Annual Report March 31, 2011 - Chapter II

Introduction

The Tribunal is an administrative tribunal operating within Canada's trade remedy system. It is an independent quasi-judicial body that carries out its statutory responsibilities in an autonomous and impartial manner and that reports to Parliament through the Minister of Finance. The Tribunal's strategic outcome is the fair, timely and transparent disposition of all international trade cases, procurement cases and government-mandated inquiries within the Tribunal's jurisdiction.

The main legislation governing the work of the Tribunal is the CITT Act, SIMA, the Customs Act, the Excise Tax Act, the Canadian International Trade Tribunal Regulations, the Canadian International Trade Tribunal Procurement Inquiry Regulations and the Canadian International Trade Tribunal Rules (Rules).

Mandate

The Tribunal is the main quasi-judicial institution in Canada's trade remedy system and has authority to:

• inquire into whether dumped or subsidized imports have caused, or are threatening to cause, injury to a domestic industry;
• inquire into complaints by potential suppliers concerning procurement by the federal government that is covered by the North American Free Trade Agreement (NAFTA), the Agreement on Internal Trade (AIT), the WTO Agreement on Government Procurement (AGP), the Canada-Chile Free Trade Agreement (CCFTA) and the Canada-Peru Free Trade Agreement (CPFTA);
• hear appeals of decisions of the CBSA made under the Customs Act and SIMA or of the Minister of National Revenue under the Excise Tax Act;
• inquire into and provide advice on such economic, trade and tariff issues as are referred to the Tribunal by the Governor in Council or the Minister of Finance;
• investigate requests from Canadian producers for tariff relief on imported textile inputs that they use in their production operations and to make recommendations to the Minister of Finance on the requests; and
• inquire into complaints by domestic producers that increased imports are causing, or threatening to cause, injury to domestic producers and, as directed, make recommendations to the Government on an appropriate remedy.

Governing Legislation

Method of Operation

The Chairperson may assign either one or three members of the Tribunal to deal with cases. Members so assigned have and may exercise all the Tribunal's powers and have and may perform all the Tribunal's duties and functions in relation to the cases.

The Tribunal proceeds through file hearings or public hearings. Public hearings are held at the Tribunal's offices in Ottawa, Ontario. Public hearings may also be held elsewhere in Canada, either in person or through videoconferencing. In 2010-2011, the Tribunal held a public hearing in Vancouver, British Columbia, for an expiry review of its order on potatoes. In accordance with section 35 of the CITT Act, hearings should be carried out as “informally and expeditiously” as the circumstances and considerations of fairness permit.

Pursuant to section 17 of the CITT Act, the Tribunal is a court of record, and it has all the powers, rights and privileges as are vested in a superior court with regard to procedural matters necessary or proper for the due exercise of its jurisdiction. The Tribunal follows rules and procedures similar to those of a court of justice; for instance, the Tribunal can subpoena witnesses and require parties to produce information. However, in order to facilitate greater access, the rules and procedures are not as formal or strict.

The CITT Act contains provisions for the protection of confidential information. Only independent counsel who have filed declarations and confidentiality undertakings may have access to confidential information. Protecting commercially sensitive information against unauthorized disclosure has been, and continues to be, of paramount importance to the Tribunal.

The Tribunal's Web site provides an exhaustive repository of all Tribunal notices, decisions and publications, as well as the Canadian International Trade Tribunal Regulations, the Rules, directives, guides, practice notices, Tribunal procedures and other information relating to its current activities. The Tribunal offers a notification service that informs subscribers of each new posting on its Web site. Subscribers can also choose a specific category of interest.

Members of the Tribunal

The Tribunal may be composed of up to seven full-time members, including a chairperson and two vice-chairpersons. All are appointed by the Governor in Council for a term of up to five years that is renewable once. The Chairperson is the Chief Executive Officer and is responsible for the assignment of a presiding member and panel members to cases and for the management of the Tribunal's work. Members come from a variety of educational backgrounds and experience.

Organization

The organization is led by the Chairperson and is supported by a permanent staff of 76 persons who are employees of the public service. The organizational structure is as follows:

• the Chairperson, the Chief Executive Officer, responsible for the assignment of cases to the members and for the management of the Tribunal's workload and all its resources;
• the Secretary, responsible for relations with the public and parties, the court registry functions of the Tribunal, editing and translation of Tribunal decisions, reports and other documents, information technology, information management and relations with government departments and foreign governments;
• the Director General, Research, responsible for the investigative portion of inquiries, including fact-finding related to tariff, trade, commercial and economic matters, and the provision of research services to the members of the Tribunal;
• the General Counsel, responsible for the provision of legal services to the members and staff of the Tribunal;
• the Director of Corporate Services, responsible for financial management, materiel management, accommodation and administrative services; and
• the Director of Human Resources, who provides planning and management of a full range of human resources services, programs, solutions and innovations for the Tribunal from both an operational and corporate perspective.

Consultations and External Relations

Through the Bench and Bar Committee, the Tribunal provides a forum to promote discussion on issues of procedure. The committee includes representatives from the Canadian Bar Association, counsel from the Department of Justice and members of the trade consulting community who appear regularly before the Tribunal. Although no meeting was held during this fiscal year, members of the Bench and Bar Committee were given the opportunity to comment on the ongoing review of the Rules. The Tribunal also consults with counsel, representatives of industries and others who appear or are likely to appear before the Tribunal, to exchange views on new procedures being considered by the Tribunal prior to their publication as guidelines or practice notices. The Tribunal also briefs federal government departments and trade associations on its procedures.

During the fiscal year, Tribunal members and staff made presentations at meetings of various international, legal, administrative and academic bodies, including the Seoul International Forum on Trade Remedies in Seoul, Korea, the annual meeting of the Canadian Council of Administrative Tribunals in Montréal, Quebec, the International Symposium on Forecasting in San Diego, California, and to students at the University of Ottawa and Queen's University.

The Tribunal hosted official delegations from Ethiopia, Chinese Taipei, Indonesia, Vietnam, China and Korea.

Staff also made presentations on the Tribunal's procurement review mandate to various administrative tribunals and government departments, including the Office of the Procurement Ombudsman and the Department of National Defence. In addition, the Tribunal made its expertise available to the Canadian trade negotiators in the context of the Doha Round of the WTO and various regional trade agreements.

Judicial Review and Appeal to the Federal Court of Appeal and the Federal Court

Any person affected by Tribunal findings or orders under section 43, 44, 76.01, 76.02 or 76.03 of SIMA can apply for judicial review by the Federal Court of Appeal on grounds of, for instance, denial of natural justice or error of law. Any person affected by Tribunal procurement findings and recommendations under the CITT Act can similarly request judicial review by the Federal Court of Appeal under section 28 of the Federal Courts Act. Lastly, Tribunal orders and decisions made pursuant to the Customs Act can be appealed under that act to the Federal Court of Appeal or, under the Excise Tax Act, to the Federal Court.

Judicial Review by NAFTA Binational Panel

Tribunal findings or orders under sections 43, 44, 76.01, 76.02 and 76.03 of SIMA involving goods from the United States and Mexico may be reviewed by a NAFTA binational panel. None of the Tribunal decisions was before a NAFTA binational panel during the fiscal year.

WTO Dispute Resolution

Governments that are members of the WTO may challenge the Government of Canada in respect of Tribunal injury findings or orders in dumping and countervailing duty cases before the WTO Dispute Settlement Body. This is initiated by intergovernmental consultations under the WTO Dispute Settlement Understanding. None of the Tribunal decisions was before the WTO Dispute Settlement Body during the fiscal year.