Special Import Measures Act (R.S.C., 1985, c. S-15)

Request for Review

Marginal note:Request for review of definitive decision

• 77.11 (1) The Minister or the United States government may request, in accordance with paragraph 4 of Article 1904 of the Free Trade Agreement, that a definitive decision be reviewed by a panel.

• Marginal note:Idem

  (2) On a request made to the Canadian Secretary by any person who, but for section 77.12, would be entitled to apply under section 28 of the Federal Courts Act or section 96.1 of this Act or to appeal under section 61 of this Act in respect of a definitive decision, the Minister shall request, in accordance with paragraph 4 of Article 1904 of the Free Trade Agreement, that the definitive decision be reviewed by a panel.

• Marginal note:Limitation period

  (3) No request shall be made to the Canadian Secretary under subsection (2) more than twenty-five days after the day on which notice of the definitive decision is published in the Canada Gazette or, in the case of a re-determination of the President under subsection 59(1) or (3), the day on which notice of the re-determination is received by the United States government.

• Marginal note:Grounds for request

  (4) A request by the Minister for the review of a definitive decision may be made only on a ground set forth in subsection 28(1) of the Federal Courts Act.

• Marginal note:Notification of request for review

  (5) On receiving a request under this section made by the Minister, the Canadian Secretary shall notify the American Secretary of the request and the day on which it was received by the Canadian Secretary, and on receiving a request under this section made by the United States government, the Canadian Secretary shall notify the Minister of the request and the day on which it was received by the Canadian Secretary.

• Marginal note:No application or appeal

  (6) Where a request is made by the Minister or the United States government for the review of a definitive decision by a panel, no person or government may apply under section 18 or 28 of the Federal Courts Act or section 96.1 of this Act or appeal under section 61 of this Act in respect of the decision.

Marginal note:Applications and appeals

• 77.12 (1) No person or government may apply under section 18 or 28 of the Federal Courts Act or section 96.1 of this Act or appeal under section 61 of this Act in respect of a definitive decision

  • (a) before the expiry of the period of thirty days after

    • (i) the day on which the definitive decision is published in the Canada Gazette, or

    • (ii) in the case of a re-determination of the President under subsection 59(1), (1.1) or (3), the day on which notice of the re-determination is received by the United States; and

  • (b) unless the person or government has, within twenty days after the day on which that period commences, given notice of the intention to make such an application or appeal in writing to the Canadian Secretary and the American Secretary and in the prescribed manner to any other person who, but for this section, would be entitled to so apply or appeal.

• Marginal note:Limitation period extended

  (2) For the purpose of permitting a government or person to apply under section 28 of the Federal Courts Act or section 96.1 of this Act in respect of a definitive decision after the expiration of the limitation period established by paragraph 4 of Article 1904 of the Free Trade Agreement for requesting a review of the decision, the ten day limitation period referred to in subsection 28(2) of the Federal Courts Act and subsection 96.1(3) of this Act is extended by thirty days and shall be calculated as commencing on the day on which the limitation period established by that paragraph commences.

Establishment of Panels

Marginal note:Appointment of panel

• 77.13 (1) On a request under section 77.11 for the review of a definitive decision by a panel, a panel shall be appointed for that purpose in accordance with paragraphs 1 to 4 of Annex 1901.2 to Chapter Nineteen of the Free Trade Agreement and any regulations made in connection therewith.

• Marginal note:Single panel

  (2) If a request is made for the review of a final determination of the President under paragraph 41(1)(b) that applies to or in respect of particular goods of the United States and another request is made for the review of an order or finding of the Tribunal under subsection 43(1) that applies to or in respect of those goods, one panel may, with the consent of the Minister and the United States government, be appointed to review the final determination and the order or finding.

Marginal note:Administrative record forwarded

77.14 On the appointment of the members of a panel to review a definitive decision, the appropriate authority shall cause a copy of the administrative record to be forwarded in accordance with the rules.

Review by Panel

Marginal note:Conduct of review

• 77.15 (1) A panel shall conduct a review of a definitive decision in accordance with Chapter Nineteen of the Free Trade Agreement and the rules.

• Marginal note:Powers of panel

  (2) A panel has such powers, rights and privileges as are conferred on it by the regulations.

• Marginal note:Disposition after review

  (3) On completion of the review of a definitive decision, a panel shall determine whether the grounds on which the review was requested have been established and shall make an order confirming the decision or referring the matter back to the appropriate authority for reconsideration within the period specified by the panel.

• Marginal note:Review of action of appropriate authority

  (4) A panel may, on its own initiative or on a request made in accordance with the rules, review the action taken by the appropriate authority pursuant to an order under subsection (3) and make a further order as described in that subsection within ninety days after the day on which the Canadian Secretary receives notice of the action.

• Marginal note:Decision

  (5) A decision of a panel shall be recorded in writing and shall include the reasons for the decision and any dissenting or concurring opinions of members of the panel, and the Canadian Secretary shall forward, by registered mail, a copy thereof and of the order made pursuant to subsection (3) or (4) to the Minister, the United States government, the appropriate authority and any other person who was heard in the review and shall cause notice of the decision to be published in the Canada Gazette.

Action on Decision of Panel

Marginal note:Action by appropriate authority

• 77.16 (1) Where a panel makes an order under subsection 77.15(3) or (4) referring a matter back to the appropriate authority for reconsideration, the appropriate authority shall, within the period specified by the panel, take action under this Act not inconsistent with the decision of the panel.

• Marginal note:Appropriate authority not required to act twice

  (2) Notwithstanding any other provision of this Act, an appropriate authority is not required to act on an order under subsection 77.15(4), unless it requires the authority to take action that is different from that taken by the authority under the order under subsection 77.15(3).

Extraordinary Challenge Proceeding

Marginal note:Request for extraordinary challenge proceeding

• 77.17 (1) Within the period after a panel makes an order under subsection 77.15(3) or (4) prescribed by the rules, the Minister or the United States government may request, in writing to the Canadian Secretary, that an extraordinary challenge proceeding be commenced with respect to the order.

• Marginal note:Ground for request

  (2) A request for an extraordinary challenge proceeding may be made only on a ground set forth in paragraph 13 of Article 1904 of the Free Trade Agreement.

• Marginal note:Notification of request for extraordinary challenge proceeding

  (3) On receiving a request under this section made by the Minister, the Canadian Secretary shall notify the American Secretary of the request and the day on which it was received by the Canadian Secretary, and on receiving a request under this section made by the United States government, the Canadian Secretary shall notify the Minister of the request and the day on which it was received by the Canadian Secretary.

Marginal note:Appointment of extraordinary challenge committee

77.18 On a request under section 77.17 for an extraordinary challenge proceeding, an extraordinary challenge committee shall be appointed for that purpose in accordance with paragraph 1 of Annex 1904.13 to Chapter Nineteen of the Free Trade Agreement and any regulations made in connection therewith.

Marginal note:Conduct of extraordinary challenge proceeding

• 77.19 (1) A committee shall conduct an extraordinary challenge proceeding and make a decision in accordance with Annex 1904.13 to Chapter Nineteen of the Free Trade Agreement and the rules.

• Marginal note:Powers of committee

  (2) A committee has such powers, rights and privileges as are conferred on it by the regulations.

• Marginal note:New panel

  (3) Where an order of a panel is set aside by a committee, a new panel shall, in accordance with this Part, be appointed and conduct a review of the definitive decision that was the subject of that order.

• Marginal note:Action by panel

  (4) Where an order of a panel is referred back to the panel by a committee, the panel shall take action not inconsistent with the decision of the committee.

• Marginal note:Decision

  (5) A decision of a committee shall be recorded in writing and shall include the reasons for the decision and any dissenting or concurring opinions of members of the committee, and the Canadian Secretary shall forward, by registered mail, a copy thereof and of the order made by the committee to the Minister, the United States government, the appropriate authority and any other person who was heard in the proceeding and shall cause notice of the decision to be published in the Canada Gazette.

Marginal note:Orders and decisions final

• 77.2 (1) Subject to subsection 77.15(4) and section 77.17, an order or decision of a panel or committee is final and binding and is not subject to appeal.

• Marginal note:No review

  (2) Subject to subsection 77.15(4) and section 77.17, no order, decision or proceeding of a panel or committee made or carried on under, or purporting to be made or carried on under, this Act shall be

  • (a) questioned, reviewed, set aside, removed, prohibited or restrained, or

  • (b) made the subject of any proceedings in, or any process or order of, any court, whether by way of or in the nature of injunction, certiorari, prohibition, quo warranto, declaration or otherwise,

  on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the panel or committee to make or carry on or that, in the course of any proceeding, the panel or committee for any reason exceeded or lost jurisdiction.

• Marginal note:No references

  (3) Subsection 28(4) of the Federal Courts Act does not apply to a panel or committee.

Members

Marginal note:Code of conduct

• 77.21 (1) Every member of a panel and every member of a committee shall comply with the code of conduct, as amended from time to time, established pursuant to Article 1910 of the Free Trade Agreement.

• Marginal note:Disclosure undertaking respecting confidential information

  (2) Every member of a panel and every prescribed person shall sign and comply with a disclosure undertaking, in the prescribed form, respecting the disclosure and use of confidential, personal, business proprietary and other privileged information made available to the member or person in proceedings under this Part.

• Marginal note:Immunity

  (3) Subject to section 77.26, no action or other proceeding lies or shall be commenced against a member of a panel for or in respect of anything done or omitted to be done, or purported to be done or omitted to be done, under this Part.

Marginal note:Remuneration and expenses of panel members

77.22 Every member of a panel shall be paid such remuneration and is entitled to such travel and living expenses incurred in the performance of the member’s duties under this Part as are fixed by the Canada-United States Trade Commission established pursuant to the Free Trade Agreement.

Secretariat

Marginal note:Establishment of Canadian Secretariat

77.23 There is hereby established a secretariat, to be called the Canadian Secretariat, for the purpose of facilitating the implementation of Chapter Nineteen of the Free Trade Agreement and the work of panels and committees.

Marginal note:Secretary

• 77.24 (1) There shall be a Secretary of the Secretariat to be appointed by the Governor in Council, on the recommendation of the Minister, to hold office for a term not exceeding five years.

• Marginal note:Salary and expenses

  (2) The Canadian Secretary shall be paid such salary or other remuneration and expenses as may be fixed by the Governor in Council.

• Marginal note:Absence or incapacity of Secretary

  (3) In the event of the absence or incapacity of the Canadian Secretary or if the office of Canadian Secretary is vacant, the Governor in Council may appoint another person, on such terms and conditions as the Governor in Council deems appropriate, to act as Canadian Secretary and a person so acting shall have all the powers, duties and functions of the Canadian Secretary under this Part and be paid such salary or other remuneration and expenses as may be fixed by the Governor in Council.

• Marginal note:Superannuation

  (4) The provisions of the Public Service Superannuation Act, other than those related to tenure of office, apply to the Canadian Secretary, except that a person appointed as Canadian Secretary from outside the public service may, by notice in writing given to the President of the Treasury Board not more than sixty days after the date of appointment, elect to participate in the Diplomatic Service (Special) Superannuation Act, in which case the provisions of that Act, other than those relating to tenure of office, apply to the Canadian Secretary from the date of appointment and the provisions of the Public Service Superannuation Act do not apply.

• Marginal note:Chief executive officer

  (5) The Canadian Secretary is the chief executive officer of the Secretariat and has supervision over and direction of the work and staff of the Secretariat.