Date: 20101207
Docket: T-823-08
Citation: 2010 FC 1234
Ottawa,
Ontario, December 7, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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DEREK PRUE
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Plaintiff
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and
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THE MINISTER OF PUBLIC SAFETYAND
EMERGENCY PREPAREDNESS
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Defendant
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is a simplified action pursuant to section 135 of the Customs Act, R.S., 1985, c. 1 (2nd
Supp.)
(“Customs Act”), in which the plaintiff, Derek Prue, appeals a decision
by the Minister of Public Safety and Emergency Preparedness (“the Minister”) to
uphold a notice of ascertained forfeiture requiring payment of a penalty in the
amount of $18, 178.61 plus accrued interest relating to the importation of a
Ford Expedition vehicle from the United Sates of America.
[2]
The
Act provides that a person who wishes to appeal such a decision may bring an
action in the Federal Court. The parties filed an Agreed Statement of Facts for
trial purposes. Mr. Prue provided affidavit evidence and was cross-examined at
the trial hearing in accordance with the simplified action procedure set out in
Rules 292-299 of the Federal Courts Rules, SOR/98-106, as amended.
BACKGROUND:
[3]
On
or about January 22, 2001, the plaintiff entered Canada driving a
Ford Expedition motor vehicle. The Expedition was leased by himself from the
Ford Motor Company through a dealership in Texas. Mr. Prue
did not report the vehicle to Canadian customs officers when he reached the
border.
[4]
On
or about October 22, 2001, a member of the Royal Canadian Mounted Police (RCMP)
on traffic patrol stopped the plaintiff in the Expedition on a highway. The
Ford bore an Alberta license
plate that belonged to Mr. Prue’s father’s vehicle. Mr. Prue says that the Texas plate issued
for the vehicle had been stolen and that he had borrowed his father’s plate. The
theft of the Texas plate had
not been reported to the police. The RCMP charged the plaintiff with operating
an uninsured motor vehicle on a highway, failing to produce a license upon demand,
operating an unregistered motor vehicle, and operating a motor vehicle with an
unauthorized license plate.
[5]
The
vehicle was seized by the RCMP and removed by a towing company. Due to an
error, and without authorization, the towing company returned the Expedition to
the plaintiff.
Mr. Prue says he became aware the following month that the Ford Motor Credit
Company was attempting to locate the Expedition to have it returned to the US. He says
that he took the truck to the nearest Ford dealership in Edmonton, Alberta and
voluntarily surrendered it. The defendant suggests that the vehicle was seized
by the credit company. There is no dispute between the parties that it was
returned to the leasing agency in the State of Texas.
[6]
In
February, 2002 Mr. Prue pleaded guilty and was convicted of operating an
uninsured motor vehicle on a highway and operating an unregistered motor
vehicle with an unauthorized license plate. He received approximately $2,
600.00 in fines.
[7]
On
May 8, 2002, and pursuant to section 124 of the Customs Act, the
plaintiff was personally served with a copy of a notice of ascertained
forfeiture (“forfeiture notice”). The notice alleged that “the goods [i.e.,
the Ford Expedition] were unlawfully imported into Canada and the
payment of duties lawfully payable was not made in contravention of Sec 12, 17,
and 32 of the Customs Act”.
[8]
Less
than a month later, on June 5, 2002, and pursuant to sections 129(d) and 131 of
the Customs Act, Mr. Prue filed a notice of appeal to the forfeiture
notice requesting a decision of the Minister. He stated that the vehicle in
question was not brought into Canada with the intention of keeping it in the
country. He claimed that at the time he drove into Canada with the Ford
Expedition he was working as a hockey coach in the US, had a
residence in the state of Texas and had no reason, at the time, to believe he
would not be returning to the US with the vehicle. The vehicle, he stated,
was never in Canada for a period
longer than six months. Between the entry into Canada and the seizure,
he had returned to the US for a month.
[9]
A
few days after Mr. Prue’s appeal notice was received by the RCMP Customs and
Excise Section, a copy was faxed to the Customs Collections office in Calgary, Alberta.
However, the fax was misplaced and the appeal notice was not brought to the
attention of the Recourse Directorate of the Canada Border Services Agency
(“CBSA”) until December 9, 2005, more than three years later.
[10]
On
December 13, 2005 the Recourse Directorate mailed the plaintiff a letter
acknowledging receipt of his appeal to an address (the “notification address”)
in Stony
Plain,
Alberta. Six days
later, on December 19, 2005, CBSA sent another letter by registered mail to the
notification address providing the reasons for the notice of ascertained
forfeiture and affording the plaintiff 30 days to provide any additional
information or documentation in relation to his appeal. That letter was
returned by Canada Post marked “unclaimed”. The letter was re-sent by regular
mail on January 20, 2006 to the same address. Mr. Prue lived at the
notification address sporadically from 2005 to 2007. He owned the home located
at that address from when it was built in 2005 until it was sold in 2007.
[11]
On
January 24, 2007 the Minister’s delegate sent a letter addressed to the
plaintiff at the notification address informing him of the dismissal of his
appeal. In the Agreed Statement of Facts, the parties have included excerpts of
that letter. They read as follows:
After considering all of the
circumstances, I have decided, under the provisions of section 131 of the Customs
Act, there has been a contravention of the Customs Act or the
Regulations in respect of the notice that was served, pursuant to section 124.
…
The evidence submitted by the
issuing office established that the vehicle is of foreign origin and was not
properly reported to Customs and duty paid as required. Therefore, a
contravention of section 12 of the Customs Act did, in fact, occur.
The evidence indicates that,
on October 22, 2001, you were stopped by the R.C.M Police (RCMP). You were
driving a Texas-registered vehicle bearing an Alberta license plate that belonged to another
vehicle. You were unable to satisfy the RCMP that the vehicle was lawfully
imported. In addition, a further investigation revealed that, although you
claimed that you used an Alberta licence plate because the Texas licence plate had been stolen, this
theft was never reported to the police. On this basis, the evidence would
indicate that you unlawfully imported the vehicle into Canada. By placing an Alberta licence plate on it, you attempted to
conceal its true identity. Although the RCMP initially seized the vehicle, you
were able to regain possession of it and unlawfully disposed of it by returning
it to Ford. Therefore, it was considered appropriate to issue an ascertained
forfeiture, as the vehicle is no longer available for seizure. The penalty at
the second level as assessed by the RCMP and the value assessed based on the
lease agreement value were considerate [sic] appropriate in determining the
penalty.
[12]
The
decision letter was returned to CBSA because Mr. Prue was not resident at the
notification address. In or about January, 2008 Mr. Prue says that he became
aware of a “Customs charge” against him in relation to the vehicle. The
plaintiff says he wrote a letter to the Canada Customs and Revenue Agency at
that time authorizing them to discuss the matter with his counsel. After being
contacted by his representative, on February 29, 2008, CBSA sent another copy
of the decision letter to Mr. Prue at an address in Alberta Beach, Alberta. In March,
2008 his counsel received copies of the correspondence mailed in 2005 and 2007.
[13]
The
plaintiff asserts that from June 5, 2002 until January, 2008, when he became
aware of the outstanding Customs charge, he received no correspondence or
notice relating to the vehicle, to the notice of ascertained forfeiture or to
his notice of appeal. He states that from the time he filed his notice of
appeal on June 6, 2002 until March 5, 2008, he had not received any notice of
the Ministerial Decision nor was he made aware of it at any time prior to March
5, 2008.
[14]
On
cross-examination at trial, Mr. Prue acknowledged that in his Canadian personal
income tax returns for the 2000 to 2002 taxation years he had not declared that
he had ceased to be a resident of Canada and had listed his province of
residence as Alberta. His
explanation was that he went back and forth across the border, the returns had
been prepared by his accountant and he didn’t recall ever discussing the
question of residence. He filed in Canada in respect of the
income earned in this country and in the US on his
earnings there.
[15]
The
amount which the Minister seeks to recover from the plaintiff through the
notice of ascertained forfeiture is the assessed value of the vehicle at the
time of the notice plus interest accrued from that date; that is from May 8,
2002.
ISSUES:
[16]
The
issues to be determined are the following:
a. Whether the defendant failed
to comply with subsection 131(1) of the Customs Act?
b. Whether the defendant breached
the rules of procedural fairness or natural justice as a result of any delay on
the part of the defendant in rendering his decision on the appeal of the notice
of ascertained forfeiture?
c. If (a) or (b) are answered in
the affirmative, whether the plaintiff was actually prejudiced and rendered
unable to defend himself against the notice of ascertained forfeiture by any
delay on the part of the defendant in rendering his decision?
d. Alternatively, whether the
defendant’s determination that the plaintiff contravened section 12 of the Customs
Act was reasonable?
ARGUMENT & ANALYSIS:
[17]
As
outlined by Justice Morris Fish in Martineau v. Canada (Minister of
National Revenue – M.N.R.), 2004 SCC 81 at paras. 41-44, ascertained
forfeitures under the Customs Act involve a four-step administrative
process:
41 First, under s.
124 of the CA [Customs Act], a customs officer must have
reasonable grounds to believe that a provision of the CA has been
contravened. Once this precondition has been met, and once it has been
established that it would be difficult to seize the goods and conveyances
related to the customs offence, the officer may demand that the offender pay an
amount of money equal to the value of the goods.
42 Second, the
person to whom a notice of ascertained forfeiture applies has 90 days to ask
the Minister to review the customs officer's decision (s. 129(1)(d) of
the CA). The Minister then serves notice of the reasons in support of
the imposed sanction (s. 130(1) of the CA). Within 30 days after notice
of the reasons is served, the alleged offender may make submissions and give
evidence, in writing, to the Minister (ss. 130(2) and 130(3) of the CA).
43 Third, the
Minister decides whether the ascertained forfeiture is valid (s. 131 of the CA).
This decision "is not subject to review or to be ... otherwise dealt with
except to the extent and in the manner provided by subsection 135(1)" (s.
131(3) of the CA).
44 Fourth, and finally,
the person who requested the Minister's decision may, within 90 days after
being notified of the decision, appeal by way of an action in the Federal Court
(s. 135(1) of the CA).
[18]
The
plaintiff submits that the Minister’s decision that the Ford Expedition was
imported unlawfully and in contravention of section 12 of the Customs Act is
incorrect in law because the plaintiff never owned the vehicle in question and
never had the intention to import it into Canada. Rather, it
was leased from, and ultimately returned to, the Ford Motor Company in the United
States.
The vehicle was only temporarily in Canada at a time when he maintained a
residence and was employed as a hockey coach in the United States.
[19]
The
plaintiff argues that subsequent to requesting the Minister’s Decision under
section 131 of the Act he was not served with written notice of the
reasons for seizure, as required by section 130(1) of the Customs Act.
Thus, he asserts that he was not provided with the statutorily granted right to
furnish additional evidence to the defendant in a timely manner to oppose the
claims made in the forfeiture notice. As a result of the lengthy delay that
followed his request, he has been unable to refute the allegations made against
him due to the loss of important evidence. This resulted in a breach of the
statutory and common law duty of procedural fairness owed by the defendant to
the plaintiff.
[20]
The
defendant submits that ownership of the vehicle at the time of importation is
immaterial. Section 12(1) of the Act requires the reporting of all goods
imported into Canada even if the
goods are not owned by the person importing them. This section is consistent
with the general scheme of the Customs Act to ensure that Customs can
control the entry of goods into Canada and determine whether such goods are
subject to duties: Sarji v. Minister of National Revenue (1999), 174
F.T.R. 1 at para. 40, citing R. v. Walker (1980) 51 C.C.C. (2d) 423, 4 W.C.B.
246 at para. 10.
[21]
In
so far as notice is required, the defendant submits, service of the notice
required by sections 130 or 131 of the Customs Act is sufficient if sent
by registered mail to the person’s latest known address, as set out in s.137 of
the Act. Further, the defendant submits, delay does not constitute a
ground for setting aside a decision on the basis of procedural fairness unless
it caused significant prejudice to the plaintiff’s ability to provide full
answer and defence to the administrative action: Blencoe v. British
Columbia, 2000 SCC 44, [2000] 2 S.C.R. 307 at paras. 101 and 102; Côté
v. Désormeaux (1990), 49 Admin. L.R. 226, [1990] R.J.Q. 2476 at para. 59; Marsh
v. Royal Canadian Mountain Police Commissioner, 2006 FC 1466, 305 F.T.R.
303 at para. 27.
[22]
The
defendant also asserts that time limits for ministerial action under
legislation, like the Customs Act, are directory in nature rather than
mandatory. If there is any remedy to be provided for breach of procedural
fairness in this context, it is to compel timely action through mandamus. The
plaintiff never sought the Court’s assistance to receive the Minister’s
decision during the delay period which he could have done through an
application for a mandamus order. The plaintiff says that as he had heard
nothing further, it was not unreasonable for him to assume that the Minister
had decided in his favour.
Did the
defendant fail to comply with subsection 131(1) of the Customs Act?
[23]
Subsection
131 (1) requires that the Minister must, as soon as is reasonably possible
having regard to the circumstances, consider and weigh the circumstances of the
case and decide whether the Act or the regulations were contravened in the case
of a conveyance with respect to which a notice was served under s. 124. There
are two aspects to this requirement: a) the making of a decision that there was
a contravention; and b) the decision must be made in a reasonably timely
manner.
[24]
It
is clear from the evidence that the Minister did make a decision. The letter
dated December 19, 2005 contains the decision together with written reasons
concerning the enforcement action of May 8, 2002. The letter explains why the
enforcement action was taken, outlines CBSA’s position vis-à-vis the
plaintiff’s unlawful possession of the vehicle in Canada and includes
a plain-language explanation of the relevant portions of the Customs Act
which led the officer to serve the forfeiture notice in the first place. The
letter also attaches a copy of the enforcement agency’s Narrative Report to be
used by Mr. Prue in responding to the allegations.
[25]
The
question of timeliness requires some interpretation of the statute. Here there
was a three and a half year delay between the submission of the request for a
decision and the making of the decision. It is true that the decision was made
rapidly once the request came to light. A further delay was incurred in
notifying the plaintiff of the decision but that is attributable, at least in
part, to the plaintiff’s peripatetic lifestyle and failure to inform the
defendant of his current addresses as they changed.
[26]
In
support of the contention that s. 131 (1) is not mandatory in nature but rather,
is directory, the defendant relies on Ha v. Minister of Public Safety and
Emergency Preparedness, 2006 FC 594, 292 F.T.R. 287 at paras. 18-21. Ha concerned
the time stipulated for a ministerial decision under section 27(1) of the Proceeds
of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17. In Ha,
Justice Barnes distinguished 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”. He stated that 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”.
[27]
The
object and purpose of the Proceeds of Crime (Money Laundering) and Terrorism
Financing Act are different from those of the Customs Act. Such
differences make it difficult to rely on Ha for the proposition that the
language used in 131 of the Customs Act is merely directory. But even if
Ha was to apply by analogy and this Court were to accept that 131(1) is
intended to be directory, it cannot be said that a Minister’s 3.5 year delay to
respond to a request for a decision is consistent with a statutory direction to
“move forward with some degree of dispatch”. No action was taken in this matter
until the misplaced facsimile copy of Mr. Prue’s appeal was discovered in the
defendant’s offices.
[28]
In
considering whether the delay was reasonable, it is helpful to draw on the
jurisprudence of the Supreme Court of Canada in Blencoe, above. Justice
LeBel’s partial dissent in that case, at paragraph 160, outlines three factors
that should be taken into account when assessing the reasonableness of an
administrative delay:
a. the time taken compared to the
inherent time requirements of the matter before the particular administrative
body, which
would encompass legal complexities (including the presence of any especially
complex systemic issues) and factual complexities (including the need to gather
large amounts of information or technical data), as well as reasonable periods
of time for procedural safeguards that protect parties or the public;
b. the causes of delay beyond the
inherent time requirements of the matter, which would include consideration of
such elements as whether the affected individual contributed to or waived parts
of the delay and whether the administrative body used as efficiently as
possible those resources it had available; and
c. the impact of the delay,
considered as encompassing both prejudice in an evidentiary sense and other
harms to the lives of real people impacted by the ongoing delay. This may also include a
consideration of the efforts by various parties to minimize negative impacts by
providing information or interim solutions. (Emphasis added)
[29]
These
factors were recently applied by this Court: Pacific Pants Co. v. (Minister
of Public Safety and Emergency Preparedness), 2008 FC 1050, 335 F.T.R. 114
at para. 50; Canada (Minister of Citizenship and Immigration)
v. Parekh,
2010 FC 692 at para. 28 and ff.
(a) The time taken compared to
the inherent time requirements of the matter before the particular
administrative body
[30]
In
considering under this heading whether there were any legal or factual
complexities that would justify a delay of 3.5 years before communicating an
official decision, it cannot be said that the delay was necessary due to any
inherent time requirements. The facts of the matter, although disputed, are
fairly clear that the Minister was in a position, based on the information the
agency had as of 2002, to make the determination that was finally issued on
December 19, 2005.
(b) the causes of delay beyond
the inherent time requirements of the matter
[31]
As
the decision letter acknowledged in para. 2, the reason for the delay was
because the “letter of appeal was misplaced”. It was the responsibility of the
Minister to respond in a timely fashion. There is no evidence to suggest that
the plaintiff contributed or waived any part of the delay.
(c) the impact of the delay,
considered as encompassing both prejudice in an evidentiary sense and other
harms to the lives of real people impacted by the ongoing delay
[32]
Mr.
Prue did not take any steps to follow-up or inquire with the Minister as to the
decision taken after he made his initial request. The question of prejudice
will be discussed further below.
[33]
On
the evidence, I am satisfied that the defendant failed to comply with section
131(1) of the Customs Act, namely to provide reasons “as soon as is
reasonably possible having regard to the circumstances”.
Did the defendant breach
the rules of procedural fairness or natural justice as a result of the delay in
rendering his decision on the appeal?
[34]
The
defendant is correct to assert that delay in itself does not constitute a
ground for setting aside an administrative decision on the basis of procedural
fairness. In order for the Court to grant a remedy, the delay must have been
unreasonable or inordinate, “…unacceptable to the point of being so oppressive
as to taint the proceedings”: Blencoe, above, at para. 101. It
has also been held that as a ground for granting a remedy, delay must prejudice a party’s
ability to provide a full answer or defense to the opposing party’s claims: Marsh, above, at para. 27.
[35]
Whether
the defendant breached the rules of procedural fairness or natural justice as a
result of the delay cannot be answered without considering whether the
plaintiff was actually prejudiced by the delay.
Was the
plaintiff actually prejudiced such that he was unable to defend against the
notice of ascertained forfeiture by the delay on the part of the defendant in
rendering his decision?
[36]
The
plaintiff submits that the Minister’s decision did not reach him until
March 5, 2008. He claims, therefore, that the time between June 5, 2002 and
March 5, 2008 is the period that constitutes an unreasonable delay amounting to
a breach of natural justice. The letter of reasons was sent to the plaintiff on
December 19, 2005 by registered mail. When the letter came back as unclaimed,
the defendant re-sent the letter by regular mail on January 20, 2006. The
letter was sent to the same notification address. The plaintiff lived at the
said address sporadically from 2005 to 2007. The plaintiff also owned the home
until 2007 at which point it was sold. Thus, the plaintiff both owned and spent
at least some time at the notification address during the time period in which
the letter of reasons was mailed.
[37]
Section
137 of the Act stipulates that service of notice of the Minister’s
decision under s. 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: 928412
Ontario Ltd. v. Canada (1997), 130 F.T.R. 168, [1997] 3 C.T.C. 53 at
para. 22; appeal dismissed 234 N.R. 99, 85 A.C.W.S. (3d) 332, application for
leave to appeal dismissed, Dec. 2, 1999, [1999] S.C.C.A. No. 83. In the present
case, the plaintiff submits that there is no evidence that he had provided the
address to which the reasons were sent. But it was his address during the
relevant time-frame even if he was not constantly in residence there.
[38]
In Sayers
v. Canada (Minister of National
Revenue, Excise – M.N.R.) (1994), 87 F.T.R. 216, 50 A.C.W.S. (3d) 1119, one issue was
whether the defendant Minister had properly served the plaintiffs with notice
to their correct address. Prothonotary Hargrave found, at paragraph 24, that
the defendant mistakenly sent the notice to an incorrect address and that it
was within the defendant’s power to send the Minister’s decision to the proper
address. Conversely, in the case at bar, the letter of reasons was sent to the
correct address but during a period when the plaintiff was only sporadically
residing there. It was within the plaintiff’s capacity to have made adequate
provisions to have his mail forwarded.
[39]
Thus,
the period of delay which may have caused the plaintiff prejudice is not from
June 5, 2002 until March 5, 2008 as the plaintiff contends. It is from June 5,
2002 until the second letter of reasons was mailed to him on January 20, 2006.
[40]
The
plaintiff asserts that he could not properly respond to the notice of the
Minister’s decision by furnishing evidence as contemplated by subsection 130
(2) because of the delay. He submits that it would have been easier for him in
2002 or 2003 to supply affidavit evidence of his residency status in the US to support
the contention that he had no intention to import the vehicle when he brought
it across the border. This amounts to little more than a claim that he would
have had a better recollection of his comings and goings across the border at
that time and could possibly have found some witnesses or documents to support
his appeal. But, as he acknowledged on cross-examination, Mr. Prue declared on
his Canadian tax returns that he was resident in Canada during the
2001 and 2002 tax years. Thus his Texas residence may be considered
temporary and non-domiciliary.
[41]
Were
it only for the alleged difficulty in reconstructing his movements several
years later, I would have difficulty finding that the plaintiff was prejudiced by
the Minister’s delay. However, the delay clearly worked to his disadvantage in
that interest on the assessed value of the vehicle began to run from the date
of the ascertained forfeiture, as counsel for the Minister conceded during the
hearing. Counsel was unable to tell me what the total amount outstanding was
now.
[42]
It
is correct, as the defendant submits, that the question of quantum is not
before this Court and that the plaintiff’s remedy against the amount of the
penalty assessed against him was to bring an application for judicial review of
that decision which he did not do. While I am unable to assess what the quantum
of penalty and interest should be, I believe that the Court is entitled to take
that factor into consideration in determining whether the plaintiff has been
prejudiced. Accordingly, I find that the plaintiff has been prejudiced by the
Minister’s failure to consider his appeal in a timely manner during a period in
which interest on the assessed value of the vehicle was accruing.
Was the defendant’s
determination that the plaintiff contravened section 12 of the Customs Act
reasonable?
[43]
Section
12 of the Customs Act imposes the obligation to report all goods being
imported into Canada. There are
certain exceptions but in general, this is the rule. The duty to report is part
of the overarching framework of the legislative scheme to enable Customs to
control the entry of goods into Canada and to determine
whether such goods are subject to duties. As Justice Russell stated at
paragraph 50 in Leasak v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 1397, 304 F.T.R. 78:
It is well-settled that an
importer is liable for failing to meet his obligation to account for goods and
that the lack of intention on the part of the importer to evade duties and
taxes is irrelevant in a seizure proceeding and the validity of a seizure.
[44]
The
evidence indicates that the plaintiff was maintaining two residences at the
time he brought the vehicle into the country, one in Texas and another
in Alberta. As counsel
for the Minister conceded at the hearing, it is likely that had the plaintiff
declared his intention to bring the vehicle into Canada for only a temporary
period he likely would have been waived through with little difficulty. But the
plaintiff did not do that. He kept the vehicle in Canada for several months
during which he made no attempt to declare it, and, when stopped by the RCMP,
was operating the vehicle with an Alberta license plate. The
plaintiff’s explanation that the Texas plate had been stolen
is plausible but suspect. The use of the borrowed plate suggests an intent to
pass the vehicle off as properly registered in Canada. In those
circumstances, notwithstanding the plaintiff’s plan to return the vehicle to
the lessor in Texas, it was not
unreasonable for the defendant to find that the plaintiff breached section 12
of the Customs Act.
Conclusion
[45]
It
is apparent that both parties involved in this matter have not diligently observed
their responsibilities. Mr. Prue was obliged to declare the vehicle on bringing
it into Canada which he
failed to do. In other circumstances, I would have had little difficulty in
finding that the seizure and forfeiture of the vehicle or the forfeiture of its
assessed value was warranted.
[46]
But
Mr. Prue was entitled pursuant to s. 131(1) of the Customs Act, to
receive reasons for the Minister’s decision on his appeal of the forfeiture
within a time period that is “reasonably possible having regard to the
circumstances”. That did not happen due to an error on the part of the
Minister’s officials in misplacing the plaintiff’s request for a decision. This
caused a three and a half-year delay in providing the plaintiff with reasons
for the notice of ascertained forfeiture.
[47]
There
are no circumstances in this case which justify a delay of three and a half years
in making a decision and providing reasons to Mr. Prue. I find that there was a
failure to comply with s. 131(1), that Mr. Prue was prejudiced by that failure
and was denied natural justice. Consequently, I find in his favour.
[48]
In
the particular circumstances of this case, I will not award costs to Mr. Prue
despite his success in the outcome. As I have found above, the ascertained
forfeiture was reasonable. But for the error on the part of the Minister to
consider his request to review the forfeiture in a timely manner, Mr. Prue
would have been liable for that amount.
JUDGMENT
THIS COURT’S JUDGMENT
IS THAT:
1. the
plaintiff’s appeal is granted;
2. the decision
by the Minister of Public Safety and Emergency Preparedness to uphold a notice
of ascertained forfeiture requiring payment of a penalty in the amount of $18,
178.61 plus accrued interest is quashed; and
3. the parties
shall bear their own costs.
“Richard G. Mosley”
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