Special Import Measures Regulations (SOR/84-927)

37.11 The following factors may be considered in determining whether injury has been caused by a massive importation of dumped or subsidized goods or, if the importations have occurred within a relatively short period of time and in the aggregate are massive, by a series of importations of dumped or subsidized goods:

• (a) whether there has been an increase of at least 15% in the volume of imports of those goods from an individual country of export and in respect of which an investigation under the Act has not been terminated, during a representative period within the period beginning 90 days before the date of initiation of the investigation and ending on the date of the President’s preliminary determination under subsection 38(1) of the Act, relative to a preceding representative period of comparable duration within the period of investigation;

• (b) whether the importer, producer or exporter of the dumped goods has a history of importing into Canada, or exporting into Canada, dumped goods in respect of which the Tribunal has made an order or finding that the dumping of the goods has caused injury or retardation or a threat of injury;

• (c) whether the authorities of a country other than Canada have determined that injury to the domestic industry of that country was caused by the dumping of goods of the same description, or of similar goods, by an exporter of the goods that are under investigation;

• (d) whether there has been a significant increase in the volume of domestic inventories of the dumped or subsidized goods within a relatively short period of time; and

• (e) any other factor that is relevant in the circumstances.

Expiry Review Factors

• 37.2 (1) In making a determination under paragraph 76.03(7)(a) of the Act, the President may consider

  • (a) whether there has been dumping of goods while a finding or order in respect of the goods is in effect and, if applicable,

    • (i) the period during which the dumping occurred,

    • (ii) the volume and prices of the dumped and non-dumped goods,

    • (iii) the margin of dumping, and

    • (iv) for non-dumped goods, the amount by which the export prices exceed the normal values of the goods;

  • (b) whether there has been subsidizing of goods while a finding or order in respect of the goods is in effect and, if applicable,

    • (i) the nature and duration of the foreign subsidy program in respect of the goods,

    • (ii) the period during which the subsidizing occurred,

    • (iii) the volume of the subsidized goods, and

    • (iv) the amount of subsidy;

  • (b.1) whether there has been a decision setting out a finding of circumvention in respect of the order or finding that is subject to the expiry review or in respect of similar goods to the goods to which that order or finding applies;

  • (c) the performance of the exporters, foreign producers, brokers and traders including, where applicable, in respect of production, capacity utilization, costs, sales volumes, prices, inventories, market share, exports and profits;

  • (d) the likely future performance of the exporters, foreign producers, brokers and traders on the basis of factors, where applicable, such as production, capacity utilization, sales volumes, prices, inventories, market share, exports and profits;

  • (e) the potential for the foreign producers to produce the goods in facilities that are currently used to produce other goods;

  • (f) evidence of the imposition of anti-dumping or countervailing measures by the authorities of a country other than Canada in respect of goods of the same description or in respect of similar goods;

  • (g) whether measures taken by the authorities of a country other than Canada are likely to cause a diversion of dumped or subsidized goods into Canada;

  • (h) any changes in market conditions domestically or internationally, including changes in the supply of and demand for the goods, in sources of imports into Canada, in prices, in employment levels, in the terms or conditions of employment, in market share and in inventories;

  • (i) the imposition of anti-dumping or countervailing measures by authorities of Canada in respect of similar goods while an order or finding in respect of the goods was in effect; and

  • (j) any other factor pertaining to the current or likely behaviour or state of a foreign government or of the domestic or international economy, market for goods or industry as a whole or in relation to workers or individual producers, exporters, brokers or traders.

• (2) In making a determination under subsection 76.03(10) of the Act, the Tribunal may consider

  • (a) the likely volume of the dumped or subsidized goods if the order or finding is allowed to expire, and, in particular, whether there is likely to be a significant increase in the volume of imports of the dumped or subsidized goods, either in absolute terms or relative to the production or consumption of like goods;

  • (b) the likely prices of the dumped or subsidized goods if the order or finding is allowed to expire and their effect on the prices of like goods, and, in particular, whether the dumping or subsidizing of goods is likely to significantly undercut the prices of like goods, depress those prices, or suppress them by preventing increases in those prices that would likely have otherwise occurred;

  • (c) the likely performance of the domestic industry, taking into account that industry’s recent performance, including trends in production, capacity utilization, employment levels, prices, sales, inventories, market share, exports and profits;

  • (d) the likely performance of the foreign industry, taking into account that industry’s recent performance, including trends in production, capacity utilization, employment levels, prices, sales, inventories, market share, exports and profits;

  • (e) the likely impact of the dumped or subsidized goods on domestic industry if the order or finding is allowed to expire, having regard to all relevant economic factors and indices, including

    • (i) any potential decline in output, sales, market share, profits, productivity, return on investments or utilization of production capacity,

    • (ii) any potential negative effects on cash flow, inventories, growth or the ability to raise capital, and

    • (iii) any potential negative effects on employment levels or the terms and conditions of employment of the persons employed in the domestic industry, including their wages, hours worked, pension plans, benefits or worker training and safety;

  • (f) the potential for the foreign producers to produce the goods in facilities that are currently used to produce other goods;

  • (g) the potential negative effects of the dumped or subsidized goods on existing development and production efforts, including effects on hiring and on efforts to produce a derivative or more advanced version of like goods;

  • (h) evidence of the imposition of anti-dumping or countervailing measures by the authorities in a country other than Canada in respect of goods of the same description or in respect of similar goods;

  • (i) whether measures taken by the authorities in a country other than Canada are likely to cause a diversion of the dumped or subsidized goods into Canada;

  • (j) any changes in market conditions domestically or internationally, including changes in the supply of and demand for the goods, as well as any changes in trends and in sources of imports into Canada; and

  • (k) any other factor pertaining to the current or likely behaviour or state of the domestic or international economy, market for goods or industry as a whole or in relation to workers or individual producers, exporters, brokers or traders.

Joinder of Investigations and Proceedings

38 Subject to section 39, if the same goods, like goods or similar goods are

• (a) subject to more than one properly documented complaint in relation to the dumping or subsidizing of goods, the President may join the complaints for the purpose of initiating a single investigation;

• (b) subject to more than one preliminary inquiry, the Tribunal may join the preliminary inquiries and carry them out as a single preliminary inquiry;

• (c) subject to more than one dumping investigation or subsidy investigation, or one or more dumping investigations and one or more subsidy investigations, the President may join the investigations and carry them out as a single investigation;

• (d) subject to more than one application for a scope ruling, the President may join the applications for the purpose of initiating a single scope proceeding;

• (e) subject to more than one scope proceeding, the President may join the proceedings and carry them out as a single scope proceeding;

• (f) subject to more than one complaint respecting circumvention, the President may join the complaints for the purpose of initiating a single anti-circumvention investigation;

• (g) subject to more than one anti-circumvention investigation, the President may join the investigations and carry them out as a single anti-circumvention investigation;

• (h) subject to one or more applications for a scope ruling and one or more complaints respecting circumvention, the President may join the applications and complaints for the purpose of initiating a single anti-circumvention investigation, which includes consideration of the issue of scope; and

• (i) subject to one or more scope proceedings and one or more anti-circumvention investigations, the President may join the scope proceedings and the investigations and carry them out as a single anti-circumvention investigation, which includes consideration of the issue of scope.

• 39 (1) An investigation referred to in paragraph 38(c) is not to be joined with another investigation under that paragraph if a preliminary determination of dumping or subsidizing has been made in respect of at least one of those investigations.

• (2) An investigation referred to in paragraph 38(g) or (i) is not to be joined with another investigation or proceeding under that paragraph if a statement of essential facts has been published in respect of at least one of those investigations.

• 40 (1) If complaints are joined under paragraph 38(a), the President shall cause written notice of the joinder to be provided to the complainants and government of each country of export involved in the complaints.

• (2) If preliminary inquiries are joined under paragraph 38(b), the Tribunal shall cause written notice of the joinder to be provided to the President and the complainants, importers, exporters and government of each country of export involved in the inquiries.

• (3) If investigations are joined under paragraph 38(c), the President shall cause written notice of the joinder to be provided to the Tribunal and the complainants, importers, exporters and government of each country of export involved in the investigations.

• (4) If applications or complaints are joined under paragraph 38(d), (f) or (h), the President shall cause written notice of the joinder to be provided to the complainants and applicants involved in them.

• (5) If proceedings or investigations are joined under paragraph 38(e), (g) or (i), the President shall cause written notice of the joinder to be provided to the complainants, applicants, importers, exporters, government of each country of export and domestic producers involved in them.

Public Interest Inquiry

• 40.1 (1) A request referred to in subsection 45(1) of the Act shall be made in writing to the Tribunal within 45 days after the issuance of an order or finding by the Tribunal under section 43 of the Act.

• (2) A request referred to in subsection 45(1) of the Act shall

  • (a) include the name, address for service, telephone number and, if any, the facsimile number and electronic mail address of the requester and of the requester’s counsel, if any, and be signed by the requester or by the requester’s counsel, if any;

  • (b) include a statement of the public interest affected by the imposition of an anti-dumping or countervailing duty indicating the degree to which it is affected;

  • (c) include sufficient information as to whether the imposition of an anti-dumping or countervailing duty would not or might not be in the public interest;

  • (d) address all relevant factors, including, where applicable,

    • (i) the availability of goods of the same description from countries or exporters to which the order or finding does not apply,

    • (ii) the effect that the imposition of an anti-dumping or countervailing duty has had or is likely to have on competition in the domestic market,

    • (iii) the effect that the imposition of an anti-dumping or countervailing 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,

    • (iv) the effect that the imposition of an anti-dumping or countervailing duty has had or is likely to have on competition by limiting access to goods that are used as inputs in the production of other goods and in the provision of services, or by limiting access to technology,

    • (v) the effect that the imposition of an anti-dumping or countervailing duty has had or is likely to have on the choice or availability of goods at competitive prices for consumers, and

    • (vi) the effect that the non-imposition of an anti-dumping or countervailing duty, or the non-imposition of such a duty in the full amount provided for in sections 3 to 6 of the Act is likely to have on domestic producers of inputs, including primary commodities, used in the production of like goods; and

  • (e) include any other information that is relevant in the circumstances.

• (3) For the purposes of subsection 45(3) of the Act, the following factors are prescribed:

  • (a) whether goods of the same description are readily available from countries or exporters to which the order or finding does not apply;

  • (b) whether imposition of an anti-dumping or countervailing duty in the full amount

    • (i) has eliminated or substantially lessened or is likely to eliminate or substantially lessen competition in the domestic market in respect of goods,

    • (ii) has caused or is likely to cause significant damage to producers in Canada that use the goods as inputs in the production of other goods and in the provision of services,

    • (iii) has significantly impaired or is likely to significantly impair competitiveness by

      • (A) limiting access to goods that are used as inputs in the production of other goods and in the provision of services, or

      • (B) limiting access to technology, or

    • (iv) has significantly restricted or is likely to significantly restrict the choice or availability of goods at competitive prices for consumers or has otherwise caused or is otherwise likely to cause them significant harm; and

  • (c) whether non-imposition of an anti-dumping or countervailing duty or the non-imposition of such a duty in the full amount provided for in sections 3 to 6 of the Act is likely to cause significant damage to domestic producers of inputs, including primary commodities, used in the domestic manufacture or production of like goods.

  • (d) [Repealed, SOR/2015-27, s. 5]

• (4) A request by a person referred to in subsection 45(6) of the Act to make representations to the Tribunal on the question referred to in that subsection shall be made in writing and filed with the Tribunal within 21 days after the date of publication of the notice referred to in subsection 45(2) of the Act.

• (5) A request made by a person under subsection (4) shall outline the person’s interest in the inquiry and shall give the name, address for service, telephone number, and, if any, the facsimile number and electronic-mail address of the person and of the person’s counsel, if any.

Person Interested

41 For the purpose of subsection 45(6) of the Act, person interested means

• (a) a person who is engaged in the production, sale or export of any goods that are the subject of an investigation;

• (b) a person who is engaged in the purchase or import of any goods that are the subject of an investigation, or a trade union that represents persons employed in such purchase or import or an association that includes such trade unions;

• (c) a person who is engaged in the production, purchase or sale of any goods produced in Canada that are like goods in relation to any goods that are the subject of an investigation, or a trade union that represents persons employed in such production, purchase or sale or an association that includes such trade unions;

• (d) a person who is engaged in the production or sale of any goods produced in Canada that are used in the production of like goods in relation to any goods that are the subject of an investigation, or a trade union that represents persons employed in such production or sale or an association that includes such trade unions;

• (e) a person who is acting on behalf of a person referred to in any of paragraphs (a) to (d) or a trade union or association referred to in any of paragraphs (b) to (d);

• (f) a person who is required or authorized by any Act of Parliament or of the legislature of a province to make representations to the Tribunal on the question referred to in subsection 45(6) of the Act;

• (g) a person who is a user of any goods that are like goods in relation to any goods that are the subject of an investigation, or a trade union that represents persons employed by such a user or an association that includes such trade unions; or

• (h) an association whose purpose includes to advocate for consumer interests in Canada.