Federal Court Decisions

 

Date: 20060222

 

Docket:  T-2192-04

 

Citation:  2006 FC 236

 

Ottawa, Ontario, February 22, 2006

 

Present: The Honourable Mr. Justice Blanchard

 

BETWEEN:

 

ABDELHAMID ABDESSADOK

 

Applicant

 

- and -

 

CANADA BORDER SERVICES AGENCY, FORMERLY

CANADA CUSTOMS AND REVENUE AGENCY

 

Respondent

 

 

REASONS FOR ORDER AND ORDER

 

BLANCHARD J.

 

1.         Introduction

 

[1]               This is an application for extension of the 90-day time limit under section 129 of the Customs Act, R.S., 1985, c. 1 (2nd Supp.), (the Act). This application for extension of time is based on section 129.2 of the Act and is aimed at allowing the applicant, Abdelhamid Abdessadok, to submit an application to the Minister of Public Safety and Emergency Preparedness (the Minister) to have him render a decision pursuant to section 131 of the Act.

 

[2]               The Federal Court is asked to:

 

1)      Declare that the applicant’s language rights were violated;

 

2)      Set aside the decision of Ms. Lemay, Manager, Adjudications (Eastern) Section, refusing to grant the extension of time on behalf of the Minister under section 129.1 of the Act;

 

3)      Grant the applicant reasonable time to allow him to submit the request for a decision of the Minister provided for under sections 129 and 131 of the Act;

 

4)      Reserve the applicant’s remedies in respect of damage sustained by him in connection with these proceedings;

 

5)      With costs.

 

2.         The Facts

 

[3]               In March 2000, the Canada Customs and Revenue Agency, now called the Canada Border Services Agency (hereafter, the Agency), undertook an investigation into the declarations of value that a company called Canadian Sunrise made when importing satellite equipment. Yehia Ahmad is the registered owner of the company, but the applicant submitted and signed several forms entitled “Canada Customs Coding Form” (Customs B3 Coding Forms) on behalf of the company.

 

[4]               On February 27, 2003, Curtis Young, an investigator for the Agency, and his colleague, Georges Routhier, visited the applicant at his home to serve him with an appearance notice relating to criminal charges concerning these imports. Mr. Routhier is bilingual and spoke to the applicant in French at that time.

 

[5]               On June 10, 2003, Mr. Young sent a letter to Mr. Ahmad and the applicant, advising them that they had committed an offence under the Act and would therefore have to pay $34,155.24 to Her Majesty. The introductory page was written in English only. However, this letter contained several documents, including a “Notice of Ascertained Forfeiture”. This document was also drawn up in English, but the form contained information in both official languages, including the following words in French: [translation] “Payment of $34,155.24 is hereby demanded”. Information concerning the right of appeal was drafted in both official languages.

 

[6]               On November 3, 2003, Ms. S. Phelps, an officer at the “Customs Collections” office of the Agency, sent a letter to the applicant in which she explained that the time to appeal the Notice of Ascertained Forfeiture had expired and that the amount of $34,572.75 had to be paid immediately. The letter was written in English only and was sent to the applicant alone and not to Mr. Ahmad.

 

[7]               On April 16, 2004, the applicant’s spouse, Seloua Askri, called Mr. Young, asking him why the applicant’s tax refund had been withheld. Mr. Young explained to her that tax refunds could be withheld to offset a debt owed to the state. He also recommended that the applicant file an appeal as soon as possible, as the applicant had already exceeded the 90-day time limit to make an application under section 129 of the Act.

 

[8]               On June 4, 2004, counsel for the applicant sent a letter to the Agency, requesting the Minister for an extension of time under section 129.1 of the Act. In this letter, which was written in English, counsel explained that the applicant did not apply to the Minister within the specified time limit because all correspondence sent to the applicant by the Agency was in English, adding that the applicant does not understand English.

 

[9]               In a letter dated September 8, 2004, and written in French, Michèle Lemay, Manager, Adjudications (Eastern) Section, Recourse Directorate, Admissibility Branch, on behalf of the Minister, advised the applicant of the Minister’s decision to dismiss his application for an extension of time. Ms. Lemay explained that, after studying the submissions made by the applicant and reports prepared by the Agency, she decided not to grant the extension of time because the applicant had not complied with the rules governing the granting of an extension as specified in subsection 129.1(5). As additional information, she enclosed a copy of section 129.2, which explained how the applicant could appeal the decision to the Federal Court, and the following notice: [translation] “[Y]ou must file an appeal with the Federal Court within 90 days of the date of this notice”.

 

[10]           The applicant filed his notice of appeal with the Federal Court on Wednesday, December 8, 2004.

 

3.         Questions at Issue

 

[11]           The questions at issue may be stated as follows:

 

1)      Does the Court have jurisdiction to hear an application under section 129.2 of the Act?

 

2)      Were the applicant’s language rights infringed?

 

3)      Does the applicant meet the conditions specified in subsection 129.2(4) of the Customs Act?

 

 

4.         The Relevant Statutory Provisions

 

[12]           The amount claimed in the Notice of Ascertained Forfeiture is a debt to Her Majesty which is final and not subject to review except by means of a request for a decision of the Minister under section 131 in accordance with terms of section 129.

 

[13]           Under section 129.1, a person who has not made a request within the time specified under section 129 may apply to the Minister for an extension of the time for filing a request under section 131. Section 129.1 reads as follows:

 

 

 

 

[14]           Even if the Minister dismisses the request for an extension, the person may apply to the Federal Court to have the time extended. A notice of application must be filed with the Court Registry within 90 days following the dismissal of the request for an extension, and the Court must allow the application only if the conditions specified under subsection 129.2(4) are met.

 

 

 

 

5.         Analysis

 

A.           Does the Court Have Jurisdiction to Hear this Application?

 

[15]           The respondent submits that the applicant filed his notice of application late, that is to say, 91 days after the dismissal of his application for extension. Accordingly, the respondent claims that this deprives the Court of jurisdiction to hear the application.

 

[16]           The applicant submitted that the time only began to run from the day on which he received the notice, that is to say, on September 10, 2004. This argument is not well founded. The Act provides that the 90-day time limit begins to run on the date of the notice and not the date on which the applicant received the notice. Under section 149, the date mentioned on the notice, except for evidence to the contrary, is also the date of mailing and the date of the dismissal of the application by the Minister within the meaning of paragraph 129.2(1)(a).

 

 

 

[17]           The date mentioned on the decision of Ms. Lemay dismissing the application was September 8, 2004. Accordingly, the applicant had to submit his notice of application no later than Tuesday, December 7, 2004.

 

[18]           The question arises as to whether the Court may exercise its discretion to extend the time limit specified by law. The applicant submitted that the Court must take into consideration the exceptional circumstances in this case, for example:

 

a)      The applicant was without legal representation in this case (he claimed to be represented by counsel only in the criminal case parallel to this one);

 

b)      The applicant truly believed throughout the process that the 90-day time limit specified in the Act began to run when he received the decision;

 

c)      In any event, the applicant exceeded the time limit only by 24 hours; and

 

d)      The respondent did not suffer any prejudice.

 

[19]           In support of his claim that the Court may consider exceptional circumstances to extend time, the applicant cited Sharma v. Minister of National Revenue, [1994] F.C.J. No. 344 (QL). In

Sharma, Mr. Justice MacKay concluded that the Act does not give the Court discretion to

extend time, save in exceptional circumstances. MacKay J. also referred to a decision in which the Federal Court granted an application for an extension: Dawe v. Canada, [1993] F.C.J. No. 504 (QL).

 

[20]           I am of the opinion that Sharma is of no help to the applicant. On appeal, the Federal Court of Appeal in Sharma, [1998] F.C.J. No. 421 (QL), had to rule on the issue of exceptional circumstances. The Court of Appeal noted that, after the decision rendered by MacKay J. was signed, the Court of Appeal set aside the decision rendered by the Trial Division in Dawe. Accordingly, in Sharma, the Court of Appeal took into consideration its judgment in Dawe and dismissed the appeal before it.

 

[21]           In Dawe v. Canada, [1994] F.C.J. No. 1327 (QL), the Federal Court of Appeal heard an appeal under section 135 of the Act that had been filed beyond the 90-day time limit. The Motions Judge had granted an extension under the Federal Court Rules, 1998 (the Rules). The Federal Court of Appeal concluded that the Trial Division did not have jurisdiction to extend a statutory limitation period. Mr. Justice Létourneau stated the following at paragraph 18:

First, a limitation period is dictated by very fundamental principles relating to an efficient and proper administration of justice. Litigation has to come to an end so that judgments and decisions can be enforced. Limitation periods are designed to achieve that end and cannot be ignored. Nor, as I have already pointed out, can they be waived or extended in the absence of a clear statutory provision: Rules of Court cannot be used to enlarge or abridge the time prescribed by a statute. [Citations omitted.]

 

[22]           Furthermore, the Court of Appeal affirmed that the 90-day limitation period was long and reasonable when compared with the 30-day period during which it is usually possible to appeal judicial decisions.

 

[23]           When the law does not provide for an extension of time, it is not possible to invoke the Rules or judicial discretion to extend time. Under section 129.2 of the Act, an application against the Minister’s decision must be made within the specified time limit, provided the application is duly made under the Act. The Act does not empower the Court to extend the limitation period established by Parliament.

 

[24]           Considering the Act and the case law, I am of the opinion that I do not have any discretion to extend the limitation period. I am bound by Dawe and cannot use judicial discretion to extend the time limit to allow the filing of the notice of application in Federal Court after December 7, 2004. The applicant’s notice of application, filed December 8, 2004, was submitted past the limitation period specified under the Act; consequently, the Court does not have jurisdiction to hear it.

 

[25]           However, the applicant also submitted in the alternative that he tried to file his notice of application with the Court on December 6 and 7, 2004, but the Registry refused to accept it. Basically, he claims that his attempt to file the notice of application sufficiently meets the requirements of section 129.2 of the Act and that the Court must rule that the notice of application was filed on December 6 or 7, 2004, within the specified time.

 

[26]           Subsection 2(1) of the Rules provides that a document is “filed” with the Court when it is accepted by the Registry for filing under section 72 of the Rules. This section sets out the process for accepting non-compliant documents.

 

 

 

 

 

[27]           In his affidavit dated December 9, 2005, the applicant stated the following:

[translation]

4.   On December 6, 2004, and again on December 7, 2004, I went to the Registry of the Federal Court to file a notice of application pursuant to subsection 18(1) of the Federal Courts Act in accordance with section 129.2 of the Customs Act in order to challenge the decision of Ms. Lemay. Finding that the notice of application was not in the form required under the Federal Court Rules, the Registry refused to accept the document unless corrections were made to it.

 

5.   After having made the corrections required by the Federal Court Registry, I returned to the Registry on December 7, 2004, and again on December 8, 2004, to file my application under subsection 18(1) of the Federal Courts Act in accordance with section 129.2 of the Customs Act. The Registry finally accepted the filing of my application on December 8, 2004.

 

The applicant submits that the Registry should have accepted his notice of application when he submitted it the first time.

 

[28]           Under subsection 72(1) of the Rules, the Registry must accept a document that is not in the form required by the Rules or submit it to a judge or prothonotary. The Registry does not have discretion to require that corrections be made to a document, especially when the time limit is almost expired.

 

[29]           The only evidence submitted to the Court on this point was the applicant’s two affidavits. The respondent did not submit an affidavit and did not cross-examine the applicant on his affidavit dated December 9, 2005.

 

[30]           This being said, in my opinion, the applicant’s evidence does not establish that the Registry made an error in law. Except for two paragraphs in his affidavit dated December 9, 2005, the applicant did not submit any additional evidence to the Court showing that he tried to file his notice of application before the expiry of the 90-day time limit. In addition, the applicant’s version of the facts is contradictory.

 

[31]           The applicant filed an affidavit on February 25, 2005, together with an application for extension of time that was to be filed in Court with affidavits and documentary evidence. In this affidavit, the applicant stated the following:

[translation]

1.   On Wednesday, December 8, 2004, I filed my notice of appeal at the Registry of the Federal Court.

 

2.   On that day, I met several registrars, because I had prepared the file and had to correct it four times before my record was in the appropriate form.

 

[32]           On reading the applicant’s affidavits, I give little weight to the affidavit dated December 9, 2005. It is more plausible that the applicant only went to the Registry once, that is, on December 8, 2004. My reasons for reaching this conclusion are as follows. First, the applicant’s affidavit of December 9, 2005 was signed after the respondent alleged in its memorandum of fact and law, dated July 14, 2005, that the Court did not have jurisdiction to hear the application because of the limitation period. Also, if the Registry had requested that the applicant correct his document on December 6 and 7, 2004, why would the applicant have had to correct his notice of application four times on December 8? Moreover, in his affidavit dated December 9, 2005, the applicant stated the following:

[translation]

4.   On the eighty-ninth day following the service of the above-mentioned letter by which I was advised that my application for an extension was dismissed, on December 8, 2004, the Court accepted the filing of my notice of application.

 

In my opinion, the preceding paragraph clearly shows that the applicant believed he had until December 9, 2004 to file his notice of application and not only until December 7. It is clear that when he went to the Registry on December 8, the applicant believed he was still within the limitation period.

 

[33]           The letter dated September 8, 2004, with which a copy of section 129.2 of the Act was enclosed and which explained how the applicant might appeal the decision before this Court, was written in French. It is therefore impossible to claim that the applicant’s linguistic rights were infringed in respect of the time limit to appeal the decision before this Court.

 

[34]           I conclude that the application was made beyond the limitation period specified under the Act. Accordingly, the Court does not have jurisdiction to hear it.

 

[35]           Considering my determination on the first question in issue, it is not necessary to consider the other questions.

 

6.         Conclusion

 

[36]           For these reasons, the application will be dismissed with costs.

 

 

ORDER

 

            THE COURT ORDERS that:

 

1.         The application be dismissed;

 

2.         With costs.

 

“Edmond P. Blanchard”

 

 

Certified true translation

Michael Palles

FEDERAL COURT

 

SOLICITORS OF RECORD

 

DOCKET:                                          T-2192-04

 

STYLE OF CAUSE:                          ABDELHAMID ABDESSADOK v. CANADA BORDER SERVICES AGENCY, FORMERLY CANADA CUSTOMS AND REVENUE AGENCY

 

PLACE OF HEARING:                    Ottawa, Ontario

 

DATE OF HEARING:                      February 6, 2006

 

REASONS FOR ORDER

AND ORDER:                                   The Honourable Mr. Justice Blanchard

 

DATED:                                             February 22, 2006

 

 

 

APPEARANCES:

 

Abdelhamid Abdessadok                      FOR THE APPLICANT

 

Alexandre Kaufman                             FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD

 

Abdelhamid Abdessadok                      FOR THE APPLICANT

 

 

John H. Sims, Q.C.                              FOR THE DEFENDANT

Deputy Attorney General of Canada

Ottawa, Ontario