If you disagree with a decision made by the Canada Border Services Agency (CBSA) regarding imported goods, you may have the right to administratively appeal the decision under section 60 of the Customs Act. Recently, key CBSA administrative materials which govern this procedure were updated with the aim to “streamline” this process. The result contains both good and bad news for parties hoping to resolve disputes before escalating to further tribunals or courts.
(a) Background
Section 60 of the Customs Act provides the process for a person to request a “re-determination” or “further re-determination” of the origin, tariff classification, value for duty, or marking of goods. This is effectively an appeal provision, which begins the administrative process to challenge CBSA decisions of these natures, so long as the “request” is filed within 90 days of the relevant notice.
CBSA Memorandum D11-6-7 (Request under Section 60 of the Customs Act for a Re-determination, a further Re-determination or a Review by the President of the Canada Border Services Agency) (the “D-Memo”) provides the administrative foundation for the content and form of each request. Prior to March 1, 2023, the normal process was to submit the request, which would then be reviewed by a CBSA Appeals officer.
Once reviewed, if the officer did not agree with the person’s submissions, they were administratively required to dispatch a “preliminary position” letter which outlined the basis for their disagreement (see paragraph 7 of both Appendix A and B of the historical D-Memo). The person would then have an opportunity to provide further information and submissions to potentially convince the officer before they rendered their final decision.
This has now changed. Under the revised D-Memo which was effective March 1, 2023, references to the preliminary position letter have been scrapped, with CBSA noting that these letters will no longer form part of the re-determination process.
This is big news for importers and trade practitioners, who could otherwise engage in a back-and-forth with the officer before a final decision was reached — potentially to their benefit.
That all said, it is possible (and perhaps expected) that CBSA officers may informally undertake this step anyways in order to ensure that both sides have fully considered and understood their respective positions.
(b) Other changes
Additionally, the D-Memo has been updated to more specifically prescribe the information required in an appeal request, which changes depending on the underlying decision being appealed (origin, tariff classification, value for duty, etc., see section 3 of Appendix A and Appendix B of the D-Memo).
The updates also simplify the appeal process by allowing the submission of multiple corrections to imports via spreadsheet as a right as opposed to asking CBSA for permission under the old “blanket B2” process (which used to take upwards of 45 days).
(c) Commentary
While some of these practices will be missed by practitioners in this space, the streamlined process has also eliminated a few longstanding administrative headaches. This mixed bag highlights the need for professional advice on these matters to ensure that the limited submissions available are put to the best possible use!
John Bassindale is a partner, and Stuart Clark is a lawyer with Millar Kreklewetz LLP in Toronto.