Special Import Measures Act

Marginal note:Definitions

• 2 (1) In this Act,

  amount of subsidy

  amount of subsidy, in relation to any goods, means the amount determined in accordance with section 30.4; (montant de subvention)

  amount of the subsidy

  amount of the subsidy[Repealed, 1994, c. 47, s. 144]

  arbitration body

  arbitration body means the arbitration body referred to in Article 8.5 of the Subsidies Agreement; (organe d’arbitrage)

  Canadian Secretary

  Canadian Secretary means

  • (a) when Part I.1 is in force, the Secretary referred to in section 15 of the North American Free Trade Agreement Implementation Act, and

  • (b) when Part II is in force, the Secretary appointed under subsection 77.24(1); (secrétaire canadien)

  Commissioner

  Commissioner[Repealed, 2005, c. 38, s. 132]

  Committee

  Committee means the Committee on Subsidies and Countervailing Measures established by Article 24 of the Subsidies Agreement; (Comité)

  country

  country, unless the context requires otherwise, includes

  • (a) an external or dependent territory of a country and any other territory prescribed by regulation made by the Governor in Council, and

  • (b) except for the purposes of proceedings respecting the dumping of goods, a customs union; (pays)

  country of export

  country of export means, in the case of dumped goods, the country from which the goods were shipped directly to Canada or, if the goods have not been shipped directly to Canada, the country from which the goods would be shipped directly to Canada under normal conditions of trade and, in the case of subsidized goods, the country in which the subsidy originated; (pays d’exportation)

  Deputy Minister

  Deputy Minister[Repealed, 1999, c. 17, s. 180]

  designated officer

  designated officer means any officer, or any officer within a class of officers, designated pursuant to section 59 of the Customs Act; (agent désigné)

  domestic industry

  domestic industry means, other than for the purposes of section 31 and subject to subsection (1.1), the domestic producers as a whole of the like goods or those domestic producers whose collective production of the like goods constitutes a major proportion of the total domestic production of the like goods except that, where a domestic producer is related to an exporter or importer of dumped or subsidized goods, or is an importer of such goods, domestic industry may be interpreted as meaning the rest of those domestic producers; (branche de production nationale)

  dumped

  dumped, in relation to any goods, means that the normal value of the goods exceeds the export price thereof; (sous-évalué)

  duty

  duty means any duty, including provisional duty, imposed by virtue of this Act; (droits)

  enterprise

  enterprise includes a group of enterprises, an industry and a group of industries; (entreprise)

  export price

  export price means export price determined in accordance with sections 24 to 30; (prix à l’exportation)

  export subsidy

  export subsidy means a subsidy or portion of a subsidy that is contingent, in whole or in part, on export performance; (subvention à l’exportation)

  Free Trade Agreement

  Free Trade Agreement has the meaning assigned to the term Agreement by section 2 of the Canada-United States Free Trade Agreement Implementation Act; (Accord de libre-échange)

  government

  government, in relation to any country other than Canada, means the government of that country and includes

  • (a) any provincial, state, municipal or other local or regional government in that country,

  • (b) any person, agency or institution acting for, on behalf of, or under the authority of, or under the authority of any law passed by, the government of that country or that provincial, state, municipal or other local or regional government, and

  • (c) any association of sovereign states of which that country is a member; (gouvernement)

  government of a NAFTA country

  government of a NAFTA country means such department, agency or other body of the government of a NAFTA country as is prescribed; (gouvernement d’un pays ALÉNA)

  importer

  importer, in relation to any goods, means the person who is in reality the importer of the goods; (importateur)

  injury

  injury means material injury to a domestic industry; (dommage)

  insignificant

  insignificant means,

  • (a) in relation to a margin of dumping, a margin of dumping that is less than two per cent of the export price of the goods, and

  • (b) in relation to an amount of subsidy, an amount of subsidy that is less than one per cent of the export price of the goods; (minimale)

  like goods

  like goods, in relation to any other goods, means

  • (a) goods that are identical in all respects to the other goods, or

  • (b) in the absence of any goods described in paragraph (a), goods the uses and other characteristics of which closely resemble those of the other goods; (marchandises similaires)

  margin of dumping

  margin of dumping, in relation to any goods, means, subject to sections 30.1, 30.2 and 30.3, the amount by which the normal value of the goods exceeds the export price of the goods; (marge de dumping)

  material injury

  material injury[Repealed, 1994, c. 47, s. 144]

  member

  member[Repealed, R.S., 1985, c. 47 (4th Supp.), s. 52]

  Minister

  Minister means the Minister of Public Safety and Emergency Preparedness; (ministre)

  NAFTA country

  NAFTA country has the meaning assigned that expression by subsection 2(1) of the North American Free Trade Agreement Implementation Act, but does not include Canada; (pays ALÉNA)

  negligible

  negligible means, in respect of the volume of goods of a country, less than 3% of the total volume of goods that are released into Canada from all countries and that are of the same description as the goods. However, if the total volume of goods of three or more countries — each of whose exports of goods into Canada is less than 3% of the total volume of goods that are released into Canada from all countries and that are of the same description — is more than 7% of the total volume of goods that are released into Canada from all countries and that are of the same description, the volume of goods of any of those countries is not negligible; (négligeable)

  non-actionable subsidy

  non-actionable subsidy means

  • (a) a subsidy that is not specific as determined pursuant to subsections (7.1) to (7.4),

  • (b) a subsidy for

    • (i) industrial research assistance,

    • (ii) pre-competitive development assistance,

    • (iii) assistance to disadvantaged regions,

    • (iv) assistance for the adaptation of existing facilities to new environmental standards, or

    • (v) assistance for research activities conducted by institutions of higher education and independent research establishments,

    that meets the prescribed criteria, or

  • (c) subject to subsection (1.4), a domestic support measure for an agricultural product listed in Annex 1 of the Agreement on Agriculture, being part of Annex 1A to the WTO Agreement, that conforms to the provisions of Annex 2 to the Agreement on Agriculture; (subventions ne donnant pas lieu à une action)

  normal value

  normal value means normal value determined in accordance with sections 15 to 23 and 29 and 30; (valeur normale)

  North American Free Trade Agreement

  North American Free Trade Agreement has the meaning assigned to the word Agreement by subsection 2(1) of the North American Free Trade Agreement Implementation Act; (Accord de libre-échange nord-américain)

  order or finding

  order or finding, in relation to the Tribunal,

  • (a) means an order or finding made by the Tribunal under section 43 or 44 that has not been rescinded under any of sections 76.01 to 76.1 and subsection 91(3) but, if the order or finding has been amended one or more times under any of sections 76.01 to 76.1, as last so amended, and

  • (b) includes, for the purposes of sections 3 to 6 and 76 to 76.1, an order or finding made by the Tribunal under subsection 91(3) that has not been rescinded under any of sections 76.01 to 76.1 but, if the order or finding has been amended one or more times under any of sections 76.01 to 76.1, as last so amended; (ordonnance ou conclusions)

  person

  person includes a partnership and an association; (personne)

  prescribed

  prescribed, in relation to a form, means prescribed by the President and, in any other case, means prescribed by regulation; (Version anglaise seulement)

  President

  President means the President of the Canada Border Services Agency appointed under subsection 7(1) of the Canada Border Services Agency Act; (président)

  prohibited subsidy

  prohibited subsidy means a subsidy that is prohibited by virtue of being

  • (a) an export subsidy, or

  • (b) a subsidy or portion of a subsidy that is contingent, in whole or in part, on the use of goods that are produced or that originate in the country of export; (subvention prohibée)

  properly documented

  properly documented, in relation to a complaint respecting the dumping or subsidizing of goods, means that

  • (a) the complaint

    • (i) alleges that the goods have been or are being dumped or subsidized, specifies the goods and alleges that the dumping or subsidizing has caused injury or retardation or is threatening to cause injury,

    • (ii) states in reasonable detail the facts on which the allegations referred to in subparagraph (i) are based, and

    • (iii) makes such other representations as the complainant deems relevant to the complaint, and

  • (b) the complainant provides

    • (i) the information that is available to the complainant to support the facts referred to in subparagraph (a)(ii),

    • (ii) such information as is prescribed, and

    • (iii) such other information as the President may reasonably require; (dossier complet)

  provisional duty

  provisional duty means duty imposed under section 8; (droits provisoires)

  regular member

  regular member[Repealed, R.S., 1985, c. 47 (4th Supp.), s. 52]

  release

  release means

  • (a) in respect of goods, to authorize the removal of the goods from a customs office, sufferance warehouse, bonded warehouse or duty free shop for use in Canada, and

  • (b) in respect of goods to which paragraph 32(2)(b) of the Customs Act applies, to receive the goods at the place of business of the importer, owner or consignee; (dédouanement)

  retardation

  retardation means material retardation of the establishment of a domestic industry; (retard)

  sale

  sale includes leasing and renting, an agreement to sell, lease or rent and an irrevocable tender; (vente)

  Secretary

  Secretary[Repealed, 2014, c. 20, s. 428]

  Subsidies Agreement

  Subsidies Agreement means the Agreement on Subsidies and Countervailing Measures, being part of Annex 1A to the WTO Agreement; (Accord sur les subventions)

  Subsidies and Countervailing Duties Agreement

  Subsidies and Countervailing Duties Agreement[Repealed, 1994, c. 47, s. 144]

  subsidized goods

  subsidized goods means

  • (a) goods in respect of the production, manufacture, growth, processing, purchase, distribution, transportation, sale, export or import of which a subsidy has been or will be paid, granted, authorized or otherwise provided, directly or indirectly, by the government of a country other than Canada, and

  • (b) goods that are disposed of by the government of a country other than Canada for less than fair market value,

  and includes any goods in which, or in the production, manufacture, growth, processing or the like of which, goods described in paragraph (a) or (b) are incorporated, consumed, used or otherwise employed; (marchandises subventionnées)

  subsidy

  subsidy means

  • (a) a financial contribution by a government of a country other than Canada in any of the circumstances outlined in subsection (1.6) that confers a benefit to persons engaged in the production, manufacture, growth, processing, purchase, distribution, transportation, sale, export or import of goods, but does not include the amount of any duty or internal tax imposed by the government of the country of origin or country of export on

    • (i) goods that, because of their exportation from the country of export or country of origin, have been exempted or have been or will be relieved by means of remission, refund or drawback,

    • (ii) energy, fuel, oil and catalysts that are used or consumed in the production of exported goods and that have been exempted or have been or will be relieved by means of remission, refund or drawback, or

    • (iii) goods incorporated into exported goods and that have been exempted or have been or will be relieved by means of remission, refund or drawback, or

  • (b) any form of income or price support within the meaning of Article XVI of the General Agreement on Tariffs and Trade, 1994, being part of Annex 1A to the WTO Agreement, that confers a benefit; (subvention)

  Tribunal

  Tribunal means the Canadian International Trade Tribunal established by subsection 3(1) of the Canadian International Trade Tribunal Act; (Tribunal)

  undertaking

  undertaking or undertakings means an undertaking or undertakings with respect to goods that are the subject of a dumping or subsidizing investigation under this Act given in writing to the President in any of the following circumstances:

  • (a) in the case of dumped goods, an undertaking given by an exporter who accounts for, or undertakings given individually by exporters who account for, all or substantially all the exports to Canada of the dumped goods where the exporter or each exporter, as the case may be, undertakes in his undertaking

    • (i) to revise, in the manner specified in his undertaking, the price at which he sells the goods to importers in Canada, or

    • (ii) to cease dumping the goods in Canada, and

  • (b) in the case of subsidized goods,

    • (i) an undertaking given by an exporter who accounts for, or undertakings given individually by exporters who account for, all or substantially all the exports to Canada of the subsidized goods, where the exporter or each exporter, as the case may be,

      • (A) has the consent of the government of the country of export of the goods to give the undertaking, and

      • (B) undertakes to revise, in the manner specified in his undertaking, the price at which he sells the goods to importers in Canada, or

    • (ii) an undertaking given by the government of a country that accounts for, or undertakings given by the governments of countries that account for, all or substantially all the exports to Canada of the subsidized goods where the country or each country, as the case may be, undertakes in its undertaking

      • (A) to eliminate the subsidy on goods exported to Canada from that country,

      • (B) to limit the amount of subsidy on goods exported to Canada from that country,

      • (C) to limit the quantity of the goods to be exported to Canada from that country, or

      • (D) otherwise to eliminate the effect of the subsidizing on the production in Canada of like goods,

      in the manner specified in its undertaking; (engagement ou engagements)

  United States government

  United States government means such department, agency or other body of the federal government of the United States as is prescribed; (gouvernement des États-Unis)

  WTO Agreement

  WTO Agreement has the meaning assigned to the term Agreement by subsection 2(1) of the World Trade Organization Agreement Implementation Act. (Accord sur l’OMC)

• Marginal note:When domestic industry based on regional markets

  (1.1) In exceptional circumstances, the territory of Canada may, for the production of any goods, be divided into two or more regional markets and the domestic producers of like goods in any of those markets may be considered to be a separate domestic industry where

  • (a) the producers in the market sell all or almost all of their production of like goods in the market; and

  • (b) the demand in the market is not to any substantial degree supplied by producers of like goods located elsewhere in Canada.

• Marginal note:Producers related to exporters or importers

  (1.2) For the purposes of the definition domestic industry in subsection (1), a domestic producer is related to an exporter or an importer of dumped or subsidized goods where

  • (a) the producer either directly or indirectly controls, or is controlled by, the exporter or importer,

  • (b) the producer and the exporter or the importer, as the case may be, are directly or indirectly controlled by a third person, or

  • (c) the producer and the exporter or the importer, as the case may be, directly or indirectly control a third person,

  and there are grounds to believe that the producer behaves differently towards the exporter or importer than does a non-related producer.

• Marginal note:Where there is deemed to be control

  (1.3) For the purposes of subsection (1.2), a person is deemed to control another person where the first person is legally or operationally in a position to exercise restraint or direction over the other person.

• Marginal note:When domestic support measure ceases to be a non-actionable subsidy

  (1.4) A domestic support measure referred to in paragraph (c) of the definition non-actionable subsidy in subsection (1) ceases to be a non-actionable subsidy on the day on which the implementation period in respect of the Agreement on Agriculture referred to in that paragraph, as defined in Article 1 of that Agreement for the purposes of Article 13 of that Agreement, expires.

• Marginal note:Threat of injury

  (1.5) For the purposes of this Act, the dumping or subsidizing of goods shall not be found to be threatening to cause injury or to cause a threat of injury unless the circumstances in which the dumping or subsidizing of goods would cause injury are clearly foreseen and imminent.

• Marginal note:Financial contribution

  (1.6) For the purposes of paragraph (a) of the definition subsidy in subsection (1), there is a financial contribution by a government of a country other than Canada where

  • (a) practices of the government involve the direct transfer of funds or liabilities or the contingent transfer of funds or liabilities;

  • (b) amounts that would otherwise be owing and due to the government are exempted or deducted or amounts that are owing and due to the government are forgiven or not collected;

  • (c) the government provides goods or services, other than general governmental infrastructure, or purchases goods; or

  • (d) the government permits or directs a non-governmental body to do any thing referred to in any of paragraphs (a) to (c) where the right or obligation to do the thing is normally vested in the government and the manner in which the non-governmental body does the thing does not differ in a meaningful way from the manner in which the government would do it.

• Definition of associated persons

  (2) For the purposes of this Act, the following persons are associated persons or persons associated with each other, namely,

  • (a) persons related to each other; or

  • (b) persons not related to each other, but not dealing with each other at arm’s length.

• Marginal note:Persons related to each other

  (3) For the purposes of subsection (2), persons are related to each other if

  • (a) they are individuals connected by blood relationship, marriage, common-law partnership or adoption within the meaning of subsection 251(6) of the Income Tax Act;

  • (b) one is an officer or director of the other;

  • (c) each such person is an officer or director of the same two corporations, associations, partnerships or other organizations;

  • (d) they are partners;

  • (e) one is the employer of the other;

  • (f) they directly or indirectly control or are controlled by the same person;

  • (g) one directly or indirectly controls or is controlled by the other;

  • (h) any other person directly or indirectly owns, holds or controls five per cent or more of the outstanding voting stock or shares of each such person; or

  • (i) one directly or indirectly owns, holds or controls five per cent or more of the outstanding voting stock or shares of the other.

• Marginal note:Persons dealing at arm’s length

  (4) For the purposes of paragraph (2)(b), it is a question of fact whether persons not related to each other were at a particular time dealing with each other at arm’s length.

• (5) [Repealed, 1994, c. 47, s. 144]

• Marginal note:Agreement affecting countervailing duty

  (6) Notwithstanding the definition amount of subsidy, where, in relation to any subsidized goods, the manufacturer, producer, vendor or exporter thereof or the government of a country other than Canada, undertakes, directly or indirectly in any manner whatever, to indemnify, pay on behalf of or reimburse the importer or purchaser in Canada of the goods for all or any part of the countervailing duty that may be levied on the goods, the amount of subsidy on the goods is, for the purposes of this Act, the amount of subsidy determined and adjusted in such manner as is provided under that definition plus the amount of the indemnity, payment or reimbursement.

• Marginal note:Interpretation of provisions that apply to both dumped and subsidized goods

  (7) Where, by its terms, any provision of this Act applies to both dumped and subsidized goods, the application of the provision

  • (a) to subsidized goods shall not be taken into account in an investigation, inquiry or other proceeding or matter under this Act relating to the dumping of goods; and

  • (b) to dumped goods shall not be taken into account in an investigation, inquiry or other proceeding or matter under this Act relating to the subsidizing of goods.

• Marginal note:Criteria and conditions for non-specificity

  (7.1) A subsidy is not specific where the criteria or conditions governing eligibility for, and the amount of, the subsidy are

  • (a) objective;

  • (b) set out in a legislative, regulatory or administrative instrument or other public document; and

  • (c) applied in a manner that does not favour or is not limited to a particular enterprise.

• Marginal note:When subsidy is specific

  (7.2) A subsidy is specific where it is

  • (a) limited, pursuant to an instrument or document referred to in paragraph (7.1)(b), to a particular enterprise within the jurisdiction of the authority that is granting the subsidy; or

  • (b) a prohibited subsidy.

• Marginal note:Determination of specificity by President

  (7.3) Notwithstanding that a subsidy is not limited in the manner referred to in paragraph (7.2)(a), the President may determine the subsidy to be specific having regard as to whether

  • (a) there is exclusive use of the subsidy by a limited number of enterprises;

  • (b) there is predominant use of the subsidy by a particular enterprise;

  • (c) disproportionately large amounts of the subsidy are granted to a limited number of enterprises; and

  • (d) the manner in which discretion is exercised by the granting authority indicates that the subsidy is not generally available.

• Marginal note:Additional considerations

  (7.4) Where any of the factors listed in paragraphs (7.3)(a) to (d) is present, the President shall consider whether the presence is due to

  • (a) the extent of diversification of economic activities within the jurisdiction of the granting authority, or

  • (b) the length of time that the subsidy program has been in operation,

  and where the President is of the opinion that the presence is due to one of the reasons set out in paragraph (a) or (b), the President may find the subsidy not to be specific notwithstanding that, were it not for that opinion, the President would have found the subsidy to be specific.

• Marginal note:Law relating to the customs

  (8) For greater certainty, this Act shall be considered, for the purposes of the Customs Act, to be a law relating to the customs.

• Marginal note:Powers, duties and functions of President

  (9) Any power, duty or function of the President under this Act may be exercised or performed by any person authorized by the President to do so and, if so exercised or performed, is deemed to have been exercised or performed by the President.

• Marginal note:Application of Customs Act

  (10) The Customs Act applies, with any modifications that the circumstances require, in respect of

  • (a) the payment, collection or refund of any duty levied or returned under this Act;

  • (b) the payment, collection, refund or waiver of interest on duty payable or returned under this Act; and

  • (c) the time within which duties payable under this Act, or security posted under this Act, are deemed to be paid or posted.