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DECISION AND REASONS OF THE PANEL ON REVIEW OF THE CANADIAN INTERNATIONAL TRADE TRIBUNAL FINDING December 15, 1999
TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUNDIII. STANDARDS OF REVIEW (1) The Determination on RemandV. ISSUES A. ERRORS OF JURISDICTIONB. ALLEGED ERRORS OF FACT/ALLEGED ERRORS OF LAW/ ALLEGED ERRORS OF MIXED FACT AND LAW
I. INTRODUCTION This Panel was convened pursuant to Article 1904 of the North American Free Trade Agreement (“NAFTA”). This Panel Review, CDA-97-1904-02, was constituted in response to a Request for Panel Review filed with the Canadian Secretariat by the Complainant on November 28, 1997 pursuant to Rule 34 of the Rules of Procedure for Article 1904 Binational Panel Reviews of the NAFTA (“Rules of Procedure”). The Complaint in this Panel Review, was filed on December 29, 1997 by the Complainant Altos Hornos de Mexico, S.A. de C.V. (“AHMSA”), a Mexican exporter of subject goods to Canada. It alleges several errors of jurisdiction, law and fact with respect to the Final Determination (the “Determination”) of the Canadian International Trade Tribunal (“CITT”) issued on October 27, 1997 in the Canadian Gazette pursuant to section 43 of the Special Import Measures Act, R.S.C. 1985, Chap. S-15 (“SIMA”) . The Determination held that certain Hot-Rolled Carbon Steel Plate Originating in or exported from Mexico, the People’s Republic of China, The Republic of South Africa and the Russian Federation threatened to cause injury to the domestic industry. The subject matter of the Complaint are:
The parties to the Panel Review include the Complainant, AHMSA, and the respondents, the Investigating Authority (CITT), Stelco Inc., Algoma Steel Inc. and IPSCO Inc. The Public Hearing in this matter was held in Ottawa, Canada on January 18-19, 1999.
Preliminary Decision III. STANDARDS OF REVIEW In its Remand Order, dated May 19, 1999, this Panel outlined the standard of review to be applied in this Panel review. The majority held that there was
a correctness standard to be applied to issues of jurisdiction and a “patent unreasonableness” standard to be applied to issues of law and issues of fact.
1 The concurring minority opinion held that there was a correctness standard to be applied to issues of
jurisdiction and a “considerable deference” standard to be applied to issues of law and to issues of fact.2
IV. DETERMINATION ON REMAND
On July 15, 1999, the Complainant filed a Motion requesting the joinder of Panel Reviews CDA-97-1904-02 and CDA-MEX-99-1904-01 and the termination of CDA-MEX-99-1904-01 “on the basis that [it] has been joined with and transferred to the Panel Review currently underway in CDA-97-1904-02".
3 On July 22, 1999, counsel for the CITT filed a submission stating that it had complied with the Remand
instructions of the Panel and that the matters relating to the Second Panel Review be heard with this Panel Review. On July 22, 1999, IPSCO Inc. filed a
letter objecting to the filing of CDA-MEX-99-1904-01 on the basis that the DOR was not a definitive decision under subsection 77.01(1) of SIMA. On July
26, 1999, Stelco filed a response to the Motion as well as its own Notice of Motion requesting a dismissal of the Second Panel Review and the joinder of
the two Panel Reviews to the extent necessary to deal with its motion. Algoma filed submissions stating it supported the position of Stelco. Permission
to intervene was granted to the Attorney General of Canada and the Government of Mexico, each of whom filed submissions in opposition of the request to
join panels.
In the DOR, the CITT, pursuant to section 77.016 of the SIMA, accepts that it erred in not issuing a separate finding for Mexico. This was corrected by issuing a Corrigendum to the Finding of October 27, 1997 in NQ-97-001. The Corrigendum states in relevant part as follows:
With respect to whether the Tribunal should have provided separate reasons for reaching its determination in respect of imports from Mexico, it maintains that “there is no separate legislative requirement or persuasive policy rationale to support the need for separate reasons to be issued with respect to the goods from Mexico”.5 First, it states that, while it is clear that subsection 43(1.01) and paragraph 43(2)(a) of SIMA require that the Tribunal issue a separate order or finding whenever goods of a NAFTA country are concerned, section 43(2)(b) imposes no such requirement with respect to reasons.6 At page 3 of the DOR it notes that
Second, the Tribunal refers to the wording of other provisions, specifically Articles 802 of the NAFTA and s. 20.01 of the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.), as indicative that where the NAFTA Parties intended to create special rights and obligations (such as the provision of reasons) they did so explicitly. Third, the Tribunal notes its right to cumulate goods of different nations as provided in sections 42 to 47 of the SIMA. It finds that because of this, providing separate reasons for a NAFTA Party would mean either parroting the same reasons provided for non-NAFTA Parties (therefore making them redundant) or providing a separate analysis for NAFTA Parties. The latter requirement, the Tribunal contends would prevent it from cumulating thereby circumventing the purpose of that measure and also result in the exclusion of NAFTA countries from Canadian trade laws. In addressing these contentions, the Tribunal revisits the issue of cumulation which was argued in its submissions before the Panel. The Challenge to the DOR is based on the following grounds. First, the Complainant argues that the Tribunal failed to comply with the instructions of the Panel. It alleges that the Panel did not instruct the Tribunal to issue a Corrigendum of new orders and submits that not following a Panel’s explicit directions is reason to quash a DOR.
Second, it submits that the Tribunal was functus officio and erred as a matter of jurisdiction and law in issuing a Corrigendum of two new Orders
to replace the previously rendered single Order. The two new orders were effectively (1) a new s. 43(1.01) separate order in respect of imports from Mexico
and (2) a new s. 43(1) group Order for the other subject countries. The Complainant alleges that in doing so, the Tribunal implied it had a right to reopen
the existing order, reconsider Mexico separately and decide again. It also submits that the Tribunal was statutorily time barred from making such a new
order since the statutory deadline to do so had expired 20 months previously in September of 1997.7 To
protect its rights, the Complainant issued a Second Request for Panel Review based on the Corrigendum as a separate and definitive new decision pursuant to
section 77.013(1) of the SIMA.
The Panel is unanimous under both the standard of patent unreasonableness and considerable deference in making the following findings with respect to the DOR and the Challenge. The Panel finds that the issuance of the Corrigendum to the Tribunal’s original finding in the Determination on Remand was consistent with the instructions given to the Tribunal by this Panel. It therefore, was not a definitive new decision which the Panel may quash. The Panel notes that it charged the Tribunal with the duty to interpret and apply the SIMA, including section 42, in a reasonable manner and that certain arguments made by the Tribunal went beyond the scope of that charge. Therefore, the Panel considered only arguments relevant to the issue of separate order and reasons in arriving at its determinations.
In the review, the CITT claims to have analyzed imported steel from Mexico both on a cumulative basis and individually. If there was a requirement of
individual analysis, this Panel would find that the CITT fell short notwithstanding its assertions to the contrary. However, as neither the SIMA nor the
SIMA Regulations call for a separate analysis, the CITT need not analyze on an individual basis.
The Panel further rejects the Complainant’s argument that the Panel itself lacks jurisdiction to remand the s. 43(1) order. The purpose of judicial review under Canadian administrative law, and specifically under the NAFTA and the Federal Court Act, is to correct errors made in the first instance. Therefore, the Panel can require the Tribunal to take necessary corrective action. The issue before the Panel is whether the final determination of the Tribunal, arrived at in NQ-97-001, constitutes a finding and order consistent with SIMA section 43(1). If that finding needs to be explained and/or corrected, the Panel can issue the necessary instructions that it be done. This is exactly what the Panel did in the Preliminary Decision.
In its Motion, the Complainant requests that the Second Request for Panel Review, CDA-MEX-99-1904-01 be joined to CDA-97-1904-02, the current matter before
this Panel. In its motion, Stelco requests an Order striking out CDA-MEX-99-1904-01 and the joinder of the two panel reviews for the purpose of hearing its
motion and related procedural matters. The Panel dismisses both of these motion for the following reasons.
V. ISSUES 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 Complainant’s imports should have been cumulated or whether there was a basis to exclude it.
The Complainant takes issue with the Tribunal’s 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 CITT’s broad powers with respect to the conduct of the hearing and the Complainant’s inability to specify the resultant prejudice, the Panel believes that this argument must fail.
The Complainant argues that the CITT’s 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 CITT’s 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 CITT´s 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 CITT’s 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.’s 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 Tribunal’s decision to exercise its jurisdiction to cumulate is not reviewable. While the Complainant’s 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 Tribunal’s 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
Complainant’s 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 Tribunal’s 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 Complainant’s 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 Complainant’s brief.18 It is the Panel’s position that dealing with each issue as raised in the Complainant’s brief is unnecessary on the basis that it has carefully reviewed the Complainant’s 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 Tribunal’s
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
Tribunal’s 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 Tribunal’s statement was on industry wide price trends
and not those of Stelco alone which was the focus of the Complainant’s 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 Tribunal’s 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 “in 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 two”. 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. The Complainant argues that the Tribunal erred in finding that, while “domestic producers generally price product for delivery within a relatively short time frame, rarely exceeding a month, importers, in contrast, sell their product at today’s prices for delivery in up to six months.” It submits that the evidence indicates that domestic producers actually deliver on a nine week time frame.25 It also argues, at paragraph 263 of its Brief, that the Tribunal erred in finding that the largest importers often presold much of its imported plate and that the price quoted for such presold imports became the negotiating base in the market, unless there were subsequent sales at even lower prices. The Complainant submits that this ignores the fact that contracts for presold plate will depend on conditions of delivery and that the product is completely separate from Canadian domestic plate with separate terms and conditions. Specifically, import plate is rusted and its flatness is not up to domestic standards. Moreover, very little bargaining is done on the price since the product is needed immediately and is usually shipped out in 24 hours. Finally, the Complainant takes issue with the finding that such future sales prolong the period that any particular dumped price can influence and exert pressure on market prices. It submits that once a sale is made for future delivery it is gone and that the prices have no impact on Canadian prices in the future. The Complainant may be correct that the period for the delivery of domestic steel on occasions was longer than one month. However, the Tribunal was not concerned with the exact period of time during which domestic or for that matter, foreign steel was being delivered. It was concerned with the suppressive effect upon price caused by delays in delivery of imports. The majority finds that the CITT’ determination of fact in this regard was not patently unreasonable. Wirth’s policy of pricing imports close to domestic market prices indicates that regardless of the different “conditions of sale”, such imports were competitive with domestic product. Further, the CITT heard experts who attested to the fact that while the price of steel was determined at time of sale, the impact of that price continued until the goods were actually delivered. Purchasers were unwilling to pay more for goods when there were accessible lower price alternatives. Further, evidence through a Wirth witness showed that 30% of goods were not presold and were there available to exert price erosion.26 The Tribunal concluded that this constituted reason to find that imports had a suppressive effect on prices.27 The Tribunal received and considered significant documentary evidence of the connection between import offers, import sales pricing and domestic price suppression. 28 Given the high standard of deference owed to it as an expert Tribunal of fact and the presence of evidence in support of its finding, its conclusion is not patently unreasonable. The Complainant alleges that the Tribunal erred in fact in finding that there were increases in imports from the subject countries. It refers to Exhibit B-7 for evidence of declining imports, particularly from 1995 to 1996.29 It also takes issue with the finding that increasing dumped imports were displacing undumped imports from other countries. 30 At page 20 of the Statement of Reasons, the CITT notes:
Evidence of increased dumped imports was available to the Tribunal, as noted in Tables 14 and Table 2 in the Statement of Reasons. Table 2 post-dates Exhibit B-7 and only deals with subject goods, which B-7, as noted, does not. The evidence indicates that dumped imports from the subject countries increased from 5 to 8% of market share from 1994 to 1997.31 From the first quarter of 1996 to the first quarter of 1997 there was an 11% increase in imports. Table 14 also indicates that imports from non-subject countries decreased correspondingly. They went from 8% in 1994 to 5% in 1997.32 Therefore, the CITT’s findings were, again, not patently unreasonable.
The Complainant alleges a number of errors with respect to the Tribunal’s findings regarding the cause of price erosion in the industry. It alleges
that the finding that imports caused price erosion was an error. It, instead, attributes price erosion to the following factors. First, it points
to Stelco’ price decrease to increase its market share in 1996 as the real cause of suppression and erosion. It alleges that this had a significant
negative impact on the market when the domestic steel industry followed suit.33 Second, the
Complainant maintains that this was compounded by imports of steel from the United States and by the sale of Cut-To-Length Plate in Canada. It
argues that the Tribunal’s findings that imports from the United States were unlikely to increase and that they were uncompetitive because prices
were significantly higher prior to the Preliminary Determination was a “manifestly erroneous finding of fact”.
34 With respect to sales of CTL plate, it alleges, that the Tribunal also erred in finding that
it was uncompetitive.
The Tribunal deals with the U.S. factor on pages 20 - 21 of the Statement of Reasons. This issue is raised again under errors of law as being one of the real causes of the threat of injury finding against the subject countries. First, and most importantly, there was no finding that U.S. imports were dumped. The issue before the Tribunal was whether dumped goods caused material injury or threat of material injury. In doing so, the Tribunal does not have to ensure that dumped goods are the only and sole cause of the threat or even the principle cause. In 1983, the Federal Court of Appeal found in Sacilor Acieres et al. v. Anti-dumping Tribunal et al. (1985) 9 C.E.R. 210 at 214 that it is the role of the Tribunal to weigh and balance all the factors:
In making its determination that U.S. goods were unlikely to contribute to price erosion there was evidence before the Tribunal, in Table 16 in
the Public Pre-hearing Staff Report that carbon steel imported from the United States was 1) much higher in price than carbon steel exported from
subject countries; 2) that steel from the United States was not dumped in Canada; and 3) that steel from the United States did not compete with
subject goods in a manner comparable to that of steel from the subject countries.35 Table 16
indicates that in the first quarter of 1996, U.S. steel plate was sold for $1231 per tonne, while in the first quarter of 1997 it was sold for
$672. The evidence for imported steel from the subject countries were $675 and $610 and domestic prices were $663 and $657 respectively. In
1996, the investigation year, the Tribunal noted that the import volumes from the United States of the subject plate were lower than in previous
years and were substantially below import volumes of the subject countries. It also noted the evidence that U.S. imports were increasing in the
first quarter of 1997 and likely to increase in the second quarter. However, it found that evidence showed that its prices were unlikely to
change in the foreseeable future and that in fact prices at that time were close to Stelco book prices in August of 1997 and significantly
higher than prices for goods prior to the Preliminary Determination.36
Moreover, in addressing the effect of CTL Plate on price on page 20 of the Statement of Reasons, the Tribunal found that CTL while lower in price than discrete plate, was sold within a narrow segment of the steel market, that the prices of CTL were different and stable and that such sales did not compete with the subject goods to a substantial extent. Evidence was established at the Tribunal’s hearing 37 that the price differential was based on the fact that plate cut from coiled plate steel was primarily in narrower widths (72 inches and below) than discrete plate; while the standard width of both domestic and imported discrete steel plate was 96 inches.38 In addition, there was testimony from witnesses that producers, specifically Algoma and IPSCO, sold coiled plate at levels that would not permit an undercutting or erosion of the prices of discrete plate.
The Tribunal found that there was no material injury and held further that imports from the subject countries threatened to injure the domestic
hot-rolled steel industry. In so doing, the Tribunal found that there was a causal connection between the dumped imports and the threat of
material injury.
The Tribunal further stated that it had examined the evidence on the record with respect to the following issues; inter alia:
The Panel is obliged to refer back to the Tribunal's Statement of Reasons in order to review its findings that there was a causal connection
between imports from subject countries and a threat of material injury. The Tribunal sets out those reasons on pages 13 to 22 of its Statement
of Reasons. It is apparent, from those reasons, that the Tribunal did consider some evidence in arriving at its determination that there was
a threat of injury, and further that there is evidence on the record in support of the Tribunal's findings.
There is nothing in the language of paragraph 42(1)(a)(i) of SIMA or any other provision of SIMA which specifies the exact nature of the causal relationship that must be established between the dumped imports and material injury. Accordingly, the issue of causation is a matter that comes squarely within the Tribunal's area of expertise and is further a matter where the Tribunal enjoys a broad discretion. The following extract from the Hot-Rolled Carbon Steel Sheet Panel decision is helpful:
It is interesting to note that the primary emphasis of the Complainant on the issue of causation at the within hearing related to whether the Tribunal was obligated, under SIMA, to consider the effect of the dumped imports from Mexico separately from other dumped imports from other countries. For reasons articulated elsewhere in this decision, this argument has no basis in law and is rejected by the panel. The Complainant also raised issues with respect to virtually each and every factual consideration referenced by the Tribunal in the context of its causation finding. Counsel for Stelco argued that much of this argument was in effect an attempt to have the panel rehear evidentiary matters that were before the Tribunal and to reevaluate and re-weigh that evidence. Counsel's point is well taken. The panel does not propose to deal with each and every factual issue raised by the Complainant as it relates to the issue of causation. As stated above, the panel has carefully reviewed the submissions of the Complainant in this regard, in light of the evidence on the record, and finds that the Complainant has failed to demonstrate any reviewable error under the patently unreasonable standard of review. However, certain key elements of the Tribunal's methodology relating to price suppression and erosion which were the subject of significant discussion at the within hearing will be briefly discussed below.
The Complainant argued that the falling price of steel in the domestic market was caused by Stelco's price leadership and by declining prices in
the domestic market itself. Accordingly, the Complainant argued that the Tribunal committed an error of fact in finding a causal connection
between the dumped imports and the threat of injury.
The Tribunal then considered evidence to determine whether a small volume of imports could compete in the domestic market and have a significant
impact on prices. It considered, among other factors, the fact that imports had a wide customer base, that Samuel expected the domestic industry
to compete with Wirth's prices, that setting prices at a fixed rate below market with Wirth's prices had a negative effect on market prices and
that in continuously preselling steel Wirth's prices would compound that negative effect upon domestic steel prices and would deplete the
market share of the domestic industry.
The panel finds that this interpretation is not patently unreasonable, and that the Tribunal’s interpretation of the appropriate standard of
causation is not inconsistent with SIMA and/or the anti-dumping code.
In assessing the causation issue the Tribunal clearly considered some of the additional factors prescribed under subsection 37.1(3) of SIMA and considered the volumes and prices of like goods that were not dumped as set out in paragraph 37.1(3)(a)(i) of the SIMA Regulations. Further, the Tribunal considered changes in the patterns of consumption of the goods or the like goods as set out in subparagraph 37.1(3)(a)(iii) of the SIMA Regulations. The Tribunal ultimately concluded that:
Further, it is clear that the Tribunal also considered developments in technology and the productivity of the domestic industry and specifically,
that the Tribunal considered the domestic producer’s plans to expand their capacity and improve production processes.
2. MINORITY OPINION: PANEL MEMBERS GARCIA-CORRAL and ORTIZ DID THE CITT COMMIT REVIEWABLE ERROR IN FINDING THREAT OF INJURY?
The Minority has had the benefit of reading the Majority's Opinion from which we agree in part and disagree in part. While we agree, in the result,
with the Majority on most issues, we have come to these conclusions on the basis of a considerable deference standard.
41 We disagree with the Majority, on issues relating to the threat of injury analysis, where
utilizing a standard of considerable deference, we would have remanded parts of the Decision back to the CITT for further analysis.
The CITT found that the injury suffered by the domestic industry was not of the duration nor the extent necessary to constitute material injury within the meaning of the SIMA.42 Having so found, the CITT went on to consider whether there was a threat of material injury and, if so, whether there was a causal link between the dumped imports and any threat of injury. The requirement that the CITT carry out a causal analysis is found in SIMA s.42(1), as amended by the WTO Agreement Implementation Act.43 The CITT has recognized, in past decisions 44, that the purpose of amending subsection s.42(1)(a)(i) of the SIMA was to make it consistent with the WTO Agreement on the Implementation of Article 6 of the GATT, 1994. SIMA s.42 states:
Section 2(1) of SIMA defines injury as material injury to the domestic industry. In making a finding of threat of material injury to the domestic industry, subsection 2(1.5) of SIMA requires that the “circumstances in which the dumping... of [the subject] goods would cause injury [must be] clearly foreseen and imminent.” Even though the SIMA does not establish more details with respect to the nature of the causal relation that must be established, the SIMA Regulations prescribe certain factors for the purposes of determining whether the dumping of subject goods is threatening to cause injury. In pertinent part, it reads:
As with respect to the requirement of a causal relationship between effects of dumping and the threat of injury, the SIMA Regulations go on to prescribe additional factors. It reads, in pertinent part:
In the instant review, the CITT noted that the various factors prescribed in s.37.1(2) of the SIMA Regulations were relevant to its inquiry. Specifically, it said that it reviewed:
The CITT went on to list the additional factors prescribed in s.37(3)(a) of the SIMA Regulations for determining whether there is a causal relationship between the dumping and the threat of injury. The CITT also noted the requirements of paragraph 37.1(3)(b) which direct it to determine whether any factors other than the dumping of the goods is threatening to cause injury. The CITT concluded that it must determine whether there is a causal relationship between the dumping of the goods and the threat of material injury and that it must ensure that injury caused by other factors is not attributed to the dumped imports. The CITT noted that when making a finding of threat of material injury it was required to ensure that the circumstances in which the dumping of the subject goods would cause injury must be clearly foreseen and imminent. The Tribunal began by examining the extent to which there had been growth in imports from the named countries. The Tribunal found that the imports grew over the relevant time frame and concluded that the subject countries will continue to export to Canada and that “these circumstances are clearly foreseen and imminent”. The CITT considered the increase in imports of the countries in question, and then it considered the tendency of imports in the future, in the absence of antidumping duties.45 The CITT held that the substantial cumulate increase in import volumes of carbon steel plate from the named countries in 1994 to the first quarter of 1997 and the fact that imports continued, even increased following the initiation of the investigation by the Deputy Minister and up to the Tribunal’s inquiry, indicated that it was likely that the subject countries would continue to export to Canada. The CITT held that, in its view, these circumstances were clearly foreseen and imminent. 46 With respect to the capacity of the countries in question to continue exporting to Canada, the CITT found that the capacity of the mills to produce carbon steel plate in the subject countries was several times that of the domestic producers. The CITT further found that the freely disposable capacity in these mills was extensive, particularly in China and Russia.47 The CITT held that, in its view, the capacity analysis showed that exporters in the named countries clearly had the capacity to continue, and even to increase, their exports to Canada. Moreover, the CITT held that the conditions which exporters in each of the countries under investigation faced, or would face, in major export markets, as a result of antidumping or other measures limiting their access, would likely create an incentive to direct their exports to countries without these restrictions, such as Canada.48 Having determined that dumped imports are likely to continue, the CITT eventually turned to the question of whether the dumped imports were likely to constitute a threat of injury. In this respect, the CITT purports to have assessed the extent to which there was a causal link between the dumped imports and the price erosion, price suppression and financial performance and, if there was, whether it was likely to continue in future. The CITT noted that a key question in its analysis was whether dumped imports, or other factors, have caused the downward pressure on prices and, if so, whether dumped imports were likely to continue to impact prices in the absence of antidumping duties.
The CITT compared prices of imported and domestic carbon steel plate during the period from 1994-1997. The CITT concluded that the gap between the two
widened due to the downward trend into 1997 of domestic industry prices. The CITT determined that although initially the domestic industry may have
contributed to the price decline, the downward price trend was caused by the continued dumping of low priced carbon steel plate into the market place.
49 The CITT held that the pressures exerted on prices and the low priced dumped imports made it
difficult for the industry to move prices back up. The CITT held that these were foreseen and imminent price pressures and that they would continue
with the consequent negative effect on gross margins and net revenues leading to threat of material injury.
50
The considerable deference standard which we will apply was articulated in our preliminary decision and is incorporated herein by reference. 51 Suffice it to say that as the issues raised by the Complainant are, for the most part, questions of mixed law and fact, we will accord the CITT considerable deference at the higher end of the spectrum. That is, as questions of mixed fact and law draw closer to questions of fact, the deference that we will accord to the CITT will increase. In applying this standard of review, we will be looking to ensure that the CITT reasonably interpreted the law and that there was a rational connection between the facts and the CITT's findings. The standard is not whether there is any evidence at all which would uphold the CITT's determination, but whether there is evidence which, if reasonably reviewed, is capable of supporting the CITT's findings in light of the record evidence.
The CITT determined that the pressures exerted on prices by the low priced dumped imports have made it difficult for the industry or any one company in the industry to move prices back up. The CITT was of the view that, in the absence of antidumping duties, these pressures would continue and that the domestic industry was likely to continue to suffer price erosion and price suppression with the consequent negative effects on gross margins and net revenues. The CITT was persuaded that these downward pressures were clearly foreseen and imminent and that the domestic industry could not continue to sustain such downward pressure indefinitely “without suffering material injury”.52 In addition, the Tribunal went on to speculate that further increases in the volume of dumped imports could have a negative impact on the domestic industry’s ability to maintain its market share and speculated on the industry’s position in the face of further increases in imports. 53 AHMSA argued that the CITT committed error of law and error of fact in finding price suppression. It was alleged that these errors led the CITT to fail to distinguish between evidence of price erosion and price suppression. The Complainant further alleges that the CITT committed error of fact with respect to its finding that industry prices were on a downward trend and that there was a widening of price gaps. AHMSA argued that there were five price increases, one of which came in early 1997, and then argued that this suggests that the price trend was up, that there was not a widening of the price gap, that there was no consequent price erosion or suppression, and that it was unlikely to change in the near future. The Complainant then argues that these factual inaccuracies lead the CITT to error of law in finding significant price suppression on the part of AHMSA. 54 In reviewing the arguments of the parties, the record evidence and the reasoning of the CITT, we are inclined to affirm in part and remand in part. For reasons already mentioned, this Panel has already found no merit in the Complainant´s argument that the CITT failed to distinguish between evidence of price suppression and erosion. Further, we believe that AHMSA misapprehends the nature of the analysis needed to be undertaken by the CITT, in so far as this Panel has affirmed the CITT ´s decision to cumulate AHMSA in the injury analysis and not to exclude it from the result. This Panel has affirmed the approach of the CITT in not analyzing the per se contribution of AHMSA to the price suppression and erosion suffered by the domestic industry. However, while this Panel affirms this part of the CITT´s analysis, we have reservations with respect to other parts of its analysis. There is record evidence to the effect that the average domestic unit price was $611 in 1994, $700 in 1995, $663 in 1996 and $657 in 1997. 55 Moreover, record evidence suggests that Stelco, the acknowledged price leader, increased prices at various times in 1996 and 1997.56 It would appear that the finding of price suppression or erosion, and more importantly in this case -to what extent, depends on the period of time that the CITT chooses to analyze. We find that the CITT does not adequately explain which time frame it chose to analyze nor why it is the more appropriate in the circumstances. Moreover, the CITT does not explain how the price suppression or erosion it found was significant in the circumstances, especially in light of the relatively low volume of imports. We believe that this information is particularly important given that present injury, within the meaning of the SIMA, was not found because the injury was not of the requisite duration and extent. In the circumstances, we would Remand as follows:
Having determined that the dumped imports from the named countries were likely to continue and even increase, the CITT eventually turned to the
question of whether these imports were likely to constitute a threat of injury to the domestic industry. In so doing, the CITT claims to have
assessed the extent to which there was a causal link between the dumped imports and the price erosion, price suppression and the consequent
negative impact on the domestic industry's financial performance and whether it was likely to continue in to the future.
57
The Complainant’s arguments against the causation finding effectively fall into three categories. Firstly, the Complainant claims that the CITT failed to establish a sufficient link between dumped goods and the threat of injury as is required by Canada’s international obligations. Secondly, the Complainant claims that even if such a nexus could be found, the evidence that the CITT relied upon was not of the nature and extent required. Finally, the Complainant argues that the CITT's past practice of interpreting and applying s.37.1(3)(a)(vi) of the SIMA Regulations should preclude a finding of causation under these circumstances. We will analyse these questions below.
The Complainant argued that Canada's international obligations compel the CITT to establish a sufficient link between the threat of injury and the per
se dumping of AHMSA. The Complainant points to Canada's international obligations under the GATT and argues that these obligations impose a definite
cause and effect standard that the CITT is obligated to follow. Specifically, it refers to article 3(4) of the GATT Antidumping Code which states that
“it must be demonstrated that the dumped imports are, through the effects of dumping, causing injury within the meaning of this code”.
Justice Dickson, writing for the majority of the Court, held that the GATT played a much larger role in shaping the practice of the CITT. He held that it was reasonable for the CITT to refer to Canada's international obligations under the GATT not only to clarify uncertainty, but also as an aid to interpretation in cases where the ambiguity was not patent. He held that the CITT should strive to expound an interpretation which is consonant with the relevant international obligation.62 He reasoned:
While the Supreme Court held that the GATT was relevant to determining the practice of the CITT, it was not in agreement as to the extent of the
GATT’s influence. In determining the precise role of the GATT on the CITT’s practice, we find the reasoning of Concrete Panels instructive.
That Panel noted that the CITT applies Canada's GATT obligations always and when they are incorporated in the SIMA and its Regulations. In
interpreting the legislation that was passed in order to implement international obligations, it is reasonable that the CITT examine the domestic
legislation in the context of international obligations. The interpretation which must be arrived at must be congruent with the relevant international
obligations.64
It was argued that the Panel decision in Carpets is instructive on how we should review the CITT with respect to the sufficient link question. In dealing with the issue of causation, that Panel could not agree on what constitutes a sufficient link. The majority found that, taking into account the GATT Code standard that causation be “demonstrated”, the rational nexus between the evidence and the required conclusion on causation mandates an analysis of how the dumping has affected price levels. The majority in Carpets went on to Remand the CITT to determine whether the dumping in and of itself caused material injury and to demonstrate the rational basis for such a determination by detailed analysis. 67 The minority opinion in Carpets found that the standard of review limited the type of review which the Panel could undertake. Dissenting Panelist Ward held:
The opinions in Carpets are indicative of the two approaches urged on Panels in these decisions. In trying to determine what the exact nexus between the dumped imports and the threat of injury should be in the causation analysis, we find the reasoning of the Panel in Baler Twine 69 instructive. The Baler Twine Panel found that it is not necessary to find that dumped imports are always or even predominantly the lowest priced imports. It held that, in order for the causation requirement to be met, all that is required is a showing that dumped imports contribute, at a sufficient level, to price erosion, price suppression or to lost sales. 70 Having determined that the applicable causation standard is that contained within the SIMA and the SIMA Regulations, to be read in light of Canada's international obligations, we believe that the specific link which the CITT must establish between the dumping and the threat of injury is a flexible one which varies on the circumstances. In the instant review, we believe that the CITT should, at least, demonstrate how the dumping contributed, at a sufficient level, to price erosion or suppression. Such a demonstration should include an analysis of what is “sufficient” about the contribution in the circumstances, but need not be limited to the effects of AHMSA's dumping. Having articulated the link between the threat of injury and the dumping in the circumstances, we move to the related question pertaining to the quality of the evidence required to ground a causation finding. With respect to the nature and extent of the evidence required, we find that this is a matter which is factually laden and within the expertise of the CITT. In these circumstances, the deference which is afforded to the CITT, on a considerable deference standard, is very high. The CITT has articulated its practice on evidentiary findings, in the context of threat of material injury, in the Caps, Lids and Jars case. 71 It stated that its practice has been to analyse material injury and threat of material injury as separate findings. In describing its methodology, the CITT has recognised the importance of Canada's international obligations and has drawn on the Agreement for the Implementation of Article 6 of the GATT, 1994 (ADA). In distinguishing the injury analysis from the threat of injury analysis, the CITT has noted that the ADA makes separate references to injury and threat of injury determinations in the definition of injury. Secondly, the CITT noted that it is directed to consider factors for injury that are different from factors for threat of injury, necessitating a distinct evidentiary basis for each. Thirdly, it noted that a finding of threat of injury, unlike injury, may only be made where the circumstances in which the dumping would cause injury are clearly foreseen and imminent. Fourthly, it recognised the admonition found in the WTO Agreement on the implementation of Article VI of the GATT 1994 s. 3.8 which states:
In considering the quality of evidence required, we also find the reasoning of Concrete Panels instructive. That Panel reviewed previous Panel decisions and held that what is required is reliable evidence establishing a causal nexus between dumped imports and injury. Reliable evidence is not just any evidence. Rather, it is evidence which when viewed in the context of the record reasonably upholds the CITT’s determination. The CITT has considerable discretion with respect to what evidence it accepts and what weight it attaches to the evidence and we will not sit to reweigh the evidence nor substitute our opinion for that of the CITT. However, while we will defer to reasonable findings of the CITT, we will not permit assumptions to stand in place of evidence.73 What is required is positive evidence beyond conclusory findings which, when viewed in the context of all the evidence, reasonably supports the causation finding. In the instant review, the CITT has, at times, substituted conclusory findings in place of evidence. Specifically, and important in the context of this review, we believe that the CITT does not address evidence which speaks to what is sufficient about the level to which the dumped imports contributed to the price erosion and suppression. The Complainant argued that the CITT committed error of law in misapplying s.37.1(3)(a)(vi) of the SIMA Regulations which directs the CITT to consider “the productivity of the domestic industry in respect of like goods”. In this respect, the Complainant alleges that the CITT erred in not considering the productivity problems of the domestic industry with respect to high demand and allocation. The Complainant cites Tomato Paste 74 for the proposition that when evidence exists to show that the domestic producers are not prepared to offer product to customers, who must source outside Canada, the dumping is not the cause of material injury. 75 For the reasons discussed below, we uphold the CITT in this regard.
As with respect to s.37.1(3)(a)(vi) of the SIMA Regulations, we find that it is one of the factors that the CITT should look at in performing its
analysis. However, it is one factor among many that the CITT should look at. While we believe that productivity concerns are important factors to
consider in this case, neither the law nor the circumstances compel the conclusion that s.37.1(3)(a)(vi) is dispositive.
In cases where the presence of various factors cause the erosion or suppression of prices, the CITT is obligated to follow s.42(1)(a)(i) of the SIMA
and s.37.1 (b) of the SIMA Regulations. These requirements compel the CITT to assure itself that the injury was not caused by factors other than those
of the dumped goods.
The Complainant points to record evidence to suggest that the domestic industry may have contributed to price declines at various times in an attempt
to gain or keep market share.79 The Complainant recognizes the conflicting evidence on the record,
but argues that in coming to its conclusions, the CITT incorrectly preferred the evidence of the industry witnesses over that of other witnesses. The
arguments presented on pricing behaviour appear to be disagreements over factual findings which afford the CITT considerable deference at the high end
of the spectrum. Absent cogent record evidence that the CITT's findings were unreasonable in the circumstances, we will not reweigh this sort of
evidence as the CITT was in the best position to assess the competing evidence proffered by the witnesses.
In this case, given the existence of other factors which may cause threat of injury, the effects caused by each of them must be separated and
it must be demonstrated that the dumped goods were the cause of the threat of injury. This obligation does not compel the quantification of
weight to be attached to each factor, but seeks to ensure that other non dumped factors are kept out of the analysis. This can not be accomplished
by a mere showing of the existence of dumped goods.
Signed in the original by:
Issued on the 15th day of December, 1999 1 Preliminary Decision of the Panel, dated May 19, 1999, Majority Opinion p. 11. 2 Preliminary Decision of the Panel, dated May 19, 1999, Minority Opinion p. 18. 3 Motion of the Complainant dated July 14, 1999. 4 Corrigendum to the Finding of October 27, 1997 dated June 21, 1999 issued as part of the Determination on Remand in NQ-97-001 Remand dated June 21, 1999. 5 Determination on Remand of the Canadian International Trade Tribunal dated June 21, 1999. 6 Ibid, at p. 3. 7 Complainant’s Written Submissions of AHMSA in Reply to the June 21, 1999 Determination on Remand, date July 9,1999 at p. 14. 8 Challenge, at para. 52. 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. [1997] 1 S.C.R. 748. 20 U.E.S. Local 298 v. Bibeault, [1998] 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. 25 Brief of the Complainant at para. 261. 26 Algoma brief pg. 93. 27Statement of Evidence of D. Thompson, Protected Exhibit D-2, para 13, Administrative Record, Vol. 16, p. 9. 28 Statement of Evidence of R. Dionisi, Portected Exhibit B-1, Administrative Record, Vol. 14B, pp 11-33. 29 Brief of the Complainant, at para. 269. 30Brief of the Complainant, at para. 270. 31 Brief of Algoma, at para. 96. 32 Brief of the CITT, at para. 127. 33 Brief of the Complainant, at para. 273 and 275. 34 Brief of the Complainant at para. 281. 35 Protected Pre-Hearing Staff Report, revised September 20, 1997, Tribunal Exhibit NQ-97-001-7C (protected), Administrative Record, Vol. 2 at 131.21; Transcript of In Camera Hearing, vol 3, September 25, 1997 at 317-18. 36 Statement of Reasons at p. 21. 37 Public Transcript (Vol. 4) Administrative Record Vol. 17A at 689-690 and 783. 38 Transcript of Public Hearing, Vol. 2, p. 343, lines 18-25; p. 344, lines 1-11; p. 345, lines 12-22, Administrative Record, Vol. 17, p. 343-5. 39 Statement of Reasons at p. 13. 40 Hot-Rolled Carbon Steel Sheet, supra, at 34-35. 41 The considerable deference standard that we will apply was articulated by the Minority in this Panel's preliminary decision on The Standard of Review and Remand Order dated May 19, 1999 at pages 12-18. 42 Statement of Reasons ("SOR") p. 13. 43 S.C. 1994, C. 47. 44 See Caps, Lids and Jars, Inquiry No. NQ-95-001, Finding Oct 20, 1995. Statement of Reasons, November 6, 1995, at 8-10. ("Caps, Lids and Jars"). 45 SOR, p.14. 46 SOR , p.14. 47 SOR , p. 15. 48 SOR , p. 17. 49 SOR, p.18. 50 SOR, p. 19. 51 The considerable deference standard that we will apply was articulated by the Minority in our preliminary decision on The Standard of Review and Remand Order dated May 19, 1999 at pages 12 - 18. 52 SOR p.19. 53 We find this latter part of the analysis to be particularly unsatisfactory as it is in the nature of speculation and conjecture. 54 AHMSA's Brief, p. 78 -80, 111-146. 55 SOR, p. 11. 56 Administrative Record, Vol. II (Protected) at 131.23, Administrative Record Vol. III (Public), p. 241 and 264. 57 SOR p 17. 58 CITT Brief p. 69. 59 Sacilor Aciéries v. Anti-dumping Tribunal (1986), 9 CER 210 (F.C.A.). 60 National Corn Growers Association v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324 ("Grain Corn"). 61 Grain Corn, p.1349. 62 Grain Corn, p.1371. 63 Grain Corn, p.1383. 64 Certain Concrete Panels, CDA-97-1904-01 ("Concrete Panels"), p. 10. 65 Certain Hot Rolled Steel, CDA-93-1904-07 ("Hot Rolled"). 66 Hot Rolled, p. 33-34. 67 In the Matter of Machine Tufted Carpets Originating in or Exported from the United States of America, (January 21, 1994), CDA-92-1904-02. ("Carpets"). 68 Carpets, p. 78. 69 Synthetic Baler Twine With A Knot Strength of 200 Lbs or Less Originating in or Exported from the United States of America, CDA-94-1904-02 (April 10, 1995) ("Baler Twine"). 70 Baler Twine, p. 28. 71 Inquiry No. NQ-95-001, finding October 20, 1995. Statement of Reasons, November 6, 1995. ("Caps, Lids and Jars"). 72 See, Caps, Lids and Jars p.9-10. 73 See, Caps, Lids and Jars p.9-10. 74 NQ-92-006, SOR, March 30.1993, p.14. 75 Complainant´s Brief, p.53-4. 76 Tomato Paste, p. 15. 77 SOR, p.17. 78 SOR, p. 18. 79 Complainant´s Brief, p.86. 80 SOR, p.22. 81 SOR, p.22. 82 SOR, p. 19-20. 83 SOR, p. 28. |
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