Interim Reviews (Section 76.01)
Interim Review No. RD-2006-005
Friday, May 11, 2007
Friday, May 25, 2007
TABLE OF CONTENTS
IN THE MATTER OF 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 January 7, 2005, in
Inquiry NQ-2004-005 concerning:
THE DUMPING OF CERTAIN FASTENERS ORIGINATING IN OR EXPORTED
FROM THE PEOPLE’S REPUBLIC OF CHINA AND CHINESE TAIPEI AND THE
SUBSIDIZING OF SUCH PRODUCTS ORIGINATING IN OR EXPORTED FROM THE
PEOPLE’S REPUBLIC OF CHINA
The Canadian International Trade Tribunal, under the provisions
of paragraph 76.01(1)(b) of the Special Import Measures
Act, has conducted an interim review of the above-mentioned
Pursuant to paragraph 76.01(5)(b) of the Special
Import Measures Act, the Canadian International Trade Tribunal
hereby makes no amendment to its findings.
The statement of reasons will be issued within 15 days.
Ellen Fry, Presiding Member
Elaine Feldman, Member
Serge Fréchette, Member
Counsel for the Tribunal:
Leland Industries Inc.
Lawrence L. Herman
J. Peter Jarosz
GRK Canada Limited
Cyndee Togham Cherniak
Fasteners and Fittings Inc.
H. Paulin & Co. Limited
Yow Chern Co., Ltd.
Please address all communications to:
Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
STATEMENT OF REASONS
1. On November 28, 2006, the Canadian International Trade
Tribunal (the Tribunal) received a request from Robertson Inc.
(Robertson) for an interim review of the Tribunal’s findings in
Inquiry No. NQ-2004-0051
to exclude HECO-FIX-plus® screws
by amending the exclusion for Aster screws to read “Aster screws
and equivalent screws, including HECO-FIX-plus® screws”.
The Tribunal decided, on December 11, 2006, that the request was
properly documented and invited comments from interested parties on
Robertson’s request. One submission was received from Leland
Industries Inc. (Leland), a domestic screw producer, stating that
it opposed the request. Robertson replied on January 12, 2007, and
on February 6, 2007, Leland made an additional reply.
2. Section 76.01 of the Special Import Measures
gives the Tribunal jurisdiction to conduct
an interim review if it is satisfied that a review is warranted.
Based on Robertson’s request and the submissions received, the
Tribunal decided, on February 23, 2007, that an interim review was
warranted and issued a notice of commencement of interim
The purpose of the interim review was to
determine if the findings should be amended to exclude the product
for which an exclusion had been requested. The submissions already
filed by the parties prior to the initiation of the interim review
were placed on the record of the interim review. In accordance with
paragraph 25(c) of the Canadian International Trade
the Tribunal decided to proceed with a
hearing by way of written submissions. Any further submissions by
interested parties and any subsequent reply submissions were
requested by March 9 and 23, 2007, respectively. In response to
requests from parties, the Tribunal twice extended the deadline for
reply submissions—first to March 29, 2007, and then to April 12,
2007. Both Robertson and Leland filed further submissions and reply
submissions. GRK Canada Limited filed a submission supporting
Robertson’s request and seeking to expand the scope of the
exclusion. Fasteners and Fittings Inc., H. Paulin & Co. Limited
and Yow Chern Co., Ltd. filed submissions opposing the request.
3. Robertson submitted that HECO-FIX-plus® screws are
physically and functionally equivalent to Aster screws, which the
Tribunal excluded in Fasteners. Robertson contended that,
since it is the Tribunal’s practice to grant exclusions in a
generic manner to avoid creating trade distortions and unfair
competitive advantages, it should also exclude
HECO-FIX-plus® screws. Robertson noted that Leland
consented to the exclusion for Aster screws in Fasteners and
submited that Leland does not manufacture screws that are
equivalent to HECO-FIX-plus® screws.
4. Leland submitted that the issue before the Tribunal is not
the equivalency of Aster screws and HECO-FIX-plus®
screws, but whether an exclusion for HECO-FIX-plus®
screws would be injurious to the domestic industry. Leland
contended that it produces screws that compete with the patented
HECO-FIX-plus® screws and that an exclusion would cause
it injury. Leland asserted that it consented to the exclusion for
Aster screws by mistake, based on a misperception that the screws
were speciality fasteners.
5. The Tribunal’s practice with regard to granting product
exclusions was summarized in Stainless Steel Wire as
It is well established that the Tribunal has the discretion to
grant product exclusions under subsection 43(1) of
SIMA. The fundamental principle is that the Tribunal will
grant product exclusions only when it is of the view that such
exclusions will not cause injury to the domestic industry. The
Tribunal has granted product exclusions for particular products in
circumstances when, for instance, the domestic industry does not
produce those particular products. The Tribunal also considers
factors such as whether there is any domestic production of
substitutable or competing goods, whether the domestic industry is
an “active supplier” of the product or whether it normally produces
the product or whether the domestic industry has the capability of
producing the product.
6. Likewise, in its determination in Certain Fasteners
(remand), the Tribunal summarized its practice with regard to
exclusions for patented products as follows:6
However, the fact that a product is patented does not mean that
the Tribunal will automatically grant an exclusion. Even though an
imported patented product may have certain features or physical
attributes that make it distinct under patent law, a domestically
manufactured product may have the same end uses, fulfil most of the
same customer needs and compete in the marketplace with the
patented product. Therefore, even if a request for a product
exclusion concerns a patented product, the Tribunal still needs to
determine whether the circumstances of the case are such that
granting the exclusion could cause or threaten to cause injury to
the domestic industry. . . .
7. Although the circumstances of this interim review are highly
unusual in light of the argument that a similar product has already
been excluded, the Tribunal emphasizes that, nonetheless, when
considering requests for product exclusions, the fundamental issue
must remain whether the excluded products will be injurious to the
domestic industry. Each request must be considered on its own
merits. Accordingly, the Tribunal considered whether the domestic
industry produces or is capable of producing substitutable or
competing screws that would be injured by imports of
8. First, the Tribunal notes that HECO-FIX-plus®
screws are generally within the range of dimensions that, as
determined by the Tribunal in Fasteners, are made, or
capable of being made, by the domestic industry.7
9. Further, the product literature submitted by Robertson
indicates that HECO-FIX-plus® screws are intended for
“universal use” in a “wide range of professional and industrial
applications in different materials”, with “beech, chipboard, oak,
aluminium, multiplex, pine [and] MDF board” specifically
Similarly, the product literature submitted
by Leland refers to its screws being intended for applications such
as attaching roof or wall panels to wood frames and as being “fully
compatible with . . . all existing pressure-treated
10. Moreover, the Tribunal notes that Robertson submitted an
exclusion request for HECO-FIX-plus® screws in
Fasteners, which stated that the screws were used in “all
wood applications, especially woods with high
11. Finally, the Tribunal notes that the evidence on the nature
of the purchasers to which Robertson is marketing
HECO-FIX-plus® screws is not indicative of specialized
market segments requiring specialized fasteners.11
12. Accordingly, in the Tribunal’s view, the evidence does not
indicate that HECO-FIX-plus® screws are differentiated
significantly from domestic screws by their performance or other
relevant market factors, such as market segment and intended end
uses. The Tribunal therefore considers that there would be
significant competition between HECO-FIX-plus® screws
and domestic production and that HECO-FIX-plus® screws
would cause injury to the domestic industry if the Tribunal were to
grant an exclusion. Therefore, the Tribunal does not grant the
13. The Tribunal notes that, in recent years, it has been its
practice, when granting exclusions for patented or brand-name
products, to allow for the possibility that there might be other
goods that are equivalent to the excluded products, generally by
including the phrase “or equivalent” in the description of the
excluded products. However, even though it is the Tribunal’s usual
practice to describe excluded products in a generic manner, before
granting such exclusions, the Tribunal nonetheless turns its mind
to whether the exclusion in its entirety, including both the
specific patented or brand-name products and all “or equivalent”
products that might be imported, would be injurious to the domestic
industry. In Fasteners, based on the evidence before it at
the time, the Tribunal granted an exclusion for Aster screws, but
did not grant an exclusion for equivalent products. The Tribunal
notes that, in Fasteners, an exclusion was requested for
HECO-FIX-plus® screws, on their own merits. The
exclusion was not granted.
14. For the foregoing reasons, pursuant to paragraph
76.01(5)(b) of SIMA, the Tribunal hereby makes no
amendment to its findings.
. Fasteners (7 January 2005) (CITT)
. R.S.C. 1985, c. S-15 [SIMA].
. C. Gaz. 2007.I.468.
. (30 July 2004), NQ-2004-001 (CITT) at
. (26 September 2006), NQ-2004-005R (CITT)
at para. 17.
. Fasteners at 215.
. Tribunal Exhibit RD-2006-005.21.05,
Administrative Record, Vol. 1 at 295, 297.
. Tribunal Exhibit RD-2006-005.05.01,
Administrative Record, Vol. 1 at 58, 70.
. Tribunal Exhibit RD-2006-005.05.02,
Administrative Record, Vol. 1 at 98.
. Tribunal Exhibit RD-2006-005.22.05
(protected), Administrative Record, Vol. 2 at 44.