The Canadian International Trade Tribunal recently concluded its inquiry to determine whether dumping of certain fabricated structural steel components (“FISC”) by China, Korea and Spain (and the subsidizing of these goods by China) caused injury or was threatening to cause injury to the Canadian domestic market.

In the inquiry, the Tribunal received requests from six parties to exclude products from a potential finding of injury or threat of injury. After concluding that the dumping of FISC from China, Korea and Spain and subsidizing of it by China had caused injury to the domestic market, the Tribunal went on to consider the exclusion requests. In explaining its findings regarding whether to grant the requests, the Tribunal set out the general principles governing such requests.

The Special Import Measures Act (SIMA) implicitly authorizes the Tribunal to grant exclusions from the scope of a finding. Exclusion requests are granted at the Tribunal’s discretion, when it is satisfied that the exclusions will not cause injury to the domestic industry. The underpinning rationale is this: despite the general conclusion that the dumping and/or subsidizing of the goods has caused injury to the domestic industry, there may be case-specific evidence that imports of particular products captured by the definition of the goods have not caused injury.

In determining whether an exclusion is likely to cause injury to the domestic industry, the Tribunal considers factors such as whether the domestic industry produces, actively supplies or can produce like goods in relation to the subject goods for which the exclusion is requested.

The onus falls on the requester to demonstrate that imports of the specific goods for which the exclusion is requested will not result in injury. The evidentiary burden is on the requestor to file evidence in support of its request. In turn, if no consent is provided by the domestic industry, the domestic industry must file evidence to rebut the evidence filed by the requester.

The Tribunal clarified that it will exercise its discretion to grant product exclusions based on its assessment of the totality of the evidence on the record. Consents to exclusions, or lack of them, are not evidence. Moreover, consents do not fetter the Tribunal’s discretion in making such determinations. Notwithstanding that the domestic industry consented, the Tribunal denied the requests that were not also substantiated with sufficient evidence.

The Tribunal’s findings serve as a strong reminder of the necessity of filing evidence to assist the Tribunal in its assessment of exclusion requests. Domestic industry consent is not enough.