Originally published in Blakes Bulletin on Litigation and International Trade, July 2007
On June 5, 2007, the Federal Court of Appeal refused to interfere with a decision of the Canadian International Trade Tribunal (CITT) and, in so doing, recognized a high degree of deference toward the CITT in dealing with complaints of injury caused by subsidized and dumped imports.
The case originated in allegations by Canadian corn producers to the Canadian Border Services Agency that dumped and subsidized U.S. corn was causing injury to the domestic corn production industry in Canada. At the CITT hearing that followed, those allegations were denied by various parties, including food and beverage manufacturers, ethanol producers, Canadian pig farmers and other consumers of U.S. corn. Following a fact-intensive hearing, the CITT determined that the allegations of injury had not been proven. More particularly, the CITT found that any injury to the Canadian corn industry was essentially attributable to the appreciation of the Canadian dollar and other factors unrelated to imports of U.S. corn.
The Canadian corn growers challenged the CITT decision by way of an application for judicial review. Among other things, the applicants argued that the CITT had failed to consider various factors relating to price effects and other indicators of injury set out in the Special Import Measures Act, R.S.C. 1985, c. S-15. The applicants also asserted certain errors of natural justice, including an allegation that the CITT based its decision on a concept that had not been argued by the parties, namely, a widening price gap between lower-priced Canadian corn and higher-priced U.S. corn.
In a unanimous decision rendered from the bench, Chief Justice Jean Richard of the Federal Court of Appeal dismissed the application (Justices Nadon and Sexton concurring). The Court found that the CITT was acting within its jurisdiction and expertise as a specialized tribunal, and that the question of the relationship between subsidies, dumping and injury was "quintessentially one of fact". Further, the CITT was entitled to consider all information relevant to its inquiry, including the concept of a widening price gap that was found to have been part of the evidentiary record before the tribunal. Consequently, the Court found no breach of natural justice or other reviewable error.
Blakes was counsel to the Office of the United States Trade Representative before the Federal Court of Appeal. The Blakes team was comprised of Cliff Sosnow, Brad Berg, Roy Millen and Elysia Van Zeyl.
The Corn Growers decision is a strong indication that parties to CITT proceedings are wise to invest early in gathering facts, obtaining expert advice and building an extensive evidentiary record at the CITT hearing. Because courts will generally grant a high degree of deference to the CITT as a specialized tribunal with expertise in international trade matters, the opportunities to interfere later with fact-based decisions by the CITT will likely be slim. Waiting for the judicial review before taking the case seriously may be too late.
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