ARTICLE 1904
BINATIONAL PANEL REVIEW PURSUANT TO THE
NORTH AMERICAN FREE TRADE AGREEMENT

(Continuation)

V. THE RFI PROCESS

A. Background

Complainants have raised three challenges to the CITT’s actions in the Request for Information (RFI) process. As discussed in Section II.B.2.c, above, the CITT’s administration of the discovery process is within its discretionary powers and the appropriate standard of review for these issues is unreasonableness. Before turning to the specific arguments raised by Complainants, however, it is useful to set forth the relevant facts and events that frame these issues.

· On March 20, 1998, the CITT issued its Notice of Review. A schedule was provided of the major steps and dates in the review process.

· On June 3, the CITT sent by facsimile transmission a memorandum to all counsel and parties of record alerting them to the procedures that would apply to the RFI process in this proceeding. The memorandum noted that, as in two recent cases, a revised procedure would be used, incorporating a single question and response period, rather than two as had been previous practice, and that any questions that could not reasonably have been asked during the single RFI process could be raised at the public hearing, which was scheduled for August 18, 1998.

· On June 4, the CITT sent by facsimile transmission revised guidelines for RFIs. Key dates in the process were set forth. The third paragraph of the notice conveyed the following points:

• “[I]n some recent inquiries and reviews the number of requests for information directed to other parties has been needlessly cumbersome and, in many instances, the information requested has been of little or no relevance to the issues being considered by the Tribunal.”
• “As a result, the Tribunal has disallowed, in whole or in part, certain requests for information,” citing as examples requests relating to:

• an unduly long period of time,
• non-subject goods,
• facts or activities within the direct knowledge of that party,
• information available from public sources,
• large volumes of supporting information for data provided in response to Tribunal questionnaires, and documentation relating to business plans not yet approved by senior management of a firm.

The notice went on to explain that the CITT expected parties to limit the extent to which RFIs were excessive or irrelevant and that “where the relevance or usefulness of the information requested may not be readily apparent, it would be helpful if parties requesting information included the rationale for requesting it and the relevance of the information requested.” The notice added that “this will assist the Tribunal when it considers, either on its own initiative or in response to an objection, the appropriateness of requests for information in deciding whether to require a party to respond.” 

· On June 9, the CITT dismissed a motion to disqualify a non-lawyer from acting as counsel of record for one of the parties to the review, noting that:

As an administrative agency, the Tribunal conducts less formal proceedings than do courts. The Tribunal is of the view that, given the quasi-judicial nature of its proceedings and the resulting duty to act fairly, there is an implication that parties are entitled to be represented by counsel, [citation omitted] as is contemplated by the CITT Act, and to be represented by counsel of choice. The Tribunal regularly permits parties to be represented by persons other than lawyers, such as trade consultants, economists and accountants. The Tribunal is not persuaded by the submissions of counsel for Cello that a change in the Tribunal’s practice is warranted in this review. Moreover, to require that Professor Mathewson have certain experience as counsel or an advocate before the Tribunal or other courts in order to be allowed to appear as counsel for Amcast and Elkhart in this review, as suggested by counsel for Cello, would, in the Tribunal’s view, be reading a new requirement into the definition of “counsel” in subsection 45(4) of the CITT Act.

· On June 15, counsel for Complainants transmitted RFIs to Nibco and Streamline and Mueller. The requests, along with the subsequent objections, rulings, and status on appeal, are set forth in Table 1 of the Appendix. Several requests called for information relating to non-subject goods, one of the subjects specifically highlighted in the CITT’s June 4 notice as likely to be disallowed as cumbersome and of little or no relevance. Complainants’ requests did not provide any rationale or explanation of relevance for these requests or any other.

· On June 18, counsel for Nibco filed objections, as shown in Tables 1A and B of the Appendix.

· On June 19, counsel for Complainants requested a delay until June 25 to respond to Nibco’s objections.

· On June 22, counsel for Streamline and Mueller filed objections to Complainants’ RFIs, as shown in Table 1C of the Appendix.

· Also on June 22, counsel for Nibco objected to Complainants’ request for an opportunity and delay until June 25 to respond to objections and extension request, arguing the CITT’s June 4 memorandum encouraged the parties to explain the relevance and rationale for RFIs at the outset and that Complainants chose not to take this opportunity. Further, counsel for Nibco cited precedent in the Cold Rolled Steel Sheet (Review No. RR-97-007) case, in which the CITT refused to accept post-facto explanatory submissions.

· On June 22 and June 23 (two submissions), counsel for Complainants responded to Nibco’s June 22 letter, arguing that fairness and natural justice considerations supported the Complainants’ right to respond to objections, further stating that the relevance and usefulness of the RFIs was “readily apparent and self-explanatory,” acknowledging that one of Complainants’ counsel had “played a very limited role in the Cold Rolled Steel Sheet” review, but saying that Complainants’ counsel were not aware of the Tribunal’s position in that case, and objecting to the late filing of Streamline’s objections, as well as the cursory nature of Nibco’s objections. The second June 23 submission, a 19-page justification of Complainants’ RFIs, was rejected by the CITT as a response to objections and is not in the record.

· On June 25, counsel for Streamline filed a response to Complainants’ June 22 letter, arguing that the CITT’s directions of June 4 were clear, reminding the CITT that the reasons for these rules were common-sense limits and fairness to all parties, and that the issues of relevance and burden in the RFIs were “straightforward” and should be decided by the CITT.

· On June 26, the CITT issued its ruling on the RFIs. In relevant part, the CITT:

· Considered the arguments and points raised in Complainants’ letters of June 19, 22, and 23 requesting an opportunity to reply to objections and challenging the objections as cursory.

· Refused to consider any of the late-filed Streamline/Mueller objections except to the extent they were similar to those raised by Nibco’s timely-filed objections.

· Returned the second June 23 letter from counsel for Bow, which was characterized as a response to objections.

· Reminded the parties that RFIs “at this stage in the review must of necessity be limited to matters which are clearly of relevance to those at issue in this review. The Tribunal’s request for information process differs from a more wide-ranging and protracted interrogatory or discovery process counsel would typically experience in a civil action before the courts. The Tribunal has a clear sense of which of the requests and responses it considers are necessary for a full and proper consideration of the issues in this review.”

· Pointed out that “if a party feels that, notwithstanding the Tribunal’s decisions, there is a compelling matter which needs to be considered, it may notify the concerned party in advance of the hearing of its intention to raise that matter in accordance with the procedures issued to the parties on June 4, 1998.”

· On July 3, the CITT returned Complainants’ letters of June 22, 23, and 25, which had sought to respond to objections filed by Nibco and Streamline/Mueller.

· On July 10, the CITT noted that it would distribute to the parties on July 15 the responses to the RFIs and reminded parties of their opportunity to serve notices of “matters which have arisen” following the filing of the parties’ cases and reply submissions.

· On July 13, counsel for Complainants sent notice to counsel for Nibco to be prepared to address and bring documentation to the hearing on a list of issues that appear to cover the same ground as the RFI that were not allowed. A comparison of RFI subjects to Notice of Matters Arising (NMA) requests appears in Table 2 of the Appendix.

· On July 14, counsel for Streamline objected to Complainants’ 15-item NMA request for documentation which Streamline described as “a supplementary RFI procedure” that specifically sought information on matters the CITT had ruled not relevant during the RFI process, and asked the CITT to strike the request, in order to avoid unnecessary burden and cost.

· On July 16, counsel for Nibco provided a table comparing Complainants’ RFIs and July 13 NMA information requests, objecting to the submission of NMAs for all items for which RFIs were previously denied by the CITT.

· Also on July 16, counsel for Complainants responded to Streamline’s objections, citing the CITT’s June 4 memorandum for the proposition that in providing for NMAs, “the Tribunal gave parties an opportunity to make requests for information following a review of the evidence filed by all parties.” Complainants’ letter also quoted the CITT’s June 26 notice and summarized the key passage as signifying “thus, the Tribunal not only envisioned that Notices of Matters Arising would deal with the parties’ cases and the manufacturer’s reply submission but would also deal with compelling matters which need to be considered and in respect of which the Tribunal chose not to require responses to requests for information.” In addition, counsel for Complainants provided a rationale for each of the disputed NMA information requests.

· On July 21, counsel for Complainants replied to objections filed by counsel for Nibco, reiterating points made in the July 16 letter to Streamline and providing an explanation of relevance and need for the items requested, including those previously denied in the RFI process.

· On July 31, the CITT issued a ruling, noting that in doing so it must balance (i) relevance, (ii) burden, (iii) the specificity of the information requested, and (iv) the sufficiency of the information already on the record. In light of the information already on the record, the CITT stated it had a “clear sense of which of the matters identified in the notices of matters arising are necessary for a full and proper review of this nature.” Of the matters that related to RFIs ruled not relevant in the CITT’s June 26 letter, the July 31 ruling granted the request for two of the three categories, including all of the previously denied inquiries into non-subject matter goods. The request for the sales agreement and any service agreements with Mr. Sargeant -- which counsel for Nibco had previously said did not exist -- was denied as not relevant.

B. The Nature of the CITT’s Statutory Authority

Complainants’ first claim of error with respect to the RFI process is based on statements drawn from the CITT’s June 26, 1998, ruling denying three of Complainants’ RFIs on relevance grounds and the June 9 ruling on whether a non-lawyer could represent a party in the review. Specifically, Complainants point to the following excerpt from the CITT’s June 26 letter:

Given the tight overall time frames for the conduct of this review under the Special Import Measures Act, the Tribunal wishes to remind parties that the process of directing requests for information to other parties at this stage of the review must of necessity be limited to matters which are clearly of relevance to those at issue in this review. The Tribunal’s request for information process differs from a more wide-ranging and protracted interrogatory or discovery process counsel would typically experience in a civil action before the courts. The Tribunal has a clear sense of which of the requests and responses it considers are necessary for a full and proper consideration of the issues in this review.

Complainants take issue with the CITT’s characterization of its process as “less than ‘wide-ranging’” and its emphasis on “tight time frames.” To these points Complainants add the CITT’s statements in the June 9 letter that “as an administrative agency, the CITT conducts less formal proceedings than do courts” and its reference to the “quasi-judicial nature of its proceedings.” Taking these quotations together, Complainants argue the CITT has misapprehended its jurisdiction and statutory authority “to fully consider and admit relevant evidence.” (Complainants’ Brief at 39, 41).

After spending substantial time both at the February 8 hearing and in reviewing the record with respect to Complainants’ arguments on this point, the Panel is not persuaded that the CITT unreasonably construed the scope of its authority. As previously noted, the CITT may exercise “all such powers, rights and privileges as are vested in a superior court of record.” CITT Act § 17. Section 35 of the CITT Act directs the CITT to conduct its proceedings “as informally and expeditiously as the circumstances and considerations of fairness permit.”

It is plain from section 35 that the CITT has been granted authority to wield its “powers, rights and privileges” in a manner that is somewhat more informal and expeditious than would be the case in proceedings before a court, so long as “the circumstances and considerations of fairness” remain paramount. As discussed in Section II.B.1.c. above, the Federal Court of Canada has acknowledged these differences in procedure in proceedings before tribunals and has emphasized both the importance of fairness and the fact that fairness requires balancing of the parties’ sometimes divergent interests. CIBA-Geigy Canada Ltd. v. Canada (Patented Medicine Prices Review Board), [1994] 3 F.C. 425 at para. 32.

The passages Complainants object to from the June 9 and 26 rulings, when read in their entirety, are not to the contrary. The observation that the CITT, “as an administrative agency, conducts less formal proceedings than do courts” is nothing more than a restatement of section 35 of the CITT Act. The full sentence in the June 9 ruling in which the CITT referred to its “quasi-judicial nature” makes clear that that foundation is the source of the CITT’s “resulting duty to act fairly” and its decision to allow a party its counsel of choice, rather than suggesting the CITT has some lesser authority or license to give short shrift to the parties’ rights. Similarly, the statements culled from the June 26 ruling characterizing the RFI process as “differ[ing] from a more wide-ranging and protracted interrogatory or discovery process [that] counsel would typically experience in a civil action before the courts” and recognizing the “tight time frames for the conduct of this review,” are part of an overall discussion by the CITT of the need for a “full and proper consideration of the issues in this review.” Accordingly, upon closer examination of the objected-to phrases, the Panel does not agree that the CITT misapprehended the nature of its authority.

Complainants, however, appear to be arguing something more. Citing the Federal Court of Appeal’s decision in Magnasonic Canada Limited v. Anti-dumping Tribunal, [1972] F.C. 1239 (C.A.) at 1246-49, Complainants suggest that the CITT compromised its “duty to fully consider and admit relevant evidence” because of its over-emphasis of the “less than ‘wide ranging’” scope of discovery and “‘tight time frames’” of the review proceeding. Complainants’ Brief at 41. They contend that the CITT improperly allowed these considerations to limit the scope of certain RFIs sought by Complainants. But Complainants acknowledge that the CITT has the right to limit discovery and admissibility of evidence to what it judges to be relevant (Complainants’ Brief at 41; Tr. at 133), and it is incontrovertible that the statutory scheme imposes fairly stringent time limits on reviews. 

Faced with the need to accommodate competing considerations of fairness to all the parties and statutory time constraints, the CITT’s June 3 and 4 letters took, in the Panel’s view, an appropriate and sensible approach. The letters (1) put the parties on notice that in this proceeding, as in other recent cases, a single RFI round would be permitted, (2) explained that questions that could not reasonably have been asked during this single round could be addressed at the hearing, (3) alerted the parties to particular subjects that would likely be disallowed as irrelevant or needlessly burdensome, and (4) stated that “where the relevance or usefulness of the information requested may not be readily apparent, it would be helpful if parties requesting information included the rationale for requesting and the relevance of the information requested. This will assist the CITT when it considers, on its own initiative or in response to an objection, the appropriateness of requests for information in deciding whether to require a party to respond.” The June 4 letter provided an illustrative list of requests that had been disallowed, including “non-subject goods.” Complainants were thus on notice that their RFIs for non-subject goods were likely to be rejected and that there would be no provision for a round of responses to objections to RFIs. In spite of these clear warnings, they chose not to provide a rationale for the relevance of such RFIs in this case.

The question on review is whether the CITT acted unreasonably in denying Complainants’ RFI requests in these circumstances. In the Panel’s view, the CITT’s decision on this issue required it to weigh considerations of fairness to all the parties -- including Complainants’ desire for this information, their failure to justify the need for it after having been told it would likely be disallowed, and the burden on other parties who would have to respond if these RFIs were permitted. This process called upon the CITT to apply expertise, and as discussed previously, the CITT’s exercise of discretion will only be overturned if it was unreasonable. For several reasons, it was not.

First, Complainants were given the opportunity to provide a rationale for their RFIs and fair notice that the subject matter of those at issue here was controversial and had previously been disallowed. Their argument at the hearing, that the CITT’s June 4 letter used “an unfortunate choice of words” by saying “it would be helpful where usefulness may not be readily apparent” (Tr. at 98) and that this somehow placed Complainants in the impossible situation of having to decide whether it would be necessary to explain the relevance of their RFIs or not, strains credulity when Complainants had explicitly been told that requests concerning non-subject good were likely to be rejected. 

Second, Complainants had other opportunities to seek the information they wanted. The June 26 letter straightforwardly advised the parties that if they disagreed with the CITT’s decisions and felt a matter needed to be addressed, they could raise it during the NMA process. Complainants availed themselves of this opportunity, filing NMA requests for information on July 13 that closely tracked the RFIs that had been denied June 26. Indeed, counsel for Streamline and Nibco strenuously objected in letters filed July 14 and 16, describing Complainants’ NMA requests as “another kick at the can” and providing a table of side-by-side comparisons to show that Complainants were using the NMA process as “an invitation to pose again (albeit, with different words) the same questions that were extensively considered by the Tribunal and ruled [irrelevant] by way of its letter of June 26, 1998.” Notwithstanding these complaints, Complainants were permitted to respond to objections and on July 16 cited the CITT’s June 4 and 26 letters as establishing that the CITT intended the NMA process to give “parties an opportunity to make requests for information following a review of the evidence filed by all parties” and “thus, the Tribunal not only envisioned that Notices of Matters Arising would deal with the parties’ cases and the manufacturer’s reply submission but would also deal with compelling matters which need to be considered and in respect of which the Tribunal chose not to require responses to requests for information.” Complainants also provided an explanation of why their previously denied requests were relevant. As Table 2 illustrates, two of the three previously rejected requests, including those relating to non-subject goods, were allowed.

Third, at oral argument, Complainants were asked if they were arguing whether the situation rose to the level described by Chief Justice Lamar in Université du Québec ò Trois Rivières v. Larocque, [1993] 1 S.C.R. 471 at 491, in which he noted that “it may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice.” Tr. at 126. Further, counsel was asked whether Complainants had made any representations during the August 18, 1998 hearing in the case that the June 26 ruling on the RFIs had jeopardized their ability to make their case. Tr. at 127. Counsel was unable to recall such a representation, see id., nor did Complainants’ briefs assert such an argument. Given that Complainants took full advantage of their opportunity to obtain the desired information during the NMA process, asserting forcefully their rights as established by the CITT’s statements in the June 4 and 26 letters, they do not appear to have suffered any harm, even if the CITT’s ruling had been incorrect, which in the Panel’s view it was not. 

Complainants cite Magnasonic, supra, and Sarco Canada Limited v. Anti-Dumping Tribunal et al., [1979] 1 F.C. 247 (C.A.) at 258 paras d, e, f, 259 paras b, c, f, g, h, i, j, 260 paras a, b, c, for the proposition that the CITT’s over-emphasis on the time pressures of the statute and less than wide-ranging discovery “nullif[ied] the right to a full and fair opportunity to be heard.” Complainants’ Brief at 41-42. However, Complainants were able to obtain the information they sought and have made no showing that their rights to be heard fully and fairly were infringed. The Panel does not find that the CITT breached the principles of natural justice or acted unreasonably in construing the scope of its authority. 

C. The Claim That the CITT Pre-Judged Relevance

Complainants next contend that the CITT’s reliance, in the June 26 ruling on relevance of RFIs, on its “self-described ‘clear sense . . . of which requests it considers are necessary’” amounted to pre-judgment of relevance, resulting in a breach of natural justice. Complainants’ Brief at 39. Complainants go so far as to say that “the Tribunal’s ‘clear sense’ of that material’s [i.e., certain RFIs] admissibility, absent any physical review of such information, is an improper fettering of discretion and is an irrelevant consideration.” Complainants’ Brief at 45. At the outset, it is important to note that Complainants overstate their case: the June 26 ruling concerned the scope of discovery and made no determination with regard to admissibility. In the same way, Complainants’ reliance on Larocque, supra, at 487, is misplaced as Larocque also dealt with a refusal to hear admissible and relevant evidence, not the determination of the appropriateness of discovery requests, a distinction counsel for Complainants acknowledged at oral argument. Tr. at 134. To the extent Laroque applies here, it is instructive in its obiter dictum on the decisionmaker’s authority to determine relevance:

I also think, though in my opinion it is not necessary to decide this point in the case at bar, that the necessary corollary of the grievance arbitrator’s exclusive jurisdiction to define the issue is his exclusive jurisdiction then to conduct the proceedings accordingly, and that he may inter alia choose to admit only the evidence he considers relevant to the case as he has chosen to define it.
Id.

The issues in the June 26 ruling involved a judgment that Complainants had failed to demonstrate the need for RFIs on a subject they had been warned the CITT had previously found to lack relevance in cases of this kind. They made no effort to justify their requests by explaining their special relevance in this case. It thus appears the CITT was on firm ground in ruling the requests not relevant.

Complainants’ assertion, in paragraph 121 of their Brief, that unless the CITT compelled production of the requested information and physically reviewed it, it could not properly determine relevance and improperly fettered its discretion is not sustainable. To the contrary, this view would deny the CITT its discretion, as it would have no choice but to compel production whenever a party requested any information and could only determine relevance after reviewing it, forcing parties to bear unjustified burden and cost.

Complainants have not established that the CITT pre-judged relevance, breached natural justice, or acted unreasonably in its statements in the June 26 ruling regarding which requests were necessary for a full and proper consideration of the issues in the review. Instead, it appears that the CITT applied its expertise, gained through experience in cases of this kind, as to what types of information requests were likely to adduce relevant evidence. Complainants were offered the opportunity to demonstrate otherwise, but declined. The CITT was well within its discretion to rule as it did, and the Panel does not find this action unreasonable.

D. The Assertion of a New Relevance Standard

Finally, Complainants say the CITT’s June 26 ruling created a new, higher “clearly of relevance” standard for issuance of RFIs. The sentence Complainants object to reads as follows: “Given the tight overall time frames for the conduct of this review under the Special Import Measures Act, the Tribunal wishes to remind parties that the process of directing requests for information to other parties at this stage of the review must of necessity be limited to matters which are clearly of relevance to those at issue in this review.”

It is unclear what significance the “clearly of relevance” phrase had in the proceedings below. As written, it was a “reminder” to the parties about limitations on RFIs that were necessary “at this stage of the review.” There was no suggestion that this formulation would apply at later stages of the case or with regard to the evidence that would be admitted to the record. Indeed, we know that it did not, since Complainants sought the same information in the 

NMA process and were permitted to compel its production. Moreover, the CITT’s determination of what information would be required in the RFI process appears to have been based not on this part of the June 26 letter but on the CITT’s judgment of what was “necessary for a full and proper consideration of the issues in this review.” There is no indication that Complainants objected at the time to what they now view as the invocation of a new, higher standard of relevance or that they attributed the rejection of certain RFIs to reliance on such a factor. Thus, Complainants have made no showing that the CITT’s quoted statement on the relevance standard in the June 26 ruling flouted principles of natural justice or constituted an unreasonable exercise of the CITT’s expertise and discretion.

For all the foregoing reasons, the Panel does not view the CITT’s actions with respect to the RFI process as unreasonable.

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