International Trade & Investment Practice

Canadian Anti-Dumping and

Countervailing Duty Measures
Preface................................................................................................................................................................................................................................................................................................ 1
Investigation of Dumping or Subsidization–The Procedure.................................................................................................................................................................................... 2
Initiation of Investigation.................................................................................................................................................................................................................................................. 2
Complaint: Standing............................................................................................................................................................................................................................................................ 3
Objects of Investigation: Sales....................................................................................................................................................................................................................................... 3
Notices....................................................................................................................................................................................................................................................................................... 3
CITT Preliminary Injury Inquiry....................................................................................................................................................................................................................................... 4
CBSA Dumping/Subsidization Investigative Procedure..................................................................................................................................................................................... 4
Manufacturers’ RFI............................................................................................................................................................................................................................................................... 4
Importers’ RFI......................................................................................................................................................................................................................................................................... 5
Timetable of Investigation................................................................................................................................................................................................................................................ 6
Designation of Information by Exporter/Importer Regarding Confidentiality......................................................................................................................................... 7
Treatment of Information Designated as Confidential........................................................................................................................................................................................ 7
Preliminary Determination of Dumping/Subsidization...................................................................................................................................................................................... 7
Proceedings between the Preliminary and Final Determinations of Dumping/Subsidization........................................................................................................ 7
Undertakings........................................................................................................................................................................................................................................................................... 8
Final Determination of Dumping/Subsidization................................................................................................................................................................................................... 8
Imposition of Provisional Duty....................................................................................................................................................................................................................................... 9
Retroactive Imposition of Anti-Dumping or Countervailing Duty................................................................................................................................................................. 9
Determining Whether Dumping Exists: Normal Value and Export Price........................................................................................................................................................ 10
Determination of NV........................................................................................................................................................................................................................................................ 10
Section 20: Export Monopoly and Domestic Prices.......................................................................................................................................................................................... 10
Particular Market Situation............................................................................................................................................................................................................................................ 11
Domestic Selling Price of Like Goods...................................................................................................................................................................................................................... 12
The Price of Like Goods.................................................................................................................................................................................................................................................. 13
Other Vendors’ Sales........................................................................................................................................................................................................................................................ 13
Selling Price to Purchasers in Third Countries..................................................................................................................................................................................................... 13
Cost-Plus Mark-up............................................................................................................................................................................................................................................................. 14
NV by Ministerial Specification................................................................................................................................................................................................................................... 14
Export Price........................................................................................................................................................................................................................................................................... 14
Alternative Methods of Establishing EP.................................................................................................................................................................................................................. 15
Resale Price Method of Determining EP................................................................................................................................................................................................................. 15
Credit Sales to Importers in Canada......................................................................................................................................................................................................................... 15
Special Arrangements...................................................................................................................................................................................................................................................... 15
EP Established by Ministerial Specification........................................................................................................................................................................................................... 15
Currency Conversion......................................................................................................................................................................................................................................................... 15

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 Table of Contents

Countervailing Duty/Subsidies............................................................................................................................................................................................................................................ 17
What is a Subsidy?............................................................................................................................................................................................................................................................. 17
Joint Anti-Dumping and Countervailing Duty Investigations........................................................................................................................................................................ 17
The Final Determination of Injury...................................................................................................................................................................................................................................... 18
Injury......................................................................................................................................................................................................................................................................................... 19
Material Injury...................................................................................................................................................................................................................................................................... 19
Like Goods............................................................................................................................................................................................................................................................................. 19
Causality.................................................................................................................................................................................................................................................................................. 20
Effect of CITT FDI and Judicial Review..................................................................................................................................................................................................................... 21
Review by the CITT of its Finding............................................................................................................................................................................................................................... 21
A Finding in the Case of NAFTA Origin Goods................................................................................................................................................................................................... 21
Disposition of Reviews.................................................................................................................................................................................................................................................... 21
Public Interest.............................................................................................................................................................................................................................................................................. 23
Role of the CITT................................................................................................................................................................................................................................................................... 23
CITT Report........................................................................................................................................................................................................................................................................... 23
Application of Anti-Dumping or Countervailing Duties........................................................................................................................................................................................... 24
Scope Proceedings............................................................................................................................................................................................................................................................. 24
Anti-Circumvention Investigation............................................................................................................................................................................................................................... 25
Re-Determinations............................................................................................................................................................................................................................................................. 25
Post-Importation Reviews – Re-Investigations and Normal Value Reviews........................................................................................................................................... 26
Liability for Anti-Dumping and Countervailing Duties............................................................................................................................................................................................. 29
Conclusion............................................................................................................................................................................................................................................................................. 29
Appendix........................................................................................................................................................................................................................................................................................ 31

TABLE OF ABBREVIATIONS

CBSA Canada Border Services Agency NV Normal Value

DSP Domestic Selling Price Preliminary Determination of Dumping/

PDD/S
Subsidization
EP Export Price
PDI Preliminary Determination of Injury

FDD/S Final Determination of Dumping/Subsidization

RFI Request for Information

GST Goods and Services Tax

SIMA Special Import Measures Act

MD Margin of Dumping
SIMR Special Import Measures Regulations

MS Margin of Subsidy

Canadian Anti-Dumping and Countervailing Duty Measures iii

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Preface
Goods imported into Canada are generally only subject to assessment of ordinary customs duty and goods and
services tax (GST) or harmonized sales tax. However, during the course of any year, certain imported goods face
the additional assessment of anti-dumping and/or countervailing duties because they have been found to have
caused injury or retardation to a Canadian domestic industry or because they threaten to cause injury by virtue of
being dumped or subsidized.
Two Canadian government bodies, the Canada Border Services Agency (CBSA) and the Canadian International
Trade Tribunal (CITT), administer the Special Import Measures Act (SIMA) and the Special Import Measures
Regulations (SIMR), Canada’s laws that deal with anti-dumping and countervailing duties. The SIMA and the SIMR
contain 98 sections and 58 regulations, respectively, of complex legal rules. This book is designed to provide
a brief but thorough outline of the principal elements of Canada’s anti-dumping and anti-subsidy legislation,
including amendments to the SIMA and the SIMR that came into force in April 2018. However, any person
involved in proceedings under the SIMA should seek the guidance of an experienced, Canadian trade lawyer as to
the application of the law.

Canadian Anti-Dumping and Countervailing Duty Measures 1

Investigation of Dumping or
Subsidization–The Procedure
Given coverage of the subject by news media and political statements intended to placate constituents,
much of the general public believes that dumping or subsidizing of imported goods is an evil practice.
However, nothing is farther from the truth. To the extent that dumping and subsidization are not
causing or threatening injury, or causing retardation, to a domestic industry in Canada, they may be
practised deliberately and with impunity.

In order for proceedings to be initiated under the SIMA, two principal elements must be present:
1. dumping or subsidization; and
2. injury or retardation to a domestic industry of like goods.

Dumping or subsidization that does not cause injury or retardation is of no consequence. Injury or retardation not
attributable to dumping or subsidization cannot be relieved by SIMA duties.
The proceedings and responsibility for determinations of dumping/subsidization on one hand, and injury or
retardation on the other, are split in that the CBSA has responsibility for determinations of dumping/subsidization and
the CITT has exclusive jurisdiction to determine whether or not dumping/subsidization is a cause, or threatens to be a
cause, of injury or is a cause of retardation.
The procedures used for investigating dumping or subsidization are very similar although the subject matter is
quite different. As well, in the case of subsidization there exists an additional party to the proceedings, the foreign
government which has allegedly subsidized the goods. The differences will be dealt with in detail in the following
sections covering whether or not dumping and subsidization exist.
For ease of reference, the Appendix sets out principal timeframes under SIMA.

Initiation of Investigation
An investigation is initiated by the President of the CBSA:
1. on his own initiative, or
2. on the basis of a written complaint.

It is far more common that an investigation is initiated based on a complaint. Where the President initiates an
investigation on his own initiative, it may be based on evidence which he has gathered or on the advice of the
CITT where, during an inquiry into whether dumping or subsidization of goods has caused or threatened to cause
injury, or has caused retardation, the CITT forms the opinion that there is evidence that goods, the uses and other
characteristics of which closely resemble those of the goods under investigation, are being dumped or subsidized, and
the evidence discloses a reasonable indication that the dumping or subsidizing has caused injury or retardation, or
threatens to cause injury to a domestic industry.

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 Investigation of Dumping or Subsidization – The Procedure

Complaint: Standing
An investigation will not be initiated based on a complaint unless:
1. it is supported by domestic producers whose production represents more than 50 percent of the total production of
like goods by those domestic producers who express either support for, or opposition to, the complaint, and
2. the production of the domestic producers who support the complaint represents at least 25 percent of the total
production of like goods by the domestic industry.

Where a domestic producer is an importer, or is related to an exporter or importer, of allegedly dumped or subsidized
goods, that domestic producer may be excluded from being considered one of the domestic producers and, therefore,
part of the domestic industry.
The President must determine, within 21 days after receipt of a complaint, whether it is properly documented or not
properly documented. In the latter case, the President will seek additional information from the complainant(s) to
correct the lack of proper documentation.

Objects of Investigation: Sales

The objects of the investigation are sales of goods for export to Canada where such sales are found to be dumped
and/or subsidized. Where the dumping and/or subsidization are then found to have been a cause of injury or
retardation, or to have threatened to be a cause of injury, they will become subject to an anti-dumping and/or
countervailing duty order. Sale includes leasing and renting, an agreement to sell, lease or rent and an irrevocable
tender. Therefore, it is not necessary for a sale to have been completed, or an importation to have been made, in order
to trigger an anti-dumping investigation. The period of investigation chosen by the President is generally the same as
the period during which the domestic industry claims to have suffered injury or retardation.

Notices
If the President causes an investigation to be initiated, he will notify the Secretary of the CITT, the exporters, the
importers, the government of the country of export, relevant trade unions, and the complainant(s), and will arrange
for the notice of initiation of the investigation to be published in the Canada Gazette, the official publication of the
Canadian government.
Where the President decides not to initiate an investigation, the President, on the date of notice of that intention,
or the complainant, within 30 days after the date of the notice, may refer to the CITT the issue of whether or not the
evidence, contained in the complaint, disclosed a reasonable indication that the dumping or subsidizing has caused
injury or retardation or is threatening to cause injury. Where the matter is not referred to the CITT or the CITT concurs
with the decision of the President, the investigation will be terminated based on one of the following:
1. there is insufficient evidence of dumping;
2. the margin of dumping (MD) or the actual or potential volume of dumped goods is negligible; or
3. the evidence does not disclose a reasonable indication that the dumping is causing injury or retardation, or threatens
to cause injury.

Canadian Anti-Dumping and Countervailing Duty Measures 3

CITT Preliminary Injury Inquiry
Upon receipt of notice of initiation of an investigation, the CITT
initiates a preliminary inquiry into whether the evidence discloses a Parties to the proceeding
reasonable indication that the dumping or subsidization of the goods
has caused injury or retardation, or threatens to cause injury. Parties are permitted to make
to the proceeding are permitted to make representations in writing. representations in writing.
Exceptionally, the CITT may conduct an oral hearing. In either case,
the inquiry is limited to the question of whether or not the complaint
contains sufficient evidence, on a reasonable indication basis, of injurious dumping or subsidization. The CITT makes
a preliminary determination of injury (PDI) within 60 days of the commencement of its inquiry. Where it finds that
there is no reasonable indication of injury, the President of the CBSA will terminate the investigation. Where it finds
that there is a reasonable indication, the CITT may instruct the CBSA to collect data and make calculations for what it
considers separate classes of like goods.
Since June, 2017, trade remedy investigations will also be terminated in respect of an individual participating exporter
if that exporter is found to have an “insignificant” (de minimis) margin of dumping or amount of subsidy, which is
defined as less than 2% and 1% of the export price, respectively.

CBSA Dumping/Subsidization Investigative Procedure

The parallel investigation into dumping or subsidization practices conducted by the CBSA proceeds from the date of
initiation of the investigation and results in:
1. termination where the CITT has made a preliminary determination of no injury;
2. termination of the investigation by virtue of a preliminary determination of no or negligible dumping/subsidization;
or
3. a decision of dumping/subsidization

within 90 days of initiation of the investigation or within up to 135 days where an extension of the proceedings is taken
by the President.
At the time notice of the investigation is given, the President will send detailed requests for information (RFI) to
manufacturers, exporters (if different from manufacturers), and importers of the subject goods.
In the case of subsidization investigations, an RFI will also be sent to the foreign government(s).

Manufacturers’ RFI
The Manufacturers’ RFI is designed to establish the normal value (NV) of the subject goods. RFI questions therefore
relate to:
1. domestic sales and conditions of sale;
2. costs of production;
3. selling, general and administrative expenses; and
4. transportation and other handling costs.

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 Investigation of Dumping or Subsidization – The Procedure

If the manufacturer is also the exporter, the RFI will inquire into the terms and conditions of the sales for export to
Canada, to assist in the establishment of the export price (EP), including:
1. the selling price;
2. export charges assumed either by the manufacturer/exporter or the importer;
3. whether there are any compensatory arrangements between the parties;
4. whether the exporter and importer are related; and
5. whether there are any financial or other special arrangements between the exporter and the importer.

Finally, if subsidization is alleged, the RFI will cover the alleged subsidies and their per unit benefit/value. The RFI
provided to the manufacturers and exporters is expanded to include questions concerning financial contributions
which may have conferred a benefit to persons engaged in production, manufacture, growth, processing, purchase,
distribution, transportation, sale, export or import of goods, all of which may be considered countervailable.

Importers’ RFI
This is intended to establish and/or substantiate the export price and deals with:
1. the terms and conditions of purchase;
2. export charges assumed by the exporter or importer;
3. any special arrangements between the exporter and importer;
4. any special contractual relations between the parties; and
5. any relationship between the exporter and the importer.

Where the exporter and importer are related, additional information is sought related to:
1. the terms and conditions of resale in Canada of the goods, whether resold in the condition in which they are at the
time of importation or after assembly, packaging or further processing;
2. selling and administrative costs incurred in Canada by the importer;
3. profit earned by the importer on resale of the subject goods; and
4. special arrangements between the importer and its Canadian customers.

The purpose of examining conditions of resale in Canada is to ascertain

…examining conditions whether or not the export price is reliable notwithstanding the relationship
of resale in Canada is between the exporter and importer. Where the importer resells at prices
that do not fully recover all of its costs and expenses, the export price will
to ascertain whether or be determined based on a formula rather than the actual price.
not the export price is Resale pricing is also examined in cases where there is no exporter’s
sale price or no price at which the importer has agreed to purchase (e.g.
reliable… consignment).

Canadian Anti-Dumping and Countervailing Duty Measures 5

Timetable of Investigation
The respondents to RFIs are generally given 37 to 40 days to complete and file them with the CBSA in both
confidential and non-confidential formats, and in both hard copy and electronically. Following a review of the
responses, the CBSA may send respondents a supplementary RFI, to obtain more information or clarification of
certain responses.
If the RFIs are properly and completely answered, officials of the CBSA may travel to the country of export (at the
CBSA’s expense) and visit with the respondent(s) for the purpose of verifying the accuracy of the data which has been
submitted. The officials will inspect books and records used to source information and data furnished in the RFI
responses. They may ask additional questions during the course of the verification. Verification may take anywhere
from three to 10 business days. The respondents should have Canadian legal counsel present when CBSA officials are
conducting the verification.
In the case of subsidization investigations, CBSA officials may visit with government officials from the exporting
country to complete their understanding of the government’s response to the RFI and to ask additional questions.
In addition, the importer’s response to the RFI may be verified on site by CBSA officials.
Once the verifications are completed, the CBSA officials prepare a report
and recommendations to their management respecting the establishment …the CBSA officials
of NVs, EPs, and the presence or absence of dumping or subsidization.
The investigation process is organized in a fashion which allows the
prepare a report and
President to make a preliminary determination of dumping/subsidization recommendation to their
(PDD/S) (or of no dumping/subsidization) within 90 days following
initiation of the investigation. Where the investigation is complex or for
management respecting
any other good reason the CBSA officials are unable to complete their the establishment of
investigation within 90 days, the President may extend the time within
which the PDD/S is made up to a total of 135 days following initiation of normal values, export
the investigation. prices, and the presence
Before the PDD/S is issued, an opportunity may be provided to a party or
its counsel for the furnishing of additional material and/or making of an
or absence of dumping or
oral presentation, either generally, at the request of a party or its counsel subsidization.
or specifically following receipt of a supplementary request for information
from the CBSA.
The investigation conducted by the CBSA is burdensome. However, exporters and importers are urged to cooperate
with CBSA officials in an effort to obtain the very best results possible. Failure to provide sufficient information may
result in determination of NVs, EPs and MDs or an amount of subsidy and margin of subsidy (MS), by methods which
are arbitrary and punitive in nature, leading to unfavourable results.
Counsel to the foreign manufacturer/exporter or importer can play a significant advisory role during the investigation
and may assist the exporter/importer in developing and employing strategies which result in the most favourable
outcome possible. Advice provided by attorneys is subject to solicitor-client privilege in Canada, and, therefore, need
not be disclosed to CBSA officials in the course of the investigation.

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 Investigation of Dumping or Subsidization – The Procedure

Designation of Information by Exporter/Importer Regarding Confidentiality

Information included in the responses to the RFIs may be designated as confidential. In such case, it is necessary that
the respondent provide a non-confidential, redacted version of the response to the RFI which can be made available
for public distribution. In addition, the respondent must provide a statement explaining why the information which
has been redacted is confidential.
The SIMA has elaborate rules designed to permit selective public disclosure. Every party to the proceedings has a
right, on request, to examine and be provided with copies of documentary information unless it has been designated
as confidential.

Treatment of Information Designated as Confidential

The President of the CBSA must determine whether or not information is confidential in cases where a confidential
designation has been made. Where the President agrees that the information is confidential, he must also be satisfied
with the non-confidential summary. Where the respondent fails to correct defaults in the non-confidential summary or
to withdraw his/her claim of confidentiality, the information provided will not be taken into account by the President in
making his determinations unless he obtains it elsewhere.
If the President determines that the information claimed as confidential is
Where the investigation not, the respondent must either permit the information to be made public
or the information will be disregarded.
has not been terminated, Confidential information may not be disclosed to any other person in
a preliminary any manner that is calculated or likely to make it available for use by a
business competitor or rival. Confidential information, however, may be
determination must be 90 disclosed by the President to counsel for other parties to the proceedings
(or exceptionally within where they have filed appearances and undertakings of non-disclosure.
Furthermore, counsel for other parties to the proceedings are permitted
135) days of initiations of to comment upon responses to the RFIs, in an effort to direct the CBSA
officials in their investigation. Counsel for party respondents may, in turn,
the investigation. reply to such comments.

Preliminary Determination of Dumping/Subsidization

Where the investigation has not been terminated, a PDD/S must be made within 90 (or, exceptionally within 135) days
of initiation of the investigation. Where the President concludes there is dumping/subsidization, he will estimate the
MD and/or MS, as the case may be, and specify the goods to which the determination applies and the names of the
importers.
Alternatively, the President will terminate the investigation where there is insufficient evidence of dumping or
subsidization or the MD or MS or actual or potential volume of dumped/subsidized goods is negligible.

Proceedings between the Preliminary and Final Determinations of Dumping/Subsidization

CBSA officials will pursue their investigation by soliciting and/or receiving additional information, refining their
calculations and considering factual and legal arguments. They may, in certain circumstances, accept responses
to RFIs from respondents which were not able, or simply failed, to respond in a timely manner for purposes of the
PDD/S. In such cases, there may also be a new verification or an additional verification, as the case may be.

Canadian Anti-Dumping and Countervailing Duty Measures 7

Undertakings
The President may accept an undertaking by exporters to raise prices where he forms the opinion that the undertaking
will eliminate either the MD or MS, as the case may be, or injury. An accepted undertaking generally suspends the
proceedings, but the party making the undertaking may elect to have proceedings continue. The undertaking must
be given in writing by an exporter or exporters who account for all, or substantially all, of the investigated exports to
Canada (essentially in excess of 85 percent), and must be made subsequent to the PDD/S. Finally, the undertaking
must be practicable to administer. In the case of subsidization, the undertaking may also be made by the foreign
government in relation to limitation or elimination of the subsidy on goods exported to Canada.
Where the undertaking does not eliminate the MD/MS, but rather merely
eliminates injury, officials of the CBSA negotiate with counsel for each of Undertakings remain in
the foreign exporters, and in the case of subsidization with the foreign effect for five years from
government, and the Canadian domestic industry as to what will be sufficient
to eliminate injury. Direct discussions between parties do not take place as the time they are accepted
these would be considered anti-competitive.
and may be renewed for a
Rather, the CBSA officials mediate and then the President accepts the
undertaking he believes is at an appropriate level to eliminate the injury. He further period of not more
may not accept an undertaking which raises prices in sales to Canada by than five years.
more than the MD or MS.
Undertakings remain in effect for five years from the time they are accepted and may be renewed for a further period
of not more than five years. In addition, violations are reviewed and may result in the termination of undertakings.
Exporters and importers may be requested to provide certain information relating to domestic and export sales to
Canada while an undertaking is in effect. This information can result in periodic adjustments of undertaking price
levels and the inclusion of new exporters, where applicable.
Where an undertaking is terminated, proceedings continue as if the PDD or PDS, as the case may be, had been
made (not suspended) and proceedings continue to final determination of dumping (FDD) or final determination of
subsidization (FDS) and the final determination of injury (FDI).

Final Determination of Dumping/Subsidization

Within 90 days of the PDD/S, the President must make a FDD or FDS. MDs and/or MSs are refined and the President
must conclude that the actual or potential volume of dumped or subsidized goods is not negligible. The President
specifies the goods to which the determination applies and the MD/MS of such goods.
Where the actual or potential volume of dumped or subsidized goods is negligible, the investigation is terminated.
The FDD/S is final and conclusive and is subject only to being judicially reviewed and set aside or referred back to
the President of the CBSA for further consideration by the Federal Court of Canada, or in the case of NAFTA Parties,
optionally to a NAFTA panel struck under the NAFTA. The FDD/S can only be set aside where it can be demonstrated
that the President of the CBSA exceeded his jurisdiction, erred in law, violated a principle of natural justice, or made
erroneous findings of fact. However, except where the President exceeded his jurisdiction, the Federal Court and
NAFTA Panels tend to show deference to decisions of the President of the CBSA and rarely overturn them. In cases
of jurisdictional error, courts will look more closely at the decision-making process employed by the President of the
CBSA.

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 Investigation of Dumping or Subsidization – The Procedure

Imposition of Provisional Duty

Where a PDD or PDS has been made, the importer into Canada of goods must pay provisional anti- dumping
or countervailing duty or post security in an amount not greater than the estimated MD/MS on imports made
commencing on the date of the PDD/S. Such duties continue to be payable until either:
1. the President causes the investigation be terminated by virtue of the FDD/S; or
2. because the CITT makes a finding of no injury or retardation.

Where the investigation is terminated, duties are refunded to the importer. Where the investigation has not been
terminated and the CITT finds injury, duties are provisionally retained by the President. They may be subject to full or
partial refund following a further reinvestigation and refinement of the MD or MS in an investigation commenced by
the CBSA after the CITT makes the FDI.

Retroactive Imposition of Anti-Dumping or Countervailing Duty

Where the CITT finds injury and concludes there was massive importation, the President must levy anti- dumping
or countervailing duties on goods imported during the 90 days preceding the PDD/S. A massive importation is one
which is extraordinary in volume as such or as part of a series of importations which
in the aggregate are massive. The duties are applied retroactively where the importer was, or should have been, aware
that the (massive) dumping/subsidization was or would have been injurious and where it is considered necessary to
prevent recurrence of the injury.
While invoked on rare occasions, the ability to retroactively impose anti-dumping and/or countervailing duties tends
to ensure that importers do not purchase extraordinary volumes for importation during the 90 days prior to the date of
the PDD/S to evade application of anti-dumping or countervailing duty.

Canadian Anti-Dumping and Countervailing Duty Measures 9

Determining Whether Dumping
Exists: Normal Value and Export Price
In order to determine whether or not dumping exists, it is necessary to determine the NV and the EP of
the goods which are exported to Canada. Goods are considered dumped when their NV is greater than
their EP, and the difference between the two is the MD.

For example, if the NV equals 100 and the EP equals 90, there is dumping and the MD is 10. The MD expressed as a
percentage of NV is 10 percent, and expressed as a percentage of EP is 11.1 percent.

Determination of NV
The NV of exported goods is determined based on one of the following:
1. the domestic selling price (DSP) of like goods;
2. the selling price of like goods to importers in third countries;
3. the cost of the exported goods plus a mark-up; or
4. a ministerial specification.

Application of the DSP method must first be attempted. Where it cannot be applied, the second or third method is
applied at the option of the President. In virtually every case where the DSP method cannot be used, the President
chooses method (iii). The fourth method is applied when none of the first three can be applied.
Each exporter which cooperates with the CBSA and provides a complete and verifiable response to the RFI will be
assigned its own NVs. Therefore, different exporters may be assigned different NVs.

Section 20: Export Monopoly and Domestic Prices

The normal value of goods imported from a non-prescribed country will be determined pursuant to section 20 of the
SIMA where in the opinion of the President:
1. the government of that country has a monopoly or substantial monopoly of its export trade, and
2. domestic prices are substantially determined by the government of that country, and there is sufficient reason to
believe that those prices are not substantially the same as they would be if they were determined in a competitive
market.

For prescribed countries, only criterion 2 is applied (i.e. evidence of an export monopoly need not be demonstrated).
These provisions are applied on an industry basis, that is collectively in respect of producers and exporters of the
goods under investigation in the prescribed or non-prescribed countries.
Where goods are shipped directly to Canada from a prescribed country or a country that is demonstrated to
have an export monopoly in the sector in question, and where, in the opinion of the President, domestic prices
are substantially determined by the government and there is sufficient reason to believe that the prices are not

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 Determining Whether Dumping Exists: Normal Value and Export Price

substantially the same as they would be if they had been determined a

competitive market, NV is determined based on domestic selling in in At the time of writing,
another country designated by the President. Alternatively, the President there are three prescribed
may designate the use of the aggregate of the cost of production and a
mark-up in respect of the goods sold by producers in another country. In countries for purposes of
no case can pricing by, or costs of, a producer in Canada be used. As a
further alternative, where sufficient information has not been furnished or
subsection 20(1)(a)…
is not available to determine NVs as above, the President may use pricing
from another country to Canada to establish the NV.
At the time of writing, there are three prescribed countries for purposes of subsection 20(1)(a): the People’s
Republic of China, the Socialist Republic of Vietnam, and the Republic of Tajikistan. Even for these countries, Canada
administers the domestic price provision of the SIMA in a manner which assumes that the industry accused of
shipping dumped or subsidized goods does not have its prices substantially determined by the government. That is,
there is a presumption that the industry does not have its prices substantially determined by the government unless
there is information that suggests otherwise.
Positive evidence must therefore be provided by the Canadian industry in the complaint, or must generally be
known to officials of the CBSA, for an investigation of the export monopoly status of the industry in question, or a
domestic price analysis of a prescribed country, to be undertaken under section 20. Failing same, the anti-dumping
investigation, and particularly the establishment of NVs, are conducted and established on the same basis as
industries in any other free market country.

Particular Market Situation

The SIMA amendments, introduced in April, 2018, permit the CBSA to apply alternative methodologies when
determining NV in a anti-dumping investigation where price distortions caused by a “particular market situation” skew
the comparability of domestic sales to sales to Canada. These alternative methodologies (employ surrogate data) to
calculate NV in cases where a “particular market situation” exists.
In September 2019, amendments to SIMR took effect that provide additional parameters relating to the adjustment of
exporter’s NVs, accounting for the exporter’s input costs (e.g. electricity, water, raw materials), when the CBSA finds a
“particular market situation”.
If a particular market situation exists in respect of an input, the cost of that input in the exporting country will be
considered the first of the following amounts that reasonably reflects the cost of the input:
a. the price of the same or substantially the same inputs that are produced in the country of export and sold to the
exporter or to other producers in the country of export;
b. the price of the same or substantially the same inputs that are produced in the country of export and sold form the
country of export to a third country;
c. the price of the same or substantially the same inputs determined on the basis of the published prices of those
inputs in the country of export;
d. the price of the same or substantially the same inputs that are produced in a third country and sold to the exporter or
to other producers in the country of export, adjusted to reflect the differences relating to price comparability between
the third country and the country of export; or
e. the price of the same or substantially the same inputs determined on the basis of the published price outside the
country of export, adjusted to reflect the differences relating to price comparability with the country of export.

Canadian Anti-Dumping and Countervailing Duty Measures 11

Previously Canada did not have a legislative basis to account for distortions in a market economy that would render
normal value calculation methodologies unreliable. These changes will involve greater scrutiny of exporter data,
particularly that of exporters with a dominant market position or state owned enterprises with significant involvement
by government, in the determination of their normal values.

Related-Company Input Dumping

The September 2019 amendments to the SIMR also include new provisions that target “input dumping” between
related parties. Related-party input anti-dumping rules are distinct from “particular market situation” rules. When
inputs are acquired from an “associated” company (whether the association is by virtue of common ownership
or because the companies are not dealing at arm’s length), and the inputs represent a “significant factor” in the
production of the goods, the cost of the input in the country of export is considered to be the greater of the following
amounts:
a. the price paid in respect of that input by the exporter or producer to the associated person;
b. the cost incurred by the associated person in the production of that input, including the administrative, selling and all
other costs with respect to that input; and
c. the price in the country of export of the same or substantially the same inputs, if sufficient information is available to
enable the price to be determined on the basis of
i. the selling prices of those inputs in the country of export, in the same or substantially the same quantities,
between parties who are not associated persons, or
ii. the published prices of those inputs in the county of export.

Domestic Selling Price of Like Goods

The NV is established by looking at the closest comparable domestic sales.
The NV is:
1. the price of goods like those exported (like goods);
2. when sold to purchasers with whom the exporter is not associated;
3. who are at or substantially at the same trade level of the importer;
4. in the same or substantially the same quantities as the sale of the goods to the importer;
5. in the ordinary course of trade for home consumption under competitive conditions;
6. during prescribed 60-day periods;

7. at the place from which the goods were shipped directly to Canada.

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 Determining Whether Dumping Exists: Normal Value and Export Price

The NV, thus established, is then adjusted to take into account specified differences relating to price comparability
between domestic and exported goods. These adjustments are set out in the SIMR and deal with differences in:
1. qualities/characteristics between the goods sold to the importer in Canada and the like goods;
2. discounts (i.e. rebates, deferred discounts or discounts for cash) generally granted in relation to the sale of like goods
in the country of export;
3. volumes sold to selected customers in the country of export as compared with the importer in Canada;
4. trade level as between that of selected customers in the exporting country and that of the importer in Canada;
5. taxes and duties charged in respect of sales in the exporting country which are not charged in relation to sales to the
importer in Canada; and
6. delivery costs.

The NV is determined on an ex- factory basis.

The Price of Like Goods

Like goods are goods which are identical in all respects to the exported goods or, in the absence of any goods which
are identical, goods the uses and other characteristics of which closely resemble those of the exported goods.
The price of like goods used to determine NV is either the preponderant DSP or, failing same, a weighted average of
DSPs.
Domestic sales selected for establishment of the DSP are those made by the exporter, in the exporting country, to
persons with whom it is not associated. Associated persons include both individuals and corporations and refer to
those who are related to each other or who are not dealing at arm’s length with each other.
Sales to purchasers who purchase in comparable volumes to those purchased by the importer and who are at the
same trade level as the importer are to be selected. Where none or an insufficient number are found, sales to domestic
customers in the exporting country at a subsequent trade level will be used. In this case, the DSP will be adjusted
to reflect the additional costs incurred in the exporting country in selling to such customers. The selected domestic
sales are those made within a 60-day period of the date of sale of goods to the importer so as to permit a reasonable
comparison between export and domestic sales.

Other Vendors’ Sales

Where there are insufficient numbers of domestic sales by the exporter meeting the requirements, the NV will be
established based on domestic sales by one or more other vendors in the country of export the sales of which meet
the requirements. In such cases, appropriate adjustments are also made.

Selling Price to Purchasers in Third Countries

Under this methodology, the NV is the price of like goods sold by the exporter to unrelated importers in any country
other than Canada during the required period. The selling price would be adjusted to reflect differences in terms
and conditions of sale, taxation and other differences relating to price comparability between goods sold to the
importer in Canada and the like goods sold to the importers in other countries. However, the CBSA avoids the use
of this provision because, as a matter of policy, it takes the position that companies dumping or receiving subsidies
in respect of exports to Canada are likely also to be dumping or receiving subsidies in respect of exports to other
countries.

Canadian Anti-Dumping and Countervailing Duty Measures 13

Cost-Plus Mark-up
Where NV cannot be determined using the DSP approach because there were not sufficient sales of like goods that
satisfied the terms and conditions required to do so, the President will apply the cost-plus mark-up method.
Under this approach, the NV is equal to the aggregate of:
1. the cost of production of the exported goods;
2. an amount for administrative, selling and other costs; and
3. an amount for profit.

The cost of production includes all costs attributable to the production of the goods, including costs of design or
engineering. Such costs are considered to be fully absorbed.
An amount for administrative, selling and all other costs includes warranty, design and engineering not included in the
costs of production, which are directly attributable to production and sale of the goods
Finally, an amount for profit is based on a sequential application of regulations under the SIMR. In order, they are:
1. the weighted average profit made on sufficient domestic sales by the exporter of goods like those sold to the importer
in Canada;
2. the weighted average profit made on sufficient domestic sales, by the exporter, of goods that are of the same category
as the goods sold to the importer in Canada;
3. the weighted average profit made on sufficient sales by producers in the exporting country, other than the exporter, of
goods like those sold to the importer in Canada;
4. the weighted average profit made on sufficient sales by producers in the exporting country, other than the exporter, of
goods that are of the same general category as the goods sold to the importer in Canada; and
5. the weighted average profit made by the exporter on sufficient sales of a group or range of goods that is the next
largest to that of the same general category as the goods sold to the importer in Canada.

NV by Ministerial Specification
Where the President forms the opinion that sufficient information has not been furnished or is not available to
determine NV pursuant to any other method, the NV is established arbitrarily based on a ministerial specification. The
same approach is taken in the case of goods exported from countries where there exists an export monopoly.

Export Price
The EP is equal to:
1. the lesser of the exporter’s sale price for the goods; and
2. the price at which the importer has purchased or agreed to purchase the goods.

Deductions from the EP are:

1. the costs, charges and expenses incurred in preparing the goods for shipment to Canada that are additional to those
generally incurred on sales of like goods for domestic consumption;
2. any federal or provincial duty or tax imposed on the goods which is paid by the exporter; and
3. all other costs, charges and expenses resulting from the shipment of the goods from the place of direct shipment to
Canada.

The EP, like the NV, is determined on an ex factory basis.

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 Determining Whether Dumping Exists: Normal Value and Export Price

Alternative Methods of Establishing EP

Under certain circumstances, the EP may be established based on a resale price method or by ministerial
specification.

Resale Price Method of Determining EP

Where there is no EP (e.g. consignment sale) or where the President is of the opinion that the EP is unreliable, then
the EP will be established based on the price at which goods are resold in Canada by the importer in the condition in
which they are imported less costs incurred on or after the importation of the goods, an amount for profit reflecting
the profit that would be made in the sale of goods by the importer in the ordinary course of trade, and all costs from
the point of direct shipment to Canada.
An EP may be considered unreliable because the sale of the goods for export is between associated persons or for
reason of a compensatory arrangement made between the manufacturer, producer, vendor, exporter, importer in
Canada, and any other person which impacts the price of the goods, the sale of the goods or the net return to the
exporter, vendor, manufacturer or producer of the goods.
The amount of profit is that earned by unrelated vendors in Canada at the same trade level as the importer. It is
generally calculated based on a profit survey which includes importers, as well as Canadian manufacturers and other
distributors.

Credit Sales to Importers in Canada

Where the sale to the importer is made on credit terms other than cash discounts, the value of the terms is added to
the EP.

Special Arrangements
Where the manufacturer, producer, vendor or exporter undertakes, directly or indirectly, to indemnify, pay on behalf
of, or reimburse the importer or purchaser in Canada of the goods for any part of the anti-dumping duty that may
be levied on the goods, the EP is reduced by that amount. In effect, this creates an additional and equal liability for
payment of the duty on the importer.
Similarly, where any benefit is provided by the exporter, directly or indirectly, to persons who purchased the goods in
Canada on resale from the importer or any person on any subsequent resale, that benefit is deducted from the EP.

EP Established by Ministerial Specification

Where the President of the CBSA forms the opinion that sufficient information has not been furnished, or is not
available, to enable him to determine the EP by one of the other methods, the EP is established arbitrarily by
ministerial specification.

Currency Conversion
The NV is always expressed in the currency of the exporting country. In order to compare the NV to the EP, where
the latter is based on another currency (e.g. Canadian dollars), the NV will be converted to Canadian dollars at the
exchange rate prevailing on the date of sale or, failing information concerning same, on the date of shipment to
Canada. Likewise, if the selling price to Canada is in a currency other than the Canadian dollar, a similar currency
conversion is made.

Canadian Anti-Dumping and Countervailing Duty Measures 15

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 Countervailing Duty/Subsidies

Countervailing Duty/Subsidies
What is a Subsidy?
A subsidy may be actionable when there is a financial contribution by a country other than Canada
that confers a benefit to persons engaged in production, manufacture, growth, processing, purchase,
distribution, transportation, sale, export or import of goods provided that benefit is specific to a
business, industry or region, but does not include any duty or internal tax imposed by that country.
Subsidized goods are goods that benefit from a subsidy. Goods that benefit from subsidies may be
subject to countervailing duties depending on the type of subsidy and the amount of subsidy.

Certain subsidies are non-actionable subsidies, in which case they may not be subject to countervailing duties. Other
subsidies are prohibited subsidies, which are deemed to be specific and which may be subject to countervailing duties.
These are also called countervailable subsidies.
Where a subsidy on subsidized goods is a prohibited subsidy, countervailing duty equal to the amount of the subsidy
is applied to the imported goods but only to the extent of the portion of the subsidy that is an export subsidy.
The MS is established on a per-unit basis by distributing the value of the subsidy over subsidized goods based on the
application of generally accepted accounting principles.
Any reimbursement of countervailing duty paid directly or indirectly to the importer by the manufacturer, vendor
or exporter of subsidized goods or the foreign government is to be added to the amount of subsidy, creating an
additional and equal liability for payment of the duty on the importer.

Joint Anti-Dumping and Countervailing Duty Investigations

In cases where the President concludes that subject goods are both dumped and subsidized, anti-dumping duties are
only payable on the portion of the MD that is not attributable to the export subsidy. If the MD is entirely attributable to
the subsidy, no anti-dumping duty is payable.

Canadian Anti-Dumping and Countervailing Duty Measures 17

The Final Determination of Injury
Where the President of the CBSA makes a PDD or PDS, the final injury inquiry is conducted by the
CITT. The CITT conducts hearings in public and in camera (i.e. confidential session) approximately 90
days following the PDD or PDS and makes its FDI within 120 days of the PDD or PDS.

The role of the CITT is to conduct an inquiry to determine whether the dumping or subsidizing of goods:
1. has caused or is likely to cause injury to the domestic industry in Canada of like goods; or
2. would have caused injury or retardation except for the imposition of anti-dumping or countervailing duties.

Key aspects for consideration by the CITT are:

1. What are the like goods?
2. What is the domestic industry?
3. Is there a causal link between dumping or subsidization, as the case may be, and injury or retardation?

The CITT may also be asked to exclude products from the effects of its decision but tends to grant exclusions, which
are highly discretionary in nature, on an infrequent basis. Discretion tends to be exercised where the goods are not
made in Canada and/or do not compete with Canadian made goods.
To assist in its assembly of pertinent data and other information, the CITT distributes questionnaires to Canadian
manufacturers, importers, and foreign producers; in some cases, the CITT issues questionnaires to distributors,
retailers or end users of the subject goods. The questionnaire is to be completed and returned within 4 to 6 weeks. The
questionnaires elicit both public and confidential data and other information.
Over the course of the 90 days leading to the hearings, the complainant domestic industry files its case and exporters,
importers and in some cases end-users file their cases in opposition to the complainant. Interrogatories or requests
for additional information are exchanged between parties in order to ensure that, prior to the first day of the hearings,
all documentary evidence has been filed. These are likewise both public and confidential.
In some cases, the CITT conducts a pre-hearing conference, prior to the commencement of an inquiry, to consider
matters which will assist in the orderly conduct of the hearing. In other cases, parties file motions which may affect
proceedings or documentation/information to be filed with the CITT.
The hearing provides the CITT with an opportunity to gather additional information orally and the parties an
opportunity to present their cases. This is done principally through direct evidence, cross-examination and argument.
Cross-examination proceedings are generally conducted by counsel representing parties. However, members of the
CITT themselves are active in asking questions of witnesses. In this connection, the CITT may call witnesses itself.
During the course of the inquiry, the CITT conducts hearings in both public and in camera (confidential) sessions. The
latter are attended only by witnesses, legal counsel who have filed appearances and undertakings, CITT members and
their staff. These sessions are closed to the public. However, the CITT endeavours to conduct as much of the hearing
as possible in public.
The CITT goes to great lengths to ensure that confidential information is maintained as such. Accordingly, it
has established procedures whereby confidential documentation may be viewed only by counsel who have filed

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 The Final Determination of Injury

undertakings of non-disclosure. Non-confidential versions of documentation designated as confidential, that are

redacted of all business proprietary information, must be filed.
The final stage of the hearing consists of closing arguments made by counsel for the complainant, followed by the
counsel for the importers and exporters, and finally a rebuttal by the complainant’s counsel. The CITT must issue a
finding no later than 120 days after the PDD/S was made. Statements of Reasons usually follow within 15 days of the
finding.

Injury
Injury means material injury to a domestic industry. Domestic industry
means the domestic producers as a whole of the like goods, or those In some cases, the CITT
domestic producers whose collective production of the like goods,
constitutes a major proportion of the total domestic production of the
conducts a pre-hearing
like goods. In cases where a domestic producer is related to exporters conference, prior to the
or importers of dumped or subsidized goods, or is an importer of such
goods, the producer may be excluded from the collective domestic
commencement of an
industry. What constitutes a major proportion varies from case to case. inquiry…
While it must be significant, it does not need to exceed 50 percent.

Material Injury
Injury, which is described as material injury, is not further defined by the SIMA. A number of considerations are taken
into account by the CITT on a case-by-case basis. Typically, the CITT is concerned about:
1. price erosion or suppression;
2. lost sales and market share;
3. reduced production and under-utilization of capacity;
4. reduced employment;
5. reduced investment; and
6. declining gross or net profitability.

Like Goods
The CITT must determine whether or not the dumping or subsidization has caused, threatens to cause, or has been a
source of retardation of production, by the domestic industry, of like goods. In determining whether or not goods are
like one another, the CITT examines all the characteristics or qualities of the goods and ascertain whether or not they
are identical, or failing same, functionally or otherwise similar or substitutable for each other in the marketplace.

Canadian Anti-Dumping and Countervailing Duty Measures 19

Causality
The CITT must find a special connection between the dumping or subsidization and injury. It is not necessary to find
that injury is exclusively due to dumping or subsidization, but rather that the latter are a cause of injury.
The SIMR directs that the CITT may consider some or all of the following factors:
1. the volume of dumped or subsidized goods and whether there has been a significant increase in such volume;
2. the effect of the dumped or subsidized goods on the price of like goods and whether the dumped or subsidized
goods have significantly undercut the price or depressed the price of like goods, or suppressed the price by
preventing it from increasing;
3. the resulting impact of dumped or subsidized goods on the state of the domestic industry, taking into account all
relevant economic factors and indices including:
a. actual or potential decline in output, sales, market share, profits, productivity, return on investments or
utilization of industrial capacity;
b. negative effects on cash flow, inventories, employment, wages, growth or the ability to raise capital;
c. the magnitude of the MD or MS; and
d. any other factors relevant in the circumstances.

In looking at the question of causation and threat of injury, the SIMR directs that the following factors be taken into
account:
1. whether or not there is a significant rate of increased dumped or subsidized goods;
2. whether there is sufficient freely disposable capacity or an imminent, substantial increase in capacity of the exporters
of dumped or subsidized goods;
3. potential for product shifting within production facilities;
4. whether the imported goods are entering the domestic market at prices that are likely to increase demand for further
imports;
5. negative effects on existing development and production efforts;
6. magnitude of the MD or MS;
7. evidence of imposition of anti-dumping or countervailing measures by authorities of other countries;
8. in the case of subsidization, the nature of the subsidy in question and the effects it will have on trade in the future;
and
9. any other factors that are relevant.

The SIMR also warns against attributing, to the dumping or subsidization, the impact of other factors such as:
1. contraction in demand for the goods or like goods;
2. any change in the pattern of consumption of the goods or like goods;
3. trade-restrictive practices of, and competition between, foreign and domestic producers;

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 The Final Determination of Injury

4. developments in technology;
5. export performance and productivity of the domestic industry in respect of like goods; and

6. any other relevant factors.

Effect of CITT FDI and Judicial Review

The final determinations of the CITT is final and conclusive and is subject only to being judicially reviewed and set
aside or referred back to the CITT for further consideration by the Federal Court of Canada, or in the case of NAFTA
Parties, optionally to a NAFTA panel struck under NAFTA.
Anti-dumping and countervailing duties continue to be payable until and unless the finding of injury is set aside. Such
a finding can only be set aside where it can be demonstrated that the CITT exceeded its jurisdiction, erred in law,
violated a principle of natural justice, or made erroneous findings of fact. However, except where the Tribunal exceeded
its jurisdiction, the Federal Court and NAFTA Panels tend to defer to decisions of the CITT and rarely overturn them on
appeal. In cases of jurisdictional error, courts will look more closely at the decision-making by the CITT.

Review by the CITT of its Finding

A CITT finding generally remains in place for a period of five years. The CITT may, in response to a request for interim
review, conduct a review of a finding prior to the expiry of five years where circumstances have sufficiently changed.
The question of sufficient change in circumstances is examined on a case by case basis. Otherwise, the CITT will give
notice of expiry of the finding approximately nine to 10 months prior to the expiry of the CITT finding.
If no one requests that the finding be extended for a further period or the CITT is not convinced that a review should
be initiated, the finding will be allowed to lapse and will be cancelled by the CITT. Otherwise, a review will be initiated.
The President of the CBSA will conduct an investigation into the propensity, on the part of the exporters in question,
to continue and/or resume dumping and/or receive a countervailable subsidy if the finding is cancelled. If a finding
of a propensity to dump and/or to receive a countervailable subsidy is made by the President of the CBSA, the CITT
will continue with the review and will examine the question as to whether such likely dumping or subsidization will
continue to be a cause of injury or retardation.

A Finding in the Case of NAFTA Origin Goods

In the event an inquiry covers goods originating in the United States of America or Mexico, the CITT must make a
separate finding in respect of such goods. This does not mean that the CITT will necessarily separately weigh the
impact in Canada of U.S. or Mexican goods. In most cases, the CITT will cumulate the effects of the dumping or
subsidization subject thereafter to requests for product exclusions.
As noted above, the FDI, or the FDD or FDS, are subject to review under the terms of the NAFTA by a NAFTA panel.

Disposition of Reviews
Where the Federal Court of Appeal or NAFTA panel determines that the FDD/S or FDI has been made in error, in
general the matter will be sent back to the decision-maker for reconsideration.

Canadian Anti-Dumping and Countervailing Duty Measures 21

...the anti-dumping or countervailing duties
would not, or might not, be in the public interest,
it will report this to the Minister of Finance and
provide a statement of facts and reasons for its
conclusion.

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 Public Interest

Public Interest
Persons whose interests may be adversely affected by a finding of injury by the CITT may ask the CITT
to conduct a public interest inquiry in cases where the CITT has made an affirmative finding of injury.
These persons would be concerned about the application of anti-dumping or countervailing duties
and/or an increase in the cost of acquiring the subject goods.
Certain persons have been designated as being entitled to request relief. These are:
1. persons engaged in the production, purchase, sale, export or import of foreign or Canadian produced goods that are
like or of the same description as the goods which are the subject of the inquiry;
2. a person who is required or authorized by any federal or provincial legislation to make representations to the CITT on
the matter;
3. a user of goods that are of the same description as the goods which are the subject of the inquiry; or
4. any association whose purpose is to advocate the interests of consumers in Canada.

The request should address the following:

1. the availability of goods of the same description from other countries or exporters to which the finding does not
apply;
2. the effect that the imposition of anti-dumping or countervailing duty has had or will have on competition in the
Canadian market;
3. the effect that the imposition of the duty has had or is likely to have on producers in Canada that use the goods as
inputs in the production of other goods and in the provision of services;
4. the effect that anti-dumping or countervailing duties have had or will have on competition by limiting access to
goods that are used as inputs in the production of other goods and in provision of services, or by limiting access to
technology;
5. the effect of anti-dumping duties on the choice or availability of goods at competitive prices for consumers and the
effect of the anti-dumping or countervailing duties on domestic producers of inputs used in the production of like
goods.

Role of the CITT

The CITT does not view its responsibility as balancing the interests of competing industries. The CITT will not
determine whether the public interest will be better served by protecting the producers of the subject goods or their
users who may also be producers.
Rather, the CITT determines whether the full level of anti-dumping or countervailing duty is necessary for the
protection of the Canadian producers of the subject goods. If not, it will recommend a reduction.

CITT Report
Where the CITT is of the opinion that imposition of all or part of the anti-dumping or countervailing duties would not,
or might not, be in the public interest, it will report this to the Minister of Finance and provide a statement of facts
and reasons for its conclusion. The Governor in Council, essentially the Cabinet of the party in power, may then, in its
sole discretion, grant the appropriate relief.

Canadian Anti-Dumping and Countervailing Duty Measures 23

Application of Anti-Dumping or
Countervailing Duties
After the CITT has made its finding, the matter reverts to the CBSA for enforcement purposes.

Where there is no past or threat of injury or retardation, proceedings are terminated and all provisional duties are
refunded to the importer.
Where there is a threat of injury finding or of retardation, provisional duties said will be refunded to the importer.
However, imports after the date of the CITT’s finding are subject to assessment of anti-dumping or countervailing
duties to the extent of the MD or MS.
Finally, where there is an injury finding, the CITT will not investigate whether or not there is also a threat of injury or
retardation. In such case, anti-dumping and countervailing duties will be payable on goods imported from the date of
the PDD or PDS forward.
Goods imported during the provisional period (date of PDD/S to date of CITT finding) are subject to anti-dumping or
countervailing duties in an amount no greater than the MD/MS that was determined for purposes of the PDD or PDS.
In cases where an undertaking accepted by the President has been violated, and in cases of massive importation, anti-
dumping or countervailing duties may be assessed retroactively.
In the event that the Governor in Council determines that a lesser amount than the full amount of the MD or MS
should be the basis for determining applicability of anti-dumping or countervailing duties, this will be taken into
account in the calculations.

Scope Proceedings
The April 26, 2018 amendments to the SIMA and SIMR introduced a new CBSA enforcement process known as scope
proceedings. Scope proceedings are formal processes whereby an interested person (such as domestic producers,
importers, exporters, or consumers) can obtain a ruling from the CBSA on whether a particular product falls within the
scope of the description of subject goods in a SIMA finding, order or undertaking. This includes questions relating to
the determination of origin of goods. Scope proceedings may also be self-initiated by the CBSA.
After the CBSA receives a scope ruling request, it has has 30 days (or 45 days, if extended) to review the application
and determine whether a scope proceeding should be initiated. If the ruling application is rejected, the CBSA will
notify the applicant and provide the reasons for its decision. Reasons that a scope ruling application could be rejected
are prescribed in the SIMR, for example if the goods have not been produced on the date of the application, if the
basis for the ruling request is already the subject of another proceeding before the CBSA, the CITT, an appellate court
or a NAFTA panel, or if the CBSA determines that the application is frivolous, vexatious or made in bad faith.
The CBSA then has 120 days (or 210 days, if extended), to review the application, consider the merits, and either
terminate the scope proceeding or issue a binding scope ruling. It will provide notice to the applicant, if any, the
government of the country of export, the exporter, the importer and the domestic producers that a scope proceeding
has been initiated. Interested parties have a right to participate in the scope proceeding by submitting evidence and
arguments to the President.

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 Application of Anti-Dumping or Countervailing Duties

A scope ruling may be appealed to the CITT by any interested person. A notice of appeal must be filed in writing with
the CBSA and the CITT within 90 days of the date the scope ruling was made. An appeal decision made by the CITT is
subject to judicial review by the FCA.

Anti-Circumvention Investigation
The April 26, 2018 amendments to the SIMA and SIMR also introduced a new type of proceeding to allow the CBSA
to investigate allegations of circumvention of SIMA duties. The CBSA may expand or modify a finding to address the
circumvention activity, which may include behavior such as trans-shipping goods through a third country, modifying
country of origin marking, making minor alterations to bring goods outside the scope of a finding, or assembling parts
in a third country without adding significant value. More specifically, circumvention is defined as occurring when all of
the following elements are present:
 a change in the pattern of trade has occurred after a dumping or subsidy investigation was initiated;
 a prescribed activity is occurring and imports of the goods to which that prescribed activity applies are
undermining the remedial effects of an order or finding of the Canadian International Trade Tribunal (CITT); and
 the principal cause of the change in trade pattern is the imposition of anti-dumping or countervailing duties.

The CBSA can initiate an anti-circumvention investigation on the President’s initiative or after receiving a complaint
from a member of the public. The CBSA will notify the importer, the exporter, the government of the exporting country,
the domestic producers and the complainant, if any, of the initiation of the investigation, a termination, an extension,
the publication of the statement of essential facts, and the final decision.
The process generally takes about 225 days from the time the CBSA receives a complaint until the CBSA makes
a decision regarding circumvention. When a complaint is received, the CBSA has 45 days to determine if an anti-
circumvention investigation should be initiated. After initiation, the CBSA will issue a statement of essential facts, on
which interested parties may provide comments. The CBSA has 180 days after the date of initiation (or 240 days if the
investigation is extended) to conduct its investigation and either terminate the investigation or make a decision. The
factors that the CBSA will consider in making a circumvention finding are prescribed in the SIMR.
If the CBSA finds circumvention, it must file its decision with the CITT, which shall, without delay, make an order
amending the order or finding that is the subject of the President’s decision in the manner described in the decision,
including any terms and conditions that are set out in the decision.
Anti-circumvention decisions by the President are subject to judicial review by the FCA. An exporter may also request
an exemption from the extension of duties under the anti-circumvention finding. In order to qualify for an exemption,
the exporter must establish that it is not associated with any exporter who was given notice of the circumvention
investigation, and that it has not been given notice of the initiation of that investigation or requested to provide
information during the course of that investigation.

Re-Determinations
After an importer has self-assessed, or has received an assessment, and has paid anti-dumping/countervailing duties,
SIMA provides for a multi-stage review process involving re-determinations by a CBSA Designated Officer or the
President of the CBSA as the case may be. Re-determinations may be initiated by the importer, a Designated Officer, or
the President, depending on the circumstances. For NAFTA originating goods, others may request a re-determination,
including the producer or exporter of the goods, provided they are of the NAFTA country.
Re-determinations are the only mechanism under the SIMA that allows an importer to challenge an assessment of
anti-dumping/countervailing duties. These same processes also allow the CBSA or the President to retroactively
reassess anti-dumping duties on past importations.

Canadian Anti-Dumping and Countervailing Duty Measures 25

In a re-determination, a Designated Officer or the President, as the case may be, has the authority to address the
following matters:
a. the normal value;
b. the export price;
c. the amount of subsidy or export subsidy; or
d. whether the goods are of the same description as those description as those described in the order or finding of the
Tribunal or in the order of the Governor in Council.

From the perspective of an importer seeking to challenge an initial assessment of anti-dumping duties, the first level
of redress is a request for a Designated Officer re-determination. An importer can challenge a Designated Officer re-
determination at the second level by requesting a further re-determination by the President. The third level involves an
appeal to the CITT, and from there to the Federal Court of Appeal, and from there, with leave, to the Supreme Court of
Canada.
Each of the multi-level re-determination processes is subject to a number of strict procedural requirements. To
request a re-determination, an importer of non-NAFTA goods must file a request within 90 days of the date of the last
assessment and first pay any anti-dumping duties owing within the 90-day deadline. If either of these criteria are not
satisfied, the CBSA will reject the request. Designated Officers and the President are also subject to restrictions. A
Designated Officer or the President cannot re-determine an importation more than two years back from the date of the
initial assessment unless it falls within one of the enumerated exceptions in the SIMA.
Re-determinations are normally decided on a transaction-by-transaction basis. In the case of an importer filing
multiple re-determination requests, the CBSA allows the importer to file a blanket request that consolidates the
requests into a single proceeding. Blanket requests reduce the paper burden and ensure that all the transactions
covered by the request are decided at the same time and by the same CBSA officers delegated to make the re-
determinations.
The CBSA may use the results of a Re-Investigation or a Normal Value Review to make a re-determination or further
re-determination.

Post-Importation Reviews – Re-Investigations and Normal Value Reviews

Re-investigations and Normal Value Reviews enforce the prospective normal value regime employed by Canada and
administered by the CBSA.
The CBSA applies prospective normal values and an “all others rate” to determine the anti-dumping duty liability on
importations of goods subject to an anti-dumping order. At the conclusion of an anti-dumping investigation, the CBSA
issues prospective normal values to exporters who provided verifiable and complete responses in investigation. The
CBSA applies a fixed percentage rate to impose anti-dumping duties on exporters who did not participate or otherwise
cooperate in the investigation.
Prospective normal values are calculated based on the sales and cost data filed by the exporter in the anti-dumping
investigation. In a Re-investigation or Normal Value Review, the CBSA updates these prospective normal values to
ensure that they reflect any changes in domestic selling prices, production costs or exchange rates that have occurred
since the last time the CBSA issued prospective normal values. A Re-investigation is country-wide and any exporter
can participate, even an exporter found to be uncooperative by the CBSA in a prior proceeding. A Normal Value Review
only involves a single exporter. Both proceedings apply to export prices as well as to normal values.
Re-investigations and Normal Value Reviews are consequential proceedings because they directly affect anti-dumping
duty liability. For example, if an exporter with prospective normal values fails to cooperate in a Re-investigation or

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 Application of Anti-Dumping or Countervailing Duties

Normal Value Review, the CBSA will cancel the exporter’s normal values and instead apply the “all others rate”, which
usually results in prohibitively high anti-dumping duty assessments. At the conclusion of a Re-Investigation or Normal
Value Review, the CBSA can also issue retroactive reassessments of anti-dumping duties by way of a re-determination.
The CBSA may retroactively re-assess anti-dumping duties at the conclusion of a Re-investigation or Normal Value
Review. The CBSA may retroactively reassess anti-dumping duties if it determines that an exporter with prospective
normal values failed to promptly notify the CBSA in writing of changes to domestic prices, costs, marketing conditions
or terms of sale associated with the goods covered by a prospective normal value. The CBSA may also retroactively
reassess anti-dumping duties if it determines that an exporter failed to increase its prices to Canada to account for
any increases in the sales and cost data used to calculate prospective normal values. While these are two of the most
common scenarios, the CBSA has stated that it may retroactively reassess duties based on any grounds it deems
relevant.
The decision to initiate a Re-investigation or Normal Value Review is at the discretion of the CBSA. The CBSA takes the
following factors into account when determining whether to initiate a Re-investigation or Normal Value Review:
a. the volume of imports of the subject goods and fluctuations in import volume;
b. the elapsed time since values were last issued; the nature of the subject goods;
c. the presence of new models or products imported;
d. the presence of new exporters of the subject goods;
e. changes in the selling prices in the exporter’s home market;
f. changes in the selling prices in the exporter’s third country export markets;
g. changes in the exporter’s costs;
h. fluctuations in the currency exchange rate;
i. changes in the nature or amount of subsidies;
j. changes in the channels of distribution for the goods sold to Canada;
k. changes in any other manner in which the goods were sold to Canada;
l. in need to review the export prices, such as where exports are associated with the importers;
m. the number of requests for re-determination;
n. the timing of the next potential expiry review;
o. resources available; and
p. any other relevant consideration.
In terms of whether to initiate a Normal Value Review or a Re-Investigation, the CBSA has identified the following
factors as supporting a Normal Value Review:
 a significant volume of the imports of subject goods are from a particular exporter or a limited number of
exporters;
 where there are new models, they are limited to a particular exporter or limited number of exporters;
 where there are a limited number of new exporters in the market who have requested to be part of the next re-
investigation
 where there are factors impacting export prices, they are limited to a particular exporter or a limited number of
exporters;

Canadian Anti-Dumping and Countervailing Duty Measures 27

  where representations are made in respect of a particular exporter or the issue raised impacts a limited number of
exporters; and
 where a request for a re-determination has been filed by an importer, which includes a request that normal values
be issued for its exporter.

Alternatively, the CBSA has identified the following factors supportive of a Re-investigation:
 there are many exporters who have exported subject goods to Canada since the conclusion of the last proceeding;
 where there is a new model exported by multiple exporters;
 where there are multiple new exporters in the market who have request to be part of the next re-investigation;
 where factors impacting export prices are not limited to a particular exporter or a limited number of exports;
 where the issues raised in representations impact multiple exporters;
 where information from a variety of industry participants will likely be sought
 where there are a large number of requests for re-determinations and/or updated values in respect of multiple
exporters; and
 there is an expiry review potentially upcoming.

The CBSA is not bound by any prior proceedings when determining how to update prospective normal values and
export prices in a Re-investigation or Normal Value Review. As a result, the CBSA may change normal value and export
price methodologies based on the particular facts and circumstances of the Re-investigation or Normal Value Review.
Complainants, importers, exporters and other interested persons may write to the CBSA to request a Re-Investigation
or Normal Value Review. The CBSA considers these representations when deciding whether to initiate a Re-
investigation or Normal Value Review. The CBSA also publishes these representations on its website.

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 Liability for Anti-Dumping and Countervailing Duties

Liability for Anti-Dumping and

Countervailing Duties
The general rule is that the importer in Canada of dumped or subsidized goods is solely liable for
applicable duty. The importer is defined by SIMA as being the person who “is in reality the importer of
the goods”. There are no legislative criteria which establish characteristics of an importer.

The President may, on his own initiative, and must when requested to do so, ask the CITT for a ruling as to which of
two or more persons is the importer of goods imported into Canada.
The CITT’s ruling as to the true importer is not subject to appeal but is subject to judicial review by the Federal Court
of Appeal or a NAFTA panel, as the case may be, or by the CITT itself.

Conclusion
The SIMA is a formidable weapon in the hands of complaining Canadian industries. It can be unleashed quickly and
without prior notice. Where foreign exporters and manufacturers and their Canadian importers are not prepared
to respond quickly, they may suffer arbitrary and punitive decisions which can have the effect of destroying existing
levels of market penetration and future opportunities. It is therefore incumbent on those facing anti-dumping or
countervailing duty investigations to retain expert legal counsel, cooperate fully with the CBSA and the CITT and
marshall resources, both administratively and financially, to fight back.

Canadian Anti-Dumping and Countervailing Duty Measures 29

bennettjones.com
 Appendix
Notes

Appendix
Event SIMA

Forthwith on President’s initiative or where he receives complaint, within

1. Initiation of Investigation 30 days after date on which the President notifies complainant that the
complaint is properly documented

Upon initiation of investigation, an inquiry is commenced culminating in a

2. Preliminary Determination of Injury
preliminary determination of injury within 60 days of the date of initiation

Made either within 90 days or, in exceptional cases, within 135 days of
3. Preliminary of Determination of Dumping/
the date of initiation of the investigation, and causing the injury inquiry to
Subsidization
continue

4. Possibility of Accepting Undertakings and Suspending

Following preliminary determination of dumping or subsidization
Investigation

5. Final Determination of Dumping/Subsidization Within 90 days of the preliminary determination of dumping

Public hearings to commence within approximately 90 days of the

preliminary determination of dumping/subsidization; the final injury
6. Final Determination of Injury
determination to be made within 120 days of the preliminary dumping/
subsidization

Upon request and where conditions are satisfied, following a CITT

7. Public Interest Inquiry
affirmative finding of injury

8. Determination of Normal Value, Export Price and

Within six months after the date of the CITT’s finding
Amount of Subsidy for Enforcement Purposes

At any time after a finding, upon request by any interested person; within
9. Scope Ruling
150 days of receipt of the complaint (255 if extended)

At any time after a finding, upon complaint by any interested person

10. Anti-Circumvention Finding or initiation by CBSA; Within 225 days of receipt of complaint (285 if
extended)

11. Appeal by Importer of Margin of Dumping or Amount

of Subsidy and/or whether or not goods are within the Within 90 days of import entry
scope of the CITT finding

Within 90 days of first decision when initiated by importer or within two

12. Further reviews of margin of dumping or amount of years when initiated by CBSA; thereafter, within 90 days to the CITT, then
subsidy, or scope issue 90 days to the Federal Court of Appeal or NAFTA panel; and finally, with
leave, within 60 days to the Supreme Court of Canada

Canadian Anti-Dumping and Countervailing Duty Measures 31

31
Typical Canadian Anti-Dumping Process

Day CBSA CITT

0 Notice of Initiation of Investigation Notice of Commencement of Preliminary Injury Inquiry

Notification of CBSA of Intention to Notices of Participation, Representation, Declarations a

10-14
Participate and Undertakings

Statement of Reasons on Initiation of

15 Distribution of CBSA Documents
Investigation

21 Importer Responses to CBSA RFIs -

30 - Submissions by Parties opposed to Complaint

37 Exporter Responses to CBSA RFIs -

40 - Replies from Complainants

41-59 Supplemental RFIs and Responses -

60 - Preliminary Injury Determination

Reasons for Preliminary Injury

75-80 -
Determination1

Preliminary Determination of Notice Of Commencement of Final Injury Inquiry;

90
Dumping/Subsidization Issuance of CITT Questionnaires

95-120 On-site Verification of Exporters, -

Importers, Governments Notices of Participation, Representation, Declarations,

105
(Subsidy Only) Undertakings

110 - Replies to CITT Questionnaires

135 Closing of record date -

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 Appendix
Notes

140 - Distribution of CITT Exhibits and Investigation Report

142-145 Case Arguments – All Parties -

Filing of RFIs from Parties; Requests for Product

146-148 -
exclusions; Cases of Parties Supporting Injury Finding

152 Replies to Case Arguments Objections to RFIs

155-157 - CITT decisions on RFIs

Responses to Requests for Product Exclusions; Cases

160-163 --
of Parties Opposing Injury Inquiry; Replies to RFIs

Replies to Responses for Requests to Product

165-166 - Exclusions; Reply Submissions of Parties Supporting
Injury Finding

Final Determination of Dumping/

180 -
Subsidization

180-190 - Public Hearing

Statement of Reasons for Final

195 Determination of Dumping/ -
Subsidization

210 - Issuance of Injury Finding

225 - Reasons for Injury Finding

Section 55 Review of Provisional

230-290 Duties and Refunds of Provisional -
Duties

1
May be extended by 45 days to day 135 at discretion of CBSA. This will re-set the CITT schedule by the same 45 day extension.

Canadian Anti-Dumping and Countervailing Duty Measures 33

33
bennettjones.com
Canadian Anti-Dumping and Countervailing Duty Measures, July 2018

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Although the information contained in this report has been obtained from sources which Bennett Jones LLP
believes to be reliable, we do not guarantee its accuracy. A significant portion of the information in this report has
been compiled from press releases and other publicly available disclosure documents of oil sands producers and
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paraphrased or condensed.

Canadian Anti-Dumping and Countervailing Duty Measures 35

35
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