Docket: T-1164-21
Citation: 2022 FC 1498
Ottawa, Ontario, November 2, 2022
PRESENT: The Honourable Justice Fuhrer
| BETWEEN:
|
| MICHAELS OF CANADA, ULC
|
| Applicant
(Responding Party)
|
| and
|
| ATTORNEY GENERAL OF CANADA
|
| Respondent
(Moving Party)
|
ORDER AND REASONS
I.
Overview
[1] The Attorney General of Canada [AGC] moves to strike the Notice of Application [NOA] filed by Michaels of Canada, ULC [MoC] for judicial review of the Final Report (defined below) that resulted from a trade compliance verification of “value for duty”
declarations MoC made under the Customs Act, RSC 1985, c 1 (2nd Supp) [Act].
[2] The AGC asserts that the Federal Court lacks jurisdiction or, alternatively, if the Court has jurisdiction, then MoC’s judicial review application is premature because MoC has not exhausted yet remedies available to it under the Act.
[3] I agree with the AGC that the Court lacks jurisdiction in the circumstances, and further, MoC has not exhausted yet the remedies available to it under the Act. The AGC’s motion to strike therefore is granted, for the more detailed reasons that follow.
II.
Background
(1)
Trade Compliance Verification Regime
[4] See Annex “A”
for relevant legislative provisions described below.
[5] Section 32 of the Act requires importers to account for goods they import and to pay any duties owed on those goods before they can be released. This accounting includes declaring the “value for duty”
of the imported goods, as defined in subsection 2(1) and determined in accordance with sections 47-55.
[6] Subsection 32.2(2) of the Act requires importers to self-correct within 90 days after they have “reason to believe”
a declaration of the value for duty for any of the goods is incorrect. According to subsection 32.2(4), this obligation to self-correct ends four years after the importer originally accounted for the imported goods.
[7] Failure to comply with any provision of the Act or a designated regulation gives rise to liability for a penalty of not more than twenty-five thousand dollars, as the Minister may direct, under section 109.1, subject to possible assessment by an officer pursuant to section 109.3.
[8] An importer can request a National Customs Ruling [NCR] from the Canada Border Services Agency [CBSA], which administers and enforces the Act. The NCR is a written statement that outlines how the provisions of the Act would apply to goods to be imported into Canada based on information provided by the importer when they make the request; in other words, the NCR can provide guidance to an importer on how to ensure that their declarations of value for duty will be correct. It also can give rise to a “reason to believe.”
An NCR is valid until it is either modified or revoked by the CBSA, and until then, it is treated as binding both on the CBSA and the importer.
[9] The CBSA may apply a revocation retroactively to goods imported before the revocation is made if there was a “misstatement or omission of material facts”
in the importer’s request for the NCR, or if there was a change in circumstances or in the material facts upon which the ruling was based, and the CBSA was not notified. In either case, the NCR can be revoked back to the date of the misstatement, omission or change. In that event, the importer must make corrections to declarations made after the date of the retroactive revocation to a maximum of four years as provided for by section 32.2.
[10] Pursuant to section 42.01, the CBSA periodically initiates verifications to ensure compliance with the Act. Under this trade compliance verification process, the CBSA conducts a review of declarations made by importers during a specific verification period. The verifications can result in an interim report and, following any additional submissions from the importer, a final report and even a revised final report, if further submissions are considered and addressed.
[11] The final report can identify corrections required to an importer’s declarations and create the obligation to make corrections, pursuant to section 32.2 of the Act. In other words, like the NCR, the final report can give rise to a “reason to believe.”
[12] Further to subsection 32.2(3), a correction by the importer is treated as a re-determination of the value for duty by the CBSA, under paragraph 59(1)(a) of the Act; the CBSA has the authority, under the latter provision, to file the corrections if the importer does not do so. This re-determination – whether completed by the CBSA under paragraph 59(1)(a) or by the importer further to its obligation under section 32.2 – results in the CBSA issuing a notice of re-determination to the importer referred to as a “detailed adjustment statement”
[DAS].
[13] In sum, upon conclusion of the verification, the CBSA verification officer (i) will make findings about whether the importer declared the correct value for duty for the imported goods reviewed, (ii) may levy monetary penalties for any discovered contraventions of the Act, (iii) may provide guidance with respect to the application of the Act to the importer's circumstances, (iv) may determine the specific reassessment period that applies to identified errors (i.e. may vary the statutory period pursuant to the CBSA’s Reassessment Policy), and (iv) may exercise powers under subsection 59(1) of the Act and re-determine the value for duty in respect of specific transactions (rather than or in addition to imposing the self-correction obligation on the importer), among other things.
[14] The appeal process for re-determination decisions involves three levels of review: sections 60, 67, and 68 of the Act. Upon the issuance of a DAS, the Act requires the importer to pay immediately the indicated amounts, subject to the importer posting security for the amounts so that the importer can commence a challenge to the DAS. The first level of re-determination or further re-determination is by the President of the CBSA (section 60), followed by the possibility of appeal to the Canadian International Trade Tribunal [CITT] (subsection 67(1)) and then, the final level involves appeal to the Federal Court of Appeal (section 68).
[15] As noted by this Court recently, the right of appeal conferred by section 60 of the Act (which is the first step in the enacted review process) applies to decisions made under section 59 regarding the origin, tariff classification, value for duty, or marking of goods: 9209654 Canada Inc. v Canada (Border Services Agency), 2022 FC 1390 at para 26.
(2)
MoC’s Business and Importations into Canada
[16] MoC is a retailer of both its own private label branded products as well as third party branded products in the field of arts and crafts-related supplies and custom picture framing products [merchandise] that it sells to consumers through branded retail stores across Canada. MoC is a Canadian subsidiary of Michaels Stores Inc. [MSI], a United States of America [USA] company that is the largest arts and crafts specialty retailer in North America.
[17] Since 2004, MoC purchases almost all of the merchandise it sells from Michaels Stores Procurement Company, Inc. [MSPC], another MSI subsidiary. MoC buys the balance, which are third party branded products, from third party suppliers.
[18] MoC also purports to license certain intellectual property from MSPC consisting of (i) brand trademarks, trade names, etc. [Marks] and (ii) retail concepts such as business systems, store layout, product placement, seasonal campaigns, etc. [Concept] that establish consistency between MoC stores in Canada and in the USA. MoC’s business model contemplates the pursuit of a retail strategy developed and supported by MSI and MSPC, particularly through use of the Concept.
[19] From 2003 to February 2018, MoC paid MSPC to license the Marks and the Concept, pursuant to a single licence agreement that provided a formula involving a fixed component and a residual or “floating”
component.
[20] According to the NOA, MoC and MSPC reorganized their arrangement in 2018. They entered into two licence agreements, one for the Marks and the other for the Concept, with corresponding separate payments. The Concept licence fee consists of a fixed component comprising a fixed percentage of net monthly sales and a floating or residual component based on performance, or more specifically, on MoC’s operating margin. The reorganization was not intended to change the intangibles covered, however.
(3)
Procedural History and Decision at Issue
[21] An NCR issued in 2006 that provided MoC was entitled to use the transaction value method (described in Part III of the Act), and that the licence fees payable by MoC to MSPC under the licence agreement were not dutiable [2006 NCR]. MoC asserts in its NOA that the ruling officer considered all payments under the 2003 licence agreement to be non-dutiable. MoC appraised the value for duty of its importations in accordance with the 2006 NCR until it was revoked and superseded by the Final Report (defined below).
[22] The CBSA conducted a compliance verification regarding MoC’s declarations of the “value for duty”
of goods that it imported between February 3, 2018 and February 2, 2019, and issued an interim report in November 2020 and a final report in April 2021.
[23] The CBSA determined that the licence fees called for by the 2018 licence agreements should be included in MoC’s calculation of value for duty, as amounts constituting “subsequent proceeds”
under subparagraph 48(5)(a)(v) of the Act, and required MoC to make corrections to declarations dating as far back as the 2018 agreements. The CBSA had not taken the 2006 NCR into account, however. When MoC brought the 2006 NCR to the CBSA’s attention, the CBSA issued the revised final report on June 25, 2021, under cover of an explanatory email [together, the Final Report].
[24] The Final Report identifies two issues. Issue #1 concerns the floating (or residual) component of the Concept licence fee, while Issue #2 concerns the fixed component of the Concept licence fee. The Marks licence fees are not in issue.
[25] Regarding Issue #1, the verification officer found that the 2018 concept licence agreement changed how the floating or residual component operated. Under the 2003 licence agreement, MoC would pay to MSPC only an amount to be negotiated. Under the 2018 Concept licence agreement, it was possible, in the officer’s view, that MSPC would pay MoC for MoC’s use of the Concept if MoC’s operating margin fell below a certain level, and this is illogical as a payment for intangibles. (The officer also found that the items comprising the Concept proprietary knowledge were not “legal property, registered trademarks or secret trade know-how.”
) The officer concluded this constituted a change to the material facts on which the 2006 NCR was based, justifying its revocation with retroactive effect.
[26] Further, as of the date of the 2018 Concept Agreement, MoC was found to have “specific information”
(namely, subparagraph 48(5)(a)(v) of the Act that requires proceeds of subsequent sales of the goods to be included in value for duty) giving it “reason to believe”
pursuant to section 32.2 that its declarations were incorrect, such that corrections were required within 90 days to all declarations back to the date of the 2018 Concept licence agreement, “to a maximum of four year after the goods are accounted for as provided for in the Customs Act.”
[27] Regarding Issue #2, the Verification Officer found that there had been no material change to the operation of the fixed component of the Concept licence fee between the 2003 licence agreement and the 2018 Concept licence agreement. The 2006 NCR therefore continued to apply to this component, such that it was appropriate to exclude this component from the calculation of value for duty in the declarations made during the verification period. MoC had no “reason to believe”
its declarations were incorrect. Pursuant to CBSA policy, MoC would have to account for this fee only in future declarations, that is from the date of the Final Report forward, consistent with the revocation of the 2006 NCR.
[28] Finally, the verification officer advised MoC of its appeal rights under the Act, which are triggered once MoC submits the required corrections and the CBSA issues a DAS.
(4)
Notice of Application
[29] In its subsequent NOA challenging the Final Report, MoC submits that the verification officer unreasonably interpreted the scope of the 2006 NCR narrowly, and capriciously made the erroneous determination that there was a change in material facts in the intervening period after the 2006 NCR was issued. In addition, MoC argues that the verification officer imputed “reason to believe”
under Section 32.2 of the Act in circumstances that were unreasonable, procedurally unfair, and prejudicial to MoC.
[30] More specifically, MoC argues on this motion that the verification officer erred in (i) the interpretation of the 2006 NCR, (ii) the determination of the “date of specific information”
that gave the importer “reason to believe”
its declarations were incorrect, and (iii) the temporal scope of reassessments ordered, in so far as these inter-related issues concern differential treatment of Issue #1 and Issue #2 in the context of the retrospective corrections. Further, MoC submits that the date of specific information applicable to Issue #1 was the date of accounting (i.e. the date of the 2018 Concept licence agreements when MoC knew or ought to have known that its value for duty declarations regarding the residual component were incorrect), while the date of specific information applicable to Issue #2 was the date of the Final Report. No retrospective corrections were required in respect of the fixed component of the Concept licence fee, however, and hence, less than four years of corrections were required in both cases, contrary to subsection 32.2(4) of the Act. I note the requirement in the Final Report to make corrections regardless of whether there is a financial impact.
[31] Not in issue in its NOA are the “value for duty”
findings MoC says that the CBSA made in the Final Report, namely that: (a) the transaction value method for calculating the value for duty is the correct method; (b) the floating component of the Concept licence fees are “subsequent proceeds”
under subparagraph 48(5)(a)(v) of the Act because the methodology used to calculate them resembled the methodology used to adjust the intercompany sale price of goods; and (c) the retail Concept is not an intangible asset for which an importer may pay a (non-dutiable) licence fee.
[32] For its part, the AGC argues that the Final Report does not affect or impose legal obligations on MoC (in other words, it is not a “decision”
as such) but rather it informs MoC how the CBSA will exercise its statutory authority (i.e. by issuing a DAS under section 59) once MoC files or refrains from filing the corrections the CBSA has determined are required by the Act.
III.
Issues
[33] Having considered the parties’ written material and their oral submissions, I find that the issues for the Court to determine on this motion are two-fold:
IV.
Analysis
[34] I am satisfied the AGC has met the requisite test for striking an application. Specifically, the AGC has established that MoC’s judicial review application has no prospect of success, or that it is “doomed to fail”
: McLaughlin v Canada (Attorney General), 2022 FC 1466 at para 15 (citing Rahman v Public Service Labour Relations Board, 2013 FCA 117 [Rahman] at para 7; Wenham v Canada (Attorney General), 2018 FCA 199 at para 33.
[35] This Court has recognized that a motion to strike an application imposes a heavy burden on the moving party: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA), [1995] 1 FC 588, 176 NR 48. The AGC must establish that the notice of application is “so clearly improper as to be bereft of any possibility of success,”
that the application is so fatally flawed it strikes at the heart of the Court’s ability to entertain it: Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 [JP Morgan], at para 47; Murphy v Canada (Attorney General), 2022 FC 146 [Murphy] at para 9, citing Rahman, above at para 8.
[36] As recently articulated by (now) Associate Judge Tabib, the failure to exhaust all the effective administrative remedies available to a party is an example of a fatal flaw which, absent exceptional circumstances, justifies the preliminary dismissal of an application: Murphy, above at para 10, citing CB Powell Limited v Canada (Border Services Agency), 2010 FCA 61 at para 31). In accordance with the principle that a fatal flaw must be obvious, a notice of application may not be struck as premature, however, unless the Court is certain that there is recourse elsewhere, now or later, and that this recourse is adequate and effective: JP Morgan, above at para 91; Murphy above at para 11.
A.
Does the Federal Court have jurisdiction?
[37] I am not persuaded that, in the circumstances here, the Court has the jurisdiction MoC urges it to exercise.
[38] Both parties seek to draw a bright line, albeit for different reasons, between the Final Report and the DAS, a line that in my view is untenable or, at best, blurred. On the one hand, the AGC argues that MoC is not affected directly by the findings in the Final Report and is not required legally to respond to them or the Final Report. Rather, the DAS crystallizes the Final Report; the issuance of the DAS results in an administrative decision “directly affecting”
MoC by requiring it to remit immediately the amount of unpaid duties and interest, if not paid further to any corrections made under section 32.2.
[39] In response, MoC argues that the Final Report gives rise to a “reason to believe”
under subsection 32.2(1) of the Act, and hence, an obligation (“shall”
) to make a correction and pay any amount owing as duties. The AGC acknowledged at the hearing of this matter that the Court (although not necessarily the Federal Court, in my view) will have to determine the novel issues raised by MoC, at some point. Further, I note that where the importer makes a correction under subsection 32.2(1), then subsection 32.2(3) essentially deems the correction to be a re-determination under paragraph 59(1)(a) that in turn can be the subject of a request for a further re-determination made to the President of the CBSA under section 60, as the first step in the appeal or review process contemplated by the Act.
[40] While I am sympathetic to MoC’s argument, I am not persuaded that there is a bright line between the Final Report and the DAS that either party seeks to draw. In particular, MoC submits that the issues it raises with the judicial review application otherwise will not be considered because the CITT has found that “reason to believe”
is not relevant to the issue of whether “value for duty”
was correctly determined. I disagree, however, that the CITT decision in Jockey Canada Company v President of the Canada Border Services Agency, 2012 CanLII 85177 (CA CITT), 2012 CITT Appeal No. AP-2011-008 [Jockey CITT], stands definitively for this proposition.
[41] Jockey CITT flowed from an earlier decision of the Federal Court where Jockey Canada Company Limited [JCC], similar to MoC, attempted to challenge a CBSA decision that JCC had “reason to believe”
under section 32.2 of the Act that its valuation method of imported goods was incorrect: Jockey Canada Company Limited v Canada (Public Safety and Emergency Preparedness), 2010 FC 396 [Jockey FC] at para 2. As a result of the CBSA’s decision, JCC was required to make corrections over a four-year period from 2009 when the CBSA rendered its decision back to 2005.
[42] Having considered applicable jurisprudence, (former) Justice Mandamin concluded that Parliament’s intended review system under the Act ousted judicial review by the Federal Court under section 18.1 of the Federal Courts Act, RSC 1985, c F-7. In other words, for matters unresolved by first the CBSA President and next the CITT, then section 18.5 of the Federal Courts Act is engaged, by reason of paragraph 28(1)(e), on further appeal from the CITT to the Federal Court of Appeal: Jockey FC, above at paras 21-26, 30.
[43] Following the decision in Jockey FC, the matter came to the CITT for determination. MoC points to the following finding of the CITT in support of its argument that the CITT has ruled that “reason to believe”
is not relevant to “value for duty”
(Jockey CITT, para 262):
The Tribunal agrees with the CBSA that whether JCC had “reason to believe” in 2009 or 2005 has no bearing on the issue of whether the value for duty of the goods in issue was correctly re-determined by the CBSA, which is the substantive legal issue that the Tribunal has to address in this appeal pursuant to subsection 67(1) of the Act.
[44] In arriving at this conclusion, however, the CITT acknowledged the following argument by the CBSA (Jockey CITT, para 256):
“… ‘reason to believe’ only comes into play after it has been determined that a given declaration is incorrect and, while this issue may, in certain circumstances, be relevant in deciding how far back corrections must be made, in this case, the fact that the decisions appealed from state that JCC had “reason to believe” that its value for duty declarations were incorrect as early as 2005, did not determine the duration of the duty reassessment period in this case. The reason being that, pursuant to subsection 32.2(2) of the Act, the obligation of importers to make corrections to their declarations concerning the tariff classification, the value for duty or the origin of the imported goods ends four years after the imported goods have been accounted for.
[Emphasis added.]
[45] Further, the CITT held that, “the additional duties that were owed by JCC and collected as a result of the revisions to the value for duty of the goods in issue stemmed from the findings of the CBSA audit and were not levied on the basis that JCC had ‘reason to believe’, in 2005, that its value for duty declarations were incorrect”
: Jockey CITT, above at para 284.
[46] I am not persuaded, therefore, as argued by MoC, that the CITT categorically would not consider the issue of “reason to believe”
in the context of “value for duty”
(i.e. one of four specified items the CBSA President can address under subsection 60(1) of the Act) because of its findings in Jockey CITT. In the matter before me, the full four-year limitation contemplated in subsection 32.2(4) is not engaged, unlike the situation in Jockey FC and Jockey CITT, because here the amount of time between the 2018 Concept licence agreement and the Final Report is less than four years.
[47] Whether MoC’s situation involves a circumstance where the issue of “reason to believe”
is thus relevant in deciding how far back corrections must be made (Jockey CITT, para 256), will be an issue for the CITT to determine, if MoC requests a further re-determination by the CBSA President, and then pursues an appeal of the President’s findings to that body. As (former) Justice Sharlow observed, “the CITT… has the mandate to determine the validity and correctness of the Detailed Adjustment Statements”
[emphasis added]: Fritz Marketing Inc. v Canada, 2009 FCA 62 at para 36.
[48] In sum, although I am not persuaded that MoC is not affected directly by the Final Report, the Federal Courts jurisprudence repeatedly points to the displacement of the Federal Court’s jurisdiction in favour of the “administrative, quasi-judicial and judicial review system [under the Act] to be followed to the exclusion of any other paths of review or appeal,”
even on jurisdictional issues: Abbott Laboratories Ltd. v Canada (Minister of National Revenue), 2004 FC 140 at para 39; Canada (Border Services Agency) v C.B. Powell Limited, 2010 FCA 61 [C.B. Powell] at para 4.
[49] Further, I am not satisfied that the circumstances here are exceptional, warranting recourse to the Federal Court: C.B. Powell, above at para 51.
[50] I therefore conclude that the Federal Court does not have the requisite jurisdiction to hear MoC’s application. If I am incorrect, however, then in the alternative, the application is premature, in my view, as discussed briefly below.
B.
Does the doctrine of exhaustion apply?
[51] I am not persuaded that the review system in place in the Act does not represent an adequate alternative remedy. Having regard to the above discussion, until MoC has pursued administrative remedies available to it in the form of appeals to the CBSA President and then the CITT, it is premature in my view to assert that the CITT will not consider MoC’s novel issues, an argument based on distinguishable CITT case law (i.e. Jockey CITT). Simply because the CITT declined to consider the issue of “reason to believe”
in the context of “value for duty”
in an earlier instance, does not mean the CITT going forward has foreclosed consideration of issues like those raised here by MoC.
[52] As the Federal Court of Appeal has opined in the past, “[t]he function of the CITT as both an adjudicator of disputes and an instrument in the development of trade and import policy suggests that the Parliament intends and expects the CITT to take into account, even in appeals under section 68 of the Customs Act, policy questions that are not appropriate for ordinary judicial appeals”
: Deputy Canada (Minister of National Revenue) v Yves Ponroy Canada, 2000 CanLII 15801 (FCA) at para 33.
[53] To paraphrase (now) Associate Judge Milczynski, MoC seemingly is at an early stage of the Act’s adjudicative process. At the time MoC filed its NOA, a DAS had not issued and MoC had yet to seek a re-determination or a further re-determination. MoC can put its arguments concerning the CBSA’s interpretation of the 2006 NCR, the determination of the “date of specific information”
that gave MoC “reason to believe”
its declarations were incorrect, and the temporal scope of reassessments ordered, to the CBSA President, the CITT, and then the Federal Court of Appeal, if it chooses: Skechers USA Canada, Inc. v Canada (Border Services Agency), 2021 FC 879. (At the time of issuance of this Order and Reasons, I note that an appeal of the latter decision to this Court under Rule 51 of the Federal Courts Rules, SOR/98-106, is under reserve.)
V.
Conclusion
[54] For the above reasons, the AGC’s motion is granted, and the Court orders MoC’s NOA struck. The Court lacks jurisdiction in the circumstances, and the NOA is premature, MoC not having exhausted the appeal or review system in place in the Act.
VI.
Costs
[55] At the hearing of this motion, the AGC submitted that its costs were approximately $3,000, while MoC submitted that costs should be “at the normal rate.”
I consider the amount of $3,000 to be appropriate, and therefore, I exercise my discretion to award the AGC all-inclusive lump sum costs in this amount, payable by MoC.
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