Tax & Trade Blog

An often-misunderstood aspect of the liquor industry by aspiring brewmasters and restauranteurs is the sheer number of regulatory steps required to import, manufacturer, distribute, and/or sell alcohol in Canada.  Complicating matters is the fact each province may have its own separate rules and licensing regimes.

This blog explores the various provincial licenses required to start an Ontario liquor business.

On September 8, 2022, the Canadian International Trade Tribunal (“CITT”) issued an Order continuing its finding of a “threat of injury” in respect of Oil Country Tubular Goods originating in or exported from a number of countries (“OCTG2”).

The Order effectively means that the current anti-dumping duties (“ADDs”) of up to 37.4% will remain in place for Subject Goods originating in or exported from the listed countries (apart from the Philippines*), with the exception of Subject Goods exported from South Korea by Hyundai Steel Company (“Hyundai Steel”), and from Turkey by Borusan Mannesmann Boru Sanayi ve Ticaret A.Ş. (“Borusan”).

British Columbia’s (“BC’s”) new PST rules regarding online marketplaces have been in effect for about three months now. First announced in the 2022 provincial budget, the provincial government claims the changes will close tax loopholes and “better adapt BC’s consumption taxes to the rapid expansion of e-commerce during the pandemic.” It is expected to result in an additional 100 million of revenue for the province in each of the next two years.

But where is all that new revenue really coming from?

The Canadian tobacco industry is among the most highly and intensely regulated industries in the country – albeit largely policed by Provincial Governments. In Ontario, for example, regulation crosses all levels of the production, manufacturing and distribution process, starting with the actual farming of tobacco and ending with the final sales to the ultimate consumers of the products (i.e., smoking for their own consumption).

While many in the tobacco industry will be aware of the Ontario Ministry of Finance’s (“MOF”) involvement in assessing and auditing for tax at the wholesale distribution stage or monitoring tax compliance among Ontario retailers and convenience stores, the MOF’s audit activities actually start much sooner, and include audits and verification of tobacco farming activities.

Fresh off of its announcement of a major plastic ban (see our prior blog here), the Canadian federal government is now also moving forward with a plan to heavily regulate the plastics that do remain in the Canadian economy, by imposing a mandatory federal “plastics registry”.

The Liberal Government plan is currently in the consultation stage, which means that producers, importers, distributors and retailers have until October 7, 2022 to provide input.

Carbon pricing in Canada can be confusing for both new entrants to the market and established players. This comes from Canada’s patchwork system of rules which vary across the country. Adding to the complexity is the fact that the federal Greenhouse Gas Pollution Pricing Act (“GGPPA”) only applies (as a “backstop”) where provincial/territorial legislation is not strict enough (in the opinion of the federal government)!

US businesses with Canadian carbon activities need to be aware of multiple different rules – federal (under the GGPPA, which applies in the so-called “listed provinces” outlined below) and provincial/territorial (applicable to the particular province in which they are operating).

Figuring out where one has to register is just the first step!

On September 1, 2022, the Select Luxury Items Tax Act (“SLITA”) officially came into effect. Vendors and importers of subject goods should be registered with the Canada Revenue Agency (“CRA”), paying tax, and keeping track of the information they will need to file their first returns.

While we have written about the luxury tax previously, this blog provides further practical details on the implementation of the luxury tax in light of the CRA’s recently-released administrative guidance.

Canada is often viewed as a natural extension of the American direct selling ecosystem: it has a common dominant language, similar culture, convenient land border, and a market of over 38 million people!

While there are many similarities, there are still unique legal and regulatory features that direct selling businesses operating in Canada must be aware of and adapt to — all of which can be easily avoided with the right planning, structuring or advice. This includes the appropriate “Canadianization” of plan documents and overall business strategies.

In the fifth of a 5-part series, we review one of the major risk areas facing the Canadian direct selling industry:

The Employee or Independent Contractor Issue

Canada is often viewed as a natural extension of the American direct selling ecosystem: it has a common dominant language, similar culture, convenient land border, and a market of over 38 million people!

While there are many similarities, there are still unique legal and regulatory features that direct selling businesses operating in Canada must be aware of and adapt to — all of which can be easily avoided with the right planning, structuring or advice. This includes the appropriate “Canadianization” of plan documents and overall business strategies.

In the fourth of a 5-part series, we review one of the major risk areas facing the Canadian direct selling industry:

Individual Rep Licensing Required Locally!

Canada is often viewed as a natural extension of the American direct selling ecosystem:  it has a common dominant language, similar culture, convenient land border, and a market of over 38 million people!

While there are many similarities, there are still unique legal and regulatory features that direct selling businesses operating in Canada must be aware of and adapt to — all of which can be easily avoided with the right planning, structuring or advice.  This includes the appropriate “Canadianization” of plan documents and overall business strategies. 

In the third of a 5-part series, we review one of the major risk areas facing the Canadian direct selling industry:

Understanding CBSA Verifications

Canada is often viewed as a natural extension of the American direct selling ecosystem: it has a common dominant language, similar culture, convenient land border, and a market of over 38 million people!

While there are many similarities, there are still unique legal and regulatory features that direct selling businesses operating in Canada must be aware of and adapt to — all of which can be easily avoided with the right planning, structuring or advice. This includes the appropriate “Canadianization” of plan documents and overall business strategies.

In the second of a 5-part series, we review one of the major risk areas facing the Canadian direct selling industry:

Importing to Canada under “NFR” Structures

Canada is often viewed as a natural extension of the American direct selling ecosystem: it has a common dominant language, similar culture, convenient land border, and a market of over 38 million people!

While there are many similarities, there are still unique legal and regulatory features that direct selling businesses operating in Canada must be aware of and adapt to — all of which can be easily avoided with the right planning, structuring or advice. This includes the appropriate “Canadianization” of plan documents and overall business strategies.

In the first of a 5-part series, we review one of the major risk areas facing the Canadian direct selling industry:

Planning For & Avoiding “Structural Recruitment”

As we have previously discussed, Canada has one of the most protectionist agricultural product sectors in the world, putting import restrictions and incredibly high tariffs on basic groceries like cheese, eggs and poultry – and leading to continuing disputes with countries like the US and New Zealand over this approach.

Even if Canada is forced to change under pressure from its trade partners, tariff rate quotas (“TRQs”) will still remain a fact of life for importers – so it is best to know when and how to apply, and what to expect!

New Part XI.1 to the Employment Standards Act (the “ESA”), titled “Written Policy for Electronic Monitoring”, generally requires employers who had 25 or more employees as of January 1, 2022 to put in place a written policy with respect to electronic monitoring of employees by October 11, 2022, and to share that policy with their employees. The Ontario government indicated that this requirement would “provide transparency for employees with the goal that employers will tailor electronic monitoring to legitimate business purposes”. 

In July 2022, Ontario updated the online Guide to the Employment Standards Act (the “Guide”) to add a new section giving employers basic information on the need for a written policy for electronic monitoring of employees, and provide some relevant examples for employers to consider.

My Nexus Card got Seized!

What are my chances of winning a Nexus Appeal? And when can I reapply?

These are the two most common questions that we get from traveler clients calling or writing us after having their Nexus Cards seized by either the Canada Border Services Agency (“CBSA”) or U.S. Customs and Border Protection (“CBP”) – usually for minor infractions, under the apparently “zero-tolerance” approach that both agencies seem to be applying these days.

The second question usually comes after clients confirm that they can appeal, but that the prospects of winning are not completely certain and legal costs will have to be incurred before the appeal can be properly made.

While we reviewed the basics of the administrative appeals required earlier (i.e., one for Nexus Revocation, and a related appeal for the alleged underlying Customs infraction), here we will look at these two more fundamental questions.

While anti-dumping and subsidy investigations are not uncommon, they do not always result in duties being imposed. As a case in point, the Canada Border Services Agency (the “CBSA”) recently closed its investigation into “Drill Pipes” originating in or exported from China because the Canadian International Trade Tribunal (the “CITT”) did not find injury or a threat of injury.

Tax practitioners are unfortunately well-aware of the sometimes years-long delays when requesting rulings and relief from CRA. What is less understood is the interplay between often overlapping taxpayer relief mechanisms when statutory deadlines are close to expiry, but the desired relief remains ungranted.

The recent Federal Court decision in Ontario Addiction Treatment Centres v. Canada (Attorney General), 2022 FC 393  (CanLII) dealt with this issue, and provides a cautionary tale that registrants should consider filing protective ETA 261  rebate claims within the proper legislative timelines while they otherwise wait for relief, otherwise they may find themselves out of time and with no further options.

While New York City’s (in)famous soda ban was ultimately struck down, in the years since other jurisdictions have moved forward with their own schemes to regulate sweetened beverages – now including Newfoundland & Labrador (“NL”).

On September 1, 2022, NL will introduce its so-called “Sugar Sweetened Beverage Tax” (“SSBT”). Interestingly, despite ostensibly being introduced to encourage “better beverage choices”, the tax does not depend on the amount of sugar in the drink – just the amount of drink itself!

On February 24, 2022, the Canada Border Services Agency (the “CBSA”) issued a Notice of Initiation of Investigation under the Special Import Measures Act (“SIMA”) with respect to the alleged dumping and subsidizing of mattresses originating in or exported from China (the “Subject Goods”).

See our previous blog for more information on the precise definition of the Subject Goods, including exclusions.

While the CBSA Investigation was ongoing, the Canadian International Trade Tribunal (the “CITT”) conducted a separate Preliminary Injury Inquiry, as required under subsection 34(2) of SIMA.

Canada’s federal government recently took the steps necessary to impose significant limits on the manufacture, import and sale of certain single-use plastic goods. While the scope of goods covered by the regulations is relatively limited, importers should be aware of them – and be alerted to the fact that regulation may not stop with these specific goods!