40 LEXPERT MAGAZINE
|
JULY/AUGUST 2017
FEATURE
HOW FAR CAN
bureaucrats go in refusing to follow decisions of ad-
ministrative tribunals? at was the question raised by an importing compa-
ny in Canada v. Bri-Chem Supply (2016 FCA 257). e court's answer seems
intuitive: not very far.
But if not for an anonymous source who, in the late stages of litigation,
provided Peter Kirby of Fasken Martineau DuMoulin LLP, lead counsel for
the importers, with an envelope of critical documents, the bureaucrats and
administrators at the Canada Border Services Agency (CBSA) might still be
getting away with disregarding the directions of the Canadian International
Trade Tribunal (CITT), the statutory body that oversees the agency.
Kirby had earlier been counsel for the importer in Frito-Lay Canada v.
Canada Border Services Agency (CA CITT), a 2012 ruling in which the CITT
upheld the ability of importers to correct erroneous customs declarations in
order to obtain more favourable tariff treatment. e CBSA appealed, but
eventually discontinued the appeal.
Still, the agency steadfastly refused to apply Frito-Lay when identical is-
sues arose with regard to goods imported by Bri-Chem, Ever Green Ecologi-
cal Services and Southern Pacific Resource Corp. (SPR), the three companies
whose consolidated cases make up the Bri-Chem trilogy. is despite the fact
that, as the Federal Court of Appeal (FCA) later noted, the CITT ruling in
Frito-Lay was directly on point and rationally indistinguishable from the
facts in the trilogy — so much so that the FCA felt compelled to uphold the
CITT's conclusion that CBSA's conduct amounted to an abuse of process.
Perhaps all of this is not surprising. Bureaucrats are answerable to
politicians — as well as to the rule of law. is includes attempting to antici-
pate political considerations in view of the Canadian-US relationship. Indeed,
sources have it that one reason the CBSA took the stand it did in Bri-Chem
was because the United States, Canada's NAFTA partner, was concerned that
RIDE'
THE 'ADMINISTRATIVE
LAST STOP ON
IN THE BRI-CHEM TRILOGY,
A TRIBUNAL FOUND
THAT THE CANADA BORDER
SERVICES AGENCY
WAS DISREGARDING
REGULATION.
CHALLENGING
THE AGENCY
PROVED AN UPHILL,
BUT ULTIMATELY
WORTHWHILE, BATTLE
BY JULIUS MELNITZER
PHOTO:
REUTERS
