Preliminary and final injury inquiry guidelines

These guidelines set out the general approach of the Canadian International Trade Tribunal (Tribunal) regarding the conduct of both a preliminary injury inquiry and a final injury inquiry, under the Special Import Measures Act (SIMA).¹ These guidelines concentrate on the roles and responsibilities of the Tribunal in an injury inquiry, and provide an overview of the key milestones in a dumping and/or subsidizing investigation conducted by the Canada Border Services Agency (CBSA).

SIMA provides recourse against dumped or subsidized imports that cause harm to the domestic industry producing like goods. Dumping generally occurs when the export price of goods is lower than the domestic selling price of comparable goods in the country of export, or their cost of production. Subsidizing occurs when goods imported into Canada benefit from some types of foreign government financial contributions. If dumped or subsidized imports cause or threaten injury to the domestic industry, or cause material retardation of the establishment of a domestic industry, anti-dumping and/or countervailing duties can be imposed on these imports.

The CBSA generally initiates a dumping or subsidizing investigation following a complaint from Canadian industry. If the CBSA initiates a dumping and/or subsidizing investigation, the Tribunal must then inquire into whether the dumping and/or subsidizing have caused or threaten to cause material injury to a domestic industry, or have caused material retardation of the establishment of a domestic industry. 

The conduct of an injury inquiry is divided into two distinct phases, both of which are conducted according to statutory deadlines set out in SIMA.

1. In the preliminary injury inquiry phase, the Tribunal is required to issue a notice of commencement of preliminary injury inquiry if the CBSA initiates a dumping and/or subsidizing investigation. During this phase of an injury inquiry, the Tribunal has 60 days to receive submissions from interested persons and governments, and to decide whether the evidence discloses a reasonable indication of injury or retardation or threat of injury caused by the alleged injurious dumping and/or subsidizing of imports. If the Tribunal finds that there is no reasonable indication of injury or retardation and threat of injury, it issues a decision to that effect as well as reasons for its decision, and the proceedings, including the CBSA’s dumping and/or subsidizing investigation, are terminated.

If the Tribunal finds that there is a reasonable indication of injury or retardation or threat of injury, it issues a decision to that effect as well as reasons, and the CBSA has an additional 30 to 75 days to either make a preliminary determination of dumping and/or subsidizing and impose provisional duties on the goods, or terminate its investigation and, thereby, the Tribunal’s injury inquiry.

2. In the final injury inquiry phase, the Tribunal is required to commence an inquiry if the CBSA makes a preliminary determination of dumping and/or subsidizing. During this phase of an injury inquiry, the Tribunal has 120 days to determine whether the dumping and/or subsidizing of imports caused injury or retardation or are threatening to cause injury.

   Depending on the Tribunal’s findings, a final injury inquiry may result in the imposition of anti-dumping duties on the dumped imports and/or countervailing duty on the subsidized imports. Please see below for more information.

See Appendix 1 for a preliminary and final injury inquiry flowchart. For additional information on the CBSA’s roles, responsibilities and procedures, refer to its Guidelines for Preparing a Dumping or Subsidizing Complaint and its Statement of Administrative Practices for the Special Import Measures Act.

The Tribunal’s final injury inquiry commences by way of a notice of commencement of inquiry issued the day following receipt from the CBSA of its preliminary determination of dumping and/or subsidizing.

The notice of commencement of inquiry is published in the Canada Gazette. Notice is also sent to the complainants, parties from the preliminary injury inquiry, all known importers, exporters, foreign producers, foreign governments concerned, any trade association known to have a particular interest in the injury inquiry and any trade union representing persons employed in the domestic industry. The Tribunal also posts the notice of commencement of inquiry and the schedule of events on its website.

Notice of commencement of inquiry

The notice describes the Tribunal’s role and responsibilities in the conduct of a final injury inquiry.

Upon commencing a final injury inquiry, the Tribunal transfers the official record of the preliminary injury inquiry to the official record of the final injury inquiry.

The Tribunal has 120 days to complete a final injury inquiry and issue a finding as to whether the dumping and/or subsidizing of imports have caused injury or retardation or are threatening to cause injury; whether injury has been caused by a massive importation of the goods; and to determine other matters as required under SIMA.

Schedule for final injury inquiry

The following table provides an example schedule of the key events in a final injury inquiry. While most of these deadlines are not statutorily mandated, the Tribunal is required, under section 42 of SIMA, to issue its decision no later than Day 120.

Notices of participation and representation, and declarations and undertakings of confidentiality

Any person or government wishing to participate as a party in a final injury inquiry must file Form I—Notice of Participation (Party) within the deadline identified. Each counsel who intends to represent a party in a final injury inquiry must file Form II—Notice of Representation (Counsel or Representative) and, to obtain access to confidential information, must also file Form III—Declaration and Undertaking (Lawyers or Representative) within the deadline identified.

A party who filed Form I—Notice of Participation (Party) and who did not engage counsel during the preliminary injury inquiry and wishes to participate in the Tribunal’s final injury inquiry must file a Form I—Notice of Participation (Party) that applies to the final injury inquiry. Counsel who filed a Form II—Notice of Representation (Counsel or Representative) and a Form III—Declaration and Undertaking (Lawyers or Representative) in the preliminary injury inquiry and who continue to represent the same party in the Tribunal’s final injury inquiry must file Form VI—Extended Declaration and Undertaking (Expert). All forms are available on the Tribunal’s website.

Questionnaires

On Day 1, at the same time as the Tribunal issues its notice of commencement of inquiry, it posts on its website questionnaires to be completed on or before the date set out in the schedule by domestic producers, importers, foreign producers, purchasers and trading companies, as well as any known trade unions that represent workers employed in the domestic industry. In a final injury inquiry pertaining to subsidized goods, the governments of the countries of export may also be asked to reply to a questionnaire. In these questionnaires, the Tribunal requests information that covers the last three full calendar years of commercial activities and any interim periods in the year of the final injury inquiry. These questionnaires generally seek information on the volume and value of imports, domestic sales and exports, and the financial results of domestic producers. Purchasers of the goods are also asked to compare the imported goods with similar domestic goods in terms of price, quality, methods of distribution, etc.

The content of the questionnaires follows a general pattern but is subject to modifications on a case by-case basis. Prior to posting the questionnaires on its website, the Tribunal ordinarily provides an opportunity for parties and counsel to comment on the content of the questionnaires. Respondents have approximately three weeks to complete their questionnaires.

Tribunal’s investigation report

The Tribunal prepares an investigation report based on the information it has collected in the responses to the questionnaires and other relevant information on the record. The report forms part of the record and is distributed to parties.

Distribution of Tribunal’s record

On Day 50, the Tribunal distributes the record.

The Tribunal’s record consists of:

• the CBSA’s preliminary determination of dumping and/or subsidizing, and related information;
• the Tribunal’s official record from the preliminary injury inquiry;
• replies to Tribunal questionnaires;
• the public and confidential investigation reports; and
• other information collected from various sources.

Requests for information

From Day 50 to Day 73, the Tribunal carries out its RFI process for parties who demonstrate that they have a compelling need for supplementary information or relevant documents. The purpose of the RFI process is to facilitate the early exchange of information and documents to expedite the hearing process. Parties serve a copy of their RFIs on the Tribunal and on each other, providing an explanation as to why the information or documents sought are relevant in the proceedings. If a party objects to providing a response to an RFI, it must communicate the objection and an explanation for it in writing to the Tribunal, with copies to all other parties. The Tribunal then reviews all RFIs and objections and provides directions as to which requests require a response.

As part of its RFI process, the Tribunal may direct parties to reply to Tribunal RFIs.

Requests for product exclusions

From Day 57 to Day 73, the Tribunal carries out a product exclusion process. The Tribunal has the discretion to exclude products that would otherwise be subject to a finding of injury, retardation or threat of injury. If the Tribunal grants product exclusions, these products are not subject to anti-dumping and/or countervailing duties.

The Tribunal may exclude goods either on its own initiative or at the request of a party, but only if such exclusions will not cause or do not threaten to cause injury to the domestic industry. An example of a circumstance where such an exclusion would be granted is when there is no domestic production of like goods.

The product exclusion process allows for the filing of requests for product exclusions, responses by the domestic industry to such requests and final replies from parties filing the requests for product exclusions.

The following documents can be found on the Tribunal’s website:

• Guidelines to Making Requests for Product Exclusions
• Product Exclusion Request
• Domestic Producer’s Response to a Product Exclusion Request
• Requester’s Reply to Domestic Producer’s Response

Written case briefs or submissions

From Day 58 to Day 74, parties are given the opportunity to submit case briefs or submissions, and witness statements in support of, or in opposition to, a finding of injury, retardation or threat of injury. If a party intends to call a witness to testify at the hearing, a witness statement must be filed.

Case briefs, submissions and witness statements should be limited to argument and evidence on the impact of dumping and/or subsidizing on the domestic industry. Written submissions typically contain documentary evidence in the form of a written summary of the case to be made at the hearing, statements of evidence made by witnesses who will testify at the oral hearing and exhibits on which parties will rely in their presentation of the evidence.

Canada Border Services Agency’s final determination of dumping and/or subsidizing

Within 90 days of the commencement of the Tribunal’s final injury inquiry, the CBSA must complete its dumping and/or subsidizing investigation and make its final determination. If it finds no dumping and no subsidizing, the proceedings are terminated, including the Tribunal’s injury inquiry. Otherwise, the Tribunal’s final injury inquiry continues and the Tribunal holds a hearing.

Hearing

On Day 90, a hearing normally starts. A hearing, held before a panel of three members (the decision-makers), can consist of both public sessions and, when the information discussed is of a sensitive or confidential nature, in camera (private) sessions. It may be held either at the Tribunal’s premises in Ottawa, Ontario, or by way of videoconference, and can last anywhere from one to five days, depending on the number of participants. A hearing gives parties an opportunity to call and cross-examine witnesses and to argue their case before the Tribunal. It also provides the Tribunal with an opportunity to ask questions written submissions and documentary evidence.

Tribunal’s finding and reasons

On Day 120, the Tribunal issues its finding as to whether the dumping and/or subsidizing of imports caused injury or retardation or are threatening to cause injury to the domestic industry. This assessment takes into account any impacts on workers employed in the domestic industry. The Tribunal also makes inquiry with respect to massive importations of the dumped or subsidized goods. In making its decision, the Tribunal may take into account any of the factors set out in sections 37.1 and 37.11 of the Regulations. In addition, the Tribunal must determine whether the volume of the dumped and/or subsidized goods imported into Canada is negligible; if so, it must terminate its final injury inquiry. The Tribunal issues its reasons for decision on Day 135.

At the end of its final injury inquiry, the Tribunal can issue the findings described below.

Finding of no injury

If the Tribunal finds that the dumping and subsidizing of imports have not caused injury or retardation and are not threatening to cause injury, it terminates its final injury inquiry. The CBSA refunds to the importers all provisional anti-dumping and countervailing duties collected and returns any security that was posted with the CBSA in lieu of duty payment.

Finding of injury or retardation

If the Tribunal finds that the dumping and/or subsidizing of imports caused injury or retardation, anti-dumping and/or countervailing duties are payable on all:

• dumped and/or subsidized goods imported during the provisional period, that is, from the date of the CBSA’s preliminary determination of dumping and/or subsidizing to the date of the Tribunal’s finding; and
• shipments of the dumped and/or subsidized goods released after the date of the Tribunal’s finding until such time as the finding is rescinded.

However, duties are not payable if the goods are covered by a valid undertaking. Undertakings are commitments made by exporters, or the foreign government in subsidy cases, to adhere to certain conditions which serve to eliminate the harm to domestic producers caused by dumping and/or subsidizing. Undertakings may only be accepted after the CBSA makes a preliminary determination of dumping and/or subsidizing and they generally remain in force for a five-year period. No anti-dumping and/or countervailing duties are applicable while valid undertakings are in effect. 

The Tribunal may also find that massive importations of dumped and/or subsidized goods have caused injury, in which case retroactive duties may be assessed on goods that were imported in the period starting on the day the CBSA initiated its investigation and ending on the day of its preliminary determination of dumping and/or subsidizing. If the CBSA’s investigation is extended, this period cannot exceed the 90-day period prior to the date of the CBSA’s preliminary determination of dumping and/or subsidizing.

Finding of threat of injury

If the Tribunal finds that the dumping and subsidizing of imports have not caused injury or retardation, but are threatening to cause injury, no anti-dumping and countervailing duties are payable on goods released before the date of the finding. Any provisional duty paid on importations prior to the Tribunal’s finding is therefore refunded by the CBSA to the importers together with interest. Any security posted by the importers in lieu of the payment of provisional duty is also refunded. However, duties are payable on all dumped and/or subsidized imports released after the date of the Tribunal’s finding except where the goods are covered by a valid undertaking.

Public interest inquiry

After a finding of injury, threat of injury or retardation, an interested person may request a public interest inquiry. For additional information, see the Tribunal’s Public Interest Inquiry Guidelines.

Review of findings

A finding of injury, threat of injury or retardation expires after five years unless continued by the Tribunal following the conduct of an inquiry to determine whether the expiry of the finding would lead to continued or resumed dumping and/or subsidizing and injury. This type of inquiry, which is known as an “expiry review” is shared between the Tribunal and the CBSA. See the Tribunal’s Expiry Review Guidelines.

A finding can also be rescinded at any time as a result of an interim review conducted by the Tribunal. An interim review may be warranted where, among other things, there is a reasonable indication that sufficient new facts have arisen, or that there has been a sufficient change in the circumstances that led to the finding or order. See the Tribunal’s Interim Review Guidelines.

Judicial review

Any party may request judicial review by the Federal Court of Appeal of the Tribunal’s decision with respect to injury, threat of injury or retardation. Alternatively, parties from the United States, Mexico or Canada may request a binational panel review of the Tribunal’s decision under the Canada-United States-Mexico Agreement. In addition, foreign governments that are members of the World Trade Organization may refer certain Tribunal decisions to the World Trade Organization’s dispute settlement body for review.

Contacting the Tribunal

Any questions regarding these guidelines or any related matter should be addressed to:

The Registrar
Canadian International Trade Tribunal
15th Floor
333 Laurier Avenue West
Ottawa Ontario  K1A 0G7

Telephone: 613-993-3595
Fax: 613-990-2439
Email: citt-tcce@tribunal.gc.ca