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International Trade - Special Import Measures Act (SIMA). Angang Steel Company Limited v. Canada (Border Services Agency)
In Angang Steel Company Limited v. Canada (Border Services Agency) (Fed CA, 2020) the Federal Court of Appeal considered a statutory judicial review directly to itself under s.96.1 of the Special Import Measures Act. The court summarized the role of this statute as follows:[4] SIMA is the statute that provides for the imposition of anti-dumping and countervailing duties when goods are dumped into Canada. Goods imported into Canada are "“dumped”" (as defined in subsection 2(1) of SIMA) when the normal value of the goods exceeds the export price of such goods. The margin of dumping is defined in subsection 2(1) of SIMA as the difference between these two amounts. The normal value is determined in accordance with the provisions of sections 15 to 23.1 and 30 of SIMA and the export price is determined in accordance with the provisions of sections 24 to 28 and 30 of SIMA. If the normal value or export price cannot be determined in accordance with these provisions, then such amount is determined in the manner specified by the Minister of Public Safety and Emergency Preparedness (Minister) (section 29 of SIMA).
[5] An investigation with respect to the possible dumping of goods is initiated under subsection 31(1) of SIMA by the President, either on the President’s own initiative or following a complaint that satisfies the requirements of subsection 31(2) of SIMA. In general, there are two stages of a dumping investigation – preliminary and final – with a separation of responsibilities at each stage. If an investigation has not been terminated under section 35 of SIMA, the President is responsible for the preliminary determination of the estimated margin of dumping for each exporter and the goods to which these apply (section 38 of SIMA). Within 90 days following the preliminary determination of dumping, the President must either:(a) terminate the investigation if the President is satisfied that there is no dumping or the margin of dumping is insignificant (paragraph 41(1)(a) of SIMA); or
(b) if the investigation is not terminated, make a final determination that goods have been dumped and specify for each exporter the margin of dumping and the goods to which the determination applies (paragraph 41(1)(b) of SIMA).
[6] "“Insignificant”" is defined in subsection 2(1) of SIMA. This definition, in relation to a margin of dumping, reads:"insignificant means, "
"minimale S’entend : "
"(a) in relation to a margin of dumping, a margin of dumping that is less than two per cent of the export price of the goods,… "
"a) dans le cas de la marge de dumping, d’une marge inférieure à deux pour cent du prix à l’exportation des marchandises; " [7] The Canadian International Trade Tribunal (CITT) is responsible for making an inquiry and a preliminary determination of whether the dumping has caused injury or is threatening to cause injury (sections 37.1 and 42 of SIMA). The CITT is also tasked with making any applicable order or finding as provided in section 43 of SIMA following a final determination made by the President. Anti-dumping duties are imposed under sections 3 to 5 of SIMA as a result of an order or finding made by the CITT. The final determination made by the President, in and of itself, does not result in the imposition of anti-dumping duties.
[8] Section 30.2 of SIMA provides that the margin of dumping in relation to any goods of a particular exporter is the amount determined by subtracting the weighted average export price of the goods from the weighted average normal value of the goods. If this result is a negative number, the margin of dumping is zero. If it is impractical to determine the margin of dumping for all goods under consideration, the margin may be determined based on a sample as provided in section 30.3 of SIMA.
[9] SIMA sets out strict time limits within which the amounts must be determined by the President. Under subsection 38(1) of SIMA, the President must make a preliminary determination of dumping between the sixtieth and the ninetieth day after the initiation of an investigation under section 31 of SIMA (unless the President extends the time by 45 days as provided in subsection 39(1) of SIMA for the reasons as set out in that subsection). Within 90 days of making the preliminary determination of dumping under subsection 38(1) of SIMA, the President must make the final determination of dumping under section 41 of SIMA.
[10] The normal value of goods is to be determined based on the price of like goods that are sold to the persons and in the circumstances as set out in section 15 of SIMA. If there are insufficient qualifying sales of like goods, the normal value, subject to section 20 of SIMA, is determined either by using the price at which like goods are sold to other countries or by using the cost of production and adding a reasonable amount for administrative, selling and all other costs and a reasonable amount for profits (section 19 of SIMA).
[11] If the President is of the opinion that insufficient information has been provided to allow the determination of the normal value or the export price, the amount to be used for such normal value or export price is the amount to be determined in the manner specified by the Minister. ...
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