Part II: Commencement of Panel Review Rules (Rules 33-41)

Notice of Intent to Commence Judicial Review

33. (1) Where an interested person intends to commence judicial review of a final determination, the interested person shall

(a)  where the final determination was made in Canada, publish a notice to that effect in the Canada Gazette and serve a Notice of Intent to Commence Judicial Review on both involved Secretaries and on all persons listed on the service list; and
(b)  where the final determination was made in Mexico or the United States, within 20 days after the date referred to in subrule (3)(b) or (c), serve a Notice of Intent to Commence Judicial Review on

(i)  both involved Secretaries,
(ii)  the investigating authority, and
(iii) all persons listed on the service list.

(2)  Where the final determination referred to in subrule (1) was made in Canada, the Secretary of the Canadian Section of the Secretariat shall serve a copy of the Notice of Intent to Commence Judicial Review on the investigating authority.

(3)  Every Notice of Intent to Commence Judicial Review referred to in subrule (1) shall include the following information (model form provided in the Schedule):

(a)  the information set out in subrules 55(1)(c) to (f);
(b)  the title of the final determination for which judicial review is sought, the investigating authority that issued the final determination, the file number assigned by the investigating authority and, if the final determination was published in an official publication, the appropriate citation, including the date of publication; and
(c)  the date on which the notice of the final determination was received by the other Party if the final determination was not published in an official publication.

Request for Panel Review

34. (1) A Request for Panel Review shall be made in accordance with the requirements of

(a)  section 77.011 or 96.21 of the Special Import Measures Act, as amended, and any regulations made thereunder;
(b)  section 516A of the Tariff Act of 1930, as amended, and any regulations made thereunder;
(c)  section 404 of the United States North American Free Trade Agreement Implementation Act and any regulations made thereunder; or
(d)  articles 97 and 98 of the Ley de Comercio Exterior and its regulations.

(2)  A Request for Panel Review shall contain the following information (model form provided in the Schedule):

(a)  the information set out in subrule 55(1);  
(b)  the title of the final determination for which panel review is requested, the investigating authority that issued the final determination, the file number assigned by the investigating authority and, if the final determination was published in an official publication, the appropriate citation;
(c)  the date on which the notice of the final determination was received by the other Party if the final determination was not published in an official publication;
(d)  where a Notice of Intent to Commence Judicial Review has been served and the sole reason that the Request for Panel Review is made is to require review of the final determination by a panel, a statement to that effect; and
(e)  the service list, as defined in rule 3.

35.  (1)  On receipt of a first Request for Panel Review, the responsible Secretary shall

(a) forthwith forward a copy of the Request to the other involved Secretary;
(b)  forthwith inform the other involved Secretary of the Secretariat file number; and
(c)  serve a copy of the first Request for Panel Review on the persons listed on the service list together with a statement setting out the date on which the Request was filed and stating that

(i)  a Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with rule 39 within 30 days after the filing of the first Request for Panel Review,
(ii)  a Party, an investigating authority or other interested person who does not file a Complaint but who intends to participate in the panel review shall file a Notice of Appearance in accordance with rule 40 within 45 days after the filing of the first Request for Panel Review, and
(iii)  the panel review will be limited to the allegations of error of fact or law, including challenges to the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review and to the procedural and substantive defenses raised in the panel review.

(2)  On the filing of a first Request for Panel Review, the responsible Secretary shall forthwith publish a notice of that Request in the official publications of the involved Parties, stating that a Request for Panel Review has been received and specifying the date on which the Request was filed, the final determination for which panel review is requested and the information set out in subrule (1)(c).

Joint Panel Reviews

36. (1)  Subject to rule 37, where

(a)  a panel is established to review a final determination made under paragraph 41(1)(a) of the Special Import Measures Act, as amended, with respect to particular goods of the United States or Mexico and a Request for Panel Review of a final determination made under subsection 43(1) of that Act with respect to those goods is filed, or
(b)  a panel is established to review a final determination made under section 705(a) or 735(a) of the Tariff Act of 1930, as amended, with respect to particular goods of Canada or Mexico and a Request for Panel Review of a final determination made under section 705(b) or 735(b) of that Act with respect to those goods is filed, within 10 days after that Request is filed, a participant in the former panel review, the investigating authority in the latter panel review or an interested person listed in the service list of the latter panel review may file a motion in the former panel review requesting that both final determinations be reviewed jointly by one panel.

(2) Any participant in the former panel review, the investigating authority in the latter panel review or an interested person listed in the service list of the latter panel review who certifies an intention to become a participant in the latter panel review may, within 10 days after a motion is filed under subrule (1), file an objection to the motion, in which case the motion shall be deemed to be denied and separate panel reviews shall be held.

37. (1)  Where a panel is established to review a final determination made under paragraph 41(1)(a) of the Special Import Measures Act, as amended, that applies with respect to particular goods of the United States or Mexico and a Request for Panel Review of a negative final determination made under subsection 43(1) of that Act with respect to those goods is filed, the final determinations shall be reviewed jointly by one panel.

(2)  Where a panel is established to review a final determination made under section 705(a) or 735(a) of the Tariff Act of 1930, as amended, that applies with respect to particular goods of Canada or Mexico and a Request for Panel Review of a negative final determination made under section 705(b) or 735(b) of that Act with respect to those goods is filed, the final determinations shall be reviewed jointly by one panel.

38.  (1)  Subject to subrules (2) and (3), where final determinations are reviewed jointly pursuant to rule 36 or 37, the time periods fixed under these rules for the review of the final determination made under subsection 43(1) of the Special Import Measures Act, as amended, or section 705(b) or 735(b) of the Tariff Act of 1930, as amended, shall apply to the joint review, commencing with the date fixed for filing briefs pursuant to rule 57.

(2)  Unless otherwise ordered by a panel as a result of a motion under subrule (3), where final determinations are reviewed jointly pursuant to rule 37, the panel shall issue its decision with respect to the final determination made under subsection 43(1) of the Special Import Measures Act, as amended, or section 705(b) or 735(b) of the Tariff Act of 1930, as amended, and where the panel remands the final determination to the investigating authority and the Determination on Remand is affirmative, the panel shall thereafter issue its decision with respect to the final determination made under paragraph 41(1)(a) of the Special Import Measures Act, as amended, or section 705(a) or 735(a) of the Tariff Act of 1930, as amended.

(3)  Where the final determinations are reviewed jointly pursuant to rule 36 or 37, any participant may, unilaterally or with the consent of the other participants, request by motion that time periods, other than the time periods referred to in subrule (1), be fixed for the filing of pleadings, oral proceedings, decisions and other matters.

(4)  A Notice of Motion pursuant to subrule (3) shall be filed no later than 10 days after the date fixed for filing Notices of Appearance in the review of the final determination made under subsection 43(1) of the Special Import Measures Act, as amended, or section 705(b) or 735(b) of the Tariff Act of 1930, as amended.

(5)  Unless otherwise ordered by a panel, where the panel has not issued a ruling on a motion filed pursuant to subrule (3) within 30 days after the filing of the Notice of Motion, the motion shall be deemed denied.

Complaint

39.  (1)  Subject to subrule (3), any interested person who intends to make allegations of errors of fact or law, including challenges to the jurisdiction of the investigating authority, with respect to a final determination, shall file with the responsible Secretariat, within 30 days after the filing of a first Request for Panel Review of the final determination, a Complaint, together with proof of service on the investigating authority and on all persons listed on the service list.

(2) Every Complaint referred to in subrule (1) shall contain the following information (model form provided in the Schedule):

(a)  the information set out in subrule 55(1);
(b)  the precise nature of the Complaint, including the applicable standard of review and the allegations of errors of fact or law, including challenges to the jurisdiction of the investigating authority;
(c)  a statement describing the interested person’s entitlement to file a Complaint under this rule; and (d)  where the final determination was made in Canada, a statement as to whether the complainant

(i)  intends to use English or French in pleadings and oral proceedings before the panel, and
(ii)  requests simultaneous translation of any oral proceedings.

(3)  Only an interested person who would otherwise be entitled to commence proceedings for judicial review of the final determination may file a Complaint.

(4)  Subject to subrule (5), an amended Complaint shall be filed no later than 5 days before the expiration of the time period for filing a Notice of Appearance pursuant to rule 40.

(5)  An amended Complaint may, with leave of the panel, be filed after the time limit set out in subrule (4) but no later than 20 days before the expiration of the time period for filing briefs pursuant to subrule 57(1).

(6)  Leave to file an amended Complaint may be requested of the panel by the filing of a Notice of Motion for leave to file an amended Complaint accompanied by the proposed amended Complaint.

(7)  Where the panel does not grant a motion referred to in subrule (6) within the time period for filing briefs pursuant to subrule 57(1), the motion shall be deemed to be denied.

Notice of Appearance

40.  (1)  Within 45 days after the filing of a first Request for Panel Review of a final determination, the investigating authority and any other interested person who proposes to participate in the panel review and who has not filed a Complaint in the panel review shall file with the responsible Secretariat a Notice of Appearance containing the following information (model form provided in the Schedule):

(a)  the information set out in subrule 55(1);
(b)  a statement as to the basis for the person’s claim of entitlement to file a Notice of Appearance under this rule;
(c)  in the case of a Notice of Appearance filed by the investigating authority, any admissions with respect to the allegations set out in the Complaints;
(d)  a statement as to whether appearance is made

(i)  in support of some or all of the allegations set out in a Complaint under subrule 39(2)(b),
(ii)  in opposition to some or all of the allegations set out in a Complaint under subrule 39(2)(b), or (iii) in support of some of the allegations set out in a Complaint under subrule 39(2)(b) and in opposition to some of the allegations set out in a Complaint under subrule 39(2)(b); and

(e)  where the final determination was made in Canada, a statement as to whether the person filing the Notice of Appearance

(i)  intends to use English or French in pleadings and oral proceedings before the panel, and
(ii)  requests simultaneous translation of any oral proceedings.

(2)  Any complainant who intends to appear in opposition to allegations set out in a Complaint under subrule 39(2)(b) shall file a Notice of Appearance containing the statements referred to in subrules (1)(b) and (1)(d)(ii) or (iii).

Record for Review

41.  (1)  The investigating authority whose final determination is under review shall, within 15 days after the expiration of the time period fixed for filing a Notice of Appearance, file with the responsible Secretariat

(a)  nine copies of the final determination, including reasons for the final determination;
(b)  two copies of an Index comprised of a descriptive list of all items contained in the administrative record, together with proof of service of the Index on all participants; and
(c)  subject to subrules (3), (4) and (5), two copies of the administrative record.

(2)  An Index referred to in subrule (1) shall, where applicable, identify those items that contain proprietary information, privileged information or government information by a statement to that effect.

(3)  Where a document containing proprietary information is filed, it shall be filed under seal in accordance with rule 44.

(4)  No privileged information shall be filed with the responsible Secretariat unless the investigating authority waives the privilege and voluntarily files the information or the information is filed pursuant to an order of a panel.

(5)  No government information shall be filed with the responsible Secretariat unless the investigating authority, after having reviewed the government information and, where applicable, after having pursued appropriate review procedures, determines that the information may be disclosed.