Date: 19991027
Docket: T-954-99
MONTRÉAL, QUEBEC, OCTOBER 27, 1999
| Before: RICHARD MORNEAU, PROTHONOTARY |
Between:
HERMES NUMISMATIQUE ET ARTS ANCIENS, INC.,
Plaintiff,
AND
MINISTER OF NATIONAL REVENUE
(CUSTOMS AND EXCISE),
Defendant.
ORDER
This motion to strike the plaintiff"s statement of claim is allowed with costs subject, it is understood, to the plaintiff"s right to bring an action for damages against the Crown for any defamation for which Crown officials may have been responsible. In view of this outcome, the defendant will not have to comply with this Court"s orders dated June 21 and July 19, 1999.
| Richard Morneau prothonotary |
Certified true translation
Bernard Olivier, LL. B.
Date: 19991027
Docket: T-954-99
| Before: RICHARD MORNEAU, PROTHONOTARY |
Between:
HERMES NUMISMATIQUE ET ARTS ANCIENS, INC.,
Plaintiff,
AND
MINISTER OF NATIONAL REVENUE
(CUSTOMS AND EXCISE),
Defendant.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
Introduction
[1] The case at bar concerns a motion by the defendant to strike the plaintiff"s statement of claim ("the statement") pursuant to s. 21(1)(a ) of the Federal Court Rules (1998) ("the Rules") on the ground that this Court does not have jurisdiction to hear the said action because the statement does not comply with the Customs Act , R.S.C. 1985 (2d Supp.), c.1, as amended ("the Act"), and in particular ss. 123 to 135 thereof which contain a complete code covering any possible intervention affecting the legality of a forfeiture by seizure made pursuant to the Act.
Relevant facts
[2] As appears from the statement, the plaintiff in 1990 imported a series of mosaics into Canada. In July 1998 the defendant proceeded to seize these mosaics. At that time the plaintiff was told that the seizure was in accordance with the Act. However, because of an error by plaintiff"s counsel at the time the latter did not, as required by s. 129 of the Act, send the defendant the written notice that would have initiated the review process mentioned in the Act by the responsible Minister.
Analysis
[3] The relevant extracts from the Act read as follows:
| 110. (1) An officer may, where he believes on reasonable grounds that this Act or the Regulations have been contravened in respect of goods, seized as forfeit: |
( a) the goods . . .
. . . . .
| 113. No seizure may be made under this Act or notice sent under section 124 more than six years after the contravention or use in respect of which such seizure is made or notices sent. |
. . . . .
| 122. Subject to the reviews and appeals established by this Act, any goods or conveyances that are seized as forfeit under this Act within the time period set out in section 113 are forfeit . . . |
. . . . .
| 123. The forfeiture of goods or conveyances seized under this Act or any money or security held as forfeit in lieu thereof is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 129. |
| 129. (1) Any persons . . . |
| may, within 30 days after the date of the seizure or the service of the notice under section 124, request a decision of the Minister under section 131 by giving notice in writing to the officer who seized the goods and conveyance or served the notice or caused it to be served, or to an officer at the customs office closest to the place where the seizure took place or the notice was served. |
| (2) The burden of proof that notice was given under subsection (1) lies on the person claiming to have given the notice. |
| 132. (1) Subject to this or any other Act of Parliament, |
| ( a) where the Minister decides, under paragraph 131(1)(a) or (b), that there has been no contravention of this Act or the regulations in respect of the goods or conveyance referred to in that paragraph, or, under paragraph 131(1)(b), that the conveyance referred to in that paragraph was not used in the manner described in that paragraph, the Minister shall forthwith authorize the removal from custody of the goods or conveyance or the return of any money or security taken in respect of the goods or conveyance . . . |
. . . . .
| 135. (1) A person who requests a decision of the Minister under section 131 may, within 90 days after being notified of the decision, appeal the decision by way of an action to the Federal Court " Trial Division in which that person is the plaintiff and the Minister is the defendant. |
| (My emphasis.) |
[4] In its statement of claim the plaintiff claimed the following remedies:
| (a) A declaration from this Court that the Defendant acted contrary to section 113 of the Customs Act, R.S.C. 1985, c. C.1 (2nd Supp.), as amended; |
| (b) A declaration from this Court that the customs seizure executed by the Defendant against the Plaintiff is a nullity as it was beyond the prescription contained at said section 113 of the Customs Act; |
| (c) An order for delivery of the Plaintiff"s goods; |
| (d) General damages in the amount of One Million Dollars ($1,000,000) arising from the seizure of the Plaintiff"s goods and defamation directed toward the Plaintiff by the Defendant; |
| (e) Punitive damages in the amount of One Hundred Thousand Dollars ($100,000.00); |
| (f) Special damages in an amount to be determined at a reasonable time before trial; |
| (g) Pre-judgment and post-judgment interest on the above amounts pursuant to the Federal Court Act and the Federal Court Rules; |
| (h) The Plaintiff"s costs of this action, on a solicitor and client scale; and |
| (i) Such further and other relief as this Honorable Court may deem just. |
[5] It is clear that the plaintiff must obtain the declarations of illegality it is seeking in (a) and (b) before it can claim the other remedies it is seeking. Consequently, its action is first directed at recognition of the illegality of the seizure due to the fact that it was made over six years after the offence, contrary to the provisions of s. 113 of the Act.
[6] In the plaintiff"s submission, review of the legality of the seizure under s. 113 of the Act is not the type of situation contemplated by the Act in its procedure of review and eventual appeal to the Federal Court. In the plaintiff"s view, this procedure is solely intended to enable an individual to dispute the illegality of his or her own actions, that is, that he or she did not contravene the Act. The procedure was not created to allow an individual to challenge the seizure because of a legal error committed by the defendant, namely in this case non-compliance with the provisions of s. 113 of the Act.
[7] I cannot go along with the plaintiff in this approach to the Act. It seems quite clear to me that the Act contemplates only one method of challenging or reviewing any forfeiture by seizure, namely notice to the Minister within 30 days of the offence, whether a person is seeking a ruling that he or she has not contravened the Act or is contending that the defendant acted illegally.
[8] I feel that such a conclusion is consistent with the purpose and wording of the privative clause contained in s. 123 of the Act. That section does not, any more than the other sections contained in what may be described as a code, create any distinction as to the grounds which may lead to a review of the forfeiture by seizure. Any other conclusion would allow the creation of two procedures for challenging the validity of a seizure.
[9] This conclusion is in line with the comments made by this Court in Smith v. Canada, [1992] F.C.J. No. 1062. In that case, for purposes of an application to extend the time for filing an application for judicial review of certain acts committed by the Crown under the Act, the Court had to consider whether the application Mr. Smith wished to file with the Court was defensible. For purposes of this review of the case it was established that the objections made by Mr. Smith could have been the subject of an application for review under the code in the Act. Further, s. 127 of the Act mentioned in the following passages is essentially identical to s. 123 of the Act, mentioned above. The conclusions of the Court on the merits of the
application made by Mr. Smith (at 4) are set out below:
| I have set out these procedures because I am required to consider whether or not the applicant has a fairly arguable case in respect of his extension of time application relative to the notices of ascertained forfeiture. |
| The provisions I have set out constitute a statutory scheme providing for a process of appeal from an ascertained forfeiture. To the extent such provisions exist, judicial review is not available by virtue of section 18.5 of the Federal Court Act which states: |
| 18.5 Notwithstanding Sections 18 and 18.1, the provisions expressly made by an Act of Parliament for an appeal, as such, to the Court, the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to an order in council, or to the Treasury Board from a decision or order of the Federal Board Commission or Tribunal made by or in the course of proceedings before that Board Commission or Tribunal, that decision or order is not to the extent that it may be so appealed subject to review or to be restrained, prohibited, removed, set aside, or otherwise dealt with except in accordance with that Act. |
| In my view, section 18.5 precludes judicial review, where, as in this case, a statutory scheme of appeal otherwise exists. |
| Even if section 18.5 of the Federal Court Act did not preclude judicial review in this case, section 127 of the Customs Act must be considered. As I indicated previously, it is a form of privative clause which circumscribes the extent to which a Court may interfere with the result of a demand under section 124. National Corn Growers Association v. Canada, [1990] 2 S.C.R. 1324, stands for the proposition that in such circumstances, a review by the Court is restricted to a consideration of jurisdictional error or patent unreasonableness in the decision of the Tribunal. |
| Counsel for Mr. Smith argued that it was patently unreasonable for a Government official to be able to simply declare a person indebted to the Crown. In the absence of anything else, I would be sympathetic to this argument. However, the Act sets forth a procedure for appealing the decision of the official to the Minister and then to the Federal Court. If this process is followed, anything arbitrary or inappropriate can be caught at the Minister"s stage, and if not there, by the Federal Court. |
| Under the circumstances, I am of the opinion that no fairly arguable case has been made out that judicial review lies to the Court directly from a notice under section 124 of the Customs Act. An aggrieved person must first ask for a decision of the Minister within thirty (30) days of the service of the notice of ascertained forfeiture. That did not occur here. |
| (My emphasis.) |
[10] The exclusivity of the code contained in the Act has also been recognized by this Court in Hussain v. Canada, [1999] F.C.J. No. 350. Although they are in the nature of an obiter, the following comments (at 3) are nonetheless of some relevance here:
| 9 The statutory provisions would seem to make it equally clear that, apart from the rights of appeal to the Minister and from the Minister to this Court, the forfeiture of seized goods is final and its legality is not otherwise reviewable in any legal proceedings. |
| 10 In addition, counsel for the Minister referred me to decisions of the Court in which it has been held that the statutory rights of appeal under these provisions of the Customs Act are exclusive, and that the Court has no jurisdiction to entertain other proceedings, regardless of any procedural deficiencies that there may have been in the search and seizure. |
(My emphasis.)
[11] Rollinson v. Canada, [1991] 3 F.C. 70, cannot change our conclusion here since it deals with a situation involving the Charter when the Act was worded differently. These factors are not present in the case at bar.
[12] In view of my conclusion as to the exclusivity of the code in the Act and the need for it to be first applied in the case at bar, I do not have to deal with the parameters within which s. 106(2)(b) applies.
[13] This motion to strike the plaintiff"s statement of claim will accordingly be allowed with costs, subject it is understood to the plaintiff"s right to bring an action against the Crown for damages for any defamation for which Crown officials may have been responsible. In view of this outcome, the defendant will not have to comply with this Court"s orders dated June 21 and July 19, 1999.
| Richard Morneau Prothonotary |
MONTRÉAL, QUEBEC
October 27, 1999
Certified true translation
Bernard Olivier, LL. B.
| Federal Court of Canada Trial Division Date: 19991027 Docket: T-954-99 Between: HERMES NUMISMATIQUE ET ARTS ANCIENS, INC., Plaintiff, AND MINISTER OF NATIONAL REVENUE (CUSTOMS AND EXCISE), Defendant. REASONS FOR ORDER |
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE No.: T-954-99 |
| STYLE OF CAUSE: HERMES NUMISMATIQUE ET ARTS ANCIENS, INC., |
Plaintiff,
AND
| MINISTER OF NATIONAL REVENUE |
(CUSTOMS AND EXCISE),
Defendant.
PLACE OF HEARING: Montréal, Quebec
| DATE OF HEARING: October 21, 1999 |
| REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY |
DATE OF REASONS FOR ORDER: October 27, 1999
APPEARANCES:
| Jesse I. Goldman for the plaintiff |
| Jacques Mimar for the defendant |
SOLICITORS OF RECORD:
| Gottlieb & Pearson for the plaintiff |
Jesse I. Goldman
Montréal, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada