Evaluation of the Recourse Program

The Program provides external clients with information on how to submit appeals through the CBSA website

The Program has published information explaining how clients can submit appeals related to trade and enforcement actions. However, it does not have a publicly accessible generic email inbox, meaning questions related to the appeals process are, at times, submitted to other CBSA units, including through the public complaints mechanism and to other branches.

Information on how to request an update on an existing appeal is not available on the CBSA website. The Program shares this information with appellants in an acknowledgement letter sent after an appeal is submitted (by email if appeal submitted electronically or by registered mail if appeal submitted by mail). Since March 2022,^{Footnote 4} two trade and eight enforcement appeals clients have used the Agency's public complaints mechanism to seek updates on their appeal files, as the correct process was not clear to them.^{Footnote 5}

Upon closure of an appeal, the Program also provides the appellant with a notice of reasons for decision (NRD) by email or registered mail.

The Program uses a variety of mechanisms to distribute feedback to internal stakeholders

An inconsistent understanding of the Program's role has affected perceptions of feedback on appeals decisions

Agency stakeholders held diverging opinions on the usefulness of feedback on appeals decisions. Some interviewees were reluctant to consider feedback from the Program because they disagreed with the decisions it rendered.

A few business line interviewees believed that when the Program overturned decisions that were in line with CBSA policy, it undermined the policy and negatively impacted Agency initiatives and strategies. There was also a perception among some business line and many regional interviewees that decisions on appeals of a similar type were not consistent across appeals.

A few business line interviewees explained that the outcome of some appeals on decisions, arising from new policies or legislation, could establish precedent, and could influence future enforcement, trade, and appeals decisions. The business lines would like to be consulted by the Program in these cases. However, this is not possible due to the principle of natural justice. On an ad hoc basis, the Program meets with the business lines to discuss trends in enforcement and trade appeals after appeals decisions have been made.

Additional engagement with Agency stakeholders may be beneficial to ensure a common understanding of the role of the Program

Inconsistent understanding of the Program's role has resulted in perceptions of an adversarial relationship between the Program and internal stakeholders. Calibrating the needs and expectations of the Program and internal stakeholders, and clearly defining internal relationships, could better support the Program in achieving its objectives.

Having a better understanding of Recourse officers' approach to appeals decisions (that is, the de-novo review process and jurisprudence) may improve the perception of the Program's appeals function and feedback throughout the Agency.

In the past, the Program undertook educational initiatives focused on improving awareness of the Program's function among internal stakeholders, such as in-person and online outreach and information sessions. However, interviewees suggested that these efforts stopped in recent years due to resource constraints and competing priorities.

Recourse officers' de-novo review allows them to consider undue hardship in enforcement and TTP appeal decisions,^{Footnote 9} which may result in apparent inconsistencies in decision making as undue hardship is not a factor in a BSO's initial determination.

Example of Recourse officer discretion: A common reason for overturning a TTP membership cancellation or suspension is discretion based on compassionate grounds, whereby an adjudicator found that the cancellation or suspension caused undue hardship on the member, as their membership was a condition of employment.

Other factors limiting the use of the Program's feedback on appeals:

• according to interviewees, resource constraints and competing priorities affected the likelihood of making program or policy changes based on Program feedback
• balancing, and the tolerance for, legal risk

Changes to the public complaints process and readiness for the PCRC

Legislation establishing the PCRC, an enhanced independent review body for the RCMP and the CBSA, received royal assent on October 31, 2024. Updates to the public complaints process will be made to reflect new legislative requirements related to the PCRC. This work will not take place until the coming into force of the PCRC.

At the time of this evaluation, the PCRC was not yet in place. For that reason, the evaluation assessed the effectiveness of the current public complaints process, which was updated in 2022 in preparation for the implementation of the new review body.

The PCERD consists of two units:

Public Complaints Unit (PCU)

The unit manages the Agency's public complaint mechanism through the implementation of and adherence to the National Complaints Policy and Public Complaints Management Guide; provides functional guidance to CBSA employees on public complaints; reports on complaints trends; and is responsible for the maintenance of the Complaints Information Processing System (CIPS).

External Review Unit

The unit is the single point of contact for the PCRC and related issues, and conducted preparatory work for the implementation of the PCRC.

The process for managing public complaints in the Agency is described in the Public Complaints Management Guide, including the intake of public complaints, triage, assigning complaints to OPIs, how to investigate a complaint, disposition of complaints, and the PCERD's QA process.

Once a public complaint is received, the PCU triages and assigns public complaints to an OPI within the Agency.

Once assigned, an OPI will identify relevant Offices of Secondary Interest (OSI), which are stakeholders implicated in the original public complaint, to assist and contribute to formulating a response. The OPI investigates and responds to the public complaint.

Once public complaints are closed, the results are logged in CIPS by the OPI. Periodically, the PCU will conduct QA activities, and provide information on public complaints trends to internal stakeholders.

Triaging public complaints

Reasons a complaint may be deemed out of scope at the triage phase, according to the Public Complaints Management Guide, include instances where it is trivial, frivolous, vexatious, made in bad faith, threatening, profane, or discriminatory. If a complaint is deemed to be out of scope by the PCU, it is dismissed and is not tasked to the implicated OPI for a review or a response. This process screened out 38% of public complaints received in fiscal year 2023 to 2024 (an increase from 24% screened out in fiscal year 2019 to 2020).^{Footnote 10}

A few regional interviewees reported that they were still asked to respond to inappropriate complaints (including rude and disrespectful comments) despite this process. Some business line and regional interviewees also said that they received some complaints that they considered trivial and should not have required a response (for example, a passport not scanning the first time at a NEXUS kiosk).

Assigning public complaints to an OPI

Some interviewees from the PCERD noted that it can be difficult to identify the correct OPI for a public complaint when the subject matter cuts across multiple business lines.^{Footnote 11}

Program senior management highlighted that an OPI's level of understanding of the complaints process was related to the volume of complaints they received. This is reflected in an analysis of the average number of days for an OPI to issue a final response to a public complaint.

• Some business line interviewees felt the roles and responsibilities of OPIs and OSIs in the public complaints process were not clear. The Public Complaints Management Guide contains limited information concerning the role of OSIs in reviewing and responding to complaints.
• Regional interviewees felt that the public complaints process was clear and that the Public Complaints Management Guide was a useful tool.
• Regions responded to more public complaints than most business lines, and consistently responded within service standards.

Many aspects of the current public complaints process will not change following the implementation of the PCRC. Improvements to the current process to establish and communicate processes for responding to public complains would enable the Agency to be prepared for the PCRC.

Quality assurance

In fiscal year 2023 to 2024, the PCERD established an internal QA framework to examine closed cases, identify inconsistencies, identify gaps in the public complaints process, and revise national guidelines, user guides, and instructional documents as needed.^{Footnote 12} Since first being introduced, QA activities have continued to evolve.

In December 2023, the PCERD began conducting targeted QA reviews. These QA reviews assessed public complaints for compliance with specific areas of concern (for example, whether communications with a complainant occurred in their preferred official language), using a template which defined the methodology and criteria for the review, and established an action plan for any issues identified through the QA process.

As of December 2024, five activity (QA) reviews had been completed. These reviews have led to improvements, such as providing feedback to OPIs which resulted in improved CIPS data entry, and the implementation of a template for first contact letters to improve compliance with the service standard. The PCERD no longer conducts targeted QA reviews and has shifted toward the QA of all closed public complaints.

As of February 2024,^{Footnote 13} PCERD reviews all closed cases in CIPS in order to identify issues with data entry, reviews all letters of disposition, and provides feedback to the OPI in order to improve the closure and investigation of future complaints.

QA may become an important process with the implementation of the PCRC, as the CBSA's responses to public complaints may garner more scrutiny through this external review body.

Information-sharing on public complaints

The PCERD used public complaints dashboards (monthly, quarterly, and annual), providing updates on the legislation for the PCRC, complaints volumes, the "top five allegation types," service standard performance by region, and trend observations. As of May 2024, this information (with the exception of trend observations) was shared through a PowerBI dashboard, and the PCERD began updating the dashboard on a weekly basis. The dashboard is sent to the CBSA's President, Executive Vice-President, as well as Vice-Presidents and Regional Directors General (RDG).

Interviewees noted that the public complaints dashboards were well-received, contained the right level of detail, and were distributed at the appropriate intervals.

Most KPIs in the PIP^{Footnote 14} met SMART criteria. Some gaps were identified:

• The PIP indicates that a survey would be used to measure internal stakeholder satisfaction with the feedback that the Program provides. This was not done.
• The first immediate outcome is measured through workable time (number of days a file can be worked on by a Recourse officer^{Footnote 15}). This does not capture total time elapsed for processing appeals. Including a measure of non-workable or total cycle time or similar measures could support the Agency in measuring and accounting for the timeliness of the service provided to the public.
• The Program's second immediate outcome on timeliness relates to public complaints and specifies the timeliness of processes within Recourse, despite the Program being responsible for reporting on the rate at which all service standards for replying to complaints are met, which includes the time the OPI takes in responding to the complaint.^{Footnote 14} This leaves a gap in accountability for the overall timeliness of the public complaints process, which should be resolved by the Program's PIP, as the Program is the functional manager for this process, from a Functional Management Model perspective.
• The Program's intermediate outcome refers specifically to "appeals" only, which leaves a gap for reporting on internal information and feedback sharing related to public complaints.

The Program would benefit from restructuring its PIP to ensure that the intended outcomes reflect the Program's contributions and the Agency's overall management of appeals and public complaints, while KPIs capture the distinct roles of the Program and of internal partners.

The Program is not currently meeting GBA Plus reporting requirements

To meet the Canadian Gender Budgeting Act requirements, all Government of Canada programs must make available to the public an analysis of their impacts in terms of gender and diversity.

In addition, the Treasury Board Directive on Results requires that PIPs include "Government-wide policy considerations such as gender-based analysis and official languages, where relevant."^{Footnote 16}

The program's submissions for the departmental supplementary information tables in fiscal years 2022 to 2023 and 2024 to 2025 do not explain how data is or could be used to report on the gender and diversity impacts of the Program. There are no GBA Plus-related indicators in the Program's PIP.

The Program participated in a pilot with the Agency's GBA Plus Centre of Responsibility (called the Centre of Excellence at the time of report publication) and drafted some indicators that could be used to report on the impact of the Program on gender and diversity.

Some Program interviewees did not understand the linkage between GBA Plus and the Program, and expressed concerns that collecting demographic data could give the appearance of biasing the outcomes of appeals.

The Program does some internal GBA Plus reporting, which if conducted more systematically could meet reporting requirements

The Program's draft submission for the fiscal year 2022 to 2023 GBA Plus supplementary information table outlined how the Program provides raw appeals data to business lines for their use in conducting GBA Plus.

The Program has also provided GBA Plus-related feedback on specific cases, for example, when lessons learned can be applied following human rights complaints.^{Footnote 17}

The PCU provides regular GBA Plus-related feedback to the Human Resources Branch through regular reports on public complaints related to discrimination, and presented a GBA Plus to the Agency's Director General Steering Committee on public complaints from the Indigenous community and on official language use in responding to public complaints.

Once race-based data is available in the Agency, the Program could realistically and more comprehensively measure the impact of trade and enforcement appeals using common identity factors. Demographic data could be hidden from decision-makers so as not to influence decisions.^{Footnote 18}

The evaluation observed certain improvements in the timeliness of appeals processing and the mitigation of certain challenges, supported by the Recourse Directorate's 2020 Lean Six Sigma exercise and the implementation of its multi-year strategy in the EALD and TALD. Service standards are reported on by the Agency and are updated each fiscal year in accordance with the Policy on Service and Digital.

EALD

The proportion of EALD decisions rendered within service standards increased from fiscal years 2021 to 2022 and 2023 to 2024 and the EALD often exceeded its service standard. 88% of enforcement appeals decisions were rendered within service standards in fiscal year 2023 to 2024 (target: 70%), and 85% of TTP appeals decisions were rendered within service standards in fiscal year 2023 to 2024 (target: 70%).

TALD

The proportion of TALD decisions rendered within service standards decreased between fiscal years 2021 to 2022 and 2023 to 2024 for trade appeals, and increased for commercial Administrative Monetary Penalties System (AMPS) appeals linked to trade decisions.^{Footnote 19} 65% of trade appeals decisions were rendered within service standards in fiscal year 2023 to 2024 (target: 70%), while 82% of commercial AMPS appeals linked to trade decisions were rendered within service standards in fiscal year 2023 to 2024 (target: 70%). 49% of other, commercial-related enforcement appeals decisions were rendered within service standards in fiscal year 2023 to 2024 (target: 70%).

PCERD

The current public complaints process was implemented in March 2022, which limited data on the current process to a two-year period. For this reason, the evaluation could not assess trends over time for the current process. The Agency did not meet all service standards (as tracked and reported by the PCERD to the public on overall timeliness): 56% of clients were contacted within 14 calendar days of submitting their complaint in fiscal year 2023 to 2024 (target: 85%), and 90% of clients were provided a final, written response within 40 calendar days of submitting their complaint in fiscal year 2023 to 2024 (target: 90%). The PCERD met its internal service standard, and tasked 99% of public complaints to the OPI within one business day in fiscal year 2022 to 2023 (target: 95%).

The 2023 Recourse Directorate reorganization and the overall resource context

The Recourse Directorate's dedicated policy unit was divided and integrated into its three divisions: the EALD, the TALD, and the PCERD. Policy work includes providing feedback on trends in appeals and public complaints, and maintaining tools for internal use (for example, NRD templates, standard operating procedures, and learning materials). The reorganization reduced duplication and streamlined approvals by aligning policy work with its related appeals work.

Interviewees within EALD and TALD suggested that resource constraints have led to insufficient staff to achieve intended outcomes related to providing feedback to internal stakeholders. This was exacerbated by competing priorities (for example, TALD staff supporting the development of the CBSA's Assessment and Revenue Management [CARM] system).

Recruitment and retention challenges, along with overall resource constraints, could be mitigated through a directorate-wide plan to address human resources challenges.

Recruitment

In April 2023, as part of the Recourse Directorate's reorganization, six employees were transferred from EALD to TALD to work on commercial-related enforcement appeals. As these additional employees were offset by the TALD's average annual external attrition rate of 8% during this time, the number of TALD employees working on appeals files decreased from 30.5 in fiscal year 2018 to 2019 to 28.3 in fiscal year 2023 to 2024.^{Footnote 20}

It was reported that recruiting staff to fill positions within the TALD is challenging due to the depth of knowledge and expertise required to process trade appeals. In the past, a key source of recruitment for the TALD were Senior Officers of Trade Compliance.

As of October 2024, 12.5% of EALD and 23.9% of TALD indeterminate employees would be eligible to retire without penalty in the next five years.

Learning and knowledge transfer

Knowledge transfer for Program employees working on appeals and public complaints relies on the availability of directorate mentors and up-to-date internal tools. The demands of Recourse officers' appeals work reduces the time available to perform learning and knowledge transfer activities, particularly within the TALD, where the number of full-time equivalents (FTE) has decreased as file volumes have increased.

Workload and overtime

Generally, the Program met its service standards related to appeals.

Within EALD, an annual average of 0.8 FTEs in overtime was worked from fiscal years 2018 to 2019 to 2023 to 2024.

Within the TALD, an annual average of 0.3 FTEs in overtime was worked over the same period.

Changes in processing commercial-related enforcement appeals affected the Program's ability to meet service standards

As part of a reorganization in April 2023, the responsibility for processing commercial-related appeals moved from the EALD to the TALD.^{Footnote 21} As part of the reorganization, six Recourse officers were transferred from the EALD to the TALD.

During this time, the volume of these files increased, as did the backlog of undecided appeals. Processing times slowed and the proportion of decisions rendered within service standards decreased. In fiscal year 2023 to 2024, the average processing time (workable and cycle time) of commercial-related enforcement appeals increased.

Levels of decision-making authority within the Program differ depending on appeals types

Within EALD, FB-06 officers review all EALD decisions in addition to conducting their own investigations and rendering decisions, with the following exception: the EALD assigns decision-making authority to FB-04 officers for third party claims under section 138 of the Customs Act.

Within TALD, FB-06 officers review all TALD decisions, in addition to conducting their own investigations and rendering decisions, with the following exception: the TALD assigns decision making authority to FB-04 officers for commercial-related enforcement appeals.

As of September 2023, in response to increasing appeal volumes, FB-04 Recourse officers were granted the ability to render decisions for commercial-related enforcement appeals without the review of an FB-06, as was done previously. While FB-04s are delegated the authority to render appeal decisions under the Customs Act, they were not previously assigned this work. This measure was intended to mitigate rising volumes. A few interviewees expressed concern that the FB-04s did not have the knowledge or experience to render these decisions. This also differs from the process for rendering decisions on other appeals types, where FB-06s review the work of FB-04s before a final decision is made. For example, an FB-06 in the EALD reviews final decisions on seizures and ascertained forfeitures (from travellers), while an FB-04 in the TALD renders decisions on these same appeals (but from trade chain partners) without an FB-06 review.

The PCERD

The Agency's public complaints process was revised in March 2022. Due to limited historical data and ongoing changes in the division, the evaluation did not assess human resources or the efficiency of core activities, such as the PCU's triage function. As the PCERD increases its QA activities, it would be useful to measure the number of public complaints per FTE, to determine if resources are sufficient for the volume of work.

Efficiency of the public complaints process

Since 2022, the PCERD made certain process changes to the public complaints mechanism to improve efficiency. For example, the PCERD highlighted how they changed to tasking regions directly, rather than via business line Vice-Presidents for regional public complaints, as an improvement in efficiency. Other process improvements in the PCU included the development of a QA framework and developing and updating the Public Complaints Management Guide and supporting documents.

The resolution time for certain types of allegations, such as those related to CARM^{Footnote 22} and discrimination, was higher than other types of allegations. More common/frequent allegation types were more likely to be processed within service standards.

As the functional manager for the public complaints process in the Agency, providing additional oversight to branches and regions could help to improve the timeliness of responses to clients.

Other factors that impact public complaint processing times include: shift work of BSOs (as BSOs may not be working for multiple days after a complaint is received, and their input is needed in order to fully investigate the complaint); and, depending on the severity of the allegation, the levels of review and sign-off required to respond to a public complaint.

Allegations (which are assigned to public complaints by the PCERD) are categorized into three tiers, with responses to the top tier needing to be approved by an RDG or Director General before it is sent to the client.

The highest tier allegations are related to specific categories of employee conduct including "improper conduct/verbal abuse" and "improper use of force."

Elements fully out of evaluation scope

An assessment of relevance

The relevance of the Program was assessed in the previous 2017 evaluation. The most significant change since this evaluation was the proposed external review body, the PCRC. It was too early to determine the impact of the external review body on the relevance of the Program, given the specific roles and responsibilities of the PCRC had not yet been defined, at the time of the evaluation.

e-Portal

The Program's e-Portal implementation was delayed and the portal was not yet available at the time of the evaluation. The delivery of the e-Portal is also dependent on Shared Services Canada. For this reason, the evaluation did not assess the e-Portal.

Elements partially out of evaluation scope

The effectiveness of the new public complaints process

The evaluation assessed the effectiveness of the current public complaints process to the extent possible given available data. Since the complaints process and organizational model had been recently updated, a full assessment of the process was limited. The focus of the assessment was on how the current complaints process was readying the Agency for the implementation of the proposed external review body.

Litigation management

An assessment of litigation management within the Agency, including the Program Litigation Management Unit, may be the subject of a future evaluation or study. However, this evaluation's assessment of the feedback loop includes learning from the outcome of litigation.

Impact of CARM on the Program

Given CARM was not fully implemented at the time of this evaluation, it was too early to assess the impacts of CARM on the Program. However, this evaluation assessed the extent to which the organizational and funding models of the Program contributed to the efficiency of the Program, which included considerations on the impacts of CARM on the Program.

Efficiency of processes

The 2019 Lean Six Sigma review included an assessment of the Program's processes for responding to trade and enforcement appeals. The majority of recommendations from the review were reported as "completed" as of 2021. Given the relatively recent implementation of recommendations from the Lean Six Sigma review, and the size and complexity of the current evaluation scope, only certain elements of this topic were considered (that is, efficiency of the current organizational model).