Date: 20060512
Docket: T-1522-05
Citation No: 2006 FC 594
Vancouver, British Columbia, May 12, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
THI MINH HA
Plaintiff
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS AND
THE MINISTER OF NATIONAL REVENUE
Defendants
REASONS FOR ORDER AND ORDER
[1] The Defendant Ministers have applied for summary judgment pursuant to rule 213(2) of the Federal Courts Rules SOR/98-106 seeking a dismissal of the Plaintiff=s action. I accept that this is an appropriate case for summary judgment because I am satisfied that the only genuine issue raised by the Plaintiff=s Statement of Claim and in the affidavit material is a question of law which can be resolved on a preliminary basis. Rules 213(2) and 216(2)(b) apply to this motion. They provide:
| 213(2) A defendant may, after serving and filing a defence and at any time before the time and place for trial are fixed, bring a motion for summary judgment dismissing all or part of the claim set out in the statement of claim.
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213(2) Le défendeur peut, après avoir signifié et déposé sa défense et avant que l'heure, la date et le lieu de l'instruction soient fixés, présenter une requête pour obtenir un jugement sommaire rejetant tout ou partie de la réclamation contenue dans la déclaration.
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| 216(2) Where on a motion for summary judgment the Court is satisfied that the only genuine issue is
...
(b) a question of law, the Court may determine the question and grant summary judgment accordingly.
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216(2) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue que la seule véritable question litigieuse
est :
[...]
b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence.
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There are no factual disagreements or issues of credibility which would create obstacles for applying the summary judgment rules. Indeed, the matter stands to be resolved by the application of legal principles to the facts alleged in the Plaintiff's Statement of Claim.
[2] The Plaintiff=s action stems from the seizure of United States currency by the Canadian Border Security Agency (ACBSA@) at the Douglas Border Crossing on April 3, 2004. The amount of U.S. cash seized from the Plaintiff was $8,300, worth at the time, $10,956 in Canadian funds. These funds were seized because the Plaintiff failed to declare that she was in possession of a sum exceeding $10,000 as required by section 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, c. 17, s. 1; 2001, c. 41, s. 48 (the AAct@).
[3] At the time of the seizure, the Plaintiff was returning to Canada with two acquaintances, namely Van Tai Nguyen and Wendy Nguyen. Mr. Nguyen was in possession of $5,000 (USD) and Ms. Nguyen had $2,400 (USD). All of the cash in the possession of the Plaintiff and the Nguyens was tested and found to be contaminated with cocaine residue. The Plaintiff told the customs officer that she had saved the funds in her possession and intended to use the money to buy diamonds in the United States. Because she had not found anything that suited her during her trip, she was returning to Canada with the money unspent. She said that the money was never deposited in a bank but was, rather, kept in her home. The funds were also in the form of $100 notes.
[4] The Plaintiff requested a ministerial review of the seizure action pursuant to section 25 of the Act and the matter was assigned to an officer with the Customs Appeals Directorate of the CBSA. On May 14, 2004, the CBSA provided the Plaintiff with its reasons for the seizure action and invited her to provide additional information which she believed would be helpful to her claim. The Plaintiff=s legal counsel did provide an explanation for her actions along with some further material delivered to the CBSA by letter dated June 7, 2004. The CBSA responded by letter dated June 17, 2004, and indicated that a further inquiry would be made with respect to the Plaintiff=s contention that she had failed to comprehend the questions posed to her during the border examination. That letter also indicated that the CBSA was not in a position to turn over copies of the Aofficer=s reports@, but pointed out that it would be open to the Plaintiff to seek that material by way of a formal Access to Information and Privacy request. At a subsequent point, it does appear to be the case that an Access to Information request was made on behalf of the Plaintiff but the results of that process do not appear in the Record.
[5] On March 18, 2005, the Plaintiff=s counsel wrote to the CBSA advising that an unrelated drug prosecution against the Plaintiff had been stayed by the Crown. He also asked for an update on the status of the ministerial review. It was not until June 27, 2005, that the ministerial review decision was rendered. That decision upheld the seizure action and forfeiture decision made by the border officer. It is from this ministerial review decision that the Plaintiff commenced this action by way of a Statement of Claim issued on September 6, 2005.
[6] The Plaintiff=s action against the Ministers is brought pursuant to section 30(1) of the Act; the Statement of Claim seeks declaratory relief and an order requiring that the funds seized be returned to her. That part of the claim is presumably brought as a challenge to the ministerial decision which confirmed that the Plaintiff had violated section 12(1) of the Act by failing to declare. The Plaintiff has not alleged in the Statement of Claim that the seizure was not justified at the time it was carried out but says, rather, that the Minister's delegate lost jurisdiction over the matter by failing to render a decision within 90 days as required by section 27(1) of the Act. The Plaintiff says that that time limit is mandatory and the delegate=s admitted failure to comply with it is fatal to the seizure and forfeiture action.
[7] The Plaintiff=s Statement of Claim also alleges that the forfeiture decision made by the border officer and confirmed by the CBSA Minister's delegate was without foundation and patently unreasonable. Although not expressly pleaded, this claim to relief clearly falls within the Court=s judicial review jurisdiction pursuant to section18(1) of the Federal Courts Act, R.S., 1985, c. F-7 and does not fall within the appeal jurisdiction conferred upon the Court by section 30(1) of the Act. This dichotomy has been somewhat reluctantly recognized in at least two previous decisions of this Court, specifically Dokaj v. Canada (Minister of National Revenue), [2005] F.C.J.. No. 1783, 2005 FC 1437, and Tourki v. Canada (Minister of Public Safety and Emergency Preparedness), [2006] F.C.J. No. 52, 2006 FC 50. The problems arising out of a bifurcated approach to the judicial scrutiny of seizures of this sort are several and obvious and those problems were duly noted in both the Dokaj and Tourki decisions. Such a process does not contribute to the efficient use of judicial resources and, in a case like this, it forces a litigant to make difficult choices about the allocation of scarce resources. The awkwardness of this process is aggravated by the fact that the time limit for a section 30 appeal under the Act is 90 days, whereas the time to commence a judicial review application is only 30 days post-decision.
[8] In this case, the section 30 appeal was brought within the required time limit but that part of the claim falling within the Court=s judicial review jurisdiction is out of time and could only be saved by an order to extend time. Such an application to extend time was not brought before me and I am therefore left with a potentially meritorious claim which cannot be maintained in its present form. The only remaining question on this application is whether the failure by the CBSA Minister's delegate to render a timely decision with respect to the correctness of the border seizure is somehow fatal to the seizure and forfeiture of that money.
[9] The issue before me is whether the time stipulated for a ministerial decision under section 27(1) of the Act is mandatory or directory. That provision states:
| 27. (1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened.
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27. (1) Dans les quatre-vingt-dix jours qui suivent l'expiration du délai mentionné au paragraphe 26(2), le ministre décide s'il y a eu contravention au paragraphe 12(1).
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[10] The Defendants say that this provision is directory only and that no legal consequences flow from the delegate's failure to act within the time stipulated. The Plaintiff argues that this provision is mandatory and she relies heavily on the use of the word "shall" in the provision.
[11] I accept that the use of the word "shall" within a statute is an indication of a mandatory or imperative intent. Section 11 of the Interpretation Act, R.S., c. I-23, lends support to that usual approach. However, subsection 3(1) of the Interpretation Act does allow for a deviation from the norm where "a contrary intention appears". It is clear from the case authorities that a contrary intention has been fairly frequently recognized in connection with statutory duties of the sort created by section 27(1) of the Act. Often such provisions are found to be directory, albeit subject to judicial supervision by way of mandamus for unreasonable delay.
[12] I think that counsel for the Plaintiff is correct that Parliament intended to create an expeditious process for reviewing seizure actions by customs officers and brought focus to that intention by fixing a number of time limits in the Act for that process to unfold. The use of the word "shall" in this context may also be an indication that the word "may" could not be used because it would permit the Minister to make no decision whatsoever.
[13] This Court interpreted the word "shall" as directory in a similar statutory context in McMahon v. Canada (Attorney General), [2004] F.C.J. No. 644, 2004 FC 540. There, Justice J. François Lemieux examined a provision in the Bankruptcy and Insolvency Act R.S., 1985, c. B-3, s. 1; 1992, c. 27, s. 2, which required the Superintendent of Bankruptcy to render a decision within three months after the conclusion of a hearing. After a thorough review of the case law, Justice Lemieux found the provision to be directory. In so doing, he identified three principal factors (at paragraph 27) to determine how this issue of interpretation should be resolved:
1. whether the duty being discharged is a public duty;
2. where lies the balance of inconvenience or prejudice; and
3. whether the statute provides for a penalty for failure to comply.
[14] Justice Lemieux's decision in McMahon was subsequently upheld by the Federal Court of Appeal, but that Court sanctioned the Superintendent's failure to comply with the provision by awarding costs to the unsuccessful party: see McMahon v. Canada (Attorney General) [2005] F.C.J. No. 166, 2005 FCA 33 at paragraph 5.
[15] In Teskey v. Law Society of British Columbia (1990), 71 D.L.R. (4th) 531 (B.C.S.C.) (QL), the Court considered this question and focused on the need to protect the public interest which, it held, is usually accomplished by favouring an interpretation that promotes the objective of the legislation. The Court described its approach as follows (at pages 4-5):
As I read these cases, a statutory or regulatory requirement may be read as directory rather than mandatory if the enactment relates to the performance of a public duty, the failure to perform that duty would cause serious inconvenience to persons who have no control over those who are entrusted with the duty, and this would not promote the main objective of the enactment. Other considerations are whether or not there is a penalty provided for non-performance of the requirement, whether the requirement is in a regulation but not in the enabling statute, and what if any prejudice there is to persons who may be affected by the failure to fulfill the requirement. Each case must be decided on the nature of the particular requirement and the statutory and regulatory setting in which it is found.
In my judgment, Rule 501(1) should not be construed as providing a basis for loss of jurisdiction by the benchers to conduct a review of a discipline committee decision if its requirement is not fulfilled. The dominant purpose of the disciplinary provisions of the Act, including the review process by the benchers under s. 48(1), is, in my opinion, the protection of the public. That purpose would be thwarted, at least in part, by interpreting Rule 501(1) as mandatory rather than directory. Protection to the member is inserted in s. 48(1) by setting a 30-day limit for referral of a discipline committee decision to the benchers. There is no penalty provided for failing to comply with Rule 501(1) that is either explicit or implicit in the Law Society rules or in the Act. It is not [page 537] framed as if it were a time limit such as is the case with the 30 days provided for in s. 48(1) of the Act for referral to the benchers. Thee is no real prejudice to the member for failure to comply with Rule 501(1). The member could at any time inquire if a referral has been made within the 30-day statutory period. In any event, in my view, the rules of natural justice will be available to prevent a miscarriage of justice.
When I consider all the circumstances, I cannot conclude that Rule 501(1) was meant to be a basis of loss of jurisdiction if it was not complied with. I find it is directory only.
[16] One of the most comprehensive decisions dealing with the mandatory/directory question is Rahman v. Alberta College and Assn. of Respiratory Therapy, [2001] A.J. No. 343, 2001 ABQB 222. Rahman was a case which involved the failure by a professional disciplinary committee to commence its hearing within the 90-day period stipulated in the legislation. In concluding that the use of the word "shall" was merely directory, the Court relied (in paragraph 25) upon the following passage from David J. Mullan, Administrative Law, 3d ed., (Scarborough: Carswell, 1996) at page 317:
244 The courts are more likely to favour strict adherence to procedural provisions where private rights are affected than if the requirements relate to the performance of a public duty the invalidation of which would cause serious general inconvenience or create anomalous situations. In the latter situation, the courts usually hold such provisions to be directory only. The courts are reluctant to allow non-adherence to mere formalities and technical requirements to defeat the validity of decisions in a manner that is contrary to the public interest.
...
246 The courts tend to treat statutory requirements regarding time as mandatory and sometimes describe them as conditions precedent to jurisdiction. However, a breach may not give rise to a remedy if no substantial prejudice results or where treating the provisions as mandatory would defeat the purpose of the statute.
[17] In the case at bar, counsel for the Plaintiff points to several other provisions in the Act which require the person affected by a statutory forfeiture to act within stipulated times. In particular, he refers to section 25 which obliges a person seeking a ministerial review to give written notice to that effect within 90 days. There the Act uses the word "may" which, in that context, indicates that the person has a choice to make. Whether that time stipulation is mandatory or directory is not for me to decide in this case. The Applicant points out, however, that such statutory provisions by which powers are enforced, rights are protected or immunities are engaged are often required to be rigorously observed. In McCain Foods Ltd. v. Canada (National Transportation Agency) (C.A.), [1993] 1 F.C. 583, [1992] F.C.J. No. 1061 (F.C.A.) (QL) at pages 5-6, this point was made in the following passage:
The case of Ottawa-Carleton (Regional Municipality) v. Canada Employment and Immigration Commission is of no assistance to the appellant. There, an application for a premium rate reduction had been filed outside the time limits prescribed by the Unemployment Insurance Regulations. The Court rejected the argument which attempted to qualify such a requirement as being directory rather than mandatory. It held that such a reading would make the provision meaningless as it would read it out of the legislation altogether. Hugessen J.A. for the Court distinguished the Normandin case by saying:
Where apparently imperative words in a statute, such as the "shall" in issue here, have been interpreted as being only directory, it has always, as far as I know, been in situations where the failure to act timely might produce unfortunate consequences, not so much for the actor but for some innocent party.
He concluded:
I am not aware of any case, and none was cited, where the apparently mandatory time period set for the assertion of a claim by the party claiming has been held to be purely directory.
[18] I think that there is a valid distinction to be made between statutory time limits which apply to the initiation of a process by which rights are protected or advanced, and other time limits which apply to the progression or completion of that process. The strict observance of the former is intended to bring some certainty and finality to the process subject to the review but the directory nature of the latter is simply to ensure that the process, once begun, moves forward with some degree of dispatch.
[19] I also agree with counsel for the Defendants that giving mandatory effect to the time limit contained within section 27(1) could create some unintended consequences. For instance, it could compel the Minister to render a premature decision before all of the facts were known. Individuals seeking the recovery of money might thereby be prejudiced, particularly where, as here, additional evidence was being sought in support of the request. Here the delay did allow the Plaintiff to establish that her unrelated narcotics prosecution had been stayed by the Crown, albeit that that fact did not ultimately assist her cause.
[20] Counsel for the Defendants also points out that a declaration that the ministerial decision is a nullity would not assist the Plaintiff because the monies seized are deemed by section 23 of the Act to be forfeited to the Crown. Absent a successful appeal under the Act challenging the legality of the seizure on the merits, there is no other mechanism created to reverse the forfeiture on the basis of a subsequent procedural defect. In short, the forfeiture would remain in effect. The Plaintiff's argument that upon a declaration of a nullity this Court should simply order the return of the money could also lead to a situation where the proceeds of a crime were returned without there ever having been a section 30 determination on the merits - all because a time limit was missed.
[21] I do not believe that the public interest or the important public policy concerns which underpin this legislation would be well-served by interpreting this time limit as mandatory and by declaring ministerial decisions made outside of the 90-day period to be a nullity. The potential return of the proceeds of serious crime to the bearer based upon the expiry of a relatively short statutory time requirement would create an anomalous situation of the sort described by Professor Mullan in the passage referred to in paragraph 16 above. If Parliament had intended such a result, such a penalty provision could easily have been written into the legislation and the absence of such a provision is an indication that Parliament had no intention of making the subject provision mandatory: see McMahon (Fed. Ct.), above, at paragraph 28.
[22] Finally, in considering the issue of balance of convenience or prejudice to the Plaintiff and to others in her situation, it is difficult to identify anything of significance that would not be substantially outweighed by the public interest in ensuring that the objectives of this legislation are met.
[23] In conclusion, I would allow the Defendant's motion for summary judgment and dismiss this action pursuant to rule 216(2)(b) of the Federal Courts Rules. This ruling is made, however, without prejudice to the Plaintiff's right to seek an extension of time to obtain leave to commence a judicial review proceeding to pursue the relief she has claimed in paragraph 18 of her Statement of Claim. Neither party requested costs and therefore no costs will be awarded.
ORDER
THIS COURT ORDERS that this action is dismissed as though tried on the merits without costs.
"R.L. Barnes"
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