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CUSTOMS AND EXCISE - Customs - Dumping and subsidies - Determination of material injury

Thursday, September 07, 2017 @ 8:43 AM  


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Application by Essar Steel Algoma Inc. (Essar Algoma) for judicial review of the Canadian International Trade Tribunal’s finding that hot-rolled carbon steel plate and high-strength low-alloy steel plate imports dumped from the Russian Federation and dumped and subsidized from the Republic of India had not caused injury and were not threatening to cause injury to the domestic steel industry. Essar Algoma argued the Tribunal’s analysis regarding the domestic industry and regarding injury and threat of injury was not reasonable. Essar Algoma submitted that the Tribunal erred in law when it assessed injury or threat of injury only in view of the domestic industry as a whole without further inquiring as to whether a major proportion of the domestic industry faced injury or threat of injury. Essar Algoma argued that following its analysis on the domestic industry as a whole, the Tribunal should have then moved to consider whether a major proportion of the domestic industry was injured or threatened in the circumstances.

HELD: Application dismissed. Essar Algoma had not demonstrated that the Tribunal’s interpretation of the “domestic industry” as defined at s. 2(1) of the Special Import Measures Act (Act) was unreasonable. The term “or” could be read conjunctively or disjunctively depending on the context. Given that Parliament provided a two-part definition for domestic industry, being “as a whole” or “major proportion”, at s. 2(1) of the Act, it could not be concluded that Parliament would direct the Tribunal to consider injury to the domestic industry as a whole if, to fulfill the Act’s purpose, the Tribunal was required to act even when only a major proportion suffered injury. The wording of s. 2(1) left it open, depending on the circumstances, to consider domestic producers as a whole or a major proportion thereof for purposes of making a determination regarding the domestic industry. The interpretation adopted by the Tribunal in the present case, on the basis of the record before it, was therefore reasonable. Its interpretation was consistent with the Tribunal’s determinations in seven previous cases dealing with hot-rolled steel plate and in light of Canada’s international commitments.

Essar Steel Algoma Inc. v. Jindal Steel and Power Ltd., [2017] F.C.J. No. 794, Federal Court of Appeal, R. Boivin, Y. de Montigny and J.M. Woods JJ.A., August 9, 2017. Digest No. TLD-Sept42017007