Lexpert Magazine

LEXPERT MAGAZINE | JULY/AUGUST 2017 45 | ART OF THE CASE | and the tribunal, that "someone" could eas- ily have been an insider at the CITT. e possibility that the leak came from the CITT shows how important these cases were to Canada's administrative law structure. "I think these documents were critical in convincing the tribunal that it had a serious problem on its hands," Kirby says. "e evidence made it clear that we were not dealing with a case where the agency was putting a new interpretation on a different set of facts. Instead, the CBSA was baldly stating that it wouldn't follow the tribunal's decisions even when they were applicable." By contrast, the CITT followed its man- date to the letter. Although the CITT member who heard the Trilogy, Jason Downey, was the same individual who decided Frito-Lay, he did not blindly fol- low his own previous decision, correctly treating the appeals as de novo matters. "Downey made us argue the law as if Fri- to-Lay had not been decided," Kirby says. "But he also asked the CBSA to distinguish the case and all they could do was point to distinctions without a difference." Needless to say, the CITT decisions were disastrous, if not shameful, for the agency. "e CBSA got caught with its pants down this time," Pearson says. "It's a lucky thing that the parties affected had the where- withal to take this on and retained good counsel to do so." e CITT not only applied Frito-Lay in all three cases but found that CBSA had committed an abuse of process by re-liti- gating Frito-Lay and deliberately ignoring the decision. Using harsh language, the tri- bunal implied that it would have awarded costs to the importers had it the power to do so. "It's very rare to see language of that ilk employed in administrative decision- making," Kirby says. More importantly, perhaps, the tribunal addressed the rule of law in no uncertain terms: "Finally, the Tribunal wishes to ar- ticulate its concern in regard to the practice of putting the precedential value of its de- cisions into question by the CBSA. Both respectful and responsible application of Tribunal precedent is important for stabili- ty and predictability in the importing com- munity. Importers should not be subjected to costly and unfair litigation of cases for matters that have already been dealt with SP then appealed to the CITT. Despite the agreed stay of the judicial reviews, the CBSA's appetite for co-operation was hard- ly whetted. e agency refused to have all three appeals heard on the same day and sought to revisit the jurisdictional argu- ment again, also in three separate hearings. "at could have been a disaster from a budgetary perspective," Kirby says. As it turned out, the jurisdictional argu- ments in all three cases were heard together on one day. At the hearing, the futility of separating the jurisdictional hearings from the substantive case became apparent when the CITT refused to decide the issue prior to the argument on the merits. But the CITT also refused to consoli- date the three substantive appeals. Fortu- nately, the tribunal scheduled Bri-Chem and EGES on successive days, and set SP for hearing on the week following. Still, the Fasken team had to file three sets of plead- ings, and budgetary considerations forced Kirby to attend all the hearings on his own, without support from his colleagues. In the course of preparing for the hearings, however, Kirby continued to press for information. Fasken filed a request under the Access to Information Act for all CBSA documents relating to the decision to disregard Frito-Lay. CBSA responded that it would take two years to process the application because of the large number of documents involved. is meant that the information would not be available for the three companies' appeals to the CITT. en an envelope appeared on Kirby's desk. "It contained documents that includ- ed a PowerPoint presentation on how to end-run the CITT, and that proved there was a high-level, concerted plan formulated by CBSA to ignore the CITT and Frito- Lay. I was amazed to see the degree of effort to which CBSA resorted by way of training officials to ignore the decision." e documents arrived anonymously. No one knows, or no one is saying, where the documents came from. At the time, Kirby did not know who the source was, but when interviewed was able to confirm that they did not come from within the CBSA. "ey clearly originated with some- one who was concerned with the direction the issues were taking," he says. Given the long history of friction between the CBSA through proper legal authority. is is a matter that goes to the heart of, and consti- tutes a fundamental tenet of, the rule of law and fair and easy access to Canada's system of administrative justice. Such opposition ultimately leads to a breach of trust in the system and obfuscates the proper adminis- tration of justice." Undaunted and apparently unabashed, the CBSA appealed to the FCA, where it fared no better than it had at first instance. In October 2016, the court upheld the CITT's substantive ruling and its finding of abuse of process, quoting liberally from Downey's reasons, including his concern that the CBSA "knowingly frustrated im- porters from the applicability of Frito-Lay in either similar or even identical situations of fact" and had "embark[ed] on what ap- pears to have been a policy of outright dis- regard for Frito-Lay." Finally, the court provided definitive guidance on the proper relationship be- tween Canadian administrators and ad- ministrative tribunals in general: "Tribunals and administrators are both public bodies established by legislation. Both wield public power and both must obey all relevant legislation, oen the same legislation. ey are independent from each other. But they are in a hierarchical re- lationship. Tribunals pass judgment on the acts of administrators." Although tribunals were not bound by the decisions of earlier panels, they were not entitled to depart from the decisions "unless there is good reason." For their part, administrators regulated by tribunals "must" follow tribunal decisions. At press time, about six months had elapsed since the FCA ruling. Pear- son believes that the CBSA will come to its senses and "pull back" on its resistance to and become "more respectful" of the CITT. Kirby predicts that the agency will likely "take the FCA decision to heart." Pearson says the decision provides much needed clarity. "As lawyers working in the field, we now have a much better road map for advising importers on what to antici- pate and how to move forward." For that, the Fasken team can deservedly take a fair share of the credit. Julius Melnitzer is a freelance legal-affairs writer in Toronto.

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