REPORT TO THE TRIBUNAL ON ITS ACTIVITIES IN 2016-2017
CANADIAN INTERNATIONAL TRADE TRIBUNAL
NATIONAL ADVISORY COMMITTEE
ANNUAL REPORT ON ACTVITIES IN 2016-2017
30 April 2017
Under its Terms of Reference, the Advisory Committee is required to provide the Tribunal with an Annual Report setting out recommendations for action in matters under its purview. The following is provided in response to that requirement.
Over the past year, the Committee held its first annual meeting with the Tribunal on 19 April 2016, followed by a telephone conference on 30 September and a mid-year plenary meeting on 1 November 2016. Work in various sub-committees, discussed below, continued as the Committee reviewed major issues on its agenda seen as warranting further action and advice.
The Committee’s first Annual Report, 29 March 2016 and its mid-year report, 22 November 2016, have been provided to the Tribunal.
ADVISORY COMMITTEE MEMBERSHIP
Under its Terms of Reference, the Committee comprises a cross-section of private sector stakeholders and trade counsel representing stakeholder interests. To this end, the Chair has sought to ensure that business associations continue to be well-represented, given the importance of their views to the Committee’s work.
The Chair has discussed with Committee members as to the best way to ensure that the Committee comprises a Canadian geographic cross-section and that some law firms are not over-represented to the detriment of others.
A consensus was reached that law firms would designate a single representative on the Committee (with alternate members allowed) and that efforts would continue to broaden representation, particularly from Québec and Western Canada.
The Committee Chair should continue to ensure representative membership, including private-sector stakeholders, while maintaining efficiency and not unduly enlarging the Committee’s size.
COST REDUCTION IN CITT PROCEEDINGS
During the past year, the Committee continued to examine the most effective ways to reduce costs of participation in Tribunal proceedings. The Committee’s work in this area has largely focused on SIMA but includes other areas such as procurement and Customs appeals.
It was recognized that stakeholders’ costs had increased significantly, notably in SIMA proceedings. These increases were of concern particularly to the SME sector, whether producers or importers, consisting of smaller enterprises with limited staff and resources.
Interim reports on cost-saving options have been provided by Gerry Stobo, chairing the sub-committee on procurement appeals (attached) and Peter Clark, chairing the sub-committee on SIMA proceedings.
Additional work on cost reductions is continuing under Vice-Chair Dalton Albrecht in the Customs Appeals Cost Reductions sub-committee.
A sub-committee under the leadership of Vice-Chair Joy Nott is addressing the concerns of private sector parties outside the scope of technical and legal issues. Ms. Nott convened private-sector stakeholders for a telephone conference in February 2017 and had circulated a list of issues for consideration (attached).
Cost-reductions and improving access to the Tribunal’s proceedings under SIMA and other areas of jurisdiction should continue to be a priority item on the Committee’s agenda. Views of stakeholders and other private sector parties are to be sought as a critical element in this assessment.
COPYRIGHT AND SINGLE COPY EXHIBITS
The Committee held discussions on this issue both before and after its 2016 annual meeting and made a series of recommendations that were taken into account by the Tribunal. The Tribunal’s final Practice Notice Single Copy Exhibits, modified and re-issued 13 February 2017, reflects the Committee’s deliberations and recommendations.
The matter will continue to be monitored to ensure that the process outlined in the Practice Notice is being effectively implemented.
VIDEO CONFERENCING – WITNESS TESTIMONY
As noted at the November 2016 meeting, use of video testimony is a matter of priority for the Tribunal. The Committee had before it a Tribunal note on the matter outlining a number of key factors. Among other matters, there are practical issues in taking sworn witness testimony by video and ensuring confidentiality where evidence is provided in-camera.
As per its 22 November report, the Tribunal and the ATSSC should continue to work out the logistics and technical aspects of videoconferencing, The Committee will proceed develop advice on this issue as a priority matter. As recommended in that report, the Tribunal should issue an interim guide or practice note, confirming the general availability of this resource and indicating when and how it can be requested.
EXPERT WITNESS TESTIMONY
In recent SIMA proceedings it became apparent that some additional rules were needed in respect of expert witness testimony. In furtherance of this, the Tribunal issued a draft Practice Notice of its Proposed Expert Witness Acknowledgement and Undertaking for review, 4 April 2017.
The proposed form is a useful element and the Committee will provide its views on the matter as soon as possible.
ELECTRONIC DOCUMENT FILING AND SERVICE
The Committee discussed expanding the use of e-service in Tribunal proceedings at its 1 November 2016 meeting, noting that the technology is available and rapidly improving to the point where almost all documents can be filed and served digitally, with encryption available to ensure confidentiality. The Committee agreed that a full-scope electronic filing would be ideal. It urged the Tribunal and ATSSC staff to continue their good work in moving toward a greater use of e-filing and less use of paper filing.
Since these deliberations, the Tribunal issued its draft Practice Notice on Filing of Documents, 13 February 2017, replacing an earlier draft Practice Notice – Copies to be Served on the Tribunal.
The Tribunal should finalize the 13 February 2017 draft and the Tribunal and ATSSC should continue with efforts to develop and implement a more complete e-filing and e-service system for implementation in the near future.
CHANGES TO QUESTIONNAIRES
At its several meetings, note was made of the increasing size and complexity of Tribunal questionnaires in SIMA proceedings. This has a significant cost impact on both parties and non-parties alike and directly impacts the domestic industry and the importing community. Completing questionnaires poses particular burden on smaller enterprizes.
In response to these concerns, the CITT Secretariat prepared a document entitled “Proposed Changes to Questionnaires”, 27 October 2016, requesting comments from the Committee.
Committee members are to review the CITT document and provide comments on a priority basis. The objective should be to see how the length and complexity of Tribunal questionnaires can be reduced as much as possible yet ensure that credible and reliable data is provided.
RFI ISSUES IN SIMA INQUIRIES
The question of the RFI process in SIMA inquiries was placed on the agenda during 2016. The question is whether the process can be short-circuited and made less burdensome/costly for parties. There was discussion at the 1 November 2016 meeting about the effectiveness and/or utility of this aspect of SIMA proceedings. Several members stated their support for the current RFI process. No conclusion was reached.
This matter should continue under review.
USE OF AIDS TO ARGUMENT
At its 1 November 2016 meeting, the Committee discussed aids to argument and the desirability of the Tribunal setting out a guideline to ensure more uniform practice in this area. It noted the points in the Tribunal’s Practice Notice on Management of Cases Before the Tribunal, 2014, which comments on the desirability of reducing the volume of submissions in various CITT proceedings.
The Committee should review the feasibility of issuing additional rules or policy guidance on aids to argument in the future.
Among other matters discussed during the past year was the need for Tribunal guidance on citing of authorities and reducing paper burden by not having counsel place on the record full copies of judicial and Tribunal decisions or decisions by other public authorities such as the CBSA. In this regard, the Tribunal has since issued a draft Practice Notice – Citing Authorities, 13 February 2017.
The draft Practice Notice should be made issued as a final document.
AGREED STATEMENTS OF FACTS
The draft Practice Note on Agreed Facts in Appeals was viewed positively by the Committee. While concerns were noted that obtaining agreed statements could involve another cost burden on parties in engaging counsel, the consensus was that this would be a practical way to expedite the appeal process and to reduce costs.
The Practice Note should be issued as a final document. Counsel are encourage to use this device to expedite the proceedings and reduce costs to participants.
DRAFT LATE FILING GUIDELINES
The Tribunal Chair had earlier requested the views of the Committee on draft Guidelines on Requests for Late Filings, contained in the appendix to the 10 June 2016 Practice Notice on Filing of Questionnaire Replies and Revisions and Issuance of Revised Investigation Report.
In its examination, the Committee felt that a distinction needed to be made between responses to questionnaires and RFIs issued by the Tribunal itself and the filing of case materials, documentary evidence and witness statements that are directly the responsibility of parties and their counsel.
The implementation of the Late Filing Guidelines will be monitored by the Committee as these are applied in given proceedings. The current rules respecting late filings that require exceptional circumstances to be demonstrated should remain firmly in place.
FILING OF QUESTIONNAIRES AND REVISED INVESTIGATION REPORT IN SIMA MATTERS
While delays in obtaining questionnaire responses cause understandable frustrations and problems for Research Staff and for the Tribunal, the view of the Committee is that most parties and their counsel legitimately do their best to meet the Tribunal’s deadlines.
A factor of significance in the Canadian context is that parties and other stakeholders tend to be smaller and medium-sized enterprises (whether producers or importers/distributors) that lack the necessary resources to complete questionnaires within the Tribunal’s tight time frames. This necessitates a degree of flexibility and understanding the situation facing these particular respondents.
The Tribunal should retain flexibility in matters of filing deadlines. Its Practice Notice should, however, stress the critical need for all respondents to meet filing deadlines and state in clear terms that the Tribunal expects these to be respected.
FEEDBACK ON DATA COLLECTION
As noted above, the Committee is concerned parties are being asked for increasingly detailed information in SIMA proceedings by Research Staff. This entails additional cost burdens on participants in terms of internal resources and outside assistance, whether they be domestic producers or exporters/importers.
As recommended by the Committee in its 2016 report, Research Staff should take pains not to add to the already heavy burdens on parties in completing questionnaires and other preparatory matters in ongoing Tribunal proceedings.
CITT JURISDICTION IN CONTEMPT PROCEEDINGS
The Committee is continuing to review the CITT draft Note prepared by Legal Counsel. During its 30 September 2016 conference call, some members questioned the extent of the Tribunal’s inherent jurisdiction in this area although this was more in the nature of a comment for reflection. It was pointed out that there may be issues that require statutory change.
This matter should continue under review.
AWARDING COSTS – PROPOSED CUSTOMS ACT AMENDMENTS
The Committee felt that the proposed changes to the Tribunal’s jurisdiction to award costs under the Customs Act warranted a closer look. Some of members were supportive of the draft while others pointed out the jurisdictional complications in this area, noting that there are complex rules in courts at most levels, with established tariffs and assessment procedures. The Committee agreed that this matter warranted closer attention in the coming year.
The Committee should collect further views among its members and communicate back to the Tribunal on this matter with a more complete response over the next number of months.
OTHER MATTERS ON THE COMMITTEE’S AGENDA
Together with cost-reduction and maintaining full accessibility to Tribunal processes, a number of other issues were raised during the Committee’s deliberations. These included the desirability of guidelines and even limitations on the size of briefs and witness statements.
These and other matters on the agenda were directed to controlling party costs and facilitating access to the system, whether it be trade remedies, procurement or various Customs Act appeals/
The Committee should develop a plan for the next fiscal year (2017-2018) in collaboration with the Tribunal to monitor the above matters and focus on priority issues within the overall objective of securing greater efficiency, timeliness and cost savings for stakeholders to the extent possible.
Submitted, 30 April 2017.
LAWRENCE L. HERMAN
Chair, CITT National Advisory Committee
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