Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Would You Like to Appeal a SIMA Decision Relating to Aluminum Extrusions?

On March 17, 2009, the Canadian International Trade Tribunal (“CITT”) made an injury finding in respect of certain aluminum extrusions originating in or exported from China (NQ-2008-003) and issued an order to collect antidumping and countervailing duties.  On April 1, 2009, the CITT issued its reasons for its decision.

Since March 17, 2009, the Canada Border Services Agency (“CBSA”) has been tasked with enforcing the CITT’s order and has been very busy.  Many importers who import a variety of goods from parts of outdoor railings to door frames to window frames to aluminum parts have been under the watchful eye of the CBSA.  The CBSA have followed up on imports of all things aluminum and have issued many detailed adjustment statements (also known as “assessments”) imposing unpaid SIMA duties, GST and interest.  The antidumping duties are currently 101% and the countervailing duties are calculated based on 15.84 RMB/kg. This adds up to a lot of money.

Many importers have filed requests for redetermination with the CBSA (also known as an appeal).  The CBSA will be working through this backlog of appeals and will be issuing decisions.  Some importers will be lucky and the SIMA duties and interest will be reversed.  Many may not be so lucky and the CBSA will confirm the initia determination that subject goods were imported.  If this should happen, the importer would have a right of appeal to the CITT.

Pursuant to subsection 61(1) of the Special Import Measures Act (“SIMA”), a person who deems himself aggrieved by a re-determination of the President of the CBSA made pursuant to section 59 of SIMA in respect of any goods may appeal the redetermination to the CITT by filing a notice of appeal within 90 days of the date of the re-determination.  A copy of the appeal must be sent to the CITT and the President of the CBSA – do not forget to send to both.

The CITT has a publication on its web-site regarding the process for filing an appeal and the steps in an appeal.  As previously mentioned, the importer files an appeal within 90 days of the CBSA’s re-determination.  The importer must file with the Tribunal an Appellant’s Brief within 60 days of filing the appeal (the CITT usually writes to the importer and gives them the filing deadline).  The appellant’s brief must state that the appeal is being filed pursuant to the Special Import Measures Act.  In addition, the importer must give a description of the goods at issue (so that the CITT knows what they are dealing with), indicate the points at issue between the appellant and the CBSA (e.g., the goods are not subject goods) and the reasons why the appellant thinks the CBSA is incorrect.  This is where the appellant may need the assistance of a lawyer because it is important to frame the issues and reasons clearly and properly.

The CBSA files their responding brief 60 days after the appellant files their brief.  Usually, the appellant is permitted to file a reply brief and respond to what the CBSA has written in their responding brief.

After the briefs are filed, a hearing is scheduled.  There may be pre-hearing conference calls.  There may be experts’ reports.  There may be the filing of physical exhibits and laboratory analysis relating to the goods.

Three members of the CITT sit as the “judges” at the hearing.  Witness testimony is presented at the hearing and after the oral evidence is presented, the parties (or their counsel) will argue points of law. This is where lawyers who are knowledgeable in antidumping and countervailing duty law can be helpful.  Some trade lawyers were potentially involved in (1) the original CITT proceedings or (2) a reinvestigations by the CBSA or (3) an appeal or (4) an interim review.  I have been involved in all of the above.

If you require assistance, please call me at 416-389-8999.

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