Receipt of physical exhibits during the COVID-19 pandemic

Table of contents

    Introduction

    This protocol is further to the Tribunal’s Practice Directive of August 25, 2021, cancelling substantially all in-person hearings until December 31, 2021. It is established pursuant to rules 6 and 8 of the Canadian International Trade Tribunal Rules. The timeframes and procedures set out in this protocol for filing physical exhibits supersede those set out in the Rules particularly, but without limitation, in paragraph 34(3)(b).

    The protocol is intended to minimize the handling of physical exhibits. It will remain in effect as long as sanitary measures related to the COVID-19 pandemic are required to protect the health and safety of individuals. As such, it will also apply when in-person hearings resume. As health and safety guidelines in regard to physical distancing and other sanitary measures evolve the protocol will be modified accordingly.

    This protocol does not apply to exhibits that are allegedly prohibited devices or weapons. A separate protocol will be established between the Tribunal and the Canada Border Services Agency for access to such exhibits.

    • The Tribunal recognizes the right of parties to submit the evidence necessary to the presentation of their case. In light of the difficulties posed by the current COVID-19 situation for the receipt by the Tribunal of physical exhibits that are representative of the goods in issue, the Tribunal asks that parties consider whether the purpose that they hope to achieve by the submission of such physical exhibits could be achieved through the submission of photographs, schematics, videos, product literature, measurements and/or other representations of the goods in issue1, as well as through the testimony of witnesses during a videoconference hearing.
    • If a party concludes that the purpose can be achieved through an alternative means, the party will advise the Tribunal and the other parties no later than 40 days before the commencement of the hearing and specify the alternative means that it proposes to use. If the presenting party wishes to present the good in issue through the testimony of witnesses during the course of a videoconference hearing, the opposing parties may request, no later than 35 days before the commencement of the hearing, to receive a physical exhibit in accordance with the Exhibit Delivery to Opposing Parties procedure. 
    • Should a party be required by an opposing party to deliver a physical exhibit to such other party, it must also deliver an identical physical exhibit to the Tribunal in accordance with the Exhibit Delivery to the Tribunal procedure. 
    • Should a party conclude that an alternative means of presenting the goods in issue is insufficient, and that it is important to submit such physical exhibits to the Tribunal for examination, it must deliver an identical physical exhibit to the Tribunal and to each opposing party in accordance with the Procedure for Delivery of Exhibits set out below, unless any opposing parties indicate in writing to the party presenting the physical exhibit that receipt of the physical exhibit is not necessary (correspondence to be copied to the Tribunal).

    Procedures for the delivery of physical exhibits

    When a party asks the Tribunal to examine a physical exhibit, it must follow these procedures.

    Exhibit delivery to the Tribunal

    1. Thirty (30) days before the commencement of the hearing, the party submitting the exhibit must provide a sample of it to the Tribunal and to each opposing party that requests one.
    2. The party wishing to deliver the exhibit to the Tribunal must coordinate a date and time with the Registry to have it couriered.
    3. The party submitting the exhibit must file and serve pictures of it (converted to PDF format) that have been taken from all angles beside a ruler or tape measure to show scale. The measuring device must show metric measurements (e.g. cm, mm) it can show both metric and imperial measurements.
    4. The party submitting the exhibit must sanitize it before packing it for shipping, and must file a statement by electronic mail indicating the date and time the exhibit was sanitized for packaging as well as explaining how it was sanitized. If this information is not included on the package, the package will be quarantined for two (2) weeks before it is opened.
    5. If special handling, cleaning or storing precautions are required, the party must state them in a letter accompanying the exhibit and provide clear instructions. The party must mark the package “DO NOT OPEN BEFORE READING PACKING INSTRUCTIONS/NE PAS OUVRIR AVANT DE LIRE LES INSTRUCTIONS DE CONDITIONNEMENT”.
    6. The party must clearly label any exhibit considered hazardous as requiring special attention and must include its safety data sheet or the equivalent.
    7. The party presenting the exhibit must indicate on the shipping package that it is a physical exhibit and clearly identify the file number as well as the style of cause to which it pertains.

    Exhibit delivery to opposing parties

    1. If opposing parties request to view the exhibit, the parties coordinate its exchange following agreed upon safety precautions.
    2. The party introducing the exhibit must provide to the Tribunal a written confirmation from the opposing party that it has received it.

    Exhibit return to the submitting party

    When appropriate, Registry staff sanitizes the exhibit and arranges for its pick-up or delivery.