Federal Appeal

Customs and Excise

President did not err in failing to find targeted dumping

Applicants manufactured power transformers in Canada. Applicants alleged that power transformers originating in or exported from Korea were being dumped into Canada and had caused and were threatening to cause material injury to production of like goods in Canada. Following investigation, president of Canada Border Services Agency made affirmative final determination of dumping under s. 41(1)(a) of Special Import Measures Act. Respondents applied for judicial review, disputing amount of profit president used in determining export price of power transformers for purposes of s. 25 of act. Respondents contested inclusion of profit data from applicants in calculation. In Hyundai Heavy Industries Co. v. ABB Inc. (2013), 235 A.C.W.S. (3d) 956 (F.C.A.), final determination was set aside and matter was referred back to president for re-determination. President re-opened investigation and made new final determination of dumping. Both applicants and respondents applied for judicial review. Applications dismissed. In first final determination, president gave no explanation for using profit data of two Canadian manufacturers, applicants. Court directed president to take care in determining whether or not Canadian manufacturers were at substantially same level as subject importer-distributor and if so, to provide further explanation to support conclusion. Court did not direct specific result. Care was taken in determining whether it was appropriate for president to use profit data of Canadian manufacturers in accordance with court’s directions in Hyundai. President did not fail to provide further explanation that court required as to why it was appropriate in circumstances to include data. President complied with court’s directions and trade level determination was reasonable. Respondents failed to establish that there was reasonable apprehension of bias on part of president. President did not err in calculating deductive export price by using respondents’ profit data. Language of act and Special Import Measures Regulations, supported propriety of president’s methodology and decision to use profit data of respondents was reasonable. President did not err in failing to find targeted dumping. Variation in individual transaction prices were found but they were not viewed as significant and president was not satisfied that they constituted evidence of targeted dumping. Section 30.2(2) of act was not engaged.

ABB Inc. v. Hyundai Heavy Industries Co. (Jul. 2, 2015, F.C.A., Johanne Gauthier J.A., Ryer J.A., and D.G. Near J.A., File No. A-189-14, A-195-14) 256 A.C.W.S. (3d) 595.

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