One of the more difficult things I have run into in my 35+ years of practice in customs, trade, and indirect tax, is navigating through extremely difficult to understand appeals processes, buried in multiple similar and parallel sections in the Customs Act (“Act”).
A recent case makes me think that I am not alone in this world (!), with the Canadian International Trade Tribunal (“CITT”) chastising the Canada Border Service Agency (“CBSA”) for misunderstanding and potentially misapplying the customs appeal processes.
Since 1997, the Customs Act has imposed both mandatory payment and correction obligations on importers subject to Assessments. In fact, if an importer wishes to challenge the Assessment, the only option is to first pay the assessed amount, and then request a review of the assessment – a system often referred to as “pay-to-play”.
As highlighted in the recent case of Skechers USA Canada, Inc. v. Canada Border Services Agency (2025 FCA 1) (“Skechers”), these obligations leave importers with limited options. This means putting your best foot forward in a customs Compliance Verification is often the only practical way of dealing with a CBSA Assessment – often with the assistance of specialized legal advice.
When Canada Border Services Agency (“CBSA”) Officers have reason to believe that the proper procedures have not been followed at the border on the import of goods (i.e., an item has been concealed for reporting, or an incorrect value or description has been provided), the Officer has the power to either seize the good and sometimes the conveyance (i.e., vehicle) used to transport it, or issue an ascertained forfeiture after the fact.
Both actions may come as a surprise to the importer — especially given that even minor contraventions of the law can lead to these significant seizures and actions, thereby requiring detailed and confusing appeal processes to remedy.
