AMPs Penalties? Call your lawyer!

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Administrative Monetary Penalties (AMPs) feature prominently in the enforcement of Customs Act regulations. One feature of the AMPs scheme is progressive penalties; a first offence almost always receives a small penalty, while a third or fourth offence even if minor can expose you to very significant penalties – as high as $25,000.00 per offence.

Therefore, first offences with relatively small penalties can still be important. Knowing this, many parties receiving infractions notices and penalties will avail themselves of the appeal procedure provided for by the CBSA.

While this procedure is informal, it is still a quasi-judicial procedure the result of which will be binding. I have seen many importers or brokers who engage in this process informally, pleading their case via email, and seeking advice only when the decision of the Officer goes against them. Less often, but much worse, parties will sometimes even appeal that decision to the Minister without seeking legal advice. Here the old maxim applies: the self-represented party has a fool for a client.

Both at the initial Review and on Ministerial Review a party receiving an infraction notice should obtain advice on the relevant laws and procedures as well as on the evidence that can be placed before the arbiter on which your legal position will be based. It is important that this is done correctly and comprehensively on first Review because, as is common in appeal processes, it is difficult to augment the record with additional evidence on appeal.

The Customs Act also sets out specific rights of statutory appeal to the Federal Court, which are highly circumscribed and do not follow the timelines of appeal for normal claims. Different appeal procedures exist for appealing a finding of contravention and for appealing the penalty.

The process for appeal of the finding of contravention is set out under s.131 of the Customs Act, and requires the appealing party to bring an Action against the Minister in the Federal Court under s.135 of the Act within 90 days. Because this procedure is set out by the governing statute, and not in the Federal Court Rules, the timeline is absolute and cannot be extended, not even by order of the court made on motion.

The process for appeal of the penalty only is set out under s.133 of the Act, and requires the appealing party to bring an Application for Judicial Review of the Minister’s decision  in Federal Court in accordance with s.18 of the Federal Courts Act within 30 days of the review decision.

In summary, legal advice should be sought when receiving even relatively small first AMPs penalties, as the liability for penalties increases dramatically on subsequent infractions. Legal advice is necessary in order to set the review on a sound footing of fact and law at first instance, because it is difficult to augment the record if advice is only sought on appeal.

If you have waited until receiving the outcome of the Ministerial Appeal before seeking advice on your appeals options in Federal Court, you have not only compromised the record but have placed yourself in a position where your most urgent action is required to preserve your litigation rights: after only 30 days your ability to appeal is significantly comrpomised; after 90 days, your rights are effectively extinguished.

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