TABLE OF CONTENTS

BACKGROUND

DESCRIPTION AND ANALYSIS

Recommendation 1
Recommendation 2
Recommendation 3
Recommendation 4
Recommendation 5
Recommendation 6
Recommendation 7
Recommendation 8
Recommendation 9
Recommendation 10
Recommendation 11
Recommendation 12
Recommendation 13
Recommendation 14
Recommendation 15
Recommendation 16

TECHNICAL AMENDMENTS AND CORRECTIONS

TRANSITIONAL PROVISIONS

COMING INTO FORCE

COMMENTARY

APPENDIX: TABLE OF CONCORDANCE

BILL C-35:  AN ACT TO AMEND THE SPECIAL IMPORT MEASURES ACT
AND THE CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT

BACKGROUND

Major changes have taken place in international trade since the Special Import Measures Act (SIMA) was passed in 1984. Canada has successively signed the Canada-U.S. Free Trade Agreement (FTA), the North American Free Trade Agreement (NAFTA) and the Agreements resulting from the Multilateral Trade Negotiations of the Uruguay Round (WTO Agreements), which instituted the World Trade Organization (WTO).

NAFTA, which contains virtually all of the provisions of the FTA, addresses at length restrictive trade practices, anti-dumping measures and anti-subsidy measures.⁽¹⁾ In each instance, the Parliament of Canada has passed statutory amendments to the Special Import Measures Act to comply with its new international obligations.⁽²⁾ The provisions in the OMC Agreements respecting restrictive trade practices (dumping and subsidies) required Parliament to make new amendments to SIMA, mainly in respect of the definition of a subsidy, the determination of injury and the method for establishing dumping margins.⁽³⁾

As of 1996, the Special Import Measures Act had not been reviewed since 1984 to determine whether it still met the expectations of the Canadian business community or whether it was consistent with the international trade environment. At the request of the Minister of Finance, two sub-committees (hereinafter called "the Sub-Committees") of the House of Commons began a joint study of SIMA in September 1996 and tabled a report in December of that year.⁽⁴⁾

While the Sub-Committees concluded that the Special Import Measures Act responded adequately to the Canadian business community’s expectations, they nevertheless suggested a few improvements. On the whole, the government received the Sub-Committees’ recommendations favourably and agreed that it would be appropriate to implement virtually all of them.⁽⁵⁾ To this end, it tabled Bill C-35 in the House of Commons on 19 March 1998.

DESCRIPTION AND ANALYSIS

By the government’s own admission, the purpose of Bill C-35 is to implement the Sub-Committees’ recommendations.⁽⁶⁾ To determine the extent to which these recommendations would in fact be implemented by the bill, this description and analysis section will directly relate its provisions to the recommendations. For each recommendation, there will first be an explanation of the recommendation itself and the government’s response; second, the provisions of Bill C-35 that would implement the recommendation will be discussed. Bill C-35 also contains provisions for purely technical corrections to the two statutes it would amend; these provisions are merely listed.

As the bill is fairly complex, a table is attached showing the concordance between the clauses of the bill, the relevant sections of SIMA and the Canadian International Trade Tribunal Act (CITTA) and the title in the legislative summary under which the question is considered.

Recommendation 1

SIMA is the main statutory instrument respecting the mechanism and measures available to the Canadian business community for coping with unfair trade practices from outside Canada. The Minister of Finance is responsible for developing policy and implementing the resulting legislation. Revenue Canada and the Canadian International Trade Tribunal (CITT) share responsibility for administering the system created under SIMA.

SIMA essentially provides for the procedure for assessing anti-dumping and countervailing duties on imports that constitute dumping or that are subsidized and are thus harmful to Canadian industry. When a complaint is filed, Revenue Canada determines whether the complaint is properly documented and, if that is the case, initiates an investigation. To do this, the department must have sufficient evidence to establish that there has been dumping or subsidizing that has caused injury or threatened to do so. If these elements are present, Revenue Canada makes a preliminary determination of dumping or subsidizing and fixes provisional duties to protect the domestic industry from the alleged injury pending the outcome of the investigation. In this preliminary determination, Revenue Canada also rules on whether there has been injury to the Canadian industry.

Once the preliminary determination is made, foreign exporters or governments may make undertakings to eliminate the dumping or subsidization and thus the injury to the domestic industry. If Revenue Canada accepts these undertakings, the case is usually suspended and no duties are assessed. If there are no undertakings, Revenue Canada continues its inquiry in order to reach a final determination as to whether there has been dumping or subsidizing; if its decision is affirmative, the Department states the margin of dumping or the amount of the subsidy. Revenue Canada’s role is completed after an affirmative determination or after a determination that there has been no dumping or subsidization.

The CITT, which is an independent quasi-judicial body, is responsible for rendering a definitive decision as to the existence of injury to the national industry. If it concludes that such injury has occurred, anti-dumping or countervailing duties are usually assessed on all goods imported after the date of Revenue Canada’s preliminary determination. If the CITT finds that the import caused no injury but threatened to do so, anti-dumping or countervailing duties are usually assessed as of the date of the determination. Anti-dumping or countervailing duty orders expire after five years, unless the CITT concludes pursuant to a new review that the dumping or subsidizing may have continued or resumed.

In their report, the Sub-Committees concluded that SIMA was responding well to the needs of the Canadian business community and that it should be maintained, subject to the few amendments they recommended. They further stated that these recommendations should not be perceived as objections to SIMA, but rather as suggestions for altering the balance between the various players and for improving the legislation’s overall efficiency. In its response to the Sub-Committees’ recommendations, the government stated that it supported this recommendation. As this recommendation requires no amendment to SIMA, the bill contains no provisions relating to it.

Recommendation 2

The SIMA procedure usually begins when a Canadian producer files a complaint with Revenue Canada. The complainant must submit documents relevant to its complaint. In the following stages, producers may be asked to participate increasingly in the process; however, not all producers have the financial and other means to do so.

The Sub-Committees therefore recommended "that Revenue Canada take concrete measures to ensure fair and equal access to the SIMA process by small and medium-sized Canadian producers." In its reply to their recommendations, the government stated that it supported this recommendation and added that Revenue Canada was studying its practices and exploring options to further access to SIMA.

As this recommendation may be implemented through improvements to administrative practices, none of the provisions of the bill specifically relate to it.

Recommendation 3

As stated above, complaints are filed with Revenue Canada, which must decide whether the complaint is properly documented and whether dumping or subsidizing has occurred and, if so, make a preliminary determination of injury. However, as stated above, the final determination of injury is made by the CITT. This procedure therefore requires the parties to present their arguments concerning injury first to Revenue Canada and then to the CITT. To avoid this duplication, the Sub-Committees recommended that the CITT be the only body to rule as to injury and that it hear the parties starting at the first stage, the preliminary determination of injury.

In its reply, the government acknowledged the CITT’s authority to assess injury and agreed it would be preferable to transfer responsibility to it for ruling as to injury at the preliminary determination stage. Revenue Canada would remain the authority responsible for accepting complaints and deciding to initiate an investigation. Once Revenue Canada had ruled in favour of doing so, the complaint would immediately be put before the CITT, which would be responsible for making a preliminary determination of injury.

This recommendation would be implemented under Bill C-35 as follows:

• Clause 21 would amend the head preceding section 38 of SIMA to read "Preliminary Determination of Injury or of Dumping or Subsidizing" and would add a new section 37.1. This new section would give the CITT responsibility for making the preliminary determination of injury. This determination would have to be made not later than the sixtieth day following the initiation of the investigation (under section 31 of the SIMA), provided the investigation was not terminated by the Deputy Minister. This determination would be based on the fact that the evidence disclosed a reasonable indication that the dumping or subsidizing had caused injury or retardation or was threatening to cause injury. Furthermore, under the new section 37.1(2) of SIMA, the CITT would give notice of its preliminary determination to the Deputy Minister, the exporter, the importer, the government of the country of export, the complainant, if any, and any persons prescribed by regulation, and would publish such notice in the Canada Gazette.
• Clause 22(1) would amend the portion of section 38(1) of SIMA before paragraph (a) to remove the Deputy Minister’s responsibility for making a preliminary determination of injury. The new subsection 38(1) would also state that (subject to section 39) the Deputy Minister would have to make the preliminary determination of dumping or subsidizing after the sixtieth day, but not later than the ninetieth day after the initiation of the investigation.
• Clause 23 would amend the portion of section 39(1) of SIMA before paragraph (a) to delete the reference made to section 40, which would be repealed by clause 24 of the bill. Section 39 of SIMA provides for the possibility of extending the time period under section 38(1) to 135 days.
• Clause 17 would replace sections 34 and 35 of SIMA. The new sections 34 and 35 would be worded to reflect the transfer to the CITT of responsibility for making a preliminary determination of injury. The new paragraph 34(1)(a) of SIMA would state to whom the notice of investigation would be sent (to the Secretary, the exporter, the importer, the government of the country of export, the complainant, if any, and any other prescribed persons). The notice would also be published in the Canada Gazette. New section 34(1)(b) would provide for the Deputy Minister to provide the CITT with the information and material required under the Tribunal’s rules.⁽⁷⁾ The new section 34(2) would provide that, after receipt of the notice, the CITT would make a preliminary inquiry to determine whether the evidence disclosed a reasonable indication that the dumping or subsidizing of the goods had caused injury or retardation or was threatening to cause injury. The new section 35 would provide for the investigation to be terminated 1) if the Deputy Minister observed that a) there was insufficient evidence of dumping or subsidizing, b) the margin of dumping or the amount of subsidy was insignificant or c) the volume of dumped or subsidized goods was negligible or 2) if the CITT concluded that there was no injury or retardation or threat of injury.
• Clause 18(1) would amend section 35.1(1) of SIMA. This section provides that the Deputy Minister’s investigation, which concerns goods from Chile, is terminated if the Governor in Council reaches a settlement to remove those goods from the application of SIMA. The amendment would add that CITT’s investigation would also be terminated in that instance.
• Clause 18(2) would amend the portion of section 35.1(2) of SIMA before paragraph (a) to add the CITT to this subsection. As a result, the Deputy Minister or the Tribunal would be required to send notice of the termination of the investigation to the persons mentioned therein and to publish the notice in the Canada Gazette.
• Clause 19 would repeal section 36 of SIMA, which refers to a referral back to the CITT during the Deputy Minister’s preliminary investigation. Since the CITT would henceforth be responsible for making a preliminary determination of injury, such a case would no longer arise. The proposed repeal of section 36 is therefore entirely appropriate.
• Clause 20 would amend the passage of section 37 of SIMA preceding paragraph (a), which currently refers to references under sections 34 and 35. As these sections would be amended by the bill, these references would no longer be necessary.

Recommendation 4

The documentation submitted when a complaint is filed with Revenue Canada and the documentation subsequently submitted by the other parties always contains confidential information. Under current practice, the CITT gives the counsel of the various parties access to confidential information in the Tribunal’s records, whereas Revenue Canada does not give them access to any confidential information it gathers except where non-confidential summaries do not convey a reasonable understanding of the substance. The Sub-Committees recommended that Revenue Canada grant counsel increased access to confidential information that it has collected. Every amendment to SIMA in this area should be accompanied by penalties for unauthorized release of confidential information by counsel.

In its reply, the government supported this recommendation, which would be implemented under Bill C-35 as follows:

• Clause 44 would amend section 84(2) and (3) of SIMA and would add section 84(3.1). Section 84(1) of SIMA provides that an employee of the federal Public Service may not disclose confidential information which he or she obtains while so employed unless authorized to do so under a provision of SIMA; such disclosure may not be made except in accordance with the prescribed conditions. The new section 84(2)(a) would provide that the summary of information or statement referred to in section 85(1)(b) or section 79(2) would not be subject to the same reservation. The new section 84(2)(b) would enable the Deputy Minister to disclose information for the purposes of proceedings before a panel or the Appellate Body established under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes. The new section 84(3) would prescribe the conditions under which confidential information could be disclosed to the counsel of a party. The new section 84(3.1) would provide that the Deputy Minister need not disclose information if satisfied that the disclosure might result in material harm to the business or affairs of the person who had designated the information as confidential under section 85(1)(a).
• Clause 45 would add section 88.1 to SIMA, to make it possible to protect confidential information gathered by the CITT during proceedings before it where such information would be disclosed to an employee of the federal Public Service under section 76.03(6)(b).
• Clause 50 would add section  96.4 to SIMA. This new section would create the offences and penalties for violations of the provisions of SIMA concerning confidential information. Under the new section 96.4(1) every person would commit an offence who used information disclosed to him or her by the Deputy Minister under section 84(3) for any purpose other than the purpose for which the information had been so disclosed. Under the new section 96.4(2), every person who committed such an offence would be guilty of (a) an indictable offence and liable to a fine of not more than $1,000,000 or (b) an offence punishable on summary conviction and liable to a fine of not more than $100,000. The new section 96.4(3) would provide that no proceedings for an offence under this section could be instituted without the written consent of the Attorney General of Canada.
• Clause 60 would amend section 49 of CITTA. This section currently prohibits any member or person from "disclosing" any information or material given or elicited in the course of certain proceedings. The amendment would also add two new cases as provided for by section 37(a) and section 76.03(9) of SIMA (information disclosed to the CITT by the Deputy Minister).

Recommendation 5

This recommendation is closely related to the previous recommendation. Under section 45 of CITTA, the CITT may not authorize the disclosure of confidential information except to counsel. To act in a case, an expert must therefore be designated as counsel. This formality has prevented experts from testifying in certain cases because the common law usually prohibits a person acting as counsel in a case from testifying in the same case.

In its reply, the government supported this recommendation and stated that it would be possible to amend CITTA to grant the CITT the discretionary power to authorize the disclosure of confidential information to recognized experts retained by counsel for a party.

This recommendation would be implemented under Bill C-35 as follows:

• Clause 59(1) would amend section 45(3) of CITTA and add section 45(3.1) and (3.2). The amendments would enable an expert who was acting under the direction of counsel for one of the parties to gain access, on the conditions stated therein, to confidential information gathered during the proceedings before the CITT. The new section 45(3.1) would enable an expert retained by the CITT to gain access, on the conditions set out therein, to that same confidential information. The new section 45(3.2) would provide that it would be understood that the disclosure of the information contemplated in section 45(3) and (3.1) to persons referred to in section 45(5) [persons who may be recognized as experts] and employed by a federal institution that was a party to the proceedings would be understood not to constitute disclosure to a party to the proceedings or to the procedure under section 45(3) or (3.1).
• Clause 59(2) would amend section 45 of CITTA and add section 45(5) to (9). The new section 45(5) would provide that, in section 45(3) and (3.1), "expert" would include any of the following persons whom the Tribunal recognized as an expert: (a) persons whose duties involve the carrying out of the Competition Act and who are referred to in section 25 of that Act, other than persons authorized by the Governor in Council to exercise the powers and perform the duties of the Director of Investigation and Research, (b) in respect of the determination of damages and costs in procurement review proceedings, persons employed in the government institution involved in the procurement under review and (c) any prescribed person. The new section 45(6) would define the offences under section 45(3) and (3.1). The new section 45(7) would establish the penalties for those offences (a fine of not more than $1,000,000 for an indictable offence and a fine of not more than $100,000 for an offence punishable on summary conviction). The new section 45(8) would provide that no proceedings for such an offence could be instituted without the consent in writing of the Attorney General of Canada. The new section 45(9) would provide that the CITT could bar any counsel or expert who committed an offence under section 45(6) from any further appearance before it for the period that the Tribunal considered appropriate.

Recommendation 6

Although the CITT is already permitted to consider any other relevant factor in the case, which may include any observation of dumping in a third country, the Sub-Committees thought it would be preferable to state this factor specifically to ensure that it would be considered.

In its reply, the government said that it supported this recommendation. As this recommendation should be implemented through amendments to the regulations adopted under SIMA or CITTA, the bill contains no provisions concerning it.

Recommendation 7

In the course of its investigation, Revenue Canada may negotiate undertakings with the exporter to Canada of goods that are being dumped or with the foreign government subsidizing goods imported to Canada. The negotiation of such undertakings is not governed by any particular provision of SIMA. The parties involved in the investigation may not intervene in the negotiation of such undertakings. To enable these parties to protect their interests more effectively, the Sub-Committees recommended that Revenue Canada make allowance in regulations to accommodate representations from interested parties when undertakings are being considered.

In its reply, the government said it supported this recommendation subject to the preservation of existing statutory/regulatory time constraints for the acceptance of undertakings. In fact, the participation of the interested parties in the negotiation should not prevent the undertakings from being made within the prescribed time period.

This recommendation would be implemented under Bill C-35 as follows:

• Clause 29 would add section 49(5) to SIMA. This new subsection would state that, in considering whether to accept an undertaking, the Deputy Minister would have to consider any representations received from the importer, exporter, government of the country of export or any other interested person.

Recommendation 8

Under section 53 of SIMA, Revenue Canada is required to review the undertaking before the expiration of the five-year period. If, as a result of the review, Revenue Canada decides there is no justification for continuance of the undertaking, the Department may not terminate it because it is not authorized to do so under any statutory provision. The purpose of this recommendation is to correct this shortcoming.

In its reply, the government said that it supported this recommendation, which would be implemented under Bill C-35 as follows:

• Clause 32(2) would amend section 53(2) to state that an undertaking would be terminated immediately after the Deputy Minister decided not to renew it. The present wording of this subsection does not enable the Deputy Minister to terminate the undertaking before the end of the five-year period.
• Clause 30 would add section 51.1 to SIMA. This new section would state the terms and conditions in accordance with which the Deputy Minister could suspend the investigation to accept an undertaking. Acceptance of such an undertaking could not (a) (if the undertaking was given by an exporter) increase the price at which the exporter sold goods to importers in Canada by more than the estimated margin of dumping of the goods or the estimated amount of subsidy on the goods, or (b) (if the undertaking was given by the government of a country) increase the price at which the goods, when exported to Canada from that country, were sold to importers in Canada by more than the estimated amount of subsidy on the goods.
• Clause 2(2) would amend section 3(2) of SIMA. Where, for one of the reasons enumerated in section 52(1) of SIMA, the Deputy Minister terminates an undertaking, the goods become subject to duty. The amendment would clarify the date from which such duty would take effect. If the Deputy Minister terminated the undertaking on the ground that it was not being or had not been honoured, the goods would be subject to duty retroactively, but not beyond 90 days from the date of the violation. If the Deputy Minister terminated the undertaking on the ground that new information had come to light or that circumstances had changed, the goods would become subject to duty as of the date of the notice of termination of the undertaking.
• Clause 31(2) would repeal section 52(1.1)(a)iii) of SIMA, which provides that the Deputy Minister shall terminate an undertaking if he or she observes in the course of an investigation that the actual or potential volume of dumped or subsidized goods is negligible.

Recommendation 9

Where a single good is imported from more than one country, there may be cases where each importation from one particular country does not cause appreciable injury, but the cumulation of importations from all the countries of origin does so. The CITT is not currently required to assess the cumulative harmful effects of goods from more than one country. The Sub-Committees’ recommendation would make such assessment mandatory.

In its reply, the government stated that it supported this recommendation, which would be implemented under Bill C-35 as follows:

• Clause 26(1) would amend the portion of section 42(3) of SIMA before paragraph (a). The CITT currently has the option of assessing the cumulative effect of dumping or subsidizing; under the amendment, it would be required to do so. Furthermore, the amendment would clarify the burden of proof before the CITT. To make a determination, the CITT would have to be satisfied that it could do so.
• Clause 26(2) would amend the French version of section 42(3)(b) of SIMA to add a clarification on the origin of goods. The current wording is "en provenance d’un de ces pays" or "en provenance d’un autre de ces pays." This wording would become "en provenance d’un ou de plusieurs de ces pays" or "en provenance d’un ou de plusieurs autres de ces pays."
• Clause 26(4) would add a new section 42(6) to SIMA to provide that, for the purposes of section 42, the volume of dumped or subsidized goods from a country would be deemed to include the volume of goods of the country that were of the same description and were the subject of a sale for export to Canada.

Recommendation 10

This recommendation involved no amendment to SIMA or CITTA. It is mentioned here to make sure that all the Sub-Committees’ recommendations are included.

Recommendation 11

As stated above, a CITT order is valid for a period of five years, unless a new review of the case takes place before the order expires and it is established that the order must be upheld. The new order will be valid for a further period of five years and will be subject to the same rules. The review may be conducted in two separate cases. The first, the interim review, may be conducted any time during the five-year period and is based on circumstantial changes that may have an effect on the order. The second, the expiry review, is normally conducted upon request, just prior to the five-year expiry date. However, SIMA does not explicitly distinguish between interim and expiry reviews. Bill C-35 would make amendments to SIMA and CITTA to clarify the situation.

As explained above, Revenue Canada rules as to whether there has been dumping or subsidizing, whereas the CITT makes a determination of injury. In addition, the preliminary determination of injury currently made by Revenue Canada would, under Bill C-35, henceforth be made by the Tribunal. Each body would thus have complete responsibility for decisions in its exclusive field of jurisdiction: dumping or subsidizing for Revenue Canada and injury for the CITT. At the review stage, however, the CITT is currently responsible for determining all aspects of the case: both the existence of dumping or subsidizing, and injury. The Sub-Committees recommended that the review of orders be conducted on the basis of the existing division of responsibility between Revenue Canada and the CITT in the earlier stages. Thus, at the review stage, Revenue Canada would determine whether there had been dumping or subsidizing, whereas the CITT would rule as to damage. The system would thus become completely "bifurcated" in that, at all stages of the cases, Revenue would be exclusively responsible for determining whether there had been dumping or subsidizing, whereas the CITT would rule as to injury or risk of injury.

Furthermore, neither SIMA nor CITTA nor the rules and regulations adopted under those statutes make sufficiently express provision for the grounds for review or the criteria whereby the CITT may extend or terminate an order upon review.

Lastly, no provision of SIMA authorizes the CITT to issue a retroactive order where it terminates an anti-dumping or countervailing duty order. If the termination is justified on the ground that there is no longer any domestic production of the good subject to the initial decision, the collection of anti-dumping duties will continue until the rescinding order is issued. The CITT may not make the recission retroactive to the date on which the injury or risk of injury ceased.

In its reply, the government stated that it supported all the issues raised by this recommendation, which would be implemented under Bill C-35 as follows:

• Clause 36 would replace section 76 of SIMA and the preceding head. Section 76(1) of SIMA would become the new section 76 and would be preceded by the following two heads: "Review of Orders and Findings" and "Judicial Review." Section 76(1) currently provides for the possible cases of CITT orders or findings by the Federal Court of Appeal. Clause 36 of the bill would also add new sections 76.01 (interim review of orders by Tribunal), 76.02 (review of orders by Tribunal on referral back and re-hearing), 76.03 (order or finding deemed to be rescinded) and 76.04, which would introduce provisions concerning the review of CITT orders or findings.
• The new section 76.01(1) would provide that at any time after the making of an order of finding described in any of sections 3 to 6, the Tribunal could, on its own initiative or at the request of the Minister of Finance, the Deputy Minister,⁽⁸⁾ or any other person⁽⁹⁾ or of any government,⁽¹⁰⁾ conduct an interim review of the order or finding.
• The new section 76.01(2) would provide that, in conducting an interim review, the Tribunal could re-hear any matter before deciding it. This provision could have the effect of not limiting the aspects of the case that might be subject to review.
• The new section 76.01(3) would provide that the CITT should not conduct an interim review unless the person or government requesting it to do so convinced it that such review was warranted. It can be inferred that the CITT would proceed to a review automatically when asked to do so by the Minister of Finance or the Deputy Minister. The definition of government (section 2(1) of SIMA) states that government, in relation to any country other than Canada, means the government of that country and includes the political subdivisions of that country (in particular provinces, states and municipalities), the persons, agencies or institutions acting for, on behalf of, or under the authority of that country and associations of sovereign states of which that country is a member.
• The new section 76.01(4) of SIMA would provide that, if the Tribunal decided not to conduct a review, it would make an order to that effect and give reasons for it. The Secretary would forward a copy of the order to the requesting person or government and cause notice of the order to be published in the Canada Gazette.
• The new section 76.01(5) would provide that, on completion of an interim review, the Tribunal would make an order rescinding the order or finding or continuing it with or without amendment and give reasons for doing so.
• The new section 76.01(6) would provide that, after the review was completed, the Secretary would, without delay, have to forward a copy of the order to the Deputy Minister and any other persons and governments specified by the rules of the CITT, followed by, not later than 15 days after the date of the order, a copy of the reasons for it. The Secretary would also cause notice of the order to be published in the Canada Gazette.
• The new section 76.01(7) would provide that an order made on the completion of an interim review (other than an order rescinding an order or finding) would expire five years after the day on which the order or finding that was the subject of the interim review was made, unless that order or finding was the subject of an expiry review under the new section 76.03(3). If an expiry review was initiated, the order or finding would then expire on the date on which the CITT made an order under the new section 76.03(12).⁽¹¹⁾
• The new section 76.02 would reproduce, with a few amendments, section 76 (2.1) to (4.3) of SIMA, which concern the review of orders or findings by the CITT on referral back to the Federal Court or a panel under NAFTA or FTA.
• The new section 76.03 (1) of SIMA would state that, if the Tribunal had not initiated an expiry review (under the new section 76.03(3)), the order or finding would be deemed to have been rescinded as of the expiry of the five years following the date of the order of finding (if there was no order continuing the order or finding under the new section 76.03 (12)(b)) or the date of the last order, depending on the case. The new section would be an amended version of the existing section 76(5) of SIMA.
• The new section 76.03(2) would state that if an order or finding was deemed rescinded under section 76.03(1), the Secretary would, not later than 10 months before the expiry date of the order or finding under that subsection, have to cause publication in the Canada Gazette of a notice of inquiry setting out the information specified in the rules of the CITT.
• The new section 76.03(3) would state that the CITT could initiate an expiry review of an order of finding described in any of sections 3 to 6 of SIMA on its own initiative or at the request of the Minister of Finance, the Deputy Minister or any other person or any government, if the request was made within the periods specified in the notice of expiry.
• The new section 76.03(4) would state that the CITT could not initiate an expiry review at the request of any person or government unless the person or government satisfied the Tribunal that a review was warranted.
• The new section 76.03(5) would state that, if it decided not to initiate an expiry review, the CITT would have to make an order to that effect and give reasons for doing so, and the Secretary would have to forward a copy of the order and reasons to the requesting person or government and cause notice of the order to be published in the Canada Gazette.
• The new section 76.03(6) would state that, if the CITT decided to initiate an expiry review, the Secretary would without delay have to (a) cause notice of the Tribunal’s decision to be given to the Deputy Minister and all other persons and governments specified in the rules of the CITT, (b) provide the Deputy Minister with a copy of the administrative record on which it based its decision to initiate a review and (c) cause to be published in the Canada Gazette a notice of the initiation of the review, including the information set out in the rules of the CITT.
• The new section 76.03(7) would state that, if the CITT decided to initiate an expiry review, the Deputy Minister would (a) within 120 days after receiving notice under the new section 76.03(6)(a)(?), determine whether the expiry of the order or finding in respect of goods of a country or countries was likely to result in the continuation or resumption of dumping or subsidizing of the goods and (b) provide the Secretary with notice of the determination without delay after making it.
• The new section 76.03(8) would state that, where the Deputy Minister determined that the expiry of the order or finding in respect of any goods was unlikely to result in a continuation or resumption of dumping and subsidizing, the CITT would not take those goods into account in assessing the cumulative effect of dumping or subsidizing under the new section 76.03(11). This provision is closely related to the new section 76.03(11), described under Recommendation 12 (cumulation).
• The new section 76.03(9) would state that, if the Deputy Minister determined that the expiry of the order or finding was likely to result in a continuation or resumption, he or she would without delay provide the CITT with any information and material required under the Tribunal’s rules.
• The new section 76.03(10) would state that, if the Deputy Minister made a determination described in the new section 76.03(9), the CITT would have to determine whether the expiry of the order or finding in respect of the goods referred to in that subsection was likely to result in injury or retardation.
• The new section 76.03(12) would require the CITT to make an order (a) rescinding the order or finding in respect of goods referred to in the new section 76.03(8) or in respect of which it had determined that its expiry would not be likely to result in injury or retardation, or (b) continue the order or finding, with or without amendment, in respect of goods where it had determined that its expiry would be likely to result in injury or retardation.
• The new section 76.04(1) would state that, if a review under the new sections 76.01, 76.02 or 76.03 involved goods of more than one NAFTA country, or of one or more NAFTA countries and goods of one or more other countries, the CITT would make a separate order or finding under that section with respect to the goods of each NAFTA country.
• The new section 76.04(2) would state that the operation of the new section 76.04(3) would be suspended while the new section 76.04(1) was in force. As is currently the case, this provision would have the effect of suspending the application of certain SIMA provisions related to the FTA as long as NAFTA was in force.
• The new section 76.04(3) would provide that, if a review under sections 76.01, 76.02 or 76.03 involved goods of the United States as well as goods of other countries and the CITT made another order or finding under any one of those sections, the Tribunal would have to make a separate order or finding under that section with respect to the goods of the United States.
• Clause 31(3) of the bill would amend section 52(1.1)(c) of SIMA to provide that the Deputy Minister would have to terminate the undertaking if an order of the CITT that was referred back rescinded a previous order or finding.
• Clause 31(4) would replace section 52(1.2) of SIMA to add the necessary references to the determinations made upon referral back under sections 76.01(5) or 76.02(4), section 76.03(12)(a) or sections 76.04(1) or 76.1(2).
• Clause 32(1) would amend the portion of section 53(1) of SIMA before paragraph (a) to add the necessary references to the determinations made upon review under sections 76.01(5) or 76.02(4), section 76.03(12)(a) or sections 76.04(1) or 76.1(2).
• Clause 37(1) would amend section 76.1(1)(a) of SIMA. Section 76.1 of SIMA concerns the implementation of a recommendation or ruling by the OMC Dispute Settlement Body. Where the Minister of Finance considers it necessary for the implementation of such a recommendation or ruling, he or she may request that the Deputy Minister review any decision made under SIMA. The amendment would add to this provision a reference to a re-determination made under SIMA so that determinations made pursuant to a review would be included.
• Clause 37(2) would amend section 76.1(2)(a) to (c) of SIMA to add a reference to the re-determination made under SIMA in order to include determinations made pursuant to a review.
• Clause 37(3) would amend the English version of section 76.1(3) and (4) to add, as previously done, references to the re-determination. Amendments to the French version would not be necessary because the wording of that version is different.
• Clause 37(4) would add a new paragraph (d) to section 76.1(5) of SIMA to reflect amendments previously made to section 59 of SIMA.
• Clause 1(1) would amend the definition of "order or finding" of section 2(1) of SIMA to include the orders or findings under the new sections 76.01, 76.02, 76.03 and 76.04.
• Clause 3(1) would amend the portion of section 8(1.1) of SIMA before paragraph (a). This provides that the importer of goods that are of the same description as any goods to which a determination applies is obliged to pay provisional duty or to post security. The purpose of the amendment is to reflect changes in the numbering of the clauses concerning referral back.
• Clause 4 would amend section 9.4(1) of SIMA to reflect changes in the numbering of the sections respecting referral back (section 76.01(5) and section 76.03(12)(a)).
• Clause 28 would amend section 47(1) of SIMA to replace the reference to section 76(2.1) and (2.2) with a reference to section 76.02(1) or (3).
• Clause 38(2) would add a new section 77.01(1)(f.1) to SIMA and would amend paragraphs (g) to (i) of the definition of "definitive decision" in that section to reflect the amendment made elsewhere to section 59(1.1) (re-determination by Deputy Minister) and the new numbering of the sections respecting re-determination.
• Clause 40(2) would add a new section 77.1(1)(f.1) to SIMA to modify paragraphs (g) to (i) of the definition of "definitive decision" in that section. These paragraphs would be amended to reflect the amendment made elsewhere to section 59(1.1) (re-determination by the Deputy Minister) and the new numbering of the articles respecting re-determination.
• Clause 47 would amend section 96.1(1)(d) to (f) of SIMA and would add new paragraphs (c.1) and (d.1). Paragraph (c.1) would permit the review under section 96.1 of the order or finding rendered by the CITT under section 43(1). The amendments to the other paragraphs would be necessary to reflect the new numbering of the sections respecting re-determination.

Recommendation 12

This recommendation is closely related to recommendation 9, but applies to the interim and expiry review stage.

In its reply, the government stated that it supported this recommendation, which would be implemented under Bill C-35 as follows:

• The new section 76.03(11), to be added to SIMA by clause 36, would state that, for the purpose of subsection (10), the CITT would have to make an assessment of the cumulative effect of the dumping or subsidizing of goods that were imported into Canada from one than one country and to which the determination of the Deputy Minister described in subsection (9) applied. The CITT would proceed with this assessment only if it were satisfied that an assessment would be appropriate, taking into account the conditions of competition between such goods from any of those countries and (a) goods that were imported into Canada from any other of those countries and to which the order or finding applied, or (b) like goods of domestic producers.

Recommendation 13

When it makes an order, the CITT may make the finding that the imposition of anti-dumping or countervailing duties or the full amount of those duties on the goods in question would or could be contrary to the public interest. In such a case, it does not have the statutory authority to eliminate or reduce those duties; however, it may make a report on the subject to the Minister of Finance, who may then make an order to eliminate or reduce the duties.

This public interest provision has been used on only very rare occasions. The public interest is not defined and no criteria for the provision’s application are given. The Sub-Committees recommended that a non-exhaustive list of factors be added to SIMA.

In its reply, the government stated that it supported this recommendation. As the recommendation should be implemented through amendments to the CITT’s rules or to regulations passed under SIMA or CITTA, the bill contains no clauses respecting it.

Recommendation 14

Before a public interest order is made, the CITT’s investigation must go through two stages. The first enables it to determine whether a public interest investigation should be conducted; if that is the case, the CITT gives every interested person who requests it the opportunity to submit observations on the report it must make to the Minister. The second stage corresponds to the outcome of the investigation.

The Sub-Committees recommended that the finding that an anti-dumping or countervailing duty might not be in the public interest should be a formal decision reviewable by a Federal Court. In its reply, the government said that it is not in support of this part of the recommendation on the ground that, by becoming final, that decision could also be subject to review by a binational panel under Chapter 19 of NAFTA. This would depart from a fundamental objective of SIMA, which is that, where injury has been caused to a domestic industry, duties equivalent to the margins of dumping or the amounts of the subsidies will be assessed. The government also felt that the Governor in Council should retain responsibility for ruling where the public interest is at stake.

The government stated, however, that it supported the second part of the recommendation, which concerns the continuance of the obligation to report to the Minister of Finance.

This second part of the recommendation would be implemented under Bill C-35 as follows:

• Clause 27 would replace section 45 of SIMA with a new section. The new section 45(1) would state that, if, as a result of an injury referred to in section 42 arising out of the dumping or subsidizing of any goods, the CITT made an order or finding described in any of sections 3 to 6 with respect to those goods, the Tribunal should initiate a public interest inquiry on its own initiative or on the request of an interested person that is made within the prescribed period and in the prescribed manner. To do so, however, the Tribunal would have to consider that there were reasonable grounds to believe that the imposition of an anti-dumping or countervailing duty on the goods (or of full amount of duty provided for by any of those sections) would not or might not be in the public interest. Contrary to the current case, the public interest inquiry could be requested by any interested person in accordance with the terms and conditions set out in the regulations. The new provision would amend requirements concerning the evidence necessary to initiate the inquiry. Section 45(1) of SIMA currently provides that the CITT makes a ruling on the public interest inquiry if it is of the opinion that the imposition of duty on the goods would not or might not be in the public interest. The new section 45(1) would state that on initiation of a public interest inquiry the CITT would rule on whether there were reasonable grounds to consider that the imposition of duty on the goods would not or might not be in the public interest.
• The new section 45(2) would require the Secretary to publish in the Canada Gazette notice of a decision to initiate a public interest inquiry.
• The new section 45(3) would require the CITT to take into account in its inquiry any factors, including prescribed factors, that it considered relevant.
• The new section 45(4) would state that, if, as a result of an inquiry, the CITT was of the opinion that the imposition in respect of the goods of an anti-dumping or countervailing duty, or the imposition of such a duty in the full amount provided for by any of sections 3 to 6, would not or might not be in the public interest, it should without delay (a) report this to the Minister of Finance together with a statement of the facts and reasons for the opinion and (b) cause notice of the report to be published in the Canada Gazette. This new section 45(4) would reproduce part of the current section 45(1) of SIMA.
• The new section 45(5) would state that, if the CITT believed that the imposition of an anti-dumping or countervailing duty in the full amount would not or might not be in the public interest, it would have to specify in the report referred to in paragraph 45(4)(a), either (a) a level of reduction in the anti-dumping or countervailing duty provided for in any of sections 3 to 6, or (b) a price or prices that would be adequate to eliminate injury, retardation or the threat of injury to the domestic industry.
• Under the new section 45(6), if a person interested in a public interest inquiry requested (within the prescribed period and in the prescribed manner) an opportunity to make representations to the Tribunal on whether it should make a report under section 45(4)(a) with respect to any goods that were the subject of the inquiry. the Tribunal would have to allow that person to make such representations orally or in writing, or both, as the Tribunal directed.

Recommendation 15

When it makes an affirmative order, the CITT is required to assess anti-dumping duties equal to the margin of dumping or countervailing duties equal to the amount of the subsidy. In certain cases, these duties are greater than the amounts needed to eliminate the injury (or the threat of injury) to the domestic industry; however, the CITT is not at present authorized under any statutory provision to assess lower duties. The Sub-Committees recommended that SIMA be amended to make it possible for it to do so.

In its reply, the government stated that it supported this recommendation, which would be implemented under Bill C-35 as follows:

• The new section 45(5), described under the previous recommendation, would enable the CITT to indicate in its report under section 45 an amount adequate to eliminate injury, retardation or the threat of injury to the domestic industry. This amount could clearly be less than the amount of the duties currently required.

Recommendation 16

A good that is subject to anti-dumping or countervailing duties may be in short supply in Canada during a specific period. The Sub-Committees recommended that, in such cases, such goods could be temporarily exempted from duties in order to satisfy demand in the industry.

In its reply, the government said that it agreed to consider this issue as recommended. The government also noted that certain provisions of SIMA could be used to provide relief on a case-by-case basis in domestic short supply situations. The bill contains no specific provisions on this recommendation.

TECHNICAL AMENDMENTS AND CORRECTIONS

As noted above, in addition to making amendments to SIMA and CITTA in response to the Sub-Committees’ recommendations, Bill C-35 would also make the following technical amendments and corrections to both statutes.

• Clause 1(2) would amend the French version of the definition of "domestic industry" in section 2(1) of SIMA. Currently, under the last part of this definition, a domestic producer that is related to an exporter or importer of dumped or subsidized goods, or is an importer of such goods, is excluded from this definition. The amendment would give to the organization ruling on dumping, subsidizing or injury the power to exclude this domestic producer from the definition. This section of the definition would then read as follows: "Peut toutefois en être exclu le producteur national qui est lié à un exportateur ou à un importateur de marchandises sous-évaluées ou subventionnées, ou qui est lui-même un importateur de telles marchandises."
• Clause 1(3) would amend subparagraph (b)(i) of the definition of "properly documented" in section 2(1) of SIMA to replace the word "prove" with the word "support." The subparagraph would then read as follows: "the information that is available to the complainant to support the facts referred to in subparagraph (a)(ii)." This would reduce the burden of proof necessary to establish that the complaint was properly documented.
• Clause 1(4) would amend paragraph (b) of the definition of "subsidized good" in section 2(1) of SIMA to replace the term "at a loss" with the expression "for less than market value."
• Clause 1(5) would amend the French version of paragraph (a) of the definition of "subvention" in subsection 2(1) of SIMA. An essentially technical amendment would replace the phrase "les contributions financières du gouvernement d’un pays autre que le Canada" with the expression "toute contribution financière du gouvernement d’un pays étranger faite." A second amendment would add two new exclusions to the definition: the amount of the duties or domestic tax assessed by the government of the country of origin or export (a) on energy, fuel, oil and catalysts used or consumed in the production of exported goods and that have been exempted or have been or will be received by means of remission, refund or drawback and (b) goods incorporated into exported goods and that have been exempted or have been or will be relieved by means of remission, refund or drawback.
• Clause 1(6) would amend section 2(1) of SIMA to add that the definition of "country," "unless the context requires otherwise, includes (a) an external or dependent territory of a country and any other territory prescribed by regulation made by the Governor in Council, and (b) except for the purposes of proceedings respecting the dumping of goods, a customs union."
• Clause 2(1) would amend the portion of section 3(1) of SIMA before paragraph (a). This provision enumerates certain conditions for the assessment of anti-dumping or countervailing duties. The amendment would add a new condition, that the dumping or subsidizing "would have caused injury or retardation except for the fact that provisional duty was applied in respect of the goods."
• Clause 3(2) would add a new section 8(1.2) to SIMA. The existing section 8(1.1) provides for cases of new determinations by the CITT following a referral back by a panel constituted under NAFTA or FTA. However, no mention is made of any referral back from the Federal Court of Appeal. The new section 8(1.2) would provide for this case.
• Clause 3(3) of the bill would amend the portion of section 8(2) of SIMA before paragraph (a) to add a reference to the new section 8(1.2).
• Clause 3(4) would amend the portion of section 8(6) of SIMA before paragraph (a) to state that the preliminary determination referred to would be the preliminary determination made under section 38(1).
• Clause 5 would amend section 12(2) of SIMA, which currently provides that the Minister shall return the duties if he or she is satisfied than an amount has been paid that was not properly payable because of a clerical or arithmetical error. As a result of the modification, the Deputy Minister would return the duties in such circumstances.
• Clause 6(1) would amend section 13.2(1) of SIMA, which currently provides that an exporter to Canada of any goods to which an order or finding referred to in section 3 applies may request that the Deputy Minister review the normal value, export price or amount of subsidy in relation to those goods. The amendment would also confer this right on the producer of such goods and clarify the conditions in which that right might be exercised.
• Clause 6(2) would amend section 13.2(5) of SIMA to replace the reference to section 56(1) with a reference to section 57(b) and would also amend the wording of that subsection.
• Clause 7 would amend section 20 of SIMA, which would become section 20(1) and would be followed by a new section 20(2). Section 20 concerns the normal value of goods in the case of an export monopoly. Failing sufficient information to determine the value, the Deputy Minister may use the price of similar goods sold in a foreign country that he or she designates. The new section 20(2) would state two cases in which the Deputy Minister could not designate a country.
• Clause 8(1) would amend the portion of section 21(1) of SIMA before paragraph (a) to change the reference to certain provisions of section 20. The change would be made necessary by the amendment proposed to this clause.
• Clause 8(2) would add a new section 21(1.1) to SIMA. This new paragraph would provide that the unit price arrived at under section 21(1) would be adjusted in the prescribed manner and circumstances to reflect the differences in terms and conditions of sale, taxation and other matters that related to price comparability between the goods sold to the importer in Canada and like goods sold.
• Clause 9 would amend section 26(a) of SIMA to correct the reference to section 25(b)(ii), which is currently incorrect, to read section 25(1)(b)(ii).
• Clause 10 would add section 27(1.1) to SIMA. Section 27(1) provides for a calculation used to establish the export price in certain cases. The new section 27(1.1) would prescribe that the unit price arrived at under section 27(1) would be adjusted in a prescribed manner and circumstances.
• Clause 11 would amend section 30(2)(b) of SIMA to add a reference to section 29.
• Clause 12 would amend section 30.1 of SIMA to replace the word "from" with "of." The phrase that currently reads "goods from a particular country" would thus read "goods of a particular country."
• Clause 13 would amend the English version of sections 30.2(1) and (2) of SIMA and word them differently without changing their meaning.
• Clause 14 would amend section 30.3(1) of SIMA to replace the word "from" with the word "of." The parts of this section that currently read "goods from each of the countries" would thus read "goods of each of the countries."
• Clause 15(1) would amend section 31(2) and (3) of SIMA. Section 31 concerns certain cases in which investigations would be initiated by Revenue Canada. Section 31(2) is currently divided into two paragraphs, 31(2)(a) and (b). The new paragraph (a) would repeat the provision that no investigation could be initiated unless the complaint was supported by domestic producers whose production represented more than 50% of the total production of like goods by domestic producers who expressed either support for or opposition to the complaint. The new paragraph (b) would reproduce the provision that no investigation could be initiated unless the complaint was supported by domestic producers whose production represented 25% or more of the total production of like goods by the domestic industry. The new section 31(2.1) would prescribe that, for the purpose of paragraph 31(2)(a), if a domestic producer was an importer of, or was related to an exporter or importer of, allegedly dumped or subsidized goods, "domestic producers" could be interpreted as meaning the rest of those domestic producers. The new section 31(3) would provide that, in section 31(2)(b), domestic industry would mean, subject to section 2(1.1), the domestic producers as a whole of the like goods except where a domestic producer was related to an exporter or importer of allegedly dumped or subsidized goods or was an importer of "such goods."
• Clause 15(2) would amend the portion of section 31(4) of SIMA before paragraph (a) to add a reference to section 31(2.1) to reflect the amendment made to the previous subsection.
• Clause 16 would amend section 32(3) of SIMA to replace the reference to section 26(5) of CITTA with a reference to section 26(4) of that same Act.
• Clause 22(2) would amend the English version of section 38(1)(c) of SIMA to replace to personal pronouns "he" and "him" with "the Deputy Minister" and to replace "paragraph" with "subparagraph."
• Clause 25(1) would amend the portion of section 41(1) of SIMA before paragraph (a). Section 41 states that the Deputy Minister may make a final determination of dumping or subsidizing within 90 days after making a preliminary determination. The amendment would delete the term "imported" in the phrase "in respect of goods imported from a country or countries" and would thus read "in relation to the goods of that country or countries." A good may be a good of a country without being imported from that country; e.g., a Chinese trinket may have been imported from the United States. This amendment could clarify the country of origin of goods.
• Clause 25(2) would amend the portion of section 41(1)(a) of SIMA before section 41(1)(a)(iii). This amendment would repeal section 41(1)(a)(ii.1), which states that, in making the determination, the Deputy Minister shall consider whether either the actual or potential volume of dumped or subsidized goods is not negligible. If the volume is negligible, the Deputy Minister will not make a determination of dumping or subsidizing. Under the amendment, even a negligible volume of goods might give rise to a final determination of dumping or subsidizing.
• Clause 25(3) would amend section 41(2) of SIMA to provide, first, that the French term "subvention" would mean "subvention à l’exportation"⁽¹²⁾ and, second, that the term "General Agreement on Tariffs and Trade" would mean "the General Agreement on Tariffs and Trade, 1994." In an additional amendment to the English version, the personal pronoun "he" would be replaced by "the Deputy Minister."
• Clause 26(3) would add a new section 42(4.1) to SIMA, which would provide that if the CITT determined that the volume of dumped or subsidized goods from a country was negligible, it would have to terminate its inquiry in respect of those goods.
• Clause 31(1) would amend section 52(1)(b) and (c) of SIMA to add the phrase "is satisfied that," which already appears in section 52(1)(a).
• Clause 33 would amend the portion of section 57 of SIMA before paragraph (a) to clarify, in certain cases, the period during which the designated officer could re-determine the determination. Where goods are imported after the order date or the findings of the CITT or an order assessing duties, a designated officer may make a determination as to (a) whether the goods are goods of the same description as goods to which the order or finding or order of the Governor in Council applies, (b) the normal value of such goods and (c) the export price of such goods. Section 57 provides that the officer could re-determine such a determination in certain cases. The amendment would limit the period during which an officer might make a re-determination where there was an expedited review under section 13.2.
• Clause 34(1) would amend the portion of section 59(1) of SIMA before paragraph (a). Section 59 of SIMA provides that the Deputy Minister may re-determine certain determinations or re-determinations by a designated officer. The amendment would enable the Deputy Minister to re-determine his or her determinations or re-determinations of those by designated officers.
• Clause 34(2) would amend section 59(1)(c) of SIMA to add a case of re-determination by the Deputy Minister (section 28 of SIMA ¾ Where Exporter Provides Benefit on Resale in Canada).
• Clause 34(3) would add a new section 59(1.1) to SIMA, which would set the deadline by which the Deputy Minister could re-determine any determination following a review. In the case of an appeal to the CITT under section 61, the Deputy Minister could proceed with a re-determination prior to the date of the appeal hearing. Where like goods were being imported, the Deputy Minister could proceed prior to the date of their importation, provided that such a re-determination would not be incompatible with a decision by the CITT, the Federal Court of Appeal or the Supreme Court of Canada.
• Clause 34(4) would amend the English version of section 59(2) of SIMA to state that the Deputy Minister might re-determine his or her own re-determination under section 59.
• Clause 34(5) would amend the French version of section 59(3.1) of SIMA to make a correction and to replace "du" with "d’un."
• Clause 34(6) would amend the French version of section 59(4) of SIMA to make a correction and to replace "du" with "d’un."
• Clause  35 would amend section 61(2) of SIMA, the second part of which provides that any person who enters an appearance not later than the day of the hearing may be heard by the CITT. The amendment would require such persons to enter an appearance at least seven days before the date of the hearing to be heard by the CITT.
• Clause 38(1) would amend the French version of the definition of "ministre" in section 77.01(1) of SIMA to read "le ministre du Commerce international" instead of "le ministre du Commerce extérieur."
• Clause 39 would amend section 77.012(1) of SIMA to provide for the deadlines for the exercise of remedies set out under this provision.
• Clause 40(1) would amend the French version of the definition of "ministre" in section 77.1(1) of SIMA to read "le ministre du Commerce international" instead of "le ministre du Commerce extérieur."
• Clause 41 would amend section 77.12(1) of SIMA to clarify the deadlines for the exercise of remedies under this provision.
• Clause 42(1) would amend section 78(1)(a) of SIMA, under which the Deputy Minister may request certain persons to provide evidence relevant to an investigation or to the enforcement of SIMA. However, the Deputy Minister is not currently able to make such a request before an investigation is initiated. The amendment would enable the Deputy Minister to make such a request during the period between the notice that the complaint was properly documented and the initiation of the investigation.
• Clause 42(2) would amend the portion of section 78(1) of SIMA before paragraph (b) for the same purposes as the amendment proposed to section 42(1).
• Clause 43 would amend section 81(1) of SIMA, under which the Deputy Minister, in case of default of payment of duties within 30 days after a demand for payment has been made, may, by notice in writing, require any person in Canada to whom the goods were sold to pay the duty. The amendment would replace the term "Minister" with "Deputy Minister."
• Clause 46 would amend section 89(1)(a) of SIMA to replace the reference to section 56(1) with a reference to section 56.
• Clause 48 would amend the French version of section 96.21(1) of SIMA to replace the designation "ministre du Commerce extérieur" with that of "ministre du Commerce international."
• Clause 49 would amend the French version of section 96.3(1) of SIMA to replace the designation "ministre du Commerce extérieur" with that of "ministre du Commerce international."
• Clause 51(1) would amend section 97(1)(a.1) and (b) of SIMA. Section 97 of SIMA makes provision for cases in which the Governor in Council may make regulations on a recommendation by the Minister of Finance. The new paragraph (a.1) would enable the Governor in Council to make regulations respecting the factors that might be considered in determining (a) the existence of injury, retardation or threat of injury and (b) whether the injury, retardation or threat of injury had been caused by the dumping or subsidizing of any goods or by any other reason. The new paragraph (b) would enable the Governor in Council to make regulations specifying the circumstances and manner in which two or more properly documented complaints, investigations or inquiries might be joined and carried on as one, the persons who would have to be given notice of the joining, and how this would be done.
• Clause 51(2) would amend section 97(1)(e) of SIMA to reflect an amendment made to section 20 and to replace the reference to section 20(c)(ii) with a reference to section 20(1)(c)(ii).
• Clause 51(3) would amend section 97(1)(f) of SIMA to replace the reference to section 25(c)(ii) or 25(d)(i) with a reference to section 25(1)(c)(ii) or (d)(i).
• Clause 51(4) would amend section 97(1)(g) of SIMA to replace the reference to section 45(2) with a reference to section 45(6).
• Clause 51(5) would amend section 97(1)(k.2) of SIMA and would add new paragraphs (k.3) to (k.6). The new paragraph (k.2) would enable the Governor in Council to make regulations providing for the manner of making adjustments to export prices and normal values in situations of fluctuation or sustained movement in the rate of exchange. The new paragraph (k.3) would enable the Governor in Council to make regulations prescribing the period after which the Deputy Minister could refuse to consider representations referred to in section 49(5). The new paragraph (k.4) would enable the Governor in Council to make regulations prescribing the factors that the Deputy Minister could consider in making a determination under section 76.03(7)(a). The new paragraph (k.5) would enable the Governor in Council to make regulations providing for the factors that the Tribunal could consider in making a determination under section 76.03(10). The new paragraph (k.6) would enable the Governor in Council to make regulations on how principal and interest should be attributed to imported goods when part of those amounts related to charges not directly associated with the value of the goods.
• Clause 52 would replace the terms "amount of the subsidy" with "amount of subsidy" in the English version of section 6, section 8(6)(c) and (d), section 42(3)(a) and section 52(1.1)(a)(ii) of CITTA.
• Clause 53(1) would repeal the term "Chairman" from the English version of section 2(1) of CITTA.
• Clause 53(2) would add the definition of "Chairperson" to the English version of subsection 2(1) of CITTA and "means the Chairperson of the Tribunal."
• Clause 54 would amend the English version of section 3(1) of CITTA to substitute the terms "Chairperson" and "Vice-Chairpersons" for the terms "Chairman" and "Vice-Chairmen."
• Clause 55 would amend the English version of section 8(1) of CITTA to substitute the terms "Chairperson" and "Vice-Chairpersons" for the terms "Chairman" and "Vice-Chairmen."
• Clause 56 would amend section 9(1) of CITTA, which concerns the possibility that a member of the CITT who ceases to be a member for any reason other than removal may wind up any cases for which he or she is responsible. The new provision would have the same purpose but different wording.
• Clause 57(1) would amend section 26(5)(a) of CITTA to delete the reference to section 36 of SIMA, which would be repealed under the bill.
• Clause 57(2) would amend section 26(5)(b)(ii) of CITTA to delete the reference to section 36 of SIMA, which would be repealed under the bill.
• Clause 58(1) would amend section 28(2)(a) of CITTA to delete the reference to section 36 of SIMA, which would be repealed under the bill.
• Clause 58(2) would amend section 28(2)b)(ii) of CITTA to delete the reference to section 36 of SIMA, which would be repealed by the bill.
• Clause 61 would replace the term "Chairman" with the term "Chairperson" in sections 7, 8(2), 9(2) and (3), 14(2), 30.11(3), 33(1) and 59(1) and (2) of CITTA.

TRANSITIONAL PROVISIONS

Sections 62, 63 and 64 are provisions prescribing transitional measures that would apply upon the bill's coming into force. At that time, the Deputy Minister or the CITT would be reviewing cases; these provisions would make it possible to determine whether the present or the amended version of the provisions of SIMA would apply to specific cases.

COMING INTO FORCE

Clause 65 of the bill provides that the new Act or any of its provisions, or any provision of an Act as enacted or amended by this Act, would come into force on a day or days to be fixed by order of the Governor in Council.

COMMENTARY

Canada must provide the Canadian business community with the tools it needs to face international competition. Dumping and subsidizing are measures that the developed countries condemn, even though they frequently practise them. SIMA and CITTA are necessary, even essential, instruments for coping with dumping and subsidizing. It is important that these two statutes be constructed so as to achieve the purposes for which they were passed. The review conducted by the Sub-Committees has made it possible to determine the improvements needed and the passage of Bill C-35 would bring these into force. Rapid developments in international trade, however, should force authorities to be aware that periodic review of these two statutes will be necessary from now on.

Table of Concordance

(1)  See Chapter 19, NAFTA.