In its February 18, 2016 ruling in Worldpac Canada v. CBSA1, the Canadian International Trade Tribunal (the "CITT") clarified several key issues of prescription and recourses to appeal in the context of the Customs Act (the "Act"). In particular, the CITT addressed the so-called "blanket authorization" process (or Blanket B2 adjustment), which allows an importer to apply to the Canada Border Services Agency (the "CBSA") for an authorization to file several adjustment or refund requests at once in order to reduce both the paper burden and processing time. The CITT held that this procedure is purely administrative and does not affect the statutory time limits provided for under the Act. In addition, it held that neither the CBSA nor the CITT has jurisdiction to consider refund requests filed outside the statutory time limit.
Worldpac Canada is an importer of original equipment and automotive parts. Between 2011 and 2013, the company submitted a total of three blanket authorization requests to the CBSA with respect to refund requests for erroneously classified importations that occurred between March 1, 2008 and December 21, 2009. Between February 28, 2012 and July 12, 2013, the CBSA issued blanket authorization letters with respect to Worldpac's requests (although one authorization was cancelled by the CBSA in March 2013). In its letters, the CBSA clearly informed Worldpac that the blanket authorizations "... in no way remove or extend [...] the four-year time limits to file a refund under section 74 [of the Act]"2.
Finally, in September and October 2013, Worldpac proceeded to file its blanket adjustment refund requests regarding importations that had occurred between January 1 and December 21, 2009 ("the Filings"). In March and April 2014, the CBSA decided to accept only those requests in the Filings that fell within the four-year filing time limit set out in subparagraph 74(3)(b)(i) of the Act. The CBSA refused to consider the refund requests in the Filings that fell outside that time limit.
Worldpac argued that the date of the earliest blanket authorization letters was the relevant date of application in determining the four-year time limit under the Act. Worldpac also pleaded that the CBSA's decision to exclude the refund requests filed outside the statutory time limit is subject to appeal before the CITT under subsection 67(1) of the Act.
The CITT's Analysis
The CITT concluded that: "[t]he Act prescribes certain time limits during which refund requests must be filed. A blanket authorization-which constitutes an administrative solution/mechanism-devised by the CBSA can by no means modify the imperatives set out in the Act."3 According to the CITT, subparagraph 74(3)(b)(i) of the Act must be applied and does not provide for any possible extensions of time with respect to refund requests4. Moreover, the blanket authorization letters issued by the CBSA had clearly stated this. In any event, the CITT determined that "[t]here is no discretion legally available to the CBSA officers to accept requests that are filed beyond that time limit."5
The CITT also affirmed that the decision of the CBSA not to consider the refund requests filed outside the time limit does not constitute a "determination" pursuant to subsection 59(1) of the Act. Consequently, it cannot be subject to a re-determination or further re-determination under subsection 60(1) of the Act. As a result, there is no right of appeal to the CITT under subsection 67(1) of the Act. Accordingly, the CITT found that it had no jurisdiction in this case.
This decision is a strong reminder to importers that they must be particularly mindful of statutory time limits when filing refund requests with the CBSA. The blanket authorization process is irrelevant to the calculation. Where an importer files a refund request outside the statutory time limit, it may find itself in a position where the CBSA does not process the request, leaving the importer without any avenue of appeal other than the (cumbersome) possibility of judicial review.
The author wishes to thank Sara Shearmur for her help in writing this article.