Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Canada's CITT Makes It Clear That The Scope Of A Finding Cannot Be Expanded In Expiry Review

On January 6, 2010, the Canadian International Trade Tribunal (CITT) issued its Reasons in the expiry review inquiry in respect of Certain Fasteners (RR-2009-001).  In this decision, the CITT made important statements about its powers in an expiry review.

In short, the Finding under review covered thousands of types of screws.  In the original inquiry in 2004, the Complainants had agreed to a number of exclusions (i.e., aster screws, decor screws, drawer handle screws and connector screws) and those exclusions were granted.  As a result, the CITT's inquiry was terminated with respect to the excluded screws and, therefore, the finding did not cover the excluded screws betwwen 2005 and 2010.

However, at the time of the expiry review, the Complainants indicated that they changed their minds and wanted the CITT to indicate the excluded screws are now subject to the AD/CVD duties (at the rate of 170% + CVD rates, where applicable). 

Prior to the hearing, the CITT rejected the Complainants' request and indicated that they would provide reasons at a later date.  In the January 6, 2010 Reasons, the CITT states:

53.  In the Tribunal’s opinion, it is clear that the request by Leland, Visqué and Standard Fasteners is simply a request to expand the scope of the goods covered by its findings in Inquiry No. NQ-2004-005. However, as the Tribunal stated in Carbon Steel Plate, goods that have been excluded cannot subsequently be covered by an expiry review:

It is clear, based on the words “order or finding described in any of sections 3 to 6” in the English version of subsection 76(2) of SIMA [now subsection 76.03(3)] and the words “une ordonnance ou des conclusions rendues en vertu des articles 3 à 6” in the French version of subsection 76(2), that a review is limited to an order or finding described in sections 3 to 6. . . . 

. . . 

Section 3 of SIMA refers to duties being levied, collected and paid on dumped and subsidized goods in respect of which the Tribunal has made an order or finding of injury, retardation or threat of injury. Thus, the wording of section 3 specifically refers to goods in respect of which the Tribunal has made an injury finding and not to all goods subject to the order or finding generally. It is this distinction which lies at the heart of the issue before the Tribunal. With respect to the specific exclusions before the Tribunal in this motion, it cannot be said that the Tribunal has made an injury finding in respect of the goods covered by these exclusions. It follows that these goods are, therefore, not described in section 3 and, thus, they cannot be subject to review under subsection 76(2).

. . .

The Tribunal is of the view that, in a review, it has the power to rescind or continue an order or finding against some or all of the goods subject to the order or finding, but it does not have the power to increase or expand the scope of its review beyond the goods covered by the order or finding being reviewed. With respect to exclusions, this means that, if the Tribunal continues an order or finding, it may leave an exclusion as it is or may exclude additional goods. If domestic producers subsequently become concerned about imports of goods that are subject to an exclusion, they may consider filing a new complaint in respect of such goods with the Department of National Revenue. For the above reasons, the Tribunal concludes that it does not have the power, in this review, to consider including, in any order that it may make continuing the finding in Inquiry No. NQ-92-007, subject plate exceeding 3.125 inches in thickness or PVQ plate, which were excluded from the Tribunal’s injury finding.

54. Leland, Visqué and Standard Fasteners seek to distinguish the facts of the present case from those which existed in Carbon Steel Plate on the basis that, in the latter, certain goods were excluded as broad classes or categories of goods, whereas, in the present case, the specified items are individual items that are within the classes of goods comprising carbon steel screws and stainless steel screws. The Tribunal is of the view that this is not a valid distinction. Goods are either excluded or not excluded. The Tribunal’s findings in Inquiry No. NQ-2004-005 specifically excluded the specified items. Therefore, the specified items are not goods “. . . in respect of which the Tribunal has made an order or finding . . .” under sections 3 to 6 of SIMA and cannot be the subject of the current expiry review.

55. Leland, Visqué and Standard Fasteners have argued that, since, in their view, the exclusions were granted based on Leland’s consent, that consent can now be withdrawn. This argument does not have merit. Once the Tribunal has made an order, the fact that a party may have changed its position on whether the order should have been made is irrelevant.

56. In light of the foregoing, the Tribunal does not grant the request. 

As far as Canada is concerned, this issue seems to be well settled.  Other jurisdications may look at this case as an authority.

 

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