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

Marginal note:Application of sections 86 and 87

88 Sections 86 and 87 do not apply in respect of evidence submitted to the President pursuant to subsection 78(3).

88.1 [Repealed, 2022, c. 10, s. 204]

Ruling on Who is Importer

Marginal note:Request for ruling on who is importer in Canada

• 89 (1) Where a question arises or is raised as to which of two or more persons is, for the purposes of this Act, the importer in Canada of goods imported or to be imported into Canada on which duty is payable or has been paid or will be payable if the goods are imported, the President may, and at the request of any person interested in the importation of the goods shall, request the Tribunal for a ruling on that question, unless, in the case only of goods that have been imported into Canada,

  • (a) a determination has been made under section 55 or 56 with respect to the goods; and

  • (b) more than ninety days have elapsed since the determination referred to in paragraph (a) was made.

• Marginal note:Idem

  (2) Where the President makes a request under subsection (1) for a ruling on the question referred to therein, the President shall

  • (a) state in the request which of the two or more persons the President believes is the importer in Canada of the goods;

  • (b) if any of the goods is of the same description as the goods specified in a preliminary determination made in an investigation that was initiated pursuant to section 31 and is still continuing, so state in the request;

  • (c) provide the Tribunal with such information as the President considers will be useful to it in considering the question and with such other information as the Tribunal may request; and

  • (d) give notice of his request to such persons as the rules of the Tribunal require or as the Tribunal may require.

• Marginal note:Investigation deemed to continue

  (3) Where, in any investigation, the President makes a final determination of dumping or subsidizing under subsection 41(1) in respect of any goods, the investigation shall, for the purpose of paragraph (2)(b), be deemed to continue until such time as the Tribunal makes an order or finding in respect of the goods.

Marginal note:Tribunal’s ruling

90 Where a request is made to the Tribunal under subsection 89(1) for a ruling on the question referred to therein, the Tribunal

• (a) shall arrive at its ruling on the question by determining which of the two or more persons is the importer in Canada of the goods;

• (b) subject to paragraph (c), shall give its ruling on the question forthwith after receiving the request therefor; and

• (c) shall not, if a statement pursuant to paragraph 89(2)(b) is made in the request, give its ruling on the question until after it makes an order or finding in the inquiry commenced as a consequence of its receipt of notice of the preliminary determination referred to in that paragraph, unless, after the request is made to the Tribunal, it receives notice pursuant to subsection 41(4) that the investigation has been terminated pursuant to subsection 41(1) in respect of the goods specified in the preliminary determination, in which case the Tribunal shall give its ruling on the question forthwith after it receives that notice.

Marginal note:Rules

• 91 (1) Where

  • (a) a request is made to the Tribunal pursuant to subsection 89(1) for a ruling on the question referred to therein,

  • (b) a statement pursuant to paragraph 89(2)(b) is made in the request, and

  • (c) the Tribunal’s ruling on the question is that the importer in Canada of the goods is a person other than the person specified as such by the President pursuant to paragraph 89(2)(a),

  the following rules apply:

  • (d) as soon as possible after the Tribunal gives its ruling on the question, the President shall

    • (i) reconsider any final determination of dumping or subsidizing made pursuant to subsection 41(1) with respect to the goods specified in the preliminary determination and shall confirm the final determination, rescind it or make amendments to it, as is appropriate in the circumstances, and

    • (ii) cause notice of the action taken by the President pursuant to subparagraph (i) to be given to prescribed persons and governments, published in the Canada Gazette and filed with the Tribunal in writing;

  • (e) where the President rescinds a final determination pursuant to paragraph (d), section 41 shall again apply in respect of the goods to which the final determination applied as if that section had not previously applied in respect of those goods, except that the action that the President is required by that section to take shall, notwithstanding anything therein, be taken by the President within sixty days after the Tribunal gives its ruling on the question;

  • (f) where the President has caused the investigation referred to in paragraph 89(2)(b) to be terminated pursuant to subsection 41(1) with respect to the goods specified in the preliminary determination, the Tribunal shall be deemed to have directed the President, by notice in writing pursuant to section 46, to cause an investigation to be initiated respecting the dumping or subsidizing of those goods and the President shall, pursuant to subsection 31(2), forthwith cause such an investigation to be commenced; and

  • (g) the Tribunal may, on its own initiative or at the request of the President or any person interested but subject to subsection (2), reconsider, under the authority of this paragraph, any order or finding made by it in the inquiry referred to in paragraph 90(c) and, in so reconsidering, may re-hear any matter before deciding it.

• Marginal note:Limitation on reconsideration of order or finding

  (2) The Tribunal shall not commence reconsideration of an order or finding under the authority of paragraph (1)(g)

  • (a) later than ninety days after the making of the ruling on the question referred to in paragraph (1)(a); or

  • (b) at the request of any person unless that person satisfies the Tribunal that reconsideration of the order or finding is warranted.

• Marginal note:Completion of reconsideration

  (3) Where the Tribunal reconsiders an order or finding under the authority of paragraph (1)(g),

  • (a) the Tribunal shall complete the reconsideration forthwith and, in any event, not later than ninety days after the day on which it decides to commence it and, on completion thereof, shall confirm the order or finding or rescind it and make such other order or finding with respect to the goods to which the order or finding under reconsideration applies as the nature of the matter may require, and, where it makes another order or finding, shall declare to what goods, including, where applicable, from what supplier and from what country of export, the order or finding applies;

  • (b) the Tribunal shall forward by registered mail to the President, the importer, the exporter and such other persons and governments as may be specified by the rules of the Tribunal

    • (i) forthwith after the reconsideration is completed, notice of the action taken pursuant to paragraph (a) with respect to the order or finding and, where another order or finding has been made pursuant to that paragraph, a copy of that other order or finding, and

    • (ii) not later than fifteen days after the completion of the reconsideration, a copy of the reasons for the action taken thereon; and

  • (c) where the Tribunal makes another order or finding pursuant to paragraph (a), it shall cause notice of the order or finding to be published in the Canada Gazette.

• Marginal note:Separate order or finding

  (4) Where a reconsideration under the authority of paragraph (1)(g) involves goods of the United States as well as goods of other countries and the Tribunal makes another order or finding under paragraph (3)(a), the Tribunal shall make a separate order or finding under that paragraph with respect to the goods of the United States.

Marginal note:Determination pursuant to section 55

92 A determination made pursuant to section 55 in respect of any imported goods on the basis that the importer of the goods was a person who is subsequently ruled by the Tribunal not to have been the importer thereof shall be deemed not to have been made and, for the purpose of that section, the date of the order or finding of the Tribunal with respect to goods that appear to be of the same description as the imported goods shall be deemed to be

• (a) where, following its ruling, the Tribunal reconsiders the order or finding pursuant to paragraph 91(1)(g) and confirms it, the date on which the Tribunal confirms the order or finding;

• (b) where, following its ruling, the Tribunal reconsiders the order or finding pursuant to paragraph 91(1)(g) and rescinds it and makes another order or finding with respect to goods of that description, the date of the other order or finding; and

• (c) in any other case, the date of the Tribunal’s ruling.

Marginal note:Determination pursuant to section 56, 57 or 59

93 A determination or re-determination made pursuant to section 56, 57 or 59 in respect of any goods on the basis that the importer of the goods was a person who is subsequently ruled by the Tribunal not to have been the importer thereof shall be deemed not to have been made and the goods shall, for the purposes of section 56, be deemed to be accounted for on the earlier of

• (a) the day that is sixty days after the day on which the Tribunal made the ruling; and

• (b) the day on which a new determination is made pursuant to section 56 in respect of the goods.

Marginal note:Ruling binding

94 A ruling given by the Tribunal on the question of who is the importer in Canada of any goods imported or to be imported into Canada is binding on the President, and on every person employed by the Canada Border Services Agency in the administration or enforcement of this Act, with respect to the particular goods in relation to which the ruling is given, unless the Tribunal is fraudulently misled or, in the case only of goods to be imported into Canada, material facts that are not available to the President at the time the Tribunal gives its ruling come to the President’s attention after it is given.

Marginal note:President to provide name of importer

95 Where any person interested in the importation of goods into Canada requests the President to provide the person with the name of the importer of the goods, the President shall, except in prescribed circumstances, forthwith provide the person with the name of the importer.

Gathering of Information

Marginal note:President may gather information in advance

96 In order to facilitate the administration and enforcement of this Act, where the President believes that goods sold to an importer in Canada or goods located or in the course of production out of Canada are or may be of the same description as goods to which an order or finding of the Tribunal described in section 3, 5 or 6 applies and that they will or may be imported into Canada, the President may, for the purpose of estimating the margin of dumping of or the amount of subsidy on the goods before they are imported into Canada, seek from persons in or out of Canada, in such manner and form as he considers appropriate in the circumstances, such information as he believes will be useful for that purpose.

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.