Gypsum BoardThis has never happened before.  This is very important.  Trade lawyers outside Canada (and inside Canada) will be shocked by the steps being taken in Canada during an active antidumping proceeding.

On October 16, 2016, the Department of Finance asked the Canadian International Trade Tribunal to commence a section 18 (of the Canadian International Trade Tribunal Act) reference concerning the effect of preliminary and final antidumping duties on gypsum board (also called drywall and wall board) from the United States into Western Canada (British Columbia, Alberta, Saskatchewan, Manitoba and the Yukon and Northwest Territories). The antidumping proceedings at the center of the request are the Canada Border Services Agency (“CBSA”) dumping investigation that commenced on June 8, 2016 and the Canadian International Trade Tribunal (“CITT”) injury inquiry that commenced on September 6, 2016.  The CITT issued a preliminary determination of injury on August 8, 2016. On September 9, 2016, the CBSA made a preliminary determination of dumping and imposed antidumping duties at rates ranging from 105.2% – 276.5%. On September 28, 2016, the CBSA released its reasons for the preliminary determination of dumping.

The preliminary duties at 275.6% have been difficult for many Canadians, especially in Fort McMurray, Alberta and other communities which have experienced forest fires and flooding.  The Department of Finance has responded to the concerns that have been raised about the increases in prices of drywall and the lack of supply of drywall in Western Canada.  The Department of Finance states:

“Concerns were raised that anti-dumping duties on imported drywall were leading to price increases and supply shortages of the product. Imposed to address unfair trade, these duties may be having unintended impacts, including delays in the reconstruction of Fort McMurray.”

This is important. This statement recognizes that antidumping duties can hurt consumers.

On October 17, 2016, the CITT commenced a reference inquiry in response to the Department of Finance request.  What is happening is that the CITT is combining the final injury inquiry and the reference.  A new schedule for the final injury inquiry was issued.  The hearing has been moved up one week to accommodate 2 weeks of testimony (sometimes there is only one day of testimony in an injury inquiry hearing).  The CITT anticipates many new parties joining an already large group of participants in the injury inquiry (I must admit that I am representing a US producer of gypsum board and its Canadian subsidiary importer).

The relevant portion of the CITT Notice which sets out the terms of reference for the Reference states:

“Further, on October 13, 2016, His Excellency the Governor General in Council, on the recommendation of the Minister of Finance, pursuant to section 18 of the Canadian International Trade Tribunal Act (CITT Act),

(a) referred to the Canadian International Trade Tribunal the matter of whether the imposition of provisional duties or duties, applicable to gypsum board imported from the United States for markets in Manitoba, British Columbia, Saskatchewan, Alberta, Yukon and the Northwest Territories, is contrary to Canada’s economic, trade or commercial interests, and specifically whether such an imposition has or would have the effect of substantially reducing competition in those markets or causing significant harm to consumers of those goods or to businesses who use them; and

(b) directed that the Tribunal report to the Governor in Council on those matters no later than January 4, 2017, and submit to the Governor in Council, within 15 days after that date, its findings and recommendations on any remedy that could be taken.

Pursuant to section 18 of the CITT Act, the Tribunal will inquire into and report on the matter referred to it by His Excellency the Governor General in Council.”

Given that both inquiries must be concluded by January 4, 2017, the Tribunal will combine them to provide for a more expeditious process in accordance with rule 6.1 of the Canadian International Trade Tribunal Rules and section 35 of the CITT Act.

This has never happened before.  Usually, a public interest inquiry may be commenced after a final determination of injury by  the CITT.  In the present case, since winter is coming and people in Western Canada need drywall, the Department of Finance and the CITT are expediting the process.  We are in new procedural territory with this combined proceeding.

Anyone who is affected by the new drywall antidumping duties needs to know that if they do not come forward, the CITT cannot know how the drywall duties are affecting people.  The CITT needs to hear from homeowners, businesses, contractors, drywall suppliers, and construction industry associations in Western Canada.  Please write to the CITT at Registrar, Secretariat to the Canadian International Trade Tribunal, 15th Floor, 333 Laurier Avenue West, Ottawa, Ontario K1A 0G7, 613-993-3595 (telephone), 613-990-2439 (fax), (e-mail).  Notices of Participation are due by October 31, 2016.  Submissions are due November 17, 2016 by noon (Ottawa time). The hearing starts on November 28, 2016.  Share this information with others who have information to provide to the CITT.

If you have any questions about Canada’s antidumping laws, please contact Cyndee Todgham Cherniak at 416-307-4168 or email There is information on the LexSage web-site about antidumping procedings (scroll to the bottom of the page).