Special Import Measures Act — S-15 2
rson; (g) one directly or indirectly controls or is controlled by the other; (h) any other person directly or indirectly owns, holds or controls five per cent or more of the outstanding voting stock or shares of each such person; or (i) one directly or indirectly owns, holds or controls five per cent or more of the outstanding voting stock or shares of the other. Persons dealing at arm’s length (4) For the purposes of paragraph (2)(b), it is a question of fact whether persons not related to each other were at a particular time dealing with each other at arm’s length. (5) [Repealed, 1994, c. 47, s. 144] Agreement affecting countervailing duty (6) Notwithstanding the definition amount of subsidy , where, in relation to any subsidized goods, the manufacturer, producer, vendor or exporter thereof or the government of a country other than Canada, undertakes, directly or indirectly in any manner whatever, to indemnify, pay on behalf of or reimburse the importer or purchaser in Canada of the goods for all or any part of the countervailing duty that may be levied on the goods, the amount of subsidy on the goods is, for the purposes of this Act, the amount of subsidy determined and adjusted in such manner as is provided under that definition plus the amount of the indemnity, payment or reimbursement. Interpretation of provisions that apply to both dumped and subsidized goods (7) Where, by its terms, any provision of this Act applies to both dumped and subsidized goods, the application of the provision (a) to subsidized goods shall not be taken into account in an investigation, inquiry or other proceeding or matter under this Act relating to the dumping of goods; and (b) to dumped goods shall not be taken into account in an investigation, inquiry or other proceeding or matter under this Act relating to the subsidizing of goods. Criteria and conditions for non-specificity (7.1) A subsidy is not specific where the criteria or conditions governing eligibility for, and the amount of, the subsidy are (a) objective; (b) set out in a legislative, regulatory or administrative instrument or other public document; and (c) applied in a manner that does not favour or is not limited to a particular enterprise. When subsidy is specific (7.2) A subsidy is specific where it is (a) limited, pursuant to an instrument or document referred to in paragraph (7.1)(b), to a particular enterprise within the jurisdiction of the authority that is granting the subsidy; or (b) a prohibited subsidy. Determination of specificity by President (7.3) Notwithstanding that a subsidy is not limited in the manner referred to in paragraph (7.2)(a), the President may determine the subsidy to be specific having regard as to whether (a) there is exclusive use of the subsidy by a limited number of enterprises; (b) there is predominant use of the subsidy by a particular enterprise; (c) disproportionately large amounts of the subsidy are granted to a limited number of enterprises; and (d) the manner in which discretion is exercised by the granting authority indicates that the subsidy is not generally available. Additional considerations (7.4) Where any of the factors listed in paragraphs (7.3)(a) to (d) is present, the President shall consider whether the presence is due to (a) the extent of diversification of economic activities within the jurisdiction of the granting authority, or (b) the length of time that the subsidy program has been in operation, and where the President is of the opinion that the presence is due to one of the reasons set out in paragraph (a) or (b), the President may find the subsidy not to be specific notwithstanding that, were it not for that opinion, the President would have found the subsidy to be specific. Law relating to the customs (8) For greater certainty, this Act shall be considered, for the purposes of the Customs Act , to be a law relating to the customs. Powers, duties and functions of President (9) Any power, duty or function of the President