Lexpert Magazine

42 LEXPERT MAGAZINE | JULY/AUGUST 2017 | ART OF THE CASE | "While it gave us some comfort that Bri- Chem was a rehearing of the very same is- sue that was decided in Frito-Lay, the fact that stare decisis did not apply meant that we were not dealing with a slam dunk," Kirby explains. "Although we were no lon- ger pushing a frontier on the issue, there was uncertainty as to whether the [Cana- dian International Trade Tribunal] would accept our argument." As it turns out, sidestepping CITT deci- sions turned out to be the CBSA's modus operandi in Bri-Chem. at Kirby and his team, Arif Chowdhury of Calgary and Aïda Mezouar in Montréal, were able to thwart the bureaucracy is not only a tribute to the rule of law and a significant landmark in shaping the relationship going forward between administrative tribunals and public officials, but also a testament to thoughtful strategy, hard work, focused preparation and skilled advocacy, as well as an object lesson in managing complicated, hard-fought litigation against the state within the strictures of clients' budgets. Like a volcano, many years in the making before it erupts, the circumstances giving rise to Bri-Chem have a long and volatile history. "What CBSA did in Bri-Chem is not different from what it has been doing for 35 years," says Darrell Pearson, an inter- national trade and customs lawyer in the Toronto office of Bennett Jones LLP. "e agency has always viewed itself as the self- the Frito-Lay interpretation of the Canadi- an version of the rules was contrary to the way in which the corresponding American rules, which had been draed more clearly, had been interpreted. However that may be, quasi-judicial ad- ministrative tribunals are the mechanisms our system has chosen to resolve these types of conflicts, to ensure procedural fairness, and to filter out and rule on the is- sues through the specialized expertise that generally characterizes tribunal members. It's only if parties are unhappy with a tribu- nal's decision that courts are asked to inter- vene. For the most part, however, judges — recognizing tribunals' specialized expertise — are reluctant to override them. Still, the relationship between bureau- crats and administrative tribunals can be murky. To begin with, tribunal decisions, which are based on the application of law, may not mesh with the policy consid- erations that tend to drive bureaucratic action. Complicating the matter is the fact that administrative tribunals, unlike courts, are not bound by stare decisis, or the force of precedent. e upshot is that two tribunal panels deciding the very same issue can suppos- edly reach varying conclusions. From a bu- reaucratic perspective, this leaves room for civil servants to sidestep the decisions of tri- bunals in similar cases by simply pointing to the fact that a tribunal that is hearing a future case could arrive at a different result than a previous panel did. proclaimed final authority on customs law and policy, feeling at liberty to dispute any legal argument or decision on the basis that it knows better because it understands the underlying policy and has been involved in the negotiations leading to the relevant in- ternational treaties." e Canada Border Services Agency's intransigence is so ingrained, sources re- port, that aer one trade lawyer outlined the agency's attitude in a public forum, se- nior CBSA officers subsequently confront- ed the lawyer with unpublishable expletives and refused to shake the lawyer's hand. As well, when the CBSA — whose counsel in Bri-Chem did not respond to a request for an interview — loses at the CITT, it is rarely comfortable with an ap- peal to the Federal Court of Appeal be- cause that, too, might produce a "wrong" decision. "When it comes to customs clas- sification, procedure and valuation, CBSA has a pattern of leaving CITT decisions in place but refusing to change its policy," Pearson says. "eir reasoning is based on the fact that stare decisis does not apply at the CITT, and their attitude is, 'If the tri- bunal can change its decision, why should we be bound?'" is was precisely the border agency's ap- proach in Bri-Chem. "CBSA took the posi- tion that Frito-Lay was a singular case and they were not going to apply it as a general rule," Kirby says. e reasoning, however, ignores the fact that the CITT is statutorily charged with reviewing the CBSA's decision — an appel- late body, so to speak. "Stare decisis is a hor- izontal concept that affects only the other tribunals deciding the same question," Kirby says. "Stare decisis does not affect the CBSA and it does not mean that tribunal decisions cannot be applied in a general way in accordance with the rule of law, to which the CBSA is clearly beholden." e alternative is chaos. "e rule of law, which includes respect for tribunal decisions, is central because otherwise we would have administrators making unpub- lished law," Kirby says. Both Frito-Lay and Bri-Chem turned on the applicability of certain duty rates and importers' right to correct their original declarations. e duty rate applicable to goods imported into Canada is a func- "[The anonymous envelope] contained documents that included a PowerPoint presentation on how to end-run the CITT … I was amazed to see the degree of effort to which CBSA resorted by way of training officials to ignore the decision." " PETER KIRBY > FASKEN MARTINEAU DUMOULIN LLP

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