On July 25, DS Lawyers Canada won a victory before the Federal Court of Appeal in a dispute between its client Erdemir and Algoma Steel Inc. The point at issue was a decision rendered by the Canada Border Services Agency (CBSA) in the context of an anti-dumping[1] investigation.
A lengthy anti-dumping investigation
On January 22, 2021, Erdemir was able to convince the CBSA that the heavy plate originating in or exported from Turkey had not been dumped. They successfully argued that a comparison of the total normal value with the total export price of heavy plate originating in Turkey resulted in a zero (0%) dumping margin for the company.
In the context of the anti-dumping investigation, DS Lawyers was able to satisfy the CBSA investigators that its dumping margin was at zero, while at the same time disproving Algoma Steel’s allegation that there was a particular situation in the Turkish heavy plate market that did not permit a proper comparison with sales to importers in Canada.
Dissatisfied with the CBSA President’s decision, Algoma Steel filed an application for judicial review. Algoma Steel argued that the CBSA’s internal memoranda and calculations had formed the basis of the CBSA’s preliminary decision and that the refusal to provide them constituted a breach of procedural fairness.
In its decision, the Federal Court of Appeal rejected Algoma Steel’s position and agreed with the arguments raised by the Attorney General of Canada and DS Lawyers that there could be no breach of procedural fairness given that the CBSA President had not relied on detailed CBSA memos to determine dumping margins. What was presented to the administrative decision-maker was an administrative report summarizing factual and general findings. However, the Court does point out that, if the specific calculations relating to the methodology used to investigate and reach a conclusion had been provided to the President of the CBSA, they should have been made available to the applicants.
It should be noted that, in the context of anti-dumping investigations, the legal regime governing CBSA investigations provides for one of the lowest thresholds of procedural fairness in Canada. The rules of procedure are designed to be expeditious, with no specific provisions for stays, motions or rights of appeal. The Special Import Measures Act requires the CBSA to make a final determination of dumping within six months of the initiation of an investigation, while at the same time carrying out a series of verifications on a number of companies around the world.
The Federal Court of Appeal affirmed the federal government’s position that the degree of justification, intelligibility and transparency in these types of proceedings is reasonable, and that making a change to that effect would result in delays and undermine the effectiveness of the CBSA’s investigative procedures at the national level, contrary to the purpose of the law.
Key points to remember
The Federal Court of Appeal asserted that, although the CBSA conducts its investigations in a transparent manner, it is not obliged to provide the parties with its internal calculations, given the considerable volume of information and the complexity of the calculations generated for each exporter.
If you, your association or your company have any questions regarding trade remedies, anti-dumping and/or anti-subsidy procedures, or a dispute with the CBSA, please do not hesitate to contact Vincent Routhier.
[1] “Dumping” refers to the difference between the weighted normal value of a good and its export price, expressed as a percentage. All subject goods shipped during an anti-dumping investigation period are included in the administrative authorities’ calculations. Where the total normal value of each good does not exceed the total export price of the goods, the dumping margin is zero.
