Date:
20120802
Docket:
T-845-11
Citation:
2012
FC 963
Ottawa, Ontario,
August 2, 2012
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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BAWO STELLA
AKINWANDE
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Applicant
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and
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MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
In
2009, when Ms Bawo Stella Akinwande arrived at Pearson International Airport, she declared that she had made purchases abroad amounting to $260. On inspection, she
was found to possess some very expensive items – three sets of jewellery,
shoes, cologne, and a handbag. The jewellery was held for appraisal while the
other items were returned to her on payment of the required tariff. The
jewellery was subsequently valued at $121,700. The import duty payable was
$21,419.20.
[2]
Ms
Akinwande asked for a review of the seizure of her jewellery claiming that it
was exempt from import duty. She maintained that one of the jewellery sets was
loaned to her and provided a copy of the rental agreement. She also stated that
the rest of the jewellery had been purchased before she immigrated to Canada from Nigeria, and submitted photographs showing her wearing the jewellery on earlier
occasions in Canada. She provided a receipt showing that her pearls had been
purchased in 1997.
[3]
An
adjudicator concluded that Ms Akinwande’s pearls were not subject to duty and
should be returned to her. However, the rented jewellery was still subject to
duty, even though it was owned by Nigerian jeweller. The adjudicator asked Ms
Akinwande for proof that the remaining jewellery was among her effects at the
time she originally entered Canada, but she could not do so. The adjudicator
recommended to the Minister that the jewellery, other than the pearls, be
subject to duty. The Minister, through a delegate, agreed and concluded that Ms
Akinwande had not complied with the requirements of the Customs Act, RSC
1985, c 1 (2nd Supp) [Act] (provisions cited are set out in an Annex). The
jewellery could be released only on payment of the remaining duty in the amount
of $15,875.20.
[4]
The
Minister subsequently accepted that some of the jewellery could be released
without payment.
[5]
Ms
Akinwande argues that she was treated unfairly, and that the Minister’s
decision was unreasonable. The Minister disputes Ms Akinwande’s submissions and
raises a threshold issue as to whether Ms Akinwande can challenge the substance
of the Minister’s decision at all. The Minister argues that a decision can be
challenged only by way of an action in Federal Court under s 135 of the Act.
This proceeding is not an action; it is an application for judicial review. On
judicial review, Ms Akinwande can only challenge the terms of release of her
seized goods, not the seizure itself (according to s 133(1) of the Act).
[6]
I
agree that Ms Akinwande cannot challenge the decision finding her in
contravention of the Act. Therefore, I can only consider her claim to have been
treated unfairly and cannot address her argument that the Minister’s decision
was unreasonable. In any case, however, I cannot conclude that Ms Akinwande was
treated unfairly. I must, therefore, dismiss this application for judicial
review.
[7]
There
are two issues:
1. Can
Ms Akinwande challenge the Minister’s decision in this application for judicial
review?
2. Was
Ms Akinwande treated unfairly?
II. Issue One – Can Ms
Akinwande challenge the Minister’s decision in this application for judicial
review?
[8]
The
only available relief against a Minister’s finding that a person has
contravened the Act is an appeal by way of an action in the Federal Court (s
135). The only available relief against the terms and conditions for the
release of seized goods, including the payment of duty, is an application for
judicial review in the Federal Court: Jacques Germain – Arts Ethnographiques
Inc v Canada (Attorney General), 2011 FC 539, at paras 9-12; United
Parcel Service Canada Ltd v Canada (Minister of Public Safety and Emergency
Preparedness), 2011 FC 204, at paras 34-39.
[9]
Ms
Akinwande was informed of her available remedies. The Minister’s letter to her
stated:
To
appeal the decision made pursuant to section 131, you may file an action in the
Federal Court, in accordance with section 135 of the Customs Act. You
must file your action within 90 days of the date of the mailing of this
decision.
To
appeal the decision made pursuant to section 133, you may appeal this decision
by way of an application for judicial review under section 18.1(1) of the Federal
Courts Act. An application to the Court must normally be filed within 30
days of the date of the mailing of this decision.
[10]
In
fact, Ms Akinwande did attempt to appeal the Minister’s decision. She filed a
statement of claim, but that was struck by an order of Prothonotary Aalto on a
motion by the Minister (Bawo Stella Akinwande v Minister of Public Safety
and Emergency Preparedness, T-1178-11, dated August 22, 2011). The problem
with the statement of claim was that it purported to challenge the Minister’s
decision under s 133 of the Act. As noted above, decisions under s 133 can only
be challenged by an application for judicial review, not by way of an action.
Further, the statement of claim could not be amended because it was
statute-barred, being outside the 90-day deadline.
[11]
Now,
Ms Akinwande has brought her application for judicial review and has framed it,
properly, as a challenge to the Minister’s decision under s 133 – the setting
of the terms of release. But at no time has Ms Akinwande properly challenged
the Minister’s decision under s 131 – the finding that she contravened the Act,
which resulted in the seizure of her jewellery.
[12]
Therefore,
I cannot entertain Ms Akinwande’s argument that the Minister’s decision was
unreasonable. However, I will consider her contention of unfair treatment (even
though there is some doubt whether I can do so: United Parcel Service,
above, at para 41-42).
[13]
This
statutory arrangement has been described as “awkward and inconvenient” (Nguyen
v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC
724, at para 21). It is no doubt confusing and frustrating to those who find
themselves in Ms Akinwande’s circumstances. But I cannot change it.
III. Issue Two – Was Ms
Akinwande treated unfairly?
[14]
Ms
Akinwande submits that the adjudicator treated her unfairly by failing to
advise disclose concerns about the authenticity of some of the receipts she had
provided, and to afford her an opportunity to respond to those concerns. She
maintains that the adjudicator should have held an oral hearing, as Ms
Akinwande had requested.
[15]
Ms
Akinwande also submits that the adjudicator fettered her discretion by
describing the photographs she had provided as not “evidentiary in nature.”
[16]
Finally,
Ms Akinwande suggests that the Minister breached the duty of fairness by
failing to give adequate reasons. While she acknowledges that there exists a
document called “Case Synopsis and Reasons for Decision” in the record, this
was not provided to her at the time of the decision. All she received was the
Minister’s letter, which did not adequately explain the basis for the decision.
In fact, the record includes two or three versions of the Minister’s decision,
making it difficult to understand the basis for the decision.
[17]
I
cannot conclude that Ms Akinwande was treated unfairly.
[18]
After
she submitted her receipts, she was informed that this evidence was not
satisfactory:
[W]here
there is no proof that the jewellery had been previously imported the burden
rests on the importer to establish that the provisions of the Customs Act have
been complied with (…)
[B]ased
on the documentation on file, it appears that the jewellery in question was
acquired outside of Canada and was not properly reported to Customs.
Consequently, it appears a contravention of the Customs Act did occur, and the
enforcement action was warranted.
[19]
In
my view, this was sufficient notice that the adjudicator was concerned about
the authenticity of some of the documentation Ms Akinwande had provided. Ms
Akinwande had an opportunity to address those concerns in writing before the
final decision was made. An oral hearing was not required.
[20]
I
agree with Ms Akinwande that the adjudicator’s statement that the photographs
were not “evidentiary in nature” was confusing. However, in the circumstances,
it is reasonably clear what the adjudicator meant. Since there was no evidence
of when or where the photographs were taken, they obviously carried little
evidentiary weight. An affidavit from Ms Akinwande’s friend, Ms Tokunbo
Caxton-Idowu, attached more photographs, but the affidavit did not identify the
jewellery. The adjudicator’s statement amounted to a conclusion that the
photographs did not constitute satisfactory proof of the jewellery’s
provenance. Ms Akinwande’s submissions really go to the weight the adjudicator
assigned the photographs, which is not an issue that arises on an application
for judicial review, even one challenging the merits of a decision, which is
not the case here.
[21]
Regarding
the Minister’s reasons, it is clear from the record that the Case Synopsis was
prepared by the adjudicator for the Minister. The Minister, through a delegate,
then made his decision. The Minister’s reasons are reasonably clear, pointing
out the basis for the finding that Ms Akinwande had contravened the Act and the
reason why her evidence was not satisfactory (i.e., the receipts were
vague and did not identify the seized items).
[22]
Overall,
I am satisfied that Ms Akinwande was treated fairly by being informed of the
progress of her case and being offered a number of opportunities to show that
her jewellery was not subject to import duty. She was given adequate reasons
why she had not been able to show that the jewellery was exempt. Ms Akinwande
was also given the adjudicator’s telephone number in case she had any further
questions. There is no evidence that she called for clarification of the
reasons.
IV. Conclusion and Disposition
[23]
Ms
Akinwande’s application for judicial review relates only to the terms and
conditions of release of her jewellery. However, her arguments relate primarily
to the substance of the Minister’s decision, which can only be challenged by
way of an action. Therefore, I could only consider whether she had been treated
unfairly. In my view, Ms Akinwande was given a fair chance to demonstrate that
her jewellery was not subject to duty and she was given a satisfactory
explanation of why she failed. I must, therefore, dismiss this application for
judicial review. I make no order as to costs.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is dismissed.
2.
There
is no order as to costs.
“James W. O’Reilly”
Annex
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Customs
Act, RSC 1985,
c 1 (2nd Supp)
Decision
of the Minister
131.
(1) After the expiration of the thirty days referred to in subsection 130(2),
the Minister shall, as soon as is reasonably possible having regard to the
circumstances, consider and weigh the circumstances of the case and decide
(a) in the case of goods or a conveyance
seized or with respect to which a notice was served under section 124 on the
ground that this Act or the regulations were contravened in respect of the
goods or the conveyance, whether the Act or the regulations were so
contravened;
(b) in the case of a conveyance seized or
in respect of which a notice was served under section 124 on the ground that
it was made use of in respect of goods in respect of which this Act or the
regulations were contravened, whether the conveyance was made use of in that
way and whether the Act or the regulations were so contravened; or
(c) in the case of a penalty assessed under
section 109.3 against a person for failure to comply with subsection 109.1(1)
or (2) or a provision that is designated under subsection 109.1(3), whether
the person so failed to comply.
Where
there is contravention
133.
(1) Where the Minister decides, under paragraph 131(1)(a) or (b),
that there has been a contravention of this Act or the regulations in respect
of the goods or conveyance referred to in that paragraph, and, in the case of
a conveyance referred to in paragraph 131(1)(b), that it was used in
the manner described in that paragraph, the Minister may, subject to such
terms and conditions as the Minister may determine,
(a)
return the goods or conveyance on receipt of an amount of money of a value
equal to an amount determined under subsection (2) or (3), as the case may
be;
(b)
remit any portion of any money or security taken; and
(c)
where the Minister considers that insufficient money or security was taken or
where no money or security was received, demand such amount of money as he
considers sufficient, not exceeding an amount determined under subsection (4)
or (5), as the case may be.
Federal
Court
135. (1) A
person who requests a decision of the Minister under section 131 may, within
ninety days after being notified of the decision, appeal the decision by way
of an action in the Federal Court in which that person is the plaintiff and
the Minister is the defendant.
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Loi
sur les douanes,
LRC (1985), ch 1 (2e suppl.)
Décision
du ministre
131.
(1) Après l’expiration des trente jours visés au paragraphe 130(2), le
ministre étudie, dans les meilleurs délais possible en l’espèce, les
circonstances de l’affaire et décide si c’est valablement qu’a été retenu,
selon le cas :
a) le motif d’infraction à la
présente loi ou à ses règlements pour justifier soit la saisie des
marchandises ou des moyens de transport en cause, soit la signification à
leur sujet de l’avis prévu à l’article 124;
b) le motif d’utilisation des
moyens de transport en cause dans le transport de marchandises ayant donné
lieu à une infraction aux mêmes loi ou règlements, ou le motif de cette
infraction, pour justifier soit la saisie de ces moyens de transport, soit la
signification à leur sujet de l’avis prévu à l’article 124;
c) le motif de non-conformité
aux paragraphes 109.1(1) ou (2) ou à une disposition désignée en vertu du
paragraphe 109.1(3) pour justifier l’établissement d’une pénalité en vertu de
l’article 109.3, peu importe s’il y a réellement eu non-conformité.
Cas
d’infraction
133.
(1) Le ministre, s’il décide, en vertu des alinéas 131(1)a) ou b),
que les motifs d’infraction et, dans le cas des moyens de transport visés à
l’alinéa 131(1)b), que les motifs d’utilisation ont été valablement
retenus, peut, aux conditions qu’il fixe :
a) restituer les marchandises ou
les moyens de transport sur réception du montant déterminé conformément au
paragraphe (2) ou (3), selon le cas;
b) restituer toute fraction des
montants ou garanties reçus;
c) réclamer, si nul montant n’a
été versé ou nulle garantie donnée, ou s’il estime ces montant ou garantie
insuffisants, le montant qu’il juge suffisant, à concurrence de celui
déterminé conformément au paragraphe (4) ou (5), selon le cas.
Cour
fédérale
135.
(1) Toute personne qui a demandé que soit rendue une décision en vertu de l’article
131 peut, dans les quatre-vingt-dix jours suivant la communication de cette
décision, en appeler par voie d’action devant la Cour fédérale, à titre de
demandeur, le ministre étant le défendeur.
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