Canada: Three Notices Of Application For Judicial Review Filed Against CITT FISC Decision

Last Updated: July 7 2017
Article by Cyndee Todgham Cherniak

On May 25, 2017, the Canadian International Trade Tribunal ("CITT") made an AD Order in respect of fabricated industrial steel components ("FISC") originating in or exported from China, South Korea and Spain and made a CVD Order in respect of FISC originating in or exported from China. On June 9, 2017, the CITT issued its Reasons for the Orders (not yet made publicly available on the CITT web-site). While cheered on by the domestic producers, the CITT decision was not well received by importers and users of FISC.

On June 23 – 26, 2017, three parties to the proceedings filed Notices of Application for Judicial Review asking the Federal Court of Appeal to review the CITT decision and overturn parts of the CITT decision. It is unusual for there to be one judicial review filed, let alone three. I cannot recall another CITT decision where there were three notices of application for judicial review filed. In Certain Fasteners, there were two notices of application for judicial review.

The three judicial reviews in the FISC case are:

Suncor Energy Inc. and Fort Hills Energy LP v. Attorney General of Canada et al., Court File Number A-193-17
LNG Canada Development Inc. v. Attorney General of Canada et al., Court File Number A-195-17; and
Fluor Canada Ltd. v. Attorney General of Canada et al., Court File Number A-196-17.

All three judicial reviews deal with issues of scope. All three ask the Federal Court of Appeal to make an order to set aside the CITT's denial of the Applicants' product exclusion requests (very large modules, complex modules) and -it is important to note that the CITT denied certain product exclusion requests that the domestic industry consented to. The Fluor Canada Ltd. application for judicial review also asks the Federal Court of Appeal to make an order setting aside the CITT's scope determination (whether the definition of subject goods extends to FISC contained in complex modules) and to refer the matter back to the CITT with such directions as the Federal Court of Appeal feels necessary. All of the notices of application for judicial review raise errors and omissions made by the CITT.

The FISC case was a very complex case. Even the CITT noted in its decision (at paragraph 33) that "[i]n the present case, like goods are particularly difficult to describe briefly due to the complex definition of the subject goods". Speaking of the product definition, here it is:

“Fabricated structural steel and plate-work components of buildings, process equipment, process enclosures, access structures, process structures, and structures for conveyancing and material handling, including steel beams, columns, braces, frames, railings, stairs, trusses, conveyor belt frame structures and galleries, bents, bins, chutes, hoppers, ductwork, process tanks, pipe racks and apron feeders, whether assembled or partially assembled into modules, or unassembled, for use in structures for: 1. oil and gas extraction, conveyance and processing; 2. mining extraction, conveyance, storage, and processing; 3. industrial power generation facilities; 4. petrochemical plants; 5. cement plants; 6. fertilizer plants; and 7. industrial metal smelters; but excluding electrical transmission towers; rolled steel products not further worked; steel beams not further worked; oil pump jacks; solar, wind and tidal power generation structures; power generation facilities with a rated capacity below 100 megawatts; goods classified as “prefabricated buildings” under HS Code 9406.00.90.30; structural steel for use in manufacturing facilities used in applications other than those described above; and products covered by Certain Fasteners (RR-2014-001), Structural Tubing (RR-2013-001), Carbon Steel Plate (III) (RR2012001), Carbon Steel Plate (VII) (NQ 2013-005) and Steel Grating (NQ-2010-002); originating in or exported from the People’s Republic of China, the Republic of Korea and the Kingdom of Spain, and the subsidizing of the above-mentioned goods originating in or exported from the People’s Republic of China.”

If the goods are  (a) steel, (b) fabricated or plate work, (c) components of buildings, process equipment, process enclosures, access structures, process structures, and structures for conveyancing and material handling, including steel beams, columns, braces, frames, railings, stairs, trusses, conveyor belt frame structures and galleries, bents, bins, chutes, hoppers, ductwork, process tanks, pipe racks and apron feeders, (d) assembled or not, and (e) for use in structures for: 1. oil and gas extraction, conveyance and processing; 2. mining extraction, conveyance, storage, and processing; 3. industrial power generation facilities; 4. petrochemical plants; 5. cement plants; 6. fertilizer plants; and 7. industrial metal smelters – it may be FISC, unless a listed exclusion applies.

If you are not able to understand what is FISC by reading the above definition and do not find clarity in the CITT decision (when it is publicly available), you should watch these three judicial reviews to see whether the Federal Court of Appeal can figure it out.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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