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ANNUAL REPORT
FOR THE FISCAL YEAR ENDING MARCH 31, 1997
TABLE OF CONTENTS
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The Honourable Paul M. Martin, P.C., M.P.
Minister of Finance
House of Commons
Ottawa, Ontario
K1A 0A6
Dear Minister:
I have the honour of transmitting to you, for tabling in the House of Commons, pursuant to section 41 of the Canadian International Trade Tribunal Act, the Annual Report of the Canadian International Trade Tribunal for the fiscal year ending March 31, 1997.
Yours sincerely,
Patricia M. Close
Acting Chairman
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CHAPTER I |
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TRIBUNAL HIGHLIGHTS 1996-97 |
Appointment of Members |
On January 1, 1997, Dr. Patricia M. Close was appointed Vice-Chair of the Canadian International Trade Tribunal (the Tribunal). Prior to her appointment, she was Director of the Tariffs Division at the Department of Finance. Dr. Close has also held various senior positions with the departments of Industry, Natural Resources and Finance, the Bank of Montreal and Petro-Canada on executive interchanges.
Mr. Robert C. Coates, Q.C., was re-appointed to the position of Member of the Tribunal, and Messrs. Arthur B. Trudeau and Charles A. Gracey were appointed as temporary members. |
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Dumping and Subsidizing Injury Inquiries and Reviews |
The Tribunal initiated four injury inquiries. As of the end of the fiscal year, findings had been issued in two inquiries. The Tribunal also initiated five reviews of earlier injury findings. It issued three decisions, and two reviews were still in progress at the end of fiscal year 1996-97. |
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Appeals of Decisions of the Department of National Revenue |
The Tribunal issued decisions on 158 appeals from decisions of the Department of National Revenue (Revenue Canada) made under the Customs Act, the Excise Tax Act and the Special Import Measures Act (SIMA).
The Tribunal implemented a number of measures to improve the case management of appeals. The use of teleconferences to deal with preliminary matters and the more systematic review of requests for postponement have helped the Tribunal to deal with files and bring appeals to the hearing stage more expeditiously.
The appointment of one member, at times, to hear appeals of Revenue Canada decisions under the Customs Act and some provisions of the Excise Tax Act and hearings by way of videoconferencing have allowed the Tribunal to deal more promptly with appeals. |
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Trade and Tariff References |
Pursuant to a reference from the Minister of Finance dated July 6, 1994, the Tribunal investigates requests from domestic producers for tariff relief on imported textile inputs and makes recommendations in respect of those requests to the Minister of Finance. During fiscal year 1996-97, the Tribunal issued 23 reports to the Minister of Finance, covering 56 requests for tariff relief.
Revised terms of reference were issued to the Tribunal by the Minister of Finance on July 24, 1996, and a revised Textile Reference Guide was issued in October 1996.
In addition, the Tribunal's second annual status report on the investigation process was submitted to the Minister of Finance on November 29, 1996. |
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Procurement Review |
The Tribunal provides an opportunity for redress for potential suppliers concerned about the propriety of the procurement process relative to contracts covered by the North American Free Trade Agreement (NAFTA), the Agreement on Internal Trade (the AIT) and the World Trade Organization (WTO) Agreement on Government Procurement.
The Tribunal issued 12 written determinations of its findings and recommendations. In 5 of the 12 written decisions, the complaints were determined to be valid or valid in part. In one case, File No. PR-95-023 (Array Systems Computing Inc.), the Department of Public Works and Government Services decided not to implement the Tribunal's recommendations. |
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Review of SIMA |
The Chairman of the Tribunal appeared before the Sub-Committee on the Review of SIMA of the Standing Committee on Finance and the Sub-Committee on Trade Disputes of the Standing Committee on Foreign Affairs and International Trade.
On December 11, 1996, the Sub-Committees tabled their joint report on SIMA. The report includes a number of recommendations that would directly affect the operations of the Tribunal. |
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Free Trade Agreements with Israel and Chile |
In 1996, Canada entered into free trade agreements with Israel and Chile. As a result of the Canada-Israel Free Trade Agreement Implementation Act, the Canadian International Trade Tribunal Act (the CITT Act) was amended in the area of safeguards. When the Canada-Chile Free Trade Agreement Implementation Act comes into force, the CITT Act will be further amended to reflect similar changes. |
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Inquiry Process Under SIMA |
The Tribunal completed its review of the inquiry process under SIMA. The Tribunal decided to proceed with a number of changes to existing procedures and applied them for the first time in the polyiso insulation board case (Inquiry No. NQ-96-003). The changes were summarized in a discussion paper issued in November 1996. |
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Canadian International Trade Tribunal Rules |
The Tribunal is pursuing its review of the Canadian International Trade Tribunal Rules (Tribunal's Rules of Procedure) with a view toward amending and augmenting its rules, where necessary, to make them more efficient and to reflect technological innovations that may have an impact on the Tribunal's procedures. |
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New Brochure and Information Documents |
The Tribunal published a brochure entitled "Introductory Guide on the Canadian International Trade Tribunal." This brochure is part of a series of documents that provide more detailed information on dumping and subsidizing inquiries and reviews, appeals from customs, excise and SIMA decisions, textile tariff investigations and procurement review. |
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Tribunal's Web Site |
In September 1996, the Tribunal launched its Web site (www.citt-tcce.gc.ca). This service complements the Tribunal's electronic bulletin board service and Factsline system and is aimed at allowing users a more timely and convenient access to Tribunal publications, decisions, documents, etc. |
Tribunal's Caseload in Fiscal Year 1996-97
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Cases Brought Forward from Previous Fiscal Year |
Cases Received in Fiscal Year |
Total |
Decisions/ Reports Issued |
Cases Withdrawn/ Not Initiated |
Cases
Outstanding (March 31, 1997) |
SIMA ACTIVITIES |
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Injury Inquiries |
3 |
4 |
7 |
5 |
- |
2 |
Injury Reviews |
3 |
5 |
8 |
6 |
- |
2 |
Expiries1 |
1 |
8 |
9 |
5 |
1 |
3 |
References (Advice) |
- |
2 |
2 |
1 |
- |
1 |
APPEALS |
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Customs Act |
378 |
205 |
583 |
1142 |
138 |
331 |
Excise Tax Act |
417 |
25 |
442 |
38 |
150 |
254 |
SIMA |
109 |
12 |
121 |
6 |
63 |
52 |
Total |
9043 |
242 |
1146 |
158 |
351 |
637 |
TEXTILE REFERENCE |
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Requests for Tariff Relief |
58 |
164 |
74 |
575 |
7 |
10 |
PROCUREMENT REVIEW ACTIVITIES |
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Complaints |
8 |
41 |
49 |
12 |
28 |
9 |
1. As a result of a different method of reporting expiries, the first column refers to expiries for which decisions on whether or not to review had not been made prior to the end of the previous fiscal year. The fourth column refers to decisions to review.
2. This figure includes 60 eyewear appeals for which decisions on jurisdiction were issued.
3. Many of these cases were being held in abeyance, upon request of the parties, pending decisions by the Federal Court of Canada or the Tribunal on similar issues.
4. Includes the reference from the Minister of Finance (TR-95-056A).
5. The Tribunal actually issued 23 reports to the Minister of Finance which related to 56 requests for tariff relief, plus the reference from the Minister of Finance.
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CHAPTER II |
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MANDATE, ORGANIZATION AND ACTIVITIES OF THE TRIBUNAL |
Introduction |
The Tribunal is an administrative tribunal operating within Canada's trade remedies system. It is an independent quasi-judicial body that carries out its statutory responsibilities in an autonomous and impartial manner and reports to Parliament through the Minister of Finance.
The main legislation governing the work of the Tribunal is the CITT Act, the Canadian International Trade Tribunal Regulations (the CITT Regulations), the Tribunal's Rules of Procedure, SIMA, the Customs Act and the Excise Tax Act. |
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Mandate |
The Tribunal's mandate is to:
· conduct inquiries into whether dumped or subsidized imports have caused, or are threatening to cause, material injury to a domestic industry;
· hear appeals of Revenue Canada decisions made under the Customs Act, the Excise Tax Act and SIMA;
· conduct investigations into requests from Canadian producers for tariff relief on imported textile inputs that they use in their production operations;
· conduct inquiries into complaints by potential suppliers concerning procurement by the federal government that is covered by NAFTA, the AIT and the WTO Agreement on Government Procurement;
· conduct safeguard inquiries into complaints by domestic producers that increased imports are causing, or threatening to cause, serious injury to domestic producers; and
conduct inquiries 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.
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Method of Operations |
In carrying out most of its responsibilities, the Tribunal conducts hearings that are open to the public. These are normally held in Ottawa, Ontario, the location of the Tribunal's offices, although hearings may also be held elsewhere in Canada. The Tribunal has rules and procedures similar to those of a court of law, but not quite as formal or strict. The CITT Act states that hearings, conducted generally by a panel of three members, should be carried out as "informally and expeditiously" as the circumstances and considerations of fairness permit. The Tribunal has the power to subpoena witnesses and require parties to submit information, even when it is commercially confidential. The CITT Act contains provisions that strictly control access to confidential information.
The Tribunal's decisions may be reviewed by or appealed to, as appropriate, the Federal Court of Canada and, ultimately, the Supreme Court of Canada, or a binational panel under NAFTA, in the case of a decision affecting US and/or Mexican interests. Governments that are members of the WTO may appeal the Tribunal's decisions to a dispute settlement panel under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes. |
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Membership |
The Tribunal may be composed of nine full-time members, including a Chairman and two Vice-Chairs, who are appointed by the Governor in Council for a term of up to five years. A maximum of five additional members may be temporarily appointed. The Chairman is the Chief Executive Officer responsible for the assignment of members and for the management of the Tribunal's work. Members come from a variety of educational backgrounds, careers and regions of the country. |
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Organization |
Members of the Tribunal, currently 8 in number, are supported by a permanent staff of 87 people. Its principal officers are the Executive Director, Research, responsible for the economic and financial analysis of firms and industries and for other fact finding required for Tribunal inquiries; the Secretary, responsible for administration, relations with the public, dealings with other government departments and other governments, and the court registrar functions of the Tribunal; the General Counsel, responsible for the provision of legal services to the Tribunal; and the Director of the Procurement Review Division, responsible for the investigation of complaints by potential suppliers concerning any aspect of the procurement process. |
Organization |
CHAIRMAN
VICE-CHAIRS
MEMBERS
Arthur B. Trudeau*
Robert C. Coates, Q.C.
Lyle M. Russell
Anita Szlazak
Charles A. Gracey*
SECRETARIAT
RESEARCH BRANCH
PROCUREMENT REVIEW DIVISION
LEGAL SERVICES BRANCH
Gerry Stobo |
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Parliamentary Report on SIMA |
On December 11, 1996, the Sub-Committee on the Review of SIMA of the Standing Committee on Finance and the Sub-Committee on Trade Disputes of the Standing Committee on Foreign Affairs and International Trade tabled their joint report on SIMA. The Sub-Committees were asked by the Minister of Finance, on May 17, 1996, to review SIMA and to advise the Government if any changes should be made to the legislation. In their final report, the Sub-Committees recommended the following changes (among others) that would directly affect the operations of the Tribunal.
· The Tribunal should be given the responsibility for making the preliminary determination of injury.
· (Independent) experts should be permitted access to confidential information in SIMA proceedings before the Tribunal.
· Dumping in third country markets should be included in the Special Import Measures Regulations as a factor in assessing the evidence of threat of injury.
· Cumulation should be made mandatory in the Tribunal's procedures for determining injury.
· The difference between interim and expiry reviews should be clarified.
· The administrative responsibilities for conducting reviews should be bifurcated (between Revenue Canada and the Tribunal).
· The Tribunal should be required to assess the cumulative injurious effects of dumping/subsidizing in conducting interim and expiry reviews.
· A non-exclusive list of factors should be added to section 45 to guide the Tribunal respecting whether and how to conduct a public interest inquiry.
· The Tribunal's decision that an anti-dumping or countervailing duty might not be in the public interest should be a formal decision reviewable by the Federal Court of Canada.
· The WTO "lesser duty" concept should be incorporated into the public interest provisions of SIMA.
All of these recommendations, except for the Sub-Committees' recommendation that the Tribunal's public interest decisions should be reviewable by the Federal Court of Canada, were supported by the Government. |
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Impact of the Canada-Israel Free Trade Agreement and the Canada-Chile Free Trade Agreement on Tribunal Activities |
In 1996, Canada entered into free trade agreements with Israel and Chile. On January 1, 1997, the Canada-Israel Free Trade Agreement Implementation Act came into force. As a result, the CITT Act was amended in the area of safeguards. Global safeguard inquiries in respect of goods imported from Israel can now be conducted by the Tribunal. Furthermore, the Tribunal must exclude these goods from any global safeguard action unless they account for a substantial share of imports and contribute importantly to the serious injury. When the Canada-Chile Free Trade Agreement Implementation Act comes into force, the CITT Act will be further amended in the area of safeguards to reflect similar changes. In addition, SIMA will be amended to reflect the agreement between Chile and Canada not to apply domestic anti-dumping laws to goods of the other party. |
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Inquiry Process under SIMA |
In the fall of 1994, the Chairman of the Tribunal set up a staff committee to conduct a fundamental review of Tribunal procedures in injury inquiries under section 42 of SIMA. The committee was mandated to examine ways and means of making the injury inquiry process less costly and less cumbersome, while still preserving fairness. In carrying out its mandate, the committee engaged in wide-ranging consultations both inside and outside the Tribunal.
In the spring of 1996, the committee prepared a discussion paper which identified key issues and questions which needed to be addressed. The paper was distributed for comments to The Canadian Bar Association, members of the trade bar, trade and industry associations, Revenue Canada, the Department of Finance, the Bureau of Competition Policy and other Tribunal stakeholders. The responses received indicated that, on many key issues, there was no clear consensus. However, the responses, as a whole, provided valuable input to the committee's deliberations.
Following these consultations, in the fall of 1996, the committee prepared a series of recommendations for consideration by the Tribunal. Based on these recommendations, the Tribunal decided, in November 1996, to proceed with a number of changes to existing procedures. The thrust of these changes is to:
· ensure that staff research is as focused and relevant as possible by seeking input from parties and their counsel on the design of the Tribunal's survey questionnaires in advance of their distribution;
· advance the inquiry schedule so that, generally, information is received and distributed earlier, so that issues arising therefrom may be identified and dealt with, to the extent possible, prior to the hearing;
· provide for key evidence, such as that for specific injury allegations, to be submitted at a time and in a form and manner which allow parties subject to the allegations to have a fair and full opportunity to respond prior to the hearing; and
· reduce the incidence of excessively long hearings.
The procedural changes were made initially for inquiries under section 42 of SIMA. A number of changes were applied for the first time in the polyiso insulation board case. The Tribunal is implementing similar procedural and scheduling changes, with appropriate modifications, for reviews under section 76 of SIMA.
These changes, as a whole, are intended to foster a process whereby parties' positions are more fully documented prior to the hearing and parties are more fully informed of each other's position. To the extent that this can be achieved, scarce and costly hearing time can be used to focus on the key issues in dispute in an efficient and effective manner.
Guidelines and practice notices providing specific details on the proposed changes will be issued, as required. Some of the changes may eventually be incorporated into the Tribunal's Rules of Procedure. |
Legislative Mandate of the Tribunal
Section |
Authority |
CITT Act |
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| 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 and Mexico |
| 19.02 |
Mid-Term Reviews of Safeguard Measures and Report |
| 20 |
Safeguard Inquiries Concerning Goods Imported Into Canada and Inquiries Into the Provision, by Persons Normally Resident Outside Canada, of Services in Canada |
| 23 |
Safeguard Complaints by Domestic Producers |
23(1.01) and (1.02) |
Safeguard Complaints by Domestic Producers Concerning Goods Imported from the United States and Mexico |
30.08 and 30.09 |
Extension Inquiries of Safeguard Measures and Report |
| 30.11 |
Complaints by Potential Suppliers in Respect of Designated Contracts |
SIMA (Anti-Dumping and Countervailing Duties) |
33, 34, 35 and 37 |
Advice to Deputy Minister |
| 42 |
Inquiries With Respect to Injury Caused by the Dumping and Subsidizing of Goods |
| 43 |
Findings of the Tribunal Concerning Injury |
| 44 |
Recommencement of Inquiry (on Remand from the Federal Court of Canada or a Binational Panel) |
| 45 |
Advice on Public Interest Considerations |
| 61 |
Appeals of Re-Determinations of the Deputy Minister Made Pursuant to Section 59 Concerning Whether Imported Goods are Goods of the Same Description as Goods to which a Tribunal Finding Applies, Normal Values and Export Prices or Subsidies |
| 76 |
Reviews of Findings of Injury Initiated by the Tribunal or at the Request of the Deputy Minister or Other Interested Persons |
| 76.1 |
Reviews of Findings of Injury Initiated at the Request of the Minister of Finance |
| 89 |
Rulings on Who is the Importer |
Customs Act |
| 67 |
Appeals of Decisions of the Deputy Minister Concerning Value for Duty and Origin and Classification of Imported Goods |
| 68 |
New Hearings on Remand from the Federal Court of Canada |
| 70 |
References of the Deputy Minister Relating to the Tariff Classification or Value for Duty of Goods |
Excise Tax Act |
81.19, 81.21, 81.22,
81.23 and 81.33 |
Appeals of Assessments and Determinations of the Minister of National Revenue |
| 81.32 |
Requests for Extension of Time for Objection or Appeal |
Softwood Lumber Products Export Charge Act |
| 18 |
Appeals of Assessments and Determinations of the Minister of National Revenue |
Energy Administration Act |
| 13 |
Declarations Concerning the Amount of Oil Export Charge |
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CHAPTER III |
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DUMPING AND SUBSIDIZING INJURY INQUIRIES AND REVIEWS |
Inquiries |
Under SIMA, Canadian producers may have access to measures to offset unfair and injurious competition from goods exported to Canada:
1) at prices lower than sales in the home market or lower than the cost of production (dumping), or
2) that have benefited from certain types of government grants or other assistance (subsidizing).
The determination of dumping and subsidizing is the responsibility of Revenue Canada, while the determination of whether such dumping or subsidizing has caused "material injury" or "retardation" or is threatening to cause material injury to a domestic industry is the Tribunal's responsibility.
A Canadian producer or an association of Canadian producers begins the process of seeking relief from alleged injurious dumping or subsidizing by making a complaint to the Deputy Minister of National Revenue (the Deputy Minister). The Tribunal commences its inquiry at the stage of the issuance of a preliminary determination of dumping or subsidizing by the Deputy Minister. Revenue Canada levies provisional duties with the issuance of the preliminary determination.
In conducting its inquiries, the Tribunal tries to ensure that all interested parties are made aware of the inquiry. It issues a notice of commencement of inquiry that is published in the Canada Gazette and forwarded to all known interested parties. It also requests information from interested parties, receives representations and holds public hearings. Parties participating in these proceedings may conduct their own cases or be represented by counsel.
The Tribunal staff carries out extensive research for each inquiry to serve the Tribunal's need for relevant information. The Tribunal staff sends questionnaires to manufacturers, importers and purchasers. The data that emerge from the questionnaire responses form the basis of staff reports that focus on the factors to be examined by the Tribunal in arriving at decisions regarding material injury or retardation or threat of material injury to a domestic industry. These reports become part of the case record and are made available to counsel and participants
in inquiries. Information that is confidential or business-sensitive is protected in accordance with provisions of the CITT Act. Only independent counsel who have filed declarations and undertakings may have access to such confidential information.
The CITT Regulations prescribe factors that may be considered in the Tribunal's determination of whether the dumping or subsidizing of goods has caused material injury or retardation or is threatening to cause material injury to a domestic industry. These factors include, among others, the volume of dumped or subsidized goods, the effects of the dumped or subsidized goods on prices and the impact of the dumped or subsidized goods on production, sales, market shares, profits, employment and utilization of production capacity.
At the public hearing, the domestic producers attempt to persuade the Tribunal that the dumping or subsidizing of goods has caused material injury or retardation or that it is threatening to cause material injury to a domestic industry. The domestic producers' case is usually challenged by importers and, sometimes, by exporters. After cross-examination by parties and then examination by the Tribunal, each side has an opportunity to respond to the other's case and to summarize its own. Parties may also seek exclusions from the finding, should the Tribunal make a finding of material injury or retardation or threat of material injury to a domestic industry. In many cases, the Tribunal calls witnesses who are knowledgeable about the industry and market in question.
The Tribunal must issue its finding within 120 days from the date of the preliminary determination by the Deputy Minister. The Tribunal has an additional 15 days to issue a statement of reasons explaining its finding (section 43 of SIMA). A Tribunal finding of material injury or retardation or threat of material injury to a domestic industry results in the imposition of anti-dumping or countervailing duties by Revenue Canada, should the price of imports exceed the normal values. |
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Inquiries Completed in 1996-97 |
The Tribunal completed five inquiries under section 42 of SIMA in fiscal year 1996-97. Inquiry No. NQ-95-003 dealt with dry pasta, a food product. Inquiry No. NQ-95-004 dealt with bacteriological culture media, a clinical laboratory product. Two inquiries concerned stationery products: Inquiry No. NQ-95-005 which dealt with portable file cases and Inquiry No. NQ-96-001 which dealt with refill paper and spiral-bound notebooks. The fifth, Inquiry No. NQ-96-002, dealt with fresh garlic, an agricultural product. In 1995, the Canadian market for dry pasta exceeded $100 million, while that for each of the other products was less than $20 million. |
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Dry Pasta
NQ-95-003 |
The Tribunal found that dumped and subsidized imports of dry pasta from Italy had not caused and were not threatening to cause material injury to the domestic industry. Canadian pasta manufacturers alleged that they had suffered material injury in the form of price suppression, price erosion, lost sales, loss of market share and significant financial losses. Although the Tribunal found material injury, it was of the opinion that there were a number of important factors unrelated to competition from Italian imports that appeared to have contributed to this situation. In addition, the Tribunal found that it was premium Italian brands that had captured the growth in the 450/500-g package size segment of the dry pasta market. The Tribunal noted that price suppression in the 900-g package size segment of the market appeared to be attributable to other factors and that Italian imports accounted for only a small part of this market. While recognizing that dry pasta from Italy would continue to be present in the domestic market, the Tribunal did not consider that there was an imminent threat of injury. |
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Bacteriological Culture Media
NQ-95-004 |
Bacteriological culture media (BCM) is produced and sold in two distinct forms. Accordingly, the Tribunal considered the question of injury from dumped imports from the United Kingdom and the United States separately for each class of BCM. In the case of dehydrated BCM, the Tribunal found that, although dumped imports had taken part of the market, other factors had caused the injury to the industry. Because of various considerations, including a decline in dumped imports, the Tribunal concluded that there was no threat of material injury to the domestic industry.
In the case of prepared BCM, the Tribunal also concluded that dumped imports from the United States had not caused and were not threatening to cause material injury to the domestic industry. The Tribunal was not convinced that there had been price suppression nor that the sales that the industry had lost could be attributed to dumped imports. In addition, there was no indication that dumped imports would cause injury in the future. |
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Portable File Cases
NQ-95-005 |
The Tribunal found that dumped imports of portable file cases from the People's Republic of China had not caused and were not threatening to cause material injury to the domestic industry. Moreover, the Tribunal found that there was no basis in SIMA for the industry's claim of retardation. Although it was clear from the evidence that the domestic industry had suffered material injury, primarily in the form of financial injury, the Tribunal noted that numerous other factors had intervened to affect its performance. In particular, the Canadian market had undergone fundamental changes at the retail level which resulted in the repositioning of portable file cases for sale to consumers. Finally, the Tribunal saw no change in circumstance in the immediate future which would create a threat of material injury. |
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Refill Paper and Spiral-Bound Notebooks
NQ-96-001 |
As refill paper and spiral-bound notebooks are distinct products, the Tribunal considered the question of injury from dumped imports separately for each product. Despite a large loss of market share to imports of refill paper from Indonesia, the Tribunal could not attribute the injury suffered by the domestic industry to dumping. Indonesian sales to large Canadian retail accounts represented virtually all the market share lost by the domestic industry in 1995. However, these imports were found by the Deputy Minister to be undumped. There was, moreover, no evidence to indicate a likelihood of substantially increased dumped imports. The Tribunal, therefore, could not find a threat of injury due to dumped imports.
In the case of spiral-bound notebooks, the Tribunal also concluded that dumped imports from both Indonesia and Brazil had not caused and were not threatening to cause material injury to the domestic industry. Despite a large increase in imports from Indonesia, the Tribunal was not convinced that dumping had caused injury to the domestic industry. Sales of these imports were either well above the domestic industry's selling prices or found to be undumped. Imports from Brazil had not been a competitive factor in the market. Because the evidence showed that the level of imports from Indonesia was likely to decline and that most other imports were not found to be dumped, the Tribunal did not find a threat of material injury to the domestic industry. In the case of Brazil, the Tribunal observed that, because of declining volumes and competitive shortcomings of imports from Brazil, there was no indication of an imminent and foreseeable threat of material injury. |
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Fresh Garlic
NQ-96-002 |
The Tribunal found that dumped imports of fresh garlic from the People's Republic of China had caused injury to domestic growers. The Tribunal found that, while domestic growers were increasing acreage planted and volume harvested, imports from the People's Republic of China were growing rapidly, thereby preventing the industry from gaining market share in the fresh bulk market and causing growers to divert production to the seed market. The dumped Chinese imports also caused price erosion in the Canadian market. The Tribunal concluded that the domestic industry had the ability to increase production to meet a much greater proportion of demand for fresh garlic during the period from July to December of each year. |
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Inquiries in Progress at the End of 1996-97 |
There were two inquiries in progress at the end of 1996-97: Polyiso Insulation Board (Inquiry No. NQ-96-003), with respect to dumped imports from the United States, and Concrete Panels (Inquiry No. NQ-96-004), with respect to dumped imports from the United States into British Columbia and Alberta. In the two cases, the Tribunal applied its new procedures.
Table 1 summarizes the Tribunal's inquiry activities during the fiscal year. |
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Public Interest Consideration Under Section 45 of SIMA |
Where, as a result of an injury inquiry, the Tribunal is of the opinion that the imposition of anti-dumping or countervailing duties may not be in the public interest, it reports this to the Minister of Finance with a statement of the facts and reasons that led to its conclusions. The Minister of Finance then decides whether there should be any reduction in duties. During the inquiry, interested parties may make a request to make representations on the matter of public interest. If the Tribunal decides to hear public interest representations, it does so after the injury inquiry, following guidelines established in fiscal year 1994-95.
During 1996-97, the Tribunal completed a public interest investigation with respect to its finding of threat of material injury in the case of Refined Sugar (Inquiry No. NQ-95-002). The Tribunal issued a consideration (Public Interest Investigation No. PB-95-002), in which it stated that the public interest did not warrant the reduction or elimination of the duties and that, therefore, it would not report to the Minister of Finance under section 45 of SIMA. In one inquiry, the question of public interest was raised. As of March 31, 1997, the Tribunal had yet to give its view as to whether consideration of the public interest question was warranted. |
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Reviews |
The Tribunal may review its findings of injury or orders at any time, on its own initiative or at the request of the Deputy Minister or any other person or government. Subsection 76(5) of SIMA provides for a finding or an order to lapse five years after the date of issuance, unless a review has been initiated. It is Tribunal policy to notify parties nine months prior to the expiry date of a finding or an order. If a review is requested, the Tribunal will initiate one if it determines that it is warranted.
During the 1996-97 fiscal year, the Tribunal issued eight notices of expiry. They concerned findings and orders for the following products: aluminum coil stock and steel head and bottom rails, twisted polypropylene and nylon rope, toothpicks, machine tufted carpeting, yellow onions, rubber footwear, Iceberg lettuce, and bicycles and frames. The Tribunal decided that a review of the finding respecting toothpicks was not warranted, and the finding has expired. Reviews were initiated in five cases, including the case for which a notice of expiry had been issued in the previous fiscal year. Decisions on review for rubber footwear, Iceberg lettuce and bicycles and frames were pending at the end of the fiscal year.
Interested parties may also request a review at any time, pursuant to subsection 76(2) of SIMA. However, the Tribunal will initiate a review only if it determines that one is warranted, usually on the basis of changed circumstances. During the last fiscal year, the Tribunal decided that a request to review its findings on refined sugar was not warranted (Request for Review No. RD-95-001).
The purpose of a review is to determine if anti-dumping or countervailing duties remain necessary. In the case of reviews upon expiry, the Tribunal assesses whether dumping is likely to resume or subsidizing is likely to continue and, if so, whether the dumping or subsidizing is likely to cause material injury to a domestic industry. In a review on the grounds of changed circumstances, the Tribunal determines if the changed circumstances are such that the finding remains necessary. Review procedures are similar to those in an injury inquiry.
Upon completion of a review, the Tribunal issues an order with reasons, pursuant to subsection 76(4) of SIMA, much as in the case of an injury inquiry. The Tribunal may rescind or continue a finding or an order with or without amendment. If the finding or order is rescinded, imports are no longer subject to anti-dumping or countervailing duties. If the Tribunal continues a finding or an order, it remains in force for a further five years unless it is reviewed again. |
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Reviews Completed in 1996-97 |
In fiscal year 1996-97, the Tribunal completed six reviews. The order and findings in Oil and Gas Well Casing (Review No. RR-95-001), with respect to dumped imports originating in the Republic of Korea and the United States, Carbon Steel Welded Pipe (Review No. RR-95-002), with respect to dumped imports from Argentina, India, Romania, Taiwan, Thailand, Venezuela and Brazil, and Stainless Steel Welded Pipe (Review No. RR-96-001), with respect to dumped imports from Taiwan, were continued without amendment. The orders and finding in Boneless Manufacturing Beef (Review No. RR-95-003), with respect to subsidized imports from the European Union, Aluminum Coil Stock and Steel Head and Bottom Rails (Review No. RR-96-002), with respect to dumped imports from Sweden, and Twisted Polypropylene and Nylon Rope (Review No. RR-96-003), with respect to dumped imports from the Republic of Korea, were rescinded. |
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|
Reviews in Progress at the End of 1996-97 |
Two reviews were in progress at the end of the fiscal year. They were Machine Tufted Carpeting (Review No. RR-96-004), with respect to dumped imports from the United States, and Yellow Onions (Review No. RR-96-005), with respect to dumped imports from the United States into British Columbia.
Table 2 summarizes the Tribunal's review activities during the fiscal year. Table 3 lists findings and orders in force as of March 31, 1997. |
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|
Advice Given Under Section 37 of SIMA |
When the Deputy Minister decides not to initiate a dumping or subsidizing investigation because there is insufficient evidence of injury, the Deputy Minister or the complainant may, under section 33 of SIMA, refer the matter to the Tribunal for an opinion as to whether or not the evidence before the Deputy Minister discloses a reasonable indication that the dumping or subsidizing has caused material injury or retardation or is threatening to cause material injury to a domestic industry. When the Deputy Minister decides to initiate an investigation, a similar recourse is available to the Deputy Minister or any person or government under section 34 of SIMA.
Section 37 of SIMA requires that the Tribunal render its advice on the issue within 30 days, without holding a hearing, on the basis of the information before the Deputy Minister when the decision regarding initiation was reached.
The Tribunal issued one advice during 1996-97. It concerned Polyiso Insulation Board (Reference No. RE-96-001). The Tribunal concluded that the evidence disclosed a reasonable indication that the dumping or subsidizing had caused material injury or was threatening to cause material injury to a domestic industry. The case subsequently proceeded to an inquiry under section 42 of SIMA. The case was in progress at the end of the fiscal year. |
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|
Judicial or Panel Review of SIMA Decisions |
Anti-dumping and countervailing duty decisions can be judicially reviewed by the Federal Court of Canada on grounds of alleged denial of natural justice and error of fact or law.
In cases involving goods from the United States and Mexico, parties may request judicial review by the Federal Court of Canada or by a binational panel.
Table 4 lists the Tribunal's decisions under section 43 or 76 of SIMA that were before the Federal Court of Canada for judicial review in fiscal year 1996-97. There were no cases before a binational panel. The Federal Court of Canada set aside the Tribunal's finding of no material injury in the case of Dry Pasta (Inquiry No. NQ-95-003). The Tribunal has recommenced an inquiry under section 44 of SIMA. The Federal Court of Canada dismissed applications to review the Tribunal's decisions not to review its findings in Refined Sugar (Public Interest Investigation No. PB-95-002 and Request for Review No. RD-95-001). |
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|
WTO Dispute Resolution |
Governments that are members of the WTO may appeal Tribunal injury findings or orders in anti-dumping and countervailing cases to the WTO. The launching of an appeal must be preceded by inter-governmental consultations. There are no appeals of Tribunal findings or orders before the appeal instances of the WTO. |
TABLE 1
Findings Issued Under Section 43 of SIMA Between April 1, 1996, and March 31, 1997, and Inquiries Under Section 42 of SIMA in Progress at Year End
Inquiry No. |
Product |
Country |
Date of Finding |
Finding |
NQ-95-003 |
Dry Pasta |
Italy |
May 13, 1996 |
No Injury or Threat of Injury |
NQ-95-004 |
Bacteriological Culture Media |
United States and United Kingdom |
May 31, 1996 |
No Injury or Threat of Injury |
NQ-95-005 |
Portable File Cases |
People's Republic of China |
June 4, 1996 |
No Injury, Retardation or Threat of Injury |
NQ-96-001 |
Refill Paper and Spiral-Bound Notebooks |
Republic of Indonesia and Federative Republic of Brazil |
September 27, 1996 |
No Injury or Threat of Injury |
NQ-96-002 |
Fresh Garlic |
People's Republic of China |
March 21, 1997 |
Injury |
NQ-96-003 |
Polyiso Insulation Board |
United States |
In Progress |
|
NQ-96-004 |
Concrete Panels |
United States |
In Progress |
|
TABLE 2
Orders Issued Under Section 76 of SIMA Between April 1, 1996, and March 31, 1997, and Reviews in Progress at Year End
Review No.
or Expiry No. |
Product |
Country |
Date of Order |
Order |
RR-95-001 |
Oil and Gas Well Casing |
Republic of Korea and United States |
July 5, 1996 |
Order Continued |
RR-95-002 |
Carbon Steel Welded Pipe |
Argentina, India, Romania, Taiwan, Thailand, Venezuela and Brazil |
July 25, 1996 |
Findings Continued |
RR-95-003 |
Boneless Manufacturing Beef |
European Union |
July 22, 1996 |
Order Rescinded |
RR-96-001 |
Stainless Steel Welded Pipe |
Taiwan |
September 12, 1996 |
Finding Continued |
RR-96-002 |
Aluminum Coil Stock and Steel Head and Bottom Rails |
Sweden |
February 6, 1997 |
Finding Rescinded |
RR-96-003 |
Twisted Polypropylene and Nylon Rope |
Republic of Korea |
February 21, 1997 |
Order Rescinded |
LE-96-003 |
Toothpicks |
United States |
October 22, 1996 |
Review not Warranted |
RR-96-004 |
Machine Tufted Carpeting |
United States |
In Progress |
|
RR-96-005 |
Yellow Onions |
United States |
In Progress |
|
TABLE 3
Findings and Orders in Force as of March 31, 19971
Review No. or
Inquiry No. |
Date of Decision |
Product |
Country |
Earlier Decision No.
and Date |
NQ-91-006 |
April 21, 1992 |
Machine Tufted Carpeting |
United States |
|
RR-91-004 |
May 22, 1992 |
Yellow Onions |
United States |
CIT-1-87
(April 30, 1987) |
RR-92-001 |
October 21, 1992 |
Waterproof Rubber Footwear |
Czechoslovakia, Poland, Republic of Korea, Taiwan, Hong Kong, Malaysia, Yugoslavia and People's Republic of China |
ADT-4-79
(May 25, 1979)
ADT-2-82
(April 23, 1982)
R-7-87
(October 22, 1987) |
NQ-92-001 |
November 30, 1992 |
Iceberg Lettuce |
United States |
|
NQ-92-002 |
December 11, 1992 |
Bicycles and Frames |
Taiwan and People's Republic of China |
|
NQ-92-004 |
January 20, 1993 |
Gypsum Board |
United States |
|
RR-92-003 |
February 25, 1993 |
Pocket Photo Albums and Refill Sheets |
Japan, Republic of Korea, People's Republic of China, Hong Kong, Taiwan, Singapore, Malaysia and Federal Republic of Germany |
CIT-11-87
(February 26, 1988) |
NQ-92-007 |
May 6, 1993 |
Hot-Rolled Carbon Steel Plate and High-Strength Low-Alloy Plate |
Belgium, Brazil, Czech Republic, Denmark, Federal Republic of Germany, Romania, United Kingdom and Former Yugoslav Republic of Macedonia |
|
NQ-92-009 |
July 29, 1993 |
Cold-Rolled Steel Sheet Products |
Federal Republic of Germany, France, Italy, United Kingdom and United States |
|
NQ-93-001 |
October 18, 1993 |
Copper Pipe Fittings |
United States |
|
NQ-93-002 |
November 19, 1993 |
Preformed Fibreglass Pipe Insulation |
United States |
|
RR-93-001 |
November 23, 1993 |
Tillage Tools |
Brazil |
ADT-11-83
(December 28, 1983)
R-9-88
(November 24, 1988) |
RR-93-003 |
January 18, 1994 |
Paint Brushes and "Heads" |
People's Republic of China |
ADT-6-84
(June 20, 1984)
R-7-84
(September 28, 1984)
R-13-88
(January 19, 1989) |
NQ-93-003 |
April 22, 1994 |
Synthetic Baler Twine |
United States |
|
NQ-93-004 |
May 17, 1994 |
Hot-Rolled Carbon Steel Plate and High-Strength Low-Alloy Plate |
Italy, Republic of Korea, Spain and Ukraine |
|
NQ-93-005 |
June 22, 1994 |
12-Gauge Shotshells |
Czech Republic and Republic of Hungary |
|
NQ-93-006 |
July 20, 1994 |
Black Granite Memorials and Black Granite Slabs |
India |
|
NQ-93-007 |
July 29, 1994 |
Corrosion-Resistant Steel Sheet Products |
Australia, Brazil, France, Federal Republic of Germany, Japan, Republic of Korea, New Zealand, Spain, Sweden, United Kingdom and United States |
|
NQ-94-001 |
February 9, 1995 |
Delicious and Red Delicious Apples |
United States |
|
RR-94-002 |
March 21, 1995 |
Canned Ham and Canned Pork-Based Luncheon Meat |
Denmark, Netherlands and European Union |
GIC-1-84
(August 7, 1984)
RR-89-003
(March 16, 1990) |
RR-94-003 |
May 2, 1995 |
Women's Footwear |
People's Republic of China |
NQ-89-003
(May 3, 1990) |
RR-94-004 |
June 5, 1995 |
Carbon Steel Welded Pipe |
Republic of Korea |
ADT-6-83
(June 28, 1983)
RR-89-008
(June 5, 1990) |
RR-94-005 |
July 5, 1995 |
Refill Paper |
Federative Republic of Brazil |
NQ-89-004
(July 6, 1990) |
RR-94-006 |
August 25, 1995 |
Photo Albums with Self-Adhesive Leaves and Self-Adhesive Leaves |
Republic of Korea, Hong Kong, People's Republic of China, Singapore, Malaysia, Taiwan, Indonesia, Thailand and the Philippines |
ADT-4-74
(January 24, 1975)
R-3-84
(August 24, 1984)
CIT-18-84
(April 26, 1985)
CIT-10-85
(February 14, 1986)
CIT-5-87
(November 3, 1987)
RR-89-012
(September 4, 1990)
NQ-90-003
(January 2, 1991) |
RR-94-007 |
September 14, 1995 |
Whole Potatoes |
United States |
ADT-4-84
(June 4, 1984)
CIT-16-85
(April 18, 1986)
RR-89-010
(September 14, 1990) |
NQ-95-001 |
October 20, 1995 |
Caps, Lids and Jars |
United States |
|
NQ-95-002 |
November 6, 1995 |
Refined Sugar |
United States, Denmark, Federal Republic of Germany, Netherlands, United Kingdom and European Union |
|
RR-95-001 |
July 5, 1996 |
Oil and Gas Well Casing |
Republic of Korea and United States |
CIT-15-85
(April 17, 1986)
R-7-86
(November 6, 1986)
RR-90-005
(June 10, 1991) |
RR-95-002 |
July 25, 1996 |
Carbon Steel Welded Pipe |
Argentina, India, Romania, Taiwan, Thailand, Venezuela and Brazil |
NQ-90-005
(July 26, 1991)
NQ-91-003
(January 23, 1992) |
RR-96-001 |
September 12, 1996 |
Stainless Steel Welded Pipe |
Taiwan |
NQ-91-001
(September 5, 1991) |
NQ-96-002 |
March 21, 1997 |
Fresh Garlic |
People's Republic of China |
|
1. This table shows the findings and orders in force. To determine the precise product coverage, refer to the Review No. or Inquiry No. as identified in the first column of the table.
TABLE 4
Cases Before the Federal Court of Canada Between April 1, 1996, and March 31, 1997
Case No. |
Product |
Country |
File No./
Status |
PB-95-002 and RD-95-001 |
Refined Sugar |
United States, Denmark, Federal Republic of Germany, Netherlands, United Kingdom and European Union |
A-654-96 and A-524-96
Applications Dismissed |
NQ-95-003 |
Dry Pasta |
Italy |
A-473-96
Tribunal's Finding Set Aside
Matter Referred Back to Tribunal for New Hearing |
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CHAPTER IV |
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APPEALS |
Introduction |
The Tribunal, among its other duties, hears appeals from decisions of the Minister of National Revenue (the Minister) or of the Deputy Minister under the Excise Tax Act, the Customs Act and SIMA. When the federal sales tax was replaced by the Goods and Services Tax on January 1, 1990, there were a number of appeals awaiting determination by the Deputy Minister and decisions awaiting appeal to the Tribunal. As a result, in the last few years, the majority of appeals heard and decided by the Tribunal involved federal sales tax assessments and determinations. However, as the bulk of these appeals have now made their way through the appeal process at Revenue Canada and the Tribunal, the latter is hearing and deciding more appeals involving tariff classification and value for duty of imported goods under the Customs Act. The Tribunal also hears and decides appeals concerning the application, to imported goods, of a Tribunal finding concerning dumping or subsidizing and the normal value or export price or subsidy of imported goods under SIMA.
Although the Tribunal strives to be informal and accessible, there are certain procedures and time constraints that are imposed by law and by the Tribunal itself in order to provide quality service to the public in an efficient manner. For example, the appeal process is set in motion with a notice (or letter) of appeal, in writing, sent to the Secretary of the Tribunal within the time limit specified in the act under which the appeal is made. |
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Rules of Procedure |
Under the Tribunal's Rules of Procedure, the person launching the appeal (the appellant) normally has 60 days to submit to the Tribunal a document called a "brief." Generally, the brief states under which act the appeal is launched, gives an indication of the points at issue between the appellant and the Minister or Deputy Minister (in legal terminology, the Minister or the Deputy Minister is called the respondent) and states why the appellant believes that the respondent's decision is incorrect. A copy of the brief must also be given to the respondent.
The respondent must also comply with time and procedural constraints. Normally, within 60 days after having received the appellant's brief, the respondent must provide the Tribunal and the appellant with a brief setting forth Revenue Canada's position. Once these formalities are out of the way, the Secretary of the Tribunal contacts both parties in order to schedule a hearing. Hearings are generally conducted in public, before Tribunal members. |
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Hearings |
An individual may present a case before the Tribunal in person, or be represented by legal counsel or by any other representative. The respondent is generally represented by counsel from the Department of Justice.
Hearing procedures are designed to ensure that the appellant and the respondent are given a full opportunity to make their cases. They also enable the Tribunal to have the best information possible to make a decision. As in a court, the appellant and the respondent can call witnesses, and these witnesses are questioned under oath by the opposing parties, as well as by the members, in order to test the validity of their evidence. When all the evidence is gathered, parties may present arguments in support of their respective positions.
The option of a file hearing is also offered to the appellant. Where a hearing is not required, the Tribunal may dispose of the matter on the basis of the written documentation before it. Rule 25 of the Tribunal's Rules of Procedure allows the Tribunal to proceed in this manner. Before deciding to proceed in this manner, the Tribunal requires that the appellant and respondent consent to disposing of the appeal by way of a file hearing and file with the Tribunal an agreed statement of facts in addition to their submissions. The Tribunal then publishes a notice of the file hearing in the Canada Gazette so that other interested persons can make their own views known.
Usually, within 120 days of the hearing, the Tribunal issues a decision on the matters in dispute, including the reasons for its decision.
If either the appellant or the respondent disagrees with the Tribunal's decision, the decision can be appealed to the Federal Court of Canada. |
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Appeals Considered in the Last Fiscal Year |
During the 1996-97 fiscal year, the Tribunal heard 163 appeals of which 129 related to the Customs Act, 30 to the Excise Tax Act and 4 to SIMA. Decisions were issued in 158 cases, of which 114 were heard during fiscal year 1996-97. |
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|
| |
Decisions on Appeals |
| |
Act |
Allowed |
Allowed
in Part |
Dismissed |
Total |
| |
Customs Act |
24 |
6 |
84 |
114 |
| |
Excise Tax Act |
6 |
4 |
28 |
38 |
| |
SIMA |
1 |
1 |
4 |
6 |
| |
|
| |
The table at the end of this chapter lists decisions on appeals rendered in fiscal year 1996-97. |
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|
Summary of Selected Decisions |
Of the many cases heard by the Tribunal in carrying out its appeal functions, several decisions stand out from among the others because of the legal significance of the cases. A brief résumé of a representative sample of such cases follows. These summaries have been prepared for general information purposes only and have no legal status. |
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PMI Food Equipment Group Canada, A Division of Premark Canada Inc. v. The Deputy Minister of National Revenue
AP-95-123
Decision:
Appeal allowed in part
(January 10, 1997) |
This was an appeal under section 67 of the Customs Act in which the Tribunal considered whether Revenue Canada correctly included royalties in the value for duty of certain appliances and parts imported by the appellant. Pursuant to subparagraph 48(5)(a)(iv) of the Customs Act, royalties and licence fees, including payments for patents, trade-marks and copyrights, in respect of the imported goods that the purchaser must pay, must be added to the price paid or payable in the sale of the goods for export to Canada. In the present case, Premark Canada Inc. had entered into licence agreements with two US companies (the licensors) granting Premark, among other things, the rights to sell and service certain products in Canada, as well as manufacture certain products in Canada, in exchange for which it paid the licensors a royalty calculated as a percentage of the proceeds of sales and services realized by Premark on all products and services covered by the agreements. No royalty was included in the value for duty of the goods imported by the appellant. Revenue Canada ruled that such portion of the royalties paid by the appellant that could be attributed to the proceeds of the sales of the imported goods had to be included in the value for duty of the goods pursuant to paragraph 48(5)(a)(iv) of the Customs Act.
The Tribunal allowed the appeal in part. The Tribunal was of the opinion that the royalty payments made by the appellant were "in respect of" the goods, as contemplated by subparagraph 48(5)(a)(iv) of the Customs Act. However, the Tribunal found that only the royalties paid in respect of goods purchased from the licensors should be added to the price paid or payable for the goods pursuant to subparagraph 48(5)(a)(iv). In the Tribunal's view, the licensors were in a position to exert sufficient control over these sales for the payment of the royalties to constitute "a condition of the sale" under subparagraph 48(5)(a)(iv). However, royalties should not be added to the price paid or payable for goods purchased from other related companies and third-party manufacturers, as the licensors did not exert sufficient control or influence over these sales for the payment of any royalties to constitute "a condition of the sale" under subparagraph 48(5)(a)(iv).
The Tribunal's decision was appealed to the Federal Court of Appeal by both the appellant and the Deputy Minister. |
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Toyota Canada Inc. v. The Deputy Minister of National Revenue
AP-95-090 and
AP-95-166
Decision:
Appeals allowed
(August 15, 1996) |
These were appeals under section 67 of the Customs Act in which the Tribunal considered whether Revenue Canada had correctly determined the value for duty of imported vehicles by the appellant. The value for duty at the time of importation was based on the invoice price. Subsequently, the invoice price was adjusted to reflect reductions in the final negotiated price and the appellant requested a re-appraisal of the value for duty under section 60 of the Customs Act to take into account the price changes. The Deputy Minister found that, in calculating the value for duty, reductions in the final negotiated price issued after the importation of the goods in issue should be disregarded in accordance with paragraph 48(5)(c) of the Customs Act. Subsections 48(1) and (5) of the Customs Act provide that the value for duty of imported goods is their transaction value or, more precisely, the price paid or payable adjusted by adding and deducting different amounts and, pursuant to paragraph 48(5)(c) of the Customs Act, "by disregarding any rebate of, or other decrease in, the price paid or payable for the goods that is effected after the goods are imported."
The evidence showed that there existed an understanding between the appellant, the manufacturer, Toyota Motor Corporation of Japan, and the exporter, Mitsui & Co., Ltd., that the price stipulated on the Canada Customs Invoice was a provisional price estimated for purposes of calculating the value for duty and that the final selling price of the vehicles would only be known at the conclusion of the negotiations. The Tribunal found that the credit note given by Mitsui & Co., Ltd. to the appellant did not constitute a rebate of, or other decrease in, the price paid or payable for the goods in issue within the meaning of paragraph 48(5)(c) of the Customs Act. In the Tribunal's view, the purpose of the credit note was not to give the appellant a rebate nor to decrease the price paid or payable for the vehicles, but simply to reflect the actual selling price of the goods in issue. In reaching its conclusion, the Tribunal relied on the decision of the Federal Court of Canada - Trial Division in Nordic Laboratories v. The Deputy Minister of National Revenue and the discussion in that case of the Tribunal's decision in Quadra Chemicals Ltd. v. The Deputy Minister of National Revenue.
The Tribunal's decision was appealed to the Federal Court of Appeal by the Deputy Minister.
In the past fiscal year, the Tribunal dismissed a series of appeals on the basis that it did not have jurisdiction to hear them. Sixty of these appeals dealt with the importation of eyewear material. One appeal, Fisher Scientific Ltd. v. The Deputy Minister of National Revenue, dealt with the importation of goods described as "automated immunoassay systems" or "AIA-Pack" test kits, while the other, M & S X-Ray Services Ltd.v. The Deputy Minister of National Revenue, dealt with the importation of tables used by chiropractors in chiropractic diagnosis. Both these cases were dismissed on grounds similar to those for the dismissal of the eyewear appeals, which are summarized below. |
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Eyewear Appeals |
Various appeals were filed with the Tribunal pursuant to section 67 of the Customs Act. The appellants requested that certain eyewear material be re-classified under the Customs Tariff. They appealed decisions of the Deputy Minister to cancel requests for re-determination of tariff classifications purportedly made pursuant to paragraph 60(1)(b), 64(a) or 64(d) or subparagraph 64(e)(i) of the Customs Act. All of the requests for re-determination under section 64 of the Customs Act were filed with the Deputy Minister in order to have certain goods re-classified in accordance with a decision of the Tribunal dealing with similar goods. The Deputy Minister refused to entertain a request for re-determination of the tariff classification pursuant to paragraph 60(1)(b) because the Minister did not deem it advisable to extend to two years the deadline for filing the request. The Deputy Minister refused to entertain requests for re-determination of tariff classifications under section 64 because the Customs Act provides that requests for re-determination must be filed under section 60 or 63 of the Customs Act.
The Tribunal was of the view that these appeals raised the following jurisdictional issues: (1) whether decisions of the Deputy Minister to refuse to entertain requests for re-determination of tariff classifications constitute decisions for purposes of section 67 of the Customs Act, i.e. whether the Tribunal has jurisdiction to hear the appeals; and (2) in the event that the Tribunal finds that the decisions do not constitute decisions for purposes of section 67, whether it has jurisdiction to compel the Deputy Minister to exercise his statutory duty.
The Tribunal found that it did not have jurisdiction to hear the appeals, as the decisions of the Deputy Minister to refuse to entertain requests for re-determination of tariff classifications pursuant to paragraph 60(1)(b), 64(a) or 64(d) or subparagraph 64(e)(i) of the Customs Act did not constitute decisions for purposes of section 67. Relying on the decision of the Federal Court of Canada - Trial Division in Mueller Canada Inc. v. The Minister of National Revenue and The Deputy Minister of National Revenue, the Tribunal took the view that there clearly must be a decision from the Deputy Minister with respect to the merits of the tariff classification in order to give the Tribunal jurisdiction under section 67 of the Customs Act. The Tribunal found that this was not the case in these appeals. Furthermore, the Tribunal concluded that any order directing the Deputy Minister to make a re-determination of the tariff classifications would be an order of mandamus, an equitable relief that the Tribunal has clearly no authority to grant. Section 18 of the Federal Court Act clearly provides that only the Federal Court of Canada has jurisdiction to make such an order. Consequently, the appeals were dismissed. |
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Access to Confidential Information by Counsel for Respondent |
The Tribunal heard an interlocutory motion by means of a telephone conference call in a series of appeals filed by Nike Canada Ltd. pursuant to section 67 of the Customs Act. The appellant had filed both public and confidential versions of its brief. Counsel for the respondent requested that the appellant provide him with a copy of the material contained in the confidential brief. The appellant was willing to allow counsel for the appellant to disclose the confidential information to the respondent for the limited purpose of obtaining instruction with respect to the appeals, provided counsel for the respondent signed an amended Form III, Declaration and Undertaking, as provided for under subrule 16(1) of the Tribunal's Rules of Procedures. Counsel for the respondent refused and requested that the Secretary provide the respondent, through him, with a copy of the appellant's confidential brief. The Tribunal indicated to counsel for the respondent that he could only obtain a copy of the confidential brief if he filed a signed declaration and undertaking. Counsel for the respondent refused and filed a notice of motion with the Tribunal requesting an order: (1) declaring that the respondent and his counsel are entitled to be provided with a true copy of the confidential brief filed by the appellant, without execution by counsel for the respondent of the declaration and undertaking; and (2) requiring either the Secretary or the appellant to provide the respondent, through his counsel, with a copy of the confidential brief.
Relying on its decision in Preformed Fibreglass Pipe Insulation, which dealt with a similar issue and which was upheld by the Federal Court of Appeal, the Tribunal held that the only means by which it can disclose confidential information to any party to a proceeding before it, including appeals, is through subsection 45(3) of the CITT Act. That subsection, in conjunction with the Tribunal's Rules of Procedure, provides that the Tribunal may only disclose confidential information to counsel if that counsel has filed a declaration and undertaking, absent the consent of the party who has filed the confidential information. The Tribunal was of the opinion that subsection 45(3) of the CITT Act does not distinguish between either classes or types of parties or proceedings. As such, the respondent must be treated in the same manner as any other party to a proceeding before the Tribunal, including appeals. Furthermore, the Tribunal held that subsection 45(1) of the CITT Act cannot be used as a basis for the Tribunal to disclose confidential information to public servants. In the Tribunal's view, when the respondent appears before the Tribunal in an appeal, he does so as a party to that appeal and not in any capacity relating to the gathering of information or the making of determinations under the Customs Act. As such, sections 40, 42 and 107 of the Customs Act do not provide the respondent or the respondent's officials with an entitlement to confidential information in a proceeding before the Tribunal.
The respondent applied for judicial review of the Tribunal's decision in the Federal Court of Appeal. The application for judicial review was dismissed. The Federal Court of Appeal agreed with its own finding in Preformed Fibreglass Pipe Insulation, which concluded that sections 44 to 48 of the CITT Act constitute a complete code with respect to the disclosure of confidential information in proceedings before the Tribunal. The Federal Court of Appeal held that subsection 45(3) of the CITT Act sets out the only conditions under which information provided by one party and designated by it as confidential can be disclosed to another party. In the Federal Court of Appeal's view, subsection 45(3) of the CITT Act only contemplates disclosure of confidential information to counsel on conditions imposed by the Tribunal, namely, the signing of a declaration and undertaking, which will, in the absence of the consent of the person who originally provided the information, prevent its disclosure to any party (including counsel's client) or to any business competitor. The Federal Court of Appeal also agreed with the Tribunal's interpretation of subsection 45(1) of the CITT Act. Accordingly, the Federal Court of Appeal ruled that counsel for the respondent had to sign a declaration and undertaking, with which he would have to comply, subject to the modifications to which counsel for the appellant was prepared to consent. |
Appeal Decisions Rendered Under Section 67 (Formerly Section 47) of the Customs Act, Section 81.27 (Formerly Section 51.27) of the Excise Tax Act and Section 61 of SIMA Between April 1, 1996, and March 31, 1997
Appeal No. |
Appellant |
Date of Decision |
Decision |
Customs Act |
AP-95-120 |
Bazaar & Novelty Co., A Division of Bingo Press & Specialty Limited |
April 10, 1996 |
Allowed |
AP-94-365, AP-94-375 and AP-95-242 |
Vilico Optical Inc. |
May 7, 1996 |
Dismissed |
AP-94-369 |
Canamalco Inc. |
|
|
AP-94-370, AP-95-025 and AP-95-058 |
Neostyle Canada Ltd. |
|
|
AP-94-371, AP-95-043 and AP-95-056 |
Nicolet America Inc. |
|
|
AP-94-372, AP-95-024, AP-95-036, AP-95-060, AP-95-105 and AP-95-106 |
Carl Zeiss Optical Inc. |
|
|
AP-94-373 and AP-95-042 |
Optiq Ltd. |
|
|
AP-94-374 |
Alta Vision Laboratories Ltd. |
|
|
AP-94-376 and AP-95-005 |
Western Optical Co. Inc. |
|
|
AP-94-377 and AP-95-107 |
Viva Optique Canada Inc. |
|
|
AP-94-378, AP-95-035 and AP-95-057 |
KDS Optical Company Ltd. |
|
|
AP-94-380, AP-95-037 and AP-95-054 |
Anthony Martin Eyewear Inc. |
|
|
AP-94-381 |
Opal Optical Ltd. |
|
|
AP-94-382 |
Rodenstock Canada Inc. |
|
|
AP-94-383 |
Crown Optical Centre Ltd. |
|
|
AP-94-384 |
KW Optical Limited |
|
|
AP-95-003 and AP-95-062 |
Savvy Eyewear Canada |
|
|
AP-95-004 and AP-95-027 |
AOCO Limited |
|
|
AP-95-006, AP-95-028, AP-95-039, AP-95-104 and AP-95-248 |
Centennial Optical Limited |
|
|
AP-95-026, AP-95-030, AP-95-031, AP-95-059 and AP-95-222 |
Optique Forte Ltd. |
|
|
AP-95-029 and AP-95-040 |
Diplomat-Ambassador Eyewear Ltd. |
|
|
AP-95-032, AP-95-034 and AP-95-038 |
Renaissance Eyewear Inc. |
|
|
AP-95-033 and AP-95-052 |
Compagnie d'Optique Polaire Inc. |
|
|
AP-95-041 |
Safilo Canada Inc. |
|
|
AP-95-053 |
Laboratoire d'Optique de Hull Inc. |
|
|
AP-95-055 |
Hakim Optical Laboratory Ltd. |
|
|
AP-95-223 |
Nicolet Optique Inc. |
|
|
AP-94-324 |
Fisher Scientific Ltd. |
May 7, 1996 |
Dismissed |
AP-94-337 |
M & S X-Ray Services Ltd. |
May 7, 1996 |
Dismissed |
AP-94-142 |
Winners Only (Canada) Ltd. |
May 13, 1996 |
Dismissed |
AP-95-099 and AP-95-129 |
Carol Cable Company Canada Ltd. |
May 14, 1996 |
Dismissed |
AP-95-121 |
Centennial Optical Limited |
May 14, 1996 |
Dismissed |
AP-95-266 |
Canstor Consumer Storage Products Inc. |
June 27, 1996 |
Dismissed |
AP-95-089 |
Heco Medical Group Inc. |
July 19, 1996 |
Allowed |
AP-95-076 |
L&F Canada Inc. |
August 8, 1996 |
Allowed |
AP-95-090 and AP-95-166 |
Toyota Canada Inc. |
August 15, 1996 |
Allowed |
AP-95-096 |
Lloydaire, Division of Eljer Manufacturing
Canada Inc. |
August 15, 1996 |
Allowed |
AP-94-150 |
Jana & Company |
September 3, 1996 |
Allowed |
AP-94-333 |
The Source Enterprises Limited |
September 4, 1996 |
Allowed |
AP-95-100 |
Rutherford Controls Ltd. |
September 9, 1996 |
Dismissed |
AP-94-151 |
Elise Ammon |
October 3, 1996 |
Dismissed |
AP-95-109 |
Bennett Fleet Inc. |
October 7, 1996 |
Allowed |
AP-94-199 |
Flora Distributors Ltd. |
October 8, 1996 |
Dismissed |
AP-95-016 |
Sharp Electronics of Canada Ltd. |
October 23, 1996 |
Allowed |
AP-95-098 |
Canadian Fracmaster Ltd. |
October 31, 1996 |
Dismissed |
AP-95-138 |
Arpac Storage Systems Corporation |
October 31, 1996 |
Allowed |
AP-95-170 |
Nalley's Canada Limited |
October 31, 1996 |
Dismissed |
AP-95-189 |
Asea Brown Boveri Inc. |
November 5, 1996 |
Allowed |
AP-94-076 |
Rosarium Enr. |
November 6, 1996 |
Dismissed |
AP-95-001 |
Ambrosia Chocolate Company |
November 7, 1996 |
Dismissed |
AP-95-269 and AP-95-285 |
Uvex Toko Canada Ltd. |
November 7, 1996 |
Allowed |
AP-95-308 |
City Wide Sports |
November 7, 1996 |
Dismissed |
AP-95-194 |
Atlas Alloys, A Division of Rio Algom Limited |
November 22, 1996 |
Allowed in part |
AP-95-044 |
Readi-Bake Inc. |
December 2, 1996 |
Dismissed |
AP-94-307 |
Northern Alberta Processing Co. |
December 2, 1996 |
Allowed in part |
AP-95-074 |
Superfine Import Co. Ltd. |
December 3, 1996 |
Allowed in part |
AP-95-277 |
Jascor Home Products Inc. |
December 3, 1996 |
Allowed |
AP-95-265 |
Innovation Specialties Inc. |
December 6, 1996 |
Dismissed |
AP-95-299 and
AP-96-053 |
816392 Ontario Ltd., O/A Freedom Motors |
December 6, 1996 |
Allowed |
AP-95-252 |
I.D. Foods Superior Corp. |
December 12, 1996 |
Dismissed |
AP-95-262 |
Sony of Canada Ltd. |
December 12, 1996 |
Allowed |
AP-95-123 |
PMI Food Equipment Group Canada, A Division of Premark Canada Inc. |
January 10, 1997 |
Allowed in part |
AP-95-253 |
Bristol Uniforms North America Inc. |
January 14, 1997 |
Allowed |
AP-96-006 |
Robert Gustas |
January 14, 1997 |
Dismissed |
AP-95-126 and
AP-95-255 |
Mattel Canada Inc. |
January 15, 1997 |
Allowed in part |
AP-95-230 |
Euro-Line Appliances |
January 31, 1997 |
Dismissed |
AP-95-020, AP-95-046
and AP-96-069 |
Black & Decker Canada Inc. |
February 6, 1997 |
Dismissed |
AP-95-047 |
Upper 49th Imports Inc. |
February 7, 1997 |
Allowed |
AP-95-240 |
Integrated Protection Inc. |
February 7, 1997 |
Dismissed |
AP-95-254 |
Grinnell Corp. of Canada Ltd., dba Grinnell Fire Protection |
February 14, 1997 |
Allowed |
AP-96-054 |
Sunbeam Corporation (Canada) Limited |
February 14, 1997 |
Allowed |
AP-96-061 |
Noma Industries Limited |
February 14, 1997 |
Allowed |
AP-95-284 |
Baker Textiles Inc. |
February 17, 1997 |
Allowed |
AP-95-233 |
S.C. Johnson and Son, Limited |
February 21, 1997 |
Dismissed |
AP-96-048 |
Canadian Optical Supply Company Ltd. |
February 21, 1997 |
Dismissed |
Excise Tax Act |
AP-94-315 |
Gillin Road Group Home
c/o Brantford and District Association
for Community Living |
April 2, 1996 |
Dismissed |
AP-95-051 |
Groupe Unimédia Inc., Division Litho Prestige |
April 12, 1996 |
Allowed |
AP-92-199 |
Codispoti's Creative Jewelry Co. Ltd. |
April 17, 1996 |
Dismissed |
AP-95-178 |
Sharp Design Products Inc. |
May 10, 1996 |
Dismissed |
AP-94-113 |
Doug and Marcy Beddome |
May 23, 1996 |
Dismissed |
AP-95-071 |
Advance-Interface Electronic Inc. |
May 30, 1996 |
Dismissed |
AP-94-003 |
Hebert's Flooring Ltd. |
August 20, 1996 |
Dismissed |
AP-93-273 |
Arnold Forsythe |
September 9, 1996 |
Dismissed |
AP-95-135 |
Southam Inc., RBW Graphics Division |
September 10, 1996 |
Dismissed |
AP-94-276 |
L.J. Chopp and Associates |
September 11, 1996 |
Dismissed |
AP-92-081 |
Shoppers Autobody Refinishers Ltd. |
September 11, 1996 |
Dismissed |
AP-95-118 |
King Framing |
October 7, 1996 |
Allowed in part |
AP-93-011 |
Noreen P. Russell |
October 8, 1996 |
Dismissed |
AP-92-063 |
John Stephen Richards |
October 15, 1996 |
Dismissed |
AP-93-283 |
Electrol Distributors Ltd. |
October 23, 1996 |
Dismissed |
AP-95-196 |
Denman Graphics Ltd. |
October 24, 1996 |
Dismissed |
AP-95-066 |
The British Columbia Mental Health Society |
October 25, 1996 |
Dismissed |
AP-95-045 |
Sidewinder Conversions Ltd. |
October 31, 1996 |
Allowed in part |
AP-95-171 |
Waite Air Photos Inc. |
October 31, 1996 |
Dismissed |
AP-95-259 |
Paccar of Canada Ltd. |
November 22, 1996 |
Allowed |
AP-93-251 |
Wellsley Investments Inc. |
December 2, 1996 |
Dismissed |
AP-94-119 |
Inland Re-Refining Company Limited |
December 3, 1996 |
Dismissed |
AP-94-148 |
Suncor Inc. |
December 19, 1996 |
Allowed in part |
AP-94-327 |
Double N Earth Movers Ltd. |
December 19, 1996 |
Dismissed |
AP-94-330 |
Erin Michaels Mfg. Inc. |
January 10, 1997 |
Allowed |
AP-94-335 |
Épicerie Chez Léonard |
January 14, 1997 |
Dismissed |
AP-96-025, AP-96-026
and AP-96-027 |
Francon-Lafarge, Division of Lafarge Canada Inc. |
February 10, 1997 |
Dismissed |
AP-95-181 |
Lawton's Drug Stores Limited |
February 14, 1997 |
Allowed |
AP-95-124 |
Northwest Airlines, Inc. |
February 21, 1997 |
Dismissed |
AP-95-179 |
Gerald The Swiss Goldsmith |
February 21, 1997 |
Allowed in part |
AP-95-304 |
Kott Truss Inc. |
February 21, 1997 |
Allowed |
AP-95-238 |
Ralph Roberts |
March 18, 1997 |
Allowed |
AP-95-174, AP-95-175 and AP-95-176 |
Burrows Lumber CD Limited, Burrows Lumber Inc. and Wildwood Forest Products Inc. |
March 21, 1997 |
Dismissed |
AP-96-086 |
Intraurban Projects |
March 25, 1997 |
Dismissed |
Special Import Measures Act |
AP-95-079 |
J.B. Multi-National Trade Inc. |
October 2, 1996 |
Dismissed |
AP-95-093 |
Flortech Systems Ltd. |
October 17, 1996 |
Dismissed |
AP-95-258 |
Specialized Bicycle Components Canada, Inc. |
October 22, 1996 |
Allowed in part |
AP-95-008 |
Paulmar Cycle Inc., Division of Marr's Leisure Holdings Inc. and Marr's Leisure Products Inc. |
November 8, 1996 |
Dismissed |
AP-95-084 |
Marr's Leisure Products Inc. |
November 8, 1996 |
Dismissed |
AP-96-001 |
Renaissance Imports Ltd. |
February 7, 1997 |
Allowed |
| |
CHAPTER V |
| |
ECONOMIC, TRADE, TARIFF AND SAFEGUARD INQUIRIES |
Introduction |
The CITT Act contains broad provisions under which the government or the Minister of Finance may ask the Tribunal to conduct an inquiry on any economic, trade, tariff or commercial matter. In an inquiry, the Tribunal acts in an advisory capacity, with powers to conduct research, receive submissions and representations, find facts, hold public hearings and report, with recommendations as required, to the government or the Minister of Finance. |
| |
|
Tariff-Related Inquiries |
Under section 19 of the CITT Act, the Minister of Finance may refer to the Tribunal for inquiry and report "any tariff-related matter, including any matter concerning the international rights or obligations of Canada in connection therewith." |
| |
|
Textile
Reference |
Pursuant to a reference from the Minister of Finance dated July 6, 1994, as amended on March 20 and July 24, 1996, the Tribunal was directed to investigate requests from domestic producers for tariff relief on imported textile inputs for use in their manufacturing operations and to make recommendations in respect of those requests to the Minister of Finance. |
| |
|
Scope of the Reference |
A domestic producer may apply for tariff relief on an imported textile input used, or proposed to be used, for production. The textile inputs for which tariff relief may be requested are the fibres, yarns and fabrics of Chapters 51, 52, 53, 54, 55, 56, 58, 59 and 60; certain monofilaments or strips and textile and plastic combinations of Chapter 39; rubber thread and textile and rubber combinations of Chapter 40; and products of textile glass fibres of Chapter 70 of Schedule I to the Customs Tariff. Since July 24, 1996, and at least until July 1, 1999, the following yarns are not included in the textile reference:
Knitting yarns, solely of cotton or solely of cotton and polyester staple fibres, measuring more than 190 decitex, of Chapter 52 or subheading No. 5509.53 other than those used to make sweaters, having a horizontal self-starting finished edge and the outer surfaces of which are constructed essentially with 9 or fewer stitches per 2 centimetres (12 or fewer stitches per inch) measured in the horizontal direction.
|
| |
|
Types of Relief Available |
The tariff relief that may be recommended by the Tribunal to the Minister of Finance ranges from the removal or reduction of tariffs on one or several, partial or complete, tariff lines, to company-, textile- and/or end-use-specific tariff provisions. The recommendation could be for tariff relief for either a specific or an indeterminate period of time. However, the Tribunal will only recommend tariff relief that is administrable on a cost-effective basis. |
| |
|
Notification of a Request |
Upon receipt of a request for tariff relief, and before commencement of an investigation, the Tribunal issues a brief electronic notice announcing the request. The minimum period of time for the notification of a request before an investigation is commenced is 30 days.
This notification is designed to increase transparency, identify potential deficiencies in the request, avoid unnecessary investigations, provide an opportunity for the domestic textile industry to contact the requester and agree on a reasonable domestic source of supply, inform other users of identical or substitutable textile inputs, prepare the domestic industry to respond to subsequent investigation questionnaires and give associations advance time for planning and consultation with their members. |
| |
|
Investigations |
When the Tribunal is satisfied that a request is properly documented, it commences an investigation. A notice of commencement of investigation is sent to the requester, all known interested parties and any appropriate government department or agency, such as Revenue Canada, the Department of Foreign Affairs and International Trade, the Department of Industry and the Department of Finance. The notice is also published in the Canada Gazette.
In any investigation, interested parties include domestic producers, certain associations and other persons who are entitled to be heard by the Tribunal because their rights or pecuniary interests may be affected by the Tribunal's recommendations. Interested parties are given notice of the request and can participate in the investigation. Interested parties include competitors of the requester, suppliers of goods that are identical to or substitutable for the textile input and downstream users of goods produced from the textile input.
To prepare a staff investigation report, the Tribunal staff gathers information through such means as plant visits or questionnaires. Information is obtained from the requester and interested parties, such as a domestic supplier of the textile input, for the purpose of determining whether the tariff relief sought will maximize net economic gains for Canada.
In normal circumstances, a public hearing is not required, and the Tribunal will dispose of the matter on the basis of the full written record, including the request, the staff investigation report and all submissions and evidence filed with the Tribunal.
The procedures developed for the conduct of the Tribunal's investigations envisage the full participation of the requester and all interested parties. A party, other than the requester, may file submissions, including evidence, in response to the properly documented request, the staff investigation report and any information provided by a government department or agency. The requester may subsequently file submissions with the Tribunal in response to the staff investigation report and any information provided by a government department or agency or other party.
Where confidential information is provided to the Tribunal, such information falls within the protection of the CITT Act. Accordingly, the Tribunal will only distribute confidential information to counsel who are acting on behalf of a party and who have filed a declaration and undertaking. |
| |
|
Recommendations to the Minister |
The Tribunal will normally issue its recommendations, with reasons, to the Minister of Finance within 120 days from the date of commencement of the investigation. In exceptional cases, where the Tribunal determines that critical circumstances exist, the Tribunal will issue its recommendations within any earlier specified time frame which the Tribunal determines to be appropriate. The Tribunal will recommend the reduction or removal of customs duties on a textile input where it will maximize net economic gains for Canada. |
| |
|
Review Process |
Where the Minister of Finance has made an order for tariff relief pursuant to a recommendation of the Tribunal, certain domestic producers may make a request to the Tribunal to commence an investigation for the purpose of recommending the renewal, amendment or termination of the order. A request for the amendment or termination of the order should specify what changed circumstances justify such a request. |
| |
|
Annual Status Report |
In accordance with the terms of reference received by the Tribunal directing it to conduct investigations into requests from Canadian producers for tariff relief on imported textile inputs that they use in their manufacturing operations, the Tribunal provided the Minister of Finance, on November 29, 1996, with its second annual status report on the investigation process. The status report covered the period from October 1, 1995, to September 30, 1996. In the course of preparing the status report, the Tribunal invited its stakeholders to comment on proposed changes to the investigation process. The Tribunal heard oral submissions on June 5, 1996. |
| |
|
Recommendations Submitted During 1996-97 |
During fiscal year 1996-97, the Tribunal issued 23 reports to the Minister of Finance which related to 56 requests for tariff relief, plus a reference from the Minister of Finance for a further investigation into a recommendation previously made by the Tribunal. At year end, 10 requests were outstanding, of which investigations had been commenced in respect of 8 requests. Table 1 at the end of this chapter summarizes these activities. |
| |
|
Recommendations in Place |
By the end of fiscal year 1996-97, the Government had implemented 34 recommendations by the Tribunal. Table 2 provides a summary of recommendations implemented to date.
A summary of a representative sample of Tribunal recommendations issued during the fiscal year follows. |
| |
|
Paris Star Knitting Mills Inc.
TR-95-037 |
The Tribunal recommended to the Minister of Finance that the customs duty on importations of printed woven fabrics or blends thereof that contain 85 percent or more by weight of viscose or cuprammonium rayon and 15 percent or less by weight of other materials, including linen and metallic yarns, with a value for duty of $5/m2 or more, for use in the manufacture of women's apparel, including blouses, dresses, skirts, shorts, jackets and pants, be removed for an indeterminate period. In its report, the Tribunal indicated that the higher-priced fabrics from Europe do not impact on any production or value-added operation in Canada and should be allowed duty-free entry into Canada. The Tribunal estimated that the granting of such tariff relief would result in a net commercial benefit in excess of $500,000 per annum. |
| |
|
Fantastic-T Knitter Inc., and B.C. Garment Factory Ltd. and Global Garment Factory Ltd.
TR-95-015 to
TR-95-032,
TR-95-038 to
TR-95-042,
TR-95-046,
TR-95-048 to
TR-95-050 and
TR-95-055 |
The Tribunal recommended to the Minister of Finance that the 28 requests for tariff relief concerning certain circular knitted fabrics, for use in the production of men's and boys' shirts, pullovers and pants, and of women's and girls' blouses, pants, T-shirts and tops, not be granted. The Tribunal was persuaded that the effect of tariff removal would be detrimental not only to domestic production of fabrics made from combed cotton yarns but also to domestic production of fabrics made from carded cotton yarns. Since domestic knitted fabric production is concentrated in the latter sector, it was the Tribunal's view that the consequences of tariff relief for the domestic knitting industry would be considerable, even if tariff relief were extended only to fabrics made from combed cotton yarns. |
| |
|
Beco Industries Ltd.
TR-95-035
TR-95-043 and
TR-95-044 |
The Tribunal recommended to the Minister of Finance that tariff relief on importations of: woven fabric, containing at least 70 percent but less than 85 percent by weight of cotton, mixed with polyester fibres, printed, measuring less than 250 decitex per single yarn, of widths ranging from 170 to 240 cm, of weights ranging from 90 to 110 g/m2, for use in the manufacture of comforters, pillow cases, pillow shams, dust ruffles, draperies, valances, table rounds and duvet covers; and woven fabric, solely of cotton, printed, measuring less than 300 decitex per single yarn, of widths ranging from 170 to 240 cm, of weights ranging from 85 to 110 g/m2, for use in the manufacture of comforters, not be granted. With regard to the cotton/polyester fabric, the Tribunal concluded that it competes with fabrics made in Canada, that the end products made from the imported fabric compete with end products manufactured in Canada from domestically produced fabrics and that the costs ensuing from tariff relief would greatly outweigh any benefits that would result if tariff relief were granted. With regard to the cotton fabric, the Tribunal concluded that domestically produced cotton/polyester fabrics are substitutable for the imported cotton fabric used in the manufacture of budget comforters and that the price at which the budget comforters are available on the market has an influence on the price obtainable by other manufacturers of comforters. Consequently, granting tariff relief on the imported cotton fabric would have serious adverse effects on both the domestic textile producers and the manufacturers of comforters that use domestically produced fabrics. |
| |
|
Sealy Canada Ltd.
TR-95-056 and TR-95-056A |
The Tribunal recommended to the Minister of Finance that the customs duty on importations of: woven fabrics of textured and non-textured yarns of polyester, polypropylene or rayon; printed warp-knit fabrics of polyester filament yarns; and warp-knit (stitch-bonded) fabrics, for use as ticking in the production of mattresses, be removed for an indeterminate period of time. The Tribunal noted that the only textile manufacturer which appeared to be able to supply identical or substitutable fabrics, Rayonese Textile Inc., supported the request. Consequently, the Tribunal concluded that no domestic production would be affected by removing the duty on the fabrics and that such removal would result in significant savings and have a positive impact on the competitiveness of Sealy Canada Ltd. and other mattress manufacturers in the domestic market.
Further to the Tribunal's recommendation, officials at Revenue Canada determined that the tariff relief subsequently provided by the Minister of Finance (Order in Council PC 1996-1554) did not cover all of the fabrics originally requested by Sealy Canada Ltd. Accordingly, the Minister of Finance requested the Tribunal, pursuant to section 19 of the CITT Act, to inquire into whether the tariff relief should be extended. Following an expedited inquiry, in which no domestic textile producers opposed the extension of tariff relief, the Tribunal concluded that there would be net economic gains from the proposed relief and, accordingly, recommended that tariff relief be extended. |
| |
|
Buckeye Industries
TR-95-063 |
The Tribunal recommended to the Minister of Finance that the customs duty on importations originating in the United States of: dyed, 3-thread or 4-thread twill weave fabrics, containing 65 percent by weight of polyester staple fibres and 35 percent by weight of cotton, having in the warp 415 yarns or more per 10 cm and in the weft 240 yarns or more per 10 cm, of a weight of 160 g/m2 or more, but not exceeding 190 g/m2, for use in the manufacture of men's shirts; and dyed, 3-thread or 4-thread twill weave fabrics, containing 65 percent by weight of polyester staple fibres and 35 percent by weight of cotton, having in the warp 425 yarns or more per 10 cm and in the weft 165 yarns or more per 10 cm, of a weight of 260 g/m2 or more, but not exceeding 290 g/m2, for use in the manufacture of men's trousers, be removed for an indeterminate period of time. The Tribunal found no evidence that any domestic fabric producer or converter had produced or offered a fabric comparable in quality to the US-sourced fabrics in the volumes required by the domestic users since Dominion Textile left the business in 1992. Accordingly, the Tribunal determined that the net economic benefit that would result from the requested tariff relief would amount to the value of duties which, but for the tariff relief, would have been collected on imports of the fabrics from the United States. Duties on imports of the fabrics were projected to be $290,000 in 1997 and zero on January 1, 1998, when duties payable on imports of fabrics from the United States are removed completely. |
TABLE 1
Disposition of Requests for Tariff Relief Between April 1, 1996, and March 31, 1997
Request No. |
Requester |
Textile Input |
Date of Disposition |
Status/Recommendations |
TR-94-003 |
Canastro Textiles Inc. |
yarn |
September 26, 1996 |
Withdrawn |
TR-95-007 and
TR-95-008 |
Parapad Inc. |
fabric |
April 1, 1996 |
Tariff relief not granted |
TR-95-009 |
Peerless Clothing Inc. |
fabric |
April 12, 1996 |
a) Indeterminate tariff relief
b) Two-year tariff relief |
TR-95-010 and TR-95-034 |
Freed & Freed International Ltd. and Fen-nelli Fashions Inc. |
fabric |
August 27, 1996 |
Indeterminate partial tariff relief |
TR-95-013 |
Doubletex |
fabric |
In Progress |
|
TR-95-014 |
Palliser Furniture Ltd. |
fabric |
May 1, 1996 |
Two-year tariff relief |
TR-95-015 to TR-95-032, TR-95-038 to TR-95-042, TR-95-046, TR-95-048 to TR-95-050 and TR-95-055 |
Fantastic-T Knitter Inc., B.C. Garment Factory Ltd. and Global Garment Factory Ltd. |
fabric |
July 11, 1996 |
Tariff relief not granted |
TR-95-035, TR-95-043 and TR-95-044 |
Beco Industries Ltd. |
fabric |
July 4, 1996 |
Tariff relief not granted |
TR-95-036 |
Canadian Mill Supply Co. Ltd. |
fabric |
May 27, 1996 |
Indeterminate tariff relief |
TR-95-037 |
Paris Star Knitting Mills Inc. |
fabric |
July 31, 1996 |
Indeterminate tariff relief |
TR-95-045 |
Yeadon Fabric Structures Ltd. |
fabric |
September 24, 1996 |
Withdrawn |
TR-95-047 |
B.C. Garment Factory Ltd. |
thread |
August 20, 1996 |
Tariff relief not granted |
TR-95-051 |
Camp Mate Limited |
fabric |
June 10, 1996 |
Indeterminate tariff relief |
TR-95-052 |
National-General Filter Products Ltd. |
fabric |
March 12, 1997 |
Terminated - Lack of jurisdiction |
TR-95-053 and TR-95-059 |
Majestic Industries (Canada) Ltd. and Caulfeild Apparel Group Ltd. |
fabric |
June 27, 1996 |
Indeterminate tariff relief |
TR-95-054 |
Handler Textile (Canada) Inc. |
fabric |
October 23, 1996 |
Indeterminate tariff relief - United States only |
TR-95-056 |
Sealy Canada Ltd. |
fabric |
June 28, 1996 |
Indeterminate tariff relief |
TR-95-056A |
Sealy Canada Ltd. |
fabric |
March 17, 1997 |
Indeterminate tariff relief |
TR-95-057 and TR-95-058 |
Doubletex |
fabric |
October 24, 1996 |
Indeterminate tariff relief |
TR-95-060 |
Triple M Fiberglass Mfg. Ltd. |
fabric |
September 26, 1996 |
Indeterminate tariff relief |
TR-95-061 |
Camp Mate Limited |
fabric |
September 3, 1996 |
Indeterminate tariff relief |
TR-95-062 |
Freed & Freed International Ltd. |
fabric |
July 17, 1996 |
Withdrawn |
TR-95-063 |
Buckeye Industries |
fabric |
December 19, 1996 |
Indeterminate tariff relief |
TR-95-064 and TR-95-065 |
Lady Americana Sleep Products Inc. and el ran Furniture Ltd. |
fabric |
February 12, 1997 |
Indeterminate tariff relief |
TR-95-066 |
Lenrod Industries Ltd. |
fabric |
February 25, 1997 |
Tariff relief not granted |
TR-96-001 |
Camoplast Rockland Limited |
fabric |
April 12, 1996 |
Terminated - Lack of jurisdiction |
TR-96-002 |
Hang Tung Garment Factory (Canada) Ltd. |
yarn |
June 19, 1996 |
Terminated |
TR-96-003 |
Venture III Industries Inc. |
fabric |
January 31, 1997 |
Indeterminate tariff relief |
TR-96-004 |
Acton International Inc. |
fabric |
February 27, 1997 |
Indeterminate tariff relief |
TR-96-005 |
Peerless Clothing Inc. |
fabric |
Not yet initiated |
|
TR-96-006 |
Alpine Joe Sportswear Ltd. |
fabric |
March 27, 1997 |
Indeterminate tariff relief |
TR-96-007 |
H.D. Brown Enterprises Ltd. |
fabric |
In Progress |
|
TR-96-008 to TR-96-013 |
Les Collections Shan Inc. |
fabric |
In Progress |
|
TR-96-014 |
Peerless Clothing Inc. |
fabric |
Not yet initiated |
|
TR-96-015 |
Main Knitting Inc. |
yarn |
February 10, 1997 |
Terminated -Lack of jurisdiction |
TABLE 2
Tariff Relief Recommendations in Place
Request No. |
Requester |
Code |
Date |
Duration |
TR-94-001 |
Canatex Industries (Division of Richelieu Knitting Inc.) |
4077 |
May 30, 1995 |
Permanent tariff relief |
TR-94-002 and TR-94-002A |
Kute-Knit Mfg. Inc. |
4117, 4118 |
July 10, 1996 |
Three-year tariff relief |
TR-94-004 |
Woods Canada Limited |
4232 |
July 26, 1995 |
Permanent tariff relief |
TR-94-005 |
Hemisphere Productions Inc. |
4242 |
July 26, 1995 |
Three-year tariff relief |
TR-94-009 |
Équipement Saguenay (1982) Ltée |
4282 |
July 26, 1995 |
Three-year tariff relief |
TR-94-010 |
Palliser Furniture Ltd. |
4397 |
April 30, 1996 |
Permanent tariff relief |
TR-94-011 and TR-94-019 |
Château Stores of Canada Ltd. and Hemisphere Productions Inc. |
4263 |
April 30, 1996 |
Two-year tariff relief |
TR-94-012 |
Peerless Clothing Inc. |
4393 |
April 30, 1996 |
Indeterminate tariff relief |
TR-94-013 and TR-94-016 |
MWG Apparel Corp. |
4268, 4269 |
April 30, 1996 |
Permanent tariff relief |
TR-94-017 and TR-94-018 |
Elite Counter & Supplies |
4495, 4496 |
December 13, 1995 |
Permanent tariff relief |
TR-95-003 |
Landes Canada Inc. |
4288 |
December 13, 1995 |
Permanent tariff relief |
TR-95-004 |
Lingerie Bright Sleepwear (1991) Inc. |
4250 |
July 10, 1996 |
Indeterminate tariff relief |
TR-95-005 |
Lingerie Bright Sleepwear (1991) Inc. |
4251 |
July 10, 1996 |
Indeterminate tariff relief |
TR-95-009 |
Peerless Clothing Inc. |
4271, 4272
4273 |
August 28, 1996 |
Indeterminate tariff relief
Two-year tariff relief |
TR-95-010 and TR-95-034 |
Freed & Freed International Ltd. and Fen-nelli Fashions Inc. |
4410 |
November 29, 1996 |
Indeterminate tariff relief |
TR-95-011 |
Louben Sportswear Inc. |
4218 |
July 10, 1996 |
Indeterminate tariff relief |
TR-95-012 |
Perfect Dyeing Canada Inc. |
4155 |
July 10, 1996 |
Indeterminate tariff relief |
TR-95-014 |
Palliser Furniture Ltd. |
4418 |
March 19, 1997 |
Two-year tariff relief |
TR-95-036 |
Canadian Mill Supply Co. Ltd. |
4401 |
September 27, 1996 |
Indeterminate tariff relief |
TR-95-037 |
Paris Star Knitting Mills Inc. |
4409 |
September 27, 1996 |
Indeterminate tariff relief |
TR-95-051 |
Camp Mate Limited |
4407, 4408 |
September 27, 1996 |
Indeterminate tariff relief |
TR-95-053 and TR-95-059 |
Majestic Industries (Canada) Ltd. and Caulfeild Apparel Group Ltd. |
4276, 4277 |
September 27, 1996 |
Indeterminate tariff relief |
TR-95-054 |
Handler Textile (Canada) Inc. |
4417 |
March 19, 1997 |
Indeterminate tariff relief - United States only |
TR-95-056 |
Sealy Canada Ltd. |
4402, 4403, 4404, 4405, 4406 |
September 27, 1996 |
Indeterminate tariff relief |
TR-95-057 and TR-95-058 |
Doubletex |
4415, 4416 |
March 19, 1997 |
Indeterminate tariff relief |
TR-95-060 |
Triple M Fiberglass Mfg. Ltd. |
4412 |
December 19, 1996 |
Indeterminate tariff relief |
TR-95-061 |
Camp Mate Limited |
4411 |
December 19, 1996 |
Indeterminate tariff relief |
TR-95-063 |
Buckeye Industries |
4413, 4414 |
March 19, 1997 |
Indeterminate tariff relief |
| |
CHAPTER VI |
| |
PROCUREMENT REVIEW |
Introduction |
Suppliers may now challenge procurements that they believe have not been carried out in accordance with the requirements of the following: Chapter Ten of NAFTA, Chapter Five of the AIT or the WTO Agreement on Government Procurement. The bid challenge portions of these agreements came into force on January 1, 1994, July 1, 1995, and January 1, 1996, respectively.
Any potential suppliers who believe that they may have been unfairly treated during the solicitation or evaluation of bids, or in the awarding of contracts on a designated procurement, may lodge a formal complaint with the Tribunal. A potential supplier with an objection is encouraged to resolve the issue first with the government institution responsible for the procurement. When this process is not successful or a supplier wants to deal directly with the Tribunal, the complainant may ask the Tribunal to consider the case by filing a complaint within the prescribed time limit.
When the Tribunal receives a complaint, it reviews the submission against the criteria for filing. If there are deficiencies, the complainant is given an opportunity to correct these within a specified time limit. Once the complaint meets the criteria for filing, the government institution and all other interested parties are sent a formal notification of the complaint. A copy of the complaint is sent to the government institution. When the Tribunal decides to conduct an inquiry, an official notice of the complaint is published in Government Business Opportunities and the Canada Gazette. If the contract in question has not been awarded, the Tribunal may order the government institution to postpone awarding any contract pending the disposition of the complaint by the Tribunal, unless the government institution certifies that the procurement is urgent or that the delay would be against the public interest.
After receipt of its copy of the complaint, the government institution responsible for the procurement files a report responding to the allegations. The complainant is then sent a copy of the Government Institution Report and has seven days to submit comments. These are forwarded to the government institution and any interveners.
A staff investigation, which can include interviewing individuals and examining files and documents, may be conducted and result in the production of a Staff Investigation Report. This report is circulated to the parties for their comment. Once this phase of the inquiry is completed, the Tribunal reviews the information collected and decides whether a hearing should be held.
The Tribunal then makes a determination, which may consist of recommendations to the government institution (such as re-tendering, re-evaluating or providing compensation) and the award of reasonable costs to a prevailing complainant for filing and proceeding with the bid challenge and/or costs for preparing the bid. The government institution, as well as all other parties and interested persons, is notified of the Tribunal's decision. Recommendations made by the Tribunal in its determination are to be implemented to the greatest extent possible. |
| |
|
| |
Summary of Procurement Review Activities |
| |
|
1995-96 |
1996-97 |
| |
CASES RESOLVED BY OR BETWEEN PARTIES |
|
|
| |
Resolved Between Parties |
3 |
0 |
| |
Withdrawn |
3 |
6 |
| |
Abandoned While Filing |
4 |
1 |
| |
Subtotal |
10 |
7 |
| |
INQUIRIES NOT INITIATED ON PROCEDURAL GROUNDS |
|
|
| |
Lack of Jurisdiction |
8 |
7 |
| |
Late Filing |
4 |
5 |
| |
No Valid Basis |
6 |
9 |
| |
Subtotal |
18 |
21 |
| |
CASES DETERMINED ON MERIT |
|
|
| |
Complaint not Valid |
3 |
7 |
| |
Complaint Valid |
3 |
5 |
| |
Subtotal |
6 |
12 |
| |
IN PROGRESS |
8 |
9 |
| |
TOTAL |
42 |
49 |
| |
|
Summary of Selected Decisions |
During fiscal year 1996-97, the Tribunal issued 12 written determinations of its findings and recommendations. In 5 of the 12 written decisions, the complaints were determined to be valid or valid in part. In these cases, various remedies were granted in the form of cost awards or recommendations. In one case, File No. PR-95-023, the Department of Public Works and Government Services (the Department) decided not to implement the Tribunal's recommendations. Nine other cases were in progress at year end. The table at the end of this chapter summarizes these activities, as well as those cases resolved by or between parties.
Of the cases heard by the Tribunal in carrying out its procurement review functions, certain decisions stand out from among the others because of the legal significance of the cases. A brief résumé of a representative sample of such cases follows. These summaries have been prepared for general information purposes only and have no legal status. |
| |
|
Array Systems Computing Inc.
PR-95-023 |
The Tribunal made a determination with respect to a complaint filed by Array Systems Computing Inc. (the complainant) concerning a solicitation of the Department. The solicitation was a limited tender for the purchase of six AN/SQS-510 Sonar systems and modifications to two identical Sonar systems for the Iroquois class ships for the Department of National Defence.
The complainant alleged that the Department issued an overly restrictive specification and limited competition to only one supplier, in contravention of the AIT.
Having examined the evidence and arguments presented by the parties and considering the subject matter of the complaint, the Tribunal determined that the complaint was valid; therefore, it recommended, as a remedy, that the Department issue a competitive solicitation for the requirement in accordance with the provisions of the AIT. The Department decided not to implement the Tribunal's recommendations citing that a competitive procurement in this instance would create undue delays to the operational requirements of the Department of National Defence. |
| |
|
FPG/HRI Joint Venture (Fall Protection Group Inc. and HRI Human Resources International Inc.)
PR-95-031 |
The Tribunal made a determination with respect to a complaint filed by FPG/HRI Joint Venture (Fall Protection Group Inc. and HRI Human Resources International Inc.) (the complainant) concerning a solicitation of the Department for the supply of instruction and supervision services in various areas of technical expertise for the cadet leadership and challenge course at the Banff National Army Cadet Training Centre of the Department of National Defence.
The complainant alleged that the procurement process was flawed because improper and unfair communications took place between members of the evaluation committee and the contract awardee during the bidding process. The complainant also alleged that its bid was improperly evaluated and that the proposal by the contract awardee should have been declared non-compliant.
After careful consideration of the requirements of NAFTA and the AIT, the Tribunal determined that the complaint was valid in part. The Tribunal recommended, as a remedy, that the Department not exercise the option to extend the contract for an additional two years and, instead, should the requirement continue to exist, re-issue a competitive solicitation for the requirement in accordance with the provisions of the applicable agreements. The Department agreed to implement the Tribunal's recommendation. |
| |
|
ISM Information Systems Management Corporation
PR-95-040 |
The Tribunal made a determination with respect to a complaint filed by ISM Information Systems Management Corporation (the complainant) concerning a solicitation of the Department for the supply of technical services to support local area network and approximately 8,000 workstations located in the National Capital Region and elsewhere in Canada.
The complainant alleged that the Department, by requiring suppliers to commit to full indemnification of the Crown for third party claims relating to consequential damages, breached certain requirements of NAFTA.
Having examined the evidence and arguments presented by the parties and considering the obligations specified in NAFTA, the Tribunal determined that the complaint was not valid. |
| |
|
Conair Aviation, A division of Conair Aviation Ltd.
PR-95-039 |
The Tribunal made a determination with respect to a complaint filed by Conair Aviation, A division of Conair Aviation Ltd. (the complainant) concerning a solicitation of the Department. The solicitation was for the supply of air tanker services, including pilot services, for fire bombing activities for the Department of Indian Affairs and Northern Development, to be based at Whitehorse, Yukon Territory, and operating from different points in the Yukon Territory, the Northwest Territories, adjacent provinces and Alaska.
The complainant alleged that the Department withdrew the award of the contract to the complainant and reissued the Request for Proposal in a manner contrary to the requirements of NAFTA.
Having examined the evidence and arguments presented by the parties and considering the subject matter of the complaint, the Tribunal determined that the procurement was not conducted according to NAFTA and that, therefore, the complaint was valid.
The Tribunal recommended, as a remedy, that the Department pay the complainant compensation recognizing that the complainant should have been awarded the contract and would have had the opportunity to profit therefrom.
The Tribunal also recommended that the Department not exercise the option to extend the contract for an additional year and, instead should the requirement continue to exist, reissue a competitive solicitation for the requirement in accordance with the provisions of the applicable agreements.
The Tribunal awarded the complainant its reasonable costs incurred in relation to filing and proceeding with its complaint.
The Department agreed to implement the Tribunal's recommendations and the complainant was given complaint costs of $25,796.73 and compensation of $290,203.65. |
| |
|
Corel Corporation
PR-96-011 |
The Tribunal made a determination with respect to a complaint filed by Corel Corporation (the complainant) concerning a solicitation of the Department for the supply of a department-wide, unlimited user licence for an Office Automation Suite, including installation and integration support and training services for approximately 40,000 users in the Department of National Defence.
The complainant alleged that the manner in which this procurement was carried out violated Articles 1008(1)(a) and (b) of NAFTA. The complainant submitted that this procurement was fundamentally flawed and failed to conform to the rules of fair and equal treatment of the participants.
Having examined the evidence and arguments presented by the parties and considering the obligations specified in NAFTA, the Tribunal determined that the complaint was not valid.
The Tribunal's decision has been appealed to the Federal Court of Canada by the complainant. |
| |
|
Bell Canada
PR-96-023 |
The Tribunal made a determination with respect to a complaint filed by Bell Canada (the complainant) concerning a solicitation of the Department for the purchase of a Military Message Handling System Proof of Concept for the Department of National Defence.
It was alleged that the Department, by improperly determining the complainant's proposal non-compliant to the requirements of the Request for Proposal, violated certain provisions of the AIT and NAFTA.
Having examined the evidence and arguments presented by the parties, the Tribunal determined, in consideration of the subject matter of the complaint, that the procurement was conducted in accordance with the AIT and, therefore, that the complaint was not valid. |
Disposition of Procurement Complaints Between April 1, 1996, and March 31, 1997
File No. |
Complainant |
Date of Receipt of
Complaint |
Status/Decision |
PR-95-023 |
Array Systems Computing Inc. |
January 5, 1996 |
Decision issued April 16, 1996
Complaint valid |
PR-95-031 |
FPG/HRI Joint Venture |
February 26, 1996 |
Decision issued June 6, 1996
Complaint valid in part |
PR-95-033 |
Emcon Emanation Control Limited |
March 5, 1996 |
Decision issued June 3, 1996
Complaint not valid |
PR-95-035 |
Secure Technologies International Inc. |
March 15, 1996 |
Decision issued June 13, 1996
Complaint valid in part |
PR-95-037 |
Taftek |
March 22, 1996 |
Complaint withdrawn |
PR-95-038 |
Équipement Industriel Champion Inc. |
March 25, 1996 |
Decision issued June 25, 1996
Complaint not valid |
PR-95-039 |
Conair Aviation, A division of Conair Aviation Ltd. |
March 25, 1996 |
Decision issued August 8, 1996
Complaint valid |
PR-95-040 |
ISM Information Systems Management Corporation |
March 27, 1996 |
Decision issued July 30, 1996
Complaint not valid |
PR-96-001 |
Atlantis Aerospace Corporation |
April 3, 1996 |
Not accepted for inquiry/No valid basis |
PR-96-002 |
A.I. Inc. |
April 4, 1996 |
Not accepted for inquiry/No valid basis |
PR-96-003 |
Andaurex Industries Inc. |
April 25, 1996 |
Not accepted for inquiry/Lack of jurisdiction |
PR-96-004 |
Équipement Industriel Champion Inc. |
May 23, 1996 |
Not accepted for inquiry/No valid basis |
PR-96-005 |
International Code Services |
May 24, 1996 |
Complaint withdrawn |
PR-96-006 |
Array Systems Computing Inc. |
May 24, 1996 |
Not accepted for inquiry/Lack of jurisdiction |
PR-96-007 |
Lease 1 Financial Services Inc. |
May 29, 1996 |
Not accepted for inquiry/Lack of jurisdiction |
PR-96-008 |
MacDonald Dettwilier's |
June 11, 1996 |
Not accepted for inquiry/Lack of jurisdiction |
PR-96-009 |
Addis Enterprises |
June 20, 1996 |
Decision issued September 18, 1996
Complaint not valid |
PR-96-010 |
Spacesaver Mobile Storage Systems Corporation |
June 24, 1996 |
Not accepted for inquiry/Lack of jurisdiction |
PR-96-011 |
Corel Corporation |
July 3, 1996 |
Decision issued November 21, 1996
Complaint not valid
Tribunal's decision appealed to Federal Court of Canada |
PR-96-012 |
Armstrong Laing Group |
July 5, 1996 |
Not accepted for inquiry/Lack of jurisdiction |
PR-96-013 |
General Waste |
July 12, 1996 |
Complaint withdrawn |
PR-96-014 |
United Van Lines Canada (Ltd.) |
August 1, 1996 |
Not accepted for inquiry/No valid basis |
PR-96-015 |
Le Groupe BGM |
August 1, 1996 |
Not accepted for inquiry/No valid basis |
PR-96-016 |
Hitachi Data Systems |
August 15, 1996 |
Not accepted for inquiry/No valid basis |
PR-96-017 |
Shaddy International Marketing Ltd. |
August 16, 1996 |
Not accepted for inquiry/No valid basis |
PR-96-018 |
Tru-Temp Electric Heat Ltd. |
August 16, 1996 |
Not accepted for inquiry/Late filing |
PR-96-019 |
Knoll North America Inc. |
September 24, 1996 |
Complaint withdrawn |
PR-96-020 |
E.D.S. of Canada Ltd. |
October 4, 1996 |
Decision issued January 10, 1997
Complaint not valid |
PR-96-021 |
London Photocopy Inc. |
October 10, 1996 |
Decision issued February 7, 1997
Complaint valid in part |
PR-96-022 |
Threshold Technologies Company |
November 18, 1996 |
Complaint withdrawn |
PR-96-023 |
Bell Canada |
November 27, 1996 |
Decision issued February 21, 1997
Complaint not valid |
PR-96-024 |
AirSpray (1976) Ltd. |
November 27, 1996 |
Not accepted for inquiry/Late filing |
PR-96-025 |
Digital Equipment of Canada Ltd. |
December 12, 1996 |
Complaint withdrawn |
PR-96-026 |
A V Spex Audio Visual & Video Systems |
December 18, 1996 |
Not accepted for inquiry/Late filing |
PR-96-027 |
Philip Environmental |
January 7, 1997 |
Accepted for inquiry |
PR-96-028 |
M.C. Coach Informatiques International Inc. |
January 24, 1997 |
Not accepted for inquiry/Late filing |
PR-96-029 |
Pro-Safe Fire Training Systems |
February 5, 1997 |
Abandoned while filing |
PR-96-030 |
Symtron Systems Inc. |
February 24, 1997 |
Accepted for inquiry |
PR-96-031 |
ATS Aerospace Inc. |
February 24, 1997 |
Not accepted for inquiry/Lack of jurisdiction |
PR-96-032 |
Académie de Gérontologie de l'Outaouais Inc. |
February 26, 1997 |
Not accepted for inquiry/No valid basis |
PR-96-033 |
Versatech Products Inc. |
February 27, 1997 |
Accepted for inquiry |
PR-96-034 |
Atlantic Safety Centre |
March 4, 1997 |
Accepted for inquiry |
PR-96-035 |
Accutel Conferencing Systems Inc. |
March 7, 1997 |
Accepted for inquiry |
PR-96-036 |
Mirtech International Security Inc. |
March 11, 1997 |
Accepted for inquiry |
PR-96-037 |
Sybase Canada Limited |
March 11, 1997 |
Accepted for inquiry |
PR-96-038 |
Soquelec Ltd. |
March 14, 1997 |
Not accepted for inquiry/No valid basis |
PR-96-039 |
Datafile, a TAB Products Company |
March 17, 1997 |
Not accepted for inquiry/Late filing |
PR-96-040 |
Hervé Pomerleau inc. |
March 18, 1997 |
Accepted for inquiry |
PR-96-041 |
On Power Systems Inc. |
March 19, 1997 |
Being filed |
| |
CHAPTER VII |
| |
USE OF ANTI-DUMPING AND COUNTERVAILING MEASURES |
| |
Each year since 1990, the Tribunal's research staff has produced working papers on anti-dumping measures. This year's paper, Canadian and International Use of Anti-Dumping and Countervailing Measures: 1988-1995, provides updated estimates of imports affected by such measures through 1995. It also includes estimates of the value of Canadian domestic shipments affected by Canadian measures. Aggregate data are presented on a yearly basis. Detailed compilations by product and country affected are presented as annual averages for two sub-periods: 1988-91 and 1992-95. The staff paper also provides updated information on anti-dumping and countervailing measures by WTO members since 1990. This chapter summarizes the highlights of the staff paper. |
| |
|
Canada's Use of Anti-Dumping and Countervailing Measures |
At the end of 1995, there were 41 injury findings in place in Canada, covering 97 actions. They affected imports from 33 countries. In 1995, the Tribunal made 2 injury findings, covering 6 actions affecting imports from 5 countries and rescinded 5 actions against imports from 5 countries. |
| |
|
| |
Canadian Anti-Dumping and Countervailing Measures, 1988-95 |
| |
|
Actions1 |
Findings1 |
| |
Year2 |
Added |
Expired/
Rescinded |
In Place
(Dec. 31) |
In Place
(Dec. 31) |
| |
1988 |
3 |
22 |
140 |
64 |
| |
1989 |
2 |
14 |
128 |
59 |
| |
1990 |
10 |
60 |
78 |
38 |
| |
1991 |
12 |
17 |
73 |
35 |
| |
1992 |
4 |
7 |
70 |
33 |
| |
1993 |
16 |
0 |
86 |
38 |
| |
1994 |
19 |
9 |
96 |
39 |
| |
1995 |
6 |
5 |
97 |
41 |
| |
1. Actions are measured on a country-specific basis. Findings can include several actions on the same product. For example, the Tribunal finding in Inquiry No. NQ-90-005, Carbon Steel Welded Pipe, includes six actions: one each for Argentina, India, Romania, Taiwan, Thailand and Venezuela. Combined anti-dumping and countervailing measures against imports from a country are counted as a single action.
2. Counting convention: the first year of a measure is the year of the preliminary determination; the last is the year prior to the year in which the measure was rescinded or expired.
Source: Tribunal Research Branch Data Base. |
| |
|
Import Values |
In 1995, the Tribunal's staff estimated the value of imports affected by anti-dumping and countervailing measures to be $1 billion, two and a half times the level of 1990. They accounted for 0.51 percent of total Canadian imports in 1995, down from 0.54 percent in 1994. |
| |
|
| |
Canadian Imports Affected by Anti-Dumping and Countervailing Measures, 1988-95
($000) |
| |
|
|
Value of Imports Affected |
| |
Year |
Total Imports
(1) |
Added by New Inquiries
(2) |
Rescinded and Expired
(3) |
Change in Imports: Findings in Place
(4) |
Total
(5) |
As a
Percentage of Total Imports
(6) |
| |
1988 |
93,147,427 |
21,267 |
436,633 |
(202,830) |
744,111 |
0.80 |
| |
1989 |
120,771,230 |
468 |
12,691 |
406,110 |
1,137,998 |
0.94 |
| |
1990 |
120,821,268 |
85,504 |
806,257 |
(4,875) |
412,370 |
0.34 |
| |
1991 |
120,362,894 |
328,285 |
56,035 |
(27,429) |
657,191 |
0.55 |
| |
1992 |
132,128,011 |
104,001 |
70,512 |
(69,096) |
621,584 |
0.47 |
| |
1993 |
152,102,323 |
149,489 |
0 |
(13,712) |
757,361 |
0.50 |
| |
1994 |
181,789,114 |
179,671 |
59,589 |
97,387 |
974,830 |
0.54 |
| |
1995 |
200,819,808 |
75,875 |
41,572 |
13,959 |
1,023,092 |
0.51 |
| |
Notes:
1. Column 5 end of period equals column 5 for the previous year plus column 2, minus column 3 plus column 4.
2. Column 6 equals column 5 as a percentage of column 1.
Source: Tribunal Research Branch Data Base and Statistics Canada. |
| |
|
| |
There were significant changes in the product pattern of imports affected by anti-dumping and countervailing measures between the periods 1988-91 and 1992-95. In the 1992-95 period, three product groups, textiles (mainly carpeting), primary metal and other manufacturing, accounted for over 72 percent of imports affected. In the 1988-91 period, four product groups, primary metal, machinery, electrical and agricultural, accounted for close to 70 percent of imports affected.
A similar inter-period analysis shows significant changes in the origin of imports affected by anti-dumping and countervailing measures. The most significant change involved imports from the United States. In the 1992-95 period, they accounted for 59 percent of all imports affected, up from 30 percent in the 1988-91 period. Other changes concerned imports from the European Union, Japan and Pacific Rim countries. The shares of the European Union and Japan were 10.4 and 0.7 percent respectively in the 1992-95 period, down from 21.4 and 19.0 percent in the 1988-91 period. In contrast, the share of Pacific Rim countries' imports increased from 17.0 to 22.3 percent between the two periods.
Imports affected as a share of total imports into Canada from various regions have not been high. In the 1992-95 period, the share was highest from Pacific Rim countries: 1.4 percent of imports, the same as in the 1988-91 period. In contrast, the share of imports affected from Japan declined from 1.5 to less than 0.1 percent between the two periods. The corresponding shares for the United States were 0.3 and 0.4 percent. |
| |
|
Domestic Shipment Values |
The value of domestic shipments affected by anti-dumping and countervailing measures is estimated at $4.3 billion in 1995, compared with $3.5 billion in 1994. Shipments affected accounted for 2.1 percent of total domestic shipments by all goods producing industries in 1995, up from 1.8 percent in 1994. |
| |
|
| |
Canadian Domestic Shipments Affected by Anti-Dumping and Countervailing Measures, 1988-95
($000) |
| |
|
|
Value of Domestic Shipments Affected |
| |
Year |
Total Domestic Shipments(1) |
Added by New Inquiries
(2) |
Rescinded and Expired
(3) |
Change in Domestic Shipments: Findings in Place
(4) |
Total
(5) |
As a Percentage of Total Domestic Shipments
(6) |
| |
1988 |
203,276,644 |
34,538 |
206,306 |
172,191 |
2,661,967 |
1.31 |
| |
1989 |
215,513,885 |
3,174 |
62,383 |
207,986 |
2,810,744 |
1.30 |
| |
1990 |
200,129,733 |
126,900 |
1,051,010 |
(96,604) |
1,790,030 |
0.89 |
| |
1991 |
184,285,721 |
688,514 |
168,567 |
(52,328) |
2,257,649 |
1.23 |
| |
1992 |
177,633,693 |
340,143 |
753,245 |
(126,049) |
1,718,498 |
0.97 |
| |
1993 |
180,268,911 |
777,560 |
0 |
31,377 |
2,527,435 |
1.40 |
| |
1994 |
192,990,714 |
903,100 |
263,480 |
328,284 |
3,495,339 |
1.81 |
| |
1995 |
201,928,226 |
753,416 |
0 |
72,318 |
4,321,073 |
2.14 |
| |
Notes:
1. Column 5 end of period equals column 5 for the previous year plus column 2, minus column 3 plus column 4.
2. Column 6 equals column 5 as a percentage of column 1.
Source: Tribunal Research Branch Data Base and Statistics Canada. |
| |
|
| |
The primary metal, food and textile industries were the main beneficiaries of anti-dumping and countervailing measures during the 1992-95 period. They accounted for over 77 percent of total domestic shipments affected. In the 1988-91 period, the main beneficiaries were agricultural, primary metal and food industries, accounting for over 75 percent of total domestic shipments affected. |
| |
|
Measures in Force by WTO Members |
Reports to the WTO on anti-dumping and countervailing measures generally do not contain sufficient data to estimate the value of imports affected or to compare that value with a country's total imports. Accordingly, the staff analysis is based on the number of measures in place. Such an analysis cannot provide the same assessment of their economic impact as that provided above for Canadian measures. |
| |
|
Anti-Dumping Measures |
Between 1990 and 1995, many WTO members increased their use of anti-dumping measures; the number in force increased from 458 to 903. The increase was greatest for the United States, Mexico, Australia and "Other" countries. Included among these countries are Turkey, India, the Republic of Korea and Argentina. There was slower growth in the number of Canadian measures. In 1995, Canada accounted for 10.4 percent of anti-dumping measures in place.
In 1995, about 56 percent of anti-dumping measures by WTO members affected three product groups: primary metal (26.6 percent), chemicals (20.7 percent) and electrical goods (9.1 percent). Except for primary metal, Canadian measures have tended to have a greater effect on imports of other products.
In 1995, most anti-dumping measures were directed at imports from the People's Republic of China, the European Union, Japan, the United States, the Republic of Korea, Brazil and Taiwan. Much of the large growth in the number of measures between 1990 and 1995 affected exports by China, "Other" countries and the European Union. Canadian exports were affected by 1.8 percent of all anti-dumping measures. |
| |
|
Countervailing Measures |
The number of countervailing measures in force declined from a peak of 179 in 1993 to 159 in 1995. The removal of a large number of measures by the United States was not fully offset by new measures by other countries. Although the number of Canadian countervailing measures was small compared to its use of anti-dumping measures, Canada ranked second among WTO members.
In 1995, food product exports were the most affected, accounting for 52 percent of total countervailing measures. Primary metal exports were affected by 27 percent of measures. All Canadian countervailing measures were directed at food imports from the European Union.
Exports from the European Union were the most affected by countervailing measures, accounting for close to 60 percent of the measures in place in 1995. Most of the remainder affected exports by "Other" countries and Brazil. There were four measures directed at Canadian exports, all by the United States. |
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Number of Measures in Force by WTO Members, 1990-95 |
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1. Each countervailing measure directed at the European Union is counted as an action against imports of each of the member states if the report to the WTO does not specify a particular member state or states. In its analysis of Canadian measures, however, the Tribunal's staff included a member state in the number of actions only if it had exported the products in question to Canada.
Source: GATT and WTO semi-annual reports and published reports by national authorities. |
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PUBLICATIONS |
June 1996 |
Annual Report for the Fiscal Year Ending March 31, 1996 |
October 1996 |
Textile Reference Guide |
November 1996 |
Textile Reference: Annual Status Report |
Bulletin |
Vol. 8, Nos. 1 - 4 |
New Brochure and Information Documents |
A brochure and a series of documents designed to inform the public of the work of the Tribunal are available. They include:
· Introductory Guide on the Canadian International Trade Tribunal
· Information on Appeals from Customs, Excise and SIMA Decisions
· Information on Dumping and Subsidizing Inquiries and Reviews
· Information on Textile Tariff Investigations
· Information on Procurement Review
Publications can be obtained by contacting the Secretary, Canadian International Trade Tribunal, Standard Life Centre, 333 Laurier Avenue West, Ottawa, Ontario K1A 0G7 (613) 993-3595 or they can be accessed on the Tribunal's Web site. |
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