Requests for Review (Section 76)
THE DUMPING IN CANADA OF FRESH GARLIC ORIGINATING IN OR
EXPORTED FROM THE PEOPLE’S REPUBLIC OF CHINA
Request for Review No.: RD-97-002
TABLE OF CONTENTS
Ottawa, Monday, November 24, 1997
IN THE MATTER OF a request for review, under subsection 76(2) of
the Special Import Measures Act, of the finding of the
Canadian International Trade Tribunal made on March 21, 1997, in
Inquiry No. NQ-96-002;
RESPECTING the dumping in Canada of fresh garlic originating in
or exported from the People’s Republic of China.
The Canadian International Trade Tribunal hereby concludes that,
on the basis of the information filed by the Garlic Growers
Association of Ontario, a review is not warranted and, pursuant to
subsection 76(3.1) of the Special Import Measures Act, makes
an order to that effect.
Robert C. Coates, Q.C.
Robert C. Coates, Q.C.
Charles A. Gracey
Charles A. Gracey
Michel P. Granger
Michel P. Granger
Date of Order and Reasons: November 24, 1997
Tribunal Members: Robert C. Coates, Q.C., Presiding Member
Raynald Guay, Member
Charles A. Gracey, Member
Research Director: Selik Shainfarber
Counsel for the Tribunal: Joël J. Robichaud
Heather A. Grant
On March 21, 1997, the Canadian International Trade Tribunal
(the Tribunal) found that the dumping in Canada of fresh garlic
originating in or exported from the People’s Republic of China
(China) had caused material injury to the domestic industry.
 The finding only
applied to fresh garlic imported into Canada from China from July 1
to December 31, inclusive, of each calendar year. The effect of
this latter part of the finding is to permit the duty-free entry of
Chinese garlic into Canada in the January-June period in each
By letter dated August 7, 1997, pursuant to subsection 76(2) of
the Special Import Measures Act  (SIMA), the Garlic Growers Association of
Ontario (GGAO) requested a review of the above-mentioned finding.
The GGAO asked that the Tribunal immediately review its finding and
issue an order amending the finding to impose anti-dumping duties
throughout the year.
On September 12, 1997, the Tribunal received a response from the
China Chamber of Commerce of Importers & Exporters of
Foodstuffs, Native Produce and Animal By-Products (the China
Chamber of Commerce) opposing the GGAO’s request.
In their submission to the Tribunal, counsel for the GGAO claim
that there is evidence of circumvention of the Tribunal’s finding
which is causing and threatening to cause continued material injury
to the Canadian garlic industry. Counsel indicate that the
circumvention is in the form of the importation of a very large
volume of fresh garlic from China immediately prior to the time
period covered by the finding, which undermines the relief provided
by the Tribunal to the Canadian garlic industry. In addition,
counsel note that, at the time of the finding, the Tribunal
considered the circumvention to be a remote possibility and, hence,
only made a finding in respect of imports between July 1 and
December 31, inclusive. Counsel indicate that the facts now show
that circumvention has indeed occurred and is now a certain
reality. On the basis of the above, counsel argue that a review by
the Tribunal can be expedited and need not require a hearing.
Counsel for the China Chamber of Commerce argue that the volume
of imports of fresh garlic from China during the period from
January 1 to June 30, 1997, is not “massive,” as the GGAO has
suggested. They argue that the Canadian garlic growers have not
been and will not be materially injured as a result of the volume
of imports of garlic from China between January 1 and June 30,
1997, inclusive, because the anti-dumping duties imposed by the
finding will be more than adequate to afford the Canadian garlic
growers the opportunity to sell all of their 1997 harvest during
the period from July to December 1997 without having to compete
with “dumped” garlic from China. Counsel argue that there is no
need to amend the finding because the GGAO has not provided any
evidence that Canadian garlic growers will be able to serve the
Canadian garlic market in the period from January 1 to June 30 in
any calendar year. In any event, the GGAO’s request is premature,
as the Tribunal has not had the opportunity to determine whether
the finding has had its desired effect.
SIMA provides the Tribunal with the power to review an order or
a finding at the request of a person or government. Specifically,
subsection 76(2) of SIMA provides as follows:
At any time after the making of an order or finding described in
any of sections 3 to 6 [of SIMA], the Tribunal may, on its own
initiative or at the request of the Deputy Minister or any other
person or of any government, review the order or finding and, in
the making of the review, may re-hear any matter before deciding
Subsection 76(3) of SIMA provides that the Tribunal shall not
initiate a review at the request of a person or government unless
that person or government satisfies the Tribunal that a review is
warranted. In deciding whether an “interim” review, as opposed to
an “expiry” review,  is warranted, the Tribunal considers whether there
is a reasonable indication that the conditions which gave rise to
the original order or finding have changed to such an extent that
the continued validity of the order or finding is brought into
question. Such changes normally relate to one of the essential
elements underpinning the order or finding. 
The Tribunal has initiated interim reviews in cases where there
was a reasonable indication that the domestic industry in question
had ceased to produce or had substantially reduced production of
some or all of the goods which were the subject of the finding.
 In Review No.
RR-94-001,  for
example, the Tribunal initiated a review after having received
information which provided a reasonable indication that British
Columbia was no longer a regional market for beer, as had been
determined in the original finding.
In this case, the GGAO has raised the issue of “circumvention”
of the Tribunal’s finding in the form of the importation of a large
volume of fresh garlic from China prior to the time period covered
by the finding and the impact that the entry of those goods into
Canada will have on the Canadian garlic industry. More
specifically, the GGAO contends that, from January to June 1997,
compared to the same period in 1996, the volume of fresh garlic
imports from China more than doubled, from about 8 percent of
annual Chinese import volumes to about 19 percent of annual import
volumes. The year-over-year increase during this six-month period
was basically attributable to a tenfold increase in imports in a
single month, namely, June 1997 (660,000 kg), compared to June 1996
The Tribunal appreciates the GGAO’s concerns and considers that
any change in the pattern and volume of Chinese fresh garlic
imports, over the six-month period during which the finding does
not apply, that is continued on a sustained basis, is a matter to
be taken very seriously. However, although the increase of about
600,000 kg is important on a month-over-month basis, this amount is
less significant when considered in terms of monthly domestic fresh
garlic consumption or of the overall size of the Canadian market
and total Chinese import volumes. Specifically, the 600,000 kg
represent only about three quarters of one month’s consumption,
about 6 percent of the Canadian market and 10 percent of Chinese
imports, all based on 1996 data.
While the Tribunal acknowledges that, in its statement of
reasons dated April 7, 1997, it did address counsel for the GGAO’s
argument concerning the possible circumvention of its finding by
China, the Tribunal is of the view that this alone does not justify
conducting a review of its finding.
Overall, the Tribunal is not persuaded that any of the essential
elements which underpin its finding have changed. The Tribunal does
not find that there have been any fundamental structural changes in
the dynamics of the Canadian or Chinese garlic industry.
In light of the foregoing, the Tribunal is not satisfied that a
review is warranted at this time and hereby makes an order to that
effect under subsection 76(3.1) of SIMA.
1. Fresh Garlic
Originating in or Exported from the People’s Republic of China,
Inquiry No. NQ-96-002 , Finding, March 21, 1997, Statement of
Reasons, April 7, 1997.
2. R.S.C. 1985, c.
3. An “expiry” review
is conducted in the final year of a five-year finding in order to
determine whether the finding should be rescinded or continued,
with or without amendment.
4. See, for example,
Bicycles, a ssembled or u nassembled, with w heel d iameters of 16
i nches (40.64 cm) and g reater, and f rames t hereof, o riginating
in or e xported from Taiwan and the People’s Republic of China,
Request for Review No. RD-93-001, Order and Statement of Reasons,
September 17, 1993.
5. See, for example,
Notice of Review of Injury Findings on Certain Induction Motors,
Review No. RR-93-004, February 11, 1994.
6. Malt Beverages,
Commonly Known as Beer, of an Alcoholic Strength by Volume of not
Less Than 1.0 Percent and not More Than 6.0 Percent, Packaged in
Bottles or Cans not Exceeding 1,180 mL (40 oz.), Originating in or
Exported from the United States of America by or on Behalf of Pabst
Brewing Company, G. Heileman Brewing Company Inc. and t he Stroh
Brewery Company, their Successors and Assigns, for Use or
Consumption in the Province of British Columbia, Order and
Statement of Reasons, December 2, 1994.
[Table of Contents
Initial publication: November 24, 1997