Docket: A-52-21
Citation: 2023 FCA 74
CORAM:
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GAUTHIER J.A.
RIVOALEN J.A.
ROUSSEL J.A.
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BETWEEN: |
CANADIAN HARDWOOD PLYWOOD AND VENEER ASSOCIATION, COLUMBIA FOREST PRODUCTS, ROCKSHIELD ENGINEERED WOOD PRODUCTS ULC and HUSKY PLYWOOD (A DIVISION OF COMMONWEALTH PLYWOOD COMPANY LIMITED) |
Applicants |
and |
ATTORNEY GENERAL OF CANADA , LINYI CELTIC WOOD CO., LTD., CELTIC CO., LTD., LINYI EVERGREEN WOOD CO., LTD., LINYI HUASHENG YONGBIN WOOD CO., LTD., LINYI JIAHE WOOD INDUSTRY CO., PINGYI JINNIU WOOD CO., LTD., PIZHOU JIANGSHAN WOOD CO., LTD., SHANDONG GOOD WOOD IMP. AND EXP. CO., LTD., XUZHOU SHENGPING IMP AND EXP CO., LTD., XUZHOU LONGYUAN WOOD INDUSTRY CO., LTD., FENGXIAN WEIHENG WOOD CO., LTD., ZHEJIANG DEHUA TB IMPORT & EXPORT CO., LTD, DEHUA TB NEW DECORATION MATERIAL CO., LTD., UNITED STEEL WORKERS, UNIFOR and ASSOCIATION DES SALARIÉS DU CONTRE-PLAQUÉ DE STE-THÉRÈSE |
Respondents |
PUBLIC REASONS FOR JUDGMENT
This is a public version of confidential reasons for judgment issued to the parties. There are no redactions from the confidential reasons for judgment.
RIVOALEN J.A.
I. Introduction 3
II. The SIMA and the SIMA Handbook 6
A. The calculation of normal values 9
(1) Section 15 and subsection 16(1) of the SIMA 9
(2) Paragraph 16(2)(c) of the SIMA 10
(3) Section 19 of the SIMA 11
(4) Section 20 of the SIMA 12
(5) Subsection 29(1) of the SIMA 12
B. Final determination under section 41 of the SIMA 13
III. The Final Determination and the Statement of Reasons 14
IV. Issues 18
V. This Court’s jurisdiction and the standard of review 19
VI. Analysis 21
A. What is the decision under review? 21
B. Does the failure on the part of the President of the CBSA to include the calculations in the Statement of Reasons give rise to a breach of procedural fairness? 23
C. Does the failure on the part of the CBSA to provide the calculations to the President of the CBSA or to include the calculations in the Statement of Reasons render the Final Determination unreasonable? 26
D. Was it reasonable for the President of the CBSA to conclude that a PMS did not exist? 28
(1) Limiting “government support programs” to “countervailable subsidies” 31
(2) Ignoring the non-cooperating exporters’ amounts of subsidy 34
(3) Log prices in China 35
(4) Cumulative effect of factors 41
(5) Determination 43
VII. Conclusion 44
VIII. ANNEX A – Special Import Measures Act, R.S.C. 1985, c. S-15 (SIMA) 1
IX. ANNEX B - Special Import Measures Regulations, S.O.R./84-927 (SIMR) 20
[1] The applicants apply under paragraph 96.1(1)(a) of the Special Import Measures Act, R.S.C. 1985, c. S-15 (the SIMA) for judicial review of the notice of final determinations of the President of the Canada Border Services Agency (CBSA) issued on January 21, 2021 (Final Determination). On February 5, 2021, the CBSA issued its public statement of reasons for the Final Determination (DONP 2020 IN) (Statement of Reasons), in which it explained that the CBSA terminated the dumping and subsidizing investigations in respect of certain decorative and other non-structural plywood originating in or exported from the People’s Republic of China.
[2] The dumping investigation was terminated against each of the following respondents: Linyi Celtic Wood Co., Ltd.; Celtic Co., Ltd.; Linyi Evergreen Wood Co., Ltd.; Linyi Huasheng Yongbin Wood Co., Ltd.; Pingyi Jinniu Wood Co., Ltd.; Pizhou Jiangshan Wood Co., Ltd.; Shandong Good Wood Imp. and Exp. Co., Ltd.; Xuzhou Shengping Imp and Exp Co., Ltd.; Xuzhou Longyuan Wood Industry Co., Ltd.; and Fengxian Weiheng Wood Co., Ltd. (collectively referred to herein as the Zero-Rated respondents).
[3] The subject goods exported by the Zero-Rated respondents represent only a fraction of the volume of decorative and other non-structural plywood imported into Canada by the Chinese exporters investigated by the CBSA. During the dumping period of investigation, the Zero-Rated respondents were responsible for 10.9% of the volume of subject goods imported into Canada whereas China as a whole was responsible for 43.33% of the volume of subject goods, expressed as a percentage of total imports (Statement of Reasons at para. 175).
[4] That is, in the dumping and subsidy investigations before the CBSA, the CBSA identified 765 potential Chinese exporters/producers of the subject goods based on CBSA import documentation and information provided by the applicants (Statement of Reasons at para. 25). As noted above, these Chinese exporters/producers represented approximately 44% of the total import of decorative and other non-structural plywood into Canada, the balance being from other countries. Of all these Chinese exporters, only nine replied to the requests for information (RFI) issued by the CBSA (Statement of Reasons at para. 26). Of those who replied, two companies were found to have dumped using the same methodology adopted by the CBSA to determine whether the Zero-Rated respondents were dumping, that being paragraph 19(b) of the SIMA.
[5] The Canadian International Trade Tribunal (CITT) continued the inquiry under section 42 of the SIMA in respect of all the exporters that were found to be dumping and/or subsidizing. Ultimately, the CITT determined that decorative and other non-structural plywood from all these exporters had not injured and was not threatening to injure the domestic industry. This decision is presently the subject of a separate application for judicial review before this Court.
[6] As will be explained further in these reasons, the impugned decision is, strictly speaking, the Final Determination published on January 21, 2021. For the purpose of this judicial review, I will also refer to the Statement of Reasons, and to the confidential undated internal CBSA memorandum from the Director General, Trade and Anti-dumping Programs Directorate to the Vice-President (the Dumping Memorandum), containing the recommendations for the Final Determination.
[7] The applicants advance two main arguments challenging the Final Determination. The first argument relates to the disclosure and use of the actual calculations of the margins of dumping. In particular, the applicants argue that the CBSA departed from the rule of law because the margins of dumping calculations were not before the President of the CBSA. They also say that the CBSA’s failure to provide these calculations in the Statement of Reasons gives rise to a breach of procedural fairness pursuant to paragraph 96.1(2)(b) of the SIMA or to a reviewable error pursuant to paragraph 96.1(2)(d) of the SIMA. Second, the applicants contend that the CBSA’s termination of the dumping investigation with respect to the Zero-Rated respondents was unreasonable because it resulted from the CBSA’s failure to find that a particular market situation (PMS) existed in respect of the goods of the Zero-Rated respondents or, more broadly, in respect of the goods of the People’s Republic of China.
[8] The Attorney General of Canada, one of the respondents, opposes the application for judicial review. He takes the position that the decision to terminate the dumping investigation with respect to the Zero-Rated respondents and not provide the calculations to the applicants was reasonable, and that there was no breach of procedural fairness. It was also not necessary for the President to review the CBSA’s actual calculations.
[9] The Zero-Rated respondents echo the Attorney General of Canada’s position.
[10] The other respondents, United Steelworkers and Unifor (collectively the Unions), submit that the CBSA unreasonably refused or failed to apply a positive PMS analysis to its methodology of calculating input costs of Chinese producers. The Association des salariés du contre-plaqué de Ste-Thérèse did not make submissions before this Court.
[11] For the reasons that follow, I would dismiss the application for judicial review with costs. The CBSA’s alleged failure to include the calculations in the Statement of Reasons did not give rise to a breach of procedural fairness and did not render the Final Determination unreasonable. In addition, the President of the CBSA’s decision to terminate the dumping investigation with respect to the goods of the Zero-Rated respondents was reasonable.
[12] Before turning to the Final Determination and the Statement of Reasons, it is helpful to review certain provisions of the SIMA, policies and procedures set out in the SIMA Handbook, as well as certain industry practices relevant to the issues raised in this judicial review. While some of these provisions are not at issue here, they are important to underscore in order to appreciate the complexity encountered by the President of the CBSA when faced with determining the normal value of goods and determining whether a PMS exists.
[13] The relevant provisions of the SIMA and of the Special Import Measures Regulations, S.O.R./84-927 (SIMR) are reproduced as Annexes A and B to these reasons.
[14] The President of the CBSA, on his own initiative or upon receipt of a complaint, must initiate an investigation into whether certain goods are being dumped or subsidized into Canada if he is of the opinion that there is evidence that the goods have been dumped or subsidized and that there is a reasonable indication that the dumping or subsidizing has caused injury or retardation or is threatening to cause injury (SIMA, s. 31(1)). In this judicial review, the CBSA’s investigation was initiated following a complaint filed by the applicants.
[15] The terms “dumped”
, “insignificant”
and “margin of dumping”
are all defined in subsection 2(1) of the SIMA as follows:
“Dumped”
means that the normal value of the goods exceeds the export price of the goods.
“Insignificant”
, in relation to a margin of dumping, means a margin of dumping that is less than two per cent (2%) of the export price of the goods.
“Margin of dumping”
means, subject to sections 30.2 and 30.3 of the SIMA, the amount by which the normal value of the goods exceeds the export price of the goods.
[16] Therefore, dumping occurs when the normal value of goods is greater than the export price of the goods. The margin of dumping represents the amount by which the normal value exceeds the export price. It is either zero or the amount determined by subtracting the weighted average export price of the goods from the weighted average normal value of the goods, whichever is greater (SIMA, s. 30.2(1)). To determine if the dumping is insignificant, the CBSA converts the margin of dumping into a percentage of the export price. Dumping becomes significant when the margin of dumping is 2% or more of the export price of the goods.
[17] Determining the normal value of goods is critical because the normal value is the benchmark against which the price of the exported goods is compared to determine if the exported goods are being dumped.
[18] To obtain the information required to establish the normal value of goods during an investigation, the CBSA issues RFIs to the entity in the foreign country that is producing and/or exporting the goods to Canada. The CBSA can also issue RFIs to the country of export and to importers.
[19] The current practice is for RFI responses to be filed electronically with key sales and costing data set out in Microsoft Excel spreadsheets. As part of the RFI, the exporter is required to complete several key appendices, which include: (1) detailed information on every sale of the goods under investigation that were exported to Canada during a specified period (the period of investigation); (2) details on every sale of the goods under investigation in the exporter’s home market during the period of investigation; and (3) details on the production and selling costs of the goods reported in the first two appendices (Applicants’ Public Record, Vol. 2, Tab F, p. 204 at paras. 47-48).
[20] The information obtained from the RFIs is shared with the applicants.
[21] The CBSA can also choose to attend at the offices of the entity in the foreign country that is producing and/or exporting the goods to Canada (SIMA Handbook, s. 4.5.6). As the dumping investigation at issue in this proceeding was conducted during the COVID-19 pandemic, no such attendance occurred. The CBSA relies on the information obtained from responses to the RFIs and the site visits to calculate the margin of dumping (SIMA Handbook, s. 4.4.5.3). The methodology for calculating dumping margins is encompassed within the SIMA and the SIMR.
[22] The SIMA sets out different methodologies to calculate normal values. The starting point is the methodology for calculating normal values outlined at section 15 of the SIMA, which requires examining the price at which the goods are sold in the country of export. The determination of the normal value of goods under section 15 is subject to the rules set out in section 16 of the SIMA.
[23] In the review before us, the President of the CBSA found that he could not determine the normal values in accordance with section 15 as there were an insufficient number of sales of like goods that complied with all the terms and conditions referred to in section 15 and subsection 16(1) so as to permit a proper comparison with the sales of the goods to the importer in Canada.
[24] When, in the opinion of the President, a PMS exists in respect of any goods of a particular exporter or of a particular country “which does not permit a proper comparison with the sale of the goods to the importer in Canada”
, paragraph 16(2)(c) of the SIMA prohibits the CBSA from using domestic sales as the basis for normal values. Depending on the circumstances at play, the CBSA will refer to sections 19 or 29 of the SIMA to calculate normal values: (SIMA, ss. 16(2)(c), 16(2.1); SIMR, ss. 11.2(2)).
[25] The SIMA Handbook explains that the President of the CBSA may form an opinion that a PMS exists if one or more of the following factors have had a significant impact on the domestic sale of like goods in the country of export:
Ÿ Government regulations such as price floors, price ceilings, production quotas, import and export controls;
Ÿ Taxation policies;
Ÿ Government support programs (financial or otherwise);
Ÿ The presence and activities of state-owned or state-controlled enterprises in the domestic market as suppliers or purchasers of the like goods (also including other state-owned or state-controlled enterprises such as financial institutions);
Ÿ The acquisition of production inputs or processing services that do not reflect market-based costs because they are acquired from suppliers which are state-owned or state-controlled or are affected by government influence or control;
Ÿ Significant volatility in economic conditions in the home market of the exporter;
Ÿ Evidence of distorted input costs; and
Ÿ Any other circumstances which may or may not be the result of government intervention, in which normal market conditions or patterns of supply and demand do not prevail.
(SIMA Handbook, s. 5.2.2.9)
[26] Section 19 offers the President of the CBSA the option of two methodologies, which can be used when the CBSA cannot calculate the margin of dumping for an exporter pursuant to section 15 of the SIMA. Under paragraph 19(a), the price at which the exporter sold like goods to customers in a country other than Canada is used to calculate the normal value. Under paragraph 19(b), the normal value is constructed by aggregating the cost of production of the goods, a reasonable amount for administrative, selling and all other costs, and a reasonable amount for profits. Further details for calculating these amounts are set out in sections 11, 11.2, 12, 13 and 13.1 of the SIMR.
[27] The CBSA calculates the margin of dumping on the basis of the information it receives from the exporters through the RFIs, from the applicants and, if it deems necessary, from its own investigation.
[28] Where a PMS is found to exist, such that the acquisition cost of a particular input does not reasonably reflect the actual cost of that input, subsection 11.2(2) of the SIMR sets out alternative benchmarks for the calculation of cost inputs to be used in the cost production. Under subsection 11.2(2), the acquisition cost of the input used in the production of goods shall be considered to be one of five possible amounts that reasonably reflects the actual cost of the input so as to permit a proper comparison.
[29] A finding that a PMS exists has broad implications on the dumping investigation. Such a finding may change the methodology with which the cost inputs of the goods are determined, which in turn impacts the calculation of the normal value of the goods, which then impacts the calculation of the margin of dumping. Since a margin of dumping of 2% or more of the export cost is considered not to be insignificant, small changes to the cost inputs can easily increase the margin of dumping above this threshold.
[30] In the review before us, the President of the CBSA found that a PMS did not exist, and determined the normal values of the goods for the Zero-Rated respondents who provided satisfactory data about the costs of production pursuant to paragraph 19(b) of the SIMA.
[31] The third methodology used to calculate normal values is set out at section 20 of the SIMA and is specific to non-market economies. It is not relevant in this proceeding.
[32] The final methodology used to calculate normal values is applicable where, in the opinion of the President of the CBSA, the information is unavailable or insufficient to allow for a determination under one of the other methodologies. Normal values are then determined by ministerial specification, pursuant to subsection 29(1) of the SIMA. This methodology aims to limit the advantage an exporter can get by not cooperating with the investigation. It is punitive in nature.
[33] In the review before us, the President of the CBSA determined the normal values of goods pursuant to subsection 29(1) of the SIMA with respect to all goods exported where no information was supplied in respect of the cost of production.
[34] Within 90 days of making a preliminary determination on the dumping investigation, the President of the CBSA must make a final determination pursuant to section 41 of the SIMA. In particular, the President of the CBSA must either:
Terminate its dumping investigation against any exporter that is not dumping or whose margin of dumping is “insignificant”
(SIMA, s. 41(1)(a)); or
Make a final determination of dumping against all other exporters and specify the margin of dumping (SIMA, s. 41(1)(b)).
[35] In the present case, the President of the CBSA terminated the dumping investigation with respect to the Zero-Rated respondents pursuant to paragraph 41(1)(a) of the SIMA.
[36] As is evident from this brief review of the statutory framework and policies, the determination of the normal values used to calculate the margin of dumping in order to arrive at a decision under section 41 of the SIMA is not an easy task. It obliges the CBSA to sift through voluminous information and undertake a complex selection and adjustment of information to use as cost inputs in order to complete the required mathematical exercise. All of this must be accomplished within a short timeframe. This determination is sensitive to the inputs; the export price being merely 2% lower than the normal value would constitute dumping.
III. The Final Determination and the Statement of Reasons
[37] The applicants seek judicial review on grounds pertaining to the President of the CBSA’s approach to determining whether a PMS existed in the context of its dumping investigations. Therefore, while the President of the CBSA also conducted parallel subsidy investigations, these reasons will focus on the dumping investigations and, in particular, on some of the President of the CBSA’s key findings regarding the existence of a PMS.
[38] In the Statement of Reasons, the President of the CBSA stated that, based on the available evidence, he was satisfied that decorative plywood originating in or exported from the Government of China (China) by the Zero-Rated respondents had not been dumped. As a result, on January 21, 2021, the President of the CBSA terminated the dumping investigations pursuant to paragraph 41(1)(a) of the SIMA in respect of those goods.
[39] As mentioned, during the same dumping investigations, when examining the information from exporters other than the Zero-Rated respondents, the President of the CBSA did find significant margins of dumping for two exporters who had provided responses to RFIs: Linyi Jiahe Wood Industry Co., Ltd. (16.03%, expressed as a percentage of the total export price) and the Dehua Group (33.70%, expressed as a percentage of the total export price) (Statement of Reasons at paras. 130, 167). In addition, for all other exporters that did not provide a response to the RFIs or did not offer sufficient and reliable information, the President of the CBSA determined their normal values and export prices pursuant to a ministerial specification under subsection 29(1) of the SIMA, based on a comparative analysis of available data including information submitted by the cooperative exporters (Statement of Reasons at paras. 168-170). The margin of dumping established for the other exporters was 181.81%, expressed as a percentage of the total export price (Statement of Reasons at para. 174).
[40] The Statement of Reasons details all of the information the CBSA requested from exporters and China as part of its dumping investigations for the period of investigation of April 1, 2019 to March 31, 2020. Questions concerning the existence of a PMS were added to the RFIs addressed to exporters, and information related to the decorative plywood market was requested from China. After reviewing the RFI responses, the CBSA sent supplemental RFIs and deficiency letters to several responding parties to clarify information provided and to request additional information, where necessary (Statement of Reasons at paras. 72–76).
[41] As part of the final phase of the investigations, case briefs and reply submissions were provided by counsel representing the applicants and counsel for the exporters and China (Statement of Reasons at para. 78).
[42] The Statement of Reasons includes three appendices. Appendix 1 provides a summary of the CBSA’s findings regarding the margin of dumping and amounts of subsidy. The parties’ submissions to the CBSA are summarized in Appendix 2. Appendix 3 provides a detailed description of the subsidy programs and incentives from which the responding parties benefited.
[43] With respect to all Zero-Rated respondents, the President of the CBSA found he could not determine normal values in accordance with section 15 of the SIMA as there were not such a number of sales of like goods that complied with sections 15 and subsection 16(1) of the SIMA as to permit a proper comparison with the sales of the goods to the importer in Canada. With respect to Shandong Good Wood Imp. And Exp. Co., Ltd., the CBSA did not have cost of production information for unrelated producers that produced a portion of the subject goods; accordingly, the President of the CBSA could not determine normal values in accordance with section 15 of the SIMA. The President of the CBSA determined the normal values in accordance with paragraph 19(b) of the SIMA with respect to all Zero-Rated respondents, save for the portion of the goods exported (but supplied by third parties) for which the President of the CBSA determined the normal values pursuant to a ministerial specification under subsection 29(1) of the SIMA (Statement of Reasons at paras. 106, 113, 120, 134, 141, 148, 150, 156, 168).
[44] The Statement of Reasons identifies the complaints made by the applicants and their allegation that a PMS existed in the Chinese decorative plywood market due to the combined effect of a multitude of factors. According to the applicants (then the complainants), as a result of the PMS existing in China, the Chinese producers’ and exporters’ cost of production data did not reasonably reflect the cost of production and therefore should not be used (Statement of Reasons at paras. 92-93).
[45] The Statement of Reasons outlines the specific allegations put forward by the applicants. The applicants alleged that the acquisition costs of inputs were distorted by illegal supply chains, as well as significant state control over domestic timber supplies, and that the manufacturing costs for the production of decorative plywood were distorted because certification standards were routinely circumvented. They also alleged that China heavily regulated the industry, affecting pricing, production, imports and exports, and that China heavily subsidized its decorative plywood industry (Statement of Reasons at para. 97).
[46] The Statement of Reasons explains that, in the course of the dumping investigations, the domestic market of decorative plywood in China was analyzed. Some evidence of the existence of government regulations, state-owned enterprises and subsidization in the market was found, as alleged by the applicants. However, these were not widespread and there was insufficient indication that these factors were contributing to the existence of a PMS (Statement of Reasons at para. 98).
[47] The Statement of Reasons addresses how worldwide illegal logging impacted the decorative plywood industry in China and whether worldwide illegal logging led to distorted input costs in China. Information provided by the applicants included documents showing that China was an importer of illegally sourced timber; both the United States and the European Union have found that products imported from China have contained illegally sourced timber. Hardwood, the primary input in decorative plywood, was more likely to be illegally harvested than softwood, and illegal logging depresses all timber prices, including those harvested legally (Statement of Reasons at para. 99).
[48] The Statement of Reasons describes that published benchmark prices for logs were obtained from four different sources in Canada and the United States. However, the President of the CBSA recognized that Chinese and North American timber markets were different; benchmark prices in one may not have been reasonable surrogates for prices in another. The President of the CBSA reasoned this was because there was a difference in species, seasonality and location of forests between these markets. There was no information on the record detailing how to adjust the data to allow a comparison between Chinese and North American prices. Without such a comparison, and without sufficient qualitative evidence, the President of the CBSA found it was not clear that log prices in China were distorted (Statement of Reasons at para. 100).
[49] In conclusion, based on the information on the administrative record, the President of the CBSA did not form the opinion that a PMS existed in the decorative plywood market in China that affected the domestic sales such that they did not permit a proper comparison with the sales to the importers in Canada (Statement of Reasons at para. 101).
[50] I would identify the issues in this judicial review as follows:
Does the failure on the part of the President of the CBSA to include the calculations in the Statement of Reasons give rise to a breach of procedural fairness?
Does the failure on the part of the CBSA to provide the calculations to the President of the CBSA or to include the calculations in the Statement of Reasons render the Final Determination unreasonable?
Does the failure on the part of the President of the CBSA to find that a particular market situation existed in the decorative plywood market in China during the period of investigation render the Final Determination unreasonable?
[51] This application for judicial review is made under paragraph 96.1(1)(a) of the SIMA. The only powers granted to this Court are those found in subsection 96.1(6) of the SIMA; that is, this Court can dismiss the application, set aside the decision, or set aside the decision and refer the matter back to the President of the CBSA (see also JFE Steel Corporation v. Evraz Inc. NA Canada, 2018 FCA 111, 294 A.C.W.S. (3d) 78 at paras. 46, 52–53, leave to appeal to SCC refused, 38276 (7 March 2019) [JFE Steel]).
[52] In order to be successful in this application, the applicants must demonstrate that the margin of dumping for the Zero-Rated respondents is not insignificant, that is, that dumping has occurred. There is no basis to set aside a decision of the President of the CBSA if the result would be the same (see Angang Steel Company Limited v. Canada (Border Services Agency), 2020 FCA 67, [2020] 3 F.C.R. 179 at paras. 14, 49 [Angang Steel]; Seah Steel Corporation v. Evraz Inc. NA Canada, 2017 FCA 172, 283 A.C.W.S. (3d) 542 at para. 34 [Seah Steel]).
[53] The JFE Steel, Seah Steel and Angang Steel decisions of this Court pertained to final determinations where the CBSA had concluded that goods had been dumped or the margin of dumping had been significant. Here, the President of the CBSA terminated the dumping investigation because he found that goods were not dumped or the margin of dumping was insignificant. In my view, the same principle applies here. In order for this Court to have jurisdiction in this judicial review, the applicants must demonstrate that the Final Determination would change such that it must be set aside.
[54] The parties agree that the standard of review of the Final Determination is reasonableness. Therefore, the principles enunciated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov] apply.
[55] The applicants must demonstrate that the Final Determination regarding the termination of the dumping investigation was unreasonable. In this case, the applicants argue the Final Determination is unreasonable because it is founded on an erroneous determination that a PMS did not exist in China, and therefore the normal values used in the margin of dumping calculations flow from the wrong methodology. I agree that if the applicants can demonstrate that the President of the CBSA erred in determining that a PMS did not exist in China, this could affect the methodology used in the margins of dumping calculations and significantly change the result of the Final Determination. At the hearing before this Court, the Attorney General of Canada and the Zero-Rated respondents agreed that if the President of the CBSA erred in finding there was no PMS, the applicants would have satisfied their burden.
[56] The applicants also argue that the failure to include the margins of dumping calculations in the Statement of Reasons renders it unreasonable for insufficiency of reasons, or constitutes a breach of procedural fairness.
[57] Regarding the alleged breach of procedural fairness, in the context of a judicial review, no standard of review is applied but the reviewing exercise is “best reflected on a correctness standard”
(Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, 291 A.C.W.S. (3d) 8 at para. 54 [CPR I], cited in Canadian Pacific Railway Company v. Canada (Transportation Agency), 2021 FCA 69, 332 A.C.W.S. (3d) 188 at para. 46). “[T]he ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond”
(CPR I at para. 56).
[58] Before turning to the analysis of the issues, it is important to clarify what this Court may consider when reviewing the reasoning for the Final Determination which is the decision that is the subject of this application. The applicants argue that the reasons for the decision are only those included the Statement of Reasons. As such, they say the decision is unreasonable because the Statement of Reasons is “merely a narrative or summary of the CBSA proceedings”
(Applicants’ Public Memorandum of Fact and Law at para. 54). They also argue that, absent the calculations of the margins of dumping, such reasons are inadequate as they fail to meet the substantive, procedural, accountability and intelligibility purposes described in Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158, [2011] 4 F.C.R. 425 at paragraph 16. According to the applicants, absent these calculations, the decision is neither transparent nor reviewable, and the underlying reasoning process remains unknown.
[59] In my view, the Final Determination must be read with the Statement of Reasons and the confidential Dumping Memorandum.
[60] The Final Determination indicates that “[a]dditional information about these investigations is contained in a Statement of Reasons”
, therefore explicitly referencing the Statement of Reasons. In turn, the Statement of Reasons effectively adopts the recommendations contained in the Dumping Memorandum, analogously to the circumstance in Canada (Attorney General) v. Sketchley, 2005 FCA 404, [2006] 3 F.C.R. 392 at paragraph 37 (see also Rosianu v. Western Logistics Inc., 2021 FCA 241 at paras. 67–74; Zulkoskey v. Canada (Employment and Social Development), 2016 FCA 268, 273 A.C.W.S. (3d) 323 at para. 16; Canada (Public Safety and Emergency Preparedness) v. Khalil, 2014 FCA 213, 245 A.C.W.S. (3d) 397 at para. 29).
[61] The reasoning behind the Final Determination is extensively documented in the Statement of Reasons and the Dumping Memorandum. Moreover, the Statement of Reasons and the Dumping Memorandum are authored by the same person, the Director General, Trade and Anti-dumping Programs Directorate.
[62] In addition, Vavilov has instructed us to read the Final Determination in light of the record and with due sensitivity to the CBSA setting (Vavilov at paras. 91-98). Here, the record contains a confidential undated internal CBSA memorandum from a Senior Program Officer to a Manager providing an analysis of the PMS in China for final determination of decorative plywood (the PMS Memorandum). Touching on what is at issue before us, the PMS Memorandum outlines each party’s arguments regarding the PMS determination, and explains why the CBSA agrees or disagrees with each argument. In particular, the conclusions in the Statement of Reasons are consistent with the analysis set out in the PMS Memorandum.
[63] The calculations referred to throughout these next sections include all calculation spreadsheets and worksheets created by officers of the CBSA under the SIMA and the SIMR, such as normal value and export price calculations, margin of dumping calculations and subsidy calculations.
[64] As described in paragraph 19 above, the RFI responses for each exporter and the country of export are generally filed electronically with key sales and costing data set out in Microsoft Excel spreadsheets. There is no doubt that the calculation spreadsheets and worksheets for each exporter and the country under investigation are multifaceted, complicated, cumbersome and voluminous.
[65] In the present application for judicial review, the calculations, preliminary or final, were not part of the record, were not before the decision maker and were not provided to the applicants. However, exporter-specific preliminary calculations were provided to some individual exporters, at their request, after the preliminary determination was made. The SIMA Handbook recognizes the practice of holding disclosure meetings with individual exporters and foreign governments after the preliminary determination is made to review the calculations used to estimate the margins of dumping and amounts of subsidy (SIMA Handbook, s. 4.7.9).
[66] During their oral submissions before us, the applicants’ main argument surrounding the calculations was that it was procedurally unfair for them not to have access to these calculations, whereas individual exporters can review calculations specific to their business after the preliminary determination is made.
[67] I do not agree.
[68] It is understood that the applicants are owed a duty of fairness both before the CBSA (as an administrative decision maker) and before this Court.
[69] As mentioned earlier, there is no issue here regarding the fact that, throughout the administrative process, the applicants had access to the information provided by the exporters to the CBSA.
[70] In Uniboard Surfaces Inc. v. Kronotex Fussboden GmbH, 2006 FCA 398, [2007] 4 F.C.R. 101 [Uniboard], this Court considered the duty of procedural fairness in the SIMA context. In certain cases, dumping and subsidy investigations are a “race against the clock”
because of the legislative limitation of time allotted for the investigation. As a result of the magnitude of the investigation (in that case, 360,000 pages, six countries, three continents, and five or six different languages), the duty of procedural fairness was set at a low threshold (Uniboard at para. 45).
[71] This Court’s emphasis on the impact of strict statutory deadlines (Uniboard at para. 45) is not relevant to the present application because the applicants here requested the calculations from the CBSA at the close of the administrative proceeding, after the President of the CBSA had terminated the investigations and the Final Determination was issued. In any event, the duty of procedural fairness owed to the applicants is set at a low threshold, given the access they have to the exporters’ information and the strict statutory timelines imposed on the President of the CBSA to conclude the dumping investigations.
[72] In this case, even if the applicants had obtained access to the calculations after the Final Determination was issued, they would not be allowed to rely on the calculations in support of an application for judicial review. In the context of a judicial review, this Court can only look at the evidence that was before the decision maker (Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297 at paras. 19–20). The calculations were not part of the record and were not before the President of the CBSA.
[73] In such circumstances, I see no breach of procedural fairness.
[74] At the hearing before us, the applicants conceded that the calculations had been carried out by the CBSA. However, the applicants maintain that the calculations themselves should form part of the record and be before the decision maker. The applicants submit that the SIMA requires the CBSA to carry out the calculations using specified methodologies, and as a result, the decision maker not having access to these calculations is a departure from the rule of law. The applicants also say that, by not including the calculations in the Statement of Reasons, the President of the CBSA failed to provide adequate reasons.
[75] I do not agree.
[76] It is trite to say that administrative decision makers must execute their powers and authority according to their governing statute and in accordance with constitutional principles. A failure to do so can result in a challenge to the court by affected parties. The rule of law also protects against arbitrary decisions and sets limits to discretionary power.
[77] In most administrative tribunals, the calculations or details of an investigation, such as notes of witness interviews, telephone conversations, or calculations are not before the decision maker. What is before the decision maker is usually a report summarizing the factual findings and the methodology used to investigate or determine an issue and reach a conclusion.
[78] This is exactly what was done here. As submitted by the Attorney General of Canada, the decision maker had before it the Dumping Memorandum which summarized the investigation carried out by the CBSA, set out the methodologies used to calculate the margins of dumping and why these were adopted and identified the margins of dumping using those methodologies. As mentioned, in this particular case the same person authored the Dumping Memorandum and the Statement of Reasons. In addition, the PMS Memorandum was part of the evidentiary record.
[79] In such circumstances, it is not unreasonable for the President of the CBSA to rely on the memoranda prepared by officers within the CBSA, without the need to see the detailed calculation spreadsheets and worksheets that led to these memoranda, given the volume of information and the complexity of the calculations generated for each exporter. This is even more reasonable given the statutory constraints and time limits imposed on the President.
[80] Nothing in the SIMA requires the President of the CBSA to have the calculations before him when making the preliminary and final determinations. However, nothing would prevent the President from requesting access to such calculations, should it be deemed necessary. If the calculations were provided to the President, then the calculations would form part of the record and, thus, would become accessible to the applicants, subject to any confidentiality agreements or orders.
[81] In the present application for judicial review, I do not accept that the President of the CBSA’s discretion was exercised in an arbitrary way, so as to violate the rule of law, because he did not have the calculations before him. It was reasonable for him to proceed as he did.
[82] I also cannot accept the applicants’ argument that, by not providing the detailed calculations as part of the Statement of Reasons, the President of the CBSA failed to provide adequate and intelligible reasons.
[83] Dumping and subsidy investigations conducted by the CBSA entail multiple spreadsheets with extensive data. Their inclusion in the decision would invite a “line-by-line treasure hunt for error”
(Vavilov at para. 102) and invite a reweighing of the evidence. In a judicial review, the court’s role is not to insert itself in the minutiae of the work carried out by investigators but rather to review the reasonableness of the process and the decision itself.
[84] I am satisfied that the Final Determination is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and the law that constrain the President of the CBSA (Vavilov at para. 85). It cannot be said that the absence of the calculations in the Statement of Reasons renders the decision inadequate or unintelligible.
[85] In 2018, the PMS provisions of the SIMA came into force. The wording found at paragraph 16(2)(c) of the SIMA is based on article 2.2 of the World Trade Organization’s Anti-Dumping Agreement, to which Canada is a party.
[86] As discussed previously, while the SIMA and the SIMR do not provide a definition of what is a PMS, the SIMA Handbook provides a list of factors to consider when determining whether a PMS exists. According to the applicants, the factors of “government support programs (financial or otherwise)”
and the “evidence of distorted input costs”
, were not properly assessed by the CBSA when it analyzed whether a PMS existed.
[87] The applicants argue that “[t]he SIMA provides that a PMS may exist with respect to a specific exporter or an entire country. The SIMR provides that a PMS may exist where the acquisition cost of an input used in the production of a Subject Good ‘does not reasonably reflect the actual cost of that input.’”
In addition, the applicants submit that “the purpose of PMS is to ensure that distorted input prices (such as black market prices) are not used as a basis for calculating normal values”
(Applicants’ Public Memorandum of Fact and Law at para.65).
[88] The applicants submit various interpretative aids in an attempt to show that the CBSA’s interpretation of paragraph 16(2)(c) of the SIMA is unreasonable, including a legislative summary, an Explanatory Note, the Interpretation Act, R.S.C. 1985, c. I-21, and the WTO Anti-Dumping Agreement. The applicants submit that the interpretative aids demonstrate that the PMS was added to the SIMA to “better account for market and price distortions”
and “provide Canadian producers with a more rigorous response to unfair trade and better align Canada’s trade remedy system with those of our major trading partners.”
The applicants also submit that the objective of the PMS provisions is “remedial”
(Applicants’ Public Memorandum of Fact and Law at paras. 64–65).
[89] There is no Canadian jurisprudence on the interpretation or definition of a PMS. The parties identified one WTO Report of the Panel that commented on the issue of a PMS: Australia – Anti-Dumping Measures on A4 Copy Paper (WT/DS529/R) [WTO-Australia]. Some of the passages from WTO-Australia are reproduced below.
[90] In WTO-Australia, at paragraph 7.21, the Panel examined the ordinary sense of the terms “particular market situation”
and concluded:
We begin by observing that a “situation” is a “state of affairs” or a “set of circumstances”. This term is qualified by the terms “particular” and “market” functioning as adjectives in Article 2.2 of the Anti-Dumping Agreement. The situation in question must arise in, or relate to the “market”, and the market situation must be a “particular” one. It follows from the qualifier “particular” that the market situation must be “distinct, individual, single, specific”. Thus, a fact-specific and case-by-case analysis of the particular market situation is necessarily called for. In addition, we agree with the observation of the GATT panel in EEC – Cotton Yarn that a “particular market situation” is only relevant insofar as it has the effect of rendering domestic sales unfit to permit a proper comparison. The phrase “particular market situation” does not lend itself to a definition that foresees all the varied situations that an investigating authority may encounter that would fail to permit a “proper comparison”. In our view, the drafters’ choice to use such a phrase should be treated as a deliberate one. Consequently, while the expression “particular market situation” is constrained by the qualifiers “particular” and “market”, it nevertheless cannot be interpreted in a way that comprehensively identifies the circumstances or affairs constituting the situation that an investigating authority may have to consider.
[footnotes omitted, emphasis added]
[91] At paragraph 7.22, the Panel added: “In our view, the market situation must be distinct, individual, single, specific but that does not necessarily make it unusual or out of the ordinary — i.e. exceptional.”
[92] It is apparent from these passages that the determination of whether a PMS exists is highly contextual.
[93] Focusing now on the applicants’ submissions, they advance four main reasons why it was unreasonable for the President of the CBSA to decide that a PMS did not exist in the decorative plywood industry in China: (1) the CBSA limited “government support programs”
to “countervailable subsidies”
; (2) the CBSA ignored the non-cooperating exporters’ amounts of subsidy when assessing the “government support programs”
; (3) the CBSA erroneously found the log prices in China were not distorted; and (4) the CBSA did not examine the cumulative effect of the factors. I will deal with each argument in turn.
[94] As noted earlier, one of the factors that may contribute to a finding that a PMS exists is the significant impact of “government support programs (financial or otherwise)”
on the domestic sales of like goods in the country of export (SIMA Handbook, s. 5.2.2.9).
[95] The applicants submit that the CBSA improperly limited the “government support programs”
factor to “countervailable subsidies”
. In other words, when considering whether a PMS existed while assessing the government support programs, the CBSA should not have limited its analysis to the countervailable subsidies. In so doing, according to the applicants, the CBSA unreasonably limited the remedial effect of the PMS provisions.
[96] I do not accept the applicants’ arguments. I find it was reasonable for the President of the CBSA, in the context of a determination of whether a PMS might exist, to have limited his analysis of the government support programs to countervailable subsidies. His analysis did not limit the remedial effect of the PMS provisions.
[97] This Court’s role on judicial review is not to compare our own interpretation of legislation with that of the administrative decision maker (Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156, 337 A.C.W.S. (3d) 380 at para. 19, leave to appeal to SCC granted, 39855 (3 March 2022)). This Court must only examine whether the CBSA’s interpretation of paragraph 16(2)(c) of the SIMA is reasonable.
[98] First, it should be noted that the terms “government support programs”
come from the SIMA Handbook, a policy document, and not from the legislation. The SIMA and the SIMR do not provide a list of factors to be assessed when determining whether a PMS exists; only the SIMA Handbook provides such a list. However, the SIMA does prescribe which types of subsidies must be assessed in the context of subsidy investigations. It was reasonable for the CBSA to interpret the terms “government support programs”
in a manner that is consistent with the way subsidies are treated under the SIMA.
[99] Next, contrary to the applicants’ assertions, the President of the CBSA did consider all of the information contained in the record on government support programs. A review of Appendix 3 to the Statement of Reasons provides detailed information of all such government support programs provided to the CBSA during their subsidy investigation.
[100] It was reasonable for the President of the CBSA to conclude that, while plywood producers in China received subsidies, there was no evidence they had a significant impact on the domestic sales of decorative plywood in China (Statement of Reasons at para. 98; Applicants’ Confidential Record, Vol. 2, Tab 33, PMS Memorandum at p. 500).
[101] Further, the consideration of government support programs in this case involved countervailable subsidies because these were the ones targeted by the applicants in their complaint (Applicants’ Confidential Record, Vol. 1, Tab F-5, Confidential Complaint at pp. 94, 96; Applicants’ Public Record, Vol. 7, Tab F-25 at pp. 3334–35; Applicants’ Confidential Record, Vol. 3, Tab I-3, Confidential Case Brief at pp. 665–86). However, the President of the CBSA did not limit his consideration to only the programs identified by the applicants or programs specifically targeting decorative plywood. He considered a broad range of subsidy programs.
[102] In addition to the information provided by the applicants and the research it conducted, the CBSA sought information from exporters and from China on government support programs via the RFIs. It relied on its parallel subsidy investigation in which it found that the majority of exporters did not have a significant amount of subsidy. In the parallel subsidy investigation, the CBSA considered only countervailable subsidies, which are a subset of all possible subsidies and government support programs, as it was required to do pursuant to subsection 30.4(3) of the SIMA.
[103] Subsection 30.4(3) of the SIMA prohibits the CBSA from considering non-actionable subsidies when assessing the amount of subsidy. It reads as follows:
Exception
|
Exception
|
30.4(3) An amount of subsidy shall not include any amount that is attributable to a non-actionable subsidy.
|
30.4(3) Un montant de subvention ne peut comprendre un montant attribuable à une subvention ne donnant pas lieu à une action.
|
[104] Although subsection 30.4(3) of the SIMA is not directly applicable to the PMS determination (the PMS determination does not entail determining an amount of subsidy, but whether a “particular market situation exists which does not permit a proper comparison with the sale of goods to the importer in Canada”
), it was reasonable for the President of the CBSA to follow the same methodology and restrictions when assessing government support programs.
[105] In so doing, even though the vast majority of Chinese plywood producers were assigned an amount of subsidy by ministerial specification, it was reasonable for the President of the CBSA to conclude that the sole existence of those subsidies was insufficient for him to form the opinion that a PMS existed.
[106] In conclusion, the CBSA’s consideration of the government support programs was reasonable. It was not unreasonable for the President of the CBSA, when considering government support programs in the context of whether a PMS existed, to only consider those he had already assessed under the subsidy investigation. Contrary to what the applicants submit, this does not reduce the concept of PMS to something that was already provided for in the SIMA prior to the addition of the PMS provisions.
[107] Turning to their second argument, the applicants submit that the CBSA improperly ignored the non-cooperating exporters’ amounts of subsidy when it assessed whether a PMS existed in China.
[108] The amounts of subsidy for the non-cooperating exporters were based on a ministerial specification pursuant to subsection 30.4(2) of the SIMA because those exporters either did not provide a response to the CBSA’s subsidy RFI or did not furnish sufficient information. These are artificial amounts that are designed to limit the advantage an exporter may gain by not providing the requested information and do not reflect the actual amounts of subsidies received.
[109] In such circumstances, when the amounts of subsidy do not reflect the amounts of subsidy actually received, it was reasonable for the CBSA not to take into consideration the amounts of subsidy specified for the non-cooperating exporters when assessing whether a PMS existed in China.
[110] The third argument advanced by the applicants is that the CBSA erred when it concluded the price of logs in China was not distorted.
[111] The applicants note that the CBSA acknowledged the presence of illegally sourced timber in China, but “[t]he Applicants submit that the CBSA’s conclusion that illegal logging in China did not have a price distortive effect, and therefore did not contribute to a PMS, is unfounded and ignores the evidence presented by the Applicants”
(Applicants’ Public Memorandum of Fact and Law at para. 88). The applicants go further and argue that if the CBSA was not satisfied with the evidence, it should have taken the “minor”
investigative step and asked for more information from the applicants in order to make adjustments to the applicants’ data.
[112] Building on this argument, the applicants submit that “[t]he CBSA did not request any information on how to adjust the data to take into account differences between Chinese and non-Chinese published input prices”
and “[i]t is unreasonable for the CBSA to refrain from requesting that responding exporters provide information on adjustments when it sought no such information from the Applicants, but still reject the Log Benchmarks, in part, because of a lack of information on adjustments”
(Applicants’ Public Memorandum of Fact and Law at para. 112).
[113] Although the applicants raise various points in their submissions in this regard, the essence of their submissions may be summarized into two questions:
1)Was it reasonable for the President of the CBSA to find that there was insufficient qualitative evidence to conclude that the price of logs in China was distorted based on the evidence that was before the CBSA? and
2)Was it reasonable for the President of the CBSA not to request additional information from the applicants, from exporters or from third countries when assessing whether the price of logs in China was distorted?
[114] On the first question, the applicants are asking this Court to reweigh the evidence that was before the President of the CBSA and to arrive at a different conclusion from his. That is not our role on judicial review. When the President of the CBSA formed his opinion that a PMS did not exist, he assessed and evaluated all the available evidence on the record. This Court must refrain from reweighing and reassessing this evidence. Further, the President of the CBSA has a special expertise and, in light of this, we must show deference. Absent exceptional circumstances, this Court should not interfere with the decision maker’s factual findings (Vavilov at para. 125). There are no such exceptional circumstances here.
[115] On the second question regarding whether the President of the CBSA was required to seek further information when assessing whether a PMS existed, the statutory framework of the SIMA and the SIMR leaves room for flexibility in such investigations. The SIMA does not require the President to request any specific information and the SIMR limits the complainant’s obligations to providing a complaint with “such details as are reasonably available”
. In Seah Steel, this Court explained that, due to the strict statutory deadlines, “the President must be given considerable discretion to determine how best to obtain the necessary information within these relatively short time limits”
(Seah Steel at para. 7). This applies here.
[116] Subsection 41(1) of the SIMA provides that the final determination of the President of the CBSA shall be made “on the available evidence”
. It does not require the President to have “all”
the information or “the best”
information. This makes sense, because the President must render his final determination within very strict timelines, that is, 90 days from the issuance of the preliminary determination on dumping.
[117] Further, the SIMA does not require the President of the CBSA to request additional information from the applicants. The provisions outlining the President’s powers to require that evidence be provided (subsection 78(1) of the SIMA) or to gather information (section 96 of the SIMA) are permissive, not prescriptive.
[118] Turning to the SIMA Handbook, as previously mentioned, it is a policy document and does not bind the President of the CBSA, although there is no doubt that it is a useful guide for the CBSA and all parties involved when faced with such complex investigations. Nothing in the SIMA Handbook imposes specific positive obligations on the President to gather information and verify submissions. The SIMA Handbook requires officers to endeavour to gather the missing data and verify submissions, that is all (SIMA Handbook, ss. 4.5.4, 4.5.6, 4.5.7, 4.5.8).
[119] According to the SIMA Handbook, if a complaint is received in which the complainant alleges a PMS exists, it is for the complainant to outline the facts on which this allegation is made and provide such information that is available to support these facts. The information must be relevant and reliable in order to be considered “properly documented”
for the purposes of section 32 of the SIMA. If the CBSA becomes aware that a PMS may exist, for example, as a result of responses to the initial RFIs, the officer may request further information and send out supplemental RFIs (SIMA Handbook, s. 5.2.2.9).
[120] That is not to say that the President of the CBSA could not have requested further information. It is, of course, within his discretion to do so. The applicants provide two cases where the CBSA conducted its own research for benchmarks: Certain Corrosion-Resistant Steel Sheet from China, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei), India and South Korea, Statement of Reasons for Final Determination (February 6, 2019), COR 2018 IN at paragraphs 124–26 and Cold-Rolled Steel Sheet from China, South Korea and Vietnam, Statement of Reasons for Final Determination (November 15, 2018), CRS 2018 IN at paragraph 130 (Applicants’ Public Memorandum of Fact and Law at para. 105).
[121] These cases pertained to the determination of normal values, not the existence of a PMS. There is an inherent difference between the CBSA seeking information for determining the normal value of the goods, which the CBSA must do to perform its duties under the SIMA (or rely on subsection 29(1) for a ministerial specification) and the discretionary determination of whether a PMS exists. In addition, these CBSA decisions do not create a positive obligation on the President of the CBSA to seek further information. Just because the President sought information in the particular context of previous investigations does not mean he is required to do so for all investigations.
[122] As a result of the statutory framework and the considerable discretion the President of the CBSA enjoys, I conclude that it was reasonable for him to consider the evidence available on the record and not request further information from the applicants, the exporters or third countries. I cannot accept the applicants’ assertions that the President should have required further information to adjust and verify the complainant’s information.
[123] The same reasoning applies to the applicants’ assertion that the CBSA should have, of its own initiative, performed an analysis comparing the material cost per model produced in the United States and produced in China with the product distinctions that were missing from the analysis submitted by the applicants. The applicants characterize this as a “minor additional investigative step”
(Applicants’ Confidential Memorandum of Fact and Law at para. 107). However, it is unclear whether the CBSA had all the information it needed to perform this additional step.
[124] In my view, based on the CBSA’s assessment of the evidence that was available on the record, it was reasonable for the President of the CBSA to refrain from concluding that the price of logs in China was actually distorted. As stated previously, it is not for this Court to reweigh the CBSA’s assessment of the evidence. The PMS Memorandum explains that the CBSA rejected the applicants’ evidence on the comparison between the Chinese costs and a complainant’s costs for several reasons. It lacked an adjustment for the difference between the United States and Chinese markets. It was based on unverified information, and one analysis did not take into consideration important product distinctions like thickness (PMS Memorandum at p. 513).
[125] The applicants also note that there is an incoherence between the Statement of Reasons and the PMS Memorandum. In the Statement of Reasons, the President of the CBSA indicates that the Chinese and North American timber markets have “differences in species […] of forests”
(Statement of Reasons at para. 100). In the PMS Memorandum, the CBSA states that the United States and China have similar species of trees (PMS Memorandum at p. 513).
[126] These findings may seem incompatible, but this incompatibility is without consequence. In the PMS Memorandum, the CBSA uses the similarity of species of trees to reject the exporters’ argument that comparison between the United States and China is inappropriate because of their differences. The CBSA then concludes that the comparison between the United States and China is inappropriate for other reasons. In the Statement of Reasons, the President of the CBSA rejects the comparison of log prices between the North American and Chinese markets because of a lack of information on how to adjust for the differences between these locations, including the differences in tree species.
[127] These two conclusions (rejecting the comparison between the United States/North America and China) are consistent, even if one element of their justification is not. To conclude the Final Determination is unreasonable for this reason would be tantamount to embarking on a “line-by-line treasure hunt for error”
(Vavilov at para. 102).
[128] Turning now to their final submissions on the existence of a PMS, the applicants assert that the President of the CBSA did not analyze the cumulative effect of the factors when assessing whether a PMS existed.
[129] In particular, the applicants argue that the CBSA’s approach was to review the factors that may give rise to a PMS separately, “rather than considering the cumulative impact of market distortions.”
The appellants submit “the CBSA ought to have considered whether the evidence relating to various factors could have cumulatively and incrementally given rise to a PMS”
(Applicants’ Public Memorandum of Fact and Law at paras. 115-16).
[130] In the complaint, the applicants alleged that a PMS existed in China for four reasons: (1) input costs were distorted because of illegally harvested logs, as well as significant state control over domestic timber supplies; (2) manufacturing costs for the production of decorative plywood were distorted because certification standards were routinely circumvented; (3) China heavily regulated the industry, which affected pricing, production, imports and exports; and (4) China heavily subsidized its decorative plywood industry.
[131] In the PMS Memorandum, the CBSA looked at five factors: (1) the government regulations such as price floors, price ceilings, productions quotas, import and export controls; (2) government support programs (financial or otherwise); (3) the acquisition of production inputs or processing services that do not reflect market-based costs because they are acquired from suppliers which are state-owned or state-controlled or that are affected by government influence or control; (4) evidence of distorted input costs; and (5) any other circumstances which may or may not be the result of government intervention, in which normal market conditions or patterns of supply and demand do not prevail (PMS Memorandum at p. 492).
[132] The CBSA found that none of the five factors it considered supported the existence of a PMS in China. The CBSA was clearly aware that the applicants alleged that the cumulative or combined impacts of the factors led to the existence of a PMS (Statement of Reasons at para. 92; PMS Memorandum at p. 486). The President of the CBSA simply did not accept the applicants’ arguments. Before us, the applicants have not explained how and why, on this evidentiary record, a combination of the factors supported the existence of a PMS. The applicants have failed to demonstrate a reviewable error.
[133] In sum, this Court has described the nature of dumping and subsidy investigations as a process that is “complex and technical and requires specialized analysis and calculations of commercial data”
and is “essentially a fact-finding economic mission in an international trade context”
(Uniboard at para. 28). Similarly, as is evident from the passages cited at paragraphs 90 and 91 above from WTO-Australia, the consideration of a potential PMS is a highly contextual assessment. This factually intensive assessment is conducted under a complex technical framework and under strict statutory timelines.
[134] The President of the CBSA assessed each factor, considered all of the available evidence and explained why he did not form an opinion that a PMS existed in China. His conclusion was the result of a highly discretionary and fact-based assessment that falls within his expertise. In conducting a reasonableness review, I am cognizant that this Court must be attentive to the application by the President of his specialized knowledge and expertise (Vavilov at para. 93).
[135] None of the arguments put forward by the applicants have convinced me that it was unreasonable for the President of the CBSA to form the opinion that a PMS did not exist in respect of the goods of the Zero-Rated respondents or, more broadly, in respect of the goods of China. I see no reason to interfere with the Final Determination.
[136] For these reasons, I would dismiss the application for judicial review with costs. In accordance with the agreement reached between the parties, a total amount of $4,500 in costs shall be paid by the applicants and the Unions to the Attorney General of Canada and the Zero-Rated respondents.
[137] I would like to thank all counsel for the assistance they provided to the Court, their excellent written materials and their helpful oral submissions.
"Marianne Rivoalen"
"I agree
Johanne Gauthier J.A."
"I agree
Sylvie E. Roussel J.A."
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