Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



The NEXUS Pass Confiscation Appeal Process Is Administrative

NEXUS pass holders may discover that their "disagreement" with the Canada Border Services Agency (or U.S. Customs) upon re-entering Canada (or the United States) may result in the immediate confiscation of their NEXUS pass or they may receive a letter in the mail after the fact informing the pass holder that their NEXUS privileges have been cancelled. An informal and administrative appeal process has been established --- but it is not quick. As a result, until the appeal is resolved, the business persons and frequent travellers must use the snail lines (instead of the fast kiosks) while any appeal is under review.

If you are Canadian and your NEXUS pass is confiscated or cancelled by the Canada Border Services Agency (CBSA), there is no legislation to establish the appeal process. The informal appeal process requires a letter to be written and mailed within 30 days of the date of the confiscation or letter informing of the cancellation of NEXUS privileges.  The letter must be mailed to the NEXUS Program.

What NEXUS pass holders are not told is that if they appeal the merits of the "disagreement" (for example, the under-declaration of goods acquired outside Canada), the CBSA will restate the NEXUS privileges if that appeal is successful. There is a statutory scheme for appeals of valuation, tariff classification and origin issues. This process takes time. The appeal on valuation, classification and/or origin issues (called a "request for redetermination") is filed with the CBSA, Recourse Directorate. Two years ago, I had a case where it took a year for the Recourse Officer to review the materials I had sent to him on behalf of a client. More recently, the Recourse Officer got back to me in 5-6 months.  Generally speaking, the Recourse Directorate review is objective.

It is important to file 2 appeals. One appeal is filed with the NEXUS program and is in respect of the cancellation of the NEXUS privileges. The second appeal is the appeal on the merits of the customs infraction. The NEXUS program appeal will be reviewed at the NEXUS Program and then sent to the Recourse Directorate if the explanation has any merit whatsoever. However, if you have filed both appeals, the appeal for reinstatement of NEXUS privileges will be deferred until after the appeal on the merits. The CBSA may or may not understand that the business traveller is more interested in a quick reinstatement of NEXUS privileges and less concerned about the refund of duties and GST/HST.

The appeal must set out the facts, details concerning the dispute and the reasons for the appeal. The appeal should include any and all relevant documents concerning the "disagreement".

After the appeals are filed, the CBSA, Recourse Directorate will send a copy of the CBSA Officer's notes on the day in question relating to the "disagreement". The CBSA, Recourse Directorate will give yo 30 days to file additional information after receiving the notes. If your letter of appeal is very divergent from the CBSA Officer's version of the events, you will have a problem in explaining those differences.

Recently, I have noticed that the CBSA Officer's notes on the day of the "disagreement" may be brief and may be open to interpretation. In some cases, the notes are straight-forward. In a recent case, the notes indicated that the NEXUS pass holder went o the Bahamas, won at poker, purchased a Rolex, did not declare the Rolex, the purchase receipt was found in his wallet and he admitted to intentionally not declaring the Rolex. I could not do anything to help in this case.

In another case, the CBSA Officer's notes helped my client. I could explain where the misunderstanding had occurred.

It is not a simple and quick process to appeal a confiscation of a NEXUS pass. The process is not written anywhere and may take over a year. If you require assistance from a lawyer because the NEXUS privileges are important to you, please contact Cyndee Todgham Cherniak at 416-307-4168.

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