Canadian Trade Law Year In Review, 2025

In this fourth edition of our Canadian Trade Law Year in Review, the team at CLK Canada has reviewed and summarized important judicial and administrative decisions from 2025 that will be of interest and use to trade law practitioners and stakeholders alike. These decisions are divided according to their subject area, with this year's review covering important decisions made pursuant to the Special Import Measures Act, the Customs Act and Customs Tariff, the Special Economic Measures Act and Canada's free trade agreements. In the broader context of significant changes to Canada's federal procurement regime in 2025, including new "Buy Canadian" and reciprocal procurement policies, we have also summarized some of the most important federal procurement law decisions from 2025.

THE SPECIAL IMPORT MEASURES ACT - CITT

This section reviews four trade remedies decisions of the Canadian International Trade Tribunal (the "CITT") made pursuant to the Special Import Measures Act ("SIMA"). In three of these cases, the CITT addressed significant threshold issues at the Preliminary Inquiry stage that either disposed of the matter at that stage or resurfaced as recurring issues during the Final Inquiry. Of particular interest here, the CITT added additional clarity to the meaning of "domestic industry" in Renewable Diesel (May 5, 2025), PI-2024-004, discussed below. Further, in Hot-rolled Carbon Steel Plate (December 17, 2025), RR-2024-008, the CITT opined on the impact of Canada's new steel tariff-rate quotas ("TRQ") and provided helpful guidance on the impact of U.S. Section 232 steel tariffs.

The number of trade remedies cases initiated by the Canada Border Services Agency ("CBSA") over 2025 was the highest number on record since 2001. The majority of the trade remedies cases initiated by the CBSA in 2025 will not conclude until 2026. As such, 2026 is set to be one of the most active years—if not the most active year—for trade remedies in Canada's history.

Polyethylene Terephthalate (October 15, 2025), NQ-2025-002 (Reasons Not Yet Published Online)

On October 15, 2025, the CITT determined that Polyethylene Terephthalate ("PET") resin manufactured in or exported from China and Pakistan had caused injury to the domestic industry. In doing so, the CITT made three important determinations on threshold issues in trade remedies cases, each of which make this case essential reading for trade law practitioners.

First, the CITT partially reversed its prior line of decisions on the concept of "cross-cumulation." Prior CITT decisions held that the analysis of the injury caused by one countries' subsidization was unable to be cross cumulated with the injury caused by the other countries' dumping. This was due to the WTO Appellate Body's decision in U.S. – Carbon Steel (India), which held that such cross-cumulation was illegal. However, here, the CITT reassessed its prior decisions in light of instructions from the Supreme Court of Canada on statutory interpretation and the principle that Canadian legislation should be interpreted to diverge from Canada's treaty obligations where there is a clear indication of intention to do so by Parliament. The CITT found that an amendment to the SIMA enacted in April 2000, which replaced the word "may" with "shall" in subsection 42(3), clearly signaled Parliament's intent to require a cross-cumulated injury analysis involving subsidization from one country and dumping from others when the prescribed conditions are met. As such, after finding these conditions were met, the CITT cumulated its analysis of the injury caused by subsidization from China with its analysis of the injury caused by dumping and found that PET resin from China and Pakistan had caused injury to the domestic industry.

Second, the CITT emphasized that parties in SIMA proceedings must raise threshold issues at the earliest opportunity, which is almost always at the preliminary inquiry stage. In this case, Novatex, the main exporter of PET resin to Canada, argued after the preliminary inquiry that 100% recycled PET ("rPET") should have been treated as like goods or as a separate class of goods, despite rPET having been excluded from the product definition. Because these arguments were raised after the preliminary inquiry and after questionnaires had been issued, the CITT lacked information on rPET as a separate class of goods and found that gathering such information so late could raise procedural fairness concerns. As a result, it rejected Novatex's arguments and, based on the limited record, also concluded that rPET was not like goods to the subject PET resin.

Third, in a separate concurring opinion, Member Lee clarified her view on the proper sequence in which the injury inquiry should proceed. Specifically, according to Member Lee, after determining volume and price effects, the CITT must determine: (1) the injury suffered by the domestic industry; (2) the materiality of such injury; (3) whether the dumping or subsidizing of the subject goods has in and of itself caused material injury to the domestic industry; and (4) whether any other factors prevent or break the causal link between the dumping or subsidizing and the injury. Key here, Member Lee specifically noted that, in her opinion, the CITT's materiality analysis should take place after and separately from the initial injury analysis.

This decision provides important guidance on several aspects of the CITT's trade remedies jurisprudence which should be of interest to practitioners and stakeholders alike. In particular, it clarifies and updates the CITT's approach to cross-cumulation, reinforces the expectation that threshold issues be raised at the earliest possible stage of a proceeding, and offers further insight from at least one member—through a concurring opinion—into the sequencing of the CITT's injury analysis.

Renewable Diesel (May 5, 2025), PI-2024-004

In this case, the CITT decided to terminate its inquiry into renewable diesel products produced in or exported from the United States at the preliminary inquiry stage of the proceeding. Notably, this case turned on the identity of the "domestic industry" under the SIMA.

The complainant in this case, Tidewater Renewables Ltd. ("Tidewater"), is a Canadian manufacturer of renewable diesel products. It is by far the smaller of two renewable diesel producing companies in Canada, the other being Braya Renewable Fuels LP ("Braya"), which did not support Tidewater's complaint. Under the SIMA, the CBSA may initiate a case only where Canadian producers of like goods representing more than 50% of the production capacity for like goods among those expressing a position support the proceeding, and when those producers expressing support for the case represent more than 25% of total Canadian production capacity. According to the United States and the largest U.S. exporter to Canada, Valero Energy Inc., Tidewater only represented 22% of total renewable diesel products produced in Canada. Nonetheless, the CBSA excluded Braya from the domestic industry entirely on the basis that it was only exporting, and did not sell in the Canadian market. As such, for the purpose of initiation, the CBSA found that Tidewater represented 100% of Canadian production.

As noted by the CITT, at the Preliminary Inquiry stage the CITT is required to assess whether the evidence on the record provides a "reasonable indication" that the goods subject to CITT's inquiry have caused or are threatening to cause injury to the domestic industry. In doing so, the CITT also makes initial determinations on ancillary issues, including the identity of like goods, the number of classes of goods and, key here, an assessment of the identity of the domestic industry for the purposes of its injury analysis.

In doing this analysis for this case, the CITT noted that it did not have the authority to overrule the CBSA's standing decision. However, the CITT also found, based on its own interpretation of the SIMA, that there was nothing in the SIMA that allowed the CITT to exclude Braya from the domestic industry on the basis that it did not sell like goods in the Canadian market. The CITT also rejected the argument from Tidewater, that because Braya had temporarily stopped producing in January 2025, Braya should not be considered a member of the domestic industry. Here, the CITT noted that Braya had been producing between February 2024 and January 2025 (i.e., during the CITT's period of inquiry), and that it could not be excluded from the domestic industry because it was temporarily not producing.

Furthermore, the CITT determined that Tidewater accounted for at most 34.2 percent of total Canadian production of renewable diesel in 2024. Therefore, given its size relative to Braya, and the lack of fragmentation of the industry considering there were only two producers, the CITT also found that Tidewater did not represent a "major proportion" of the domestic industry, which would have allowed the CITT to only look at the injury to Tidewater in its analysis. Instead, the CITT found it necessary in this case to assess injury to the domestic industry on the whole, including both Braya and Tidewater.

The Complaint did not contain evidence of injury to Braya, and Braya had provided no information suggesting that it was injured by the export of renewable diesel from the United States. The injury and threat of injury evidence on the CITT's record therefore did not speak to injury to the domestic industry as a whole. On this basis, the CITT found that it did not have evidence disclosing a reasonable indication of injury to both members of the domestic industry, and it terminated the case.

On balance, this case provides important clarity and guidance to practitioners on the CITT's domestic industry analysis, and when the CITT is likely to consider a member of the domestic industry to be a major proportion of that domestic industry. This case also provides guidance on the degree of evidence required to support a finding at the preliminary inquiry stage of a trade remedies proceeding.

Concrete Reinforcing Bar (January 13, 2025), NQ-2024-003

In this case, the CITT found that concrete reinforcing bar from Bulgaria, Thailand and the United Arab Emirates had caused injury to the domestic industry. In doing so, the CITT made the fairly uncommon decision to reverse its initial findings in its preliminary inquiry.

In the CITT's preliminary inquiry in this case, the CITT was skeptical of the domestic industry's arguments pertaining to the issues of causation and materiality. Specifically, while the CITT found that subject good volume increased, and subject good pricing undercut pricing of like goods produced by the domestic industry, it could not conclude that undercutting caused price depression, as it noted a similar price declines in other global markets based on the data on the record. It also found that the impact of the subject goods on the domestic industry was unclear, and that evidence on the record did not disclose that the injury to the domestic industry was material. The CITT did however find a reasonable indication of a threat of injury which allowed it to move forward to its final injury inquiry.

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