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

Marginal note:Publication in Canada Gazette

77.036 The rules, the code of conduct established pursuant to Article 10.17 of the Canada–United States–Mexico Agreement and any amendments made to the rules or code shall be published in the Canada Gazette.

Application of Acts

Marginal note:Application

77.037 If one of the following provisions comes into force after the coming into force of this section, then that provision shall not be applied in respect of goods of a CUSMA country unless an Act of Parliament expressly declares that the provision applies in respect of goods of that CUSMA country:

• (a) a provision of an Act to amend this Act;

• (b) a provision of any other Act of Parliament respecting the imposition of anti-dumping or countervailing duties; or

• (c) a provision that amends a provision of an Act of Parliament providing for judicial review of a definitive decision or setting forth the grounds for such a review.

Marginal note:Suspension of Part II

77.038 The operation of Part II is suspended during the period in which this Part is in force.

PART IIDispute Settlement Respecting Goods of the United States

Interpretation

Marginal note:Definitions

• 77.1 (1) In this Part,

  American Secretary

  American Secretary means the secretary of the United States section of the Secretariat provided for by Article 1909 of the Free Trade Agreement; (secrétaire américain)

  appropriate authority

  appropriate authority, in relation to a definitive decision, means either the President or the Tribunal, according to which made the decision; (autorité compétente)

  committee

  committee means an extraordinary challenge committee appointed pursuant to section 77.18; (comité)

  definitive decision

  definitive decision means

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

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

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

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

  • (e) a re-determination of the President under subsection 59(1),

  • (f) a re-determination of the President under subsection 59(3),

  • (f.1) a re-determination of the President under subsection 59(1.1),

  • (g) an order of the Tribunal under subsection 76.01(4),

  • (h) an order of the Tribunal under subsection 76.01(5) or 76.03(12),

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

  • (i.1) an order or finding of the Tribunal under paragraph 76.1(2)(b) or (c), or

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

  that applies to or in respect of particular goods of the United States, but does not include any such determination, re-determination, decision, order or finding that is made for the purpose of giving effect to a decision of the Federal Court of Appeal or the Supreme Court of Canada relating to those goods; (décisions finales)

  Minister

  Minister means the Minister for International Trade; (ministre)

  panel

  panel means a panel appointed pursuant to section 77.13; (groupe spécial)

  rules

  rules means the rules of procedure, as amended from time to time, made pursuant to Chapter Nineteen of the Free Trade Agreement; (règles)

  Secretariat

  Secretariat means the Canadian Secretariat established by section 77.23. (Secrétariat)

• Marginal note:Inconsistency

  (2) In the event of any inconsistency between the provisions of this Part and the provisions of the Federal Courts Act, the provisions of this Part prevail to the extent of the inconsistency.

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.