Case information

Administrative law — Procedure — Importer seeking judicial review of decisions made prior to it making corrections to its declarations of the value for duty of imported goods request by Canada Border Services Agency — Motion to strike application for judicial review granted and upheld on appeal — Whether the statutory appeal process for redeterminations made under the Customs Act completely ousts judicial review — Customs Act, R.S.C 1985, c. 1 (2nd Supp.)

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The respondent, Canada Border Services Agency (“CBSA”), in the course of a compliance verification under the Customs Act, R.S.C 1985, c. 1 (2nd Supp.), issued an interim report to the applicant Skechers USA Canada, Inc. (“Skechers”). It proposed that Skechers correct its declarations of the value for duty of imported goods to include commissions paid, including for the prior four years. Skechers disputed that the commissions were dutiable and asked, in the alternative, for the corrections to be made on a going forward basis only. The CBSA denied the request. CBSA issued a final report confirming that Skechers was required to make the corrections and remit additional duties. Skechers made three further requests to the CBSA: that the CBSA rescind its final report, that it grant Skechers an indefinite extension of the time for making corrections to its declarations, and that it grant Skechers a waiver or cancellation of penalties and interest pending resolution of the disputed duties. At that point in the process, Skechers had not made corrections to its declarations and the CBSA had not made a re-determination of duties or determined penalties and interest payable. The CBSA denied all of Skechers’ requests. Skechers sought judicial review of the CBSA’s decisions. CBSA brought a motion to strike Skechers’ application for judicial review. An Associate Judge of the Federal Court granted CBSA’s motion to strike, concluding that Skechers’ application was bereft of any possibility of success. The decision was upheld by a judge of the Federal Court and by the Federal Court of Appeal. The courts agreed that the CBSA’s refusals to accede to Skechers’ requests, based on their essential character, did not trigger a right to judicial review.