Date: 19991001
Docket: T-4303-81
OTTAWA, Ontario, October 1, 1999
| Before: HUGESSEN J. |
Between:
ROBITAILLE MARINE INC.,
Plaintiff,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Defendant.
ORDER
The action is dismissed with costs.
| James K. Hugessen Judge |
Certified true translation
Bernard Olivier, LL. B.
Date: 19991001
Docket: T-4303-81
BETWEEN:
ROBITAILLE MARINE INC.,
Plaintiff,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Defendant.
REASONS FOR ORDER
HUGESSEN J.
[1] This is an application by the defendant for a summary judgment against the plaintiff. The defendant argued that the action at bar, brought by the plaintiff in August 1981, is prescribed under the provisions of s. 158 of the Customs Act ("the Act"), which was in effect at the time. The section reads as follows:
| 158. (1) Toute somme d"argent déposée suivant l"article 157 devient, à moins qu"elle ne soit libérée ainsi que le prévoit l"article 157, la propriété de Sa Majesté la Reine pour les usages publics du Canada, sous réserve des dispositions de la présente loi relativement au partage du produit de la vente d"effets confisqués. (2) Nulle procédure ne peut être intentée contre la Couronne pour le recouvrement de cet argent, si ce n"est dans les six mois qui suivent la date du dépôt qui en est fait. |
| 158. (1) Any sum of money deposited in accordance with section 157 shall, unless it is released as provided in section 157, become the property of Her Majesty the Queen for the public uses of Canada, subject to the provisions of this Act with respect to the distribution of the proceeds of forfeited goods. (2) No proceedings against the Crown for the recovery of any such money shall be instituted, except within six months from the date of the deposit thereof. |
[2] The essential facts of the case at bar are quite straightforward and not in dispute. In 1977, the Department of National Revenue made two customs seizures against the plaintiff. The latter subsequently obtained possession of the goods seized by making two deposits in the amounts of $40,000 and $60,000 respectively.
[3] On May 13, 1981, the Minister rendered a decision pursuant to s. 163 of the Act. The gist of that decision is as follows:
| [TRANSLATION] |
| . . . that the deposit in the amount of $60,000.00 shall be forfeited; that Marine Robitaille Inc., 3652 boul. Ste-Anne, Giffard, Quebec, shall be required to pay the sum of $368,897.15 to be forfeited, and failing such payment within 30 days, any action considered appropriate by the Crown shall be taken. |
| This is an official notification to pay the sum of $368,897.15 due and payable to the Crown. If such payment is not received within 30 days, the Crown shall take any measure considered appropriate to ensure collection. |
[4] Following this decision counsel for the plaintiff sent the Minister a letter indicating that his client was not satisfied with this decision and intended to object to it. An employee of the Department replied to counsel for the plaintiff in a letter July 7, 1981. That letter referred clearly to the two customs seizures and the decision by the Minister on May 13, 1981. The writer said:
[TRANSLATION]
| Under s. 165 of the Customs Act, when notice of non-acceptance of a decision rendered is given the Minister may refer the matter to the Court, in this case the Federal Court of Canada (Trial Division). However, in the case of seizure 34978/C #857, the Minister did not consider this necessary. |
| On his own initiative, your client took the case to the Federal Court of Canada. Although the Department is prepared to suspend the matter for a reasonable time, we would draw your attention to the provisions of s. 150(2) of the Customs Act. The Minister"s decision was rendered on May 13, 1981 and a formal notice of the decision was sent to you on that date. |
| As regards customs seizure 34844/ED 14249, unless the notice of non-acceptance is withdrawn and arrangements are made for payment of the money owed, we will ensure collection by referring the matter to the Court. However, so that your client may have a fair and reasonable time to reconsider his decision, we will not submit the matter to the Court until August 8, 1981. If on that date no arrangement has been made for settlement, the matter will be referred without prior notice to you or your client. |
[5] In my opinion, it is clear that the Department"s employee misunderstood the relevant provisions of the Act and that the advice he appears to have given the plaintiff was not appropriate. Section 150 of the Act, to which he refers, reads as follows:
| 150. (1) Nulle action, poursuite ou procédure ne peut être intentée contre la Couronne ou contre un préposé ou une personne employée pour empêcher la contrebande, ni contre une personne en possession de marchandises sous l"autorité d"un préposé pour le recouvrement de la chose saisie, tant qu"une décision n"a pas été rendue, soit par le Ministre, soit par une cour compétente, relativement à la condamnation de la chose saisie. (2) Cette action, poursuite ou procédure doit être intentée dans les trois mois après que cette décision a été rendue. |
150. (1) No action, suit or proceeding shall be commenced against the Crown, or against any officer or person employed for the prevention of smuggling, or against any person in possession of goods under the authority of an officer, for the recovery of the thing seized, until a decision has been first given either by the Minister or by a court of competent jurisdiction in relation to the condemnation of the thing seized. (2) Every such action, suit or proceeding shall be brought within three months after such decision has been given. |
[6] It is now well-settled case law1 that the remedy mentioned in s. 150 of the Act applies only to cases where the goods seized are kept by the Minister. In cases where taxpayers have already retaken possession of such goods, in return for making a deposit with the Minister, it is s. 158 which provides a remedy and fixes a prescription deadline.
[7] Counsel for the plaintiff argued, therefore, that it was clearly the prescription in s. 158(2) of the Act that applied in the case at bar, and that the action at bar, which was not brought until August 1981 and which claimed the repayment of money paid in 1977 totalling $100,000, is prescribed. However, he contended that by the letter of July 7, 1981, mentioned above, the defendant has waived the accrued prescription.
[8] I do not agree. Waiver of prescription certainly may be tacit. However, it must be clear and unambiguous, especially when it is waiver of an accrued prescription. In such cases, the Court must be able to ascertain from the debtor"s actions an intention and desire to revive an obligation that has now ceased to exist. The Court is unable to find any such intention or desire from reading the letter of July 7, 1981. In my opinion, the official was completely mistaken about the appropriate remedy and the applicable period of prescription; but there is nothing there which allows the Court to conclude that he intended to waive the accrued prescription. The only prescription at issue in the letter to the plaintiff is that in s. 150, which was not applicable in the
case at bar. I therefore conclude that the plaintiff"s action was prescribed at the time it was brought and should accordingly be dismissed.
| James K. Hugessen Judge |
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-4303-81 |
| STYLE OF CAUSE: ROBITAILLE MARINE INC. v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA |
PLACE OF HEARING: Ottawa, Ontario
| DATE OF HEARING: September 10, 1999 |
REASONS FOR ORDER BY: Hugessen J.
DATED: October 1, 1999
APPEARANCES:
| Louis Brousseau FOR THE PLAINTIFF |
| Louis Sébastien FOR THE DEFENDANT |
SOLICITORS OF RECORD:
McCarthy, Tétrault FOR THE PLAINTIFF
Attorneys
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario
__________________1 Dome Petroleum Ltd. v. HMQ (1988), 18 C.E.R. 200. Huskey Oil Ltd. v. HMQ, [1998] F.C.J. No. 1780.