928412 Ontario Limited v. Canada, docket T-170-97

     T-170-97

BETWEEN:

928412 ONTARIO LIMITED

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN

     Defendant

REASONS FOR ORDER

MacKAY, J.:

     This is an application on behalf of the defendant, in the name of the Minister of National Revenue, pursuant to Rule 324 of the Federal Court Rules, seeking leave to file a conditional appearance, and if leave is granted, an Order striking out the plaintiff's statement of claim on the ground that it was not filed within the 90 day limitation period set out in s.135 of the Customs Act, R.S.C. 1985, c.52.6, as amended, (the "Act"). In the alternative, the defendant seeks an Order extending the time prescribed for the delivery of a statement of defence to a date within twenty days of the disposition of this Motion pursuant to Rule 402(c) of the Federal Court Rules.

     Upon consideration of the affidavit evidence and written submissions before me, I have determined that the initiation of these proceedings by statement of claim filed in the Court on January 30, 1997 was not within the time specified by s-s.135(1) of the Customs Act, and therefore the Court is without jurisdiction to consider the plaintiff's claim, or to extend the time to file the claim. Accordingly, leave is granted to the defendant, and the application to strike out the statement of claim is allowed. The reasons for this decision are briefly as follows.

     By Notice of Ascertained Forfeiture dated May 25, 1994, served on Mr. David Woodall, Satellite Supply Division (928412 Ontario Ltd.), the defendant notified the plaintiff corporation that it had contravened the Customs Act, and that accordingly payment was demanded in the amount of $111,391.56.

     By letter dated June 17, 1994, counsel, on behalf of "Satellite Supply Division (928412 Ont Ltd.)" requested a decision of the Minister pursuant to s-s.129(1) of the Act. By letter dated October 29, 1996, the defendant advised that by the decision of the Minister the plaintiff had contravened the Customs Act, and that pursuant to s.133, payment was demanded in the amount of $37,130.52. This Notice was sent by the defendant by registered mail on October 30, 1996, and was addressed to "Satellite Supply Division" to the attention of Mr. David Woodall. The Notice, it is said, was received by the plaintiff corporation on November 4, 1996.

     On January 24, 1997, the plaintiff, seeking to appeal the decision of the Minister pursuant to s-s.135(1) of the Act, sent its statement of claim to the Registry of the Federal Court in Ottawa. The statement of claim, was received and stamped by the Registry of this Court on January 30, 1997.

     On March 5, 1997, the defendant filed the within motion seeking leave to file a conditional appearance, and an order striking out the statement of claim on the basis that the appeal was not filed within the ninety day limitation period for appeals to be made, in accord with s-s.135(1) of the Customs Act. In the alternative, the defendant seeks an extension of time, within which to deliver a statement of defence, to twenty days from the disposition of this motion, pursuant to Rule 402(c).

     The plaintiff submits the motion should be dismissed, on the basis that its appeal of the Minister's decision was commenced within the ninety day limitation period contained in s-s.135(1) of the Act. According to the plaintiff, its appeal was not initiated out of time, as notice of the Ministerial decision was only physically received on November 4, 1996 and its statement of claim was sent by registered mail on January 24, 1997, within the ninety day limitation period specified by s-s.135(1) of the Act.

     Therefore, in the present motion, the plaintiff takes issue with the defendant's characterizations of both the date on which the statement of claim was deemed to have been "filed" with the Court, as well as the date upon which notice of the ministerial decision was received. More specifically, the argument advanced by the plaintiff is two-fold: (i) that it its statement of claim was effectively "filed" on January 24, 1997, the date on which it was sent by registered mail to the Registry; and (ii) that because it was not properly addressed to the corporate plaintiff, notice of the decision of the Minister was not effective until it was received on November 4, 1996. Accordingly the plaintiff submits, it is only upon this date, the date of actual notification, November 4, 1996, that the ninety day limitation period set out in s-s.135(1) commences.

i)      When Was the Statement of Claim "Filed"?

     On the first point, the plaintiff submits that proper "filing" of the statement of claim was effective on January 24, 1997, the date on which it was sent by registered mail to the Federal Court Registry. According to the plaintiff, filing by registered mail is expressly permitted by s-s.48(2) of the Federal Court Act, which states that an "originating document may be filed ... by being forwarded ... by registered mail ... to the Registry." This provision, the plaintiff states, does not provide that filing requires physical receipt by the Registry. In this manner, the plaintiff suggests, s-s.48(2) is analogous to provisions of the Income Tax Act which permit the effective date of filing a return to be the date upon which it is mailed, not when received.

     The submission of the plaintiff that the "filing" of the statement of claim was achieved on the date it was sent to the Court by registered mail is simply untenable. Further, references to provisions of the Income Tax Act are irrelevant in the present case as the provisions in the Federal Court Rules regarding "filing" are clear. In the present case, "filing" of the statement of claim was achieved on the date on which it was received by the Registry of this Court. This conclusion, in my view, is amply supported by both the language of the provisions regarding "filing" contained in the Federal Court Act, as well as the jurisprudence of this Court.

     Pursuant to Rule 600(2) of the Federal Court Rules, s.48 governs the manner in which actions against the Crown are to be commenced. Section 48 of the Federal Court Act provides:

48.(1) A proceeding against the Crown shall be instituted by filing in the Registry of the Court the original and two copies of a document that may be in the form set out in the schedule and by payment of a sum of two dollars as a filing fee.

(2) The original and two copies of the originating documents may be filed as required by subsection (1) by being forwarded, together with a remittance for the filing fee, by registered mail addressed to "The Registry, The Trial Division, The Federal Court of Canada, Ottawa, Canada".

     The term "file" is defined in Rule 2(1) of the Federal Court Rules as "to file in the Federal Court Registry". While this definition may on its face appear to be rather tautological, the term, in my view, contemplates more than simple mailing of an initiating document to the Court by registered mail. First, the definition of "filing" contained in Rule 2(1), suggests, by the phrase "in the Federal Court Registry", that a document must be received by or "in" the Registry before it is considered to be filed.

     Secondly, the language regarding filing contained in the Federal Court Act simply does not support the definition of "filing" advanced by the plaintiff. Using s. 48 as an example, had Parliament intended filing to have been achieved by simply sending documents by registered mail to the Registry, presumably it would said so. This could easily have been achieved by substituting the terms "sending by registered mail" or simply "mailing" for the phrase "filing in" contained in s-s.48(1).

     Furthermore, the submission of the plaintiff that s-s.48(2) stands for the proposition that filing is accomplished by forwarding the document by registered mail to the Registry is simply not supported by the language of s.48 itself. The manner in which a claim against the Crown is initiated, by filing a document in the Federal Court, is provided for in s-s.48(1). In my view, s-s.48(2) simply provides means by which an individual "may" transmit a document to the Registry to be filed other than by doing so in person as is implied by s-s.48(1). This is clearly indicated by the language of s-s.48(2), which provides that documents "may be filed as required by subsection (1)" where they are sent by registered mail, along with payment for the fee for filing to the Registry of the Court. Subsection 48(2) simply offers an alternate means by which an individual may deliver to the Registry a document to be filed as required by s-s.48(1). It does not, in my view, in and of itself constitute "filing" for the purposes of the Act.

     Nor is the interpretation of the plaintiff as to when "filing" is achieved supported by the other provisions of the Act which pertain to the filing of documents. These provisions clearly indicate that "filing" of a document is only achieved once it is physically received and "filed" by the Registry of the Federal Court. This conclusion is perhaps supported most strongly by Rule 200(5) which provides:

200.(5) Where there is a requirement or authority for filing a document in the Registry or the Court, the document may be so filed by depositing it in the office of the Registry in Ottawa or in one of the local offices; ... A document may be deposited in any of the aforesaid offices by being sent there by mail, but shall in no case be regarded as having been deposited until it physically reaches the office. [emphasis added]

     Rule 201 of the Federal Court Rules is also illustrative as to "filing" of documents:

201. (1) There shall be maintained, in respect of every proceeding in the Court, a file (hereinafter referred to as the "court file") on which shall be kept duly stamped to show the date and time of filing or receipt - bound permanently in the order in which they were filed or received ... [emphasis added]

     Nor is the argument of the plaintiff supported by the jurisprudence of this Court. Rule 202(1) was interpreted in R. v. Fredericton Housing¹ in which this Court held that a document is not filed until duly stamped by a clerk of the Registry. The issue as to whether intention to appeal, as indicated by the date of mailing, is sufficient to constitute proper "filing" or whether physical receipt of the document by the Registry is required was addressed in Sharma v. M.N.R..² In that case, addressing the plaintiff's argument that filing her statement of claim with the respondent Minister rather than in the Registry was sufficient to constitute "filing" within the meaning of the Act (and thereby qualifying within the ninety day time limit under s.135), I stated:

...The plaintiff did not file the statement of claim to initiate her appeal of the Minister's decision within the time limited by statute. Under the Act, ss.135(2) provides that the Federal Court Act and the Federal Court Rules applicable to ordinary actions shall apply to actions initiated to appeal the Minister's decision. Rule 400 provides that "an action shall be commenced by filing an originating document, which may be called a statement of claim or a declaration" and under Rule 2(1) "file" is defined as meaning "file in the Registry" of the Court. That occurred in this case when the plaintiff's statement of claim was filed in the Registry on September 29, 1993. The intention to file the appeal within the time limited, as may appear from the filing of a copy of the statement of claim with Revenue Canada Excise in Hamilton on September 17, did not constitute initiation of the appeal nor did the letter dated September 21, 1993 but received only on September 29. Only filing of the Statement of Claim in the Court's registry institutes an appeal. That was done only on September 29, more than a week after the time limited for appealing the matter had elapsed.

     [emphasis added]

     I reject the argument of the plaintiff that his statement of claim was "filed" on January 24, 1997, the date the document was sent by registered mail to the Registry of the Court. In this case, the statement of claim was not "filed" until it was received in the Registry on January 30, 1997.

ii)      When Was Notice of the Minister's Decision Received?

     The plaintiff also raises as an issue the effective date of notice of the decision of the Minister. In particular, the plaintiff submits that pursuant to s-s.131(2), notice is to be served on the "person who requested" the decision, and in this case the plaintiff corporation is named properly as "928412 Ontario Limited". The notice of the Minister's decision is said to have been improperly addressed, to "Satellite Supply Division" to the attention of David Woodall. As a result of this error, the plaintiff submits that notice was not effective until it received actual notice of the decision on November 4, 1996. Accordingly the plaintiff submits, it is on this date, the date of actual receipt, and not the date of mailing, that the limitation period specified in s.135(1) commences.

     Having read the evidence, in particular the affidavits of Mr. Thompson and Ms. Phelan, I am not satisfied that the addressee to whom the Minister's decision was sent by registered mail on October 30, 1996 was in error. The evidence indicates that the original Notice of Ascertained Forfeiture dated May 25, 1994 was served on Mr. David Woodall of "Satellite Supply Division (928412 Ont. Ltd.)". The decision of the Minister dated October 29, 1996, as well as the correspondence of counsel for the plaintiff in the period before that October date refer to the plaintiff as "Satellite Supply Division (928412 Ont. Ltd.)".

     The plaintiff's claim appears to be that the Minister's decision was improperly addressed, by reason of the omission, from the description of the addressee, of the formal name of the plaintiff corporation, "928412 Ontario Limited". I am not so persuaded. Here the addressee's name used was that under which the plaintiff carries on business and which had, in previous correspondence, been used in part by it for identifying itself for the purpose of requesting and receiving notice from the Minister. There is no evidence that the registered mail containing the Minister's decision did not reach the plaintiff as intended, or that there was any real confusion as to whom the intended addressee was. Nor does the evidence support the plaintiff's submission that the defendant failed to serve notice of the Minister's decision on the "person who requested it" pursuant to s-s.130(1) of the Act.

     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 sections 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.

     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.

     On the basis of the above, I have concluded that the initiation of these proceedings, commenced by statement of claim filed in the Court on January 30, 1997, was not within the ninety day limitation period provided by s-s. 135(1) of the Customs Act, and therefore this Court is without jurisdiction to consider the plaintiff's claim. Moreover, this Court does not have jurisdiction to extend the limitation period fixed by Parliament.³

     Accordingly an Order issues granting leave to the defendant pursuant to Rule 401 of the Federal Court Rules, and allowing the application to strike out the statement of claim.

     ____________________________________

     JUDGE

OTTAWA, Ontario

May 6, 1997.

__________________

     ¹      [1973] F.C. 196 (T.D.) appeal dismissed without discussion on this point [1973], F.C. 681 (C.A.).

     ²      (1994), 74 F.T.R. 312 at 315-316.

     ³      See Dawe v. Canada (1994), 174 N.R. 1 (F.C.A.).