REPORT TO THE TRIBUNAL ON ITS ACTIVITIES IN 2015-2016
CITT ADVISORY COMMITTEE
REPORT TO THE TRIBUNAL ON ITS ACTIVITIES IN 2015-2016
29 March 2016
The Advisory Committee held its inaugural meeting on 1 October 2015 and subsequently filed two interim reports to the Tribunal, dated 2 December 2015 and 19 February 2016. Under its Terms of Reference, the Committee is also required to provide the Tribunal with an Annual Report setting out recommendations for action in matters under its purview. The following is provided in response to that requirement.
1. COST REDUCTIONS IN CITT PROCEEDINGS
At its inaugural meeting, the Committee discussed issues raised by the Chairman regarding the increased costs of stakeholder (parties and others) participation in Tribunal proceedings. Discussion was largely focused on SIMA proceedings but didn’t exclude areas such as procurement and Customs appeals.
It was recognized that increased party costs was a function of the growing complexity in Tribunal proceedings and posed a serious private sector concern, particularly in the case of SME’s, where smaller companies are having increased challenges in affording the CITT process. It was observed that a good deal of these escalating costs result from procedures in advance of the actual Tribunal hearings themselves.
To move ahead, the Committee agreed to examine practical ways to cap and possibly reduce procedural complexity, paper burden, questionnaire requirements and other cost-related matters. The hope was expressed that practical progress on cost-reduction could be made, even ahead of formal recommendations from the Committee.
Cost-reductions and improved access to the Tribunal’s proceedings under SIMA and other areas of jurisdiction matter should be the priority item on the Committee’s agenda for the coming year.
2. COPYRIGHT AND SINGLE COPY EXHIBITS
Following its inaugural meeting, the Advisory Committee considered issues related to the filing in SIMA proceedings of: (a) single-copy exhibits; and (b) publications and reports that are under license or subscription and subject to the owners’ copyright. To a large extent, these issues are closely related.
It became clear that there was a need to clarify the matter and to regularize filing procedures in this area. This proved to be a challenging subject. The Committee spent a good deal of time on this before setting out a series of recommendations in its second report to the Chair.
- Procedural fairness requires that recourse to single copy exhibits in SIMA proceedings should be resorted to only in highly exceptional circumstances where the bulk of a document makes it impractical to copy and serve on all participants. The practice should not be used as a regular means of dealing with concerns over possible copyright infringement.
- The filing of materials under copyright in SIMA proceedings, including publications under license from the copyright holder, may be within the fair dealing exemption in the Canadian Copyright Act. This would be consistent with judicial precedent and would follow the practices of the Canadian courts and other federal tribunals.
- The Tribunal may accept such documents on either the public or the protected record, as counsel may determine. Wherever possible, these documents should be filed as public documents, the Tribunal reminding counsel of its desire to have as much information as possible on the public record.
- It will be up to parties or their counsel to determine whether the fair dealing exemption applies in any given case. Where there are concerns about placing copyright materials on the public record, the Tribunal will accept such materials on the protected record.
- Counsel may provide any such protected copyright materials to other parties through limited disclosure undertakings concluded between them.
- Together with filing of documents under copyright, whether on the public or protected record, the fair dealing exemption permits references to such documents and their contents in briefs and witness statements.
- Resort to the filing of single copy exhibits, which work to the disadvantage of parties and their representatives not based in Ottawa, should future be restricted to documents of excessive bulk/length where copying the same for service is impractical or where it is demonstrated that limitations on the fair dealing exemption permit no other course of action.
3. AGREED STATEMENTS OF FACTS
The draft Practice Note on Agreed Facts in Appeals was viewed positively by the Committee. While concerned if obtaining agreed statements was to involve another cost burden on parties in engaging counsel, the consensus was that this would be a practical way to expedite the APPEAL process and reduce costs.
The Practice Note should be issued to encourage to counsel to use this device to expedite the proceedings and reduce costs to participants.
4. DRAFT LATE FILING GUIDELINES
The Tribunal Chair requested the views of the Committee on draft Guidelines on late filing of documents. In its examination, the Committee felt that a distinction needed to be made between responses to questionnaires and RFIs issued by the Tribunal itself (see below) and the filing of case materials, documentary evidence and witness statements that are directly the responsibility of parties and their counsel.
The Late Filing Guidelines as drafted should be issued so as to ensure timely and more complete information in the Tribunal’s hands in SIMA proceedings. The current rules respecting late filings that stipulate Tribunal consent only where exceptional circumstances are demonstrated should remain firmly in place.
5. FILING OF QUESTIONNAIRES AND REVISED INVESTIGATION REPORT IN SIMA MATTERS
While delays in obtaining questionnaire responses cause understandable frustrations and problems for Research Staff and for the Tribunal, the view of the Committee is that most parties and their counsel legitimately do their best to meet the Tribunal’s deadlines.
A factor of significance in the Canadian context is that parties and other stakeholders tend to be smaller and medium-sized enterprises (whether producers or importers/distributors) that lack the necessary resources to complete questionnaires within the Tribunal’s tight time frames. This necessitates a degree of flexibility and understanding the situation facing these particular respondents.
The Tribunal should retain flexibility in matters of filing deadlines. Its Practice Notice should, however, stress the critical for all respondents to meet filing deadlines and stating in clear terms that the Tribunal expects these to be respected.
6. FEEDBACK ON DATA COLLECTION
The Committee noted that parties are being asked for increasingly detailed information in SIMA proceedings by ATSSC Research Staff. Ultimately, this entails additional cost burdens on participants in terms of internal resources and outside assistance, whether they be domestic producers or exporters/importers.
- In seeking feedback from parties and their counsel, Research Staff should take pains not to add to the already heavy burdens on parties in completing questionnaires and other preparatory matters in ongoing Tribunal proceedings.
- The Staff should try to seek feedback on data collection possibly outside the framework of active cases when respondents are fully engaged in compiling answers to Tribunal questionnaires.
7. CONTEMPT PROCEEDINGS
The Committee has not been able to review this in detail in the short time since receipt of the Tribunal’s draft. The question was raised whether the issue is of such significance that it warrants an actual practice notice on the subject, or whether this could be dealt with as an infrequent matter under the Tribunal’s inherent jurisdiction.
The Committee should examine further: (1) steps for purging contempt after an order is issued; (2) extraterritorial matters; (3) lists of defenses in show-cause proceedings; (4) safeguards in the use of motions for contempt; and (5) individual liability where corporate entities are concerned.
8. AWARDING COSTS – PROPOSED CUSTOMS ACT AMENDMENTS
The Committee felt that the proposed changes to the Tribunal’s jurisdiction to award costs under the Customs Act warranted a closer look. Some of members were supportive of the draft while others pointed out the jurisdictional complications in this area, noting that there are complex rules in courts at most levels, with established tariffs and assessment procedures. The Committee agreed that this matter warranted closer attention in the coming year.
The Committee should collect further views among its members and communicate back to the Tribunal on this matter with a more complete response over the next number of months.
9. OTHER MATTERS ON THE COMMITTEE’S AGENDA
Together with cost-reduction and maintaining full accessibility to Tribunal processes, a number of other issues were raised, many of which were focused on SIMA proceedings. These included: (1) limitations on the size of briefs and witness statements; (2) directions where full physical documents – such as prior Tribunal and CBSA decisions – can be taken into the record without the need for the physical document; (3) regularization of the use of aids-to-argument; and (4) moving to a full-scope electronic filing system for all documents.
The Committee should develop a plan for the next fiscal year (2016-2017) in collaboration with the Tribunal and proceed to examine these and other priority issues and to issue timely reports to the Tribunal as matters proceed.
Submitted, 29 March 2016.
Lawrence L. Herman
LAWRENCE L. HERMAN
Chair, CITT Advisory Committee
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