Application No. EP-2011-002
Order and reasons issued
Thursday, February 2, 2012
TABLE OF CONTENTS
IN THE MATTER OF an application made by Volpak Inc., pursuant to
section 60.2 of the Customs Act, for an order extending
the time to file a request for a further re-determination of tariff
classification pursuant to section 60 of the Customs
The Canadian International Trade Tribunal denies the application
for an extension of time to file a request for a further
re-determination under section 60 of the Customs Act.
Stephen A. Leach
Stephen A. Leach
1. This concerns an application under section 60.2 of the
Customs Act1 made by Volpak Inc. (Volpak) for an order
extending the time to file a request for a further re-determination
under section 60.
2. The application relates to a re-determination made on
February 3, 2010, by the President of the Canada Border Services
Agency (CBSA), under subsection 59(1) of the Act, of the
classification of chicken breasts imported by Volpak. As a result
of the re-determination, the chicken breasts were classified under
tariff item No. 0207.12.93 of the schedule to the Customs
Tariff.2 Prior to the re-determination, Volpak had
been importing them under tariff item No. 0207.13.91. Pursuant to
subsection 59(3) of the Act, Volpak offered security to
the CBSA in lieu of paying the outstanding tariff duties and, under
section 60 of the Act, requested a further
re-determination of the tariff classification.
3. On June 10, 2010, the CBSA refused, under subsection 60(4) of
the Act, to make the requested further re-determination,
on the ground that Volpak had failed to offer security that was
“satisfactory to the Minister” of National Revenue (the Minister)
in accordance with subsection 59(3).
4. On July 7, 2010, Volpak applied to the Federal
Court3 for judicial review of the CBSA’s
5. On August 9, 2010, Volpak appealed the CBSA’s refusal to the
Canadian International Trade Tribunal (the Tribunal). On November
8, 2010, the Tribunal dismissed the appeal on the ground that
providing security satisfactory to the Minister was
“. . . an unmistakable condition precedent to making
a request to the CBSA for a re-determination”;4 therefore,
the CBSA’s refusal was not a “decision” over which the Tribunal had
jurisdiction pursuant to subsection 67(1) of the Act.
6. On September 7, 2010, Volpak commenced an action in the
Federal Court5 against the CBSA.
7. On January 18, 2011, Volpak made a further offer of security
to the Minister under subsection 59(3) of the Act via the
Department of Justice.
8. On February 17, 2011, Volpak filed an application to the CBSA
under section 60.1 of the Act for an extension of time to
request a further re-determination.
9. On April 20, 2011, the CBSA refused Volpak’s application on
the ground, among other things, that it was not the proper process
for proposing a new security. On June 28, 2011, the CBSA sent
Volpak a “courtesy letter” explaining why the proposed security was
10. On May 27, 2011, Volpak filed the present application.
11. Volpak objected to the admission into evidence of the CBSA’s
June 28, 2011, courtesy letter. According to Volpak, the letter did
not form part of the record of the CBSA’s April 20, 2011, refusal
and was inadmissible, since the current application is arguably in
the nature of judicial review and not a hearing de
12. The Tribunal disagrees with Volpak that the current
application is in the nature of a judicial review. Not only did
Volpak fail to provide any authority for this position, but there
are numerous authorities6 which conclude that, where an appeal is
made to a specialized board with the power to hear from witnesses
and otherwise consider evidence, the appeal constitutes a hearing
de novo. Therefore, the objection to the
admission of the letter is unfounded.
ADEQUACY OF SECURITY
13. The parties are in disagreement concerning the issue of
whether satisfactory security must be offered before a request for
further re-determination may be made under section 60 of the
Act. Volpak submits that the obligation to tender an
acceptable security does not “mature” until the Tribunal grants
permission to file the request for an extension of time. The CBSA
contends that an applicant must arrange for acceptable security
before applying for the extension.
14. In the Tribunal’s view, this issue is irrelevant to the
current application, which is for an extension of time. In any
event, as was stated clearly by the Tribunal in Volpak,
the Tribunal does not have the requisite jurisdiction to deal with
POSITIONS OF PARTIES
15. Volpak claims that all four statutory conditions for
granting the extension of time have been met:
(a) It made the present application within 90 days of the CBSA’s
April 20, 2011, refusal under section 60.1 of the Act;
(b) It had a bona fide intention to request a further
re-determination of the CBSA’s January 18, 2010, decision
under subsection 59(2) of the Act within 90 days;
(c) It would be just and equitable to grant the application,
since there is no assertion of foul play, dishonesty or prejudice
on its part, and all other conditions for the granting of the
application have been met. Moreover, it would be unjust and
inequitable to force it to pay the outstanding tariff duties
without first having its say in court; and
(d) The application was made as soon as the particular
circumstances following the CBSA’s June 10, 2010, refusal
permitted. It was not sleeping on its rights. Rather, the
Tribunal’s jurisdiction over the issue of posting satisfactory
security was uncertain, and it needed the time to exhaust other
legal proceedings before filing the application.
16. The CBSA suggests that two of the necessary statutory
conditions have not been met:
(a) It would be unjust and inequitable to grant the application,
since it would condone Volpak’s ongoing refusal to comply with the
statutory condition for making a request for a further
re-determination, i.e. that the tariff duties must be paid or
security satisfactory to the Minister must be offered. Granting the
application would favour Volpak over other importers that do comply
with the Act, would unnecessarily put the Crown’s debt at
risk and inappropriately put an administrative burden on the CBSA
to collect it; and
(b) The application was not made as soon as circumstances
permitted. During the eight months before Volpak filed the
application, it chose to undertake three other legal proceedings:
an appeal before the Tribunal, an application to the Federal Court
for judicial review and an action against the CBSA. Nothing
prevented Volpak from protecting its interests by filing an
application for an extension of time under section 60.2 of the
Act at the same time as the legal proceedings, and it
alone is responsible for the delay.
17. Subsection 59(2) of the Act reads as follows:
An officer who makes a determination under subsection 57.01(1)
or 58(1) or a re-determination or further re-determination under
subsection (1) shall without delay give notice of the
determination, re-determination or further re-determination,
including the rationale on which it is made, to the prescribed
18. Subsection 60(1) of the Act stipulates as
A person to whom notice is given under subsection 59(2) in
respect of goods may, within ninety days after the notice is given,
request a re-determination or further re-determination of origin,
tariff classification, value for duty or marking. The request may
be made only after all amounts owing as duties and interest in
respect of the goods are paid or security satisfactory to the
Minister is given in respect of the total amount owing.
19. Subsection 60.1(1) of the Act specifies as
If no request is made under section 60 within the time set out
in that section, a person may make an application to the President
for an extension of the time within which the request may be made,
and the President may extend the time for making the request.
20. Subsection 60.1(4) of the Act states as
On receipt of an application, the President must, without delay,
consider it and notify the person making the application, in
writing, of the President’s decision.
21. Section 60.2 of the Act provides as follows:
(1) A person who has made an application under section 60.1
may apply to the Canadian International Trade Tribunal to have the
application granted after . . .
(a) the President has refused the
application; . . .
. . .
(2) The application must be made by filing with the
President and the Secretary of the Canadian International Trade
Tribunal a copy of the application referred to in section 60.1 and,
if notice has been given under subsection 60.1(4), a copy of the
(3) The Canadian International Trade Tribunal may dispose
of an application by dismissing or granting it and, in granting an
application, it may impose any terms that it considers just or
order that the request be deemed to be a valid request as of the
date of the order.
(4) No application may be granted under this section
(a) the application under subsection 60.1(1) was
made within one year after the expiry of the time set out in
section 60; and
(b) the person making the application demonstrates
(i) within the time set out in section 60, the person was
unable to act or to give a mandate to act in the person’s name or
the person had a bona fide intention to make a
(ii) it would be just and equitable to grant the
(iii) the application was made as soon as circumstances
22. Subsection 60.2(4) of the Act sets out four
conditions that must be met in order for the Tribunal to grant the
application for the extension of time that Volpak is seeking. The
Act clearly establishes that each of these conditions is
mandatory. Failure to meet any one of them will cause the
application to fail.
23. The first condition is set out in paragraph
60.2(4)(a) of the Act. According to this test,
the application must be made within the 90-day time limit set out
in subsection 60.1(1). In this case, the last day to do so would
have been July 18, 2011. Volpak made the present application on May
27, 2011. The parties agree that this condition has been met.
24. The second condition is set out in subparagraph
60.2(4)(b)(i) of the Act. According to this test,
Volpak must demonstrate that, within the 90-day period prescribed
by section 60, it was unable to act in response to the CBSA’s June
10, 2010, decision or give a mandate to act in its name.
Alternatively, it may prove that it had a bona fide
intention to request the further re-determination within the time
frame provided for in that subsection but was unable to do so. The
parties agree that this condition has also been met.
25. The Tribunal is of the view that Volpak’s application does
not meet the fourth condition set out in subparagraph
60.2(4)(b)(iii) of the Act and will therefore
deal with it next. This ground requires that the application be
made as soon as circumstances permitted. The parties agree that
Volpak waited eight months before making the application for an
extension of time to the CBSA under section 60. The Tribunal must
determine if Volpak made its application as early as it could have
under the particular circumstances.7
26. In this regard, Volpak contends that the uncertainty and
complexity surrounding the Tribunal’s jurisdiction to review the
rejection of its security proposal required the filing of three
discrete legal proceedings: an appeal to the Tribunal, an
application for judicial review and an action in the Federal
27. The CBSA noted in its submissions that all these legal
proceedings concerned the same subject matter: the CBSA’s refusal
to consider the request for a further re-determination. The CBSA
also noted that nothing prevented Volpak from filing an application
for an extension of time with the CBSA under section 60 of the
Act in order to protect its interests at the same time as
the other proceedings.
28. The Tribunal agrees with the CBSA on this point. Even if
Volpak were faced with uncertainty and complexity, it was
definitely capable of filing an application for an extension of
time with the CBSA at the same time as it pursued the other three
legal avenues. Instead, Volpak waited for eight months.
Furthermore, the Tribunal notes that Volpak waited for three months
after receiving the Tribunal’s order and reasons settling the
question of jurisdiction before filing the application for an
extension of time with the CBSA.
29. As mentioned, the Tribunal is therefore of the view that the
fourth statutory condition has not been met. That being the case,
it is unnecessary to deal with the third statutory condition, under
subparagraph 60.2(4)(b)(ii) of the Act, that
it would be just and equitable to grant the application.
30. For the reasons given above, the Tribunal denies the
application for an extension of time to file a request for a
further re-determination under section 60 of the Act.
. R.S.C. 1985 (2d Supp.), c. 1 [Act].
2 . S.C. 1997, c. 36.
3 . Federal Court File No. T-1074-10; the
application was discontinued on February 17, 2011.
4 . Volpak Inc. v. President of the Canada
Border Services Agency (8 November 2010), AP-2010-031 (CITT)
[Volpak] at para. 18.
5 . Federal Court File No. T-1428-10; the
action was discontinued on April 27, 2011.
6 . Smith v. Minister of National
Revenue,  SCR 582; Bayside Drive-In Ltd. v.
M.N.R., 1997 CanLII 85 (TCC) (not a trial de
novo); Canada (Minister of National Revenue) v.
Rollins Machinery Ltd., 1999 CanLII 8763 (FCA); Mendoza v.
Canada (Public Safety and Emergency Preparedness), 2007 CanLII
68204 (IRB); Stevens Estate v. Canada (Attorney General),
2011 FC 103 (CanLII).
7 . See Bernard Chaus Inc. (4
December 2003), EP-2003-001 (CITT).