On October 17, 2016, Canada’s Department of Finance announced that the Government of Canada had asked the Canadian International Trade Tribunal (“CITT”) to conduct an inquiry (actually, it is a Reference) in respect of the antidumping case involving gypsum board from the United States and imported into Western Canada in order to hear from a wide range of stakeholders and the public, and to report its findings in early January, so that the Government can determine the best path forward. The Reference is contained in Order of Council 2016-0879 (October 13, 2016), which states, in part:
“Whereas the circumstances merit timely consideration of whether the imposition of duties is in Canada’s economic, trade and commercial interest;
Therefore, 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,
(a) refers 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) directs 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.”
I have been asked many times this week: “What is a section 18 Reference”?
A Section 18 Reference is a rarely used legal proceeding conducted by the CITT whereby the Governor-in-Council (the Federal Cabinet) may ask the CITT to review and report on any matter in relation to the economic, trade or commercial interests of Canada with respect to any goods or services or any class thereof. Section 18 is in the Canadian International Trade Tribunal Act and not the Special Import Measures Act. This means that a Reference is separate from and not directly related to Canada’s trade remedies regime. The end product is a Report (containing a summary of the evidence and economic analysis) to be submitted by the CITT to the Governor-in-Council.
The last Reference occurred 19 years ago when the CITT was asked to look into a number of issues concerning Canada’s dairy industry. The Reference decisions are:
- ADDITIONAL SCENARIOS FOR CANADIAN INTERNATIONAL TRADE TRIBUNAL BUTTEROIL BLEND ANALYSIS, Reference No. GC-97-001
- PROFILE OF THE CANADIAN DAIRY INDUSTRY, Reference No. GC-97-001
- DATA TABULATION, Reference No. GC-97-001
- STUDY ON THE POTENTIAL MARKET FOR DAIRY PRODUCT BLENDS OUTSIDE THE COVERAGE OF CANADA’S TARIFF-RATE QUOTAS, Reference No. GC-97-001
- AN INQUIRY INTO THE IMPORTATION OF DAIRY PRODUCT BLENDS OUTSIDE THE COVERAGE OF CANADA’S TARIFF-RATE QUOTAS, Reference No. GC-97-001
- THE IMPACT OF IMPORTS OF BUTTEROIL/SUGAR BLENDS ON THE CANADIAN DAIRY INDUSTRY – AN ECONOMIC ANALYSIS USING THE FARM MODEL, Reference No. GC-97-001
- POSSIBLE REACTIONS OF DAIRY PRODUCERS TO IMPORTS OF BUTTEROIL/SUGAR BLENDS: FOUR SCENARIOS, Reference No. GC-97-001
- ASSESSMENT OF THE SIMULATION STUDY USING THE FARM MODEL PREPARED BY AGRICULTURE AND AGRI-FOOD CANADA, Reference No. GC-97-001
- IMPORT REGIMES FOR DAIRY PRODUCTS, Reference No. GC-97-001
- THE INTERNATIONAL AND DOMESTIC LEGAL FRAMEWORK, Reference No. GC-97-001
Before the cases prior to the Dairy References are also agriculture related:
- AN INQUIRY INTO THE COMPETITIVENESS OF THE CANADIAN CATTLE AND BEEF INDUSTRIES, Reference No. GC-92-001
- AN INQUIRY INTO THE ALLOCATION OF IMPORT QUOTAS, Reference No. GC-91-001
- AN INQUIRY INTO THE COMPETITIVENESS OF THE CANADIAN FRESH AND PROCESSED FRUIT AND VEGETABLE INDUSTRY, Reference No. GC-90-001
There has never been a Reference relating to an ongoing antidumping proceeding. Normally, the CITT makes a decision regarding material injury and threat of material injury. If the CITT determines that the domestic industry has suffered, is suffering or is threatened with material injury, then the CITT may commence a public interest inquiry pursuant to subsection 45(1) of the Special Import Measures Act. This means that we are in uncharted territory.
What we do know from prior References, the CITT may issued orders to receive testimony of relevant persons:
- IMPORTATION OF DAIRY PRODUCT BLENDS OUTSIDE THE COVERAGE OF CANADA’S TARIFF-RATE QUOTAS, Reference No.: GC-97-001
It might be that the Reference will be similar to the recommendation phase of a Safeguard Inquiry. In a Safeguard Inquiry, the CITT considers whether a surge in imports has caused serious injury to the domestic industry. If the answer is “Yes”, the Tribunal makes recommendations to the Minister of International Trade concerning the level of duties to be imposed. In that sense, this Gypsum Board Reference may be a cross between a Public Interest Inquiry and a Safeguard Inquiry.
For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or email firstname.lastname@example.org. For more information, please see Canada Acknowledges That Antidumping Proceedings Can Hurt Consumers.