Tax & Trade Blog

When one feels mistreated at the border by Canada Border Services Agency (“CBSA”) officers, can one really do anything about it? The answer is “yes”, because the CBSA can be held indirectly liable for negligence as well as Charter breaches (through its officers). 

As a recent case demonstrates, the road to judgement will usually be long and difficult and perhaps reserved for only the most egregious of cases, or where the matter is one of principle.  Extreme facts will generally be required to make out a negligence claim against government departments like the CBSA, and inappropriately short limitations periods exist for bringing these suits.

Export Controls Overview

Canada’s “export control laws” under the Import and Export Permits Act place “controls” on the export of certain sensitive goods, technology and data. This ranges from basic goods of economic interest, to military, nuclear and strategic goods (famously described as “sharp and pointy things that go bang”). Underlying technology, information and know-how are also controlled as are “dual-use” goods. 

Goods subject to export control are set out in Canada’s Export Control List (ECL), which requires experience to apply. This is magnified by the complexity of the fact that:  (1) all U.S.- origin goods and technology are controlled (because of Canada’s bilateral commitments), and (2) all goods are controlled when sent to countries on the Area Control List (ACL).

On November 14, 2023, the Canadian International Trade Tribunal (“CITT”) issued a notice that it was beginning an expiry review in respect of cold-rolled steel originating in or exported from the People’s Republic of China (“China”), the Republic of Korea (“South Korea”), and the Socialist Republic of Vietnam (“Vietnam”). On November 15^th CBSA similarly gave notice of the initiation of their parallel expiry review investigation.

The CITT more specifically described the Subject Goods as:

On October 27, 2023, the Canada Border Services Agency (“CBSA”) issued a notice of conclusion of Expedited Review in respect of certain Chinese upholstered domestic seating (“UDS”) from Eterno Co. Ltd. (“Eterno”) and Zhe Jiang Shengli Furniture Co., Ltd. (“Shengli”) (the “Exporters”). 

Background

The Canadian International Trade Tribunal (the “CITT”) concluded an Investigation into certain UDS from China and Vietnam, and issued a Finding on September 2, 2021 that the dumping and subsidizing of said UDS had caused injury to the domestic (Canadian) industry, resulting in the imposition of anti-dumping and countervailing duties subject to exclusions and inclusions specifically identified by CBSA. 

Georgian Bay Leisure Distributors Ltd., 2022 CanLII 139059 (CA CITT) (“Georgian Bay”) is a CITT case highlighting the complexities of tariff classification when importing goods to Canada.!

Background

When importing commercial goods to Canada, there are three things any importer needs to address from a customs compliance perspective: