Public interest inquiry guidelines

These guidelines set out the general approach of the Canadian International Trade Tribunal (Tribunal) regarding the conduct of a public interest inquiry under the Special Import Measures Act (SIMA).¹

Under section 45 of SIMA, a public interest inquiry can only be conducted after the Tribunal issues a finding of injury, threat of injury or retardation² caused by dumped³ and/or subsidized⁴ imports (injury finding), which leads to the imposition of anti-dumping and/or countervailing duties. The purpose of a public interest inquiry is to determine whether the imposition of part or all those duties may not be in the public interest. The result of this inquiry may be a report to the Minister of Finance recommending that the duties be reduced and by what percentage. The Tribunal may choose, either as a result of a properly documented request for a public interest inquiry, or on its own initiative, to conduct a public interest inquiry.

There are two phases in a public interest inquiry:

1. In the commencement phase, the Tribunal decides whether there are reasonable grounds to commence a public interest inquiry. If the Tribunal finds that these grounds do not exist, it issues a decision to that effect as well as reasons for its decision, and the proceedings are terminated.

   If the Tribunal finds that there exist reasonable grounds to commence a public interest inquiry, it starts the investigation phase by issuing a notice of commencement of public interest inquiry.

2. In the investigation phase, the Tribunal conducts a public interest inquiry and prepares a report containing specific recommendations and supporting facts and reasons for the Minister of Finance, if warranted.

Appendix 1 provides a public interest inquiry flowchart.

The investigation phase of a public interest inquiry starts when the Tribunal issues a notice of commencement of public interest inquiry. The Tribunal concludes the public interest inquiry when the Tribunal renders its opinion on whether a reduction of anti-dumping and/or countervailing duties is in the public interest.

Notice of commencement of public interest inquiry

A notice of commencement of public interest inquiry briefly summarizes the key events that occurred at the commencement phase that led the Tribunal to conduct a public interest inquiry and describes the procedures to follow at the investigation phase. The notice presents the factors that the Tribunal reviewed at the commencement phase to arrive at its decision to conduct a public interest inquiry. These factors are listed in subsection 40.1(2) of the Regulations and are provided in Appendix 2. The notice also sets out the information prescribed by subrule 68.1(1) of the CITT Rules, and reproduced in Appendix 3, and includes a schedule of key events. The notice is published in the Canada Gazette and posted on the Tribunal’s website. It is also sent to the parties to the injury inquiry, as well as to groups and persons affected by the injury finding.

Factors to be considered in a public interest inquiry

In conducting a public interest inquiry, the Tribunal must take into account any factor that it considers relevant, including the factors set out in subsection 40.1(3) of the Regulations and found in Appendix 4.

Schedule for the investigation phase

The following table provides an indicative schedule of key events in the investigation phase of a public interest inquiry. While there is no statutory deadline in this phase of a public interest inquiry, the Tribunal endeavours to adhere to the established schedule as set out below. However, the Tribunal may modify the schedule if the circumstances of a particular public interest inquiry warrant it. For example, depending on the complexity of the case, the Tribunal may or may not issue questionnaires or hold an oral hearing; in such cases, the schedule for filing submissions is compressed.

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

Any person or government wishing to participate as a party in a public interest inquiry must file Form I—Notice of Participation (Party) with the Tribunal on or before the date set out in the schedule. Each counsel who intends to represent a party must file Form II—Notice of Representation (Counsel of Record) and, to obtain access to confidential information, must also file Form III—Declaration and Undertaking (Counsel of Record) with the Tribunal, on or before the date set out in the schedule. Shortly after the deadline for the filing of notices of participation, the Tribunal will distribute the list of participants to all parties who have filed the requisite notices.

A party is not required to be represented by counsel; however, only counsel is able to obtain disclosure of any confidential information on the record. The Tribunal ensures that a public version of any confidential information is available to parties not represented by counsel. For SIMA purposes, “counsel”, in relation to a party to the proceedings, includes any person, other than a director, servant or employee of a party, who acts in the proceedings on behalf of the party. Therefore, counsel need not be a lawyer.

A party who filed Form I—Notice of Participation (Party) during the injury inquiry conducted pursuant to section 42 of SIMA and wishes to participate in the investigation phase of a public interest inquiry must give notice to the Tribunal in writing by completing a new Form I—Notice of Participation (Party) for the public interest inquiry. Counsel who filed a Form II—Notice of Representation (Counsel of Record) and a Form III—Declaration and Undertaking (Counsel of Record) in the injury inquiry, and who continue to represent the same party in the Tribunal’s public interest inquiry, must file a Form VI—Extended Declaration and Undertaking. 

Questionnaires

In the event that the Tribunal decides to collect information through questionnaires, it posts the questionnaires on its website on Day 1. The questionnaires must be completed by domestic producers, importers, foreign producers, foreign governments, trading companies and purchasers. The public and confidential information requested in these questionnaires is specific to the public interest issues relevant to the case. In some cases, prior to finalizing the questionnaires and posting them on its website, the Tribunal may give parties and counsel an opportunity to comment on the content of the questionnaires.

Respondents have approximately three weeks to complete the questionnaires.

Tribunal’s investigation report

If the Tribunal requests information in the form of questionnaires, it prepares public and confidential versions of its investigation report based on the questionnaire replies and other relevant information on the record. The report forms part of the Tribunal’s record and is distributed to parties and counsel.

Distribution of Tribunal’s Record

On or about Day 50, the Tribunal distributes the public and confidential information on the record to counsel who have filed Form III—Declaration and Undertaking (Counsel of Record) and who have been provided access to the confidential record. The public record is distributed to parties who are not represented by counsel.

On the distribution date, the information on the Tribunal’s record consists of:

• the properly documented request for the commencement of a public interest inquiry;
• submissions filed in support of, or in opposition to, the properly documented request for the commencement of a public interest inquiry;
• submissions filed in reply;
• all other information filed with the Tribunal during the commencement phase of the public interest inquiry;
• the notice of commencement of  public interest inquiry;
• questionnaire replies;
• public and confidential investigation reports;
• public and confidential investigation reports from the prior related injury inquiry;
• the injury finding and statement of reasons of the prior related injury inquiry; and
• other information collected from various sources.

Written submissions and reply submissions

On or about Day 60, parties that support a reduction or elimination of anti-dumping and/or countervailing duties must file their written submissions with the Tribunal. Approximately 10 days later, parties that support maintaining the anti-dumping and/or countervailing duties in the full amount must file their written submissions with the Tribunal. In their submissions, parties are asked to address all the factors that they consider relevant in assisting the Tribunal to arrive at its opinion. They are also asked to address potential duty reduction remedies to be applied if the Tribunal were to be of the opinion that a reduction of anti-dumping and/or countervailing duties would be in the public interest. Parties that support a reduction or elimination of anti-dumping and/or countervailing duties have an opportunity to file reply submissions on or about Day 80.

Oral hearing

On or about Day 90, the Tribunal may hold an oral hearing to give parties and counsel the opportunity to call and cross-examine witnesses and to argue their position before the Tribunal. An oral hearing also provides the Tribunal the opportunity to test written submissions and reply submissions, documentary evidence, as well as questionnaire replies (if applicable).

Tribunal’s opinion

On or about Day 140 (or on or about Day 100 where the schedule is compressed), the Tribunal issues a report rendering its opinion as to whether a reduction of anti-dumping and/or countervailing duties is in the public interest. In reaching such an opinion, the Tribunal must take into account any factors, including those set out in Appendix 4, that it considers relevant. The Tribunal publishes a notice of its report in the Canada Gazette, and provides its report to the Minister of Finance and a copy of its report to all parties to the public interest inquiry. The report is also posted on the Tribunal’s website.
If the Tribunal is of the opinion that a reduction of anti-dumping and/or countervailing duties is not in the public interest, it issues a report outlining why no duty reduction is warranted with supporting reasons.

If the Tribunal is of the opinion that a reduction of anti-dumping and/or countervailing duties is in the public interest, it issues a report to the Minister of Finance containing its opinion and recommendations.

A report to the Minister of Finance contains specific recommendations, with supporting facts and reasons, and indicates either:

• the level of reduction of the anti-dumping and/or countervailing duties; or
• the price or prices that will eliminate the injury, threat of injury or retardation affecting the domestic industry.

After review of the Tribunal’s report, the Minister of Finance can either:

• implement the Tribunal’s recommendations as formulated or modify them; in either case, a new duty regime is established for the Canada Border Services Agency (CBSA) to administer, and any overpaid anti-dumping and/or countervailing duties are refunded; or
• reject the Tribunal’s recommendations and, consequently, anti-dumping and/or countervailing duties continue to be collected.

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

Pursuant to subsection 40.1(2) of the Regulations, a request to the Tribunal to commence a public interest inquiry must:

1. include (when applicable) the name, address for service, business and mobile telephone numbers, fax number and email address of the requester and of the requester’s counsel, and be signed by the requester or the requester’s counsel;
2. include a statement of the public interest affected by the imposition of anti-dumping and/or countervailing duties, indicating the degree to which it is affected;
3. include sufficient information as to whether the imposition of anti-dumping and/or countervailing duties would not or might not be in the public interest;
4. address all relevant factors, including, where applicable:
   1. the availability of goods of the same description from countries or exporters to which the order or finding does not apply,
   2. the effect that the imposition of anti-dumping and/or countervailing duties has had or is likely to have on:
      1. competition in the domestic market,
      2. producers in Canada that use the goods as inputs to produce other goods or provide services,
      3. competition by limiting access to:
         • goods that are used as inputs to produce other goods and provide services, or
         • technology,
      4. the choice or availability of goods at competitive prices for consumers, and
   3. the effect that a reduction or elimination of anti-dumping and/or countervailing duties is likely to have on domestic producers of inputs, including primary commodities, used in the production of like goods; and
5. include any other information that is relevant in the circumstances.

In conducting a public interest inquiry, the Tribunal must take into account any factor that it considers relevant, including the following factors prescribed in subsection 40.1(3) of the Regulations:

1. whether goods of the same description are readily available from countries or exporters to which the order or finding does not apply;
2. whether the imposition of full anti-dumping and/or countervailing duties has had or is likely to have the following effects:
   1. substantially lessen or eliminate competition in the domestic market in respect of like goods,
   2. cause significant damage to producers in Canada that use the goods as inputs in the production of other goods and in the provision of services,
   3. significantly impair competitiveness by limiting access to:
      1. goods that are used as inputs in the production of other goods and in the provision of services, or
      2. technology,
   4. significantly restrict the choice or availability of goods at competitive prices for consumers or otherwise cause them significant harm;
3. whether a reduction or elimination of anti-dumping and/or countervailing duties is likely to cause significant damage to domestic producers of inputs, including primary commodities, used in the domestic production of like goods.