Interim Reviews (Section 76.01)
CERTAIN DISHWASHERS AND DRYERS
Request for Interim Review No. RD-2004-010
Monday, April 25, 2005
Monday, May 9, 2005
TABLE OF CONTENTS
IN THE MATTER OF a request for an interim review, under
subsection 76.01(1) of the Special Import Measures Act, of
the findings made by the Canadian International Trade Tribunal on
August 1, 2000, in Inquiry No. NQ-2000-001, as amended on March 19,
2003, in Interim Review No. RD-2002-005, concerning:
CERTAIN DISHWASHERS AND DRYERS ORIGINATING IN OR EXPORTED
FROM THE UNITED STATES OF AMERICA AND PRODUCED BY, OR ON BEHALF OF,
WHITE CONSOLIDATED INDUSTRIES, INC. AND WHIRLPOOL CORPORATION,
THEIR RESPECTIVE AFFILIATES, SUCCESSORS AND ASSIGNS
On March 22, 2005, Electrolux Home Products, Inc. and Electrolux
Canada Corp. filed a request for an interim review of the findings
made by the Canadian International Trade Tribunal in Inquiry No.
NQ-2000-001, as amended on March 19, 2003, in Interim Review No.
RD-2002-005, concerning the above-noted goods.
Pursuant to subsection 76.01(4) of the Special Import
Measures Act, the Canadian International Trade Tribunal has
decided not to conduct an interim review of the above findings.
James A. Ogilvy
James A. Ogilvy
The statement of reasons will be issued within 15 days.
Richard Lafontaine, Presiding Member
James A. Ogilvy, Member
Ellen Fry, Member
Director of Research:
Counsel for the Tribunal:
Gillian E. Burnett
Please address all communications to:
Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
Telephone: (613) 993-3595
Fax: (613) 990-2439
STATEMENT OF REASONS
1. On August 1, 2000, the Canadian International Trade Tribunal
(the Tribunal), in Inquiry No. NQ-2000-001, made findings of
injury, pursuant to subsection 43(1) of the Special Import
certain refrigerators, dishwashers and dryers originating in or
exported from the United States of America and produced by, or on
behalf of, White Consolidated Industries, Inc., and Whirlpool
Corporation, their respective affiliates, successors and
2. On March 19, 2003, the Tribunal, in Interim Review No.
RD-2002-005, made an order, pursuant to paragraph
76.01(5)(b) of SIMA, to exclude refrigerators from
the scope of the above findings.
3. On September 28, 2004, in Expiry No. LE-2004-006, the
Tribunal gave notice of the expiry of its findings and invited
submissions on whether a review of the findings was warranted
pursuant to subsection 76.03(2) of SIMA. Basing its
decision on the available information, including representations
made by interested parties, the Tribunal decided that an expiry
review was warranted and, on November 17, 2004, gave notice of the
initiation of Expiry Review No. RR-2004-005 pursuant to subsection
76.03(3) of SIMA.
4. On December 22, 2004, Camco Inc. (Camco), the sole domestic
producer that constituted the domestic industry in the initial
inquiry, sent a letter to the Canada Border Services Agency (CBSA)
stating that it would not be participating in the expiry
5. On March 17, 2005, the CBSA determined that the expiry of the
above findings was unlikely to result in the continuation or
resumption of dumping of the goods. On April 1, 2005, the CBSA
issued its statement of reasons for its determination.
6. On March 18, 2005, the Tribunal sent a letter to the
interested parties advising them that, as a result of the CBSA's
determination, and without further consideration of the matter, the
Tribunal would issue, on July 29, 2005, an order rescinding its
findings made in Inquiry No. NQ-2000-001, as amended.
7. On March 22, 2005, Electrolux Home Products, Inc. and
Electrolux Canada Corp., the successors and assigns of White
Consolidated Industries, Inc. (collectively, Electrolux), filed a
motion asking the Tribunal to issue, in Expiry Review No.
RR-2004-005, an order rescinding the above findings "immediately",
which Electrolux indicated meant effective March 17, 2005. The
order and statement of reasons issued by the Tribunal in Expiry
Review No. RR-2004-005 deal with that motion. Electrolux asked the
Tribunal, in the alternative, pursuant to section 76.01 of
SIMA, for the immediate initiation of an interim review of
the findings. Through the interim review, Electrolux was also
seeking the rescission of the findings effective March 17, 2005.
This statement of reasons deals with Electrolux's request for an
8. In its request, Electrolux contended that an interim review
was warranted given the negative determination of the CBSA, and the
lack of interest in participating in the expiry review proceedings
on the part of the sole Canadian producer, Camco. Electrolux argued
that these new facts or changes in circumstances that have occurred
since the Tribunal's findings should give rise to the immediate
rescission of the findings.
9. Subsection 76.01(1) of SIMA provides that the Tribunal
may conduct an interim review of a finding or order. Such an
interim review may concern the whole finding or order or any aspect
of it. Pursuant to subsection 76.01(3), the Tribunal shall not
conduct an interim review unless the requester satisfies the
Tribunal that the review is "warranted".
10. The Canadian International Trade Tribunal
two-step procedure for the requesting party to demonstrate the need
for an interim review. First, the requesting party must submit to
the Tribunal a "properly documented" request. The request must
contain all the elements prescribed by subrule 70(1):
· the name, address for service, telephone number and fax
number, if any, of the person making the request and of their
counsel, if any;
· the nature of their interest in the order or finding;
· the grounds on which the person believes initiation of the
review is warranted and a statement of the facts on which the
grounds are based; and
· the nature of the order or finding that the person believes
the Tribunal should make under subsection 76.01(5) of SIMA
on completion of the review.
11. Second, the requesting party must satisfy the Tribunal that
a review is warranted. Rule 72 of the Rules states that, in
order to decide whether an interim review is warranted, the
Tribunal may request parties to provide information concerning:
"(a) whether changed circumstances or new facts have arisen
since the making of the order or finding; (b) facts that
were not put in evidence in the original proceedings and that were
not discoverable by the exercise of reasonable diligence; and
(c) any other matter that is relevant to the review."
12. In the Tribunal's view, Electrolux has submitted a properly
13. The Tribunal will address one procedural matter in
connection with the request for interim review before it addresses
the question of whether an interim review is warranted. Subrule
70(2) of the Rules requires the Tribunal to give all other
parties to the original inquiry an opportunity to make
representations to the Tribunal concerning the request. However,
rule 6 allows the Tribunal to dispense with, vary or supplement any
of the Rules if it is fair and equitable to do so or to
provide for a more expeditious or informal process, as the
circumstances and considerations of fairness permit. In this
regard, in its motion, Electrolux stated that it would only make
sense to initiate an interim review if the Tribunal is prepared to
conduct such a review on an extremely expedited basis.
14. In this case, the Tribunal has decided, in light of rule 6
of the Rules, not to distribute the request for interim
review to the parties for comment, as would ordinarily be the case
pursuant to subrule 70(2). The only party likely to oppose the
request would be Camco, and it will not be adversely affected by
the Tribunal's disposition of the request. The Tribunal is
therefore of the view that no parties will be treated unfairly and,
further, that dispensing with representations from other parties
will expedite the matter.
15. As indicated earlier, on March 17, 2005, the CBSA determined
that the expiry of the findings was unlikely to result in the
continuation or resumption of dumping. In making that
determination, the CBSA was required to look forward to the expiry
date and consider what circumstances would likely exist after that
date, i.e. after five years of protection have elapsed. The CBSA's
determination is therefore indicative of circumstances that have
not yet occurred.
16. By contrast, when deciding whether to conduct an interim
review, the Tribunal is required to look back to the date of the
findings and compare circumstances then to those present at the
time of the request for an interim review.
17. A determination by the CBSA in an expiry review does not
concern the period of time relevant for an interim review, that is,
the period between the date of the findings and the date of their
expiry. Therefore, the CSBA's negative determination does not
evidence any change in circumstances during that period.
18. Similarly, Camco's decision not to participate in an expiry
review that evaluates the likely situation after the expiry of the
findings does not evidence a change in circumstances during the
period relevant for an interim review.
19. Therefore, in the Tribunal's view, neither the CBSA's
negative determination nor Camco's decision not to participate in
the expiry review warrants the conduct of an interim review.
20. For the foregoing reasons, the Tribunal determines that an
interim review of the findings is not warranted. Consequently,
pursuant to subsection 76.01(4) of SIMA, the Tribunal has
decided not to conduct an interim review.
1 . R.S.C. 1985, c. S-15
2 . S.O.R. 91/499