LexSage

What Is A Notice of Penalty
Assessment?

February 8, 2017

A Notice of Penalty Assessment is the document in which the Canada Border Services Agency (“CBSA”) issues an assessment of an Administrative Monetary Penalty (“AMP”) against an importer. An  AMP is a monetary penalty of a civil nature (rather than criminal) imposed by the CBSA for a contravention of an Act, regulation or by-law. The Master Penalty Document contains all AMPS contraventions that may be applied to commercial clients including importers, exporters, brokers, warehouse and duty free shop operators, carriers, freight forwarders or their representatives. The Notice of Penalty Assessment will have a unique sequential identifier number.

If you believe that the AMPs penalty issued by the CBSA in the Notice of Penalty Assessment was incorrect, you may file a request to correct within 90 days of the Notice of Penalty Assessment pursuant to subsection 127.1(1) of the Customs Act.  The CBSA may cancel or reduce an AMPS penalty if:

a) It is satisfied that there was no contravention; or
b) There was a contravention but it finds that there was an error with respect to the amount assessed and the penalty should be reduced.

A request to correct must be submitted to the CBSA Recourse Directorate at 1686 Woodward Drive, Ottawa, Ontario K1A 0L8. Requests for a review of a penalty assessment were formerly sent to the CBSA office that issued the Notice of Penalty Assessment.

If the CBSA does not agree that a correction is appropriate, a review under section 129 of the Customs Act may be filed within 90 days of the date of your notice. Reasons for a request to review may include, but are not limited to, errors in calculation, name, address, contravention type, the level of penalty, or amount assessed.

In resolving a penalty reassessment, an importer may enter into a Penalty Reinvestment Agreement (“PRA”) (formerly called a Penalty Reduction Agreement) in which some or all of the penalty may be waived provided that the importer untertakes compliance measures to ensure the infractions do not occur in the future.  A PRA is granted through the ministerial review process, and can be initiated by making a request for a decision of the Minister under section 129 of the Customs Act.

If the CBSA does not reverse the penalty, an appeal may be filed to the Federal Court of Appeal.  An appeal is appropriate where the assessment of a penalty was incorrect in some manner.  Further, a judicial review may be filed with the Federal Court if the outstanding issues involve the CBSA’s discretion (e.g., the CBSA would not agree to a reasonable PRA).  Whether one or both forms of court review is appropriate depends upon the basis and reasons why the CBSA rejected the section 129 review.

For more information about AMPs penalties, please contact Cyndee Todgham Cherniak at 416-307-4168 or cyndee@lexsage.com.