Date: 19991217
Docket: T-1675-99
BETWEEN :
CLAUDE MICHAEL NICKERSON AND
685108 ALBERTA INC.
CARRYING ON BUSINESS AS
LONGHORN LIMOUSINE SERVICES
Applicants
- and -
MINISTER OF TRANSPORT AND
BERTRAND BOILY, AN INSPECTOR UNDER SECTION 2 OF THE ACT
Respondents
REASONS FOR ORDER
DUBÉ J. :
[1] This motion by the applicants ("Mr. Nickerson") seeks an order returning the custody of a vehicle detained by an Inspector for Transport Canada pursuant to subsection 15(4) of the Motor Vehicle Safety Act ("the Act")1.
1. The Facts
[2] On July 7, 1999, Mr. Nickerson arrived at a Canadian customs office seeking to import from the United States a vehicle originally manufactured in Canada but converted in the United States into a limousine seating 12 passengers. He was advised that the vehicle was inadmissible since it was a bus as defined in the applicable regulations and did not comply with Canadian safety standards. The respondents ("the Minister") claims that Mr. Nickerson led the customs officers to believe that he had returned the vehicle to the United States but was using it as a new venture in Calgary, Alberta. Upon finding this, the Minister issued an initial notice of detention on August 19, 1999. Following an inspection on December 2, 1999, by inspector Harry Baergen, the vehicle was determined to be unsafe and seized.
2. Jurisdiction
[3] The Minister submits that this Court ought to decline jurisdiction to order a return of the detained vehicle because such an application for the return of a thing seized under subsection 15(4) of the Act makes the detention subject to sections 489.1 to 491.2 of the Criminal Code. The relevant sections read as follows:
| 15. (1) For the purpose of verifying compliance with this Act, an inspector may at any reasonable time enter any place in which the inspector believes on reasonable grounds there is |
| (a) any vehicle or equipment of a class for which safety standards have been prescribed that is owned by, or is on the premises of, a company or a consignee of imported vehicles or imported equipment; |
| . . . |
| (4) An inspector may seize and, subject to sections 489.1 to 491.2 of the Criminal Code, detain any vehicle, equipment or component described in subsection (1) |
| (a) by means of which or in relation to which the inspector believes on reasonable grounds this Act has been contravened; or |
| (b) that the inspector believes on reasonable grounds will afford evidence in respect of a contravention of this Act. |
| . . . |
| 490. (7) Application for order of return - A person from whom anything has been seized may, after the expiration of the periods of detention provided for or ordered under subsection (1) to (3) and on three clear days notice to the Attorney General, apply summarily to |
| (a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, where a judge ordered the detention of the thing seized under subsection (3), or |
| (b) a justice, in any other case, |
| for an order under paragraph (9)(c) that the thing seized be returned to the applicant. |
| (my emphasis) |
[4] The affidavit evidence shows clearly that Mr. Nickerson was a "consignee" of the imported vehicle in question under paragraph 15(1)a) of the Act. The preamble of the Act stipulates that it is an Act to regulate the manufacture and importation of motor vehicle so as to reduce the risk of injury and damage to person and property. Section 6 of the Act refers to a person who imports a vehicle and subjects the "person" to the compliance requirements of section 5 which refers to a "company". There is no specific definition in the Act of the terms "consignee", "company", or "person" but it is clear that the purpose of the Act is to subject imported vehicles to the safety compliance requirements of the Act.
[5] Counsel for Mr. Nickerson argues that subsection 15(4) of the Act provides that a seizure properly carried out by Transport Canada can only continue subject to the limitations in the Criminal Code and the reference to the Criminal Code is designed merely to limit the ability of the department to continue a seizure and is not intended to limit the recourse available to a person whose property has been seized.
[6] I cannot accept that proposition. The relevant sections of the Criminal Code constitute a comprehensive code governing the return of seized goods. It is not permissive in nature.
[7] Counsel relies on Rule 377 of the Federal Court Rules, 1998, which reads as follows:
| 377. (1) On motion, the Court may make an order for the custody or preservation of property that is, or will be, the subject-matter of a proceeding or as to which a question may arise therein. |
| (2) Interim order--Rule 374 applies to interim orders for the custody or preservation of property referred to in subsection (1), which such modifications as the circumstances require. |
[8] Rule 377 was not intended as an alternative remedy to Criminal Code provisions. Generally, the Federal Court Rules are not intended to grant to this Court jurisdiction over matters that the legislature has expressly granted to other courts2.
[9] Consequently, I must decline jurisdiction in this matter.
3. Injunctive Relief
[10] If I should be in error in this matter with reference to lack of jurisdiction, I still would deny to issue an order to return the vehicle in question to the owner: he has not shown irreparable harm, and the balance of convenience does not favour him. His damages are purely economic and fully compensable by a sum of money.
[11] Although Mr. Nickerson has created a new enterprise around his newly acquired limousine, his financial losses are self-inflicted in the sense that his imported vehicle does not meet the security standards imposed by the Department of Transport. However, I would hasten to add that the Minister ought to proceed diligently with the inspection of the vehicle so that Mr. Nickerson may take all the steps necessary to ensure that the vehicle is safe.
[12] Although Mr. Nickerson has secured safety fitness certificates from the Alberta Motor Transport Board and the Alberta Transportation and Utilities, he has yet to meet the more stringent federal safety standards.
[13] As to the balance of convenience, one of the factors to be taken into consideration by this Court is the public interest. An injunctive relief is an extraordinary remedy and it ought to be used only discretionary and not to prevent a public authority from exercising its legitimate statutory powers. If Mr. Nickerson were allowed to transport passengers in a limousine which turns out to be unsafe, irreparable harm may come to unaware passengers.
4. Disposition
[14] Consequently, in my view, this Court does not have the jurisdiction to grant the remedy sought by the applicant. Even if it did, my discretion to grant the relief sought would not be exercised in favour of the applicant. It follows that the accompanying motion for an extension of time to cross-examine an affiant is now moot. The instant motion is dismissed with costs.
OTTAWA, Ontario
December 17, 1999
Judge
Date: 19991217
Docket: T-1675-99
OTTAWA, ONTARIO, THIS 17th DAY OF DECEMBER 1999
PRESENT: MR. JUSTICE J.E. DUBÉ
BETWEEN:
CLAUDE MICHAEL NICKERSON AND
685108 ALBERTA INC.
CARRYING ON BUSINESS AS
LONGHORN LIMOUSINE SERVICES
Applicants
- and -
MINISTER OF TRANSPORT AND
BERTRAND BOILY, AN INSPECTOR UNDER SECTION 2 OF THE ACT
Respondents
ORDER
The motion is dismissed with costs.
Judge
__________________2 Mandate Erectors and Welding Ltd. v. Canada (1996), 118 F.T.R. 290, at 294-5 (T.D.).