The Canadian pasta-making industry is back in court in its continuing, unprecedented legal challenge to decisions of the Canadian International Trade Tribunal.
This time, it is to protest a decision that the same three tribunal members who earlier denied the industry protection from dumped imports now will hear the court-ordered appeal.
“The applicant does not want the re-hearing of this matter to take place before a panel composed of the same members who heard the matter at the first hearing because the applicant believes such a panel has the appearance of a bias in favor of deciding the matter in the same way as their first disposition,” Don Jarvis of the pasta makers’ association said in an affidavit filed last week with the Federal Court of Appeal.
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At issue is a tribunal judgment last year that found even though pasta from Italy is being dumped, sometimes at subsidized prices and is taking an increasing share of the domestic market, there is no evidence of enough damage to the Canadian industry to warrant duty protection.
Help from the wheat board
The pasta makers, with support from the Canadian Wheat Board which sells hundreds of thousands of tonnes of durum each year to pasta plants, went to court to protest the decision.
For the first time ever, the federal court overruled a tribunal decision and ordered a new hearing for the pasta makers. It ruled that the tribunal had erred because the evidence it accepted contradicted the decision it made.
However, when plans for the new hearings were announced, the tribunal decided the same three panelists would preside again.
The pasta manufacturers thought this was unfair, since the panelists had already considered the evidence and ruled against it. But when they went before the tribunal to argue the panelists could be biased and should be replaced, they had to make the argument to the same three, who ruled they would not be biased.
This sent the pasta manufacturers back to court last week, asking a judge to order three new members to rehear the case.
Jarvis said in an interview it is unclear when the court will rule, or what effect this latest twist will have on the final resolution of the industry’s attempt to protect itself from what it considers unfair European Union competition.
