Date: 19980123
Docket: T-2329-97
MONTRÉAL, QUEBEC, THE 23rd DAY OF JANUARY 1998
Present: RICHARD MORNEAU, PROTHONOTARY
Between:
CHANTALE DESBIENS,
Plaintiff,
AND
MINISTER OF NATIONAL REVENUE,
Defendant.
ORDER
The defendant"s motion is dismissed with costs.
Richard Morneau
Prothonotary
Certified true translation
Stephen Balogh
Date: 19980123
Docket: T-2329-97
Between:
CHANTALE DESBIENS,
Plaintiff,
AND
MINISTER OF NATIONAL REVENUE,
Defendant.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
Introduction
[1] The case at bar concerns a motion by the defendant to strike out the plaintiff"s statement of claim (the statement of claim) pursuant to Rule 419(1)(a ) of the Federal Court Rules (the Rules) on the ground that this Court lacks jurisdiction to hear this action under section 135 of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), as amended (the Act), and that the statement of claim must accordingly be found to disclose no reasonable cause of action.
Analysis
[2] Rule 419(2) of the Rules provides that no evidence is admissible on an motion under Rule 419(1)(a). Furthermore, it has been established since Attorney General of Canada v. Inuit Tapirisat, [1980] 2 S.C.R. 735, that a statement of claim cannot be struck out unless it is plain and obvious that it discloses no reasonable cause of action.
[3] In the case at bar, these limits are a sort of yoke the defendant must wear in connection with his motion. It is not in all instances clear what provisions of the Act the statement of claim in the instant case is based on or for what exact purpose many of its allegations of fact are raised. In other circumstances, this might be held against the plaintiff. In the context of the instant motion, however, this is the situation the defendant must face.
[4] The relevant factual background as drawn from the statement of claim is that Canadian customs officers notified the plaintiff on March 18, 1997 that they were seizing his Honda Civic motor vehicle on the ground that it had been used as a conveyance for the importation of unreported goods.
[5] These goods consisted in narcotics that an acquaintance of the plaintiff was transporting in her body while a passenger in the plaintiff"s vehicle. The plaintiff allegedly picked her up at John F. Kennedy Airport in New York at her request to enable her to return to the Montréal area. The vehicle and, it must be assumed, the narcotics were allegedly seized at the Lacolle border crossing point during the return trip.
[6] It is clear from the defendant"s written and oral argument that the purpose of the plaintiff"s action under section 135 of the Act is to appeal the terms and conditions for return of the vehicle imposed by the defendant under section 133 of the Act, not the defendant"s decision under section 131. The relevant passages from sections 131 to 135 of the Act read as follows:
| 131. (1) After the expiration of the thirty days referred to in subsection 130(2), the Minister shall, as soon as is reasonably possible having regard to the circumstances, consider and weigh the circumstances of the case and decide |
| (a) in the case of goods or a conveyance seized or with respect to which a notice was served under section 124 on the ground that this Act or the regulations were contravened in respect of the goods or the conveyance, whether the Act or the regulations were so contravened; |
| (b) in the case of a conveyance seized or in respect of which a notice was served under section 124 on the ground that it was made use of in respect of goods in respect of which this Act or the regulations were contravened, whether the conveyance was made use of in that way and whether the Act or the regulations were so contravened; |
| . . . |
| (3) The Minister's decision under subsection (1) is 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 subsection 135(1). |
| 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; and |
| (b) where, as a result of a decision made by the Minister under paragraph 131(1)(c) or (d), the Minister decides that a penalty that was assessed under section 109.3 is not justified by the facts or the law, the Minister shall forthwith cancel the assessment of the penalty and authorize the return of any money paid on account of the penalty and any interest that was paid under section 109.5 in respect of the penalty. |
| . . . |
| 133. (1) Where the Minister decides, under paragraph 131(1)(a) or (b), that there has been a contravention of this Act or the regulations in respect of the goods or conveyance referred to in that paragraph, and, in the case of a conveyance referred to in paragraph 131(1)(b), that it was used in the manner described in that paragraph, the Minister may, subject to such terms and conditions as the Minister may determine, |
| (a) return the goods or conveyance on receipt of an amount of money of a value equal to an amount determined under subsection (2) or (3), as the case may be; |
| . . . |
| 135. (1) A person who requests a decision of the Minister under section 131 may, within ninety 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. |
[7] The defendant submits that it is clear from the decisions at trial and on appeal in Time Data Recorder International Ltd. et al. v. Minister of National Revenue (Customs and Excise) (1993), 66 F.T.R. 253 (F.C.T.D.), and file No. A-518-93, unreported decision dated April 21, 1997 (F.C.A.), that only the defendant"s decision as to whether there was a contravention or use under section 131 of the Act can be appealed under section 135.
[8] I agree with the defendant on this point. However, it is in my view not plain and obvious from the text of the statement of claim that all the grounds the plaintiff raises to be excused, more specifically paragraphs 14 to 20 of the statement of claim, are intended solely to seek a review of the terms and conditions for return allegedly imposed by the defendant under section 133 of the Act.
[9] In this respect, it must be mentioned that the statement of claim does not state that terms and conditions for return were imposed, and I can in the circumstances consult no evidence to satisfy myself that they were. Even were it to be accepted that such terms and conditions were necessarily imposed, it is conceivable at this point, as counsel for the plaintiff argued, that the statement of claim challenges primarily the defendant"s initial decision under section 131 of the Act, which confirmed that in the circumstances the vehicle was in fact made use of to transport goods in contravention of the Act.
[10] Paragraph 13 of the statement of claim and the first prayer therein for relief are favourable to this interpretation, as they seek to have the seizure quashed. Furthermore, it is possible to agree with counsel for the plaintiff as to the meaning of the second prayer for relief in the statement of claim. According to her, the purpose of asking that the vehicle be returned to the plaintiff without costs is not necessarily to have any term or condition for return reviewed but, in the event that the seizure is quashed, to ensure that the plaintiff is not charged storage costs for the period when the vehicle was subject to seizure.
[11] As for the possibility that the plaintiff might mount a legal challenge to the defendant"s initial decision under section 131 of the Act, counsel for the plaintiff stated that her client intended to raise a defence of due diligence against that decision. In this respect, the Federal Court of Appeal, while refusing to decide the question in Time Data , supra, at page 9, did not rule out the possibility of raising such a defence under the Act. The Court even stated that its earlier decision in The Queen v. Letarte, [1981] 2 F.C. 76, strictly excluded only the defence of good faith under the Act, thereby implying that any other evidence showing due diligence will not necessarily be excluded.
[12] Furthermore, it is interesting to note that section 139 of the Act would have permitted the plaintiff to raise such a defence had she not been in possession of the vehicle when it was seized. It is it therefore plain and obvious that a similar defence is unavailable under section 131? I am not satisfied that this is so.
[13] I cannot therefore conclude that it is plain and obvious that the statement of claim relates to section 133 of the Act rather than the decision made pursuant to section 131 of the Act, and that the statement of claim accordingly discloses no reasonable cause of action under section 135 of the Act.
[14] This motion will therefore be dismissed with costs.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC,
January 23, 1998
Certified true translation
Stephen Balogh
Federal Court of Canada
Court No. T-2329-97
BETWEEN
CHANTALE DESBIENS,
Plaintiff,
- and -
MINISTER OF NATIONAL REVENUE,
Defendant.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-2329-97
STYLE OF CAUSE: CHANTALE DESBIENS,
Plaintiff,
AND
MINISTER OF NATIONAL REVENUE,
Defendant.
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING: January 19, 1998
REASONS FOR ORDER by Richard Morneau, Prothonotary
DATE OF REASONS FOR ORDER: January 23, 1998
APPEARANCES:
Marie-France Vincent for the plaintiff
Hélène Beaumont for the defendant
SOLICITORS OF RECORD:
Marie-France Vincent for the plaintiff
Claude F. Archambault & Associés
Montréal, Quebec
George Thomson for the defendant
Deputy Attorney General of Canada
Montréal, Quebec