In Sarco Canada Limited v. Anti-Dumping Tribunal, [1979] 1 C.F.247, the Court of Appeal did rule that there had been a denial of natural justice in that the Tribunal had considered and based its decision on information not disclosed to all of the parties with the result that the applicant was not given a fair hearing. The applicant satisfied the Court of Appeal that in the absence of being provided with such a report or summary of the confidential evidence, the applicant was unable to respond to the same, and was thereby denied the minimum requirement of a fair hearing as outlined by the Court of Appeal decision in the earlier Magnasonic Canada Limited v. Anti-Dumping Tribunal, [1972] F.C.1239 case. The decision in the latter case was however based on error of law by the Tribunal in failing to satisfy a minimum requirement or statutory condition precedent that entitles all parties to appear and be represented at a hearing while still accepting confidential information. The minimum requirement is to provide a report of the evidence taken in camera. As these cases illustrate, the error of law contemplated in s.28(1)(a) is to deny a party a record of in camera evidence, while the denial of natural justice contemplated in s.28(1)(b) is the failure to afford the party a right to a hearing or the right to respond. The grounds set out in s.28(1)(a) and (b) are however separate grounds upon which the Tribunal's decision may be attacked. A Tribunal which has erred in law, whether or not the parties have been afforded a fair hearing will undoubtedly find its decision set aside on review. Finally, the wording of s.28 which empowers the Court of Appeal to " review and set aside" constrains the Court of Appeal's jurisdiction to substitute its own judgement for that of the Tribunal; s.52 of the Federal Court Act sets out the powers of the Court. On such an application it may only dismiss the application, set aside the decision of the Tribunal, or set aside the decision and refer the matter back to the Tribunal for reconsideration. The Federal Court however, has no power to substitute its own decision for that of the Tribunal. Foreword This booklet is designed to introduce the reader to the role played by the Canadian Import Tribunal. The information contained herein is provided only for convenience of reference. The Special Import Measures Act (SIMA), the regulations and the Rules should be consulted for the purpose of interpreting and applying the law. Further enquiries concerning the role played by the Canadian Import Tribunal should be directed to: The Secretary Canadian Import Tribunal Journal Tower South, 19th Floor 365 Laurier Avenue West Ottawa, Ontario K1A 0G5 Tel. (613) 993-4601 WHAT IS THE GENERAL PURPOSE OF THE SPECIAL IMPORT MEASURES ACT? SIMA was proclaimed in 1984. Its purpose is to help protect Canadian manufacturers and producers from two important forms of unfair competition originating in foreign countries: (1) axporting goods to Canada at lower prices than they would be sold in their home market. This is referred to as "dumping": (2) exporting goods to Canada which have been produced with the benefit of substantial foreign government subsidies. This is referred to as "subsidization". SIMA provides protection to Canadian manufacturers and producers if it is established, to the satisfaction of the Canadian Import Tribunal, that dumped or subsidized imports have caused or threaten to cause material injury to the Canadian production of like goods. The injury test is required because non-injurious dumping or subsidization usually benefits the general consumer through lower prices, and such practices need not, therefore, be discouraged. If material injury is established, anti-dumping or countervailing duties may be levied on these imports to offset the price advantage caused by the dumping or subsidization. HOW IS THIS GENERAL PURPOSE CARRIED OUT? This protective mechanism embodied in SIMA is carried out by two organizations. The Department of National Revenue, Customs and Excise, conducts the initial investigation into alleged dumping or subsidization. The Department is also responsible for collecting the various anti-dumping and countervailing duties which are outlined in SIMA. If an initial administrative investigation by National Revenue confirms the existence of dumping or subsidization, an inquiry into material injury is then conducted by a body independent of government, the Canadian Import Tribunal. The Tribunal conducts inquiries to determine whether the dumping or subsidization has caused, is causing or is likely to cause material injury to Canadian producers or is materially retarding the establishment of production in Canada. WHAT IS THE CANADIAN IMPORT TRIBUNAL? The Tribunal is a court of record that conducts several types of proceedings generally in a quasi-judicial fashion. In arriving at its decisions, the Tribunal receives representations, hears evidence and holds public hearings. The Tribunal consists of five regular members, to which may be added temporary members should the need arise. It is supported by a research unit which conducts economic studies and a secretariat which provides support services. The Tribunal is located in Ottawa. Although hearings normally are held in Ottawa, they may be held anywhere in Canada. Anyone wishing to communicate with the Tribunal to obtain information about enabling legislation and procedures or to make representations may do so by contacting the Secretary. WHAT ARE THE VARIOUS FUNCTIONS OF THE CANADIAN IMPORT TRIBUNAL? The Tribunal conducts six types of proceedings: (1) Reference - When the Deputy Minister of National Revenue decides not to proceed with a dumping or subsidizing investigation because the evidence does not disclose to his satisfaction that material injury or retardation has occurred or will occur, the Deputy Minister or the complainant may refer this question to the Tribunal. The Tribunal then decides whether there is sufficient indication of injury to cause an investigation to be continued. If a formal investigation is launched by the Deputy Minister, the exporter, importer or government of the country of export may refer the matter to the Tribunal as to whether there is a reasonable indication of injury in an attempt to terminate the investigation. (2) Injury Inquiry -This is an economic inquiry involving the examination of a wide variety of factors and the formulation of a judgement by the Tribunal as to whether the importation of dumped or subsidized goods is materially injurious to Canadian producers of like goods. The process starts by a complaint from a Canadian manufacturer (or manufacturers, or an association of manufacturers) alleging dumping or subsidization as well as injury from imported goods. This complaint s made to the Deputy Minister, National Revenue Customs and Excise. Before initiating a formal investigation. National Revenue officials must be satisfied that there is evi dence of dumping or subsidization as well as material injury. Once satisfied of this, a formal investigation into dumping or subsidization is triggered. Exporters and importers of the goods are placed on notice and their transactions are investigated by customs officials As a general rule, the investigation by Nationa Revenue must be completed within 90 days c' 'S commencement. By that time. the Deputy Minister must either issue a preliminary determination of dumping or subsidization, or terminate the investigation. Confidential information submitted to the Tribunal is subject to strict safeguards. Only independent counsel have access to confidential information; the actual participants and the public do not have access to such information. The Deputy Minister must produce a final determination of dumping or of subsidization within 90 days after the Issuance of the preliminary determination. It is usually at the time of receiving the final determination that the Tribunal will begin a public hearing into the matter. At the public hearing. the domestic producer (complainant) must not only convince the Tribunal that it has been injured. but must also demonstrate that it has been materially injured by the dumping or subsidization. The fact of dumping is not an issue before the Tribunal as it has already been determined by the Deputy Minister. The complainant's evidence often covers such matters as the complainant's loss of sales to dumped or subsidized imports, price competition, declines in employment, market share and profitability. |