Executive Summary: Key Legal and Evidentiary Issues

• The Federal Court struck out the applicants’ Notice of Application challenging the CBSA President’s initiation of an anti-dumping investigation under section 31 of SIMA, finding the application was bereft of any possibility of success.

• The Court held that the CBSA President’s decision to initiate an investigation into dumping is a preliminary procedural step that does not affect rights, impose legal obligations, or cause prejudicial effects and is therefore not amenable to judicial review.

• The applicants’ argument that paragraph 31(2)(a) of SIMA grants a majority domestic producer a determinative legal right or “veto right” to prevent initiation of an investigation was rejected as unsupported by the text of SIMA and inconsistent with its overall legislative scheme.

• The Court found that subsection 31(2) must be read together with subsections 31(2.1), 31(3), 31(4) and subsection 2(1.1), which allow the CBSA President to interpret “domestic producers” and “domestic industry” and to exclude related or importing producers when determining standing.

• Allegations that the CBSA President failed to follow internal policy or practice and breached procedural fairness in not consulting Algoma or providing notice before initiation could not succeed because no reviewable administrative decision affecting rights was identified.

• The Court granted the Attorney General of Canada’s motion to strike the Notice of Application, without leave to amend, with costs, and directed the parties to file submissions on costs within 30 days of the date of the order.

Factual background and parties

Algoma Tubes Inc. is described as a Canadian manufacturer of oil country tubular goods (OCTG) with operations in Sault Ste. Marie, Ontario. The applicants state that Algoma has been the largest producer of OCTG in Canada in 2024 and 2025, and that its production accounts for the majority of Canadian OCTG production. Tenaris Global Services (Canada) Inc. is identified as the parent company of Algoma and a seller of OCTG in the Canadian market. Hydril Canadian Company LP is grouped with Algoma and Tenaris, and they are collectively referred to as the applicants. On June 20, 2025, Evraz Inc. NA Canada (which later changed its legal name to Interpro Pipe & Steel Inc.) and Welded Tube of Canada Corporation filed a complaint with the CBSA alleging that OCTG imported from a company in Türkiye, a company in South Korea, and affiliates of Tenaris in the United States, Mexico and the Philippines were being dumped and causing material injury to the domestic industry. On August 11, 2025, the CBSA President initiated an anti-dumping investigation into these imported OCTG pursuant to section 31 of SIMA. The applicants subsequently filed a Notice of Application for judicial review on September 9, 2025, challenging the President’s initiation decision.

Statutory framework under SIMA and standing provisions

The Court, referring to GRK Fasteners v Canada (Attorney General), notes that the purpose of SIMA is to protect Canadian manufacturers against dumping and subsidizing, and that Canadian authorities may impose duties on imported goods under SIMA. For the purposes of this order, the Court focuses on dumping only. Under subsection 31(1) of SIMA, the CBSA President shall initiate an investigation into dumping on their own initiative if there is reasonable indication that dumping has caused injury or is threatening to cause injury, and shall also initiate an investigation upon a written complaint if of the opinion that there is evidence of dumping and resulting injury or threat. Subsection 31(2), under the heading “Standing,” provides that no investigation may be initiated under subsection 31(1) as a result of a complaint unless: (a) the complaint is supported by domestic producers whose production represents more than fifty per cent of the total production of like goods by those domestic producers who express either support for or opposition to the complaint; and (b) the production of domestic producers who support the complaint represents 25 per cent or more of the total production of like goods by the domestic industry. Subsection 31(2.1) states that, for the purpose of paragraph 31(2)(a), if a domestic producer is an importer of, or is related to an exporter or importer of, allegedly dumped goods, “domestic producers” may, subject to subsection 2(1.1), be interpreted as meaning the rest of those domestic producers. Subsection 31(3) provides that in paragraph 31(2)(b), “domestic industry” means, subject to subsection 2(1.1), the domestic producers as a whole of the like goods, except that where a domestic producer is related to an exporter or importer of allegedly dumped goods, or is itself an importer of such goods, domestic industry may be interpreted as meaning the rest of those domestic producers. Subsection 31(4) defines when a domestic producer is “related to an exporter or importer,” including where one controls the other directly or indirectly, both are controlled by a third person, or when there are grounds to believe the producer behaves differently towards the exporter or importer than does a non-related producer. The Court also summarizes the broader SIMA process: once the CBSA President initiates an investigation, the President must notify the CITT and others and publish notice in the Canada Gazette; the CITT must then make a preliminary inquiry into whether the evidence discloses a reasonable indication of injury or threat of injury, and if it concludes otherwise, the President shall terminate the investigation. The President must make a preliminary determination of dumping between day 60 and day 90, and may terminate the investigation if the volume of dumping is negligible or if there has been no dumping or the margin is insignificant, whereas a final determination of dumping under paragraph 41(1)(b) must be made for goods where the investigation is not terminated. The CITT, after receiving the notice of preliminary determination, undertakes an injury inquiry and, within a specified time after final determinations, makes any applicable order or finding, but only if the CBSA President issues a final determination. Section 96.1 of SIMA provides that applications may be made to the Federal Court of Appeal to review and set aside certain decisions of the CBSA President and the CITT, including decisions to terminate an investigation under paragraph 41(1)(a) and final determinations of dumping under paragraph 41(1)(b). Subsection 96.1(2) lists the grounds on which such applications may be made, including jurisdictional errors, failures to observe principles of natural justice or procedural fairness, errors of law, erroneous findings of fact made in a perverse or capricious manner or without regard to the material, fraud or perjured evidence, and acting in a way that is otherwise contrary to law.

Applicants’ challenge to the initiation decision and their standing arguments

In their Notice of Application, the applicants assert that a threshold issue in initiating an anti-dumping investigation is whether the complaint has sufficient support from the domestic industry and rely heavily on subsection 31(2) for this position. They acknowledge that paragraph 31(2)(b) was met but argue that paragraph 31(2)(a) was not, because Algoma opposed the complaint and, in their view, the only domestic producers supporting the complaint (the corporate respondents) represented less than 50 per cent of Canadian production. They allege that after the complaint was filed, the CBSA did not consult with Algoma before initiating the investigation. According to the applicants, Algoma learned from press releases that the complaint had been filed, and then Algoma and Tenaris put material before the CBSA President showing that Algoma represented the majority of domestic production and expressly opposed the complaint. They claim that the CBSA President did not engage with Algoma or Tenaris and wrongly excluded Algoma from the domestic industry. The applicants allege that because Algoma alone represents the majority of Canadian OCTG production, its opposition would and should have been determinative, so that the standing requirements under subsection 31(2) were not met and the President was not permitted to initiate an investigation. They also allege that the CBSA deviated from its policy and practice of engaging with known and potential Canadian producers before initiating an investigation, including by sending “standing orders.” They further assert that Algoma’s exclusion as a “related” producer was unreasonable under subsection 31(4), arguing there was insufficient justification and no evidence that Algoma behaved differently than a non-related producer, and they characterize exclusion from the domestic industry under subsection 31(3) as “a matter of discretion” rather than an automatic exclusion. On this basis, they claim both reviewable errors in the President’s initiation decision and breaches of procedural fairness, including failure to advise Algoma about the complaint and failure to provide reasonable notice regarding its potential exclusion from the domestic industry under the complaint.

Attorney General’s motion to strike and written determination

The Attorney General of Canada brought a motion, in writing under Rule 369 of the Federal Courts Rules, to strike the applicants’ Notice of Application without leave to amend. The AGC submitted that the Court lacked jurisdiction over the Notice of Application, that the applicants were not directly affected by the CBSA President’s initiation of the investigation, and that the application was premature. The corporate respondents supported the motion and argued that the President’s decision to initiate an anti-dumping investigation does not affect legal rights, privileges or interests and does not give rise to a duty of fairness, and that the application is premature. The applicants opposed having the motion decided in writing and argued that the motion should proceed by way of oral hearing. They referred to Al Omani v R and submitted that motions to strike are often complex, that this matter is novel and complex due to the interplay of subsections 31(1) and 31(2) and reliance on older case law, that both parties had sought extensions to put submissions in logical sequence, and that the importance of oral advocacy supports an oral hearing. Justice Go found that, although the motion involved complex issues, complexity alone did not necessitate an oral hearing in this case. The Court observed that the legal principles applicable to motions to strike are the same regardless of the specific SIMA provisions at issue, the records were not voluminous, they contained only legal argument and no evidence, and all parties were represented by competent counsel who had filed comprehensive submissions. On that basis, the Court determined that the motion could be appropriately dealt with in writing.

Legal principles for motions to strike and amenability to judicial review

The Court set out the legal principles governing a motion to strike a Notice of Application for judicial review. It noted that the jurisdiction to strike is grounded in the Court’s plenary jurisdiction to restrain misuse or abuse of its process. Relying on JP Morgan Asset Management (Canada) Inc. v Canada (National Revenue), the Court reiterated that a notice of application will only be struck if it is so clearly improper as to be bereft of any possibility of success, and that there must be a “show stopper” or “knockout punch” revealing an obvious, fatal flaw at the root of the Court’s power to entertain the application. The Court emphasized that, in considering such a motion, it must read the application as a whole to understand its “real essence” and “essential character,” and should not fixate on matters of form. It also referred to Empire Company Limited v Canada (Attorney General) and noted that a decision that does not affect rights, impose legal obligations, or cause prejudicial effects is not amenable to judicial review. The AGC argued, and the Court accepted, that the CBSA President’s initiation of an investigation under section 31 of SIMA is a preliminary procedural step without a “triggering impact” within the meaning discussed in Empire Company. The Court referred to earlier decisions such as Shaw Industries, Inc v Canada (MNR) and Ronald A Chisholm Ltd v Canada (MNR), which described initiation of an investigation into dumping as an initial stage of a process that does not, at that point, give rise to a lis between specific parties, as the interests at stake extend beyond any particular importer and interested parties may later make submissions to the Tribunal on material injury.

Rejection of the alleged veto right and effect of SIMA’s remedial structure

The applicants argued that their application should be understood as challenging the President’s initiation of an investigation without satisfying the standing condition under paragraph 31(2)(a), and they contended that paragraph 31(2)(a) is a mandatory condition that does not depend on the President’s opinion, unlike subsection 31(1). They submitted that, on the assumption that Algoma constitutes more than 50 per cent of domestic production, paragraph 31(2)(a) affords Algoma a determinative legal right to prevent initiation of the investigation and described this as a “veto right.” The Court found these submissions unpersuasive. It held that SIMA does not afford domestic producers an “effective veto right,” and that in deciding whether to initiate an investigation based on a complaint the CBSA President must consider several factors, including but not limited to paragraphs 31(2)(a) and (b). The Court noted that, by their own arguments about the discretion in excluding domestic producers and the alleged unreasonable application of subsection 31(4), the applicants effectively acknowledged that the President retains discretion when determining who constitutes the domestic producers and domestic industry and whether to exclude a producer. The Court concluded that the applicants were asking it to draw a legal conclusion—that Algoma has a veto right—not grounded in the statute and inconsistent with the legislative scheme. The Court also discussed a line of cases in which various CBSA determinations under SIMA have been found not amenable to judicial review, including Toyota Tsusho America Inc. v Canada (Border Services Agency), GRK Fasteners, Prudential Steel decisions, Prairies Tubulars (2015) Inc. v Canada (Border Services Agency), Husteel Co Ltd v Canada (Attorney General), and Çolakoglu Metalurji A.S. v Altasteel Inc. It highlighted that those decisions stress the comprehensive nature of the SIMA redetermination and appeal scheme and the principle, from C.B. Powell Ltd. v Canada (Border Services Agency), that courts should not interfere with ongoing administrative processes absent exceptional circumstances until they are completed or available effective remedies are exhausted. The Court noted that accepting the applicants’ position would undermine the “orderly and escalating series of reviews of determinations” established in SIMA and that a judicial review of the type attempted here would “run roughshod” over that legislative scheme, echoing the reasoning in Çolakoglu Metalurji A.S. The Court further observed that section 96.1(2) of SIMA provides broad grounds on which final decisions enumerated in subsection 96.1(1) may be challenged before the Federal Court of Appeal, which can include arguments based on alleged errors or procedural unfairness occurring during the administrative process, including at earlier stages.

Outcome, effect on procedural fairness claims, and costs

Having rejected the applicants’ assertion of a statutory “veto right” under paragraph 31(2)(a), the Court concluded that the President’s initiation of the investigation into dumping is not amenable to judicial review because it does not affect rights, impose legal obligations, or cause prejudicial effects. On that basis, the Court held that the Notice of Application is bereft of any possibility of success and that this constitutes the type of “show stopper” or “knockout punch” required to strike an application. The Court also addressed the applicants’ procedural fairness arguments. It relied on authority stating that a right to procedural fairness arises only where the matter affects a party’s rights, privileges or interests. Because the applicants had not demonstrated that the initiation decision affected their rights, the Court held that they could not proceed on procedural fairness grounds without first establishing a reviewable administrative decision. The Court recognized the applicants’ point that an application under section 96.1 of SIMA is subject to the requirement that the matter complained of could result in one of the remedies in subsection 96.1(6), but it accepted the AGC’s submission that final decisions under subsection 96.1(1) may be challenged, in appropriate cases, on the basis of interlocutory matters that occurred during the administrative process. In the conclusion, the Court granted the Attorney General of Canada’s motion. In its formal order, the Court stated that the motion for an order striking out the Notice of Application of the applicants, without leave to amend, is granted, with costs. It further ordered that the parties file their submissions on costs within 30 days of the date of the order. The reasons do not specify any exact monetary amount for costs.