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BINATIONAL PANEL REVIEW PURSUANT TO THE
NORTH AMERICAN FREE TRADE AGREEMENT
DECISION AND REASONS OF THE PANEL
ON REVIEW OF THE CANADIAN INTERNATIONAL
TRADE TRIBUNAL FINDING
December 15, 1999
The Complainant has raised a number of what it terms to be errors of jurisdiction. Having considered all the arguments on a standard of correctness, the Panel dismisses the allegations. In doing so, it notes that many were in fact those of law and fact and not jurisdiction. As such they were reviewed on the standards of patent unreasonableness and considerable deference. The primary issues dealt with herein are first, the failure of the Tribunal to require the production of interrogatories and second, whether the Mexican imports should have been the subject of a separate analysis. Included in this argument are questions concerning whether separate reasons and a separate order should have been provided (which issue has been addressed above in the DOR), whether Complainantís imports should have been cumulated or whether there was a basis to exclude it.
The Complainant takes issue with the Tribunalís alleged failure to require certain parties to respond to interrogatories which it had originally ruled relevant and producable. That is, the CITT initially deemed certain information relevant and requested its production, but subsequently decided to split the point and required only partial disclosure.9 The Complainant claims that the CITT lack the authority to do this. The Responding Parties which address this issue contend, in more detail, that any late disclosure of materials arose from the conduct of the Complainant itself.10
The Complainant argues further that it was prejudiced due to the late and non-disclosure of information.11 However, the Complainant stops short of articulating how the late or non-disclosed information prejudiced it. The Complainant does not mention what specific information it was deprived of, much less which lines of inquiry were precluded. Given the CITTís broad powers with respect to the conduct of the hearing and the Complainantís inability to specify the resultant prejudice, the Panel believes that this argument must fail.
The Complainant argues that the CITTís failure to subject imports from Mexico to a separate analysis resulted in jurisdictional error. It contends that a separate analysis should have compelled the Tribunal to either not cumulate it or to exclude imports from Mexico in the final result. This Panel will treat the separate analysis arguments of the Complainant as follows: firstly, its argument concerning whether a separate decision and reasons for a determination in respect of AHMSA should have been delivered; second, whether the CITT should have cumulated imports from AHMSA; and thirdly, whether the CITT should have excluded imports from AHMSA. These arguments are in the nature of error of law, error of fact, or mixed error law and fact.
This Panel reviewed the arguments of the Parties, the SIMA and the SIMA Regulations in the Preliminary Decision and concluded that the failure of the CITT to render a separate decision was an error of law and not jurisdiction. The CITT acknowledged this error in its DOR and subsequently issued a separate decision for Mexico, but held that it need not provide separate reasons. The Complainant argued, in the alternative, that the CITTís failure to issue separate reasons was a reviewable error of law. As discussed above, in the determination of the Panel with respect to the DOR, this Panel affirms the CITTīs Determination with respect to not issuing separate reasons for AHMSA.
The decision by the CITT to cumulate imports from Mexico with those from non-NAFTA countries is subject to review as a question of law, not as a question of jurisdiction. The CITTís decision involves the interpretation and application of SIMA section 42(3), not a legislative provision that limits its power as alleged by the Complainant. Therefore, the applicable standard of review does not reach that of correctness.
Section 42(3) permits the Tribunal to cumulate dumped goods from various countries in determining whether there has been material injury or a threat to the domestic industry. This is a fact specific determination within the discretion of the Tribunal. Particularly, cumulation is permitted where the 1) margin of dumping from each of the countries in question is not insignificant; 2) the volume of the goods from each of those countries is not negligible; and 3) where, in the opinion of the Tribunal, an assessment of dumping margins on a cumulative basis is appropriate taking into account the conditions of competition between the dumped goods from a given country, and (i) the dumped goods from any other country, or (ii) like goods of domestic producers.
The Complainant points to Algoma Steel Inc.ís Public Exhibit B-713 which indicates that imports from Mexico in the second quarter of 1997 were at the de minimus level of 2.9%. However, the time period used by the Complainant in its argument is restricted to the second quarter of 1997 which is outside the period for which the Deputy Minister made the finding of dumping and therefore is not the appropriate period for assessing the extent of negligibility pursuant to the definition. Moreover, Algoma took issue with the validity of relying on Exhibit B-7, an Exhibit that it says includes both subject and non-subject goods. Algoma submits that the Exhibit was prepared before further information such as the public staff report became available to it and therefore predates later data.14
Based on the information before it, the Panel therefore finds that, under either a standard of patent unreasonableness or that of considerable deference, the Tribunalís decision to exercise its jurisdiction to cumulate is not reviewable. While the Complainantís arguments that its imports were negligible in the early part of 1997 may have a certain intuitive appeal in the context of threat of injury analysis, it cannot be said that the Tribunalís decision to cumulate in the circumstances was unreasonable. In the circumstances, this Panel affirms the CITT Determination with respect to cumulation.
AHMSA argues, in the alternative, that if the CITT had the right to cumulate, then imports by AHMSA should have been excluded. The essence of the Complainantís argument is that AHMSA was not similarly situated to the other countries under investigation, in terms of volumes of imports and prices.15
As discussed in Polyphase Induction Motors16, the exclusion analysis involves a two part process. After analyzing the cumulated effect of imported goods, the Tribunal has the discretion to exclude those from a particular subject country or individual producers for limited and specific reasons. Exclusion is permitted where: 1) dumped subject goods from a source country in question constitutes a small proportion of the total subject goods from that country; or 2) the margins of dumping of subject goods from the source country are very low; or 3) the volume of dumped goods from the source country is very small in proportion of total dumped goods. The Tribunal has a great deal of discretion in deciding whether or not to so exclude and its decision, if reached, constitutes a determination of fact.17 It is a decision within both its mandate and expertise.
The Panel finds that this argument does not concern a jurisdictional error. It holds that there does not seem to have been an explicit request by AHMSA that it be excluded. The Panel finds that even if the Complainant had requested such exclusion, there are facts to support the Tribunalís decision not to exclude. Mexican goods were found to be 100% dumped and imports from Mexico were 26.2% of imports from all subject countries. Therefore, the finding was neither patently unreasonable nor reviewable under the standard of considerable deference. In the circumstances, this Panel affirms the CITT determination with respect to exclusion.
The Investigating Authority took the position at the hearing that the majority of the Complainantís allegations in respect of errors of law and or fact are in the nature of argument, are incomplete or inaccurate, are often selective and taken out of context, or are attributable to counsel rather than witnesses and are not supported by the references cited in the Complainantís brief.18 It is the Panelís position that dealing with each issue as raised in the Complainantís brief is unnecessary on the basis that it has carefully reviewed the Complainantís allegations and is satisfied that in each instance, the decision of the CITT was supported by evidence on the record and does not reach the level of reviewable error. The issues of substance raised by the Complainant which the Panel finds warrant separate treatment and consideration by the Panel will be dealt with on an issue by issue basis below, by both the majority and minority factions of the Panel.
The majority of Panel Members has reviewed the decision of the minority and agrees with it in certain respects and disagrees with it in part. The basis of the division is the degree of deference to be owed to the determination of the Tribunal and its findings under Canadian law. The majority will deal with the issue of deference owed to the Tribunal and the standard of patent unreasonability and then examine the specific errors alleged by the Complainant. For the reasons expressed hereafter, this Panel affirms the findings of the Tribunal.
It is necessary, in subjecting the finding of the Tribunal to judicial review, to determine the extent to which the Panel is authorized to examine and set aside decisions of public agencies, as well as the grounds for such action. The scope of judicial review is generally tempered in Canadian Law by the doctrine of curial deference. That doctrine stipulates that courts ought not to intervene particularly when a lower Tribunal has an applicable statutory authority, expertise in applying that authority in a specific context and particular experience in doing so on the facts. In such cases, Canadian courts hold that the Tribunal is best positioned to arrive at a determination and that a reviewing court ought not to undermine the Tribunalís authority, expertise and experience.
The role of the court in considering errors of jurisdiction is to interpret the enabling legislation and to determine whether that legislation permits the action taken. However, in exercising this jurisdiction, the reviewing court does not address the merits of the decision made by the public officials or agency and it is inappropriate for courts to intervene in the substance of public decision-making that is otherwise legal.19
The majority of Panel Members in the Preliminary Decision adopted a standard of patent unreasonability. The Panel did so in light of the experience of the Tribunal in the matters before it, case law authority before Canadian courts and the absence of a right of appeal from decisions of the CITT. The majority applies the same standard.
The Complainant raises many errors of law and fact in its submissions. Most are actually requests that the Panel arrive at a different conclusion than was reached by the Tribunal in view of the applicable evidence. This Panel notes that the Tribunal, being the court of first instance, is best positioned to evaluate the facts and that this Panel should not substitute its own decision on those facts for the decision of the Tribunal.
As noted, the majority will address only particular errors alleged, below. The majority will apply the patent unreasonability standard to determine, in each case, whether there was any evidence upon which the Tribunal could have made the findings that it did. If some evidence in support of such findings does exist, it maintains that the Panel cannot look any further. In issue is not whether the Tribunal could have arrived at a different determination on the facts, or whether the Panel may have preferred some other determination, but rather whether there was a sufficient basis on the facts for the Tribunal to decide as it did.
The Complainant alleges that the CITT erred at page 18 of the Statement of Reasons in Finding NQ-97-100 in finding that there was a downward trend in prices caused by imports.21 The Tribunal notes at page 18:
The Complainant contends however, that Stelco was able to increase prices on March 5, 1997, on June 5, 1997 and that in the second quarter of 1997 Stelco was selling at prices higher those in the first quarter of 1997.22 The factual basis for the Tribunalís actual finding is found in examining Table 2, entitled the Domestic Carbon Steel Plate Market which is included on page 11 of the Statement of Reasons. Average unit prices for domestic producers show a decline from $717 in 1995 to $683 in 1996 to $666 in the first quarter of 1997. In the row titled Average Domestic Unit Price, the price of subject steel in the first quarter of 1996 is $663 which drops to $657 in the first quarter of 1997. It is important to note two further points with respect to this allegation. First, the focus of the Tribunalís statement was on industry wide price trends and not those of Stelco alone which was the focus of the Complainantís argument. Moreover, there was dispute as to whether the price increases actually took effect. Second, the Tribunal statement is reasonably limited to the first quarter of 1997. The antidumping investigation with respect to imports was started in February of 1997 which would reasonably have had an effect on prices. The Tribunal notes later on in the same paragraph that prices did in fact increase in the latter part of 1997 after the determination of dumping.
The Complainant takes issue with the Tribunalís finding that there was a widening price gap between domestic subject goods and imports in the first quarter of 1997.23 The Tribunal says at page 17 of the Statement of Reasons ďin 1996, the price of both imported and domestic carbon steel plate declined by about the same amount, but, in the first quarter of 1997, the price of imports fell at a considerably faster rate, thereby widening the gap between the twoĒ. The Complainant submits that this is not possible since there was evidence on the Record which proved that Wirth followed Stelco pricing by a set percentage, a discount of 5%. It refers to Table 2 at page 11 of the Statement of Reasons and reproduces a chart at paragraph 259 of its Brief to support its position that there is no price gap increase.
However, the argument is flawed in two respects. As noted at the oral hearing, this allegation does not take account of the fact that Wirth was not the only importer of steel. Therefore, the fact that Wirth sets its prices with the domestic market is not conclusive. Moreover, the figures provided by the Complainant at paragraph 259 are in fact those for Discrete Plate while the Tribunal was referring to changes in Average Domestic Unit Price . Therefore, in examining the figures set out in Table 2 of the Statement of Reasons, there was some evidence to support the contention that the average import prices were falling at a faster price. The average domestic unit price went from $663 in the first quarter of 1996 to $657 the first quarter of 1997 a difference of $6. The average price of importers went from $675 to $610 during the same period of time, a difference of $65. Stelco notes that Table 16 (dealing with all subject plate) of the Public Staff Report shows that the unit value of subject imports declined by 10% in the first quarter of 1997 over the comparable price in the first quarter of 1996 whereas domestic prices declined by only 1%. It notes that Mexican import plate prices continued to decline in 1997 over the comparable period in 1996.24 Again, it is not patently unreasonable for the Tribunal to have found that there was a widening gap between domestic and importer prices.
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9 Brief of the Complainant, at p. 73.
10 Brief of Stelco at para. 116; Brief of IPSCO at para. 87.
11 Brief of the Complainant, at para. 244.
12 Department of National Revenue, Final Determination of Dumping and Statement of Reasons, September 25, 1997, Tribunal Exhibit NQ-97-001-4, Administrative Record Vol. 1, at 110.1.
13 Public Exhibit B-7, Administrative Record, Vol. 13C, p. 99.
14 Brief of Algoma at para. 97 referring to Pre-Hearing Staff Report, Public Exhibit 6C, Administrative Record, Vol 1, p. 240.
15 Brief of the Complainant at p.175 - 78.
16 Polyphase Induction Motors originating in or exported from Brazil, France, Japan, Sweden, Taiwan, U.K., U.S.A. (April 28, 1989) Inquiry No. CIT-5-88 (C.I.T.T.).
17 Polyphase Induction Motors originating in or exported from Brazil, France, Japan, Sweden, Taiwan, U.K., U.S.A. (April 28, 1989) Inquiry No. CIT-5-88 (C.I.T.T.)
18 Brief of the CITT, at pg. 7.
19 Director of Investigation and Research v. Southam Inc. et. al.  1 S.C.R. 748.
20 U.E.S. Local 298 v. Bibeault,  2 S.C.R. 1048.
21 Brief of the Complainant, at para. 251.
22 Brief of the Complainant, at para. 251.
23 Brief of the Complainant, at para. 257.
24 Brief of Stelco, at para 150.