Canada is nearing a trade law crisis point that, quite frankly, is avoidable and easily solved. There are too few permanent members of the Canadian International Trade Tribunal (“CITT”) for the workload. Section 3 of the Canadian International Trade Tribunal Act provides for the appointment of a Chairman and six (6) permanent members to the CITT. Currently, there are only three (3) permanent members of the CITT (Peter Burns (appointed in 2014), Rose Ritcey (appointed in 2014) and Jean Bédard (appointed in 2014), one member is the acting Chairman (Jean Bédard). Serge Fréchette is a temporary member of the CITT appointed under a contract that expires on April 4, 2018 (no one knows if that contract will be renewed). Ann Penner (appointed in 2014) and Daniel Pétit (appointed in 2013) have completed their first 4 year terms and have not been reappointed – they are still at the CITT completing files. The Government of Canada can and should solve this problem quickly by making appointments of 3-4 members to the CITT, including a Chairperson. Canada has many trade law specialists – it is possible to have a gender balanced CITT with representation across Canada.
The CITT is an independent, Canadian quasi-judicial administrative tribunal that adjudicates a variety of international trade cases and matters. The CITT is the place to go to receive a fair, timely, transparent and effective resolution of a trade-related dispute and/or government-mandated inquiry/dispute, provided that the trade-related dispute is within an area of the Tribunal’s jurisdiction.
The types of international trade cases and matters within the CITT’s jurisdiction include:
- customs valuation appeals;
- customs origin appeals;
- tariff classification appeals;
- appeals of advance customs rulings;
- excise tax (e.g., levied on certain petroleum products, heavy automobiles and air conditioners designed for automobiles) appeals;
- reviews of procurement-related issues (mostly involving the Government of Canada) (also known as “bid challenges”);
- antidumping/countervailing duty preliminary injury inquiries;
- antidumping/countervailing duty injury inquires;
- antidumping/countervailing duty interim reviews;
- antidumping/countervailing duty expiry reviews;
- antidumping/countervailing duty public interest inquiries;
- antidumping/countervailing duty circumvention proceeding appeals;
- appeals of antidumping/countervailing duty rulings;
- exporter rulings relating imposition of antidumping and countervailing duties;
- global safeguard inquiries;
- reviews requested by the Government of Canada related to tariffs, trade and economics; and
- textile references requests by domestic producers for tariff relief on imported textile inputs for production.
The lack of permanent CITT members will soon cause caseload crisis. There are only three permanent CITT members (including the Chairman) to hear all the antidumping and countervailing injury inquiries (always panels of 3), all expiry reviews and interim reviews on AD/CVD Orders (always panels of 3), all antidumping and countervailing duty appeals (always panels of 3), all safeguard inquiries (always panels of 3), all customs and excise appeals (single member panel) and all federal government procurement bid challenges under numerous free trade agreements (single member panel) and any textile reviews of governor-in-council or Minister of Finance references. Quite frankly, it is not humanly possible to do all this important international trade work in the current environment with so few people. The amount of information involved in any trade related matter is substantial. Getting the answers right is important.
Antidumping and countervailing duty injury inquiries have tight statutory deadlines and will have to take priority. Domestic industry complainants spend hundreds of thousands (if not millions) of dollars bringing AD/CVD complaints and often millions of dollars of business (sometimes tens or hundreds of millions of dollars) is at stake. The statutory deadlines mean that decisions must be finished on time or they will not be worth the paper they are written on.
This means that customs and excise appeals, which do not have statutory deadlines, will have to wait until CITT members have time to hear them. It also means that the CITT will not have the resources to conduct expedited government procurement bid challenges of federal government contracts. This will hold up the ability of the federal Government of Canada to award contracts and purchase goods and services where an issue arises. Decisions on interim reviews will take longer to be issued. Justice delayed will have a negative impact on trade and trade relationships.
There will be a corresponding impact on access to justice. The CITT is the justice system for importers to seek redress. The CITT is the justice system for potential bidders and bidders to seek redress when they are not treated fairly in federal government contracting. The CITT is the justice system for domestic producers who take the position that unfairly priced imports are entering Canada. The lack of members is a barrier to accessing that justice system expeditiously. The current members will be stretched too thin to hear everyone in a timely manner. The qualified and diligent ATSSC staff, who support the CITT members, will be overworked and may look for work elsewhere within the government. Responsiveness will be affected as there is only so many hours in a day.
Hint to the Government: Yesterday, the Government of Canada announced 68 names of qualified Canadian trade lawyers and academics to a newly created NAFTA Chapter 19 Panel Roster. The Order-in-Council will be published in the Canada Gazette on February 21, 2018. There are many known trade law experts in Canada (many of whom are not on that list) who could be appointed to the CITT. The Government has a binder of resumes and CVs. There is no reason that the Government of Canada cannot make the necessary appointments to the CITT.
For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at email@example.com.