30 May 2019
Introduction
Under its Terms of Reference, the Advisory Committee provides the Tribunal with an Annual Report setting out recommendations for action in matters under its purview. The following is provided in response to that requirement and is the Committee’s fourth such report.
The last (2017-2018) report was sent to the Tribunal on 3 May 2018. The Tribunal responded, noting in particular its priority interest in improving access to justice and lowering costs of participation, thus helping to facilitate access to the Tribunal’s proceedings for small and medium sized businesses.
This Report comes after a hiatus in the Committee’s meetings over the past year, due to the exceptionally heavy hearing schedule engaging Tribunal resources and numerous counsel and parties, including the unprecedented inquiry in Certain Steel Goods (Inquiry No. GC-2018-001) that began in October 2018 and occupied a large number of stakeholders and consumed an extraordinary amount of Tribunal time and resources.
Given these constraints, it was impossible to convene an intersessional Committee meeting this part year, even by means of a conference call. The result is that a full year passed since the last Committee meeting. Because of this unusual confluence of events, this year’s report on substantive issues is somewhat shorter than usual.
Year in Review
It is useful to quickly review the trade remedy cases heard in 2018-2019. As indicated above, the Tribunal was seized with an almost unprecedented huge workload over the past year. For the record, the following inquiries were heard in 2018-2019 to date:
- Carbon and Alloy Steel Line Pipe, NQ-2017-002
- Polyethylene Resin, NQ-2017-003
- Copper Pipe Fittings, NQ-2017-004
- Dry Wheat Pasta, NQ-2017-005
- Sucker Rods, NQ-2018-001
- Cold Rolled Steel, NQ-2018-002
- Carbon Steel Welded Pipe, NQ-2018-003
- Corrosion-Resistant Steel Sheet, NQ-2018-005
- Nitisinone Capsules, NQ-2018-005
The Tribunal terminated a SIMA proceedings at the Preliminary Injury Inquiry stage: Gypsum Board, PI-2018-003 (4 September 2018).
The expiry reviews in 2018-2019 were:
- Stainless Steel Sinks, RR-2017-001
- Liquid Dielectric Transformers, RR-2017-002
- Steel Piling Pipe, RR-2017-003
- Hot Rolled Carbon Steel Plate, RR-2017-004
- Carbon Steel Welded Pipe, RR-2017-005
- Seamless Oil and Gas Well Casing, RR-2017-006
- Carbon Steel Welded Pipe, RR-2018-001
File hearings were held in Steel Piling Pipe and Hot-Rolled Carbon Steel Plate, given the absence of opposition. These are welcomed by the Committee as a means of reducing costs and generally aiding in the efficiency of proceedings,
The remainder of this year will continue to be heavily charged, with several steel and other cases in the works.
The safeguard inquiry in Certain Steel Goods (GC-2018-001) was heard following a direction by the Federal Government under section 20(a) of the Canadian International Trade Tribunal Act by way of Order in Council PC 2018-1275 (10 October 2018). The direction involved seven separate steel product categories.
The Tribunal held its hearing in January 2019 and issued its report and recommendations by 3 April 2019. In the Committee’s view, this particular inquiry was a watershed in many ways and involved a number of new procedural and administrative issues that will be figure into reviews by the Committee over the coming year.
Newly updated Rules were issued during 2018, posted on the Tribunal web-site: Canadian International Trade Tribunal Rules (as amended April 26, 2018).
A number of updates to Guidelines regarding practices and procedures were also issued in 2018, also on the Tribunal web-site, following consultations with the Committee:
- Expiry Review Guidelines
- Guidelines on Interim Review
- Guidelines regarding Product Exclusions
- Preliminary and Final Injury Inquiry Guidelines
- Public Interest Inquiry Guidelines
- Notice of Participation, Notice of Representation, Declaration and Undertaking and Certificate of Destruction.
It is noted that all of these updates are on the Tribunal’s web-site: www.citt.gc.ca.
Cost Reductions and Efficiency Improvements
The “access to justice” issue continues to be on top of the Committee’s agenda, notably finding ways to reduce participation costs (notably legal and consulting fees) in Tribunal’s proceedings. Party costs pertaining to the CBSA’s phase of the proceedings are equally of concern to smaller stakeholders and need to be addressed.
As stated in our 2018 report, the access to justice issue is seen by Chairman Bédard as a matter of priority, especially for SMEs and smaller stakeholders. Committee Vice-Chair Joy Nott has been taking the Committee’s lead on these issues.
Recommendation:
The Committee should continue to review these cost-related matters and make recommendations to the Tribunal and the government at large as may be desirable.
Committee Membership
Committee membership consists of a wide cross-section of stakeholders, that is, persons in their individual capacities that are representative of the community of interests engaged in the work of the Tribunal, consisting of corporate representatives, legal counsel, consultants, business organizations and a cross-section of interested government departments.
Recommendation:
The Committee should continue to seek to augment membership of private sector representatives to further its mandate of engaging a broad cross-section of interested parties.
Video Conferencing & Witness Testimony
The Committee notes that the Tribunal and the ATSSC have resolved lingering technical aspects for video-conferencing. As recommended in its previous reports, greater use of constantly improving video technology will make Tribunal hearings more accessible and less costly for all concerned.
The Tribunal issued an updated Practice Notice on Electronic Hearings December 2017. The Notice is extremely helpful in setting out parameters for parties and counsel in respect of e-hearings.
Recommendation:
The Committee should keep this matter under ongoing review and provide advice/comments to the Tribunal and ATSSC staff on areas where improvements or adjustments could be made to improve the use of e-hearings, including sorting out issues in cases when protected information is involved.
Electronic Document Filing and Service
The Committee has had the subject of improving use of e-service in Tribunal proceedings on its agenda since 2016. Taking into account comments by the Committee, the Tribunal issued its draft Practice Notice on Filing of Documents, 13 February 2017, replacing an earlier draft.
With the advances in e-filing, the Tribunal no longer requires filing of hard copies, with the exception that protected third-party information, where original documents must be physically served.
A number of issues arise when both e-versions and physical documents are involved, such as whether the two sets of filings are totally identical. The Committee will continue to review these and other points and provide comments and suggestions to the Tribunal and the ATSSC to deal with these matters.
Transcending the e-filing matter, a related matter involves the increasing length and volume of documents filed with briefs and witness statements, notably in SIMA proceedings. This is a matter for further deliberation. In this regard, the Committee welcomes the February 2017 Practice Notice as one way of reducing the size of written submissions and, ultimately, the cost to parties.
Recommendation:
The Tribunal and ATSSC staff should continue to perfect any glitches in e-filing. The Committee should assist these efforts by bringing to the attention of both the Tribunal and ATSSC areas where adjustment in service and filing criteria may be desirable.
As well, the Committee should keep under review the matter of the length of documentary material filed in SIMA and other proceedings.
Committee Meetings & Prospective Workshop
Subject to what was said above, the Committee’s practice has been to convene two plenary sessions in Ottawa in each calendar year, one in the spring and the other in the fall. The last plenary session took place in May 2018. As noted, because of the Tribunal’s heavy schedule, no meeting could be held in the fall of 2018.
Between plenary sessions, conference calls take place and these will also continue as a cost-effective means of furthering the Committee’s work.
Instead of a fall plenary in 2019, a workshop on a select number of Tribunal issues is planned, using the experience gained at the workshop 2015 event that engaged legal counsel, consultants and a variety of private sector stakeholders. While all Committee members or their organizations will be welcome to attend, the idea is for the forthcoming workshop is that it will be focused on legal issues and technical matters.
This idea flows from the annual meeting in May 2018, where there was consensus that the plenary meetings will deal with policy matters and items of broad concern to businesses and private sector stakeholders and avoid technical matters, to be addressed by meetings among lawyers, including at the projected workshop in the fall of 2019.
Recommendation:
Plans should proceed for the holding of the workshop with a focus on legal and technical matters regarding the Tribunal’s functioning.
Customs and Excise Appeals
Under Vice-Chair Dalton Albrecht, a sub-committee has been reviewing ways whereby costs in customs appeals can be reduced and proceedings simplified. A Consultation Paper by the Tribunal on an Expedited Process for Customs Classification Appeals is being reviewed by the sub-committee. A revised Customs and Excise Appeals-Guide was posted on the Tribunal web-site in April 2018.
Recommendation:
Work of the sub-committee should continue with reporting to the full committee as may be desirable.
Procurement Matters
The Committee will continue to examine procurement issues by the Procurement Sub-Committee headed by Gerry Stobo and Martin Masse. It took note of a report on progress in this area presented by Gerry Stobo at the May 2018 meeting. That report is on file.
Recommendation:
Improvements in the Tribunal’s procurement bid challenge process and other procedures should continue under review by the sub-committee, with ongoing reports to the full Committee as desirable.
Concluding Comments
The Committee appreciates the Tribunal’s initiative under the leadership of the Chair and Member Ann Penner in embracing a wide range of interests and seeking greater public engagement in its work. Ms. Penner will soon be leaving the Tribunal at the conclusion of her term of appointment. The Committee commends the excellent work she has done over the years as Chair of the Tribunal’s Outreach Committee and wishes her the best of success as she pursues other ventures. It looks forward to collaborating with Vice-Chair Rose Ritcey as her successor as Chair of the Outreach Committee.
The Advisory Committee uses this opportunity to welcome the arrival of new Tribunal members appointed since its last report: Susan Beaubien, Cheryl Beckett, Georges Bujold and Randolph Heggart.
The openness of the Tribunal and ATSSC staff to these regular discussions with the Committee is of great value in furthering better understanding of the Tribunal’s role and procedures among private parties and the Canadian public at large.
Respectfully Submitted, 30 May 2019.
Lawrence L. Herman
Chair
National Advisory Committee
LLH/bdm