Guidelines on the Disclosure of Confidential Information in SIMA Proceedings
These guidelines outline the Canada Border Services Agency's (CBSA) policies and procedures with respect to the disclosure of confidential information under the Special Import Measures Act (SIMA). The guidelines do not supplant the provisions of SIMA.
Please note that non-confidential information relating to a SIMA proceeding will be disclosed to any person on request and payment of the prescribed fee.
The following forms are referenced throughout these guidelines:
- Letter of Authorization
- Disclosure Undertaking
- Disclosure Undertaking (Non-resident Counsel)
- Certificate of Destruction
Templates for these forms are available in the Counsel toolkit.
Proceedings, Parties and Counsel
SIMA proceedings include dumping and subsidy investigations, re-investigations and expiry review investigations.
Parties to these proceedings can include the Canadian complainant, any domestic or foreign producer, and exporters to Canada or importers into Canada of the goods under investigation. Parties can also include an association of domestic or foreign producers, exporters to Canada or importers into Canada of goods under investigation and the government of any country mentioned in the dumping or subsidy complaint.
Counsel includes any person, other than a director, servant or employee of the party, who acts in the proceedings on behalf of the party. Counsel is not limited to legal counsel. Disclosure of confidential information can only be made to counsel who is acting for a party to the proceedings. The CBSA must have evidence of counsel's authority to represent the concerned party in the proceedings. To ensure the CBSA has adequate evidence to this effect, the party to the proceedings must provide the CBSA with a letter of authorization indicating that counsel is acting in the proceedings on their behalf.
Treatment of Confidential Information by the CBSA
SIMA provides that information designated as confidential shall not be disclosed by any public servant to any business competitor or rival of any person to whose business or affairs the information relates.
Nevertheless, where confidential information has been provided to the CBSA in any proceedings under SIMA, the CBSA is required to disclose the confidential information to independent counsel for a party to those proceedings or to other proceedings under SIMA arising out of those proceedings, upon written request. The information is to be used by counsel only in those proceedings.
Disclosure will be subject to any conditions that the CBSA considers necessary to ensure that the information will not be disclosed to any person by counsel in any manner.
The CBSA will not disclose confidential information if it believes that the disclosure might result in material harm to the business or affairs of the person who designated the information as confidential. An example would be where there is reason to believe that counsel has violated a Disclosure Undertaking in the past with the CBSA, with the Canadian International Trade Tribunal or with a North American Free Trade Agreement Binational Panel.
Procedure to Request Disclosure During a Proceeding
Before making requests for confidential information, counsel must obtain approval from a Director of the Trade and Anti-dumping Programs Directorate of the CBSA. Approval may be obtained by submitting a completed disclosure undertaking to the SIMA Registry. Counsel may submit a disclosure undertaking at any time during the proceedings.
Counsel must submit a completed disclosure undertaking as well as a copy of the letter of authorization, signed by the party they represent, informing the CBSA that they have retained such counsel to represent them in the proceedings. Counsel should allow 4 business days for the processing of these documents.
If counsel is seeking access to confidential information filed with the CBSA in the course of previous proceedings under SIMA, a separate disclosure undertaking is required. Information from previous proceedings will be disclosed only where the current proceedings have arisen directly out of those previous proceedings.
Counsel will be notified if disclosure is authorized. Counsel may then request access to confidential information related to the proceeding. Please refer to the section below titled ‘Procedure to request confidential information as counsel for a party to a proceeding’ for more information.
Where disclosure is not granted, a letter to counsel will provide reasons.
Where the party to the proceeding changes counsel during a proceeding, the party must submit a letter identifying the previous counsel and stating that such counsel no longer acts on their behalf and a letter of authorization identifying the new counsel. The new counsel will be required to file a disclosure undertaking with the CBSA in order to gain access to confidential information. In such cases, the first counsel must destroy confidential documents and materials that have been obtained under SIMA and provide the CBSA with a certificate of destruction confirming their destruction. These activities must be completed within 30 days after the party filed notice with the CBSA that counsel has changed.
The disclosure undertaking is the document that outlines the conditions under which disclosure of confidential information is granted. By signing a disclosure undertaking, counsel agrees, in part:
- to use the information exclusively for duties performed in respect of the proceeding;
- not to divulge the information except to personnel of the Trade and Anti-dumping Programs Directorate;
- to protect the information in a specified manner;
- not to reproduce the information unless prior approval is provided by the CBSA;
- to destroy the information on completion of the proceeding, and notify the CBSA of the destruction of the information; and
- to report any violations or suspected violations of a Disclosure Undertaking to the CBSA.
The CBSA will require a written statement from counsel certifying to these matters. Please refer to the disclosure undertaking template available in the toolkit.
The CBSA may disclose confidential information to counsel who is not a resident of Canada under certain conditions. In addition to the conditions imposed on Canadian counsel, non-resident counsel must agree to have access to the confidential information under the direction and control of a Canadian counsel who has been authorized by a Director to receive disclosure in the proceedings and must agree to access the confidential information at the Canadian offices of Canadian counsel or at the offices of the CBSA in Ottawa, Ontario. Please refer to the disclosure undertaking – (non-resident counsel) template, available in the toolkit, for complete information on the declarations, undertakings and acknowledgements necessary from non-resident counsel and Canadian counsel in this regard.
Procedure to Request Confidential Information as Counsel for a Party to a Proceeding
If you are counsel for a party to a proceeding under SIMA, your request for confidential information must be sent to the SIMA Registry. In your request for confidential information, please clearly identify the specific exhibit numbers you wish to obtain. The CBSA’s service standard is to process these requests within 2 business days. Please be sure you have received notice from a Director of the Trade and Anti-dumping Programs Directorate that disclosure has been authorized before making your request; refer to the section above titled ‘Procedure to request disclosure during a proceeding’ for information on how to obtain Director approval.
Where copies of confidential documents are provided to counsel, payment of the prescribed fee is required. At the time the copies are released to counsel, a letter will advise of the total cost of the reproduction and indicate that a bill will be sent at a later date. These bills will be sent quarterly and will cover all charges for the previous three months.
Procedure Upon Completion of the Proceedings
Counsel must destroy all documents and materials containing information disclosed under the conditions of the disclosure undertaking, including notes, charts and memoranda based on such information and notify the CBSA that such documents and materials have been destroyed within 30 days of the completion of the subject proceedings or within 30 days of the end of their participation in the proceedings, whichever is earlier.
The CBSA will require a written statement from counsel certifying to these matters. Please refer to the certificate of destruction template available in the toolkit.
Section 96.4 of SIMA outlines the offences and penalties associated with contraventions of disclosure provisions. An offence is committed where a person uses information disclosed to that person for any purpose other than the purpose for which it was disclosed. An offence is also committed where a person contravenes a condition imposed by the CBSA.
Every person who commits one of the above offences is guilty of an indictable offence and liable to a fine of not more than $1,000,000; or an offence punishable on summary conviction and liable to a fine of not more than $100,000.
For further information regarding disclosure provisions, please contact the SIMA Registry.
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