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This enactment makes several amendments to the Special Import
Measures Act and the Canadian International Trade Tribunal Act. It
gives effect to recommendations set out in the December 1996 Report
on the Special Import Measures Act that was issued by the
Sub-Committee on the Review of the Special Import Measures Act (of
the Standing Committee on Finance) and the Sub-Committee on Trade
Disputes (of the Standing Committee on Foreign Affairs and
International Trade). The key elements of the enactment include the
following:
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(a) assignment of responsibility to the Canadian International Trade
Tribunal for preliminary determinations of injury, retardation or
threat of injury to Canadian industry caused by the dumping or
subsidizing of goods;
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(b) provisions governing the disclosure of confidential information
by the Deputy Minister of National Revenue to counsel for parties
in dumping and subsidy investigations, and new penalties for the
unauthorized use of that information;
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(c) provisions governing the disclosure of confidential information
by the Canadian International Trade Tribunal to expert witnesses in
proceedings related to dumping and subsidy investigations, and new
penalties for the unauthorized use of that information;
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(d) provisions governing the consideration, review and termination
of undertakings by the Deputy Minister of National Revenue;
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(e) mandatory cumulation, in Canadian International Trade Tribunal
inquiries and expiry reviews of existing orders and findings, of the
injurious effects of the dumping or subsidizing of goods imported
into Canada from more than one country;
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(f) provisions governing the initiation and conduct of public interest
inquiries in respect of Canadian International Trade Tribunal
findings, including provisions enabling the Tribunal to recommend
a lesser anti-dumping or countervailing duty sufficient to eliminate
injury, retardation or the threat of injury to Canadian industry; and
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(g) provisions governing the conduct of interim and expiry reviews
of existing orders and findings, including the assignment of
responsibility to the Deputy Minister of National Revenue for expiry
review determinations as to the likelihood of the continuation or
resumption of dumping or subsidizing goods.
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The enactment also includes housekeeping amendments that clarify
existing provisions of the Special Import Measures Act.
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Clause 1: (1) and (2) The definitions ``domestic
industry'' and ``order or finding'' in subsection 2(1) read
as follows:
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``domestic industry'' means, other than for the purposes of section 31
and subject to subsection (1.1), the domestic producers as a whole
of the like goods or those domestic producers whose collective
production of the like goods constitutes a major proportion of the
total domestic production of the like goods except that, where a
domestic producer is related to an exporter or importer of dumped
or subsidized goods, or is an importer of such goods, ``domestic
industry'' may be interpreted as meaning the rest of those domestic
producers;
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``order or finding'', in relation to the Tribunal,
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(a) means an order or finding made by the Tribunal pursuant to
section 43 or 44 that has not been rescinded pursuant to
subsection 91(3), and
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(b) includes, for the purposes of sections 3 to 6, 76 and 76.1, an
order or finding made by the Tribunal pursuant to subsection
91(3)
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that has not been rescinded pursuant to section 76 or 76.1 but, where
the order or finding has been amended one or more times pursuant
to either of those sections, as last so amended;
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(3) The relevant portion of the definition ``properly
documented'' in subsection 2(1) reads as follows:
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``properly documented'', in relation to a complaint respecting the
dumping or subsidizing of goods, means that
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(b) the complainant provides
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(i) such information as is available to the complainant to prove
the facts referred to in subparagraph (a)(ii),
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(4) The relevant portion of the definition ``subsidized
goods'' in subsection 2(1) reads as follows:
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``subsidized goods'' means
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(b) goods that are disposed of at a loss by the government of a
country other than Canada,
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(5) The relevant portion of the definition ``subsidy''
in subsection 2(1) reads as follows:
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``subsidy'' means
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(a) a financial contribution by a government of a country other
than Canada in any of the circumstances outlined in subsection
(1.6) that confers a benefit to persons engaged in the production,
manufacture, growth, processing, purchase, distribution,
transportation, sale, export or import of goods but does not
include the amount of any duty or internal tax imposed on goods
by the government of the country of origin or country of export
from which the goods, because of their exportation from the
country of export or country of origin, have been exempted or
have been or will be relieved by means of refund or drawback, or
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(6) New.
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Clause 2: (1) The relevant portion of subsection 3(1)
reads as follows:
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3. (1) Subject to section 7.1, there shall be levied, collected and paid
on all dumped and subsidized goods imported into Canada in respect of
which the Tribunal has made an order or finding, before the release of
the goods, that the dumping or subsidizing of goods of the same
description has caused injury or retardation or is threatening to cause
injury, a duty as follows:
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(2) Subsection 3(2) reads as follows:
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(2) Where the Tribunal has made an order or finding referred to in
subsection (1) in respect of goods that are subject to an undertaking
referred to in section 7.1 and the undertaking is subsequently violated,
there shall be levied, collected and paid on all of those goods that were
released on or after the day on which the undertaking was violated, a
duty as provided under paragraphs (1)(a) and (b).
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Clause 3: (1) The relevant portion of subsection 8(1.1)
reads as follows:
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(1.1) Where an order or finding of the Tribunal under subsection
43(1), 76(4.1) respecting a review pursuant to subsection 76(2.1), or
91(3), other than an order or finding described in any of sections 3 to 6,
is referred back to the Tribunal under subsection 77.015(3) or (4) or
77.019(5), or under subsection 77.15(3) or (4) or 77.19(4), the importer
of dumped or subsidized goods that are of the same description as any
goods to which the order or finding applies and that are released during
the period commencing on the day on which the preliminary
determination is made and ending on the day on which the Tribunal
makes an order or finding, on the referral back, with respect to goods of
that description, shall, on demand of the Deputy Minister for payment
of provisional duty on the imported goods, at the option of the importer,
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(2) New.
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(3) The relevant portion of subsection 8(2) reads as
follows:
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(2) Any provisional duty paid or security posted pursuant to
subsection (1) or (1.1) by or on behalf of an importer in respect of the
importation of dumped or subsidized goods of any description shall
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(4) The relevant portion of subsection 8(6) reads as
follows:
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(6) Where the Deputy Minister terminates an undertaking pursuant
to subsection 51(1) or 52(1) with respect to dumped or subsidized
goods, the collection of provisional duties on those goods is resumed
and the importer of dumped or subsidized goods that are of the same
description as any goods to which the preliminary determination
applied and that are released during the period beginning on the day on
which the undertaking was terminated and ending on the earlier of
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Clause 4: Subsection 9.4(1) reads as follows:
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9.4 (1) Where an order or finding of the Tribunal under subsection
76(4) rescinding an order or finding described in any of sections 3 to 6
is referred back to the Tribunal under subsection 77.015(3) or (4) or
77.019(5), or under subsection 77.15(3) or (4) or 77.19(4), the importer
of dumped or subsidized goods that are of the same description as any
goods to which the rescinded order or finding applied and that are
released on or after the day on which the order of the panel referring the
rescinding order or finding back is made, shall pay or cause to be paid
duty on the imported goods as if the rescinded order or finding had not
been rescinded.
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Clause 5: Subsection 12(2) reads as follows:
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(2) Where the Minister is satisfied that, because of a clerical or
arithmetical error, an amount has been paid as duty in respect of goods
that was not properly payable, the Minister shall return that amount to
the importer or owner of the goods by or on whose behalf it was paid.
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Clause 6: (1) Subsection 13.2(1) reads as follows:
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13.2 (1) An exporter to Canada of any goods to which an order or
finding referred to in section 3 applies may request that the Deputy
Minister review the normal value, export price or amount of subsidy in
relation to those goods where
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(a) the exporter establishes that the exporter is not associated with
any other exporter from that country of goods to which the order or
finding relates; and
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(i) been given notice under subparagraph 34(1)(a)(i), paragraph
38(3)(a) or subsection 41(3) in respect of the goods, or
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(ii) been requested to provide information in relation to those
goods or in relation to any goods that are of the same description
as those goods for the purposes of this Act.
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(2) Subsection 13.2(5) reads as follows:
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(5) A confirmation or amendment of a normal value, export price or
amount of subsidy under subsection (3) shall, for the purposes of
subsection 56(1), be deemed to be a determination of a normal value,
export price or amount of subsidy, as the case may be, by a customs
officer referred to in that subsection.
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Clause 7: New.
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Clause 8: (1) The relevant portion of subsection 21(1)
reads as follows:
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21. (1) Where any sale of like goods referred to in section 17,
paragraph 19(a), subparagraph 20(c)(i) or paragraph 20(d) was made
on credit terms other than cash discounts, the price for which the like
goods were sold is deemed, for the purpose of that provision, to be an
amount equal to the quotient obtained when
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(2) New.
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Clause 9: The relevant portion of section 26 reads as
follows:
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26. Where the manufacturer, producer, vendor or exporter of goods
sold to an importer in Canada undertakes, directly or indirectly in any
manner whatever, to indemnify, pay on behalf of or reimburse the
importer or purchaser in Canada of the goods for all or any part of the
anti-dumping duty that may be levied on the goods,
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(a) the indemnity, payment or reimbursement is deemed not to be a
compensatory arrangement referred to in subparagraph 25(b)(ii);
and
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Clause 10: New.
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Clause 11: The relevant portion of subsection 30(2)
reads as follows:
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(2) Where any goods
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(b) would, but for this section, have a normal value as computed
under sections 15 to 23 that is less than the normal value would be
if the country of export were the country of origin,
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the normal value and export price of the goods shall, notwithstanding
any other provision of this Act, be determined as if the goods were or
were to be shipped directly to Canada from the country of origin.
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Clause 12: Section 30.1 reads as follows:
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30.1 For the purposes of subparagraphs 35(1)(a)(ii), 38(1)(a)(i) and
41(1)(a)(ii) and paragraphs 41.1(1)(a) and 41.1(2)(a), the margin of
dumping in relation to goods from a particular country is the weighted
average of the margins of dumping determined in accordance with
section 30.2.
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Clause 13: Subsections 30.2(1) and (2) read as
follows:
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30.2 (1) Subject to subsection (2), the margin of dumping in relation
to any goods from a particular exporter is zero or the amount determined
by subtracting the weighted average export price of the goods from the
weighted average normal value of the goods, whichever is greater.
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(2) Where, in the opinion of the Deputy Minister, there are
significant variations in the prices of goods from a particular exporter
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(b) among regions in Canada, or
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the Deputy Minister may determine the margin of dumping in relation
to any goods from that exporter to be the weighted average of the
margins of dumping in relation to the goods of that exporter that are sold
in such individual sales of goods of that exporter as the Deputy Minister
considers relevant.
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Clause 14: Subsection 30.3(1) reads as follows:
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30.3 (1) The Deputy Minister may, where the Deputy Minister is of
the opinion that it would be impracticable to determine a margin of
dumping in relation to all goods under consideration because of the
number of exporters, producers or importers, the variety or volume of
goods or any other reason, determine margins of dumping in relation to
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(a) the largest percentage of goods from each of the countries whose
goods are under consideration that, in the opinion of the Deputy
Minister, can reasonably be investigated; or
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(b) samples of the goods from each of the countries whose goods are
under consideration that, in the opinion of the Deputy Minister based
on the information available at the time of selection, are statistically
valid.
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Clause 15: (1) Subsection 31(2.1) is new. Subsections
31(2) and (3) read as follows:
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(2) No investigation may be initiated under subsection (1) as a result
of a complaint unless the complaint is supported by domestic producers
whose production represents more than fifty per cent of the total
production of like goods by those domestic producers who express
either support for or opposition to the complaint and the production of
the domestic producers who support the complaint represents
twenty-five per cent or more of the total production of like goods by the
domestic industry.
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(3) In subsection (2), domestic industry means, subject to subsection
2(1.1), the domestic producers as a whole of the like goods except that,
where a domestic producer is related to an exporter or importer of
allegedly dumped or subsidized goods, or is an importer of such goods,
``domestic industry'' may be interpreted as meaning the rest of those
domestic producers.
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(2) The relevant portion of subsection 31(4) reads as
follows:
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(4) For the purposes of subsection (3), a domestic producer is related
to an exporter or an importer where
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Clause 16: Subsection 32(3) reads as follows:
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(3) Where a written complaint filed with the Tribunal pursuant to
subsection 23(1) of the Canadian International Trade Tribunal Act is
referred to the Deputy Minister pursuant to subsection 26(5) or 28(1) of
that Act, the Deputy Minister shall be deemed to have received a written
complaint described in subsection (1).
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Clause 17: Sections 34 and 35 read as follows:
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34. (1) Where the Deputy Minister causes an investigation to be
initiated respecting the dumping or subsidizing of goods,
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(a) in the case of an investigation initiated pursuant to any provision
of this Act other than section 7, the Deputy Minister shall cause
notice of the investigation
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(i) to be given to the exporter, the importer, the government of the
country of export, the complainant, if any, and such other persons
as may be prescribed, and
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(ii) to be published in the Canada Gazette; and
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(b) in the case of an investigation initiated pursuant to subsection
31(1), the Deputy Minister may, on the date of the notice given to the
complainant pursuant to paragraph (a), or any person or government
that was given notice pursuant to paragraph (a) may, within thirty
days from the date of the notice, refer to the Tribunal the question
whether the evidence discloses a reasonable indication that the
dumping or subsidizing of any goods in respect of which the Deputy
Minister has caused the investigation to be initiated has caused
injury or retardation or is threatening to cause injury.
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(2) Where, pursuant to a reference under paragraph (1)(b), the
Tribunal advises the Deputy Minister in writing that the evidence
discloses a reasonable indication that the dumping or subsidizing of the
goods has caused injury or retardation or is threatening to cause injury,
the Deputy Minister shall continue the investigation.
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35. (1) Where, at any time before making a preliminary
determination under subsection 38(1) in respect of goods imported
from a country or countries,
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(a) the Deputy Minister is satisfied in respect of some or all of those
goods that
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(i) there is insufficient evidence of dumping or subsidizing to
justify proceeding with the investigation,
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(ii) the margin of dumping of, or the amount of subsidy on, the
goods from that country or from any of those countries is
insignificant, or
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(iii) the actual or potential volume of dumped or subsidized goods
is negligible, or
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(b) the Deputy Minister comes to the conclusion in respect of some
or all of those goods that the evidence does not disclose a reasonable
indication that the dumping or subsidizing of the goods has caused
injury or retardation or is threatening to cause injury,
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the Deputy Minister shall, subject to subsections (2) and (3),
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(c) cause the investigation to be terminated with respect to the goods
in respect of which he is so satisfied or has come to that conclusion,
and
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(d) cause notice of the termination to be given and published as
provided in paragraph 34(1)(a).
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(2) Where, in the case of an investigation described in paragraph
(1)(b) respecting the dumping or subsidizing of goods, the Deputy
Minister comes to the conclusion referred to in that paragraph in respect
of some or all of those goods,
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(a) the Deputy Minister shall cause notice of the conclusion to be
given and published as provided in paragraph 34(1)(a); and
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(b) the Deputy Minister, on the date of the notice given to the
complainant pursuant to paragraph (a), or any person or government
that was given notice pursuant to paragraph (a) may, within thirty
days after the date of the notice, refer to the Tribunal the question
whether the evidence discloses a reasonable indication that the
dumping or subsidizing of the goods in respect of which the Deputy
Minister has come to that conclusion has caused injury or retardation
or is threatening to cause injury.
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(3) Where notice is given pursuant to paragraph (2)(a) in an
investigation, the Deputy Minister may not terminate the investigation
with respect to the goods to which the notice relates by reason only that
the Deputy Minister has come to the conclusion referred to in paragraph
(1)(b) in respect of those goods,
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(a) where no reference is made to the Tribunal pursuant to paragraph
(2)(b) within the thirty days referred to in that paragraph, until the
thirty days have expired; or
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(b) where a reference is made to the Tribunal, unless and until the
Tribunal advises that in its opinion the evidence does not disclose a
reasonable indication that the dumping or subsidizing of the goods
has caused injury or retardation or is threatening to cause injury.
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Clause 18: (1) Paragraph 35.1(1)(c) is new. The
relevant portion of subsection 35.1(1) reads as follows:
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35.1 (1) Immediately after goods of Chile are exempted from the
application of this Act in respect of dumping by regulations made under
section 14,
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(b) all related proceedings are terminated to the extent that they relate
to the dumping of those goods.
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(2) The relevant portion of subsection 35.1(2) reads as
follows:
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(2) The Deputy Minister shall cause notice of the termination under
paragraph (1)(a)
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Clause 19: Section 36 reads as follows:
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36. Where a reference is made to the Tribunal pursuant to paragraph
34(1)(b) and the Tribunal advises with respect to any of the goods that
are the subject of the reference that the evidence does not disclose a
reasonable indication that the dumping or subsidizing of those goods
has caused injury or retardation or is threatening to cause injury, the
Deputy Minister shall terminate the investigation in respect of those
goods forthwith after receipt of the advice and shall cause notice of the
termination to be given and published as provided in paragraph
34(1)(a).
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Clause 20: The relevant portion of section 37 reads as
follows:
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37. Where a reference is made to the Tribunal pursuant to section 33,
34 or 35 on any question in relation to any matter before the Deputy
Minister,
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Clause 21: Section 37.1 is new. The heading before
section 38 reads as follows:
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Clause 22: (1) and (2) The relevant portion of
subsection 38(1) reads as follows:
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38. (1) Subject to sections 39 and 40, after the fifty-ninth day and on
or before the ninetieth day following the initiation of an investigation
under section 31, the Deputy Minister shall make a preliminary
determination of dumping or subsidizing with respect to the goods in
respect of which the investigation has not been terminated pursuant to
section 35 or 36 and that there is evidence that discloses a reasonable
indication that the dumping or subsidizing has caused injury or
retardation or is threatening to cause injury after estimating and
specifying, in relation to each exporter of goods in respect of which the
investigation is made, as follows:
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(c) in the case of dumped or subsidized goods, specifying the name
of the person he believes, on the information available to him at the
time he makes the estimate referred to in paragraph (a)(i) or (b)(i),
as the case may be, is the importer in Canada of the goods.
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Clause 23: The relevant portion of subsection 39(1)
reads as follows:
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39. (1) Subject to section 40, where, in any investigation respecting
the dumping or subsidizing of goods, the Deputy Minister, before the
expiration of the ninety days referred to in subsection 38(1), causes
written notice to be given to the persons and the government referred to
in paragraph 34(1)(a) that by reason of
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Clause 24: Section 40 reads as follows:
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40. Where, in any investigation respecting the dumping or
subsidizing of goods, notice is given and published pursuant to
paragraph 35(2)(a), there shall not be counted as one of the ninety days
referred to in section 38 or as one of the one hundred and thirty-five days
referred to in subsection 39(1)
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(a) in any case where the question referred to in that paragraph is not
referred to the Tribunal, any of the thirty days referred to in
paragraph 35(2)(b); or
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(b) in any other case, any day in the period commencing on the day
following the date of the notice given pursuant to paragraph 35(2)(a)
and ending on the day on which the Tribunal renders its advice on
the question referred to in paragraph 35(2)(b).
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Clause 25: (1) and (2) The relevant portion of
subsection 41(1) reads as follows:
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41. (1) Within ninety days after making a preliminary determination
under subsection 38(1) in respect of goods imported from a country or
countries, the Deputy Minister shall
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(a) where, on the available evidence, the Deputy Minister is satisfied,
in relation to the goods from that country or countries in respect of
which the investigation is made, that
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(i) the goods have been dumped or subsidized,
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(ii) the margin of dumping of, or the amount of subsidy on, the
goods from that country or from any of those countries is not
insignificant, and
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(ii.1) either the actual or potential volume of dumped or
subsidized goods is not negligible,
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make a final determination of dumping or subsidizing with respect
to the goods after specifying, in relation to each exporter of goods
from that country or countries in respect of which the investigation
is made as follows:
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(3) Subsection 41(2) reads as follows:
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(2) The Deputy Minister shall not specify anything pursuant to
clause (1)(a)(iv)(C) where he is of the opinion that, having regard to the
country that is providing the export subsidy, the nature of the goods and
the circumstances under which the export subsidy is provided,
provision of the export subsidy in relation to those goods is not
inconsistent with that country's obligations under the international
agreement known as the General Agreement on Tariffs and Trade.
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Clause 26: (1) and (2) The relevant portion of
subsection 42(3) reads as follows:
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(3) In making or resuming its inquiry under subsection (1), the
Tribunal may make an assessment of the cumulative effect of the
dumping or subsidizing of goods to which the preliminary
determination applies that are imported into Canada from more than one
country if
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(b) an assessment of the cumulative effect would be appropriate
taking into account the conditions of competition between goods to
which the preliminary determination applies that are imported into
Canada from any of those countries and
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(i) goods to which the preliminary determination applies that are
imported into Canada from any other of those countries, or
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(ii) like goods of domestic producers.
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(3) New.
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(4) New.
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Clause 27: Section 45 reads as follows:
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45. (1) Where, as a result of an inquiry referred to in section 42
arising out of the dumping or subsidizing of any goods, the Tribunal
makes an order or finding described in any of sections 3 to 6 with respect
to those goods and the Tribunal is of the opinion that the imposition of
an anti-dumping or countervailing duty, or the imposition of such a duty
in the full amount provided for by any of those sections, in respect of the
goods would not or might not be in the public interest, the Tribunal shall,
forthwith after making the order or finding,
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(a) report to the Minister of Finance that it is of that opinion and
provide him with a statement of the facts and reasons that caused it
to be of that opinion; and
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(b) cause a copy of the report to be published in the Canada Gazette.
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(2) Where any person interested in an inquiry referred to in
subsection (1) makes a request to the Tribunal for an opportunity to
make representations to the Tribunal on the question whether the
Tribunal should, if it makes an order described in any of sections 3 to
6 with respect to any goods in respect of which the inquiry is being
made, make a report pursuant to paragraph (1)(a) with respect to those
goods, the Tribunal shall afford that person an opportunity to make
representations to the Tribunal on that question orally or in writing, or
both, as the Tribunal directs in the case of that inquiry.
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Clause 28: Subsection 47(1) reads as follows:
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47. (1) Subject to Part I.1 or II and subsections 76(2.1) and (2.2), an
order or finding made by the Tribunal with respect to any dumped or
subsidized goods, other than an order or finding described in any of
sections 3 to 6, terminates all proceedings under this Act respecting the
dumping or subsidizing of the goods.
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Clause 29: New.
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Clause 30: New.
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Clause 31: (1) The relevant portion of subsection
52(1) reads as follows:
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52. (1) Where, at any time after accepting an undertaking or
undertakings with respect to any dumped or subsidized goods that were
the subject of an investigation, the Deputy Minister
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(b) would not have accepted the undertaking or undertakings if the
information available at that time had been available when the
undertaking was accepted, or
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(c) would not have accepted the undertaking or undertakings if the
circumstances prevailing at that time had prevailed when the
undertaking was accepted,
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(2) and (3) The relevant portion of subsection 52(1.1)
reads as follows:
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(1.1) Where, at any time after the Deputy Minister accepts an
undertaking or undertakings with respect to any dumped or subsidized
goods that were the subject of an investigation,
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(a) there has been a determination under subsection 41(1) or section
41.1 that
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(iii) the actual or potential volume of dumped or subsidized goods
is negligible,
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(c) the Tribunal has, under subsection 76(4), (4.1) or (4.11) or
76.1(2), rescinded an order or finding with respect to the goods,
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(4) Subsection 52(1.2) reads as follows:
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(1.2) Except where the Tribunal has made an order or finding under
subsection 43(1) that the dumping or subsidizing of the goods to which
the preliminary determination applies has caused injury or retardation
or is threatening to cause injury, and that order or finding has not been
rescinded under subsection 76(4), (4.1) or (4.11) or 76.1(2), the Deputy
Minister shall terminate the undertaking or undertakings where, at any
time after accepting the undertaking or undertakings, the Deputy
Minister is satisfied that, notwithstanding the termination of the
undertaking or undertakings, the condition in paragraph 49(1)(a) or (b),
as the case may be, would no longer exist.
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Clause 32: (1) The relevant portion of subsection
53(1) reads as follows:
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53. (1) Except where the Tribunal has made an order or finding under
subsection 43(1) that the dumping or subsidizing of the goods to which
the preliminary determination applies has caused injury or retardation
or is threatening to cause injury and that order or finding has not been
rescinded under subsection 76(4), (4.1) or (4.11) or 76.1(2), the Deputy
Minister shall review the undertaking before the expiration of five years
from the date on which it was accepted and before the expiration of each
subsequent period, if any, for which it is renewed pursuant to this
section and if, on any such review, the Deputy Minister is satisfied
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(2) Subsection 53(2) reads as follows:
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(2) An undertaking that is not renewed for a further period pursuant
to a review under subsection (1) expires at the end of the period before
the expiration of which the review was required to be made.
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Clause 33: Section 57 reads as follows:
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57. A designated officer may re-determine any determination
referred to in subsection 56(1),
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(a) in accordance with a request made pursuant to subsection
56(1.01) or (1.1), or
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(b) in any case where he deems it advisable, within two years after
the determination,
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unless the Deputy Minister has previously re-determined the
determination pursuant to section 59.
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Clause 34: (1) and (2) The relevant portion of
subsection 59(1) reads as follows:
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59. (1) Subject to subsection (3), the Deputy Minister may
re-determine any determination or re-determination referred to in
section 55, 56 or 57 made in respect of any imported goods
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(c) at any time, if subsection 2(6) or section 26 applies or at any time
becomes applicable in respect of the goods;
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(3) New.
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(4) Subsection 59(2) reads as follows:
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(2) The Deputy Minister may re-determine any determination or
re-determination referred to in section 55, 56 or 57 made in respect of
any imported goods at any time for the purpose of giving effect to a
decision of a panel under Part I.1 or II with respect to the goods.
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(5) Subsection 59(3.1) reads as follows:
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(3.1) The Deputy Minister shall cause notice of each
re-determination under this section to be forwarded, by registered mail,
to the importer and, where the imported goods are goods of a NAFTA
country, to the government of that NAFTA country, to such persons as
may be prescribed and, if the re-determination gives effect to a decision
of a panel under Part I.1, to the Canadian Secretary.
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(6) Subsection 59(4) reads as follows:
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(4) The Deputy Minister shall cause notice of each re-determination
under this section to be forwarded, by registered mail, to the importer
and, where the imported goods are goods of the United States, to the
United States government, to such persons as may be prescribed and,
if the re-determination gives effect to a decision of a panel under Part
II, to the Canadian Secretary.
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Clause 35: Subsection 61(2) reads as follows:
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(2) Notice of the hearing of an appeal under subsection (1) shall be
published in the Canada Gazette at least twenty-one days prior to the
day of the hearing, and any person who on or before that day enters an
appearance with the Secretary of the Tribunal may be heard on the
appeal.
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Clause 36: Sections 76.01 to 76.04 are new. Section
76 and the heading before it read as follows:
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76. (1) Subject to subsection 61(3) and Part I.1 or II, an application
for judicial review of an order or finding of the Tribunal under this Act
may be made to the Federal Court of Appeal on any of the grounds set
out in subsection 18.1(4) of the Federal Court Act.
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(2) At any time after the making of an order or finding described in
any of sections 3 to 6, the Tribunal may, on its own initiative or at the
request of the Deputy Minister or any other person or of any
government, review the order or finding and, in the making of the
review, may re-hear any matter before deciding it.
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(2.1) Where the Tribunal receives notice of action taken pursuant to
paragraph 41.1(1)(a) or (2)(a) in respect of goods to which an order or
finding of the Tribunal, other than an order or finding described in any
of sections 3 to 6, applies, the Tribunal may, on its own initiative or at
the request of the Deputy Minister or any other person or of any
government, review the order or finding and, in making such a review,
may rehear any matter before deciding it.
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(2.2) Where an order or finding of the Tribunal is referred back to the
Tribunal under subsection 77.015(3) or (4) or 77.019(5), or under
subsection 77.15(3) or (4) or 77.19(4), the Tribunal shall review the
order or finding and, in making such a review, may re-hear any matter
before deciding it.
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(3) The Tribunal shall not initiate any review pursuant to subsection
(2) or (2.1) at the request of any person or government unless the person
or government satisfies the Tribunal that a review is warranted.
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(3.1) Where the Tribunal decides not to initiate a review pursuant to
subsection (2) at the request of a person or government, the Tribunal
shall make an order to that effect and give reasons therefor, and the
Secretary shall forward a copy of the order and the reasons by registered
mail to that person or government and cause notice of the order to be
published in the Canada Gazette.
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(4) On completion of a review pursuant to subsection (2) of an order
or finding, the Tribunal shall make an order rescinding the order or
finding or continuing it with or without amendment, as the
circumstances require, and give reasons for the decision.
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(4.1) On completion of a review pursuant to subsection (2.1) or (2.2)
of an order or finding, the Tribunal shall confirm the order or finding or
rescind it and make such other order or finding with respect to the goods
to which the order or finding under review applies as the nature of the
matter may require, shall give reasons for the decision and, where it
makes another order or finding, shall declare to what goods, including,
where applicable, from what supplier and from what country of export,
the order or finding applies.
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(4.11) Where a review pursuant to subsection (2.1) involves goods
of
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(a) more than one NAFTA country, or
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(b) one or more NAFTA countries and goods of one or more other
countries
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and the Tribunal makes another order or finding pursuant to subsection
(4.1), the Tribunal shall make a separate order or finding under that
subsection with respect to the goods of each NAFTA country.
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(4.12) The operation of subsection (4.2) is suspended during the
period in which subsection (4.11) is in force.
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(4.2) Where a review pursuant to subsection (2.1) involves goods of
the United States as well as goods of other countries and the Tribunal
makes another order or finding pursuant to subsection (4.1), the
Tribunal shall make a separate order or finding under that subsection
with respect to the goods of the United States.
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(4.3) On completion of a review pursuant to subsection (2), (2.1) or
(2.2), the Secretary shall
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(a) forward by registered mail to the Deputy Minister, such other
persons and such governments as may be specified by the rules of the
Tribunal and, in the case of a review under subsection (2.2), the
Canadian Secretary,
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(i) forthwith after the review is completed, a copy of the order or
finding made under subsection (4) or (4.1), as the case may be,
and
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(ii) not later than fifteen days after the completion of the review,
a copy of the reasons for the decision; and
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(b) cause notice of the order or finding to be published in the Canada
Gazette.
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(5) Where the Tribunal has not initiated a review pursuant to
subsection (2) with respect to an order or finding before the expiration
of five years after,
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(a) if no order continuing the order or finding has been made
pursuant to subsection (4), the day on which the order or finding was
made, or
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(b) if one or more orders continuing the order or finding have been
made pursuant to subsection (4), the day on which the last such order
was made,
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the order or finding shall be deemed to have been rescinded as of the
expiration of the five years.
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Clause 37: (1) The relevant portion of subsection
76.1(1) reads as follows:
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76.1 (1) Where at any time after the issuance, by the Dispute
Settlement Body established pursuant to Article 2 of Annex 2 to the
WTO Agreement, of a recommendation or ruling, the Minister of
Finance considers it necessary to do so, having regard to the
recommendation or ruling, the Minister of Finance may request that
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(a) the Deputy Minister review any decision or determination or any
portion of a decision or determination made under this Act; or
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(2) and (3) Subsections 76.1(2) to (4) read as follows:
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(2) On completion of a review under subsection (1), the Deputy
Minister or the Tribunal, as the case may be, shall
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(a) continue the decision, determination, order or finding without
amendment;
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(b) continue the decision, determination, order or finding with such
amendments as the Deputy Minister or the Tribunal, as the case may
be, considers necessary; or
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(c) rescind the decision, determination, order or finding and make
such other decision, determination, order or finding as the Deputy
Minister or the Tribunal, as the case may be, considers necessary.
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(3) Where a decision, determination, order or finding is continued
under paragraph (2)(a) or (b) or made under paragraph (2)(c), the
Deputy Minister or the Tribunal, as the case may be, shall give reasons
therefor and shall set out to what goods, including, where practicable,
the name of the supplier and the country of export, the decision,
determination, order or finding applies.
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(4) The Deputy Minister or the Tribunal, as the case may be, shall
notify the Minister of Finance of any decision, determination, order or
finding continued under paragraph (2)(a) or (b) or made under
paragraph (2)(c).
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(4) Subsection 76.1(5) reads as follows:
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(5) Any decision or determination continued by the Deputy Minister
under paragraph (2)(b) or made by the Deputy Minister under
paragraph (2)(c) is deemed to have been made under
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(a) paragraph 41(1)(a), where the decision or determination was
continued or made as a result of a review under this section of a final
determination of the Deputy Minister under that paragraph;
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(b) paragraph 41(1)(b), where the decision or determination was
continued or made as a result of a review under this section of a
decision of the Deputy Minister under that paragraph to cause an
investigation to be terminated; or
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(c) subsection 53(1), where the decision or determination was
continued or made as a result of a review under this section of a
decision of the Deputy Minister under that subsection to renew or not
to renew an undertaking.
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Clause 38: (1) The definition ``Minister'' in subsec
tion 77.01(1) reads as follows:
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``Minister'' means the Minister for International Trade;
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(2) Paragraph 77.01(1)(f.1) is new. The relevant
portion of the definition ``definitive decision'' in
subsection 77.01(1) reads as follows:
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``definitive decision'' means
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(g) an order of the Tribunal under subsection 76(3.1),
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(h) an order of the Tribunal under subsection 76(4),
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(i) an order or finding of the Tribunal under subsection 76(4.1)
respecting a review pursuant to subsection 76(2.1), or
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Clause 39: Subsection 77.012(1) reads as follows:
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77.012 (1) No person or government may apply under the Federal
Court Act or section 96.1 of this Act or appeal under section 61 of this
Act in respect of a definitive decision
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(a) before the expiration of the limitation period established by
paragraph 4 of Article 1904 of the North American Free Trade
Agreement for requesting a review of the decision; and
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(b) unless the person or government has, within twenty days after the
day on which that limitation period commences, given notice of the
intention to make such an application or appeal in writing to the
Canadian Secretary and the appropriate NAFTA country Secretary
and in the prescribed manner to any other person who, but for this
section, would be entitled to so apply or appeal.
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Clause 40: (1) The definition ``Minister'' in subsec
tion 77.1(1) reads as follows:
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``Minister'' means the Minister for International Trade;
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(2) Paragraph 77.1(1)(f.1) is new. The relevant portion
of the definition ``definitive decision'' in subsection
77.1(1) reads as follows:
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``definitive decision'' means
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(g) an order of the Tribunal under subsection 76(3.1),
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(h) an order of the Tribunal under subsection 76(4),
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(i) an order or finding of the Tribunal under subsection 76(4.1)
respecting a review pursuant to subsection 76(2.1), or
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Clause 41: Subsection 77.12(1) reads as follows:
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77.12 (1) No person or government may apply under section 18 or
28 of the Federal Court Act or section 96.1 of this Act or appeal under
section 61 of this Act in respect of a definitive decision
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(a) before the expiration of the limitation period established by
paragraph 4 of Article 1904 of the Free Trade Agreement for
requesting a review of the decision; and
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(b) unless the person or government has, within twenty days after the
day on which that limitation period commences, given notice of the
intention to make such an application or appeal in writing to the
Canadian Secretary and the American Secretary and in the
prescribed manner to any other person who, but for this section,
would be entitled to so apply or appeal.
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Clause 42: (1) and (2) The relevant portion of
subsection 78(1) reads as follows:
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78. (1) Where,
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(a) in any investigation under this Act respecting the dumping or
subsidizing of goods, or
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the Deputy Minister believes on reasonable grounds that any person in
Canada is able to provide evidence relevant to the investigation or to the
making, for the purpose of facilitating the administration or
enforcement of this Act, of an estimate of the duty that will or may be
payable on the goods when imported into Canada, the Deputy Minister
may, by notice in writing, require the person to provide the Deputy
Minister, under oath or otherwise, with the evidence referred to in the
notice.
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Clause 43: Subsection 81(1) reads as follows:
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81. (1) Notwithstanding anything in this Act, where any duty
payable under this Act in respect of goods has not been paid within
thirty days after a demand for payment of the duty has been made
pursuant to this Act, the Minister may, by notice in writing, require any
person in Canada to whom the goods are sold to pay a sum in respect
of the duty not exceeding the amount of the duty payable in respect of
the goods sold to that person, which sum is, after the notice has been
given, a debt due and payable to Her Majesty by that person and may
be recovered at any time by action in any court of competent
jurisdiction, together with costs of the action.
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Clause 44: Subsection 84(3.1) is new. Subsections
84(2) and (3) read as follows:
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(2) Subsection (1) does not apply in respect of any summary of
information or statement referred to in paragraph 85(1)(b) or any
summary referred to in subsection 79(2).
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(3) Notwithstanding subsection (1), information to which that
subsection applies that has been provided to the Deputy Minister in any
proceedings under this Act may be disclosed by the Deputy Minister to
counsel for any party to those proceedings or to other proceedings
under this Act arising out of those proceedings for use by that counsel
only in those proceedings or other proceedings, subject to such
conditions as the Deputy Minister considers are reasonably necessary
or desirable to ensure that the information will not, without the written
consent of the person who submitted it to the Deputy Minister, be
disclosed to any person by counsel in any manner that is calculated or
likely to make it available to
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(a) any party to the proceedings or other proceedings, including a
party who is represented by that counsel; or
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(b) any business competitor or rival of any person to whose business
or affairs the information relates.
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Clause 45: New.
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Clause 46: The relevant portion of subsection 89(1)
reads as follows:
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89. (1) Where a question arises or is raised as to which of two or more
persons is, for the purposes of this Act, the importer in Canada of goods
imported or to be imported into Canada on which duty is payable or has
been paid or will be payable if the goods are imported, the Deputy
Minister may, and at the request of any person interested in the
importation of the goods shall, request the Tribunal for a ruling on that
question, unless, in the case only of goods that have been imported into
Canada,
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(a) a determination has been made pursuant to section 55 or
subsection 56(1) with respect to the goods; and
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Clause 47: Paragraphs 96.1(1)(c.1) and (d.1) are new.
The relevant portion of subsection 96.1(1) reads as
follows:
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96.1 (1) Subject to section 77.012 or 77.12, an application may be
made to the Federal Court of Appeal to review and set aside
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(d) an order of the Tribunal under subsection 76(3.1);
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(e) an order of the Tribunal under subsection 76(4);
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(f) an order or finding of the Tribunal under subsection 76(4.1)
respecting a review pursuant to subsection 76(2.1); or
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Clause 48: Subsection 96.21(1) reads as follows:
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96.21 (1) The Minister for International Trade may, in the manner
provided for by the law of a NAFTA country giving effect to the North
American Free Trade Agreement, request that a final determination be
reviewed by a panel established under that law.
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Clause 49: Subsection 96.3(1) reads as follows:
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96.3 (1) The Minister for International Trade may, in the manner
provided for by the American law giving effect to the Free Trade
Agreement, request that a final determination be reviewed by a panel
established under that law.
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Clause 50: New.
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Clause 51: (1) to (5) Paragraphs 97(1)(k.3) to (k.6) are
new. The relevant portion of subsection 97(1) reads as
follows:
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97. (1) The Governor in Council may, on the recommendation of the
Minister of Finance, make regulations
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(a.1) prescribing the factors that may be considered in determining
whether the dumping or subsidizing of any goods has caused injury
or retardation or is threatening to cause injury;
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(b) specifying the circumstances and manner in which
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(i) two or more dumping investigations,
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(ii) two or more subsidy investigations, or
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(iii) one or more dumping investigations and one or more subsidy
investigations,
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may be joined and carried on as one and the persons to whom and the
manner in which notice of the joining shall be given;
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(e) defining the expressions ``cost of production'', ``a reasonable
amount for administrative, selling and all other costs'' and ``a
reasonable amount for profits'' for the purpose of paragraph 19(b)
or subparagraph 20(c)(ii);
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(f) defining the expression ``an amount for profit'' for the purpose of
subparagraph 25(c)(ii) or 25(d)(i);
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(g) defining the expression ``person interested'' for the purpose of
subsection 45(2) or section 89 or 95;
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(k.2) providing for the manner of making adjustments to export
prices in situations of sustained movement in the rate of exchange;
and
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Clause 53: (1) The definition ``Chairman'' in subsec
tion 2(1) reads as follows:
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``Chairman'' means the Chairman of the Tribunal;
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(2) New.
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Clause 54: Subsection 3(1) reads as follows:
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3. (1) There is hereby established a tribunal, to be known as the
Canadian International Trade Tribunal, consisting, subject to
subsection (2), of a Chairman, two Vice-Chairmen and not more than
six other permanent members to be appointed by the Governor in
Council.
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Clause 55: Subsection 8(1) reads as follows:
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8. (1) In the event of the absence or incapacity of the Chairman or if
the office of Chairman is vacant, the Tribunal may authorize one of the
Vice-Chairmen to act as Chairman for the time being, and a
Vice-Chairman so authorized has and may exercise and perform all the
powers, duties and functions of the Chairman.
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Clause 56: Subsection 9(1) reads as follows:
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9. (1) Subject to subsection (2), a person who has ceased to be a
member may, with the authorization of the Chairman, take part in the
disposition of any matter in which that person became engaged while
holding office as a member, and a person so authorized shall, for that
purpose, be deemed to be a member of the Tribunal.
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Clause 57: (1) and (2) The relevant portion of
subsection 26(5) reads as follows:
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(5) The Tribunal may commence an inquiry under subsection (1)
into a complaint that pursuant to subsection (4) is referred to the Deputy
Minister of National Revenue for consideration under the Special
Import Measures Act only if
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(a) the Deputy Minister does not initiate an investigation under that
Act respecting the dumping or subsidizing of the goods that are the
subject of the complaint or initiates such an investigation but
terminates the investigation pursuant to section 35, 36 or 41 of that
Act; and
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(b) the complainant applies to the Tribunal to commence an inquiry
under subsection (1)
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(ii) in the case where the Deputy Minister initiates such an
investigation but terminates the investigation pursuant to section
35, 36 or 41 of that Act, within thirty days after the date of the
notice sent to the complainant pursuant to section 35, 36 or 41 of
that Act advising the complainant of the termination of the
investigation.
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Clause 58: (1) and (2) The relevant portion of
subsection 28(2) reads as follows:
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(2) Where, pursuant to subsection (1), the Tribunal adjourns an
inquiry into a complaint and refers the complaint to the Deputy Minister
of National Revenue for consideration under the Special Import
Measures Act, the Tribunal shall resume the inquiry only if
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(a) the Deputy Minister does not initiate an investigation under that
Act respecting the dumping or subsidizing of the goods that are the
subject of the complaint or initiates such an investigation but
terminates the investigation pursuant to section 35, 36 or 41 of that
Act; and
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(b) the complainant applies to the Tribunal to resume the inquiry
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(ii) in the case where the Deputy Minister initiates such an
investigation but terminates the investigation pursuant to section
35, 36 or 41 of that Act, within thirty days after the date of the
notice sent to the complainant pursuant to section 35, 36 or 41 of
that Act advising the complainant of the termination of the
investigation.
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Clause 59: (1) Subsections 45(3.1) and (3.2) are new.
Subsection 45(3) reads as follows:
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(3) Notwithstanding subsection (1), information to which that
subsection applies that has been provided to the Tribunal in any
proceedings before the Tribunal may be disclosed by the Tribunal to
counsel for any party to those proceedings or to other proceedings
arising out of those proceedings for use by that counsel only in those
proceedings, subject to such conditions as the Tribunal considers are
reasonably necessary or desirable to ensure that the information will
not, without the written consent of the person who provided the
information to the Tribunal, be disclosed by counsel to any person in
any manner that is calculated or likely to make it available to
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(a) any party to the proceedings or other proceedings, including a
party who is represented by that counsel; or
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(b) any business competitor or rival of any person to whose business
or affairs the information relates.
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(2) New.
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Clause 60: Section 49 reads as follows:
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49. Where
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(a) information given or elicited in the course of any proceedings
before the Tribunal is, in the opinion of the Tribunal, in its nature
confidential, or
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(b) the Deputy Minister of National Revenue indicates to the
Tribunal in writing that subsection 84(1) of the Special Import
Measures Act applies to information filed with the Secretary
pursuant to paragraph 38(3)(b) of that Act,
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the information shall not knowingly be disclosed by any member or
person employed in the public service of Canada who comes into
possession of the information in any manner that is calculated or likely
to make it available for the use of any business competitor or rival of any
person to whose business or affairs the information relates.
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