Annual Report March 31, 2015- Chapter II

Chapter II Mandate, Organization and Activities

Introduction

The Tribunal is a quasi-judicial body that carries out its statutory responsibilities in an independent and impartial manner. It 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, customs and excise tax appeals and government-mandated inquiries within the Tribunal’s jurisdiction.

The main legislation governing the work of the Tribunal is the Canadian International Trade Tribunal Act (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

Pursuant to section 16 of the CITT Act, the Tribunal’s functions are to:

  • inquire into whether dumped or subsidized imports have caused or are threatening to cause material injury to a domestic industry or have caused the material retardation of the establishment of a domestic industry, and to hear appeals of related enforcement decisions of the Canada Border Services Agency (CBSA);
  • hear appeals from decisions of the CBSA made under the Customs Act and of the Minister of National Revenue under the Excise Tax Act;
  • 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 World Trade Organization (WTO) Agreement on Government Procurement (AGP), the Canada-Chile Free Trade Agreement (CCFTA), the Canada-Peru Free Trade Agreement (CPFTA), the Canada-Colombia Free Trade Agreement (CCOFTA), the Canada-Panama Free Trade Agreement (CPAFTA), the Canada-Honduras Free Trade Agreement (CHFTA) and, since January 1, 2015, the Canada-Korea Free Trade Agreement (CKFTA);
  • inquire into safeguard complaints by domestic producers; and
  • provide advice to the Government of Canada on such economic, trade and tariff issues as are referred to the Tribunal by the Governor in Council or the Minister of Finance.

Governing Legislation

Section Authority

CITT Act

 

18

Inquiries on economic, trade or commercial interests of Canada by reference from the Governor in Council

19

Inquiries into tariff-related matters by reference from the Minister of Finance

19.01

Safeguard inquiries concerning goods imported from the United States or Mexico by reference from the Governor in Council

19.011

Safeguard inquiries concerning goods imported from Israel by reference from the Governor in Council

19.012

Safeguard inquiries concerning goods imported from Chile by reference from the Governor in Council

19.0121

Safeguard inquiries concerning goods imported from Colombia by reference from the Governor in Council

19.013

Safeguard inquiries concerning goods imported from Costa Rica by reference from the Governor in Council

19.0131 and 20.031

Safeguard inquiries concerning goods imported from Panama by reference from the Governor in Council

19.014

Safeguard inquiries concerning goods imported from Iceland by reference from the Governor in Council

19.015

Safeguard inquiries concerning goods imported from Norway by reference from the Governor in Council

19.016

Safeguard inquiries concerning goods imported from Switzerland or Liechtenstein by reference from the Governor in Council

19.017

Safeguard inquiries concerning goods imported from Peru by reference from the Governor in Council

19.018

Safeguard inquiries concerning goods imported from Jordan by reference from the Governor in Council

19.019

Safeguard inquiries concerning goods imported from Honduras by reference from the Governor in Council

19.0191

Safeguard inquiries concerning goods imported from Korea by reference from the Governor in Council

19.02

Mid-term reviews with regard to global safeguard and anti-surge measures

20

Global safeguard inquiries by reference from the Governor in Council

23(1) and 26(1)

Global safeguard complaints by domestic producers

23(1.01), 23(1.03) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from the United States

23(1.02), 23(1.03) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Mexico

23(1.04) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Israel

23(1.05), 23(1.06) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Chile

23(1.081), 26(1)(a)(i.81) and 27(1)(a.81)

Safeguard complaints by domestic producers concerning goods imported from Panama

23(1.061) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Colombia

23(1.07), 23(1.08) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Costa Rica

23(1.09) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Iceland

23(1.091) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Norway

23(1.092) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Switzerland or Liechtenstein

23(1.093) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Peru

23(1.094) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Jordan

23(1.095) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Honduras

23(1.096) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Honduras – textile and apparel goods

23(1.097) and 26(1)

Safeguard complaints by domestic producers concerning goods imported from Korea

30

Further safeguard inquiries by reference from the Governor in Council

30.01

Surge complaints regarding goods from NAFTA countries

30.011

Surge complaints regarding goods from Israel

30.012

Surge complaints regarding goods from Chile

30.07 and 30.08

Extension inquiries with regard to global safeguard and anti-surge measures

30.11(1)

Complaints by potential suppliers concerning the government procurement process for a designated contract

30.13

Inquiries into complaints by potential suppliers concerning the government procurement process for a designated contract

30.21

Inquiries into market disruption and trade diversion regarding goods from China by reference from the Governor in Council

30.22

Complaints of market disruption in respect of goods originating in China

30.23

Complaints of trade diversion in respect of goods originating in China

30.24

Further inquiries into market disruption or trade diversion by reference from the Governor in Council

Section/th> Authority

30.25(7)

Expiry reviews of measures relating to market disruption or trade diversion in respect of goods originating in China

30.27–30.32

Provisional safeguard inquiries on goods imported from Korea when critical circumstances exist

SIMA

 

33(2) and 37

Advisory opinions on injury by reference from the CBSA or further to requests by affected parties

34(2)

Preliminary inquiries with respect to injury or threat of injury caused by the dumping and subsidizing of goods

37.1

Preliminary determinations of injury or threat of injury

42

Inquiries with respect to injury or threat of injury caused by the dumping and subsidizing of goods

43

Orders or findings of the Tribunal concerning injury or threat of injury

44

Recommencement of inquiries (on remand from the Federal Court of Appeal or a binational panel)

45

Public interest inquiries

46

Advice to the CBSA regarding evidence that arises during an inquiry of injurious dumping or subsidizing of non-subject goods

61

Appeals of re-determinations of the CBSA concerning normal values, export prices or amounts of subsidies or whether imported goods are goods of the same description as goods to which a Tribunal finding applies

76.01

Interim reviews of Tribunal orders and findings on its own initiative or by request

76.02

Reviews resulting from the CBSA’s reconsideration of final determinations of dumping or subsidizing

76.03

Expiry reviews

76.1

Reviews at the request of the Minister of Finance as a result of rulings of the WTO Dispute Settlement Body

89 and 90

Rulings on who is the importer for purposes of payment of anti-dumping or countervailing duties by request of the CBSA

91

Reconsideration of rulings on who is the importer on the Tribunal’s own initiative or by request

Customs Act

 

60.2

Applications for extensions of time to request a re-determination or a further re-determination of origin, tariff classification, value for duty or marking of imported goods by the CBSA

67

Appeals of decisions of the CBSA concerning value for duty, origin and tariff classification or making of imported goods

67.1

Applications for orders extending the time to file notices of appeal under section 67

70

References from the CBSA for advisory opinions relating to the origin, tariff classification or value for duty of goods

Excise Tax Act

 

81.19, 81.21, 81.22, 81.23, 81.27 and 81.33

Appeals of assessments and determinations of excise tax (on automobiles, air conditioners designed for use in automobiles, gasoline, aviation gasoline, diesel fuel and aviation fuel) made by the CRA

81.32

Applications for extensions of time for internal CRA objection procedure or for appeal to Tribunal

Energy Administration Act

 

13

Declarations concerning liability for and the amount of any oil export charge that is payable where oil is transported by pipeline or other means to a point of delivery outside Canada

Method of Operation

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

The Tribunal proceeds through file hearings (hearings based on written submissions alone) or public hearings. Public hearings are normally held in Ottawa, Ontario, but may also be held elsewhere in Canada depending on the circumstances of the particular case. In accordance with section 35 of the CITT Act, hearings are 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, guidelines, practice notices, Tribunal procedures, communiqués 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 tailor their subscription to their specific category of interest.

Members of the Tribunal

The Tribunal may be composed of up to seven full-time permanent members, including the Chairperson. The Chairperson assigns cases to members and manages the Tribunal’s work. Permanent members are appointed by the Governor in Council for a term of up to five years, which can be renewed once. Temporary members may also be appointed. Members have a variety of educational backgrounds and experience.

Throughout the year, the Chairperson of the Tribunal was Mr. Stephen A. Leach. In July 2014, Mr. Jean Bédard was appointed as permanent member. In the autumn of 2014, Mr. Pasquale Michaele Saroli, a permanent member, retired and Mr. Serge Fréchette, a former permanent member, was appointed as a temporary member. In January 2015, Mr. Peter Burn and Ms. Rose Ritcey were appointed as permanent members. The other members of the Tribunal are Mr. Jason W. Downey, Ms. Ann Penner and Mr. Daniel Petit.

Support Services to the Tribunal

Effective November 1, 2014, the entire permanent staff of the Tribunal was transferred to the ATSSC. This new organization is tasked to provide 11 federal administrative tribunals with the full range of support services and facilities that they require to meet their statutory obligations. These services include the common functions of corporate services (e.g. human resources, financial services, information technology, accommodation and communications), registry services and core mandate support services (e.g. research and analysis, legal and other case-specific work). As a result, the Tribunal now consists only of its seven members. Currently, the Tribunal receives support in relation to registry services and legal services, as well as investigative services for the trade remedy area of its mandate, from staff in the CITT Secretariat of the ATSSC.

Outreach

The Bench and Bar Committee 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.

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 implementation and publication as guidelines or practice notices. The Tribunal also briefs federal government departments and trade associations on its procedures.

In early 2015, the Tribunal laid the groundwork to establish a new, more representative Advisory Committee to replace the Bench and Bar Committee. It expects that this committee will be in place by the fall of 2015.

The Tribunal regularly meets foreign delegations to exchange insights and best practices about areas of mutual interest. In fiscal year 2014-2015, the Tribunal met with peers from Australia, China, New Zealand, Brazil and the United States, among others. Of particular significance, insights gained from a visit to the United States Court of International Trade were incorporated into the Tribunal’s new governance structure.

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 sections 18.1 and 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 binational panel established under NAFTA.

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.