Recourse Program Evaluation Study

Final Evaluation Report
April 2012

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Table of Contents

• Executive Summary
• 1.0 Introduction and context
  • 1.1 Description of the Recourse Program
  • 1.2 Purpose and Scope of the Evaluation
  • 1.3 Evaluation Methodology
• 2.0 Key findings
  • 2.1 Relevance
    • Is the Recourse Program meeting an ongoing need and is it aligned with the role and responsibilities of the federal government and the CBSA?
  • 2.2 Performance – Achievement of Expected Results
    • Is the Recourse Program effectively managed and are roles and responsibilities clearly understood?
    • To what extent is the Recourse Program accessible, timely, consistent, impartial, fair and transparent?
    • Does the Recourse Program provide CBSA management and staff with the information needed for continuous learning to help support consistent and predictable application of border laws and policies?
    • Does the Recourse Program contribute to better client understanding of border legislation?
  • 2.3 Performance - Efficiency and Economy
    • Is the Recourse Program delivered efficiently?
    • Are there more efficient and effective models to achieve the expected results?
• 3.0 Key Conclusions, recommendations and management reponses
  • Appendices
  • Appendix A: Abbreviations and Acronyms

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Executive Summary

Background

The Canada Border Services Agency (CBSA) is responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants that meet all requirements under legislation, including over 90 acts, regulations and international agreements. The CBSA determines whether goods are allowed to be imported or exported and makes decisions on the applicable tariff classification, origin and value for duty of imported goods. Incorrect reporting or non-compliance with the regulations on the part of importers and travellers can result in adjustments in the duties and taxes owed, penalties or enforcement actions such as the seizure or forfeiture of personal or commercial property.

The Recourse Program is responsible for providing clients with a fair and impartial review of decisions and actions taken in support of border legislation. The Program is intended to ensure "that the decisions taken by CBSA officials are fair, transparent and accurately reflect the Agency's policies and the Acts administered by the CBSA. Individuals can complete a written submission if they disagree with an enforcement action or a trade decision made by the CBSA."[ 1 ] In January 2011 the Recourse Program implemented an Enhanced Complaint Mechanism (ECM) to track and report on complaints, compliments, comments or suggestions directed to the CBSA by clients.

The Recourse Directorate within the Corporate Affairs Branch at CBSA National Headquarters (NHQ) has overall responsibility for the Recourse Program. The program is delivered by the Recourse Directorate and by Regional Recourse Divisions located in the regions of Quebec and Greater Toronto Area (GTA).[ 2 ]  The Recourse Directorate at NHQ consists of the Recourse Policy and Planning Division, the Litigation, External Recourse and Complaints Division, and the Appeals Division which reviews appeals of CBSA enforcement actions. The Regional Recourse Divisions review appeals of trade decisions related to the tariff classification, origin, value, or admissibility of imported goods.

In 2010-2011, Recourse Program staff rendered decisions on 3,598 enforcement appeals and 781 trade disputes. In the first six months after the launch of the ECM in January 2011, the CBSA received a total of 1,417 comments, complaints and compliments. The Recourse Program is staffed with approximately 100 full-time equivalents (FTEs) and program expenditures in 2010-2011 were about $9.4 million.[ 3 ]

The purpose of the evaluation was to assess the relevance and performance of the Recourse Program in accordance with the Treasury Board Directive on the Evaluation Function. The CBSA Program Evaluation Division (PED) conducted research for this evaluation between April and October, 2011.

Evaluation Methodology

The evaluation incorporated multiple lines of evidence including an analysis of program data, a document and literature review, client telephone surveys, interviews with 114 internal and external stakeholders, sites visits and case file reviews.

Summary of Findings and Recommendations

The Recourse Program is relevant in that it addresses legislative requirements to provide a mechanism for the review of CBSA enforcement actions and trade decisions and supports commitments agreed to under Canada's Free Trade Agreements and as a member of the World Customs Organization. The Recourse Program and ECM are important components of the CBSA's Service Commitment[ 4 ] and strategy for ensuring fairness, accountability and improved client service.

Some agencies and departments establish separate ombudsmen or complaints commissioners as a means of ensuring fairness. When asked how the CBSA could improve the appeals process, about 3% (19/697) of clients surveyed provided an unprompted suggestion that the process be conducted by an independent third party. About 65% of Recourse Program clients surveyed for the evaluation believed that their case was treated with impartiality. The Recourse Program overturns or amends over 40% of CBSA enforcement actions or trade decisions in favour of the client. In fiscal year 2010-2011, the materiality of cases reviewed by the Recourse Program totalled $42 million, and over $11 million was returned to appellants as a result of their appeal.[ 5 ] CBSA clients that are dissatisfied with a Recourse Program decision have the option to request an independent judicial review or appeal to the Federal Court or an administrative tribunal such as the Canadian International Trade Tribunal (CITT) or Canadian Agriculture Review Tribunal (CART). The proportion of appeals that are reviewed by these bodies represents between 1 and 2 percent of appeals received by the Recourse Program each year.

The Recourse Program has agreements in place with key external and internal stakeholders to outline respective roles and responsibilities, including protocols with the Department of Justice and the CBSA Trade Program concerning cases that are brought before the CITT. Similarly, a Memorandum of Understanding with the Canadian Human Rights Commission (CHRC) articulates that the Recourse Directorate is responsible for monitoring and coordinating the input from CBSA branches on complaints of discrimination filed with the Commission by members of the public. The Origin Protocol with the CBSA's Origin and Valuation Division establishes the respective responsibilities for appeal cases where the certificate of origin or other information was not provided at the time of the original trade decision.

In 2010 the Recourse Program became responsible for accepting and storing security bonds from clients who need to pay or secure any duty owing before filing their appeal. This service was previously provided by Tax Services Offices of the Canada Revenue Agency (CRA). The evaluation found that the roles and responsibilities associated with this function are not clearly understood and that Recourse Program staff does not have access to the Customs Commercial System which is required for maintaining information on the securities that are held. Although the GTA Recourse Division drafted and shared guidelines and procedures for the posting of security, they are not recognized as national standard operating procedures.
 
In light of these findings, the evaluation recommends that:

Recommendation 1:

The Recourse Directorate, in consultation with Comptrollership Branch, develop national standard operating procedures, and outline and communicate to program staff the process for the acceptance, processing and storage of security bonds, updating D-memoranda and manuals as required.

The Recourse Program makes effective use of enforcement appeal and trade decision appeal data to monitor its performance. In addition to measuring program performance against service standards and performance targets, the analysis of past trends are used as a basis to forecast the potential impact of new or changing programs and legislation on Recourse Program workloads.

The Recourse Directorate has taken steps to address the need to disseminate more information within the CBSA concerning Recourse Program trends and decisions. Steps include the establishment of a Director General (DG) Steering Group, Directors Feedback Group, and Canadian Human Rights Oversight Committee to provide feedback to other branches on specific cases and trends. Through these forums and at regular meetings of the Operations Branch Committee, the Recourse Program provides information including statistics on types of appeals, outcomes and explanations as to why actions and decisions are overturned. The Recourse Directorate also provides weekly e-mail updates to Programs Branch which includes a list of enforcement actions overturned and the corresponding rationale. Similarly, notices are provided to the relevant Programs and Operations Branches on the reasons and status of decisions and actions being heard before an external tribunal or court. The evaluation found several examples where appeal decisions have resulted in changes to CBSA policies and procedures.

The evaluation noted regional differences in the proportion of appeals compared to traveller and commercial volumes. Regional CBSA managers and staff noted that national trends may not reflect regional differences, and that region-specific information is needed to help identify any policy, procedures and training adjustments required to reduce the rate of appeals.

In light of these findings, the evaluation recommends that:

Recommendation 2:

The Recourse Directorate develop and disseminate regional level analysis of trends in enforcement and trade dispute appeals received and appeal decisions.

The evaluation found consistency in the delivery of the Recourse Program. Since 2009-2010, over 90% of Recourse Program decisions have been upheld by tribunals and courts, an indication that the program decisions are consistent with legislation and regulations. Eighty-three percent of Recourse Program clients surveyed that had launched more than one appeal agreed they were treated in a consistent manner.

The Recourse Program provides transparency by disclosing the rationale for the initial CBSA action or decision, and by providing an explanation for the appeal decision to each client. Nevertheless, about 70% of clients surveyed for whom the CBSA enforcement action or trade decision was upheld under appeal were not satisfied with the explanation provided. CBSA and external stakeholders suggested that transparency would be enhanced by the CBSA publishing its rulings on trade disputes, similar to the way that court case and tribunal decisions are published. United States Customs and Border Protection uses this approach.

Ensuring accessibility to the appeals process is one of the Recourse Program's key principles. Over 90% of survey respondents agreed that they were offered service in the official language of their choice. In addition, 78% agreed that it was easy to access the appeals process. However, about 25% indicated that there was a need for clearer instructions on how to file an appeal and on the types of information and documents required to support an appeal. Industry association stakeholders interviewed for the evaluation suggested that providing a list of frequently asked questions about the Recourse Program and process on the CBSA Web site would be helpful. Existing information about the Recourse Program is not easy to find on the CBSA Web site.

In light of these findings, the evaluation recommends that:

Recommendation 3:

The Recourse Directorate enhance program accessibility and transparency by reviewing and amending Recourse Program content on the CBSA Web site to ensure that the appeals process and requirements are clearly described and that it is easy to find the information.

Prior to the introduction of ECM, each region independently monitored, responded to and reported on complaints received. The ECM centralized the reporting of complaints, compliments and comments and the Operations Branch established national ECM service standards and procedures. Although the Recourse Directorate tracks whether complaints have been responded to and length of time taken to respond, it does not track the content of CBSA responses nor whether a complaint was effectively resolved. At the time of the evaluation, the Recourse Directorate was considering establishing an Office of Complaints Review (OCR) within the Litigation, External Recourse and Complaints Division to provide an additional level for the review of complaints. This could include the review of cases where the initial complaint was not resolved to a client's satisfaction and a further review is requested, and/or reviews conducted on behalf of CBSA senior management to support Agency initiatives aimed at fostering service excellence. A lack of information pertaining to the effectiveness of complaint responses makes it difficult to determine whether there is a need for this additional level of review.

In light of these findings, the evaluation recommends that:

Recommendation 4:

The Recourse Directorate develop and implement a monitoring process to ensure that complaints are resolved in an effective and consistent manner.

ECM volumes suggest that the online feedback form has improved the public's ability to direct complaints and compliments to the CBSA. Based on data and interviews with regional ECM coordinators, the evaluation found that the introduction of the ECM has corresponded to an increase in feedback being received. Between the launch of the online form in January 2011 and the end of March 2011, 68% of client feedback was received through the online form.

The Recourse Program is meeting its internal performance targets[ 6 ] for the processing of trade dispute appeals but not for the processing of enforcement appeals. Between 2006-2007 and 2010-2011, the average processing time for trade disputes declined from 243 days to 156 days, while the average processing time for enforcement appeals increased from 319 days to 506 days. File processing times include significant periods during which files are not being actively reviewed and assessed, while recourse officers are waiting for documents or correspondence or are working on other case files. The Recourse Directorate estimates that enforcement appeals require an average 12 hours of working time, while trade disputes require on average 57 hours.

Forty-seven percent of enforcement appeal clients surveyed indicated that the time it took to receive the final decision on their appeal was reasonable. The percentage was somewhat higher (68%) for those who had filed an appeal of a trade decision.

The current paper-based process for receiving and forwarding appeal files makes it difficult to reduce the time required to respond to the client. It takes an average of 12 calendar days before an appeal that is received in the regions is forwarded to the Recourse Directorate. In addition, there is a requirement that all parties be granted 30 days to review any new information that is received during the course of an appeal. Program management has indicated that the introduction of a proposed single electronic case and content file management system (Recourse Content Management System) with the ability to receive and transfer appeal files electronically would help reduce processing time.

The cost per appeal decision rose for both enforcement appeals and trade disputes from fiscal year 2009-2010 to 2010-2011. The Recourse Directorate has undertaken a number of initiatives to improve efficiency including changes to delegations of authority, a centralized file assignment process, better monitoring of recourse officer case loads, and administrative support to assist officers with requests for supporting documents and translations. In addition, a shortened recommendation template for appeal cases of low materiality and/or complexity was introduced. Most significantly, the Pacific Recourse Division will be consolidated into the GTA and Quebec Recourse Divisions by April 2012, a change which is expected to result in a net annual savings of $350,000.

In light of these findings, the evaluation recommends that:

Recommendation 5:

The Recourse Directorate:

• analyse current enforcement appeal and trade dispute appeal processes to identify components that could be accelerated; and
• develop and implement a plan to improve processing durations.

1.0 Introduction and Context

The Canada Border Services Agency (CBSA) is responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of legitimate persons and goods, including animals and plants. In fiscal year 2010-2011, the CBSA's more than 7,200 border services officers (BSOs) processed over 93 million travellers, 70 million postal and courier shipments, and 13 million commercial shipments at numerous service locations including licensed warehouses, 117 land border crossings, 13 international airports, 27 rail sites, three mail processing centres, major marine ports, marinas and reporting stations.[ 7 ]

The CBSA administers over 90 acts, regulations and international agreements to determine whether or not goods may be imported or exported or to determine the applicable tariff classification, origin and value for duty of imported goods. Incorrect reporting or non-compliance with the regulations on the part of importers and travellers can result in adjustments in the duties and taxes owed, penalties or enforcement actions such as the seizure or forfeiture of personal or commercial property. The Recourse Program is responsible for providing clients with a fair and impartial review of decisions and actions taken in support of border legislation. The Program ensures "that the decisions taken by CBSA officials are fair, transparent and accurately reflect the Agency's policies and the Acts administered by the CBSA. Individuals can complete a written submission if they disagree with an enforcement action or a trade decision made by the CBSA."[ 8 ]

1.1 Description of the Recourse Program

The Recourse Program is managed and delivered separately from the CBSA program or operational areas that take the original enforcement actions or trade decisions. Most requests for a review must be filed within 90 days, although extensions may be granted under exceptional circumstances.[ 9 ]  Recourse officers review the appeal requests and analyze the basis or rationale for the original action or decision against the relevant policies and legislation, and gather additional supporting evidence, arguments or clarifications from the client and the originating CBSA port of entry, mail processing centre or Compliance Verification office.[ 10 ] Recourse Program staff have the delegated authority on behalf of the Minister to decide whether to uphold, overturn or amend the original action or decision. Clients that are not satisfied with a Recourse Program decision can appeal to the Federal Court or to administrative tribunals within 90 days or request a judicial review concerning forfeited goods within 30 days.

The Recourse Directorate within the Corporate Affairs Branch at CBSA National Headquarters (NHQ) has overall responsibility for the Recourse Program. The program is delivered by the Recourse Directorate at NHQ and by regional Recourse divisions located in the Quebec and Greater Toronto Area regions.[ 11 ] 

The Recourse Directorate reviews appeals of enforcement actions. The Recourse Directorate is comprised of three divisions. The Recourse Policy and Planning Division develops Recourse Program policy and provides functional advice, guidance and support to the other Recourse divisions, including the regional Recourse divisions. As well, it is responsible for monitoring and reporting on the performance of the Recourse Program. The Litigation, External Recourse and Complaints Division provides for the centralized administration of litigation and judicial review cases against the CBSA that go before the Federal Courts, the Canadian International Trade Tribunal (CITT), the Canadian Agriculture Review Tribunal (CART), the Canadian Human Rights Commission (CHRC) and the Canadian Human Rights Tribunal (CHRT). Within this Division, the Complaints Unit tracks, analyzes and reports on the Enhanced Complaints Mechanism (ECM), and monitors and forwards feedback received through the online feedback form to the areas of the CBSA responsible for investigating and responding to the client.[ 12 ] The Appeals Division reviews appeals of CBSA enforcement actions including seizures, ascertained forfeitures, and penalties issued primarily by BSOs at CBSA ports of entry concerning contraventions of the Customs Act, the Customs Tariff, the Proceeds of Crime, Money Laundering and Terrorist Financing Act (PCMLTFA), and the Agriculture and Agri-Food Administrative Monetary Penalties Act or other acts and regulations that the CBSA administers.[ 13 ] 

In July 2010, the Recourse Directorate established a Complaints Unit within the Litigation, External Recourse and Complaints Division tasked with creating an ECM to centralize the review and analysis of written feedback (complaints, compliments, comments or suggestions) from the public, including letters sent directly to the regions, branches, the Minister, or the President's office. As part of the ECM, the Recourse Directorate launched an online feedback form[ 14 ] in January 2011 and worked with the regions to establish regional ECM coordinators, and to develop service standards and procedures for responding to and reporting on the feedback received.

The regional Recourse divisions are responsible for reviewing appeals of CBSA trade decisions (often called trade disputes[ 15 ]) concerning the tariff classification, origin, value, or admissibility[ 16 ] of imported goods.

Most of these appeals stem from either admissibility decisions that are made by BSOs at mail processing centres or from decisions made by CBSA compliance verification officers after conducting post-release compliance verifications that result in adjustments to the amount of duties and taxes payable or trade-related penalties. Importers may also appeal advanced rulings[ 17 ] on tariff classification or origin that are sought from regional CBSA program staff prior to the importation of goods.

In 2010-2011, the Recourse Program received 2,908 appeals related to enforcement actions and 932 appeals of trade decisions. During the same year, Recourse Program staff rendered decisions on 3,598 enforcement appeals and 781 trade disputes.[ 18 ] As well, during the first six months after the launch of the ECM in January 2011, the Agency received a total of 1,417 comments, complaints and compliments.[ 19 ] The proportion of ECM feedback received by region is illustrated in Exhibit 1.

Exhibit 1: Proportion of ECM Feedback by Region (January to April 2011)

Region	Proportion of ECM Feedback
GTA	124
Unknown Region	116
Pacific	115
Quebec	82
Prairie	54
Windsor/St.Clair	48
Niagara/Ft. Erie	30
Atlantic	21
Northern Ontario	16

Source: ECM Quarterly Report, Q4 Fiscal Year 2010-2011

The Recourse Program is staffed with approximately 100 full-time equivalents (FTEs) and program expenditures in 2010-2011 were almost $9.4 million.[ 20 ] 

1.2 Purpose and Scope of the Evaluation

This evaluation was identified as a priority for 2010-2011 in the CBSA Multi-Year Program Evaluation Plan approved by the Executive Evaluation Committee in June 2010. The purpose of the evaluation was to assess the relevance and performance of the Recourse Program in accordance with the Treasury Board Directive on the Evaluation Function.

The scope of the evaluation included all Recourse Program activities, outputs, and outcomes. This included an assessment of ECM monitoring and reporting activities, but not the investigation and response to complaints as these are not Recourse Program responsibilities.[ 21 ]

An evaluation framework was developed based on the activities, outputs and expected outcomes that were identified in the Recourse Program logic model. Based on this framework, an evaluation plan was developed and shared with Recourse Program management. The expected outcomes of the Recourse Program are:

• Travellers and the business community have access to a recourse process that is timely, accessible, consistent, impartial, fair and transparent;
• Travellers and the business community have an improved understanding of border legislation;
• CBSA program managers and staff have information they need to ensure that there is a consistent and predictable application of border laws and policies; and
• Clients are assured of a consistent and predictable application of border legislation.

The evaluation questions used to assess program relevance, achievement of expected results and effectiveness are shown in Exhibit 2.

Exhibit 2: Evaluation Issues and Questions

Evaluation Issue	Evaluation Questions
Relevance	Is the Recourse Program meeting an ongoing need and is it aligned with the role and responsibilities of the federal government and the CBSA?
Performance – Achievement of Expected Results	Is the Recourse Program effectively managed and are roles and responsibilities clearly understood?
	To what extent is the Recourse Program accessible, timely, consistent, impartial, fair and transparent?
	Does the Recourse Program provide CBSA management and staff with the information needed for continuous learning to help support consistent and predictable application of border laws and policies?
	Does the Recourse Program contribute to better client understanding of border legislation?
Demonstration of Efficiency	Is the Recourse Program delivered efficiently?
	Are there more efficient and effective models to achieve the expected results?

1.3 Evaluation Methodology

The CBSA Program Evaluation Division (PED) conducted research for this evaluation between April and October 2011. The research methodologies used for this evaluation were selected to ensure that key stakeholders (including program clients) had the opportunity to provide input on the effectiveness and efficiency of the Recourse Program and the ECM; and to enable a comprehensive review of available program documentation and data. The following research methodologies were used:

Analysis of Operational and Financial Data

The evaluation team analyzed CBSA and Recourse Program operational and financial data from fiscal years 2006-2007 through to 2010-2011 to assess the effectiveness and efficiency of the Recourse Program and ECM in meeting service standards, performance targets and expected outcomes. Reports from the Action Dispute Management System (ADMS) and the Trade Dispute Management System (TDMS) provided detailed information on appeal processing times and case workloads. Other data sources included the Recourse Resource Allocation Models (RAMs), ECM report, budget and expenditure data and overall CBSA operational and program performance statistics.

Assisted Case File Reviews

To learn more about how appeals are processed and to identify factors that have an impact on the efficiency of case processing, the evaluation team reviewed 62 case files with the assistance of recourse officers at the regional Recourse divisions and at NHQ from July to September 2011.[ 22 ] These reviews covered a broad range of the various types of appeals processed by recourse officers.

Document & Literature Review

The evaluation team reviewed documents and literature provided by Recourse Directorate and other CBSA areas in order to understand the design, delivery and management of the Recourse Program and ECM, as well as the linkages of the program with internal and external stakeholders. This review included legislation, regulations, policies, procedures, D-memoranda, training materials, Memoranda of Understanding, protocols, working group meeting minutes and terms of reference, correspondence, organizational charts, risk profiles, functional table documents, business cases, the quality assurance framework, programmatic assessments, quarterly performance reports and departmental performance reports. The evaluation team also reviewed literature and annual reports produced by external organizations and other government departments (OGDs) to compare the Recourse Program with other redress mechanisms.

Key Stakeholder Interviews

The evaluation team conducted a total of 67 one-on-one or group interviews with 114 key internal and external stakeholders. Interviews were conducted with those responsible or involved in the delivery of the Recourse Program or ECM, as well as operational, program and client stakeholders. Interviews were conducted either by telephone or in person and were used to gather stakeholder perspectives on the Recourse Program and/or ECM, and to clarify data or support findings obtained from other methodologies. A detailed breakdown of the interviewees is included in Exhibit 3.

Exhibit 3: Number of Interviewees by Stakeholder Type[ 23 ]

Stakeholder Type	Number of Interviewees
NHQ	22
GTA Region (Toronto and Hamilton)	41
Northern Ontario, Prairie and Pacific Regions	12
Southern Ontario Region	12
Quebec Region	10
Atlantic Region	9
External stakeholders	8
Total	114

Client Telephone Surveys

A telephone survey of Recourse Program clients whose cases were decided between April 1, 2010 and March 31, 2011 was conducted between September 19 and October 6, 2011 to gather client perspectives as to whether the program was delivered in a manner that was fair, impartial, transparent, accessible, timely and consistent. The PED validated client contact information provided by the Recourse Directorate prior to mailing advance notifications about the survey. Attempts were made to contact each of the 2,059 enforcement appeal and 544 trade dispute clients in the final survey population.[ 24 ] A total of 697 surveys were completed, including 459 related to enforcement actions and 238 related to trade disputes. The survey results are considered reliable to within plus or minus 4%, 95 times out of 100 for enforcement appeals, and within plus or minus 4.8%, 95 times out of 100 for trade disputes.

Site Visits

The evaluation team visited the GTA and Quebec regions where the regional Recourse divisions are located. The site visits were used to conduct the review of trade dispute case files and to conduct in-person interviews with regional Recourse Program staff, ECM coordinators, and other CBSA operational and program stakeholders to gather perspectives on the performance of the Recourse Program and ECM.

Evaluation Research Limitations

The Recourse Program only began providing national trend analysis of Recourse Program information to internal stakeholders in 2011. This limited the ability to assess the extent to which feedback provided by the Recourse Program has been used by other CBSA program or operational areas to ensure the consistent and predictable application of border legislation

2. Key findings

2.1 Relevance

Is the Recourse Program meeting an ongoing need and is it aligned with the role and responsibilities of the federal government and the CBSA?

The right to request a redetermination of the origin, tariff classification, value for duty or marking of imported goods is provided for in sections 60 to 67 of the Customs Act. In addition, sections 129 to 135 of the Customs Act provide the right to request a decision of the Minister concerning the seizure or forfeiture of goods or conveyances. The same right is provided for currency seizures under sections 25 to 35 of the Proceeds of Crime, Money Laundering and Terrorist Financing Act (PCMLTFA). Finally, a person who is served with a notice of violation of the Agriculture and Agri-Food Administrative Monetary Penalties Act may also request a review by the Minister of the facts of the violation under sections 8 to 14 of the Act.

In 2010, the mandate of the Recourse Program was expanded to provide an appeal mechanism for Prohibited Importations[ 25 ] and second-level reviews of appeals pertaining to the denial, cancellation or suspension of Trusted Traveller[ 26 ] memberships. Interviewees at NHQ noted that consideration is being given to further expanding the role of the Recourse Program to include the review of broker and warehouse licensing decisions, and trusted trader program membership decisions.[ 27 ]  

A survey of controls for seized identity documents conducted by the CBSA Internal Audit Directorate in 2010, found that there were no delegations of authority or organizational structures in place for the processing of requests for the return of documents seized by the CBSA under the Immigration and Refugee Protection Act (IRPA).[ 28 ] In response to these observations, the Recourse Directorate has undertaken to "determine how best to organize an appeal function within the Agency".[ 29 ] The Recourse Program does not currently have the authority to deal with appeals related to documents seized under IRPA.[ 30 ] 

The Recourse Program provides an administrative review mechanism for trade disputes that arise through the interpretation and application of trade agreements, as is required in each of the nine Free Trade Agreements to which Canada is a signatory.[ 31 ] For example, the North American Free Trade Agreement (NAFTA) requires each party to establish a judicial, quasi-judicial or administrative tribunal or procedures for the purpose of prompt review and, where warranted, correction of final administrative actions.[ 32 ]  Similarly, the Canada-Costa Rica Free Trade Agreement requires each country to provide at least one level of administrative review, as well as a judicial or quasi-judicial review process.[ 33 ]  

In addition, providing appeal and administrative review mechanisms aligns with commitments undertaken as part of the Revised Arusha Declaration of the World Customs Organization (WCO) concerning good governance and integrity in customs. Finally, the ECM is aligned with best practices as outlined in the WCO Integrity Development Guide which identifies the establishment of a compliment and complaint tracking and analysis system as a means to support prompt investigation and response to client feedback.[ 34 ]

Citizen-focussed service is one of the key areas of responsibility assessed by the Treasury Board Management Accountability Framework.[ 35 ]  The CBSA Charter includes a commitment to service excellence that includes fair application of the law and the provision for the review of CBSA actions and decisions.[ 36 ] As part of its service commitment, the CBSA has identified the importance of client feedback as a means to improve Agency policies and programs.[ 37 ] Through the ECM, the CBSA is better able to track and analyze the feedback received.    

2.2 Performance – Achievement of Expected Results

Is the Recourse Program effectively managed and are roles and responsibilities clearly understood?

CBSA staff interviewed in the regions was aware of the appeal processes and the role of the Recourse Program.[ 38 ] With respect to key external and internal stakeholders, the Recourse Directorate has established protocols with the Department of Justice and the CBSA Trade Program that set out respective roles and processes concerning cases that are brought before the CITT. Similarly, a Memorandum of Understanding with the CHRC articulates that the Recourse Directorate is responsible for monitoring and coordinating the input from CBSA branches on complaints of discrimination that are filed with the Commission by members of the public. An Origin Protocol between the Recourse Program and the CBSA's Origin and Valuation Division establishes the respective responsibilities for appeal cases where the certificate of origin or other information that was not provided at the time of the original trade decision are received with the appeal.

The Origin Protocol is intended to ensure that the compliance verification process is not circumvented and that trade compliance officers review any additional information submitted in order to make a trade determination decision. However, the evaluation heard from several regional interviewees that the Origin Protocol is not always respected and that regional trade compliance staff is sometimes reluctant to re-open a compliance verification file in response to new information being submitted. As a result, Recourse Program staff is assessing the information and making the trade determination decision. This is not the role of the recourse officers, which is to review the trade determination decision. In addition, if the client then wishes to appeal this trade determination, they would have already exhausted their administrative review mechanisms and would have to appeal to the CITT or Federal Courts.

Recourse Program staff is responsible for ensuring that any duty owing is paid or secured at the time of appeal, for initiating refunds or the return of goods in the event of a successful appeal, and for  collections against securities in the event of an unsuccessful appeal. Until 2009, the Tax Services offices of the Canada Revenue Agency (CRA) processed and stored security bonds on behalf of the CBSA, and updated the Customs Commercial System (CCS) accordingly.[ 39 ]  This responsibility has been assumed by the Recourse Program, which does not have access to CCS. To address this issue, the GTA Recourse Division has made arrangements for the Customs Cashier (GTA Client Services) to update CCS on behalf of both regional Recourse divisions.

Guidelines and procedures for the posting of security were drafted and shared by the GTA Recourse Division. However, they are not recognized as national standard operating procedures and have not been approved by all implicated stakeholders.[ 40 ] Regional Recourse Division managers and staff indicated that changes need to be made to the Finance Volume of the Comptrollership Manual and to D-memorandum 11-6-7 to clarify the roles and responsibilities of the Recourse Program and provide clearer instructions on the processing of security bonds.[ 41 ]  Recourse Program staff at NHQ and in the regional Recourse divisions also noted the need for better instruction on how to assess the validity and sufficiency of security bonds.

The need to maintain staffing levels and skills will become increasingly important to the Recourse Program as 20% of the program's indeterminate staff is currently eligible to retire and 47% will be eligible for retirement by 2018.[ 42 ] While basic, introductory recourse officer training materials are available and some recourse officers reported that they had received this training, the Recourse Directorate has identified the need to develop more in-depth courses concerning the legislation, policies and procedures for particular types of appeals. Currently, the Recourse Program draws heavily on training that is provided by the Trade Program.

The Recourse Program collects data on the number and types of appeals received and the time frames for acknowledging and processing appeals. This information is used for assessing the overall performance of the Recourse Program against its service standards and performance targets, and for monitoring the workload and productivity of recourse officers. The Program has also used historical trend data on the incidence of certain types of cases to forecast the potential impact of new or changing programs and legislation. For example, the Recourse Directorate used data on the incidence of appeals related to the implementation of the Cross-border Currency and Monetary Instruments Reporting Regulations to estimate the expected number of appeals stemming from changes to the PCMLTFA. Similarly, historical data have been used to estimate the potential impact of initiatives such as eManifest.[ 43 ]

Another example of the proactive use of performance data relates to the identification of risks. By monitoring and analysis of the outcomes of decisions on judicial reviews and appeals before the Federal Court or tribunals, the Recourse Directorate identified a higher likelihood of older appeal cases not being upheld. As a result, a business case was developed to secure additional funding to clear the backlog of older case files in the inventory.[ 44 ] 

Program efficiency and capacity is monitored through the use of Resource Allocation Models (RAMs). Developed by the Recourse Directorate, RAMs are used to calculate the average time and cost to process various types of appeals. In addition, at the time of the evaluation, the Recourse Directorate was developing a Quality Assurance Framework to measure and assess the quality of Recourse Program delivery. The framework is being developed using the Citizens First 5 study conducted by the Institute for Citizen-Centred Service[ 45 ] and each year the Directorate plans to conduct an annual review of the delivery of one of its four identified business lines.[ 46 ]

Prior to the introduction of ECM, each region independently monitored, responded to and reported on complaints received. The ECM established national service standards, procedures, and centralized reporting for complaints, compliments and comments. Although the Recourse Directorate tracks whether complaints have been responded to and length of time taken to respond, it does not track the content of CBSA responses nor whether a complaint was effectively resolved.[ 47 ] Consistency between responses can also be an issue, especially with the possibility of duplicate complaints being received, such as by letter in addition to through the online feedback form. Interviewees also noted a need to clarify ECM national standard operating procedures to minimize the likelihood of inconsistent interpretations. For example, it is not always clear which templates must be filled out and the Complaint Input Form includes several tick-boxes that are similar and difficult to distinguish.[ 48 ]

At the time of the evaluation, the Recourse Directorate was considering establishing an Office of Complaints Review within the Complaints Unit. This office would provide a second-level review of complaints. However, it has not yet been decided which complaints will be reviewed. This could include the review of cases where the initial complaint was not resolved to a client's satisfaction and a further review is requested, and/or review conducted on behalf of CBSA senior management to support Agency initiatives aimed at fostering service excellence. The evaluation noted that serious allegations against CBSA employees are currently investigated by the Security and Professional Standards Directorate of the Comptrollership Branch, sometimes with the assistance of external police organizations such as the Royal Canadian Mounted Police. This, combined with a lack of information pertaining to the effectiveness of complaint responses, makes it difficult to determine whether there is a need for this second-level review mechanism.

To what extent is the Recourse Program accessible [ 49 ], timely, consistent, impartial, fair and transparent?

CBSA seizure receipts, Detailed Adjustment Statements, formal letters, notices of penalty assessment (Administrative Monetary Penalty System (AMPS)), notices of violation (Agriculture and Agri-Food Administrative Monetary Penalties (AA-AMPS)), and notices of ascertained forfeitures include information intended to inform clients of their right to appeal the CBSA decision or action. Information on the Recourse Program is also available on the CBSA Web site. However, the evaluation found that use of the site's search feature was required to locate some program information. While 78% of survey respondents found it easy to access the appeals process, about 25% indicated that there is a need for clearer instructions pertaining to the types of information and documents that should be provided to the CBSA. Industry association stakeholders interviewed for the evaluation suggested that providing a list of frequently asked questions about the Recourse Program and process on the CBSA Web site would be helpful. About a third of Recourse Program clients surveyed did not agree with the statement that it was easy to contact CBSA staff handling their case. The second most common suggestion[ 50 ] offered by survey respondents for improving the Recourse Program was to make it easier to contact Recourse Program staff directly.

The Recourse Program also ensures accessibility by granting extensions to clients requiring additional time to file an appeal.[ 51 ] The evaluation found that since fiscal year 2007-2008, 70% of the 53 extension requests for trade dispute appeals were granted. Over the same period, 15 of 16 extension requests for enforcement actions appeals were also approved.

Regional interviewees in each region noted significant increases in the amount of feedback being received since the introduction of ECM. In one region the introduction of ECM corresponded to a 20% increase in the number of complaints received over the same quarter in the previous year.[ 52 ] Between the launch of the online form in January 2011 and the end of March 2011, 68% of feedback was received through the online form.[ 53 ] However, regions noted that sometimes the same feedback was received through the online feedback form as well as through written letters to the Minister or to the region.

This finding was consistent across regions and between different types of clients. Of those clients who chose to be surveyed in French, 77% strongly agreed and 17% agreed somewhat that they were offered service in the language of their choice, while 80% of clients surveyed in English strongly agreed and 11% agreed somewhat.

The Recourse Program has clearly outlined procedures for ensuring that correspondence is provided in the official language of the client's choice.[ 54 ]  The GTA Recourse Division recently implemented a process to forward appeal cases that are submitted in French to the Quebec Recourse Division for more efficient processing in the language of the client's choice. As part of the planned Quality Assurance Framework, the Directorate will monitor the extent to which correspondence between recourse officers and clients is in the official language of the client's choice.[ 55 ]

For appeals of enforcement actions and trade decisions, the Recourse Program has a single service standard which is to inform clients whether or not their appeal will be accepted for review within 30 days of receipt, 85% of the time. Since 2009-2010, this standard has been met. However, the evaluation also found that 35% of clients responding to the survey believed that it takes too long to receive this acknowledgement.

The current process for assigning files makes it difficult to reduce the time required to respond to clients. About 70% of enforcement appeals are initially received in the regions[ 56 ] and it takes on average 12 calendar days for an enforcement appeal to be forwarded to the Recourse Directorate at NHQ.[ 57 ] For appeals of trade decisions, the CBSA office that receives the request is required to forward it to the Recourse Directorate, which subsequently assigns the file to one of the regional Recourse divisions, a process that takes an average of 20 calendar days.[ 58 ]  In addition, before a file is acknowledged, an initial front-end review is conducted to ensure the validity of the appeal (i.e., the appeal was filed within the 90-day time limit and any duty owing has been paid or secured). Files are paper-based and program management has indicated that the service standard for acknowledging appeals could be reduced to seven days through the introduction of a single electronic case and content file management system, including the ability to receive appeals electronically. The Recourse Directorate is currently in the process of developing a Recourse Content Management System that will include an electronic file transfer feature to support easier management of workflow processes and workloads.[ 59 ]

For the ECM, the Agency is meeting its service standard for initiating contact with the client within 10 working days from the receipt of the complaint 96% of the time. The service standard for providing a final response to the client within 40 working days was achieved for 87% of the requests received.[ 60 ] Regional and Recourse Program staff interviewed indicated that, for the 13% of requests that are not responded to within 40 days, challenges in scheduling meetings between CBSA staff and clients were a major contributing factor. [ 61 ]

The average processing time for trade disputes declined from 243 days in 2006-2007 to 156 calendar days in 2010-2011 (Exhibit 4). Over the same period, the average processing time for enforcement appeals increased from 319 days to 506 calendar days. File processing times include significant periods during which files are not being actively reviewed and assessed, while recourse officers are waiting for documents or correspondence or are working on other case files. The Recourse Directorate estimates that enforcement appeals require an average 12 hours of working time, while trade disputes require on average 57 hours.[ 63 ] Recourse officers working on enforcement appeals have an average caseload of 150 cases and are expected to submit a recommendation for 16 to 18 enforcement appeal decisions per month. The evaluation found that only about a third of the recourse officers were able to meet this target.[ 64 ]  Recourse officers working in the regional Recourse divisions do not have a target for the number of decisions per month and have an average caseload of 26.[ 65 ]  

Exhibit 4:  Average Processing Time in Days

Average of Time to Decision (days)

FY of Recourse Decision	Enforcement Actions	Trade Disputes
2006-2007	319	243
2007-2008	344	189
2008-2009	350	319
2009-2010	454	208
2010-2011	506	165
Grand Total	382	229

Sources: Action and Dispute Management System (ADMS) and Trade Dispute Management System (TDMS)

For the processing of trade disputes, the Recourse Program performance target is to close 70% of prohibited weapons (PW) cases within 90 days and 70% of tariff classification, and origin and value cases (TCOV) within 180 days. An additional performance target is that the inventory of cases older than two years should not exceed 20% of the total case inventory. As illustrated in Exhibit 5, in 2010-2011 71% of PW cases were closed within 90 days and 76% of TCOV cases were closed within 180 days. For the past five years, the program has been well within its target for the proportion of cases older than two years and program management stated that this target will likely be lowered to 10% in fiscal year 2012-2013.

Exhibit 5: Trade Disputes Performance Targets, 2006-2007 to 2010-2011

Fiscal Year	% of Cases in Inventory Older than Two Years (Target = 20%)	Percentage and Number of PWs Closed in 90 Days or Less[ 66 ] (Target =70%)	Percentage and Number of TCOVs Closed in 180 Days or Less (Target = 70%)
2006-2007	10%	97%  (266)	66% (276)
2007-2008	11%	90% (159)	58% (229)
2008-2009	10%	68% (98)	53% (419)
2009-2010	5%	57% (76)	70% (580)
2010-2011	5%	71% (76)	76% (522)

Source: TDMS[ 67 ]

For enforcement appeals, the Recourse Directorate performance target is to close 50% of cases received within eight months, and 85% within 15 months. The evaluation found that the Recourse Program has been unable to meet this target and that performance has declined steadily since 2006-2007 (Exhibit 6).

Exhibit 6: Enforcement Appeal Performance Targets, 2006-2007 to 2010-2011

Fiscal Year	Percentage and Number of Appeals Closed Within 8 Months (240 days) Target = 50%	Percentage and Number of Appeals Closed Within 15 Months (450 days) Target = 85%
2006-2007	40% (1593)	83% (3330)
2007-2008	37% (1193)	78% (2521)
2008-2009	35% (1223)	72% (2494)
2009-2010	33% (1202)	61% (2189)
2010-2011	29% (1079)	59% (2214)

Source: ADMS

Factors that have contributed to the decline include staffing challenges[ 68 ] and the requirement that all parties be granted 30 days to review any new information received during the course of an appeal.

Forty-seven percent of enforcement appeal clients surveyed indicated that the time it took to receive the final decision on their appeal was reasonable.[ 69 ] The percentage was somewhat higher (68%) for those who had filed an appeal of a trade decision. Of those who indicated that the time it took to receive the final decision was too long, 70% stated that they did not receive an explanation as to why the process took the amount of time it did.

Regional CBSA staff interviewed noted that delays in processing files can have a significant impact on clients and the Agency. For example, resources are required to track and store seized goods while appeals are processed. In the case of Free and Secure Trade program (FAST) commercial drivers, their continued ability to transport shipments across the Canada-United States border may be contingent on the outcome of an appeal as employers may prefer drivers who are able to use the expedited border clearance process afforded by the FAST program.

Overall, 65% of Recourse Program clients surveyed believed that their case was treated with impartiality. For those whose appeal was decided in their favour, this figure was almost 90% compared to only about half of those who had received an unfavourable decision.

A large majority (82%) of clients agreed that they were provided with a reasonable opportunity to submit additional information for consideration during the appeal process, including 78% of those for whom the outcome of the appeal was not in their favour. However, these latter clients did not believe that their arguments and interpretation of the facts were taken into consideration. Recourse officers interviewed stated that while they consider the supporting information supplied by clients, decisions must be based on whether a contravention occurred in accordance with relevant policies, legislation, and jurisprudence.

As illustrated in Exhibit 7, the proportion of enforcement actions upheld in CBSA's favour dropped from 64% in 2007-2008 to 54% in 2010-2011. Based on a five-year average, fewer than 60% of enforcement actions appealed are upheld. This rate varied by region, from a low of 52% in the GTA to 63% in the Niagara–Fort Erie Region.[ 70 ] Reasons for enforcement actions to be overturned include actions found to be unwarranted or unjustified or not taken in accordance with Agency policies or guidelines; incorrect allegations; and additional information being provided after the enforcement action.

Exhibit 7: Percentage of Enforcement Actions Upheld by Issuing Region by Fiscal Year

Region	2006-2007	2007-2008	2008-2009	2009-2010	2010-2011	Five-Year Average
Pacific	62%	65%	58%	63%	62%	62%
Quebec	63%	62%	58%	56%	56%	59%
Prairie	58%	67%	63%	64%	59%	62%
Windsor–St. Clair	62%	63%	57%	53%	42%	55%
GTA	52%	66%	56%	48%	44%	52%
Niagara–Fort Erie	64%	68%	66%	59%	58%	63%
Northern Ontario	46%	60%	60%	47%	55%	54%
Atlantic	49%	56%	67%	51%	58%	56%
National Average	59%	64%	59%	57%	54%	59%

Source: Recourse Directorate (customized ADMS listing). Figures do not include actions that are partially upheld (i.e., between 10 and 16% are amended or mitigated).

Over the same period, about half of trade decisions were overturned, either completely or partially, in favour of the client (Exhibit 8).

Exhibit 8: Percentage of Trade Decisions Upheld and Overturned by Fiscal Year

Appeal Outcome	2006-2007	2007-2008	2008-2009	2009-2010	2010-2011	Five-Year Average
Upheld	52%	45%	34%	37%	43%	42%
Partially Overturned	7%	8%	9%	9%	8%	8%
Overturned	38%	43%	46%	51%	48%	42%
Cancelled*	4%	3%	11%	3%	2%	5%

Source: TDMS
*Appeal withdrawn or deemed ineligible (e.g. appeal not filed within prescribed timelines.)

In addition, in fiscal year 2010-2011, the Recourse Directorate reviewed 32 Trusted Traveller decisions and overturned nine program decisions in favour of the client.

Recourse Program decision letters provide references to specific legislation, policies and guidelines that were used as a basis for both the initial action and appeal decision, as well as instructions on what the client can do should they disagree with the final decision. However, about 70% of survey respondents for whom the initial CBSA action or decision was upheld under appeal, were not satisfied with the explanation provided.

The CBSA and external stakeholders suggested that transparency would be enhanced by the CBSA publishing its rulings on trade disputes, similar to the way that court case and tribunal decisions are published. This approach is used by United States Customs and Border Protection which provides a searchable online database[ 71 ] of customs rulings dating from 1989 to the present. Although recent CBSA advance rulings are available on the CBSA Web site and on the Customs Automated Reference Library (CARL) along with court and tribunal decisions and other reference material, Recourse Program decisions are not currently published.[ 72 ]

 
For trade disputes, a standardized review process is in place to help ensure consistency.[ 73 ] The process includes the use of a Technical Reference System (TRS), which is a database that contains information on all CBSA trade decisions. Recourse officers use the TRS as a reference to look up past decisions, and update the database by adding the rationale used to render decisions on current cases. As such, the TRS helps ensure that recourse decisions are consistent with those made previously for the same or similar types of goods.

Of those clients surveyed that had filed more than one appeal of a CBSA decision, 83% believed that they were treated in a consistent manner.[ 74 ]

Does the Recourse Program provide CBSA management and staff with the information needed for continuous learning to help support consistent and predictable application of border laws and policies?

In most cases, CBSA programs and operations staff interaction with the Recourse Program is limited to providing documentation and/or information related to a case under appeal. However, interviewees commented that the limited communications with Recourse Program staff sometimes made it difficult to understand how and why a decision was reached.

To help address these concerns, the Recourse Directorate has established a Director General (DG) Steering Group, Directors Feedback Group, and Canadian Human Rights Oversight Committee to provide feedback to other branches on specific cases and trends.[ 75 ] Through these forums and at regular meetings of Operations Branch committees, the Recourse Directorate disseminates information including statistics on types of appeals, outcomes and explanations as to why actions and decisions are overturned. The Directorate also provides weekly updates to Programs Branch via e-mails that include a list of enforcement actions overturned as a result of an appeal and the corresponding rationale. Similarly, notices are provided to the relevant Programs and Operations Branches on the reasons and status of decisions and actions being heard before an external tribuna7l or court.

As illustrated in Exhibit 9, the number of CBSA enforcement actions increased by 32% over the period 2007-2008 to 2009-2010. Over the same period, the number of enforcement appeals received declined by 12%. Similarly, the number of trade decisions rendered increased by almost 14% between 2009-2010 and 2010-2011, while the number of appeals declined slightly (Exhibit 10).

Exhibit 9: Number of CBSA Enforcement Actions[ 76 ] and Appeals Received by Fiscal Year

	2007-2008	2008-2009	2009-2010	% Change
Enforcement Actions (Traveller and Commercial)	92,369	90,382	121,927	32.0
Enforcement Appeals Received	4,104	3,714	3,608	-12.1

Sources: CBSA Fiscal Year Facts and Figures and Recourse Directorate.

Exhibit 10: Number of CBSA Trade Decisions[ 77 ] and Appeals Received by Fiscal Year

	2009-2010	2010-2011	% Change
Trade Decisions	5,185	5,892	13.6
Trade Decision Appeals	941	932	-1.0

Sources: Post-Border Operations Division, Operations Branch and Recourse Directorate.

While it is not possible to identify the extent to which trends and information provided to the Recourse Program have contributed to the decline in appeals received, the evaluation noted several examples where appeal decisions have resulted in changes to CBSA policies and procedures. For example:

• In July 2011, as the result of an appeal, the Agency modernized its reporting procedures to make it easier for private boaters to comply with reporting requirements.[ 78 ]
• Based on a number of Recourse Program decisions, in April 2011 a memorandum was issued to ensure that BSOs were aware that the use of a Traveller Declaration Card (TDC) in the NEXUS lanes at land-border ports of entry is not legally required and that NEXUS members must be provided with the opportunity to declare goods orally.[ 79 ]
• Interviewees noted that due to the outcome of appeals, changes had been made to the procedures used by BSOs to validate the declared value of goods purchased by clients through the Internet.[ 80 ]
• In January 2009, the Horizontal Policy and Planning Division of the Programs Branch updated wording on seizure receipts to clarify the reasons for personal seizures and thereby reduce the number of seizures overturned under appeal.[ 81 ] 

The ECM Quarterly Report makes a number of recommendations based on ECM feedback. For example, as a result of an analysis of 110 complaints related to the Postal Program[ 82 ], a number of short-term solutions were implemented in the GTA to improve connectivity with Canada Post and provide better information to clients concerning the status of their parcels. As a result of an analysis of ECM complaints conducted by the Atlantic Region, in November 2011 the region issued an interim policy to clarify procedures pertaining to the granting of personal exemptions.[ 83 ] 

Analysis of appeal trends at the national level may not fully reflect regional differences. For example, the evaluation noted regional differences in the proportion of appeals compared to traveller and commercial volumes. As illustrated in Exhibit 11, based on annual averages the highest proportions of enforcement appeals originate in the Pacific and Quebec Regions. For the Pacific Region, which processes the highest volume of travellers, 48% of these appeals are related to personal seizures and 42% are appeals of AMPS. The Quebec Region issued the highest percentage of AMPS[ 84 ], which resulted in 59% of the region's total enforcement appeals.

Exhibit 11: Annual Average Proportion of Traveller Volume, Commercial Releases and Enforcement Appeals by Region[ 85 ]

4-YEAR AVERAGE FROM 2006-07 to 2009-10 (except commercial releases, only 3 years from 2006-07)

	% of traveller volumes	% of commercial releases	% of enforcement appeals
Pacific	21%	13%	22.5%
Windsor St.Clair	17%	25%	14.5%
Niagara Ft.Erie	16.5%	14%	8.3%
Quebec	12.1%	14%	18.5%
GTA	10.5%	14%	12.5%
Northern Ontario	9.6%	3%	5.5%
Prairie	6.7%	14%	13.8%
Atlantic	6.8%	2%	2.3%

Sources: ADMS, CBSA Facts and Figures, CBSA People's Year in Review

Region-specific analysis concerning ECM complaints and compliments are included in the ECM quarterly reports. However, detailed regional analysis of trends related to enforcement appeal and trade disputes decisions are not conducted. Regional interviewees noted that this level of detail would help in identifying recurring issues that might be addressed through training or changes to processes.

Does the Recourse Program contribute to better client understanding of border legislation?

This view was consistent across all types of clients, who either submitted their appeal as a traveller, individual importer, company, or representative acting on behalf of a client. Only those CBSA clients that have filed an appeal or submitted a complaint or comment have contact with the Recourse Program. As a result, the evaluation found that the Program is not ideally positioned to achieve its broadly stated intended outcome of improving traveller and business community understanding of border legislation.

2.3 Performance - Efficiency and Economy

Is the Recourse Program delivered efficiently?

Recourse Program expenditures for 2010-2011 totalled $9.3M (Exhibit 12). The increase in 2010-2011 reflects additional funding allocated to the program for the ECM and to reduce the inventory of cases more than two years old.[ 86 ] 

Exhibit 12: Recourse Program FTEs and Expenditures[ 87 ]

	2006-2007	2007-2008	2008-2009	2009-2010	2010-2011
NHQ – Recourse Directorate
FTEs	57	59	68	72	78
Expenditures	$4,722,465	$4,767,757	$5,371,866	$5,528,874	$5,859,825
ECM	0	0	0	0	$759,671
Regional Recourse Divisions
FTEs	37	35	40	39	38
Expenditures	$2,663,330	$2,488,114	$2,864,675	$2,744,712	$2,730,493
Total
FTEs	94	94	108	111	116
Expenditures	$7,385,795	$7,255,871	$8,236,541	$8,273,586	$9,349,869

Sources: Comptrollership, Agency Performance Report Q4, Fiscal Year 2010-2011

The cost per decision rose for both enforcement appeals and trade disputes from fiscal year 2009-2010 to 2010-2011, as illustrated in Exhibit 13. The increases in cost per decision reflect a drop in number of decisions combined with relatively stable resource levels. For enforcement appeals it is also partly explained by increases in types of cases that typically require more time to process. In particular, level 4 currency seizures, which represented 4.4% of enforcement appeals received in 2009-2010 compared to 2.3% in 2008-2009, require about three times longer to process than other types of enforcement appeals. Similarly, for trade disputes, there was a 38% increase in the number of valuation cases received from 2008-2009 to 2009-2010 (see Exhibit 14). These cases often involve complex methods of determining value for duty and as such can require additional time to process when appealed.[ 88 ]

Exhibit 13: Recourse Program Cost per Decision by Fiscal Year[ 89 ]

		2008-2009	2009-2010	2010-2011	Average
Enforcement Appeals	Decisions	3,665	3,681	3,598	3,648
	Cost/Decision	$1,466	$1,502	$1,629	$1,532
Trade Disputes	Decisions	885	965	781	877
	Cost/Decision	$3,237	$2,844	$3,496	$3,192
Overall	Total Decisions	4,550	4,646	4,379	4,525
	Cost/Decision	$1,810	$1,781	$1,962	$1,851

Sources: Comptrollership, RAMs, and Agency Performance Report Q4, Fiscal Year 2010-2011

Exhibit 14: Number of Appeals Received by Case Type by Fiscal Year

	Case Type	2007-2008	2008-2009	2009-2010	2010-2011
Enforcement Actions	AMPS	1,945	1,526	1,344	n.a.
	Personal Seizures	1,598	1,689	1,714	n.a.
	PCMLTFA Levels 1-3	125	113	187	n.a.
	PCMLTFA Level 4	96	97	159	n.a.
	Other	340	289	204	n.a.
	Total	4,104	3,714	3,608	2,908
Trade Disputes	Tariff Classification	402	541	493	n.a.
	Valuation	104	108	149	n.a.
	Origin	58	86	75	n.a.
	Prohibited Weapons	186	153	121	n.a.
	Trade AMPS	76	82	74	n.a.
	Other	10	24	29	n.a.
	Trade Dispute Total	836	994	941	932
All Appeals	Total	4,940	4,708	4,549	3,840

Sources: Enforcement Appeals and Trade Disputes RAMs and Agency Performance Report Q4 Fiscal Year 2010-2011

As a result of a Service Standards Review conducted in 2010, the delegation of authority to make the final decisions on requests for extension, third-party appeals, and AMPS contravention C348 was lowered from the manager level to senior policy advisors.[ 90 ] As well, the position of an administrative senior program officer was created to facilitate a centralized file assignment process, better monitoring of recourse officer case loads, and to assist officers with requests for missing documents and for translations.

A shortened recommendation template was developed to address approximately 26% of enforcement appeal cases that are of lower materiality or complexity. These typically include cases related to alcohol, tobacco, prohibited weapons, firearms seizures, and seizures or undervaluation cases where the assessed value for duty is equal to or less than $2,000. The short recommendation reduces the need to develop lengthy explanations for management approval.

As a result of Strategic Review, the Pacific Recourse Division will be consolidated into the GTA and Quebec Recourse Divisions by April 2012. This consolidation is expected to result in annual savings of $350,000 by eliminating five FTEs. The remaining six FTEs will be transferred to the GTA and Quebec Recourse Divisions.

The Recourse Program has proposed that two trade dispute centres of expertise be created to strengthen program knowledge. Interviewees suggested that this approach would lead to greater efficiency as files could be grouped by type and the same rationale for decisions applied to multiple files. Through the case file reviews, the evaluation noted that specialization enables recourse officers to process files and reach decisions with greater ease, speed and consistency.[ 91 ]

There is some evidence to suggest that specialization would lead to greater efficiency. While each regional Recourse division processes all types of trade dispute appeals and workloads are allocated to divisions based on the region where the case originated[ 92 ], the evaluation noted that some specialization is already occurring. Compared to the Regional Recourse Division in Quebec, origin cases make up a greater proportion of trade dispute appeals processed by the GTA Regional Recourse Division, and on average, the GTA processes these cases more quickly (201 days compared to 297 days). Similarly, the GTA processes more prohibited weapons cases than Quebec and the average processing time in the GTA for these cases is significantly lower (47 days compared to 99 days).[ 93 ]  Processing times for classification cases are comparable between the two regional Recourse divisions.

Exhibit 15: Number of Trade Dispute Cases by Type by Regional Recourse Division

April 2006 - April 2011

	Classification	Origin	Prohibited Weapons	Value	Other
GTA	837	213	347	251	39
Quebec	1048	68	68	221	21

Source: TDMS. Average for period of fiscal year 2006-2007 to 2010-2011.

While ECM dedicated resources are available for the Recourse Directorate, costs such as those incurred by regions and branches to respond to ECM feedback are not available. However, regions indicated that they allocated between one and three full-time program staff to the ECM. As well, additional time is spent by chiefs and superintendents to investigate and respond to complaints. Regional management noted that ECM requirements for documenting and reporting are more time consuming than was previously the case. New requirements resulting from the implementation of ECM include requirements to complete call summaries, complaint input forms, complaint investigation reports, attestation and verification forms, and managerial reports.

Are there more efficient and effective models to achieve the expected results?

Examples of external independent redress mechanisms include the Commission for Public Complaints against the Royal Canadian Mounted Police, the Security Intelligence Review Committee which reviews complaints against the Canadian Security Intelligence Service, and the Canadian Transportation Authority which resolves disputes pertaining to transportation regulations. In addition, there are several federal ombudsmen including the Taxpayers' Ombudsman, the Canada Post Ombudsman, the Passport Canada Ombudsman, the Veterans' Affairs Ombudsman, the National Defence and Canadian Forces Ombudsman and the Procurement Ombudsman.[ 95 ] The evaluation found that there are both advantages and disadvantages to the establishment of an independent redress mechanism. While clear independence from the organization whose decision or action is the subject of an appeal helps eliminate any perceptions of bias, these mechanisms are often an addition to existing administrative review programs, which results in additional costs to the taxpayer. As well, decisions are in the form of recommendations that are not binding on the agency or department.

When asked how the CBSA could improve the appeals process, about 3% (19/697) of clients surveyed provided an unprompted suggestion that the process be conducted by an independent third party. As previously noted, 65% of Recourse Program clients surveyed believed that their case was treated with impartiality. The Recourse Program overturns or amends over 40% of CBSA enforcement actions or trade decisions in favour of the client. In fiscal year 2010-2011, the materiality of cases reviewed by the Recourse Program totalled $42 million, and over $11 million was returned to appellants as a result of their appeal.[ 96 ] CBSA clients that are dissatisfied with a Recourse Program decision have the option to request an independent judicial review or appeal to the Federal Courts or an administrative tribunal such as the CITT or CART. The proportion of appeals that are reviewed by these bodies represents between 1 and 2 percent of appeals received by the Recourse Program each year.

CBSA Recourse Program costs per decision are comparable to those incurred by the CRA for its appeals program. Not surprisingly, judiciary processes are more costly than administrative review mechanisms such as those provided by the CBSA Recourse Program and CRA Appeals Program, as illustrated in Exhibit 16.

Exhibit 16: Redress Mechanism Comparison Fiscal Year 2010-2011

Redress Mechanism	Total Actual Expenditures	Number of Cases Received	Number of Decisions	Expenditures / Decision
CBSA Recourse Program	$9,396,000**	3,840	4,379	$1,962
CRA Appeals Program	$164,065,000	104,707	72,130	$2,275
CART	$504,579	62 active	30	$16,819
CITT	$10,922,000	177	258	$42,333
CHRC Dispute Resolution Program	$8,660,000	853	316	$27,405
CHRT	$4,400,000	191*	41*	$107,317

Sources: 2010-2011 Departmental Performance Report, Annual Reports, CBSA Agency Performance Report.
*CHRT reports cases by calendar year, 17 were judicial decisions and 24 were resolved through mediation
** Note: Figure includes $760K for ECM, which was excluded in the calculation of the cost per decision.

3. Key Conclusions, Recommendations and Management Responses

The Recourse Program is relevant in that it addresses legislative requirements to provide a mechanism for the review of CBSA enforcement actions and trade decisions and supports commitments agreed to under Canada's free trade agreements and as a member of the World Customs Organization. The Recourse Program and ECM are important components of the CBSA's Service Commitment[ 97 ] and strategy for ensuring fairness, accountability and improved client service.

Some agencies and departments establish separate ombudsmen or complaints commissioners as a means of ensuring fairness. When asked how the CBSA could improve the appeals process, about 3% (19/697) of clients surveyed provided an unprompted suggestion that the process be conducted by an independent third party. About 65% of Recourse Program clients surveyed for the evaluation believed that their case was treated with impartiality. The Recourse Program overturns or amends over 40% of CBSA enforcement actions or trade decisions in favour of the client. In fiscal year 2010-2011, the materiality of cases reviewed by the Recourse Program totalled $42 million, and over $11 million was returned to appellants as a result of their appeal.[ 98 ] CBSA clients that are dissatisfied with a Recourse Program decision have the option to request an independent judicial review or appeal to the Federal Court or an administrative tribunal such as the Canadian International Trade Tribunal (CITT) or Canadian Agriculture Review Tribunal (CART). The proportion of appeals that are reviewed by these bodies represents between 1 and 2 percent of appeals received by the Recourse Program each year.

The Recourse Program has agreements in place with key external and internal stakeholders to outline respective roles and responsibilities, including protocols with the Department of Justice and the CBSA Trade Program concerning cases that are brought before the CITT. Similarly, a Memorandum of Understanding with the CHRC articulates that the Recourse Directorate is responsible for monitoring and coordinating the input from CBSA branches on complaints of discrimination filed with the Commission by members of the public. The Origin Protocol with the CBSA's Origin and Valuation Division establishes the respective responsibilities for appeal cases where the certificate of origin or other information was not provided at the time of the original trade decision.

In 2010 the Recourse Program became responsible for accepting and storing security bonds from clients who need to pay or secure any duty owing before filing their appeal. This service was previously provided by Tax Services offices of the Canada Revenue Agency (CRA). The evaluation found that the roles and responsibilities associated with this function are not clearly understood and that Recourse Program staff does not have access to the Customs Commercial System which is required for maintaining information on the securities that are held. Although the GTA Recourse Division drafted and shared guidelines and procedures for the posting of security, they are not recognized as national standard operating procedures.

In light of these findings, the evaluation recommends that:

Recommendation 1:

The Recourse Directorate, in consultation with Comptrollership Branch, develop national standard operating procedures, and outline and communicate to program staff the process for the acceptance, processing and storage of security bonds, updating D-memorandum and manuals as required.

Management Response

We concur with the recommendation and agree that it would add value when implemented. The Recourse Program is committed to put in place directives and appropriate support to ensure the acceptance, processing and storage of security bonds are done in accordance with CBSA policies.

Management Action Plan	Completion Date
Draft guidelines and procedures for the acceptance, processing and storage of security bonds.	April 2012
Draft policy for evaluating the proposed or tendered security instruments to be completed and provided to internal stakeholders for comment.	April 2012
Incorporation of remarks received from internal and external stakeholders into draft, including proposed consultation at Border Commercial Consultative Committee in June.	June 2012
Approval and implementation of both procedures by Regions and HQ.	August 2012

The Recourse Program makes effective use of enforcement appeal and trade decision appeal data to monitor its performance. In addition to measuring program performance against service standards and performance targets, the analysis of past trends are used as a basis to forecast the potential impact of new or changing programs and legislation on Recourse Program workloads.

The Recourse Directorate has taken steps to address the need to disseminate more information within the CBSA concerning Recourse Program trends and decisions. Steps include the establishment of a Director General (DG) Steering Group, Directors Feedback Group, and Canadian Human Rights Oversight Committee to provide feedback to other branches on specific cases and trends. Through these forums and at regular meetings of the Operations Branch Committee, the Recourse Program provides information including statistics on types of appeals, outcomes and explanations as to why actions and decisions are overturned. The Recourse Directorate also provides weekly e-mail updates to Programs Branch which includes a list of enforcement actions overturned and the corresponding rationale. Similarly, notices are provided to the relevant Programs and Operations Branches on the reasons and status of decisions and actions being heard before an external tribunal or court. The evaluation found several examples where appeal decisions have resulted in changes to CBSA policies and procedures.

The evaluation noted regional differences in the proportion of appeals compared to traveller and commercial volumes. Regional CBSA managers and staff noted that national trends may not reflect regional differences, and that region-specific information is needed to help identify any policy, procedures and training adjustments required to reduce the rate of appeals.

In light of these findings, the evaluation recommends that:

Recommendation 2:

The Recourse Directorate develop and disseminate regional level analysis of trends in enforcement and trade dispute appeals received and appeal decisions.

Management Response

We concur with the recommendation. The Recourse Program is committed to develop a new case management system, the Recourse Content Management System (RCMS), with a component that will have the ability to capture and report the information broken down by region or office who issued the original program’s decision. The process was started in fall 2011.

Management Action Plan	Completion Date
Trade Disputes
Business case to obtain funding for RCMS development submitted. (To date, funding has been secured for the Trade Component but we are awaiting a decision on funding for the Enforcement and Complaints component.)	November 2011
Await RCMS Trade Disputes component to be implemented (as per RCMS Project Plan).	January 2013
Create an ad-hoc report using RCMS Trade Disputes reporting tool to assist in the development of regional level analysis of trends.	March 2013
Disseminate regional level analysis to internal CBSA stakeholders on a quarterly basis.	June 2013
Enforcement Action Appeals
Interim solution to create ad-hoc reports using information captured in an Excel spreadsheet.	September 2012
RCMS Enforcement Appeals component is implemented. (assuming a source of funding can be found for further development of the RCMS)	June 2013
Automated reports from RCMS Enforcement Appeals component.	January 2013
Disseminate regional level analysis on overturned Enforcement Appeals to regional offices on a quarterly basis. (assuming a source of funding can be found for further development of the RCMS)	April 2014

The evaluation found consistency in the delivery of the Recourse Program. Since 2009-2010, over 90% of Recourse Program decisions have been upheld by tribunals and courts, an indication that the program decisions are consistent with legislation and regulations. Eighty-three percent of Recourse Program clients surveyed that had launched more than one appeal agreed they were treated in a consistent manner.

The Recourse Program provides transparency by disclosing the rationale for the initial CBSA action or decision, and by providing an explanation for the appeal decision to each client. Nevertheless, about 70% of clients surveyed for whom the CBSA enforcement action or trade decision was upheld under appeal were not satisfied with the explanation provided. CBSA and external stakeholders suggested that transparency would be enhanced by the CBSA publishing its rulings on trade disputes, similar to the way that court case and tribunal decisions are published. This approach is used by United States Customs and Border Protection.

Ensuring accessibility to the appeals process is one of the Recourse Program's key principles. Over 90% of survey respondents agreed that they were offered service in the official language of their choice. In addition, 78% agreed that it was easy to access the appeals process. However, about 25% indicated that there was a need for clearer instructions on how to file an appeal and on the types of information and documents required to support an appeal. Industry association stakeholders interviewed for the evaluation suggested that providing a list of frequently asked questions about the Recourse Program and process on the CBSA Web site would be helpful. Existing information about the Recourse Program is not easy to find on the CBSA Web site.

In light of these findings, the evaluation recommends that:

Recommendation 3:

The Recourse Directorate enhance program accessibility and transparency by reviewing and amending Recourse Program content on the CBSA Web site to ensure that the appeals process and requirements are clearly described and that it is easy to find the information.

Management Response

We concur with the recommendation. The Recourse Program will work in consultation with Communications to review and update the Recourse Program content on the CBSA Web site, from a client's perspective.

Management Action Plan	Completion Date
Completion of Web site modification and updates	December 2012

Prior to the introduction of ECM, each region independently monitored, responded to and reported on complaints received. The ECM centralized the reporting of complaints, compliments and comments, and national ECM service standards and procedures were established by the Operations Branch. Although the Recourse Directorate tracks whether complaints have been responded to and length of time taken to respond, it does not track the content of CBSA responses nor whether a complaint was effectively resolved. At the time of the evaluation, the Recourse Directorate was considering establishing an Office of Complaints Review (OCR) within the External Recourse and Complaints Division to provide an additional level for the review of complaints. This could include the review of cases where the initial complaint was not resolved to a client's satisfaction and a further review is requested, and/or review conducted on behalf of CBSA senior management to support Agency initiatives aimed at fostering service excellence. A lack of information pertaining to the effectiveness of complaint responses makes it difficult to determine whether there is a need for this additional level of review.

In light of these findings, the evaluation recommends that:

Recommendation 4:

The Recourse Directorate develop and implement a monitoring process to ensure that complaints are resolved in an effective and consistent manner.

Management Response

We concur with the recommendation. The Recourse Program will work with relevant stakeholders to focus our attention on the effectiveness and consistency of complaints responses.

Management Action Plan	Completion Date
Explore options on best methodology to assess consistency and effectiveness of complaint responses, as well as determining if complaints were effectively resolved.	June 2012
Identify standard process to monitor complaints and ensure quality assurance.	September 2012
Implement, conduct analysis and report on findings.	January 2013

ECM volumes suggest that the online feedback form has improved the public's ability to direct complaints and compliments to the CBSA. Based on data and interviews with regional ECM coordinators, the evaluation found that the introduction of the ECM has corresponded to an increase in feedback being received. Between the launch of the online form in January 2011 and the end of March 2011, 68% of client feedback was received through the online form.

The Recourse Program is meeting its internal performance targets[ 99 ] for the processing of trade dispute appeals but not for the processing of enforcement appeals. Between 2006-2007 and 2010-2011, the average processing time for trade disputes declined from 243 days to 156 days, while the average processing time for enforcement appeals increased from 319 days to 506 days. File processing times include significant periods during which files are not being actively reviewed and assessed, while recourse officers are waiting for documents or correspondence or are working on other case files. The Recourse Directorate estimates that enforcement appeals require an average 12 hours of working time, while trade disputes require on average 57 hours.

Forty-seven percent of enforcement appeal clients surveyed indicated that the time it took to receive the final decision on their appeal was reasonable. The percentage was somewhat higher (68 percent) for those who had filed an appeal of a trade decision.

The current paper-based process for receiving and forwarding appeal files makes it difficult to reduce the time required to respond to the client. It takes an average of 12 calendar days before an appeal that is received in the regions is forwarded to the Recourse Directorate. In addition, there is a requirement that all parties be granted 30 days to review any new information that is received during the course of an appeal. Program management has indicated that the introduction of a proposed single electronic case and content file management system (Recourse Content Management System) with the ability to receive and transfer appeal files electronically would help reduce processing time.

The cost per appeal decision rose for both enforcement appeals and trade disputes from fiscal year 2009-2010 to 2010-2011. The Recourse Directorate has undertaken a number of initiatives to improve efficiency including changes to delegations of authority, a centralized file assignment process, better monitoring of recourse officer case loads, and administrative support to assist officers with requests for supporting documents and translations. In addition, a shortened recommendation template for appeal cases of low materiality and/or complexity was introduced. Most significantly, the Pacific Recourse Division will be consolidated into the GTA and Quebec Recourse Divisions by April 2012, a change which is expected to result in a net annual savings of $350,000.

In light of these findings, the evaluation recommends that:

Recommendation 5:

The Recourse Directorate:

• analyse current enforcement appeal and trade dispute appeal processes to identify components that could be accelerated; and
• develop and implement a plan to improve processing durations.

Management Response

We concur with the recommendation. The Recourse Directorate has established a team to develop and implement a strategic plan that will ensure the optimal organization and delivery of the redress function. A significant part of this project will consist of analyzing the appeal processes for enforcement and trade to identify improvements that will result in improved processing durations.

Management Action Plan	Completion Date
Review the Trade Dispute Process:
Map and analyze current work flows to find efficiencies;	June 2012
Engage Recourse staff to solicit ideas and best practices; Engage Legal Services and OGDs to confirm legal principles embedded in processes and best practices, respectively;	July 2012
Validate interim observations and findings;	September 2012
Evaluate and prioritize process improvements;	October 2012
Develop implementation plan and cost estimates for process changes. Co-ordinate with RCMS implementation;	December  2012
Finalize implementation, validate process changes, monitor.	January 2013
Review the Enforcement Dispute Process:
Map and analyze current work flows to find efficiencies;	June 2012
Engage Recourse staff to solicit ideas and best practices; Engage Legal Services and OGDs to confirm legal principles embedded in processes and best practices, respectively;	August 2012
Validate interim observations and findings;	September 2012
Evaluate and prioritize process improvements;	November 2012
Develop implementation plan and cost estimates for process changes. Co-ordinate with RCMS implementation;	January 2013
Finalize implementation, validate process changes, monitor.	February 2013

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Appendices

Appendix A: Abbreviations and Acronyms

Abbreviation / Acronym	Description
AA-AMPS	Agriculture and Agri-Food Administrative Monetary Penalties
ADMS	Action and Dispute Management System
AMPS	Administrative Monetary Penalty System
BSO	Border Services Officer
CART	Canadian Agriculture Review Tribunal
CBSA	Canada Border Services Agency
CHRC	Canadian Human Rights Commission
CHRT	Canadian Human Rights Tribunal
CITT	Canadian International Trade Tribunal
CRA	Canada Revenue Agency
ECM	Enhanced Complaints Mechanism
FAST	Free and Secure Trade. Commercial clearance program for expediting legitimate trade between Canada and the United States
GTA	Greater Toronto Area
NEXUS	Program for expedited border clearance of pre-approved, low-risk members travelling between Canada and the United States
NHQ	CBSA National Headquarters
OGD	Other Government Departments
PED	CBSA Program Evaluation Division
PW	Prohibited weapons cases
PCMLTFA	Proceeds of Crime, Money Laundering and Terrorist Financing Act
RAMs	Resource Allocation Models
TCOV	Tariff classification, and origin and value cases
TDMS	Trade Dispute Management System