 82.05. It concluded that the goods in
issue were in fact two articles classifiable in different
headings.
The Tribunal determined that the products were sets put up for
retail sale. Heading Nos. 82.07 and 84.66 refer to part only of the
products in issue and were held to be equally specific and
applicable. It also examined Rules 3(a) and 3(b) of the General
Rules. Rule 3(a) was held to be inapplicable. Rule 3(b), however,
guided the Tribunal to the conclusion that the essential character
of the sets was provided by the screwdriver bits. The multi-driver
and bit sets were comprised of 17 bits and the screwdriver set was
made up of 28 bits, or the majority of the components. The Tribunal
determined that the screwdriver bits gave the sets their broad
functionality and adaptability and gave the consumer the ability to
work with a range of screws. It also found that the goods in issue
should be classified under tariff item No. 8207.90.90.
|
| |
|
Important
Decision by the Supreme Court of Canada on the Standard of Review
of the Tribunal's Decisions
|
On June 7, 2001, the Supreme Court of Canada handed down a
decision that dealt with the standard of review applicable to the
Tribunal's decisions with respect to the value for duty of imported
goods under the Customs Act. In Canada (Deputy Minister
of National Revenue) v. Mattel Canada, [2001] 2 S.C.R.
100, the Supreme Court of Canada decided that the appropriate
standard of review applicable to the Tribunal's decisions in such
cases is correctness with respect to questions of law.
Questions of law requiring the application of principles of
statutory interpretation and other concepts relating to commercial
law are reviewable by the courts. The Tribunal's decisions with
respect to the value for duty of imported goods and other matters
under the Customs Act are protected by a partial privative
clause, qualified by a statutory right of appeal to the Federal
Court of Appeal on "any question of law". This right to appeal on
questions of law derives from the fact that the Tribunal's
expertise does not speak to such matters, for example, as are
intrinsic to commercial law.
|
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, 2001, and
March 31, 2002.
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, 2001, and March 31, 2002.
| |
CHAPTER V
|
| |
ECONOMIC, TRADE
AND TARIFF REFERENCES AND SAFEGUARD INQUIRIES
|
Introduction
|
The CITT Act contains broad provisions under which the
government or the Minister of Finance may ask the Tribunal to
conduct an inquiry on any economic, trade, tariff or commercial
matter. In an inquiry, the Tribunal acts in an advisory capacity,
with powers to conduct research, receive submissions and
representations, find facts, hold public hearings and report, with
recommendations as required, to the government or the Minister of
Finance.
One of the responsibilities of the Tribunal is to conduct
inquiries to determine if Canadian producers are being seriously
injured by increased imports of goods into Canada. The Tribunal may
initiate import safeguard inquiries following a complaint by
domestic producers. The Government may also direct the Tribunal to
conduct import safeguard inquiries. Pursuant to an inquiry where
the Tribunal determines that increased imports of the goods have
caused, or are threatening to cause, serious injury to Canadian
producers of like or directly competitive goods, the Government may
apply import safeguard measures to assist those domestic
producers.
|
| |
|
Safeguard
Inquiry
|
On March 21, 2002, the Tribunal was directed by Her Excellency
the Governor General in Council, on the recommendation of the
Minister of Finance and the Minister for International Trade,
pursuant to paragraph 20(a) of the CITT Act, to inquire into
and report on the importation of certain steel goods.
The purpose of this inquiry is to determine whether any of the
goods subject to the inquiry is being imported into Canada from all
sources in such increased quantities since the beginning of 1996,
and under such conditions, as to be a principal cause of serious
injury or threat thereof to domestic producers of like or directly
competitive goods. If the Tribunal makes an affirmative
determination with respect to a good, the Tribunal shall provide
recommendations in respect of the good as to the most appropriate
remedy to address, over a period of three years, the injury caused
or threatened to be caused by increased imports of that good.
The goods subject to the inquiry include flat-rolled carbon and
alloy steel products, carbon and alloy "long" steel products, and
welded and seamless, carbon and alloy tubular steel products. The
goods with respect to which the Tribunal will conduct its inquiry
are the following: flat-rolled carbon and alloy steel discrete
plate; flat-rolled carbon and alloy steel hot-rolled sheet and
coil; flat-rolled carbon and alloy steel cold-rolled sheet and
coil; flat-rolled carbon and alloy steel corrosion-resistant sheet
and coil; carbon and alloy hot-rolled bars; carbon and alloy
hot-rolled shapes and light and intermediate structurals; carbon
and alloy cold-drawn and finished bars and rods; and carbon and
alloy concrete reinforcing bars; and welded and seamless carbon and
alloy tubular steel pipe to 16" O.D.
As directed by Her Excellency, the Tribunal will submit a notice
of any determination on July 4, 2002, and its report on any
determination and any recommendation on August 19, 2002.
|
| |
|
Textile
Reference
|
Pursuant to a reference from the Minister of Finance dated July
6, 1994, as amended on March 20 and July 24, 1996, on November
26, 1997, and on August 19, 1999, the Tribunal was directed to
investigate requests from domestic producers for tariff relief on
imported textile inputs for use in their manufacturing operations
and to make recommendations in respect of those requests to the
Minister of Finance.
|
| |
|
Scope of the Reference
|
A domestic producer may apply for tariff relief on an imported
textile input used, or proposed to be used, in its manufacturing
operations. The textile inputs on which tariff relief may be
requested are the fibres, yarns and fabrics of Chapters 51, 52, 53,
54, 55, 56, 58, 59 and 60; certain monofilaments or strips and
textile and plastic combinations of Chapter 39; rubber thread and
textile and rubber combinations of Chapter 40; and products of
textile glass fibres of Chapter 70 of the schedule to the
Customs Tariff. Since July 24, 1996, and at least until July
1, 2002, the following yarns are not included in the textile
reference:
Knitting yarns, solely of cotton or solely of cotton and
polyester staple fibres, measuring more than 190 decitex, of
Chapter 52 or subheading No. 5509.53 other than those used to
make sweaters, having a horizontal self-starting finished edge and
the outer surfaces of which are constructed essentially with 9
or fewer stitches per 2 centimetres (12 or fewer stitches
per inch) measured in the horizontal direction.
|
| |
|
Types of Relief Available
|
The tariff relief that may be recommended by the Tribunal to the
Minister of Finance ranges from the removal or reduction of tariffs
on one or several, partial or complete, tariff lines, textile-
and/or end-use-specific tariff provisions. In the case of requests
for tariff relief on textile inputs used in the manufacture of
women's swimsuits, co-ordinated beachwear and co-ordinated
accessories only, the recommendation could include company-specific
relief. The recommendation could be for tariff relief for either a
specific or an indeterminate period of time. However, the Tribunal
will only recommend tariff relief that is administrable on a
cost-effective basis.
|
| |
|
Process
|
Domestic producers seeking tariff relief must file a request
with the Tribunal. Producers must file with the request either
samples of the textile input for which tariff relief is being
sought or a National Customs Ruling from the CCRA covering the
input. If the Tribunal determines that the request is properly
documented, it will conduct an investigation to determine if it
should recommend tariff relief.
|
| |
|
Filing and Notification of a Request
|
Upon receipt of a request for tariff relief, and before
commencement of an investigation, the Tribunal issues a brief
electronic notice on its Web site announcing the request. The
minimum period of time for the notification of a request before an
investigation is commenced is 30 days.
This notification is designed to increase transparency, identify
potential deficiencies in the request, avoid unnecessary
investigations, provide an opportunity for the domestic textile
industry to contact the requester and agree on a reasonable
domestic source of supply, inform other users of identical or
substitutable textile inputs, prepare the domestic industry to
respond to subsequent investigation questionnaires and give
associations advance time for planning and consultation with their
members.
|
| |
|
Investigations
|
When the Tribunal is satisfied that a request is properly
documented, it commences an investigation. A notice of commencement
of investigation is sent to the requester, all known interested
parties and any appropriate government department or agency, such
as the Department of Foreign Affairs and International Trade, the
Department of Industry, the Department of Finance and the CCRA. The
notice is also published in the Canada Gazette.
In any investigation, interested parties include domestic
producers, certain associations and other persons who are entitled
to be heard by the Tribunal because their rights or pecuniary
interests may be affected by the Tribunal's recommendations.
Interested parties are given notice of the request and can
participate in the investigation. Interested parties include
competitors of the requester, suppliers of goods that are identical
to or substitutable for the textile input and downstream users of
goods produced from the textile input.
To prepare a staff investigation report, the Tribunal staff
gathers information through such means as plant visits and
questionnaires. Information is obtained from the requester and
interested parties, such as a domestic supplier of the textile
input, for the purpose of providing a basis for determining whether
the tariff relief sought will maximize net economic gains for
Canada.
In normal circumstances, a public hearing is not required, and
the Tribunal will dispose of the matter on the basis of the full
written record, including the request, the staff investigation
report and all submissions and evidence filed with the
Tribunal.
The procedures for the conduct of the Tribunal's investigation
envisage the full participation of the requester and all interested
parties. A party, other than the requester, may file submissions,
including evidence, in response to the properly documented request,
the staff investigation report and any information provided by a
government department or agency. The requester may subsequently
file submissions with the Tribunal in response to the staff
investigation report and any information provided by a government
department or agency or other party.
|
| |
|
Recommendations to the Minister
|
The Tribunal will normally issue its recommendations, with
reasons, to the Minister of Finance within 120 days from the date
of commencement of the investigation. In exceptional cases, where
the Tribunal determines that critical circumstances exist, it will
issue its recommendations within an earlier specified time frame
that it deems appropriate. The Tribunal will recommend the
reduction or removal of customs duties on a textile input where it
will maximize net economic gains for Canada.
|
| |
|
Request for Review
|
Where the Minister of Finance has made an order for tariff
relief pursuant to a recommendation of the Tribunal, certain
domestic producers may make a request to the Tribunal to commence
an investigation for the purpose of recommending the renewal,
amendment or termination of the order. A request for the amendment
or termination of the order should specify what changed
circumstances justify such a request.
|
| |
|
Review on Expiry
|
Where the Minister of Finance has made an order for tariff
relief subject to a scheduled expiry date, the Tribunal will,
before the expiry date, issue a formal notice that the tariff
relief provided by the order will expire unless the Tribunal issues
a recommendation that tariff relief should be continued and the
Minister of Finance implements the recommendation. The notice
invites interested parties to file submissions for or against
continuation of tariff relief.
If no opposition to the continuation of tariff relief is
received, upon receipt of submissions and information supporting
the request for continuation of tariff relief, the Tribunal may
decide to recommend the continuation of tariff relief. Conversely,
if no request for continuation of tariff relief is submitted, the
Tribunal may decide to recommend the termination of tariff relief.
If it appears that a more complete review is warranted, the
Tribunal will conduct an investigation to consider whether all
relevant factors 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.
|
| |
|
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 February 25, 2002, with its
seventh annual status report on the investigation process. The
status report covered the period from October 1, 2000, to September
30, 2001.
|
| |
|
Recommendations Submitted During the Fiscal Year
|
During the fiscal year, the Tribunal issued three reports to the
Minister of Finance, which related to four requests for tariff
relief. At year end, two requests were under investigation.
Table 1 at the end of this chapter summarizes these activities.
|
| |
|
Recommendations in Place
|
By the end of the fiscal year, the Government had implemented
85 recommendations by the Tribunal, of which 78 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 $172 million
(estimated) and provided tariff relief worth $23 million
(estimated); these amounts are comparable to those reported last
year.
A summary of the Tribunal's recommendations issued during the
fiscal year follows.
|
| |
|
|
Scapa Tapes North America Ltd.
TR-2000-007 and
TR-2000-008
Recommendation
Indeterminate tariff relief
(September 13, 2001)
|
The Tribunal recommended to the Minister of Finance that tariff
relief be granted for an indeterminate period of time on
importations of woven fabrics, solely of cotton, bleached or dyed,
plain weave, ring-spun, weighing not more than 100 g/m2,
of subheading No. 5208.21 or 5208.31, for use in the manufacture of
pressure-sensitive adhesive tape.
The Tribunal did not believe that there would be any direct
commercial costs associated with the removal of the customs duty on
the importation of the subject fabrics, as no domestic textile
producers produced these fabrics. Accordingly, the Tribunal
concluded that tariff relief would provide a yearly benefit to
Scapa Tapes North America Ltd. in excess of $500,000.
|
| |
|
|
Peerless Clothing Inc.
TR-2000-005
Recommendation: Indeterminate tariff relief
(October 1, 2001)
|
The Tribunal recommended to the Minister of Finance that tariff
relief be granted for an indeterminate period of time on
importations of woven fabrics, solely of combed wool or mixed
solely with cotton, silk or man-made fibres, containing 95 percent
or more by weight of worsted wool having an average fibre diameter
of 18.5 microns or less, of a weight not exceeding 220
g/m2, of subheading No 5112.19, for use in the
manufacture of men's suits, jackets, blazers, vests (waistcoats)
and trousers.
Two domestic textile mills opposed this request. Cleyn &
Tinker Inc. (Cleyn & Tinker) argued that it produced a wide
range of identical or substitutable fabrics of worsted wool, while
Victor Woolen Products, Ltd. (Victor) indicated that, although it
did not produce identical or substitutable fabrics, one of its
subsidiaries in the United States did.
In its analysis, the Tribunal concentrated exclusively on Cleyn
& Tinker because it was of the view that Victor's situation
with regard to the potential availability of fabrics produced in
the United States was not relevant. The Tribunal noted that Cleyn
& Tinker was not, to any large extent, in the market of the
very fine wool fabrics that were the subject of the request, but
rather in the broader market of wool fabrics with somewhat coarser
wool fibres. It further noted that the production and sales of
allegedly identical or substitutable fabrics represented a small
portion of Cleyn & Tinker's overall activity. The Tribunal also
noted that the landed cost of the subject fabrics was, in the vast
majority of cases, notably higher than the average selling price of
the allegedly substitutable fabrics produced by Cleyn &
Tinker.
The Tribunal recognized that, as a result of a certain degree of
fabric substitutability, there may be some negative impact from
tariff relief on Cleyn & Tinker. However, it was of the view
that any costs would be substantially outweighed by the benefits to
be gained by Peerless Clothing Inc. and other apparel manufacturers
that use these fabrics. These yearly benefits were estimated to be
in excess of $3 million. Consequently, the Tribunal recommended
that tariff relief be granted on these fabrics.
|
| |
|
|
Beco Industries Ltd.
TR-2001-002
Recommendation: Indeterminate tariff relief/No tariff relief
(March 20, 2002)
|
The Tribunal recommended to the Minister of Finance that tariff
relief be granted for an indeterminate period of time on
importations from all countries, of woven fabrics of polyester
staple fibres, containing less than 85 percent by weight of
polyester, mixed solely with cotton, printed, plain weave, of a
weight not exceeding 100 g/m2, of subheading
No. 5513.41, for use in the manufacture of sleeping bags. It
did not recommend that tariff relief be granted on woven fabrics,
solely of nylon filament yarn, dyed, plain weave, of a weight not
exceeding 70 g/m2, of subheading No. 5407.42,
for use in the manufacture of sleeping bags or sleeping bag
carrying sacks of the same material.
The Tribunal noted that Consoltex Inc. and Doubletex Inc. are
producers of woven fabrics of nylon and that both companies have
produced and sold nylon fabrics to a number of Canadian
manufacturers of sleeping bags and still count, among their
customers, some of the largest domestic producers of sleeping bags.
This is clear evidence that the domestic textile industry has the
ability to supply nylon fabrics for the production of sleeping bags
and sleeping bag carrying sacks.
With regard to the issue of net economic impact, the Tribunal
saw no cost as a result of the tariff relief on polyester-cotton
fabrics requested by Beco Industries Ltd. (Beco). On the basis of
the information available to the Tribunal, tariff relief would
provide yearly benefits to Beco in the form of reduced input costs
of over $50,000. As for Beco's request for retroactive tariff
relief, the Tribunal stated, in previous cases, that it will not
consider recommending such relief other than in exceptional
circumstances. Beco provided no evidence to warrant such a
recommendation.
|
|
Request No./
Review No.
|
Expiry No.
(Original Request No.)
|
Requester/Textile Input
|
Tariff Item No./Order in Council
|
Duration
|
|
TR-94-001
|
|
Canatex Industries (Division of Richelieu
Knitting Inc.)
|
5402.41.12
|
Indeterminate
|
|
TR-94-004
|
|
Woods Canada Limited
|
5208.52.10
|
Indeterminate
|
|
TR-94-010
|
|
Palliser Furniture Ltd.
|
5806.20.10
|
Indeterminate
|
|
TR-94-012
|
|
Peerless Clothing Inc.
|
5309.29.20
|
Indeterminate
|
|
TR-94-013 and TR-94-016
|
|
MWG Apparel Corp.
|
5208.42.20
5208.43.20
5208.49.20
5513.31.10
5513.32.10
5513.33.10
|
Indeterminate
|
|
TR-94-017 and TR-94-018
|
|
Elite Counter & Supplies
|
9943.00.00
|
Indeterminate
|
|
TR-95-003
|
|
Landes Canada Inc.
|
5603.11.20
5603.12.20
5603.13.20
5603.14.20
5603.91.20
5603.92.20
5603.93.20
5603.94.20
|
Indeterminate
|
|
TR-95-004
|
|
Lingerie Bright Sleepwear (1991) Inc.
|
5208.12.20
5208.52.20
|
Indeterminate
|
|
TR-95-005
|
|
Lingerie Bright Sleepwear (1991) Inc.
|
5513.11.10
5513.41.10
|
Indeterminate
|
|
TR-95-009
|
|
Peerless Clothing Inc.
|
5408.21.10
5408.21.20
5408.22.21
5408.22.30
|
Indeterminate
|
|
TR-95-010 and TR-95-034
|
|
Freed & Freed International Ltd. and
Fen-nelli Fashions Inc.
|
5111.19.10
5111.19.20
|
Indeterminate
|
|
TR-95-011
|
|
Louben Sportswear Inc.
|
5408.31.10
5408.32.20
|
Indeterminate
|
|
TR-95-012
|
|
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 years
|
|
TR-96-008 and
TR-96-010 to
TR-96-013
|
|
Les Collections Shan Inc.
|
P.C. 1997-1668
|
Five years
|
|
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-99-003/003A
|
|
Western Glove Works Ltd.
|
5209.31.30
5209.32.30
|
Indeterminate
|
|
TR-99-004
|
|
Peerless Clothing Inc.
|
5112.11.20
5112.11.30
5112.19.20
5112.19.30
|
Indeterminate
|
|
TR-99-005
|
|
Distex Inc.
|
6002.92.30
|
Indeterminate
|
|
TR-99-006
|
|
Coloridé Inc.
|
5402.41.15
|
Indeterminate
|
|
TR-99-008
|
|
JMJ Fashions Inc.
|
5407.61.20
|
Indeterminate
|
|
TR-2000-001
|
|
Peerless Clothing Inc.
|
5408.22.22
|
Indeterminate
|
|
TR-2000-002
|
|
Majestic Industries (Canada) Ltd.
|
5802.19.30
|
Indeterminate
|
|
TR-2000-003
|
|
Tantalum Mining Corporation of Canada Limited
|
5911.40.10
|
Indeterminate
|
|
TR-2000-004
|
|
Ballin Inc.
|
5516.23.30
5516.93.20
|
Indeterminate
|
|
TR-2000-005
|
|
Peerless Clothing Inc.
|
5112.11.40
5112.19.40
|
Indeterminate
|
|
TR-2000-007 and TR-2000-008
|
|
Scapa Tapes North America Ltd.
|
5208.21.50
5208.31.20
|
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 agreements: Chapter Ten of NAFTA,
Chapter Five of the AIT, the AGP, or the Canada-Korea
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 September 1, 2001, 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 on MERX and
in 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
contrary to 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 and any intervener are then sent a copy of the
GIR and have seven days to submit comments. These are forwarded to
the government institution and parties to the inquiry.
Copies of any other submissions or reports prepared for the
inquiry are also 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 determines whether the complaint is valid. If
the complaint is found to be valid, the Tribunal may make
recommendations to the government institution (such as retendering,
re-evaluating or providing compensation) and award reasonable costs
to a prevailing complainant for preparing 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, by statute, to be implemented to
the greatest extent possible.
|
| |
|
| |
Summary of
Procurement Review Activities
|
| |
|
2000-2001
|
2001-2002
|
| |
NUMBER OF COMPLAINTS
|
|
|
| |
Carried over from previous fiscal year
|
9
|
22
|
| |
Received in fiscal year
|
78
|
77
|
| |
TOTAL
|
87
|
99
|
| |
CASES RESOLVED BY THE PARTIES
|
|
|
| |
Withdrawn or Resolved by the Parties
|
5
|
11
|
| |
Abandoned While Filing
|
1
|
-
|
| |
Subtotal
|
6
|
11
|
| |
INQUIRIES NOT INITIATED OR CONTINUED ON PROCEDURAL
GROUNDS
|
|
|
| |
Lack of Jurisdiction
|
6
|
8
|
| |
Late or Improper Filing
|
8
|
12
|
| |
No Valid Basis/No Reasonable indication of a
breach/Premature
|
17
|
16
|
| |
Dismissed
|
-
|
3
|
| |
Subtotal
|
31
|
39
|
| |
CASES DETERMINED ON MERIT
|
|
|
| |
Complaint Not Valid
|
15
|
9
|
| |
Complaint Valid or Valid in Part
|
13
|
23
|
| |
Subtotal
|
28
|
32
|
| |
OUTSTANDING AT END OF FISCAL YEAR
|
22
|
17
|
| |
|
Summary of
Selected Determinations
|
During the fiscal year, the Tribunal issued 32 written
determinations of its findings and recommendations, which related
to 32 procurement complaints. In 23 of the 32 written
determinations, the complaints were determined to be valid or valid
in part. Seventeen 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.
|
| |
|
|
Polaris Inflatable Boats (Canada) Ltd.
PR-2000-044
and PR-2000-049
to PR-2000-053
Determination:
Five complaints valid in part/One complaint dismissed
(May 14, 2001)
|
The Tribunal made a determination with respect to six complaints
filed by Polaris Inflatable Boats (Canada) Ltd. (Polaris)
concerning six solicitations of the offices of the Pacific,
Ontario, Quebec and Atlantic Regions of the Department of Public
Works and Government Services (PWGSC). These solicitations were for
the supply of six- and seven-metre rigid hull inflatable boats
(RHIBs) for the Department of Fisheries and Oceans (DFO) and its
constituent, the Canadian Coast Guard. Together, these
solicitations were for the supply of 12 RHIBs in fiscal year
2000-2001 and up to 29 additional RHIBs during the following two
fiscal years.
Polaris alleged that, by issuing so many solicitations
concurrently and by not allowing sufficient time for bid
formulation and delivery of the RHIBs, PWGSC and the DFO structured
the above-noted solicitations so as to avoid competition and
benefit a single supplier, Zodiac Hurricane Technologies Inc. It
also made a number of allegations with respect to each of the
above-mentioned solicitations.
As a remedy, Polaris requested that PWGSC consult with qualified
suppliers to establish acceptable time frames for solicitation
responses and for the construction and delivery of the RHIBs. It
also requested that PWGSC limit the current contracts to the supply
of those vessels that were needed at that time and reissue fair
solicitations allowing for realistic response and construction
times for any remaining RHIBs required.
Having examined the evidence presented by the parties and
considered the provisions of NAFTA and the AIT, the Tribunal
determined that five solicitations were not conducted in accordance
with the provisions of the applicable trade agreements and that the
complaints in relation thereto were, therefore, valid in part. The
remaining solicitation had been cancelled by PWGSC and was no
longer at issue. Therefore, the complaint would not be decided on
the merits of the case.
|
| |
|
|
FM One Alliance Corp.
PR-2000-063
Determination:
Complaint valid
(June 27, 2001)
|
The Tribunal made a determination with respect to a complaint
filed by FM One Alliance Corp. (FM One) concerning the cancellation
by Canada Post Corporation (CPC) of a Request for Proposal (RFP)
for the provision of facility management services, the proposed
renewal of a Property Management Agreement with Brookfield Lepage
Johnson Controls Facility Management Services (BLJC) and the
proposed renewal of a Property Management Agreement with Profac
Facilities Management Services Inc. (Profac).
FM One alleged that, contrary to Article 1001(4) of
NAFTA, the proposed "renewals" had been structured to avoid
the obligations of Chapter Ten of NAFTA. It also alleged that,
contrary to Articles 1008(2)(a) and (b) of NAFTA, CPC's actions
leading to the proposed procurements failed to provide all
suppliers equal access to information with respect to the
procurements during the period prior to the issuance of any notice
or tender documentation. Furthermore, FM One alleged that CPC had
failed to publish an invitation to participate in the proposed
procurements, thus violating the provisions of Article 1010 of
NAFTA. In addition, it alleged that CPC had engaged in unjustified
limited tendering procedures, contrary to the provisions of Article
1016 of NAFTA. Finally, FM One alleged that, in structuring these
procurements, CPC had breached the provisions of Article 1015(4)(e)
of NAFTA, which requires that option clauses not be used in a
manner that circumvents Chapter Ten of NAFTA.
As a remedy, FM One requested that CPC be ordered to postpone
the award of the proposed contract renewals to BLJC and ProFac
until the Tribunal determined the validity of the complaint. In
addition, FM One requested that the Tribunal order CPC to amend the
RFP to make it compliant with NAFTA and previous Tribunal
determinations and that CPC continue the bidding process with the
qualified bidders or issue a new solicitation compliant with NAFTA
for the designated contracts. In the alternative, FM One requested
compensation for the profit that it had lost as a result of the
defective procurements. It also requested compensation for its
costs in preparing a response to the RFP and all activities in
relation thereto and for the costs of the complaint.
Having examined the evidence presented by the parties and
considered the provisions of NAFTA, the Tribunal determined that
the procurement was not conducted in accordance with the provisions
of NAFTA and that the complaint was therefore valid. It recommended
that CPC not proceed with the proposed service agreement renewals
and that, instead, a solicitation be issued for the property
management services therein. The procurement process for those
services was to be completed within six months and conducted in
compliance with NAFTA. The Tribunal awarded FM One the reasonable
costs that it had incurred in preparing and proceeding with the
complaint.
|
| |
|
|
COGNOS Incorporated
PR-2001-036
Determination:
Complaint valid
(February 20, 2002)
|
The Tribunal made a determination with respect to a complaint
filed by COGNOS Incorporated (COGNOS) concerning a solicitation of
PWGSC, on behalf of the Department of Justice, for a balanced
scorecard management information system adapted to the Department
of Justice and an on-line analytical processing system, including
licences, ongoing software support and user training.
COGNOS alleged that the solicitation included restrictive
technical specifications and a time frame for the submission of
proposals that had the effect of discriminating in favour of a
competitor's product.
Having examined the evidence presented by the parties and
considered the provisions of the AIT, NAFTA and the AGP, the
Tribunal determined that the complaint was valid in part and
recommended that PWGSC issue a new solicitation. The Tribunal
further awarded COGNOS its reasonable complaint costs.
|
| |
|
|
Hewlett-Packard (Canada) Ltd.
PR-2001-030
and PR-2001-040
Determination:
Complaints valid
(February 21, 2002)
|
The Tribunal made a determination with respect to two complaints
filed by Hewlett-Packard (Canada) Ltd. (Hewlett-Packard) concerning
a procurement of PWGSC, on behalf of the Department of Human
Resources Development (HRDC), for the development and
implementation of a consolidation plan for UNIX services and the
establishment of a means of acquiring services (including
professional services), equipment and software, as and when
required.
Hewlett-Packard alleged that PWGSC improperly evaluated a
submission from another bidder as being compliant. It also alleged
that PWGSC improperly destroyed documents relating to the
evaluation of proposals, contrary to the provisions of
NAFTA.
Having examined the evidence presented by the parties and
considered the provisions of the AIT and NAFTA, the Tribunal
determined that the complaints were valid. It concluded that the
bids were not correctly evaluated and recommended that the existing
contract be terminated and that PWGSC and HRDC issue a new
solicitation. Further, the Tribunal found that PWGSC and HRDC
breached the provisions of NAFTA by destroying the evaluators'
worksheets and recommended that PWGSC establish procedures designed
to ensure that complete documentation be maintained for each
procurement. The Tribunal awarded Hewlett-Packard its reasonable
costs.
|
| |
|
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-2000-018R
|
X-Wave Solutions Inc.
|
June 28, 2000
|
Remitted back to Tribunal
|
|
PR-2000-042
|
Spallumcheen Band
|
December 13, 2000
|
Decision rendered on April 26, 2001
Complaint not valid
|
|
PR-2000-044
|
Polaris Inflatable Boats (Canada) Ltd.
|
December 15, 2000
|
Decision rendered on May 14, 2001
Complaint valid in part
|
|
PR-2000-049
|
Polaris Inflatable Boats (Canada) Ltd.
|
December 15, 2000
|
Decision rendered on May 14, 2001
Complaint valid in part
|
|
PR-2000-050
|
Polaris Inflatable Boats (Canada) Ltd.
|
December 15, 2000
|
Decision rendered on May 14, 2001
Complaint valid in part
|
|
PR-2000-051
|
Polaris Inflatable Boats (Canada) Ltd.
|
December 15, 2000
|
Decision rendered on May 14, 2001
Complaint valid in part
|
|
PR-2000-052
|
Polaris Inflatable Boats (Canada) Ltd.
|
December 15, 2000
|
Decision rendered on May 14, 2001
Complaint valid in part
|
|
PR-2000-053
|
Polaris Inflatable Boats (Canada) Ltd.
|
January 4, 2001
|
Decision rendered on May 14, 2001
Complaint valid in part
|
|
PR-2000-059
|
P&L Communications Inc.
|
February 8, 2001
|
Decision rendered on May 30, 2001
Complaint valid
|
|
PR-2000-060
|
Foundry Networks Inc.
|
February 8, 2001
|
Decision rendered on May 23, 2001
Complaint valid
|
|
PR-2000-063
|
FM One Alliance Corp.
|
February 12, 2001
|
Decision rendered on June 27, 2001
Complaint valid
|
|
PR-2000-064
|
Wescam Inc.
|
February 12, 2001
|
Decision rendered on May 7, 2001
Complaint valid
|
|
PR-2000-065
|
Cifelli Systems Corporation
|
February 16, 2001
|
Decision rendered on June 21, 2001
Complaint valid
|
|
PR-2000-067
|
Foundry Networks Inc.
|
February 19, 2001
|
Decision rendered on June 4, 2001
Complaint not valid
|
|
PR-2000-068
|
Cifelli Systems Corporation
|
March 1, 2001
|
Complaint withdrawn
|
|
PR-2000-071
|
TAB Canada
|
March 5, 2001
|
Decision rendered on July 18, 2001
Complaint valid in part
|
|
PR-2000-072
|
The Baxter Group Inc.
|
March 7, 2001
|
Complaint withdrawn
|
|
PR-2000-073
|
P&L Communications Inc.
|
March 14, 2001
|
Decision rendered on July 24, 2001
Complaint valid in part
|
|
PR-2000-074
|
M.D. Charlton Co. Ltd.
|
March 16, 2001
|
Complaint withdrawn
|
|
PR-2000-075
|
M.D. Charlton Co. Ltd.
|
March 16, 2001
|
Complaint withdrawn
|
|
PR-2000-077
|
Volvo Motor Graders Ltd.
|
March 23, 2001
|
Decision rendered on August 1, 2001
Complaint valid
|
|
PR-2000-078
|
Eurodata Support Services Inc.
|
March 29, 2001
|
Decision rendered on July 30, 2001
Complaint not valid
|
|
PR-2001-001
|
Light Tree Technologies, Inc.
|
April 10, 2001
|
Complaint withdrawn
|
|
PR-2001-002
|
Light Tree Technologies, Inc.
|
April 10, 2001
|
Complaint withdrawn
|
|
PR-2001-003
|
Light Tree Technologies, Inc.
|
April 10, 2001
|
Complaint withdrawn
|
|
PR-2001-004
|
OdySoft
|
April 9, 2001
|
Not accepted for inquiry, no reasonable indication of a
breach
|
|
PR-2001-005
|
Light Tree Technologies, Inc.
|
April 10, 2001
|
Not accepted for inquiry, no complaint received
|
|
PR-2001-006
|
Diversicomm Data Systems Inc.
|
April 19, 2001
|
Decision rendered on August 30, 2001
Complaint not valid
|
|
PR-2001-007
|
Bell Nexxia
|
April 6, 2001
|
Not accepted for inquiry, no reasonable indication of a
breach
|
|
PR-2001-008
|
Foundry Networks Inc.
|
April 17, 2001
|
Decisions rendered on August 30, 2001
Complaint not valid
|
|
PR-2001-009
|
Foundry Networks Inc.
|
April 17, 2001
|
Complaint dismissed, late filing
|
|
PR-2001-010
|
D'Arcy Moving & Storage
|
May 14, 2001
|
Not accepted for inquiry, no reasonable indication of a
breach
|
|
PR-2001-011
|
COGNOS Incorporated
|
May 15, 2001
|
Not accepted for inquiry, premature complaint
|
|
PR-2001-012
|
Foundry Networks Inc.
|
May 16, 2001
|
Not accepted for inquiry, no reasonable indication of a
breach
|
|
PR-2001-013
|
Lockheed Canada
|
May 25, 2001
|
Not accepted for inquiry, premature complaint
|
|
PR-2001-014
|
Fjord Tech Industries Inc.
|
May 30, 2001
|
Not accepted for inquiry, late filing
|
|
PR-2001-015
|
Resource Futures International
|
May 30, 2001
|
Not accepted for inquiry, late filing
|
|
PR-2001-016
|
G.J. Cahill and Company (1979) Limited
|
May 31, 2001
|
Not accepted for inquiry, not a designated contract
|
|
PR-2001-017
|
COGNOS Incorporated
|
July 6, 2001
|
Not accepted for inquiry, late filing
|
|
PR-2001-018
|
Corel Corporation
|
July 18, 2001
|
Complaint withdrawn
|
|
PR-2001-019
|
Marathon Management Company
|
July 19, 2001
|
Complaint dismissed, does not relate to a designated
contract
|
|
PR-2001-020
|
Ajilon Canada
|
July 16, 2001
|
Not accepted for inquiry, no reasonable indication of a
breach
|
|
PR-2001-021
|
Marathon Management Company
|
July 23, 2001
|
Complaint withdrawn
|
|
PR-2001-022
|
Corporate Express
|
July 20, 2001
|
Not accepted for inquiry, no jurisdiction
|
|
PR-2001-023
|
Bell Nexxia
|
August 8, 2001
|
Decision rendered on October 25, 2001
Complaint not valid
|
|
PR-2001-024
|
Astaris
|
August 7, 2001
|
Not accepted for inquiry, no reasonable indication of a
breach
|
|
PR-2001-025
|
Empowered Networks Inc.
|
August 23, 2001
|
Decision rendered on December 27, 2001
Complaint not valid
|
|
PR-2001-026
|
McNally Construction Inc.
|
September 17, 2001
|
Decision rendered on December 6, 2001
Complaint valid in part
|
|
PR-2001-027
|
PTI Services
|
September 28, 2001
|
Decision rendered on November 28, 2001
Complaint valid
|
|
PR-2001-028
|
Compugen
|
September 21, 2001
|
Not accepted for inquiry, late filing
|
|
PR-2001-029
|
John Chandioux experts-conseils inc.
|
October 1, 2001
|
Decision rendered on February 19, 2002
Complaint valid in part
|
|
PR-2001-030
|
Hewlett-Packard (Canada) Ltd.
|
October 9, 2001
|
Decision rendered on February 21, 2002
Complaint valid
|
|
PR-2001-031
|
C.F. Industrial Products Inc.
|
October 11, 2001
|
Decision rendered on January 9, 2002
Complaint not valid
|
|
PR-2001-032
|
John Chandioux experts-conseils inc.
|
October 17, 2001
|
Decision rendered on February 19, 2002
Complaint valid in part
|
|
PR-2001-033
|
Marathon Management Company
|
October 11, 2001
|
Complaint withdrawn
|
|
PR-2001-034
|
Diversicomm Data Systems
|
October 24, 2001
|
Decision rendered on January 22, 2002
Complaint not valid
|
|
PR-2001-035
|
Preston Phipps Inc.
|
October 25, 2001
|
Decision rendered on January 23, 2002
Complaint valid in part
|
|
PR-2001-036
|
COGNOS Incorporated
|
October 26, 2001
|
Decision rendered on February 20, 2002
Complaint valid
|
|
PR-2001-037
|
Foundry Networks Inc.
|
October 26, 2001
|
Not accepted for inquiry, no reasonable indication of a
breach
|
|
PR-2001-038
|
Papp Plastics & Distributing Ltd.
|
October 31, 2001
|
Decision rendered on January 31, 2002
Complaint valid in part
|
|
PR-2001-039
|
Cifelli Systems Corporation
|
November 5, 2001
|
Not accepted for inquiry, not a potential supplier
|
|
PR-2001-040
|
Hewlett-Packard (Canada) Ltd.
|
November 15, 2001
|
Decision rendered on February 21, 2002
Complaint valid
|
|
PR-2001-041
|
Fleetway Inc.
|
November 29, 2001
|
Not accepted for inquiry, late filing
|
|
PR-2001-042
|
Seatech Ltd.
|
November 28, 2001
|
Not accepted for inquiry, late filing
|
|
PR-2001-043
|
Fleetway Inc.
|
November 28, 2001
|
Not accepted for inquiry, not a designated contract
|
|
PR-2001-044
|
InBusiness Systems Inc.
|
December 5, 2001
|
Not accepted for inquiry, complaint premature
|
|
PR-2001-045
|
Transpolar Technology Corporation
|
December 6, 2001
|
Not accepted for inquiry, not a designated contract
|
|
PR-2001-046
|
Educom TS Inc.
|
December 6, 2001
|
Complaint withdrawn
|
|
PR-2001-047
|
Foundry Networks Inc.
|
December 12, 2001
|
Not accepted for inquiry, late filing
|
|
PR-2001-048
|
Foundry Networks Inc.
|
December 12, 2001
|
Decision rendered on March 12, 2002
Complaint valid
|
|
PR-2001-049
|
Aviva Solutions Inc.
|
December 13, 2001
|
Accepted for inquiry
|
|
PR-2001-050
|
Papp Plastics & Distributing Ltd.
|
December 14, 2001
|
Not accepted for inquiry, late filing
|
|
PR-2001-051
|
DRS Technologies Inc.
|
December 18, 2001
|
Accepted for inquiry
|
|
PR-2001-052
|
CMC Electronics Inc.
|
December 18, 2001
|
Accepted for inquiry
|
|
PR-2001-053
|
Fritz Starber Inc.
|
December 19, 2001
|
Not accepted for inquiry, not a designated contract
|
|
PR-2001-054
|
Foundry Networks Inc.
|
December 31, 2001
|
Not accepted for inquiry, no reasonable indication of a
breach
|
|
PR-2001-055
|
Foundry Networks Inc.
|
January 3, 2002
|
Not accepted for inquiry, late filing
|
|
PR-2001-056
|
ACMG Management Inc.
|
January 25, 2002
|
Accepted for inquiry
|
|
PR-2001-057
|
Georgian College of Applied Arts and Technology
|
January 23, 2002
|
Not accepted for inquiry, complaint premature
|
|
PR-2001-058
|
Installation Globale Normand Morin & Fils Inc.
|
February 1, 2002
|
Not accepted for inquiry, late filing
|
|
PR-2001-059
|
MaxSys Professionals & Solutions Inc.
|
February 14, 2002
|
Accepted for inquiry
|
|
PR-2001-060
|
Corel Corporation
|
February 15, 2002
|
Accepted for inquiry
|
|
PR-2001-061
|
Foundry Networks Inc.
|
February 15, 2002
|
Accepted for inquiry
|
|
PR-2001-062
|
Foundry Networks Inc.
|
February 22, 2002
|
Accepted for inquiry
|
|
PR-2001-063
|
Service Star Building Cleaning Inc.
|
February 26, 2002
|
Accepted for inquiry
|
|
PR-2001-064
|
Amdahl Canada Limited
|
February 25, 2002
|
Not accepted for inquiry, no reasonable indication of a
breach
|
|
PR-2001-065
|
BASE Controls Limited
|
February 26, 2002
|
Not accepted for inquiry, late filing
|
|
PR-2001-066
|
Papp Plastics & Distributing Ltd.
|
March 5, 2002
|
Accepted for inquiry
|
|
PR-2001-067
|
Georgian College of Applied Arts and Technology
|
March 6, 2002
|
Accepted for inquiry
|
|
PR-2001-068
|
Bennett Environmental Inc.
|
March 12, 2002
|
Accepted for inquiry
|
|
PR-2002-069
|
Macadamian Technologies Inc.
|
March 1, 2002
|
Accepted for inquiry
|
|
PR-2001-070
|
The Whitewind Company, Inc.
|
March 6, 2002
|
Not accepted for inquiry, no jurisdiction
|
|
PR-2001-071
|
Équipement Industriel Champion Inc.
|
March 15, 2002
|
Accepted for inquiry
|
|
PR-2001-072
|
MIL Systems
|
March 8, 2002
|
Not accepted for inquiry, no jurisdiction
|
|
PR-2001-073
|
Hike Metal Products Ltd.
|
March 12, 2002
|
Not accepted for inquiry, no reasonable indication of a
breach
|
|
PR-2001-074
|
GMA Cover Corp.
|
March 26, 2002
|
Accepted for inquiry
|
|
PR-2001-075
|
Cleeve Technology Incorporated
|
March 19, 2002
|
Not accepted for inquiry, late filing
|
|
PR-2001-076
|
DASCO Equipment Inc.
|
March 21, 2002
|
Not accepted for inquiry, no reasonable indication of a
breach
|
|
PR-2001-077
|
FLIR Systems Ltd.
|
March 27, 2002
|
Being filed
|
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.
