Date: 19991213
Docket: T-2491-93
MONTRÉAL, QUEBEC, THE 13TH DAY OF DECEMBER, 1999
Present: RICHARD MORNEAU, PROTHONOTARY
Between:
NORMAND THIFFEAULT
Plaintiff
AND
HER MAJESTY THE QUEEN
Defendant
JUDGMENT
The plaintiff"s action is dismissed with costs to be calculated according to the bottom of Column II of the Tariff.
Certified true translation
Bernard Olivier
Date: 19991213
Docket: T-2491-93
Between:
NORMAND THIFFEAULT
Plaintiff
AND
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
RICHARD MORNEAU, PROTHONOTARY:
Introduction
[1] This is an action in damages against Her Majesty the Queen resulting, according to the plaintiff, from the actions of Customs Canada (as it was then known), which is alleged to have flouted the plaintiff"s rights to be able to purchase his former car, and thus costing the plaintiff $4,725, the difference between the actual value of the car ($7,225) and the price the plaintiff would have had to pay to purchase the said vehicle by tender ($2,500).
Facts
[2] The parties agreed on the facts to be entered in evidence. This agreement reveals, inter alia, the following.
[3] On June 12, 1992, the plaintiff"s 1985 Cadillac Fleetwood, bearing serial number 1G6DW6980F975477, was seized by the defendant"s representatives.
[4] On July 22, 1992, the defendant"s representatives put the vehicle up for sale by tender, publicly announcing the sale by means of a duly completed form E-34.
[5] The plaintiff was notified under paragraph 7 of form E-34 that only the successful tenderer would be notified and that the sale was to be completed within seven days of such notice. More specifically, clause 7 of this form reads as follows:
| 7. The successful tenderer only will be notified as soon as possible after the closing date for receiving tenders and the sale must be completed within 7 days of such notice. |
[6] On August 13, 1992, the defendant"s representatives selected the plaintiff"s bid and on the same day sent him a letter by registered mail, which reads essentially as follows:
| Your bid for lot number 3, consisting of a 1985 Cadillac Fleetwood serial number 1G6DW6980F975477, has been selected. |
| You should bring your certified cheque in the amount of $2,889.00 payable to the Receiver General to the Customs Office situated at 25 des Forges, Room 612, Trois-Rivières. This amount includes $2,500.00 plus $175.00 GST and $214.00 provincial taxes. |
| You have seven days from this date to take possession of the vehicle. |
[7] On August 21, 1992, the defendant"s representatives cancelled the sale to the plaintiff, since he had not showed up, and then sold the aforementioned vehicle to a third party.
[8] It appears that it was not until August 19, 1992 or thereabouts that the plaintiff learned of the notice to the effect that he was to report to the postal outlet to recover the said registered letter.
[9] On Wednesday, August 26, 1992, the plaintiff took possession of the letter of August 13.
[10] The plaintiff reported to the office of Revenue Canada, Customs and Excise, within seven (7) days of learning of the notice, on September 1, 1992.
Analysis
[11] Plaintiff"s counsel argues that it is clear from paragraph 7 of the form and the letter of August 13, 1992 that the seven (7) day period for payment and taking of possession of the vehicle were simply practical details subsequent to the sale and that the sale was to be considered complete and final upon acceptance of the plaintiff"s offer. Accordingly, even if the plaintiff had not performed within seven (7) days of this acceptance, the defendant could not cancel the sale before ascertaining that the plaintiff had indeed received a notice of cancellation for delay in taking possession.
[12] I am unable, in light of the facts, to accept this approach.
[13] To my way of thinking, it is the form that determines the essence of any agreement to be entered into between the defendant and any tenderer. In this regard, clause 7 of the said form provides that the initial acceptance of a tenderer"s bid does not complete the sale, but the sale will be completed, will therefore be perfected, only if the plaintiff"s obligations " as spelled out in the letter of August 13, 1992 " are completed within seven (7) days.
[14] Now, in this case, this was not done, and I do not think the defendant was duty-bound to give the plaintiff a second notice or that the defendant abused its discretion by cancelling the sale on August 21, 1992.
[15] Conceivably, however, for the purposes of clause 7 of the form, the date of sending of the notice ought to remain August 13, 1992, notwithstanding the fact that the defendant, in the circumstances, used registered mail and not ordinary mail.
[16] In this regard, section 149 of the Customs Act is applicable to the case at bar. This section stipulates that:
| For the purposes of this Act, the date on which a notice is given pursuant to this Act or the regulations shall, where it is given by mail, be deemed to be the date of mailing of the notice, and the date of mailing shall, in the absence of any evidence to the contrary, be deemed to be the day appearing from such notice to be the date thereof unless called into question by the Minister or by some person acting for him or Her Majesty. |
[17] The plaintiff has failed to convince me that the mail referred to in section 149 excludes registered mail. In fact, in 928412 Ontario Ltd. v. Minister of National Revenue (1997), 130 F.T.R. 168, the Court implicitly acknowledged that registered mail was the vehicle of choice for a mailing under section 149. The Court states, at p. 173:
| [22] Where, as in the present case, a person requests a decision of the Minister pursuant to s. 131 of the Act, and notice of that decision is sent to that person by registered mail to their latest known address, notice is effective, on the date of mailing, in accord with ss. 137 and 149 of the Act which provide as follows: |
| 137. The service of the Deputy Minister's notice under section 130 or the notice of the Minister's decision under section 131 is sufficient if it is sent by registered mail addressed to the person on whom it is to be served at his latest known address. |
| 149. For the purposes of this Act, the date on which a notice is given pursuant to this Act or the regulations shall, where it is given by mail, be deemed to be the date of mailing of the notice, and the date of mailing shall, in the absence of any evidence to the contrary, be deemed to be the day appearing from such notice to be the date thereof unless called into question by the Minister or by some person acting for him or Her Majesty. |
| [23] In the present circumstances, pursuant to s. 149 of the Act, notice of the Minister's decision was given to the plaintiff on October 30, 1996, the date it was sent by registered mail, and not on the date on which it was received. |
[emphasis added]
[18] Moreover, the plaintiff was unable to refer this Court to any argument in fact or in law that would rule out such a conclusion. Accordingly, the date of receipt of the letter of August 13, 1992 can have no impact in this case.
[19] On the other hand, even if registered mail ruled out the application of section 149 " which I deny in the case at bar " it still does not appear to me that the plaintiff"s action could be allowed.
[20] First, it has not been demonstrated that the plaintiff showed due diligence in learning about the registered mailing. There is nothing in the record to explain why it was only on August 19, 1992, and not earlier, that the plaintiff realized he had received a letter by registered mail.
[21] Even accepting August 19, 1992 in favour of the plaintiff, he could, notwithstanding his schedule, have gone to the post office in time to learn the actual content of the letter of August 13, 1992.
[22] Finally, the plaintiff"s quantum of damages has not been established in evidence, since it is not part of the agreement on the facts that was put in evidence. This quantum has remained only an allegation in the statement of claim.
[23] For these reasons, the plaintiff"s action will be dismissed with costs, to be calculated according to the bottom of Column II of the Tariff.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
December 13, 1999
Certified true translation
Bernard Olivier
Federal Court of Canada
Trial Division
Date: 19991213
Docket: T-2491-93
Between:
NORMAND THIFFEAULT
Plaintiff
AND
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: NORMAND THIFFEAULT |
Plaintiff
AND
HER MAJESTY THE QUEEN
Defendant
| PLACE OF HEARING: Québec, Quebec |
| DATE OF HEARING: December 2, 1999 |
REASONS FOR JUDGMENT OF RICHARD MORNEAU, PROTHONOTARY
DATED: December 13, 1999
APPEARANCES:
Steve Baribeau for the plaintiff
Veronica Romagnino for the defendant
SOLICITORS OF RECORD:
Lacoursière Lebrun Vézina for the plaintiff
Steve Baribeau
Trois-Rivières, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
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