Customs and excise appeals guide

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 (the Minister) made under the Excise Tax Act. These appeals relate to assessments or determinations of excise tax.

This document sets out matters of procedure related to appeal proceedings before the Tribunal. In the event of any inconsistency between this document and the applicable legislation, including the Canadian International Trade Tribunal Rules, the Customs Act, SIMA and the Excise Tax Act, the legislation prevails.

The Tribunal’s appeal proceedings apply to an appeal from a decision or re-determination of the President of the CBSA or from an assessment, reassessment, rejection, decision or determination of the Minister of National Revenue, as the case may be, pursuant to:

• section 67 of the Customs Act;
• section 61 of SIMA; 
• section 81.19, 81.21, 81.22, 81.23 or 81.33 of the Excise Tax Act.

Under the Customs Act, a person or business may appeal the decision of the President of the CBSA relating to the

• tariff classification of imported goods;
• value for duty of imported goods; or
• origin of imported goods.

Under SIMA, a person or business may appeal a decision of the President of CBSA concerning the following:

• 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;
• the normal value or the amount of a subsidy of those goods;
• the export price of those goods; or
• a scope ruling as to whether certain goods are subject to an order of the Governor in Council imposing a countervailing duty, an injury finding made by the Tribunal or an undertaking.

Under the Excise Tax Act, a person or business may appeal a decision of the Minister of National Revenue in respect of an assessment or determination for federal sales tax or excise tax.

The appellant must submit one electronic copy of the appellant's brief to the Registrar no later than 60 days after the Tribunal acknowledges receipt of the filing of a notice of appeal. The date on which the brief is due will be communicated to the appellant in the Tribunal's letter of acknowledgement.

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 Suite 500
50 O'Connor Street Ottawa
Ottawa, Ontario  K1A 0H8

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

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 Suite 1100
99 Bank Street
Ottawa, Ontario  K1A 0H8

The brief must be dated and signed by the appellant or the appellant's counsel. It must also include the appellant's contact information as follows:

• name
• address
• telephone number
• email address

All paragraphs and pages of the brief must be numbered, as well as all pages of attachments. Attachments may include any documents, authorities or case law that may be useful in explaining or supporting the appellant's case and on which it intends to rely to support its position.

The brief 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 history of the proceedings before the filing of the notice of appeal;
• the jurisdiction of the Tribunal to hear the appeal;
• the points at issue between the appellant and the respondent;
• the statutory provisions relied on;
• an outline of argument to be made at the hearing;
• and the nature of the decision sought from the Tribunal.

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:

• A confidential version containing all the confidential information and marked “PROTECTED” on every page that contains confidential information. In addition, all confidential information should be highlighted by using shading, boldface characters or square brackets; and
• A separate public version of the same document with the confidential information fully deleted (not simply masked or hidden).

Instead of filing a public version, a party 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.

While a party may submit documents marked “PROTECTED”, it does not automatically follow that the Tribunal will accept such a designation. The Tribunal reserves the right to refuse to accept a confidential designation, in whole or in part. If the Tribunal has concerns about the designation of information as confidential, the party providing the information will be given an opportunity to provide an acceptable explanation of why the designation is appropriate. In these instances, the following may occur:

• If the Tribunal is satisfied with the explanation provided, the information will be treated as confidential.
• If the Tribunal is not satisfied with the explanation for the requested designation of confidentiality, and the party fails to provide an acceptable public version, the information submitted as confidential will not be taken into account by the Tribunal and will not be made part of the record.
• The party providing the information may agree to the information being placed on the public record.
• The party providing the information may withdraw the information.

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 as per the above instructions.

More information regarding the designation and protection of confidential information is found in the Confidentiality Guidelines.

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.

Expert witnesses – Rule 22

If a party wishes to call an expert witness (a witness with specialized knowledge, skill, education, training and/or experience in a particular field that is relevant to the case) to testify, the party must submit a report, prepared and signed by the expert. The expert report must be filed with the Tribunal no later than 30 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 20 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 expert 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 they 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.

If a party is unable to file any brief, submission, report or any other document by the due date set out by the Tribunal, the party must make a written request to the Tribunal for an extension of time and provide reasons for the request, copying the Tribunal and other parties to the appeal at the same time. The Tribunal will typically seek the comments of the other parties prior to considering the request.

A person who wishes to participate in the appeal as a third party (an intervener) must file a request to intervene with the Tribunal, specifying the nature of his or her interest in the appeal, and set out a summary of the representations to be made, and why their interest would not otherwise be adequately represented, or how they may assist the Tribunal in the resolution of the appeal, and any other relevant matters. The Tribunal will ask for submissions from all parties before deciding whether or not to accept the request.

The Tribunal usually sets down a hearing date when it acknowledges receipt of the appeal. Depending on the complexity and nature of the matter at issue or on the legislation under which an appeal has been filed, appeals are heard by a panel of one or three members and 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, Tribunal support staff, and parties.

An appellant may present their case before the Tribunal as a self-represented party or 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.

During the hearing, the appellant is the first to present their 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 regular “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. The Tribunal member/panel often ask questions of witnesses 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 argument may be presented after either the appellant's arguments or the respondent's arguments, 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 party’s view of how it wants the Tribunal to decide.

The appellant will have an opportunity to make reply submissions, but these should be limited to issues arising from the submissions of the respondent or intervener 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 the transcript may be examined at the Tribunal's registry or purchased from the company with which the Tribunal has contracted to transcribe the proceedings.

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.

The Tribunal's hearing schedule, list of decisions pending, orders, reasons and decisions are posted on its website.