Guidelines on the disclosure of confidential information in dumping and subsidy investigations
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.
Treatment of confidential information
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 and payment of the prescribed fee. 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.
Disclosure of confidential information to counsel for a party to a proceeding
Information will be disclosed under SIMA to independent counsel for parties to proceedings. 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. The CBSA must have evidence of counsel's authority to represent the concerned party in the proceedings. The party to the proceedings must provide the CBSA with a letter indicating that counsel is acting in the proceedings on their behalf.
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 CITT or with a North American Free Trade Agreement (NAFTA) Binational Panel.
Non-confidential information relating to a dumping or subsidy proceeding will be disclosed to any person on request and payment of the fee.
Parties and proceedings
SIMA proceedings include dumping and subsidy investigations, re-investigations and expiry reviews. Parties to these proceedings can include the Canadian complainant, any domestic or foreign producer, exporter to Canada or importer into Canada of the goods under investigation. It 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.
Disclosure of confidential information can only be made to counsel who is acting for a party to a proceeding.
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
- to use the information exclusively for duties performed in respect of the subject proceeding;
- not to divulge the information except to personnel of the Trade and Anti-dumping Programs Directorate;
- protect the information in a specified manner;
- not to reproduce the information unless prior approval is provided by the CBSA;
- destroy the information on completion of the proceeding, and notify the CBSA of the destruction of the information;
- report any violations or suspected violations of a Disclosure Undertaking to the CBSA.
The President will require a written statement from counsel certifying to these matters. An approved template for a Disclosure Undertaking can be found here.
Procedure to request disclosure
Counsel must submit the original plus one copy of the 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 proceeding.
Counsel may request access to confidential information at any time during the proceedings. Counsel should allow 48 hours for the processing of these requests. Larger requests may require more time to process.
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.
Upon receipt of the completed Disclosure Undertaking, the CBSA will determine whether or not the requested information will be disclosed. Where information will be disclosed, a notice of disclosure will be sent, requesting that counsel contact the SIMA Registry to make arrangements to receive the documents. The SIMA Registry is on the 11th floor, 100 Metcalfe Street, Ottawa, and can be reached at 613-948-4605.
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 notify the CBSA of their destruction. These activities must be completed within 30 days after the party filed notice with the CBSA that counsel has changed.
Counsel must destroy all documents and materials containing information disclosed under the conditions of this Disclosure Undertaking, including notes, charts and memoranda based on such information and to notify 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 these proceedings, whichever is the earlier.
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.
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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