Annual report March 31, 2023 - Judicial reviews and appeals

Judicial or panel reviews of Tribunal decisions

Any person affected by Tribunal findings or orders under section 43, 44, 76.01, 76.02 or 76.03 of the Special Import Measures Act (SIMA) can apply for judicial review by the Federal Court of Appeal (FCA) on grounds of, for instance, denial of natural justice or error of law. Any person affected by Tribunal procurement findings and recommendations under the Canadian International Trade Tribunal Act (CITT Act) can similarly request judicial review by the FCA 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 FCA or, under the Excise Tax Act, to the Federal Court. 

This year again, a very small proportion (6 out of 109 or 6%) of the Tribunal decisions were appealed to a reviewing court or body.

Judicial reviews of Special Import Measures Act cases

During the fiscal year, one application for judicial review was filed before the FCA in relation to the Tribunal’s decision in Drill Pipe (PI-2021-006). The application was discontinued by the applicant on consent of the respondent.

The judicial review relating to Decorative and Other Non-structural Plywood (NQ-2020-002), which was filed in a prior fiscal year, remained pending at the end of this fiscal year. The FCA held a hearing on March 31, 2023, and will issue its judgment in due course.

Judicial reviews of procurement complaints

Appeals of Customs Act and Special Import Measures Act appeal decisions

Canada (Border Services Agency) v. Danson Décor Inc. (2022 FCA 205)

On December 1, 2022, the FCA dismissed an appeal from the Tribunal’s decision in AP-2018-043 issued on September 6, 2019. The Tribunal had found that natural rocks harvested from a riverbed should properly be classified as mineral products under heading 25.17 of the Schedule to the Customs Tariff, notwithstanding certain polishing operations that they underwent. The FCA considered the questions of law before it to be whether the Tribunal erred by classifying the goods in issue without due regard to the tariff classification rules of interpretation and without supporting evidence, as well as whether the Tribunal erred by expanding the scope of the provisions applicable to mineral products. Having reviewed the Tribunal’s decision on the standard of correctness, the FCA dismissed the appeal. 

Review by Canada-United States-Mexico Agreement binational panel

Tribunal orders or findings in dumping and countervailing duty cases involving goods from the United States and Mexico may be reviewed by a binational panel established under the Canada-United States-Mexico Agreement. A binational panel review is triggered on application from an interested party and replaces judicial review before the FCA. A binational panel may uphold the Tribunal decision under review or remand it back to the Tribunal for a determination. 

During the last fiscal year, no new requests were made for review by a binational panel. One binational panel review of a Tribunal decision, initiated in a prior fiscal year and relating to gypsum board from the United States, concluded this fiscal year. The binational panel upheld the Tribunal’s decision to not initiate an interim review of its finding concerning gypsum board. 

World Trade Organization Dispute Resolution

Governments that are members of the World Trade Organization (WTO) may challenge the Tribunal’s orders or findings 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 last fiscal year, no Tribunal matters were before the Dispute Settlement Body.