Judgments

T-654-01

2003 FC 1311

Canadian Steel Producers Association and Stelco Inc. (Applicants)

v.

The Commissioner of Customs and Revenue (Respondent)

and

Dofasco Inc. (Intervener)

Indexed as: Canadian Steel Producers Assn. v. Canada (Commissioner of Customs and Revenue) (F.C.)

Federal Court, Simpson J.--Toronto, April 28; Ottawa, November 10, 2003.

Anti-dumping -- Complaint by Dofasco (intervener) nine countries guilty of dumping cold-rolled steel sheet into Canada -- Canada Customs and Revenue Agency (CCRA) Commissioner conducting Special Import Measures Act (SIMA), s. 31(1) investigation -- Stelco, another producer supporting complaint, denied access to confidential information given Commissioner by exporters -- Judicial review application of denial granted -- Reason for access denial: administrative guidelines identifying exporters, importers as only parties to dumping investigation -- Commissioner of opinion domestic producers having only indirect interest in outcome -- Domestic producers providing information on voluntary basis -- Importance to domestic producers of ability to influence margin of dumping decision -- Subsequent CITT hearing determines whether injury caused by dumping, whether duties to be imposed -- Electrohome Ltd. v. Canada (Deputy M.N.R., Customs and Excise) (Korean colour TV sets) considered -- Issue whether Dofasco, other Canadian producers are parties -- Legislative history -- Disclosure guidelines taking restrictive approach to SIMA, s. 84(3) to encourage co-operation of exporters -- American antidumping regulations containing more inclusive definitions of "party" -- SIMA was amended to bring disclosure provisions closer to U.S. practice -- SIMA's purpose as economic legislation to deal with dumping complaints -- Impugned decision set aside as based on guidelines which frustrate intention of Parliament -- Complainant, supporters are parties entitled to access to confidential information.

The intervener, Dofasco Inc., filed a written complaint, under Special Import Measures Act (SIMA), subsection 32(1), alleging that nine countries were guilty of dumping cold-rolled steel sheet into Canada. Canada's other three cold-rolled steel sheet producers wrote to support the Dofasco complaint. The Commissioner of the CCRA then launched a subsection 31(1) investigation. Stelco counsel took the position that, under Act, subsection 84(3), it was entitled to have access to the confidential information which the exporters provided to the Commissioner during the investigation. Access was sought on behalf of all the Canadian manufacturers. This was an application for the judicial review of the denial of that request.

Held, the application should be granted.

Applicant, Canadian Steel Producers Association, has 11 members operating 16 plants accounting for 100% of Canadian primary steel production. Dofasco was recognized as an interested party in this judicial review application.

The denial of access decision was based on administrative guidelines which identify those exporters and importers who actively participate in an investigation as being the only parties to a dumping investigation proceeding. The Commissioner's view was that domestic producers had but an indirect interest in the outcome.

The filing of a SIMA complaint is an onerous task, a properly documented complaint being hundreds of pages in length. Having determined that an investigation was warranted, the Commissioner sent the exporters a "Request for Information" while the domestic producers provided additional information on a voluntary basis. The significance of the impugned decision was that the Commissioner will not receive unsolicited information from counsel to the domestic producers commenting upon the information furnished by the exporters. The domestic producers are anxious to be able to influence the decision as to margin of dumping at the investigation stage for, once established, it is not subject to challenge and is considered a "given" at the subsequent CITT hearing to determine whether the dumping has caused injury and whether duties should be imposed. Respondent's counsel conceded that the higher the margin of dumping was found to be, the more likely it would be that duties will be imposed.

In support of applicants' submission that they are parties to the investigation, reference was made to the Trial Division's decision in Electrohome Ltd. v. Canada (Deputy M.N.R., Customs and Excise), a case which involved the alleged dumping of Korean colour television sets. Rouleau J. rejected the Deputy Minister's position, that complainants were not parties to the proceedings and accordingly not entitled to information. That Judge wrote that applicants were parties to "other proceedings under this Act arising out of those proceedings". That comment was difficult to comprehend, since neither the complaint nor the investigation was a proceeding arising out of "those proceedings".

Under subsection 84(3), counsel to Dofasco would be entitled to have the confidential information only if (a) it was a party to the investigation or (b) a party to proceedings arising out of the investigation. This matter being still at the investigation stage, (b) could not apply, so the question was whether Dofasco and the other Canadian producers had status as parties to the investigation. Since Electrohome failed to squarely address this issue, it was of no assistance to applicants.

Applicants' memorandum of fact and law was quoted at length for its account of the Parliamentary review of SIMA following the Finance Minister's 1996 request that the House Standing Committees on Finance and on Foreign Affairs and International Trade jointly review the Act. After holding hearings and considering written briefs, it was concluded that, while the Act was not in itself opposed, there was a perception that the balance struck between producers, users of imported products and consumers should be modified. The sub-Committees recommended that the policy be changed to allow counsel increased access to confidential information in anti-dumping countervailing duty investigations. The producers' association had argued that this would provide for procedural fairness and would be consistent with American policies applied to Canadian producers exporting to the United States. Given that the majority of Canadian exports go to the U.S.A. and that, in America, access is given to domestic producers thereby increasing the burden on Canadian exporters, a change in the Canadian policy would result in a level playing field. The Government accepted this proposal and the amended SIMA came into force in 1999. But, in drafting disclosure guidelines to fill in the gaps in the amended legislation, a restrictive approach was taken with a view to encouraging exporters to co-operate with investigations. Disclosure would be made only to counsel for a party. A party was a person (a) having a direct interest in the outcome and (2) actively participating in a proceeding. A domestic producer was not considered to be a party even if voluntarily responding to a request by the Commissioner for financial statements and cost and profit data. A comparison with the more inclusive American practice was relevant, given that the purpose of the amendments was to bring the SIMA disclosure provisions more into line with the American practice. Under the Interpretation Act, every enactment is deemed remedial and is to be given a liberal construction in order to ensure the attainment of Parliament's objectives.

SIMA is economic legislation, enacted to deal with the dumping of goods in Canada. The resolution of a complaint is of greatest importance. Given that the purpose of the amendments was to broaden disclosure and the domestic producers' significant interest in the outcome along with the importance of the information which they supplied during the investigation, the impugned decision had to be set aside as based on guidelines that frustrate the will of Parliament. The complainant and its supporters are to be considered parties to the investigation which generated the confidential information.

statutes and regulations judicially

considered

Antidumping and Countervailing Duties, 19 C.F.R. § 351.102 (1999).

Interpretation Act, R.S.C., 1985, c. I-21, s. 12.

Interpretation Act, R.S.O. 1980, c. 219, c. 10.

Special Import Measures Act, R.S.C., 1985, c. S-15, ss. 31(1) (as am. by S.C. 1994, c. 47, s. 160; 1999, c. 17, s. 183(1)(z.1), 32(1) (as am. by S.C. 1999, c. 17, s. 183(1)(z.3), 84(3) (as am. by S.C. 1999, c. 12, s. 44; c. 17, s. 183(1)(z.32).

Special Import Measures Act, S.C. 1984, c. 25, s. 84(3).

cases judicially considered

applied:

Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1.

considered:

Electrohome Ltd. v. Canada (Deputy M.N.R., Customs and Excise), [1986] 2 F.C. 344; (1986), 1 F.T.R. 212 (T.D.).

authors cited

Canada Border Services Agency. Guidelines on the Disclosure of Confidential Information Provisions of the Special Import Measures Act. Ottawa, April 2000.

APPLICATION for judicial review of a decision by the Commissioner of Customs and Revenue denying counsel for domestic producers access to confidential information in a Special Import Measures Act dumping investigation. Application granted.

appearances:

Riyaz Dattu and Geoff R. Hall for applicants.

Frederick B. Woyiwada for respondent.

Laurel C. Broten for intervener.

solicitors of record:

McCarthy Tétrault LLP, Toronto, for applicants.

Deputy Attorney General of Canada for respondent.

Bennett Jones LLP, Toronto, for intervener.

The following are the reasons for order rendered in English by

Simpson J.:

Introduction

[1]On February 16, 2001 Dofasco Inc. (Dofasco) filed a written complaint under subsection 32(1) [as am. by S.C. 1999, c. 17, s. 183(1)(z.3)] of the Special Import Measures Act, R.S.C., 1985, c. S-15 (the Complaint and SIMA). The complaint alleged the injurious dumping of cold-rolled steel sheet exported to Canada from nine countries. They were: Brazil, Chinese Taipei, the Former Yugoslav Republic of Macedonia, Italy, Luxembourg, Malaysia, the People's Republic of China, the Republic of Korea and South Africa (collectively the exporters). The three Canadian domestic producers of cold-rolled steel sheet, in addition to Dofasco, wrote to the Canada Customs and Revenue Agency (the CCRA) and expressed their support for Dofasco's complaint. Those producers were Stelco Inc. (Stelco), Algoma Steel Inc. (Algoma) and Ispat Sidbec Inc. (Sidbec). The four Canadian producers will be referred to collectively as the "domestic producers".

[2]On March 12, 2001, in response to the complaint, the Commissioner of the CCRA (the Commissioner) initiated a dumping investigation (the investigation) pursuant to subsection 31(1) [as am. by S.C. 1994, c. 47, s. 160; 1999, c. 17, s. 183(1)(z.1)] of SIMA.

[3]In a letter dated March 28, 2001 to Mr. Robert Séguin (Mr. Séguin) the Acting Director General of the Anti-Dumping and Countervailing Directorate within the CCRA, counsel for Stelco expressed the view that, under subsection 84(3) [as am. by S.C. 1999, c. 12, s. 44; c. 17, s. 183(1)(z.32)] of SIMA, he was entitled to access to all the confidential information provided to the Commissioner by the exporters in the course of the investigation (the confidential information). He asked for access to the confidential information on behalf of counsel for all the domestic producers on the basis that they all had a significant interest in the outcome of the investigation.

[4]On April 3, 2001, Mr. Séguin decided, on the Commissioner's behalf, to deny Stelco's counsel's request for access to the confidential information (the decision). This application is for judicial review of Mr. Séguin's decision.

The Parties

The Applicants

[5]The Canadian Steel Producers Association (the CSPA) represents primary steel producers. Its 11 members operate 16 plants and account for one hundred percent of Canadian primary steel production. The four domestic producers are members of the CSPA.

[6]Stelco is an applicant because, as noted above, its counsel wrote the letter dated March 28, 2001 asking Mr. Séguin to provide counsel for the domestic producers with access to the confidential information. The decision denying access was made in response to this letter.

The Intervener

[7]On October 22, 2001, Dofasco was given leave to intervene in this application by Prothonotary Lafrenière. Because it filed the complaint, Dofasco was recognized as an interested party for the purpose of this judicial review proceeding.

The Respondent

[8]The Commissioner received the complaint and started the investigation. Mr. Séguin, on the Commissioner's behalf, made the decision of April 3, 2001 denying counsel for the domestic producers access to the confidential information.

The Evidence

[9]Mr. Donald Belch made an affidavit dated May 11, 2001 on behalf of the CSPA and Stelco (the applicants' affidavit). On Dofasco's behalf, Mr. Dennis Martin swore an affidavit dated September 25, 2001 (the intervener's affidavit).

[10]Mr. Wayne Neamtz swore an affidavit dated June 14, 2001 (the respondent's affidavit) and a transcript of his cross-examination thereon is dated July 6, 2001 (the transcript). At that time, he had been with the CCRA's Anti-Dumping and Countervailing Directorate since 1978 and had been the Acting Director of Operational Policy since 1999.

The Decision

[11]The Decision read in part:

I have read your submission with interest, however, I have decided not to grant access to the requested information to you by reason that you are not counsel to a party to the proceeding under consideration.

I can appreciate that your client has a significant interest in the outcome of the investigation. However, as outlined in the CCRA policy, a SIMA case is not a single proceeding that extends from the filing of a complaint to final decisions by the CCRA and the Canadian International Trade Tribunal. Rather, it is a series of distinct proceedings. The policy lists the various proceedings and the parties to each specific proceeding, which are critical on [sic] rendering a decision to allow the disclosure of confidential information. These administrative guidelines identify the exporters and importers who actively participate in the investigation as the only parties to the dumping investigation proceeding. It is for this reason that you are not entitled to access to confidential information with respect to the dumping investigation. [My emphasis.]

[12]In his cross-examination, Mr. Neamtz elaborated on the reasons for the decision when he said at page 127 of the transcript that access to the confidential information was denied because, in the Commissioner's view:

(a) Domestic producers do not participate actively in investigations because, if they supply information, they do so on a voluntary basis; and

(b) Domestic producers are only indirectly (although significantly) interested in the outcome of investigations.

[13]In other words, in the Commissioner's view, a party to an investigation must be an active participant with a direct interest in its outcome.

The Investigation

[14]This description of the Commissioner's powers in relation to an investigation under SIMA is taken from paragraph 35 of the respondent's memorandum of fact and law.

1. Domestic producers make a complaint to the Commissioner.

    s. 31(1)

The complaint must be supported by domestic producers representing:

-50% of the production by producers of like goods who express either support for or opposition to the complaint, and

-25% of total domestic production of like goods.

·     If not, no investigation is initiated.

    s. 31(2)

Within 21 days, the Commissioner must determine whether the complaint is properly documented.

·     If not, no investigation is initiated

    s. 32(1)

2. Within 30 days after determining that the complaint is properly documented, the Commissioner decides whether to initiate an investigation.

    s. 31(1)

The Commissioner must form the opinion that there is evidence of dumping and a reasonable indication of injury.

·     If not, no investigation is initiated.

    s. 31(1)

·     If no investigation is initiated, the Commissioner must notify the complainant.

    s. 33(1)

·     If no investigation is initiated on the ground that there is no reasonable indication of injury, the Commissioner or the complainant may refer the question to the Canadian International Trade Tribunal ("CITT").

    s. 33(2)

·     Upon such reference, if the CITT decides that the evidence discloses a reasonable indication of injury, the Commissioner must initiate an investigation.

    s. 31(8)

3. The Commissioner then initiates the investigation

Upon initiation, the Commissioner must give notice to the complainant, to affected importers and exporters, and to the public.

    s. 34(1)(a)

The Commissioner terminates the investigation if he is satisfied that:

·     the evidence of dumping is insufficient,

·     the margin of dumping is insignificant, or

·     the actual or potential volume of dumped goods is negligible

    s. 35(1)

·     The Commissioner must give notice to the complainant, interested importers, exporters, and governments, and to the public.

    s. 35(2)

Within 90 days, where the investigation has not been terminated, the Commissioner makes a preliminary determination of dumping and specifies estimated margins.

    s. 38

When a preliminary determination is made, the Commissioner may impose provisional duties.

    s. 8

[15]The evidence shows that filing a properly documented complaint under SIMA is an onerous task and that complaints run to hundreds of pages. For this reason, the parties agreed that Dofasco would file the full complaint and the other domestic producers would provide support. According to counsel for the applicants, Dofasco submitted a properly documented complaint in which it estimated the margin or extent of the dumping (the margin).

[16]When Stelco, Algoma and Sidbec (together the supporters) wrote the CCRA to support Dofasco's complaint, they each provided statistics dealing with their production and sale of cold-rolled steel sheet. The combination of the information in the complaint and in the supporters' correspondence satisfied the Commissioner that the complaint was properly documented and that an investigation was warranted under subsection 31(1) of SIMA. The resulting investigation was initiated on March 12, 2001.

[17]During the investigation, the Commissioner sent the exporters a document entitled "Request for Information". The data received in response to the request were verified by the CCRA. The CCRA also asked for additional information from the domestic producers and it was provided on a voluntary basis.

[18]The evidence disclosed that, although an estimated margin was included in the complaint and was supported by the domestic producers, the Commissioner would form an independent conclusion about the margin based on the complaint, on the exporters' responses to requests for information and on additional information provided by the domestic producers on a voluntary basis at the Commissioner's request. In the context of the investigation, Mr. Séguin's decision means that the Commissioner will not receive unsolicited information from counsel for the domestic producers commenting on the adequacy and the reliability of the confidential information provided by the exporters.

The Domestic Producers' Interest in the Investigation

[19]The domestic producers allege that they want their counsel to have access to the confidential information so that they can make submissions to the Commissioner based on their industry expertise about the adequacy and/or reliability of the exporters' confidential information and about an appropriate figure for the margin. Counsel for the domestic producers want to be able to influence the size of the margin at the investigation stage because, once the Commissioner has set the margin, it cannot be challenged and is treated as a "given" in a subsequent hearing before the Canadian International Trade Tribunal (the CITT). The CITT's mandate is to use a number of factors, including the margin set by the Commissioner, to determine (i) whether injury is being caused by the dumping and (ii) whether duties should be imposed.

[20]Mr. Neamtz was asked on his cross-examination whether, if other factors were equal, a higher margin would make it more likely (i) that the CITT would conclude that the dumping caused injury and (ii) that the CITT would impose duties. He refused to acknowledge either likelihood. Further, although he did agree with Mr. Séguin that the domestic producers have a "significant interest" in responding to counterclaims made by the exporters in the course of the investigation, he would not admit that their interest could be described as "direct".

[21]The applicants' affidavit states in paragraph 30 that there is "no issue that the Canadian industry has a great deal at stake in the outcome of the Commissioner's investigation." Unfortunately, the deponent did not elaborate on this statement and describe exactly what is at stake. Similarly, the intervener's affidavit says that Dofasco has a great deal at stake and a direct interest in the outcome of the investigation.

[22]Counsel for the respondent conceded that, although there is no legal causal relationship between the size of the margin of dumping and the likelihood that injury will be found, it is more likely, in practice, that a higher margin of dumping will result in an injury finding and the imposition of duties. In other words, the outcome of the investigation will affect the magnitude of the economic relief given to the domestic producers.

The Electrohome Decision

[23]Counsel for the applicants submitted that the Federal Court has already decided that his clients are parties to the investigation. In this regard he referred to Electrohome Ltd. v. Canada (Deputy M.N.R., Customs and Excise), [1986] 2 F.C. 344 (T.D.) (Electrohome). In that case, the issue was whether counsel for the companies, which had filed complaints about the alleged dumping of Korean colour televisions, were entitled to access to the confidential information supplied by the exporters during the CCRA's investigation. At that time, subsection 84(3) of SIMA [S.C. 1984, c. 25] was written in a permissive and not in its present mandatory form. In Electrohome, the respondent argued that the decision about whether to divulge confidential information was discretionary but also took the position that the CCRA is taking on this application which is that Dofasco as the complainant is not a party to the investigation and, therefore, not party to the proceedings within the meaning of subsection 84(3) of SIMA.

[24]At the time of the Electrohome decision, subsection 84(3) read as follows:

84. . . .

(3) Notwithstanding subsection (1), information to which that subsection applies that has been provided to the Deputy Minister in any proceedings under this Act may be disclosed by the Deputy Minister to counsel for any party to those proceedings or to other proceedings under this Act arising out of those proceedings for use by such counsel only in those proceedings or other proceedings, subject to such conditions as the Deputy Minister considers are reasonably necessary or desirable to ensure that the information will not, without the written consent of the person who submitted it to the Deputy Minister, be disclosed to any person by counsel in any manner that is calculated or likely to make it available to

(a) any party to the proceedings or other proceedings, including a party who is represented by that counsel; or

(b) any business competitor or rival of any person to whose business or affairs the information relates. [My emphasis.]

[25]In Electrohome, as in the present case, the complainants' counsel argued that they wanted the confidential information provided by the Korean exporters so that they could make meaningful submissions in an effort to ensure that the CCRA correctly calculated the margin of dumping.

[26]After dealing with the discretionary nature of subsection 84(3), Rouleau J. considered whether the complainants fell within subsection 84(3). In this regard, His Lordship said [at page 352]:

Alternatively, the applicants argue that if the word "may" in subsection 84(3) is construed as permissive, the Deputy Minister has failed to exercise his discretion or has capriciously exercised it, in that he has based his decision not to release the confidential information on the fact that he does not consider the applicants to be "parties to the proceedings" as is required by subsection 84(3). In his letter of December 30, 1985 to the applicants, the Deputy Minister stated that it was the Department's policy to consider the complainants in an anti-dumping case not to be parties to the proceedings, and therefore counsel for the complainants are not entitled to the information. I would like to now dispose of this argument made by the Crown. The applicants argue that they are parties to the proceedings by virtue of the wording in subsection 84(3) which allows for disclosure of confidential information provided to the Deputy Minister in any proceeding under the Act to "counsel for any party to those proceedings or to other proceedings under this Act arising out of those proceedings". I am of the opinion that the applicants are parties to "other proceedings under this Act arising out of those proceedings" and as such could be entitled to the confidential information. As a result the Crown's argument in this regard must fail. [My emphasis.]

[27]I have found this paragraph difficult to understand because, in my view, "those proceedings" are the ones in which confidential information is supplied to the Commissioner. In Electrohome, the confidential information was received during the investigation. Accordingly, neither the complaint nor the investigation could have been a proceeding arising out of "those proceedings".

[28]In my view, under subsection 84(3), counsel for Dofasco, as the complainant, and counsel for the supporters are only entitled to the confidential information provided during the investigation if:

(i) they are treated as a party to the investigation, or;

(ii) they are treated as a party to subsequent proceedings arising out of the investigation.

On the facts of this case (ii) cannot apply because the matter has not passed the investigation stage. Accordingly, the only issue is whether Dofasco and its supporters can be considered to be parties to the investigation and Electrohome does not squarely address this issue. Accordingly, I have determined that Electrohome does not assist the domestic producers.

Legislative History

[29]In this section I have, in large measure, reproduced in Part I, section C of the applicants' memorandum of fact and law. The underlined emphasis was in the memorandum.

Parliamentary Review of SIMA

On May 17, 1996, the Finance Minister asked the Standing Committee on Finance and on Foreign Affairs and International Trade of the House of Commons to jointly review SIMA and to advise the Government if any changes should be made to the law. The Standing Committee on Finance subsequently struck the Sub-Committee on SIMA Review, and the Standing Committee on Foreign Affairs and International Trade assigned its Sub-Committee on Trade Disputes to work jointly with the Sub-Committee on SIMA Review to carry out the task of reviewing SIMA (collectively the "Sub-Committees").

In carrying out their mandate to report to Parliament in December 1996, the Sub-Committees conducted nine hearings, heard witnesses from 32 individuals or groups, and received written briefs from an additional eight individuals or groups. The Sub-Committees also received comments from the agencies responsible for administering SIMA.

The conclusion of the Sub-Committees following the completion of the hearing process was that SIMA was working well and that the SIMA legislation and process should be continued subject to certain modification addressed in the December 1996 Report of the Sub-Committees (the "Report"):

However, there were a number of proposal for changes to SIMA. It is the opinion of the Sub-Committees that these proposals did not represent opposition to SIMA, but were rather an attempt to modify the balance struck between producers and downstream users of imported products and consumers. Further, the proposals addressed dissimilarities between the Canadian and U.S. trade remedy systems, or were intended to improve procedural aspects of SIMA administration. These proposals are addressed in the various sections below.

One of the modifications recommended by the sub-Committees was in respect of the policy of the Deputy Minister of National Revenue (the predecessor to the Respondent) with respect to providing counsel access to confidential information. The Sub-Committees refer to the representations from the CSPA in their Report as follows:

The Canadian Steel Producers Association submitted that SIMA should be amended to provide counsel increased access to confidential information in anti-dumping/ countervailing duty investigations conducted by Revenue Canada. There are two principal arguments in favour of greater disclosure. First, it would allow interested parties to make rebuttal submissions thus improving the quality and reliability of evidence. Second, it would result in greater procedural fairness and lead to greater consistency with U.S. policies that are applied to Canadian producers exporting to that country.

The Report also refers to arguments made against the granting of greater access to counsel to confidential information acquired by Revenue Canada (now the CCRA) in its anti-dumping/countervailing duty investigations:

However, a number of points were offered against any such proposal. It was contended that broader exposure to confidential information would result in parties becoming less forthcoming and would both lengthen the investigation process and render it more adversarial, thus substantially increasing the costs. Also, current SIMA timeframes might need to be extended to accommodate the consideration of rebuttal submissions and SIMA would have to be amended to provide for penalties to discipline the unauthorized disclosure of confidential information by counsel.

The Sub-Committees nevertheless determined that increased access should be provided by Revenue Canada, and explained the rationale for this recommendation as follows:

The Sub-Committees recognize that Revenue Canada has established a reasonable practice for handling confidential information. However, the large majority of Canadian exports go to the United States, and in that country the U.S. practice of affording access to confidential information often leads to an increase in the information burden on Canadian exporters who are subject to U.S. investigations. In the interest of level playing field, the Sub-Committees recommend that SIMA should be amended to provide counsel increased access to confidential information in anti-dumping/countervailing duty investigations conducted by Revenue Canada. The Sub-Committees note that this recommendation promotes overall balance in this report.

The Sub-Committees also went on to note in their Report that implementation of the recommendation requiring greater access to counsel to the confidential information in an anti-dumping/countervailing duty investigation "will require the introduction of penalty provisions in SIMA for the unauthorized released by counsel of confidential information."

The Canadian Government supported the Sub-Committees' recommendation that SIMA should be amended to provide counsel increased access to confidential information in anti-dumping/countervailing duty investigations conducted by Revenue Canada. In supporting this recommendation, the Government noted as follows:

SIMA and the Canadian International Trade Tribunal Act (CITT Act) respectively provide the Deputy Minister of National Revenue and the CITT with the discretion to grant counsel for a party restricted access to confidential information. However, while the CITT regularly affords counsel access to confidential information in SIMA injury inquiries, Revenue Canada's policy has been to provide access to confidential information only in those cases where the Deputy Minister is of the opinion that the non-confidential summary is inadequate to convey a reasonable understanding of the substance of the information.

In addition to providing greater consistency in the treatment of confidential information throughout the investigation process, adoption of this recommendation would introduce greater procedural fairness into the SIMA process and improve the overall quality and reliability of the evidence upon which SIMA determinations are based by affording parties an opportunity to make informed rebuttal submissions. The recommendation could be implemented by amending the Act to require disclosure of confidential information to counsel for a party (subject to appropriate conditions and protective undertakings).

The concern was expressed that more liberal access to confidential information might require the extension of current SIMA time-frames in order to accomodate the consideration by Revenue Canada of rebuttal submissions. However, the Government believes that it should be possible to deal with these submissions within existing time-frames.

Finally, the concern that parties might be less forthcoming with sensitive business information if such information was routinely accessible to counsel for their competitors, could be minimized by providing appropriate penalties for the unauthorized release of confidential information. In this regard, the Government agrees with the Sub-Committees' view that a liberalisation of SIMA's counsel disclosure policy would have to be accompanied by appropriate statutory penalties for the unauthorized release of confidential information by counsel.

SIMA was thereafter amended on December 1, 1998 by Bill C-35, which received Royal Assent on March 25, 1999. Subsection 84(3) of SIMA became effective on April 15, 2000.

The Guidelines

[30]The Commissioner submits that the Guidelines on the Disclosure of Confidential Information Provisions of the Special Import Measures Act of April 2000 (the Guidelines) take a restrictive approach to subsection 84(3) of SIMA to encourage exporters to co-operate with an investigation. However, there was no evidence that any exporters had expressed concern about the prospect of wider dissemination of their confidential information.

[31]The Guidelines were drafted in preparation for the April 15, 2000 amendments to SIMA. Since SIMA does not define either "parties" or "proceedings" in the context of an investigation, the Guidelines have filled this gap by providing that:

Parties and Proceedings

A key component of the disclosure provisions is the designation of those persons who are parties in the various SIMA proceedings conducted by the Commissioner and the identification of the various proceedings envisaged by the law and of those proceedings which arise out of other proceedings under SIMA. These concepts are critical since disclosure can only be made to counsel who is acting for a party to a proceeding or to a party to a proceeding arising out of a previous proceeding in respect of which the information was originally submitted.

For purposes of SIMA proceedings conducted by the Commissioner, a person will be regarded as a "party" if the person has a direct interest in the outcome of the proceeding and if the person actively participates in the proceeding.

The SIMA proceedings, including proceedings which can be deemed to arise out of a previous proceeding, and the parties to each of these specific proceedings have been identified in the attached Appendix 1.

[32]Appendix I to the Guidelines lists a total of 14 distinct SIMA proceedings. The first three are relevant and are set out in Schedule "A" hereto. The Guidelines provide that only complainants are parties to a complaint and those who support it are non-parties at the complaint stage. During an investigation, only exporters who participate "actively" by providing information pursuant to a "Request for Information" are considered parties. Domestic producers, including complainants, are not treated as parties even if, as in this case, they provide data to support a complaint and voluntarily respond to the Commissioner's request for financial statements and cost and profitability data for the domestic market.

The Practice in the United States

[33]The United States' Code of Federal Regulations, Chapter II, United States International Trade Commission, 19 C.F.R. Part 351 dealing with Antidumping and Countervailing Duties provides a definition, at section 351.102, of a "Party to a Proceeding". It reads as follows:

Sec. 351.102 Definitions.

. . .

Party to the proceeding. "Party to the proceeding" means any interested party that actively participates, through written submissions of factual information or written argument, in a segment of a proceeding. Participation in a prior segment of a proceeding will not confer on any interested party "party to the proceeding" status in a subsequent segment.

It also defines a "Segment of Proceeding" as:

Segment of proceeding

(1) In general. An antidumping or countervailing duty proceeding consists of one or more segments. "Segment of a proceeding" or "segment of the proceeding" refers to a portion of the proceeding that is reviewable under section 516A of the Act.

(2) Examples. An antidumping or countervailing duty investigation or a review of an order or suspended investigation, or a scope inquiry under Sec. 351.225, each would constitute a segment of a proceeding.

[34]When these provisions are compared to the definitions and illustrations in the Guidelines, it becomes apparent that the U.S. definitions are more inclusive. In the U.S., a party must be interested. In Canada there must be a direct interest. As well, in the U.S. there must be active participation in the form of factual or legal submissions in a segment of a proceeding. In Canada active participation is also required but the threshold is higher. It cannot be voluntary. For example, those domestic producers who support a complaint with additional evidence or who are asked to provide data to the Commissioner during an investigation are not treated as parties. Only exporters who are required to complete a response to a Commissioner's formal "Request for Information" are accorded party status.

[35]This comparison is relevant because, as noted above, when Parliament amended subsection 84(3) of SIMA on April 15, 2000 [S.C. 1999, c. 12, s. 44] it intended to bring SIMA disclosure provisions closer to the U.S. practice in which it is undisputed that counsel for interested parties are given access to confidential information obtained during dumping investigations whether or not their interest is "direct" and whether or not their active participation is voluntary.

The Issue

[36]There was no dispute that the investigation was a proceeding under SIMA. Accordingly, the issue can be stated as follows. Are the complainant and its supporters parties to the investigation for the purpose of subsection 84(3) of SIMA?

[37]Subsection 84(3), in its amended mandatory form, now reads:

84. . . .

(3) Notwithstanding subsection (1), information to which that subsection applies that has been provided to the Commissioner in any proceedings under this Act shall, on written request and on payment of the prescribed fee, be disclosed by the Commissioner, in the manner and at the time specified by the Commissioner, to counsel for any party to those proceedings or to other proceedings under this Act arising out of those proceedings for use, notwithstanding any other Act or law, by that counsel only in those proceedings, subject to any conditions that the Commissioner considers reasonably necessary or desirable to ensure that the information will not, without the written consent of the person who submitted it to the Commissioner, be disclosed to any person by counsel in any manner that is calculated or likely to make it available to

(a) any party to the proceedings or other proceedings, including a party who is represented by that counsel; or

(b) any business competitor or rival of any person to whose business or affairs the information relates. [My emphasis.]

Statutory Interpretation

[38]In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Mr. Justice Iacobucci of the Supreme Court of Canada made the following statement about the proper approach to be taken to statutory interpretation. At paragraph 21 of his decision for a unanimous Court, he said:

. . . Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

[39]He also considered section 10 of the Interpretation Act, R.S.O. 1980, c. 219. It does not apply in this case but section 12 of its federal counterpart the Interpretation Act, R.S.C., 1985, c. I-21 is similar and it says:

12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

Conclusions

[40]The starting point must be the purpose of SIMA. It was aptly described in Electrohome in the following terms [at page 354]:

Generally, the purpose of the Special Import Measures Act is to protect Canadian manufacturers and producers from the dumping of goods into the Canadian market which results from goods being imported into Canada at lower prices than they would be sold in their home market. The domestic market is entitled to protection under the Act if it is established that dumped goods have caused or threaten to cause injury to Canadian production of the same goods. Anti-dumping duty may be levied on these imports to offset the price advantage caused by dumping.

Simply stated, SIMA is economic legislation which was established, in part, to deal with complaints about goods dumped into Canada.

[41]In my view, the overarching proceeding is the resolution of the complaint. This resolution may be achieved in a variety of ways. At one extreme, a complaint may be dismissed without an investigation or, at the other extreme, it may lead to an investigation which establishes the margin of dumping and the imposition of interim duties and then to a CITT hearing which establishes that injury has been caused by dumping and imposes final duties.

[42]The Guidelines, which do not have the force of law, provide that both Dofasco and its supporters are not parties to the investigation. The Commissioner says this is so because (i) they are not "directly" interested in the sense that their interest, although significant, is only economic and not a question of legal rights and (ii) because their involvement in the investigation is only voluntary.

[43]This position is asserted by the Commissioner even though:

- Dofasco and its supporters were required to estimate the margin at the time the complaint was submitted;

- Dofasco and its supporters voluntarily supplied information at the Commissioner's request during the investigation;

- Counsel for the domestic producers are in the best position to provide information about the domestic market and about the reliability of the confidential information provided by the exporters.

- The investigation establishes a margin which in practice affects the likelihood of a later finding of injury and the imposition of duties by the CITT.

- The complainant and the supporters are entitled to participate in the injury hearing before the CITT.

- The Commissioner acknowledges that the domestic producers have a significant interest in the outcome of the investigation.

[44]The Legislative history behind the recent amendments to SIMA makes it clear (i) that disclosure is to be broader (because it became mandatory instead of discretionary), (ii) that confidentiality is to be respected (access remained limited to counsel and stiff penalties were provided), (iii) that subsection 84(3) of SIMA is intended to align SIMA with the practice in the United States where counsel for interested (not "directly" interested) parties who voluntarily participate in an investigation are given access to confidential information and (iv) that Parliament believed that information provided by the domestic producers would improve the quality of the evidence on which the Commissioner would base his calculation of the margin.

[45]For all these reasons, I have concluded that the decision must be set aside because it is based on the Guidelines and they frustrate the intention of Parliament. Accordingly, the complainant and its supporters are entitled to access to the confidential information under subsection 84(3) of SIMA on the basis that, in the circumstances of this case, they are parties to the investigation which generated the confidential information.

SCHEDULE "A" Appendix 1 Identification of SIMA Proceedings Conducted by the Commissioner and the Parties to the Proceedings

Détermination des procédures LMSI menées par le Commissaire et des parties à ces procédures

Proceeding	Parties	Previous Proceeding Giving Rise to the Proceeding	Procédure	Parties	Procédure antérieure dont découle cette procédure
A written complaint filed under SIMA and ending when the complaint has been deemed as properly documented or the inquiry is terminated without the receipt of a properly documented complaint (PDC).	Complainants (i.e. the persons submitting the written complaint). Note: Producers of like goods expressing support for the complaint (with or without the provision of addi-tional evidence) will not be considered as a complainant and, therefore, not a party to the proceeding.	N/A	Procédure commençant au moment du dépôt d'une plainte écrite en vertu de la LMSI et se terminant au moment où le dossier de la plainte est déclaré complet ou au moment de la clôture de l'enquête si les documents reçus ne constituent pas un dossier complet de la plainte (DCP).	Les plaignantes (c.-à-d. les personnes ayant déposé la plainte écrite). Seuls les autres producteurs nationaux ayant déposé la plainte à titre de co-plaignantes sont considérés comme des parties. Nota: Les produc-teurs de marchan-dises similaires qui ne font qu'exprimer leur appui à la plainte (même s'ils fournissent d'autres éléments de preuve) ne sont pas considérés comme des plai-gnantes et ne sont donc pas des parties à la procédure.	s.o.
The evaluation of a PDC leading to the decision to initiate/not initiate an investigation.	N/A	This proceeding arises from the written complaint filed under SIMA.	Évaluation d'un DCP menant à la décision d'ouvrir ou de ne pas ouvrir une enquête.	s.o.	Cette procédure découle de la plainte écrite déposée en vertu de la LMSI.
The dumping or subsidy investigation from initiation to the final determination, suspension due to the acceptance of an undertaking or termination.	Exporters and importers who actively participate in the proceeding, generally by submitting a complete or substantially complete response to the Request for Information. Note: A complainant, the government of the country of export, non-exporting foreign producers providing information, and persons submitting information on a courtesy basis are not parties to the proceeding.	This proceeding normally arises out of the evaluation of a PDC and the decision to initiate an investigation. However, when the investigation is initiated on the Commissioner's own initiative, the investigation will normally not be regarded as arising out of a previous proceeding.	Enquête sur le dumping ou sur le subventionne-ment commençant au moment de l'ouverture de l'enquête et se terminant au moment de la décision définitive, de la suspension de l'enquête à la suite de l'acceptation d'un engagement ou de la clôture de l'enquête.	Les exportateurs et les importateurs qui participent acti-vement à la procédure, ce qu'ils font généralement en présentant une réponse complète ou à peu près complète à la Demande de renseignements. Le gouvernement du pays d'exportation, dans une enquête sur le subventionne-ment. Si une méthode d'échantillonnage est utilisée, tout exportateur non sélectionné qui présente un exposé assez complet pour être utilisé au cours de l'enquête sera considéré comme une partie à la procédure. Nota: Les plaignantes, le gouvernement du pays d'exportation, les producteurs étrangers qui fournissent des renseignements mais ne sont pas des exportateurs et les personnes qui présentent des renseignements à titre gracieux ne sont pas des parties à la procédure.	Cette procédure découle générale-ment de l'évalua-tion d'un DCP et de la décision d'ouvrir une enquête. Toutefois, si le Commissaire ouvrait une enquête de sa propre initiative, cette enquête ne serait pas nor-malement considérée comme une procédure découlant d'une procédure antérieure.