Thank you, Mr. Chair and honourable members.
I am Cyndee Todgham Cherniak, and I am chair of the Canadian Bar Association's commodity tax, customs and trade law section. The CBA is pleased to appear before you to provide views with respect to part 6, division 29, of Bill C-31.
The Canadian Bar Association is a national association representing over 37,500 members of the legal profession. Our primary objectives include improvement in the law and the administration of justice. It is through that lens that we have examined the portion of the bill.
We have carefully reviewed the Administrative Tribunals Support Service of Canada Act, which intends to restructure the administration support services of 11 federal administrative tribunals. The CBA's position is that division 29 of part 6 should be withdrawn from Bill C-31 for further consultation with the affected tribunals, the users, and the stakeholders. Should this portion of the bill proceed, the CBA recommends, at a minimum, the removal of the Canadian International Trade Tribunal, the Public Servants Disclosure Protection Tribunal, and the Canada Industrial Relations Board from the legislation.
We must consider the potential risks of the proposed merger. My comments will focus on: one, the risk that the merged entity will be inconsistent with Canada's international obligations; two, the risk that the separation of the staff from the individual tribunals will cause delays in the litigation process; three, the risk that putting the tribunal staff in a merged entity will diminish expertise; and four, the risk that the effectiveness of the tribunals will be diminished if their impartiality and independence is brought into question.
Impartiality and independence may be affected by the reporting structure of the merged entity, which may lead to actual bias, an apprehension of bias, and/or conflicts of interest. It is proposed that the merged entity will report to the Minister of Justice. The Minister of Justice is also the minister responsible for the Department of Justice.
For my part, as an international trade lawyer, I will focus on the impact the merger may have on the Canadian International Trade Tribunal. Canada's international trading partners may perceive the administrative staff of the CITT as protectionist and biased in favour of the Canadian government and Canadian businesses. Under the merged entity, the staff will report to the same minister as the lawyers who bring anti-dumping and customs enforcement actions against exporters and who defend the government procurement challenges filed by foreign bidders. Canada's trading partners may therefore question the independence, impartiality, and objectivity of the decisions of the Canadian International Trade Tribunal.
Turning to the risk of inconsistency with Canada's international obligations, our trading partners may question whether the merged entity is contrary to Canada's obligations under various WTO agreements and free trade agreements. I can assure you that it will not take long before a lawyer raises apprehension of bias, conflict of interest, and failure to abide by treaty obligations as reasons for challenging a CITT decision in a Canadian court, before the WTO dispute settlement body, or under an FTA dispute settlement mechanism.
Canada cannot control the outcome of a decision rendered pursuant to the WTO dispute settlement understanding or a free trade agreement. Negative decisions in the international arena are a real risk. If an international trade dispute is raised against the institutional procedures of the merged entity or the Canadian International Trade Tribunal itself, Canada may find itself having to compensate a foreign party or face retaliation under an international treaty.
If the remedy ordered by an international dispute settlement panel is a monetary amount—like NAFTA chapter 11—the cost may exceed any potential cost savings of the merger or, if retaliation is in the form of increased duties on Canadian goods by a foreign trading partner, Canadian manufacturers may be negatively affected in the international marketplace. The Department of Justice lawyers will have to defend challenges, and this will by itself result in a cost to the government.
There are also risks associated with possible delays in the litigation process. The risks of litigation increase if the timeliness of tribunals are affected by the structure of the merged entity. I can tell you that, based on personal experience, the legislative timeframes of cases before the Canadian International Trade Tribunal do not allow for delays.
The preliminary injury decision in an anti-dumping or countervailing duty case is 60 days from the date of initiation. A final injury decision must be released within 120 days of the preliminary determination of dumping. Cases before the CITT are not like litigation before the courts, which can drag on for years.
Lastly, there's a risk that the expertise of the tribunals may be diluted by the merger of the administrative support services. I can tell you from my own personal experience that the staff at the Canadian International Trade Tribunal have specialized expertise in trade matters that is unlike the expertise of the other 10 tribunals' staff.
Staff at the other tribunals cannot quickly step into the role of a CITT researcher who prepares anti-dumping injury questionnaires or compiles data for the pre-hearing staff report. Staff at the other tribunals do not have the same economic and trade analysis skills that the staff at the CITT have developed over the years. Legal support services staff would not have the same in-depth knowledge of Canada's international obligations.
Finally, the CITT staff receive confidential information from the parties who appear before the tribunal, and this confidential information is fundamental to finding the facts, applying the law, and coming up with the correct decision. The Canadian International Trade Tribunal staff are sensitive to the issues of confidentiality within the CITT act and the tribunal rules.
The credibility of the tribunal is at stake. We would like you to consider these important concerns in your deliberations.
Thank you.