Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



One Potato, Two Potato, Three Potato, Four - Five More Years of AD Duties

On September 13, 2010, the Canadian International Trade Tribunal (CITT or Tribunal) provided the reasons for its decision to maintain anti-dumping duties against whole potatoes originating in or exported from the United States of America into the regional market of British Columbia. Subject goods are whole potatoes, excluding seed potatoes, excluding imports during the period from May 1 to July 31, inclusive, of each calendar year, and excluding red potatoes, yellow potatoes and the exotic potato varieties, regardless of packaging, and white and russet potatoes imported in 50-lb. cartons in the following count sizes: 40, 50, 60, 70 and 80, imported from the United States of America, for use or consumption in the province of British Columbia."

Antidumping duties have been in place since June 4, 1984. This was the fifth expiry review proceeding with respect to the finding of the Anti-dumping Tribunal (ADT), made on June 4, 1984, in Inquiry No. ADT-4-84, and the finding of the Canadian Import Tribunal (CIT) made on April 18, 1986, in Inquiry No. CIT-16-85, concerning certain whole potatoes.

What is most interesting about this decision is the procedural commentary about late filed expert reports being rejected, procedural drama concerning the lack of a witness statement filed by a party to the proceeding, aids to argument containing new evidence, late filed product exclusion requests, etc. To obtain a copy of the decision, please go to the following link - http://www.citt.gc.ca/dumping/reviews/orders/rr2j002_e.asp

Here are just a few of the CITT's remarks taken from the decision:

  • ...after having considered the WSPC’s request that Mr. Harris appear as a lay witness at the hearing and the BCVMC's reply submission further to this request, the Tribunal granted Mr. Harris leave to appear as a lay witness on the condition that a witness statement be filed no later than July 15, 2010. The Tribunal considered that, in order to provide the WSPC with a fair and meaningful opportunity to participate in this expiry review, it was appropriate to allow it to file evidence. Indeed, natural justice and procedural fairness considerations dictate that parties in proceedings before the Tribunal should have the right to present evidence.
  • On July 21, 2010, the Tribunal informed parties that it would not accept Dr. Guenthner’s reports as expert evidence. However, the reports would remain on the record as supporting evidence and given the weight that they deserve. The Tribunal determined that the reports could not be accepted as expert evidence, since the WSPC had not indicated any intention to call Dr. Guenthner as an expert witness at the hearing or otherwise qualify him as an expert pursuant to the Canadian International Trade Tribunal Rules. Furthermore, Dr. Guenthner’s reports were filed with the Tribunal less than 20 days before the hearing, contrary to subrule 22(1) of the Rules. Although Dr. Guenthner’s reports form part of the record and are admissible as non-expert evidence in support of Mr. Harris's testimony, the Tribunal accords little weight to these reports because the WSPC did not make Dr. Guenthner available for cross-examination at the hearing, thereby depriving the BCVMC of the opportunity to test this evidence.
  • These provisions make it clear that a party that intends to call an expert at a hearing must file a report signed by the proposed expert not less than 20 days before the hearing. Subrule 22(2) of the Rules also requires that a meaningful opportunity be afforded to the opposing party to rebut expert evidence by providing it with the right to file its own expert report well before the hearing.
  • However, the Tribunal informed the parties that it accepted Dr. Mussell’s witness statement on the basis that he would appear at the hearing as a lay witness and be available for cross-examination by the WSPC. Despite the Tribunal's ruling with regard to Dr. Mussel, at the hearing, the BCVMC attempted to call Dr. Mussell as an expert witness. The WSPC objected, and the Tribunal had to reiterate its previous ruling that Dr. Mussell's witness statement was filed late and that, therefore, the Tribunal could not allow him to testify as an expert witness.
  • The WSPC submitted that the aid to argument may include new evidence and referred in particular to various graphs and charts that the BCVMC prepared on the basis of information allegedly already on the record. ... After reviewing the aid to argument in detail, the Tribunal found that, while it does not appear to introduce new evidence, it does not contain calculations that were not presented during the evidence portion of the hearing. In any event, rather than rely on this document in its deliberations, the Tribunal conducted its own analysis of the evidence before it.
  • As the request for a product exclusion made by the WSPC was filed beyond that deadline, the Tribunal informed parties, on July 12, 2010, of its decision not to accept this request. Accordingly, the Tribunal did not give any consideration to this late request for product exclusion in the present expiry review.

While not wishing to sound like an elitist trade lawyer in Canada, it appears that part of the problem in this case relates to the fact that the usual trade counsel were not involved in this case. Lawyers who were not as experienced in appearing before the Canadian International Trade Tribunal found themselves in difficulties. The difficulties were compounded by the short time frames and deadlines in SIMA cases.

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