LexSage

15 Tips For Filing Customs Appeals
In Canada With The CITT

November 20, 2017
Written by Cyndee Todgham Cherniak

If you have received a detailed adjustment statement from the Canada Border Services Agency (“CBSA”), filed a B2 Adjustment Request and have received an unfavourable decision from the CBSA, you may appeal the CBSA’s decision to the Canadian International Trade Tribunal (“CITT”).  Customs appeals to the CITT may relate to a reassessment of customs duty in connection with a  tariff classification, origin or valuation issue. Customs appeals may also relate to an advance customs ruling relating to tariff classification, origin or valuation.  The CITT does not hear cases involving bad behaviour of CBSA officers or the CBSA seizing currency and/or NEXUS cards or the CBSA finding contraventions – those cases must be taken to the Federal Court.

Many Canadian importers are small and medium sized businesses and filing an appeal with the CITT appears to be a complicated undertaking.  Depending on the issues involved, it may not be as complicated as importers think.

Our top 15 tips for filing customs appeals are:

1. Go to the CITT website at www.citt.gc.ca.  On the right side of the webpage, you will see “File a Customs Appeal“.  You will find a short video and an appeal form.  You may use this form to file your appeal – it is that easy.
2. You must file your appeal within 90 days of the decision of the CBSA that you wish to appeal. Do not miss this deadline.  When you get the CBSA decision, go to a web date calculator to determined the deadline for filing.  You may file early if you would like.
3. Think about your answers when completing the short appeal form. The CITT needs information from you.  Especially with tariff classification appeals, the CITT member assigned to your file may not have heard of your goods before (they do not know everything).  Remember, you know more about your goods and the CITT must catch up to you. Think Jerry MacGuire – “help me, help you” [and “show me the money”].  Envision the CITT asking you “How can I help you?” and help them decide in your favour.
4. Organize your documents in a binder to have ready when you file evidence. Organize all the DASs and the original B3 documents, including commercial invoices. Organize documents relating to the goods themselves.  Organize all documents submitted to the CBSA and received from the CBSA.  Organize any research you conducted relating to the goods.
5. Ask the CBSA for a copy of the “Functional Guidance”, which is the document prepared by the CBSA as to why they are not accepting your position.  This document may be obtained through access to information.  If it has not arrived before the Reply Brief (see below), ask the Tribunal to order the Department of Justice to produce a copy.
6. The CITT sends you a letter accepting your appeal.  That letter sets out your deadlines.  Diarize those deadlines in your calendar.  Use the web date calculator.
7. If you think you may need an expert to testify, hire that expert as soon as possible – it is best to hire the expert before the Appellant’s Brief is due.  You will not have to file the Expert’s Report until later in the process – but your Appellant’s Brief should be consistent with the Expert’s Report (position).
8. The CITT requires the appellant (you) to file an Appellant’s Brief within 60 days after filing your appeal (see Information for Appellants on the CITT website). The Appellant’s brief must contain:

(a) the appellant’s contact information (name, address, telephone number, fax number, email address);

(b) a concise statement of the grounds for the appeal and the important facts relating to each ground;

• a description of the goods at issue;
• the points at issue between the appellant and the respondent;
• the statutory provisions relied on;
• a short outline of argument to be made at the hearing; and
• the nature of the decision sought from the Tribunal;

(c) copies of any documents that may be useful in explaining or supporting your case and on which you intend to rely; and

(d) copies of any authorities (e.g. case law) that support the appellant’s position.

9. When you file the Appellant’s Brief, you may file a sample of the goods at issue (which the Tribunal calls a “physical exhibit”).  Sometimes a physical exhibit assists the Tribunal in understanding what you are talking about.  Also, filing an exhibit allows the CITT member to ask additional questions to understand what is this good. When you file the Appellant’s Brief, you must send a copy to the CITT by electronic filing or in paper format.  You must also send a copy to the Department of Justice lawyer. 
10. The Department of Justice lawyer (who will represent the CBSA), must file a Reply Brief 60 days after the Appellant’s Brief.  Read this Reply Brief when it arrives and look for errors made by the CBSA.
11. If you have an Expert’s Report, it must be filed no later than 20 days before the hearing.  Review Information for Appellants to know what must be in the Expert’s Report.
12. If the CBSA files an Expert’s Report, you may hire your own expert.  An expert is usually someone not in your company who knows a lot about the type of goods at issue.  An expert is not your advocate or lawyer, their role is to assist the CITT.
13. If you cannot travel to Ottawa to attend a hearing, ask the CITT if you can participate in the hearing by teleconference (it is possible);
14. Prepare your evidence and arguments long before the hearing date.  The hearing is your best opportunity to communicate with the CITT; and
15. Hire a customs lawyer on a limited retainer basis (or full retainer) to guide you through the process.  A limited retainer might be to review your appeal form, review your brief and make helpful suggestions as to what evidence to file.

For more information about Canada’s customs laws, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com.  More information is posted on the LexSage website.