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

Application for Review

Marginal note:Application for judicial review

• 96.1 (1) Subject to section 77.012 or 77.12, an application may be made to the Federal Court of Appeal to review and set aside

  • (a) a decision of the President under paragraph 41(1)(a);

  • (b) a final determination of the President under paragraph 41(1)(b);

  • (c) a decision of the President under subsection 53(1) to renew or not to renew an undertaking;

  • (c.1) an order or finding of the Tribunal under subsection 43(1);

  • (c.2) a decision of the President under subsection 75.1(1);

  • (c.3) a decision of the President under subsection 75.4(6);

  • (c.4) a determination of the President under subsection 75.6(5);

  • (d) an order of the Tribunal under subsection 76.01(4);

  • (d.1) a determination of the President under paragraph 76.03(7)(a);

  • (e) an order or finding of the Tribunal under subsection 76.02(4) respecting a review under subsection 76.02(1);

  • (f) an order of the Tribunal under subsection 76.01(5) or 76.03(12); or

  • (g) an order or finding of the Tribunal under subsection 91(3).

• Marginal note:Grounds of application

  (2) An application may be made under this section on the ground that the President or the Tribunal, as the case may be,

  • (a) acted without jurisdiction, acted beyond the jurisdiction of the President or the Tribunal or refused to exercise that jurisdiction;

  • (b) failed to observe a principle of natural justice, procedural fairness or other procedure that the President or the Tribunal was required by law to observe;

  • (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

  • (d) based a decision or order on an erroneous finding of fact that the President or the Tribunal made in a perverse or capricious manner or without regard for the material before the President or the Tribunal;

  • (e) acted, or failed to act, by reason of fraud or perjured evidence; or

  • (f) acted in any other way that was contrary to law.

• Marginal note:Filing of application

  (3) Subject to subsection 77.012(2), an application may be made under this section by any person directly affected by the determination, decision, order or finding by filing a notice of the application in the Federal Court of Appeal within thirty days after the time the determination, decision, order or finding was first communicated to that person by the President or the Tribunal, or within such further time as the Federal Court of Appeal or a judge thereof may, before or after the expiration of those thirty days, fix or allow.

• Marginal note:Trial Division deprived of jurisdiction

  (4) Where the Federal Court of Appeal has jurisdiction under this section to hear and determine an application to review and set aside a determination, decision, order or finding, the Trial Division has no jurisdiction to entertain any proceeding in respect of that determination, decision, order or finding.

• Marginal note:Hearing in summary way

  (5) An application under this section shall be heard and determined without delay and in a summary way in accordance with the rules made in respect of applications for judicial review pursuant to sections 18.1 and 28 of the Federal Courts Act.

• Marginal note:Disposition

  (6) On an application under this section, the Federal Court of Appeal may dismiss the application, set aside the final determination, decision, order or finding, or set aside the final determination, decision, order or finding and refer the matter back to the President or the Tribunal, as the case may be, for determination in accordance with such directions as it considers appropriate.

Marginal note:No references

• 96.11 (1) Subsection 18.3(1) of the Federal Courts Act does not apply to the President or the Tribunal in respect of proceedings under this Act relating to goods of a CUSMA country.

• Marginal note:Suspension of s. 96.2

  (2) The operation of section 96.2 is suspended during the period in which subsection (1) is in force.

Marginal note:No references

96.2 Subsection 18.3(1) of the Federal Courts Act does not apply to the President or the Tribunal in respect of proceedings under this Act relating to goods of the United States.

Marginal note:Request for review of final determination

• 96.21 (1) The Minister for International Trade may, in the manner provided for by the law of a CUSMA country giving effect to the Canada–United States–Mexico Agreement, request that a final determination be reviewed by a panel established under that law.

• Marginal note:Idem

  (2) Any person who, but for the law of a CUSMA country giving effect to the Canada–United States–Mexico Agreement, would be entitled under the law of that CUSMA country to commence domestic proceedings for judicial review of a final determination may file with the Canadian Secretary a request that the final determination be reviewed by a panel established under that law.

• Marginal note:Deeming

  (3) A request under subsection (2) shall be deemed to be a request by the Minister for binational review within the meaning of paragraph 4 of Article 10.12 of the Canada–United States–Mexico Agreement.

• Marginal note:Limitation period

  (4) A request under subsection (1) or (2) may only be made within 30 days after the day on which notice of the final determination is published in the official publication of the CUSMA country, or, in the case of a final determination of which notice is not so published, within 30 days after the day on which notice of the final determination is received by the Minister.

• Marginal note:Definition of final determination

  (5) In this section, final determination means a final determination as defined in Article 10.8 of the Canada–United States–Mexico Agreement.

• Marginal note:Suspension of s. 96.3

  (6) The operation of section 96.3 is suspended during the period in which this section is in force.

Marginal note:Request for review of final determination

• 96.3 (1) The Minister for International Trade may, in the manner provided for by the American law giving effect to the Free Trade Agreement, request that a final determination be reviewed by a panel established under that law.

• Marginal note:Idem

  (2) On a request made to the Canadian Secretary by any person who, but for the American law giving effect to the Free Trade Agreement, would be entitled under American law to commence domestic proceedings for judicial review of a final determination, the Minister for International Trade shall, in the manner provided for by the American law giving effect to the Free Trade Agreement, request that the final determination be reviewed by a panel established under that law.

• 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 final determination is published in the Federal Register or, in the case of a final determination of which notice is not so published, the day on which notice of the final determination is received by the Minister.

• Definition of final determination

  (4) In this section, final determination means a final determination as defined in subparagraph (b) of the definition of that term in Article 1911 of the Free Trade Agreement.

Offences

Marginal note:Offence

• 96.4 (1) Every person commits an offence who

  • (a) uses information disclosed to the person by the President under subsection 84(3) for any purpose other than the purpose for which the information was disclosed under that subsection; or

  • (b) contravenes a condition imposed by the President under subsection 84(3).

• Marginal note:Punishment

  (2) Every person who commits an offence under subsection (1) is guilty of

  • (a) an indictable offence and liable to a fine of not more than $1,000,000; or

  • (b) an offence punishable on summary conviction and liable to a fine of not more than $100,000.

• Marginal note:Consent

  (3) No proceedings for an offence under this section shall be instituted without the consent in writing of the Attorney General of Canada.

Regulations

Marginal note:Regulations

• 97 (1) The Governor in Council may, on the recommendation of the Minister of Finance, make regulations

  • (a) prescribing anything that by this Act is to be or may be prescribed by regulation;

  • (a.1) respecting the factors that may be considered in determining

    • (i) the existence of injury, retardation or threat of injury,

    • (ii) whether the injury, retardation or threat of injury has been caused by the dumping or subsidizing of any goods or by any other reason,

    • (iii) whether there has been a change in the pattern of trade,

    • (iv) whether the process of assembly or completion is insignificant,

    • (v) whether a change in a pattern of trade is caused by the imposition of an anti-dumping or countervailing duty, and

    • (vi) whether a prescribed activity is undermining the remedial effects of an order of the Governor in Council or an order or finding;

  • (a.2) respecting activities for the purposes of paragraph 71(b);

  • (b) specifying the circumstances and manner in which two or more properly documented complaints, investigations or inquiries, including anti-circumvention complaints and investigations and scope ruling applications and scope proceedings, may be joined and carried on as one and the persons to whom and the manner in which notice of the joining shall be given;

  • (c) prescribing, for the purpose of subsection 74(2), what constitutes a sufficient amount of time for interested parties to provide written comments;

  • (d) defining the expression duty or internal tax for the purpose of the definition subsidy in subsection 2(1);

  • (e) defining the expressions cost of production, a reasonable amount for administrative, selling and all other costs and a reasonable amount for profits for the purpose of paragraph 19(b) or subparagraph 20(1)(c)(ii);

  • (e.1) prescribing the manner of calculating the cost of production of goods and the administrative, selling and all other costs with respect to goods;

  • (f) defining the expression an amount for profit for the purpose of subparagraph 25(1)(c)(ii) or (d)(i);

  • (f.1) defining the expression start-up period of production for the purposes of section 23.1, including prescribing the factors to consider in determining the duration of such a period;

  • (f.2) prescribing, for the purposes of subsection 30.3(3), the manner for determining a margin of dumping, including prescribing the manner for determining the maximum margin of dumping that can be determined;

  • (g) defining the expression person interested for the purpose of subsection 45(6) or section 89 or 95 and the expression interested person for the purpose of subsections 61(1.1), 63(1) or 67(4);

  • (g.01) prescribing what constitutes a complete application for the purposes of subsection 63(7);

  • (g.1) deeming a government in Canada or the United States to be a person who is entitled to make a request to the Canadian Secretary under subsection 77.11(2);

  • (g.11) deeming a government in Canada or in a CUSMA country to be a person who is entitled to make a request to the Canadian Secretary under subsection 77.011(2);

  • (g.2) defining the expression goods of the United States for the purpose of this Act;

  • (g.21) defining the expression goods of a CUSMA country for the purpose of this Act;

  • (g.22) determining, in respect of each CUSMA country, which publication shall be deemed to be the official publication of that country for the purpose of this Act;

  • (g.23) determining the meaning of the expression goods of Chile for the purposes of this Act;

  • (h) prescribing the procedure to be followed in an investigation ordered by the Governor in Council under subsection 7(1);

  • (i) providing for the selection of an interest rate, from among or by reference to interest rates prevailing in or out of Canada at the time of the sale referred to in subsection 21(1), by reference to which the determination referred to in paragraph 21(1)(a) shall be made in the circumstances described in clause 21(1)(a)(ii)(B);

  • (j) providing for the selection of an interest rate, from among or by reference to interest rates prevailing in or out of Canada at the time of the sale referred to in subsection 27(1), by reference to which the determination referred to in paragraph 27(1)(a) shall be made in the circumstances described in clause 27(1)(a)(ii)(B);

  • (k) providing for the determination of or specifying the date as of which the equivalent dollar value of any amount that is expressed in the currency of a country other than Canada and that is used or taken into account for any purpose in the administration or enforcement of this Act shall be ascertained, determined or calculated;

  • (k.1) providing for the method of determining the rate of exchange for the purpose of calculating the export price for export sales involving the sale of foreign currency on forward markets;

  • (k.2) providing for the manner of making adjustments to export prices and normal values in situations of fluctuation or sustained movement in the rate of exchange;

  • (k.3) prescribing the period after which the President may refuse to consider representations referred to in subsection 49(5);

  • (k.4) prescribing the factors that the President may consider in making a determination under paragraph 76.03(7)(a);

  • (k.5) prescribing the factors that the Tribunal may consider in making a determination under subsection 76.03(10);

  • (k.6) providing for the manner of attributing principal and interest to imported goods when those amounts include a portion related to charges not directly associated with the value of the goods; and

  • (l) generally, for carrying out the purposes and provisions of this Act.

• Marginal note:Regulations prescribing rate of interest

  (2) The Governor in Council may, on the recommendation of the Minister of Finance, make regulations prescribing a rate of interest or rules for determining a rate of interest for the purposes of this Act.