Many-QuestionsCanada’s Minister of Public Safety and Emergency Preparedness (Ralph Goodale) is responsible for the Canada Border Services Agency (“CBSA”).  On September 20, 2016, Minister Goodale was asked about the antidumping case against gypsum board from the United States being imported/consumed/used in Western Canada (British Columbia, Alberta, Saskatchewan, Manitoba, Yukon and Northwest Territories).  Minister Goodale made the following statements in the House of Commons:

Question: Mr. David Yurdiga (Fort McMurray—Cold Lake, CPC) :

“Mr. Speaker, last week, residents who lost their homes in Fort McMurray wildfires were shocked to learn that rebuilding their homes is going to cost a lot more. A recent Liberal decision to put a 276% tax on drywall will raise the cost of a home rebuild in Fort McMurray by thousands of dollars.  When will the Liberals reverse this short-sighted decision and quit punishing Fort McMurray residents, who have already suffered enough?”
Answer (Minister Goodale): “Mr. Speaker, in accordance with the relevant legislation, allegations of dumping and subsidization are investigated based on complaints that are received. When those complaints are received, there is a decision-making period that takes about 90 days. Then if the decision is subject to objection, it can be referred to the Canadian International Trade Tribunal.  The law needs to be applied.”

Question:  Mr. Randy Hoback (Prince Albert, CPC):

“Mr. Speaker, this surprise tax on drywall into western Canada is a real issue for Canadian businesses. We have been hearing from western Canadian contractors, drywallers, and other small construction businesses that this tax will affect their bottom line and lead to job losses.    With no jobs to spare in western Canada right now, what will the Liberals do to ensure that more jobs are not lost as a result of the decision to tax U.S. drywall?”
Answer (Minister Goodale): “Mr. Speaker, when there has been an allegation of dumping, the decision needs to follow the appropriate process. We will ensure that that process is followed in the most expeditious manner to get a proper decision.  As I say, there is a procedure in place to receive complaints and objections. That is the International Trade Tribunal, which stands ready to receive the matter and to hear all of the competing points of view.”
I am not suggesting in any way that Minister Goodale has mislead Parliament – let me be clear on that point. However, Minister Goodale is misinformed about how Canada’s antidumping laws work.  Minister Goodale is correct that the CBSA receives complaints from the domestic industry.  However, there is no process for objections to complaints to be considered by the Canadian International Trade Tribunal (“CITT”). The CITT is mandated under law to conduct a preliminary injury inquiry and an injury inquiry. The CITT’s mandate in a preliminary injury inquiry is to determine “whether the evidence discloses a reasonable indication that the dumping or subsidizing of the [subject] goods has caused injury or retardation or is threatening to cause injury.”   The CITT’s mandate in an injury inquiry is to inquire as to whether the dumping or subsidizing of the subject goods has caused injury or retardation or is threatening to cause injury to the domestic industry, which is defined by reference to the domestic production of “like goods”.
The CITT has stated on many occasions that it does not have authority to change the product scope. In the Line Pipe case (PI-2015-002), the CITT stated:
“It is well established that the Tribunal must conduct its preliminary injury inquiry on the basis of the CBSA’s product definition of the dumped or subsidized goods. This means that the Tribunal cannot, on its own initiative, modify or redefine the definition of the subject goods. Accordingly, the allegation that the product definition includes standards or specifications that do not relate to line pipe and should therefore be excluded from the scope of the subject goods is a matter that falls under the CBSA’s exclusive jurisdiction.”
The CITT has also said that it cannot consider product exclusion requests during the preliminary injury inquiry (Gypsum Board (PI-2016-001):
“60. The Tribunal received one request from CBP to exclude products from a preliminary determination of injury or threat of injury. The proposed exclusion request was for shipments of 5,000 square feet or less. The exclusion was opposed by CertainTeed.
61. While SIMA does not expressly authorize the Tribunal to grant exclusions from the scope of an order or finding, this authority is implicit.
62.Exclusions are an extraordinary remedy that may be granted only when the Tribunal is of the view that granting the exclusion will not cause injury or threat of injury to the domestic industry Applying this principle entails determining whether imports of the specific goods for which exclusions are requested have not caused and are not threatening to cause injury, despite the general conclusion that the dumping of the subject goods have caused or threaten to cause injury to the domestic industry.
63. As stated in the notice of commencement of this preliminary injury inquiry, the Tribunal generally does not consider product exclusion requests at this stage. Although it may deviate from this standard practice in “exceptional circumstances” the evidence relating to the product exclusion request made in this preliminary injury inquiry does not disclose exceptional circumstances. For those reasons, the Tribunal will not deal with this exclusion request at this time, as it does not meet the standard required for being adjudicated at this stage of the proceedings and is therefore premature.
64. In light of the above, the Tribunal will entertain product exclusions at the final injury inquiry under section 42 of SIMA only. At that stage, the Tribunal will be in a position to properly assess evidence from any and all interested parties on whether or not granting an exclusion will cause injury or threat of injury to the domestic industry. CBP should file a new exclusion request in the course of the final injury inquiry under section 42 of SIMA using the appropriate form and providing all the information and evidence required for such purposes during a final injury inquiry.”
The domestic industry files submissions in support of an injury finding and the parties opposed file submissions and evidence.  There is no objection phase to the proceeding.  It is very rare for the CITT to terminate proceedings at the preliminary injury inquiry phase – it has only happened in one case.  There is also no expedited procedure for conducting injury inquiries.
For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or