Date:
20120801
Docket:
T-1520-11
Citation:
2012 FC 966
Vancouver, British Columbia,
August 1, 2012
PRESENT: The
Honourable Madam Justice Mactavish
SIMPLIFIED ACTION
BETWEEN:
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THE SOURCE ENTERPRISES LTD.
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Plaintiff
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and
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MINISTER OF PUBLIC SAFETY &
EMERGENCY PREPAREDNESS and MINISTER OF NATIONAL REVENUE
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Defendants
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Minister of Public Safety and Emergency Preparedness (now the Minister of
Public Safety Canada) and the Minister of National Revenue have brought a
motion seeking the removal of this action from the operation of the rules
governing simplified actions and for summary judgment dismissing this action.
[2]
The
Defendants assert that the claim does not disclose a reasonable cause of action
against the Minister of National Revenue. Insofar as the claim against the
Minister of Public Safety and Emergency Preparedness is concerned, the
Defendants submit that the claim was commenced outside of the 90-day limitation
period provided for in section 106(1) of the Customs Act, R.S.C., 1985,
c. 1 (2nd Supp.), with the result that it is statute-barred.
[3]
For
the reasons that follow, I have concluded that the relief sought by the
Defendants should be granted.
Background
[4]
I
note that the Plaintiff chose not to file any evidence on this motion. The
contents of the following two paragraphs are taken from the Statement of Claim,
and are intended only to provide context for the discussion that follows. The
remaining facts are taken from the affidavit of Michelle Beaulieu, a
Superintendent at the Canada Border Services Agency [CBSA] which was filed by
the Defendants in support of their motion for summary judgment.
[5]
According
to the Statement of Claim, “The Source Enterprises Ltd.” carries on business in
Vancouver. The company imports items from the United Kingdom such as antique
furniture, books, bric-à -brac, stained glass, and products related to the game
of darts.
[6]
The
Statement of Claim pleads that in July of 2009, the Directors of the Plaintiff,
Frank and Lorraine
Shorrock, packed a 40-foot container of merchandise to be shipped to Canada from the
United Kingdom.
[7]
The
uncontroverted evidence of the Defendants’ affiant is that the container
arrived at the Montreal Gateway Terminal on September 10, 2009. On
September 17 and 18, 2009, CBSA officers performed an examination of the
container and the goods contained therein in order to verify compliance with
the Customs Act. Upon completion of the inspection, the container and
the goods were released for transportation to Vancouver.
[8]
Although
no evidence has been produced in this regard by the Plaintiff, its Statement of
Claim alleges that upon the arrival of the container in Vancouver, it was
discovered that some of the goods were damaged. The Plaintiff seeks damages in
the amount of $9,538.95 in this regard.
[9]
The
Defendants have produced a letter signed by Mrs. Shorrock dated December 3,
2009 addressed to “Canada Border Services ‘Program Services’”. In her letter,
Mrs. Shorrock states “We received a 40’ container from the U.K. which was inspected by Canada Customs in Montreal. On receipt of the container I spoke (October
5/09) to Jacquie, Superintendent at your office to advise of the damage and
broken glass in this container, and invited her to view the damage …”
[10]
Based
upon this correspondence, and in the absence of any contrary evidence from the
Plaintiff, I find as a fact that the Plaintiff was aware of the damage to its
goods by October 5, 2009 at the latest. I would also note that I do not
understand the Plaintiff to dispute this fact.
[11]
This
action was commenced as a simplified action by way of a Statement of Claim
issued on September 20, 2011, more than 23 months after the Plaintiff
became aware of the damage to its goods.
[12]
By
Order of
Prothonotary Lafrenière dated October 7, 2011, leave was granted under Rule 120
of the Federal
Courts Rules, S.O.R./98-106
for Mr. Shorrock to represent the Plaintiff in this proceeding.
[13]
The Defendants
acknowledge that in accordance with the provisions of Rule 297 of the Federal
Courts Rules, summary
judgment is not ordinarily available in simplified actions. They submit,
however, that this
action should be removed from the ambit of the rules governing simplified
actions, and summary judgment should be granted as there is no genuine issue
for trial. According to the Defendants, there is no cause of action against one
Defendant and the claim is statue-barred as against the other.
General
Principles Governing Summary Judgment
[14]
As
the Supreme Court of Canada observed in Canada (Attorney General) v.
Lameman,
2008 SCC 14, at paragraph 10, the summary judgment process
serves an important purpose in the civil litigation system, as it prevents
claims or defences that have no chance of success from proceeding to trial.
That said, while being able to weed out such cases at an early stage can save
scarce judicial resources, justice requires that claims involving real issues
be allowed to proceed to trial.
[15]
Summary
judgment in the Federal Court is governed, in part, by Rule 215(1) of the Federal
Courts Rules. This Rule provides that “If on a motion for summary judgment the Court is
satisfied that there is no genuine issue for trial with respect to a claim or
defence, the Court shall grant summary judgment accordingly”.
[16]
Also
relevant to this matter is Rule 214, which provides that “A response to a
motion for summary judgment shall not rely on what might be adduced as evidence
at a later stage in the proceedings. It must set out specific facts and adduce
the evidence showing that there is a genuine issue for trial”.
[17]
Although
the burden lies with the moving party to establish that there is no genuine
issue for trial, Rule 214 requires that the party responding to the motion for
summary judgment “put his best foot forward”: see MacNeil Estate v. Canada
(Indian and Northern Affairs Department), [2004] F.C.J. No. 201, 2004 FCA
50, at para. 37.
[18]
This
requires a responding party to “lead trump or risk losing”: see Kirkbi AG v.
Ritvik Holdings Inc. [1998] F.C.J. No. 912, at para. 18, quoting Horton
v. Tim Donut Ltd. (1997), 75 C.P.R. (3d) 451 at 463 (Ont. Ct.
(Gen.Div.)), aff'd (1997), 75 C.P.R. (3d) 467 (Ont. C.A.).
[19]
Judges
hearing motions for summary judgment can only make findings of fact or law
where the relevant evidence is available on the record, and does not involve a
serious question of fact or law which turns on the drawing of inferences: see Apotex
Inc. v. Merck & Co., [2002] F.C.J. No. 811, 2002 FCA 210.
[20]
Ultimately,
the test is not whether a plaintiff cannot succeed at trial, but whether the
case is so doubtful that it does not deserve consideration by the trier of fact
at a future trial: see Ulextra Inc. v. Pronto Luce Inc. [2004] F.C.J.
No. 722, 2004 FC 590.
[21]
In
making this determination, a motions judge must proceed with care, as the effect
of the granting of summary judgment will be to preclude a party from presenting
any evidence at trial with respect to the issue in dispute. In other words, the
unsuccessful responding party will lose its “day in court”: see Apotex Inc.
v. Merck & Co., 2004 FC 314, 248 F.T.R. 82, at para. 12, aff’d 2004 FCA
298.
[22]
With
this understanding of the relevant principles governing motions for summary
judgment, I turn now to consider the merits of the motion as it relates to each
Defendant.
The
Claim against the Minister of National Revenue
[23]
Although
the Minister of National Revenue is named in the style of cause as a Defendant
in this action, the Statement of Claim makes no other specific reference to
this Defendant.
[24]
It
is alleged in the first paragraph of the Statement of Claim that the goods in
question were damaged “while in the care of the defendant”, “defendant”
being referred to in the singular. Throughout the claim, reference is made to a
singular defendant, and whenever reference is made in the Statement of
Claim to a named defendant, the reference is to “Canada Customs”, “Border
Services”, “Canada Borders Services”, and/or “Border Service Agency”.
[25]
The
Plaintiff did not file a memorandum of fact and law in response to the
Defendants’ motion, nor did it produce any evidence to support its case. I did,
however, allow Mr. Shorrock to make oral submissions at the hearing of the
motion. All of his submissions related to the alleged liability of the Canada Border
Services Agency, an organization that falls within the mandate of the Minister
of Public Safety Canada. The
Plaintiff did not make any submissions with respect to the claim against the
Minister of National Revenue.
[26]
I
understand the Plaintiff’s claim to relate to damages allegedly
caused to the Plaintiff’s goods as a result of the negligence of officers of
the Canada
Border
Services Agency performing duties under the Customs Act. Such a claim
does not give rise to a cause of action against the Minister of National
Revenue.
Section
106(1) of the Customs Act
[27]
To
the extent that the Plaintiff’s claim is against the Minister of Public Safety and
Emergency Preparedness for the actions of officers of the Canada Border
Services Agency, these actions are governed by the provisions of the Customs
Act.
[28]
Section
106(1) of the Customs Act provides that:
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106.
(1) No action or judicial proceeding shall be commenced against an officer
for anything done in the performance of his duties under this or any other
Act of Parliament or a person called on to assist an officer in the
performance of such duties more than three months after the time when the
cause of action or the subject-matter of the proceeding arose. [emphasis
added]
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106. (1) Les actions contre l’agent, pour tout acte accompli
dans l’exercice des fonctions que lui confère la présente loi ou toute autre
loi fédérale, ou contre une personne requise de l’assister dans l’exercice de
ces fonctions, se prescrivent par trois mois à compter du fait générateur
du litige. [je souligne]
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[29]
The
Federal Court of Appeal has already determined that a claim for damages arising
out of acts or omissions of customs officers done in the performance of their
duties, must be commenced within three months of the cause of action having
arisen: Ingredia
S.A. v. Produits Laitiers Advidia Inc., [2010] FCA 176, [2010] F.C.J.
No. 893 at para. 33.
[30]
The
Federal Court of Appeal further determined that the Crown is entitled to invoke
subsection 106(1) as a defence to such a claim: Ingredia S.A. at
para. 35.
[31]
I
have previously found that the Plaintiff was aware of the damage to
its goods
by
October 5, 2009, at the latest. This is when its cause of action against
the Minister of Public Safety and Emergency Preparedness arose: see George
Oriental Carpet Warehouse v. Canada, 2011 FC 1291; 399 F.T.R. 296, at para.
14; Ingredia
S.A.,
above at paras. 28-29.
[32]
The
Statement of Claim was issued on September 20, 2011 – more than 23 months after
the Plaintiff became aware of the damage to its goods. As such, the action is
clearly statute-barred.
[33]
In
his oral submissions, Mr. Shorrock made reference to the involvement of a
company by the name of “Lafrance” in this matter. It appears from
correspondence appended to the Beaulieu Affidavit that Groupe Lafrance was a
warehouse operator that transported containers from the Port of Montreal to the Montreal Container Examination Facility for inspection.
[34]
As
I understand Mr. Shorrock’s submission, he alleges that the CBSA retained
Groupe Lafrance to move the container in which the Plaintiff’s goods were
stowed, and that the damage to the Plaintiff’s goods occurred when the
container was in the care of Groupe Lafrance. Mr. Shorrock objected to what he
described as “the coziness” of CBSA’s relationship with Groupe Lafrance,
asserting that the CBSA was negligent for not ensuring that Lafrance did its
job properly.
[35]
I
would start by noting that no evidence was led to show that Groupe Lafrance was
in fact retained by the CBSA or that the damage occurred while the
container was in the care of the company. Documentation appended to the
Beaulieu Affidavit suggests that transportation companies are in fact retained
by Container Examination Facilities: see Exhibit “D” to the affidavit of
Michelle Beaulieu. I would further note that the Statement of Claim asserts
that the damage occurred while the container was in the care of “the
defendant”, not Groupe Lafrance.
[36]
Moreover,
even if the Plaintiff had raised a triable issue as to whether Groupe Lafrance
had been retained by the CBSA and whether it was liable for the actions of
Groupe Lafrance as a result, the Plaintiff’s argument that the CBSA is
responsible for the actions of the company is still based upon the alleged
negligence of CBSA officers in carrying out their duties under the Customs
Act. As a consequence, the limitation period contained in subsection
106(1) of the Customs Act would still be engaged.
Removal of the Action
from the Ambit of the Rules Governing Simplified Actions
[37]
The
purpose of the simplified action rules is to allow for claims worth less that
$50,000 to be dealt with quickly, through a less cumbersome and expensive
process than that associated with traditional civil litigation. To this end,
the Rules limit the ability of parties to bring motions, including motions for
summary judgment.
[38]
The
Court does, however, retain the discretion to remove an action from the
operation of the rules governing simplified actions: see Rule 298(3)(a). This
is an appropriate case for the Court to exercise that discretion.
[39]
The
key facts giving rise to the Defendants’ limitations argument are not in
dispute, and the limitation question is determinative of this action. The
Plaintiff did not even respond to the Defendants’ arguments relating to the
claim against the Minister of National Revenue, and no genuine issue for issue
has been identified in relation to the Defendant.
[40]
In
these circumstances, removing the action from the operation of the simplified
action rules and deciding the summary judgment motion achieves a result that is
consistent with the goal of promoting speedy and cost-effective justice in
smaller claims that underlies the simplified action rules.
Conclusion
[41]
As explained
above, I have found that the
Plaintiff has not demonstrated the existence of a cause of action against the
Minister of National Revenue and its action against the Minister of
Public Safety and Emergency Preparedness is statute-barred. These
findings are determinative of the Plaintiff’s claim, and there is no genuine
issue for trial in this case. Consequently, the Defendants’ motion for summary
judgment is granted and the Plaintiff's action is dismissed, with costs to the
Defendants fixed in the amount of $500.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This action is removed from the
operation of Rules 294 to 299 of the Federal Courts Rules;
2. The Defendants’ motion for summary judgment is
granted and
the Plaintiff's action is dismissed;
3. The Defendants shall
have their costs fixed in the amount of $500.
“Anne Mactavish”
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