A recent decision by the Federal Court of Appeal (the “FCA”) has put into focus the distinction between a statutory right of appeal - which might be constrained in scope in some instances - and a judicial review application, which may offer an alternative avenue to deal with those constraints.
Of particular interest is the FCA’s discussion in Best Buy Canada Ltd. v. Canada (Border Services Agency) on why, overall, choosing to proceed solely with a statutory right of appeal might be more beneficial to taxpayers and importers.
In an interesting customs case continuing the Canada Border Service Agency’s (“CBSA”) assault on toy replica firearms, the Federal Court of Appeal (“FCA”) pointed out that allegations of bias leveled at the CBSA and the Canadian International Trade Tribunal (“CITT”) during the appeal process are serious and come with a “correspondingly heavy burden on the party alleging bias to prove the allegations”. This is not good news for taxpayers and importers who often come to us feeling that the CBSA or the Canada Revenue Agency (“CRA”) has pre-judged their particular appeals, with the end-result in mind.
After 35 years of practice in Tax and Trade, one thing I am sure of is that there are no “magic” answers for dealing with administrative delay by the Canada Revenue Agency (“CRA”) or the Canada Border Services Agency (“CBSA”).
A recent decision of the Canadian International Trade Tribunal (“CITT”) underscores this problem, and leaves taxpayers and importers in some potentially hard situations when faced by governmental inaction.
