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International Trade - Customs Act (2). Michaels of Canada, ULC v. Canada (Attorney General)
In Michaels of Canada, ULC v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) an appeal from a denied customs JR:[1] This is an appeal from an Order of Fuhrer J. of the Federal Court (the motion judge), dated November 2, 2022 (2022 FC 1498), striking out the Notice of Application filed by the appellant, Michaels of Canada, ULC (Michaels), on the ground that the Federal Court lacks jurisdiction to judicially review a final report issued by the Canada Border Services Agency (CBSA) in the context of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp). The motion judge found that the Federal Court lacked jurisdiction to hear Michaels application or alternatively, that the doctrine of exhaustion barred the application.
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[6] We are of the view that the motion judge did not err in finding that Michaels’ application is premature due to its failure to avail itself of the multiple levels of administrative review provided for in the Act. We also are not persuaded that the administrative decision-maker—i.e., the President of the CBSA or the CITT—cannot address and determine the issues raised by Michaels. More particularly, we remain unconvinced that Jockey Canada Company v. President of the CBSA, 2012 CanLII 85177 (AP-2011-008) (CITT) and other cases referred to by the appellant in oral argument stand for the proposition that the CITT has definitively foreclosed consideration of issues akin to the ones raised by Michaels because they would allegedly fall outside of the scope of the statutory appeals. Further, in this case, there are no exceptional circumstances that meet the high threshold for bypassing the administrative process intended by Parliament (C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332 at paras 4, 28–29, 33, 39–40, 45 (C.B. Powell)).
[7] Ultimately, we agree with the respondent that the review process under the Act will result in a decision to maintain the additional imposition of duties on Michaels’ imports or not. If the President of the CBSA—or the CITT on appeal—decides that no additional duties should have been imposed, the dispute will effectively be resolved and Michaels will obtain the relief it seeks. The appellant must thus pursue the debate in the administrative forum. . Johnson v. Canada
In Johnson v. Canada (Fed CA, 2023) the Federal Court of Appeal considers the Customs Act (CA) appeal jurisdiction of the Tax Court:D. Appeals to the Tax Court under the CA
[44] Subsection 12(1) of the Tax Court of Canada Act provides that the jurisdiction of the Tax Court to hear appeals under the CA is limited to matters arising under Part V.1 of that Act.
[45] Section 97.53 of the CA (which is in Part V.1 of the CA) provides a right of appeal to the Tax Court in relation to an assessment issued under Part V.1, if a notice of objection to that assessment was filed. Section 97.44 of the CA (which is in Part V.1) grants the Minister the right to assess a person under section 97.28 or 97.29 of the CA. Sections 97.28 and 97.29 of the CA are collection actions that may be taken to collect unpaid amounts — section 97.28 is a garnishment provision and section 97.29 is a provision similar to section 160 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) which allows the Minister to assess a non-arm’s length transferee of property for the unpaid amounts of the transferor, to the extent that the transferee did not pay fair market value for the property acquired.
[46] The rights to appeal to the Tax Court under Part V.1 of the CA are limited to collection matters. Since Mr. Johnson’s attempted appeal to the Tax Court does not relate to any collection matter (the amounts have already been paid by Mr. Johnson), there is no basis for any appeal to the Tax Court under Part V.1 of the CA.
[47] Subsection 12(3) of the Tax Court of Canada Act also provides that the Tax Court has jurisdiction in relation to questions that are referred to it under section 97.58 of the CA (which is also in Part V.1). However, this section only contemplates questions on an assessment or a proposed assessment being submitted following an agreement in writing between the Minister and another person:97.58 (1) If the Minister and another person agree in writing that a question arising under this Part, in respect of any assessment or proposed assessment, should be determined by the Tax Court of Canada, that question shall be determined by that Court.
97.58 (1) La Cour canadienne de l’impôt doit statuer sur toute question portant sur une cotisation, réelle ou projetée, découlant de l’application de la présente partie, que le ministre et une autre personne conviennent, par écrit, de lui soumettre.
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