Annual report March 31, 2017 - Chapter II

Chapter II - Mandate, Organization and Activites

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 trade remedy cases, procurement cases, customs and excise tax appeals and government-mandated economic and tariff inquiries.

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 the Canada-Korea Free Trade Agreement (CKFTA);
  • inquire into safeguard complaints by domestic producers; and
  • advise 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
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.

In accordance with section 35 of the CITT Act, the Tribunal’s hearings are carried out as “informally and expeditiously” as the circumstances and considerations of fairness permit. The Tribunal proceeds through file hearings (hearings based on written submissions alone) or public hearings. In February 2017, the Tribunal conducted a file hearing in an expiry review for the first time in order to save time and costs for the parties as part of a wider effort to make the Tribunal more accessible.

Public hearings are normally held in Ottawa, Ontario, but may also be held elsewhere in Canada depending on the circumstances of the particular case. The Tribunal’s combined hearing on the trade remedy and the economic and tariff inquiries relating to the Western Canadian gypsum board market was held in Edmonton, Alberta, in November and December 2016.

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 as those of a court of justice. In February 2017, the Tribunal began to treat its digital records as its official records and encouraged parties to file documents and cite authorities electronically.

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. The Tribunal modified its Web site between January and March 2017 to make it easier for parties to find helpful, up-to-date information.

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.

In April 2016, Mr. Stephen A. Leach resigned as Chairperson. Mr. Jean Bédard served as Acting Chairperson for the balance of the year. The other members of the Tribunal were Mr. Jason W. Downey, Ms. Ann Penner, Mr. Daniel Petit, Mr. Peter Burn and Ms. Rose Ritcey. Mr. Serge Fréchette, a former permanent member, was reappointed to a temporary member position.

Support Services to the Tribunal

The Tribunal receives case-related support services from staff of the CITT Secretariat of the ATSSC. The ATSSC also provides the Tribunal with internal services and facilities. In the autumn of 2016, the Trade Remedies Investigations Branch of the CITT Secretariat was restructured to make it more streamlined and well prepared to handle future increases in the Tribunal’s case load.

Outreach

The Tribunal’s Advisory Committee is made up of a cross-section of legal counsel, business associations and governmental officials. Its purpose is to provide recommendations to enhance the accessibility, fairness and transparency of the Tribunal’s rules and procedures. It met with the Tribunal in Ottawa, Ontario, on April 19 and November 1, 2016. The Tribunal will continue working with the Advisory Committee to reduce costs and enhance fairness and accessibility for all parties, especially for small- and medium-sized businesses. The Advisory Committee’s reports and the Tribunal’s responses are available on the Tribunal’s Web site.

Members of the Tribunal also met with peers from around the world. Notably, in May 2016 Mr. Bédard addressed the Seoul International Forum on Trade Remedies, which was attended by representatives from the trade remedy authorities of the Republic of Korea, the United States, the European Commission, Australia, the People’s Republic of China, Mexico, and the World Trade Organization (WTO), among others. He also participated in a meeting of the heads of trade remedy investigative authorities held in Seoul concurrently with the Forum on Trade Remedies. Members of the Tribunal also attended the World Customs Law annual meeting in September 2016, a WTO-sponsored conference in October 2016, the 19th judicial conference of the United States Court of International Trade in November 2016, and the annual International Trade Update in Washington, D.C., in March 2017. In addition, the CITT Secretariat and Australia’s Antidumping Commission initiated an exchange program for support staff.

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. The Federal Court of Appeal heard five decisions of the Tribunal in 2016-2017 and none were overturned or remanded.

Decisions of the Federal Court of Appeal may be appealed to the Supreme Court of Canada. On September 29, 2016, by an 8 to 1 margin the Supreme Court upheld a decision of the Tribunal concerning the tariff classification of hockey gloves.

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. A binational panel was requested by a United States drywall exporter in February 2017, the first request in several years. The request was outstanding at fiscal year-end.

WTO Dispute Resolution

World Trade Organization members 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. During the year, a WTO panel reviewed a determination of the Tribunal for the first time. The panel found that part of the Tribunal’s determination in relation to certain imports from Chinese Taipei, stemming from how Canada’s international obligations had been implemented through SIMA, was not fully compliant with the WTO Agreement. Canada did not appeal.