Annual Report March 31, 2018- Chapter II

Chapter II - Mandate, Organization and Activities

Introduction

The Tribunal is a quasi-judicial body that carries out its 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 its cases.

The Tribunal is mandated to act within five key areas:

Anti-dumping Injury Inquiries To inquire into and decide whether dumped and/or subsidized imports have caused, or are threatening to cause, injury to a domestic industry.
Procurement Inquiries To inquire into complaints by potential suppliers concerning procurement by the federal government and decide whether the federal government breached its obligations under certain trade agreements to which Canada is party.
Customs and Excise Appeals To hear and decide appeals of decisions of the Canada Border Services Agency made under the Customs Act and the Special Import Measures Act (SIMA) and of the Minister of National Revenue made under the Excise Tax Act
Economic and Tariff Inquiries To 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
Safeguard Inquiries To 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.

How the Tribunal Does its Work

The Tribunal is a court of record and has 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. For instance, the Tribunal can subpoena witnesses and require parties to produce information. At the same time, however, the Tribunal carries out its proceedings as informally and expeditiously as the circumstances and considerations of fairness permit.

The Tribunal provides individuals and businesses with the opportunity to submit their evidence and views and to respond to other parties before it makes a final decision. Access to companies’ confidential information is strictly controlled. Protecting confidential information against unauthorized disclosure is of the utmost importance to the Tribunal.

Frequently, the Tribunal holds hearings to allow parties to call witnesses and explain their points of view and present arguments. Hearings are open to the public and are usually held at the Tribunal’s offices in Ottawa, Ontario, but may be held elsewhere in Canada depending on the specific circumstances of a given case. Parties may also participate in electronic hearings (e.g. through video conference technology). The Tribunal may also base its decisions solely on the written information filed before it or collected during the proceedings without a hearing.

The Tribunal has little control over the volume and complexity of its workload and faces tight statutory deadlines for most of its cases. The Tribunal’s Web site serves as a repository of all information relating to decisions and their accompanying statements of reasons.

The Tribunal receives case-related support services from staff of the CITT Secretariat of the ATSSC. The ATSSC also provides the Tribunal with corporate services and facilities.

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 Acting Chairperson of the Tribunal was Mr. Jean Bédard. The other permanent members of the Tribunal during the year were Ms. Ann Penner, Mr. Daniel Petit, Mr. Peter Burn, Ms. Rose Ritcey and Mr. Jason W. Downey, who resigned from the Tribunal in November 2017. Mr. Petit’s term expired in September 2017, while Ms. Penner’s term expired in January 2018. Mr. Serge Fréchette, a former permanent member, was reappointed to a temporary member position and served in that capacity throughout the year.

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 provided its annual report to the Tribunal on April 30, 2017. The Tribunal responded on June 27, 2017, and commented on the recommendations. The Tribunal met with the Advisory Committee twice during the year. 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 Acting Chairperson spoke at the Seoul International Forum on Trade Remedies on June 12, 2017, about the Tribunal’s observance of WTO dispute settlement decisions regarding trade remedies. He also spoke on a panel at the annual World Trade Law Meeting in September, 2017 and at the Georgetown Law Center’s annual Trade Law Update in March, 2018

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 appeals or judicial reviews on 17 decisions of the Tribunal in 2017-2018. One of those decisions was overturned or remanded.

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 request for a binational panel from the preceding year was withdrawn during the past year and no new requests were made.

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 (DSB). This is initiated by intergovernmental consultations under the WTO Dispute Settlement Understanding. During the last fiscal year, no Tribunal matters were before the DSB.