The following is adapted from the 2015 update to my book, Canadian Trade Law: Practice & Procedure (Thomson Carswell 2007), which reviews the decisions of the Canadian International Trade Tribunal on an annual basis, summarizing important elements in its decisions under the Special Import Measures Act, R.S.C. 1985, c/ S-15 (“SIMA”),
The Tribunal celebrated its 25th year of existence in 2015, a year in which the Tribunal was fully occupied with proceedings under SIMA. From the final quarter of 2014 up to the time of preparation of this release, the Tribunal held three final injury inquiries, four preliminary injury inquiries, six expiry reviews and one public interest inquiry (http://www.citt.gc.ca/en/dumping-and-subsidizing). This was indeed a busy period for the Tribunal in the exercise of its SIMA jurisdiction.
While 2015 data are not yet available, according to the Trade Remedies Investigation Branch of the Secretariat to the Tribunal, as of 31 December 2014 there were 53 anti-dumping and countervailing measures in place under SIMA. They affected $8.0 billion in Canadian shipments, $0.5 billion in investments, and nearly 22,000 jobs in the domestic industries directly benefitting from the measures. In addition, the measures affected $1.4 billion in imports.
While the number of Canadian anti-dumping and countervailing measures decreased by approximately 59 percent from 1989 to 2014, according to the CITT staff paper, the importance of each measure in terms of its impact on Canadian shipments, investments, jobs and imports has increased. From 1989 to 2014, the average impact per measure on shipments, jobs and imports has increased by approximately 493 percent, 186 percent and 350 percent, respectively. Between 1995 and 2014, the average impact per measure on investments increased by approximately 80 percent.
Those figures do not include the impact of orders issued in the 2014-2015 period, during which the Tribunal was heavily engaged in SIMA inquiries and reviews, as noted.
Injury Inquiries and Expiry Reviews
Final injury inquiries under section 42 of SIMA in 2015 were held in Concrete Reinforcing Bar (NQ-2014-001), Oil Country Tubular Goods (NQ-2014-002) and Photovoltaic Modules and Laminates (solar panels) (NQ-2014-003), the two latter cases of particular significance given the large sectors of the Canadian economy that were involved.
It is worth noting that in each of those three cases, the Tribunal found that the evidence failed to establish past injury due to imports but concluded that the domestic industry faced a threat of injury from imported goods in the future. SIMA duties were ordered in all three cases. These decisions are reviewed below in various sections in this update.
The Tribunal was also busy on SIMA expiry reviews in 2015, holding hearings and issuing decisions in: Certain Fasteners (RR-2014-001); Hot-Rolled Carbon and Alloy Plate (RR-2014-002); Oil Country Tubular Goods (RR-2014-003); Whole Potatoes (RR-2014-004); Greenhouse Bell Peppers (RR-2014-005) and Refined Sugar (RR-2014-006). Several of these cases are also discussed in this update.
Looking ahead into 2016, three existing orders will expire: Copper Pipe Fittings (RR-2011-001); Pup Joints (NQ-2011-001); and Stainless Steel Sinks (NQ-2011-002). This foretells another busy year for the Tribunal, not counting potential new SIMA complaints that may be filed.
Public Interest Matters
Following the Tribunal’s injury finding in Concrete Reinforcing Bar (NQ-2014-001), the British Columbia government and the BC Independent Contractors and Business Association applied for a public interest inquiry under section 45 of SIMA. The Tribunal acceded to the request, one of the rare instances in the last decade where such a proceeding was held. Given the special regional circumstances, the hearing was held in Vancouver, again an infrequent instance where Tribunal proceedings were conducted outside of Ottawa.
The Tribunal’s opinion and reasons were released on 22 December 2015 (PB-2014-001). It decided that, even though SIMA duties would increase the cost of dumped and subsidized Chinese rebar, the overall economic impact would be minimal. As a result, the public interest did not warrant a reduction or elimination of the anti-dumping and countervailing duties applied in NQ-2014-001.
2014-2015 saw significant changes on the administrative side of the Tribunal’s operations with the entry into force in late 2014 of the Administrative Tribunals Support Service of Canada Act, S.C. 2014, c. 20, and transfer of the CITT’s budget and its entire administrative support, legal and research staff from the Tribunal (as well as10 other federal tribunals) to the single new centralized administrative organization, appropriately named the Administrative Tribunal Support Services Canada (ATSSC).
The result of these changes are that the secretariat, administration and research staff formerly under the supervisory authority of the CITT Chairman are now performed by the ATSSC, including staffing and human resources matters.
The ATSSC is headed by a Chief Administrator responsible for all services covering these eleven federal tribunals. These services include: corporate services (e.g. common functions of human resources, information technology, financial services, accommodations and communications); registry services; and core mandate services (e.g. research, analysis, legal and other case-specific work).
The ATSSC is divided into separate branches for each of the tribunals under its mandate. In the case of the CITT, an Executive Director and General Counsel (Nick Covelli) is responsible for the operations of the Canadian International Trade Tribunal Secretariat, which is further divided into three branches: Communications and Registry; Legal Services; and the Trade Remedies Investigations Branch (comprising the economic research staff) under his/her responsibility.
As practical matter, the staff in these branches are not subject to assignments to other tribunals under the ATSSC umbrella but are dedicated to serving the Tribunal in its various areas of jurisdiction. This ensures staff continuity and ongoing expertise in SIMA matters.
The first year of this reorganization and transfer of function appeared to proceed relatively smoothly, although there were some adjustment issues that had to be ironed out between the ATSSC and the Tribunal. As from 2015 on, the CITT’s continued success is, to a large extent, dependent on the ATSSC’s performance as a service provider.
The challenge in the years ahead is to ensure that the new system functions well and allows the Tribunal to continue to discharge its mandate under SIMA in the most efficient and seamless manner possible.
The Tribunal is currently reviewing a number of its Guidelines and Practice Notices. The current versions of these documents have been included in previous releases and can be found at http://www.citt.gc.ca/en/guidelines and http://www.citt.gc.ca/en/dumping-and-subsidizing-practice-notices.
It issued two new pilot Practice Notices in 2015:
- Measures to Improve Investigative Procedures During SIMA Inquiries and Expiry Reviews;
- Introduction of Measures to Improve the Tribunal’s Procedures During Preliminary Injury Inquiries
As part of the Tribunal’s efforts to up-date and improve its procedures, the Chairman inaugurated a new internal governance structured within the CITT and appointed a new CITT Advisory Committee in 2015, consisting of representatives of the trade bar, federal government departments and business associations, replacing the Bench and Bar Committee of the Canadian Bar Association as the Tribunal’s consultative organ.
The Tribunal is a court of record under the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.). The current Tribunal membership consists of: Stephen A. Leach, Chairperson, with members Jean Bédard; Peter Burn, Jason W. Downey; Ann Penner; Daniel Petit and Rose Ritcey. Serge Frechette, a member whose full term expired in 2014, was appointed as an interim member in 2015 for a one-year period. The organization, mandate, biographical information and other matters respecting the Tribunal are found on its web-site at http://www.citt.gc.ca/en/organization-0).
The Impact of Canadian Anti-Dumping and Countervailing Measures on Domestic Shipments, Investments, Employment and Imports, 1989-2014: Report of the Trade Remedies Investigation Branch, Administrative Tribunals Support Service of Canada, November 2015, p. 3. http://www.citt.gc.ca/en/effects_paper_e.