The already precedent-setting attempt by the Canadian pasta manufacturing industry to block subsidized Italian pasta from coming freely into Canada took another strange twist last week.
The Canadian International Trade Tribunal, which for the first time has seen a court overturn one of its decisions, announced last week the case will be heard again by the same CITT members who earlier decided the domestic industry did not have a case for protection.
Lawyers for the pasta companies argued there could be a perception that the commissioners would carry a bias into the hearing, since they already have ruled against the domestic industry.
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They wanted a new tribunal panel to hear the case.
Request denied, the CITT said last week after a hearing. The ruling was made by the same three panel members who made the original decision.
“It was a delicate case to argue, since our lawyer knew if we lost, we could be facing these same guys when the issue is before them again,” said Don Jarvis of the Canadian Pasta Manufacturers Association.
It led company lawyers to carefully draw a line well short of accusing the CITT commissioners of bias.
Instead, lawyers argued that a new panel should be created to hear the case because there might be an appearance of bias. “The applicant does not suggest that the CITT tribunal is in fact biased but merely that a reasonable apprehension of bias exists.”
Panelists Anthony Eyton, Arthur Trudeau and Raynald Guay disagreed and decided they will listen to the evidence and make a second ruling, possibly after a public hearing in late April.
The pasta case already has made some legal history.
Last year, despite evidence that Italian pasta coming into Canada is being dumped, or sold below cost of production, and is taking an increasing share of the domestic market, the CITT ruled there was not sufficient evidence that imports were doing enough damage to the domestic industry to warrant anti-dumping duties.
The Canadian pasta manufacturers, which have received support from the Canadian Wheat Board, appealed that ruling to the courts.
For the first time, a CITT ruling was overturned and a new hearing ordered.
Didn’t understand situation
The Federal Court of Appeal decided that, based on the evidence of dumped imports and increasing market share, the CITT commissioners had missed the point.
“The tribunal has erred and manifestly, that error is unreasonable,” said the court. The CITT arrived at “contradictory and irreconcilable findings.”
With the same commissioners now poised to preside over a court-ordered second hearing, the pasta industry is waiting to find out if new evidence will be allowed or if they simply will be allowed to argue the old facts in hopes the commissioners now reach a different conclusion about the need for protection from unfair imports.
