FREQUENTLY ASKED QUESTIONS - CUSTOMS AND EXCISE APPEALS
What sorts of appeals does the Tribunal hear?
The Canadian International Trade Tribunal (the Tribunal) hears and decides appeals from decisions of the Canada Border Services Agency (CBSA) under the Customs Act and the Special Import Measures Act (SIMA). Appeals made under the Customs Act relate to the tariff classification, value for duty and origin of imported goods. Appeals made under SIMA relate to the application, to imported goods, of Tribunal findings or orders concerning injury or retardation caused by dumping and/or subsidizing and the normal value, export price or amount of subsidy in relation to the imported goods.
The Tribunal also hears and decides appeals from certain decisions of the Minister of National Revenue made under the Excise Tax Act. These appeals relate to assessments or determinations of excise tax.
Is there a fee to file an appeal with the Tribunal?
There is no fee to file an appeal with the Tribunal.
Who may file an appeal with the Tribunal?
Under the Customs Act, a person, or business, may appeal the decision of the President of the CBSA relating to:
1. the tariff classification of imported goods;
2. value for duty of imported goods; or
3. the origin of goods imported.
Under the Excise Tax Act, a person, or business, may appeal certain decisions of the Minister of National Revenue in respect of an assessment or determination for excise tax.
Under SIMA, a person, or business, may appeal a decision of the President of CBSA concerning following:
1. whether imported goods are of the same description as goods found to have been dumped or subsidized and which are subject to an injury finding made by the Tribunal; or
2. the normal value or the amount of a subsidy of those goods; or
3. the export price of those goods.
When can I file an appeal with the Tribunal?
In order to appeal a decision made by the President of the CBSA under the Customs Act, or a decision by the Minister of National Revenue under the Excise Tax Act, the notice of appeal must be filed within 90 days after the time notice of the decision was given. To appeal a decision of the President of the CBSA made under SIMA, the notice of appeal must be filed within 90 days after the day on which the decision was made.
How do I file a Notice of Appeal?
The appeal process is set in motion when a notice of appeal (or letter) is filed with the Tribunal. The notice of appeal or letter must state the appellant's intentions and be accompanied by a copy of the assessment, reassessment, rejection, decision, determination or re-determination, as the case may be, from which the appeal is launched.
There is no specific form to be completed to file a notice of appeal.
The notice of appeal is to be filed with:
2. In the case of an appeal under the Excise Tax Act with the Secretary of the Tribunal only.
Can I ask for an extension of time if I missed any of the following deadlines:
1. the deadline to file a request for re-determination or further re-determination with the CBSA?;
2. the deadline to file a notice of objection to an assessment or determination with the Minister of National Revenue?; or
3. the deadline to file an appeal with the Tribunal?
Both the Customs Act and the Excise Tax Act specify the circumstances and conditions under which an extension of time may be granted by the Tribunal, the SIMA however, does not allow for extensions of time.
1. A person may apply to the Tribunal for an extension of time to file a request with the President of the CBSA for a re-determination or further re-determination under the Customs Act, after either (a) the President has refused the person’s application for an extension, or (b) 90 days have elapsed since the application was made and the person has not been notified of the CBSA’s decision;
2. A person may file a notice of objection to an assessment or determination with the Minister of National Revenue under the Excise Tax Act;
3. A person may file a notice of appeal with the Tribunal in relation to a decision of the President of the CBSA under the Customs Act, or an assessment or determination of the Minister of National Revenue under the Excise Tax Act.
Extensions of time are not automatic.
What is an Appellant’s Brief?
The appellant’s brief is a written document that clearly lays out the grounds for the appeal and the relevant facts, arguments and supporting evidence.
The brief itself must set out:
- a concise statement of the grounds for the appeal and the important facts relating to each ground;
- a description of the goods in 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.
The brief must be dated and signed by the appellant or the appellant’s counsel and must also include the appellant’s contact information as follows:
- telephone number
- fax number (if available)
- e-mail address
All paragraphs and pages of the brief must be numbered, as well as all pages of attachments. The brief must include copies of any documents that may be useful in explaining or supporting the appellant's case and on which it intends to rely. It must also include copies of any authorities (e.g. case law) that support the appellant's position.
How many copies of the Appellant’s Brief must I file and where do I send them?
The appellant must submit one photocopy-ready original and three bound copies of the appellant’s brief to the Tribunal no later than 60 days after filing a notice of appeal. The date on which the brief is due will be provided in the Tribunal's letter acknowledging receipt of the appeal.
The photocopy-ready original and three bound copies of the brief must be sent to:The Registrar
Canadian International Trade Tribunal
333 Laurier Avenue West
Ottawa, Ontario K1A 0G7
In addition, for appeals under the Customs Act and the Special Import Measures Act, one copy of the brief must be sent directly to counsel for the respondent at:Department of Justice
Civil Litigation Section
50 O’Connor Street
Ottawa, Ontario K1A 0H8
Or, for appeals under the Customs Act, if you reside in Quebec, or your company is registered in Quebec, one copy of the brief must be sent directly to counsel for the respondent at:Department of Justice
Tax Law Services Directorate
Quebec Regional Office (Ottawa)
St. Andrew's Tower, 6th Floor
284 Wellington Street
Ottawa, Ontario K1A 0H8
And, for appeals under the Excise Tax Act, one copy of the brief must be sent directly to counsel for the respondent at:Department of Justice
Tax Law Services
99 Bank Street
Ottawa Ontario K1A 0H8
When is the Appellant’s Brief due?
The appellant must file their brief no later than 60 days after filing a notice of appeal. The date on which the appellant’s brief is due will be communicated to the appellant by the Tribunal, in the Tribunal’s letter of acknowledgment.
What is the response to the Appellant’s Brief?
The respondent, either the President of the Canada Border Services Agency under the Customs Act or SIMA, or the Minister of National Revenue under the Excise Tax Act must file a respondent’s brief within 60 days of receipt of the appellant’s brief. The respondent’s brief replies to the case presented in the appellant’s brief and sets out the case of the respondent, e.g. whether the respondent admits or denies each ground of the appeal; on what grounds the appeal is opposed, etc.
The respondent must serve one photo-copy ready original and three bound copies of the respondent’s brief on the Tribunal and the appellant at the same time.
When is the Respondent’s Brief due?
The respondent’s brief is due within 60 days of receipt of the appellant’s brief. The due date will be provided in the Tribunal’s letter acknowledging receipt of the appellant’s brief.
What if I have additional documents to file?
A party who intends to rely at the hearing on any documents or authorities (e.g. case law) that could not be previously filed with the Tribunal as part of a brief, shall, no later than 10 days before the hearing, file them with the Tribunal and simultaneously serve a copy on the other parties.
The Tribunal will only allow additional documents to be filed in appropriate circumstances, such as information that was not reasonably available prior to the deadline for the brief; or documents filed in response to a new issue raised in the respondent’s brief; or for clarification purposes. Procedural fairness and natural justice considerations dictate that parties put their best case forward at the first opportunity in order to provide the opposing party sufficient time to prepare.
All filing deadlines must be strictly observed, except in demonstrably extraordinary circumstances (e.g. information was not reasonably available prior to the deadline set for the filing, illness, etc.). If a party wishes to file additional documents less than 10 days before the hearing, the party must make a written request to the Tribunal for an extension of time and provide reasons for the request.
How/when do I file physical exhibits?
Any physical exhibits that a party intends to rely on at the hearing must be filed with the Tribunal not less than 10 days before the hearing.
The Tribunal may also request that physical exhibits of the goods in issue be filed during the course of the appeal. In the event that special handling or storing precautions are required for a physical exhibit, this must be stated explicitly in a letter accompanying the exhibit, and clear instructions provided. Any such exhibit must be labeled clearly as requiring special attention and must be accompanied by the Material Safety Data Sheet (MSDS) or its equivalent.
If it is not possible to provide a sample of the goods, a detailed description, photograph, videotape, brochure, etc., is acceptable as long as it can be authenticated by a witness. In appeals where goods are not involved (for example, audit procedures for excise tax cases), documents in support of arguments must be presented in evidence.
At the conclusion of all proceedings related to the appeal, any party who has filed a physical exhibit will receive a letter from the Tribunal asking if they wish to have the physical exhibit returned to them at their expense or whether they wish to have the exhibit disposed of by the Tribunal. Depending on the nature of the exhibit, parties may simply ask the Tribunal to destroy the exhibit or in some cases, to donate it to a charity.
Who has access to my appeal?
Any information submitted to the Tribunal is made available to the public, unless it is designated as confidential.
The Tribunal routinely receives requests for copies of the public briefs from interested parties, such as the general public, counsel and customs brokers; therefore, it is important that parties properly identify and segregate public and protected information.
Can I request that my entire appeal remain confidential?
No. As the Tribunal is a court of record and, in order to uphold its commitment to transparency, the Tribunal endeavors to place as much information as possible on the public record. To that end, the Tribunal requests parties to make as much information available to the public as possible. In addition, in order for the respondent to properly respond to the appeal and for the Tribunal to craft a meaningful and transparent statement of reasons, as much information as possible should be disclosed. It is at the Tribunal’s discretion that information be accepted onto the record as confidential.
If I have confidential information in my appeal, how do I indicate it as such?
A party wanting portions of the information that it files with the Tribunal to be designated as confidential must submit two versions of the information to the Tribunal:
1. A confidential version containing all the confidential information and labelled “Confidential” on every page that contains confidential information. In addition, all confidential information should be highlighted by using shading, boldface characters or square brackets; and
2. (a) a separate public version of the same document with the confidential information fully deleted if you are filing electronically. (You may not simply mask or hide the confidential information, it must be deleted); or
(b) a public version of the confidential document with the confidential information fully blacked-out if you are filing in hard-copy (paper).
In the alternative to filing a public version as described in 2(a) or 2(b), you may file a public summary of the confidential information. In either case, the public version or the public summary must give the party opposite and the Tribunal sufficient information to understand the nature of the confidential information.
More information regarding the designation and protection of confidential information is found in the ConfidentialityGuidelines available on the Tribunal's Web site at www.citt-tcce.gc.ca/en/collections/customs-and-excise-appeals/confidentiality-guidelines.html.
What type of information is normally considered as confidential?
In an appeal, “confidential information” would normally include personal or financial information, business proprietary information, or third-party information, that is, information that does not belong to the appellant or the respondent.
How do I file confidential information?
If you are a party who is not represented by counsel, you must serve confidential information on the Tribunal only. The Tribunal will undertake to serve the confidential information on any other party on file who is represented by counsel and who has filed a confidentiality declaration and undertaking with the Tribunal.
Public and/or confidential documents can be filed with the Tribunal electronically through its Secure E-filing Service which can be found on the Tribunal’s Web site at www.citt-tcce.gc.ca/en/secure_e_filing_service. This service allows the secure transmission of confidential business information. The information is fully encrypted from the sender to the Tribunal.
Where parties are represented by counsel who have a filed a declaration and undertaking with the Tribunal, said counsel are permitted to serve each other with both the public and confidential information at the same time. With respect to the service of confidential information on each other, counsel are to note the following:
1. Submissions that contain information that is confidential to your client may be served by electronic means provided you are willing to accept the associated risks.
2. Submissions that contain third-party confidential information, meaning confidential information that does not belong to you or your client must be served by courier and must be received by the due date set out by the Tribunal.
How do I file public information?
Parties must serve any public documents on the Tribunal and all other parties simultaneously, providing the Tribunal with proof of service at the same time.
Can I request that the hearing date be postponed?
If a party wishes to have a scheduled hearing postponed, the request for postponement must be filed in writing, with reasons, at least 10 days before the hearing. The Tribunal will seek the comments of the other parties prior to considering the request.
Are all hearings held in Ottawa?
Most appeal hearings are heard in Ottawa. A party may request that an appeal be heard in another location and this request will be considered by the Tribunal.
Are all hearings held in person?
An appeal hearing can be heard in person, or by way of written submissions, commonly referred to as a “file” hearing. The Tribunal may decide to hold a file hearing on its own initiative or at the written request of the appellant or the respondent.
The majority of file hearings tend to be for prohibited weapons appeals or for appellants, who, for geographic reasons, do not wish or are not able to appear in person.
The appellant and the respondent may also consent to a file hearing if they agree upon the facts and do not feel the need to supplement their written submissions with oral argument. Where one party requests a file hearing and does not have the other party’s consent, the Tribunal will seek the views of the other party before making a decision on the type of hearing.
If the Tribunal decides to hold a hearing by way of written submissions, its practice is to offer the appellant the opportunity to file a reply to the respondent’s brief before the Tribunal considers the appeal and makes its decision.
Are witnesses called to testify?
Parties may decide to call witnesses to testify about the facts in support of their position. The names, titles and coordinates of the witnesses, including language of preference, must be provided to the Tribunal prior to the commencement of the hearing. The deadline for providing this information is communicated to parties by the Tribunal but must be provided to the Tribunal no later than 10 days before the hearing. Witness costs (travel, etc.) are not reimbursed by the Tribunal and must be absorbed by the party calling the witness. On occasion the Tribunal may call its own witness. In these instances, parties will be advised in advance.
Can I use an expert witness at the hearing?
If a party wishes to call an expert witness to testify, that is, a witness with specialized knowledge, skill, education, training and/or experience in a particular field that is relevant to the case, the party must submit a report, prepared and signed by the expert. The expert report must be filed with the Tribunal no later than 20 days before the hearing and served on all other parties simultaneously.
If a party that has been served with an expert report wishes to rebut with expert evidence any matter set out in that report, it may file its own expert report in response. The expert report in rebuttal must be filed with the Tribunal no later than 10 days before the hearing and served on all other parties simultaneously.
Any export report (including any report filed in rebuttal of an expert report) must indicate the name, address, qualifications and area of expertise of the expert witness and a detailed outline of the expert’s testimony.
Any authorities or materials relied upon in the preparation of the expert witness report must be cited in a bibliography attached to the report. Every page of the report, including attachments, must be paginated.
The party submitting an export report must clearly indicate the precise area of expertise in which it intends to qualify the expert witness. An expert witness must be qualified by the Tribunal before his or her expert testimony will be admitted. Counsel for the party calling the witness bears the onus of persuading the Tribunal that the witness should be accepted as an expert in the proposed subject matter on which he or she will be asked to express an opinion, by questioning the witness on his or her curriculum vitae, background, training, education, skills, experiences and knowledge. Opposing counsel has the right to cross-examine the witness.
Can I withdraw my appeal?
If the appellant wishes to discontinue an appeal, they must send a notice of discontinuance, or a letter stating the appellant’s intentions, to the Tribunal and serve a copy of the notice or letter on the other parties to the appeal, usually the Department of Justice. A copy of the notice of discontinuance can be printed from the Tribunal’s Web site at www.citt-tcce.gc.ca/en/forms.html.
Do I need to file physical exhibits?
In all cases where goods are involved, a sample must be provided; if this is not possible, a detailed description, photograph, videotape, brochure, etc., is acceptable if it can be authenticated by a witness. In appeals where goods are not involved (for example, audit procedures for excise tax cases), documents in support of arguments must be presented in evidence.
What can I expect at the appeal hearing?
Appeals are heard by a panel of one or three administrative judges of the Tribunal (officially designated as “Members” of the Tribunal), depending on the complexity and nature of the subject matter of the appeal and/or the applicable legislation. The Tribunal’s hearings are generally conducted in public. Any confidential information is discussed in an in-camera session, where the hearing room is closed except for Tribunal Members, staff and parties.
Although the Tribunal’s procedures are somewhat less formal than those of a civil court, certain formalities are followed to ensure the orderly conduct of hearings.
During the hearing, the appellant is the first to present its case, followed by the respondent. An intervener’s case may be presented after either the appellant’s case or the respondent’s case, depending on which party the intervener supports. A case is presented orally, through witness testimony (including lay witnesses and expert witnesses sworn under oath or affirmation), or by way of reference to documentary or physical evidence. All opposing parties (including interveners) have the right to cross-examine witnesses and question the validity of the evidence on the record. Tribunal Members often ask questions of the witness(es) as well.
After the witness testimony is completed, the appellant presents closing arguments in support of its position, followed by the respondent. An intervener’s closing arguments may be presented after either the appellant or after the respondent, depending on which party the intervener supports.
The closing argument should focus on explaining how the facts and the law combine to allow the Tribunal to accept that party’s position, or theory of the case. Essentially, closing arguments are a preview of what the parties want the Tribunal’s decision to say.
The appellant will have an opportunity to make reply submissions, but these should be limited to issues arising from the submissions of the respondent that were not addressed earlier.
Parties should expect active questioning from the Tribunal Member/panel during closing argument.
Proceedings are transcribed verbatim, and copies of transcripts may be examined at the Secretary of the Tribunal’s office or purchased from the company with which the Tribunal has contracted to transcribe the proceedings.
What documents related to appeals are posted on the Tribunal’s Web site?
The Tribunal’s hearing schedule, list of decisions pending, orders, reasons and decisions are posted on its Web site at www.citt-tcce.gc.ca/en/collections/customs-and-excise-appeals/customs-and-excise-appeals.html.
How will I know if my appeal was received?
The Tribunal will acknowledge your appeal, in writing, generally within 24 hours of receipt. The date for the filing of the appellant’s brief will be found in the acknowledgement letter.
When will my appeal be scheduled to be heard?
The hearing date (file or oral) will generally be set down in the letter of acknowledgement.
When will the Tribunal issue its decision?
The Tribunal usually issues a decision within 120 days of the hearing. In recent years, most decisions have been issued within 80 to 90 days.
Do I have to be represented by legal counsel?
No. Parties to a proceeding may present their case before the Tribunal as a self-represented party, or they may be represented by counsel. “Counsel” means any person, other than a director, servant or employee of the party, who acts in the proceedings on behalf of the party. Accordingly, you can choose to be represented by legal or non-legal counsel.
The respondent is generally represented by counsel from the Department of Justice.
Who can intervene in an appeal?
A person who wishes to participate in the appeal as a third party (an intervener) must request intervener status by filing with the Tribunal a written notice of intervention specifying:
- the nature of his or her interest in the appeal,
- the reason why his or her intervention is necessary;
- how he or she may assist the Tribunal in the resolution of the appeal; and
- any other relevant matters.
The Tribunal will take the final decision on the granting of intervener status.
What information is made available to an intervener?
Any intervener is provided with a copy of the public record. If the intervener has engaged independent counsel, who has filed the requisite forms, counsel will be provided with any confidential portion of the record. Counsel may not share this confidential information with their client.
When will I receive the Tribunal’s decision?
There is no legislative deadline for the issuance of the Tribunal decisions. However, the Tribunal’s policy is to issue them within 120 days of hearing a matter.
What can I do if I am not satisfied with a decision made by the Tribunal?
If the appellant, the respondent or an intervener disagrees with the Tribunal’s decision, they can file an appeal to the Federal Courts (either the Federal Court or the Federal Court of Appeal depending on the circumstances).
For decisions rendered under the Customs Act and SIMA parties have 90 days to appeal the Tribunal’s decision to the Federal Court of Appeal (review for errors of law only).
Appeals of Tribunal decisions under the Excise Tax Act must be filed within 120 days to the Federal Court, a court of first instance, where they are heard by way of a trial de novo.
Information regarding filing an appeal to the Federal Court and the Federal Court of Appeal can be found on their respective websites.
If my goods were seized at the border, who do I call?
In this instance, contact the Canada Border Services Agency (CBSA). Until a decision has been issued in writing by the CBSA, an appeal cannot be filed before the Tribunal.
Who can I call at the Tribunal if I have questions, or require assistance?
Any questions regarding proceedings should be directed to the Registrar’s office at 613-993-3595.
Where can I find more information about appeals?
Please visit the Tribunal’s Website at http://www.citt-tcce.gc.ca/en/collections/customs-and-excise-appeals/customs-and-excise-appeals-guide.html.