Docket: T-609-11
Citation: 2011 FC 1291
Ottawa, Ontario, November 10, 2011
PRESENT: The Acting Chief Justice
BETWEEN:
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GEORGE ORIENTAL CARPET
WAREHOUSE
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Plaintiff
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and
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HER MAJESTY THE QUEEN
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Defendant
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
plaintiff, George Oriental Carpet Warehouse, commenced an action in tort
against Her Majesty the Queen for $307,793, after many rugs seized by the
Canada Border Service Agency [CBSA] and stored in a bonded warehouse were later
found to be damaged and unsuitable for sale. The defendant [the Crown] now moves
for summary judgment on the grounds that the action is time-barred. The Crown
has requested that the motion be decided on the basis of written
representations, pursuant to section 369 of the Federal Courts Act, RSC
1985, c F-7 [Federal Courts Act], which the plaintiff has not objected
to.
I.
The Facts
[2]
In
November of 2001, a shipment of 950 Persian rugs was detained by the CBSA for
investigation, then seized due to undervaluation and smuggling under section
110 of the Customs Act, RSC 1985, c 1 (2nd Supp) [Customs Act]. Further
investigation led to charges being laid against Bakhshish Singh Sandhu.
[3]
Mr.
Sandhu, husband of the plaintiff’s sole proprietor, pled guilty to one count of
smuggling and was sentenced on April 11, 2005, to pay a fine of $20,000. As of
July 14, 2011, Mr. Sandhu has paid only $100.
[4]
In
February of 2006, the plaintiff was informed that the seized rugs would be
eligible for release upon payment of the outstanding civil terms of release: $183,845.28.
The sum was paid and on May 22, 23, and 24, 2006, Mr. Sandhu and an expert
attended the bonded warehouse to examine the rugs. They found many of the rugs to
be damaged and not suitable for sale, and some were thrown in garbage
containers. Nevertheless, the rugs were released to the plaintiff on May 25,
2006.
[5]
In
a letter dated June 27, 2006, lawyers for the plaintiff informed the CBSA that
a compensation claim would be forthcoming, but that it was necessary to obtain
the list of values ascribed to each of the carpets (Motion Record of the
Plaintiff [MRP] at 6). Yet for almost five years, the plaintiff elected not to
file the compensation claim alluded to in the letter.
[6]
The
same letter also indicated that Mr. Sandhu was awaiting a condition report from
an appraiser. Ms. Bettencourt of the CBSA responded in a letter dated July 5,
2006, informing the plaintiff’s lawyer that the appraiser anticipated
forwarding the condition report the following week (MRP at 12). Then, in a
letter dated August 17, 2006, she sent a copy of the condition report as
requested (Supplementary Affidavit of Richard Stefaniuk, Exhibit A).
[7]
According
to the evidence submitted by the plaintiff, its next action was to send a
letter to the Public Prosecution Service of Canada [PPSC], dated August 28,
2008. The letter raised the issue of damages and the need for a proper
valuation of the rugs and asked the PPSC to review the file, a previous letter
sent December 6, 2007, and to set out its position on this matter (MRP at 13).
[8]
A
July 2, 2009 e-mail from Mr. Sandhu to Ms. Bettencourt indicates he was still
awaiting “a breakdown of evaluation for individual rug pieces” and that he sought
to open dialogue with her department to resolve the damage claim (MRP at 15). Mr.
Sandhu followed up with an e-mail to Mr. Stefaniuk of the CBSA on August 7,
2009 and by leaving a voicemail with him on September 28, 2009 (MRP at 14). Mr.
Stefaniuk responded to the request for valuation information regarding the rugs
in a letter dated October 19, 2009, in which he provided some valuation
information dating back from 2006 and indicated that this information had
previously been forwarded to the plaintiff and its legal representative (MRP at
16).
[9]
Finally,
in a letter dated June 28, 2010, Mr. Stefaniuk informed Mr. Sandhu that a
settlement would not be negotiated as the time for making such a claim had
lapsed (MRP at 18). According to Ms. Sandhu’s sworn affidavit, it was then that
the plaintiff decided to pursue judicial redress by filing its claim with this
Court (MRP at 3, para 20). A statement of claim was eventually filed on April
11, 2011, nearly five years after damage to the rugs was first discovered.
II. The
Issues
[10]
The
parties have raised the following issues:
1. What was the
applicable statutory limitation for the bringing of this action?
2. When was this
action time-barred and is the defendant estopped from relying on the time-bar
defence?
III. Analysis
A. What was
the applicable statutory limitation for the bringing of this action?
[11]
Section
39 of the Federal Courts Act establishes the following as to limitation
periods for proceedings before this Court:
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39.
(1) Except as expressly provided by any other Act, the laws relating
to prescription and the limitation of actions in force in a province between
subject and subject apply to any proceedings in the Federal Court of Appeal
or the Federal Court in respect of any cause of action arising in that
province.
(2)
A proceeding in the Federal Court of Appeal or the Federal Court in respect
of a cause of action arising otherwise than in a province shall be taken
within six years after the cause of action arose [emphasis added].
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39.
(1) Sauf disposition contraire d’une autre loi, les règles de droit en
matière de prescription qui, dans une province, régissent les rapports entre
particuliers s’appliquent à toute instance devant la Cour d’appel fédérale ou
la Cour fédérale dont le fait générateur est survenu dans cette province.
(2)
Le délai de prescription est de six ans à compter du fait générateur lorsque
celui-ci n’est pas survenu dans une province [je souligne].
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[12]
As
expressly provided by section 106 of the Customs Act:
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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.
(2) No action or judicial proceeding shall be commenced against the Crown, an
officer or any person in possession of goods under the authority of an
officer for the recovery of anything seized, detained or held in custody or
safe-keeping under this Act more than three months after the later of
(a)
the time when the cause of action or the subject-matter of the proceeding
arose, and
(b)
the final determination of the outcome of any action or proceeding taken
under this Act in respect of the thing seized, detained or held in custody or
safe-keeping […] [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.
(2)
Les actions en recouvrement de biens saisis, retenus ou placés sous garde ou
en dépôt conformément à la présente loi, contre la Couronne, l’agent ou le
détenteur de marchandises que l’agent lui a confiées, se prescrivent par
trois mois à compter de celle des dates suivantes qui est postérieure à
l’autre :
a)
la date du fait générateur du litige;
b)
la date du règlement définitif de toute instance introduite en vertu de la
présente loi au sujet des biens en cause […] [je souligne].
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[13]
Subsection
106(2), applicable to an action to recover goods, does not apply in this case as
the rugs were released back to the plaintiff. Rather, this action seeks compensation
for damage to the rugs “while they were seized and stored by CBSA” (Motion
Record of the Defendant [MRD] at 7, Amended Statement of Claim at para 8). There
is no doubt that, when seizing and storing the rugs, the CBSA officers were
performing their duties as set out in the Customs Act: section 101 grants
officers the power to detain imported goods until they have been dealt with in
accordance with the law. As a result, pursuant to subsection 106(1) of the Customs
Act, the limitation period for any action against the officers for damage
caused to the rugs was three months from when the cause of action arose.
[14]
Whether
the Crown may avail itself of the same limitation period is a question already addressed
by this Court in Ingredia S.A. v Canada, 2009 FC 389
at paras 40-43, [2009] FCJ 491 [Ingredia], where it reviewed the sparse
case law concerning section 106. Ultimately, Justice Harrington concluded that
the Crown could invoke subsection 106(1) of the Customs Act, a finding
unanimously upheld by the Federal Court of Appeal (Ingredia, above, 2010
FCA 176 at para 35, [2010] FCJ 893). Justice Harrington relied on Baron v
Canada, [2000] FCJ 263, 95 ACWS (3d) 655, affirmed on appeal (2001 FCA 38,
[2001] FCJ 317), where this Court granted summary judgement at the behest of
the Crown on the grounds of time-bar, applying a similar provision found in
section 269 of the National Defence Act, RSC 1985, c N-5.
B. When was
this action time-barred and is the defendant estopped from relying on the
time-bar defence?
[15]
The
plaintiff’s cause of action arose when it first became aware of the damage to
the rugs, which according to the plaintiff’s amended statement of claim, took
place on or about May 22, 2006 (MRD at 7, Amended Statement of Claim at paras 6
and 7). The plaintiff also acknowledges in its motion record that it was aware
of the damages to the rugs, at the very latest, on or about June 23, 2006 (MRP
at 21, para 21). In either scenario, the plaintiff far exceeded the three month
limitation period for the filing of a statement of claim.
[16]
However,
in response to the limitation period defence raised by this motion for summary
judgement, the plaintiff has invoked one argument: the doctrine of promissory
estoppel. Mindful of each party’s duty to put its best case forward (Riva
Stahl GmbH v Combined Atlantic Carriers GmbH, [1997] FCJ 660 at para 35,
131 FTR 231 [Riva]; AMR Technology, Inc v Novopharm Ltd), 2008 FC
970 at para 8, [2008] FCJ 1210), I have carefully reviewed the evidence and
jurisprudence submitted by the plaintiff in support of its estoppel argument.
[17]
The
plaintiff submits that the only issue between the parties was that of the
quantum of damages, that the defendant had made an implied promise to pay the
plaintiff for the damages, and that the plaintiff relied on the representation
of the defendant that it was only waiting for the damages to be quantified. In
support, the plaintiff refers to the letter addressed by its lawyers to the
CBSA, drafted on June 27, 2006, a month after the rugs were examined and
released to the plaintiffs. Regarding a potential claim, the letter indicates
the following (MRP at 6):
As
a number of carpets were readily identifiable in the damaged category, and
having no saleable value, it is evident from my discussion with Mr. Sandhu that
a compensation claim will be forthcoming. In advancing that claim, it will be
necessary to obtain the list of values ascribed to each of the carpets so that
Mr. Sandhu will be fully aware of what the position of CRA is in respect of the
value of a carpet for advancing his claim.
In
addition, Mr. Sandhu has asked that I remind you of his request that he be
provided with a breakdown as to the amounts paid, setting out the specific
amount paid for GST and duties when making payment for the release of the
carpets.
[18]
It
is clear from this letter, the correspondence that followed (MRP at 13-15), and
Ms. Sandhu’s sworn affidavit (MRP at 2, para 13), that the plaintiff – “not an
expert on the subject” – elected to wait for the CBSA to provide an appraisal
report so that damages to the rugs could be quantified. However, as in Ingredia,
above, the plaintiff was well aware that it had suffered damages and the fact
these damages were unquantified cannot forgive its failure to file a claim
within the allotted time (Ingredia, above, 2009 FC 389 at para 45 and
2010 FCA 176 at para 44).
[19]
Invoking
the doctrine of promissory estoppel, the plaintiff quotes the following passages
of Maracle v Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50 at paras
13 and 16, [1991] SCJ 43:
The
principles of promissory estoppel are well settled. The party relying on the
doctrine must establish that the other party has, by words or conduct, made
a promise or assurance which was intended to affect their legal relationship
and to be acted on.
[…]
[A]n
admission of liability which is to be taken as a promise not to rely on the
limitation period must be such that the trier of fact can infer from it that it
was so intended. There must be words or conduct from which it can be
inferred that the admission was to apply whether the case was settled or not,
and that the only issue between the parties, should litigation ensue, is the
issue of quantum. Whether this inference can be drawn is an issue of fact. If
this finding is in favour of the plaintiff and the effect of the admission in
the circumstances led the plaintiff to miss the limitation period, the elements
of promissory estoppel have been established [emphasis added].
Seemingly aware
of the onus imposed on it by the Supreme Court of Canada, the plaintiff has
nevertheless failed to establish that the Crown had, by words or conduct, made
a promise or assurance which would lead the plaintiff to believe the limitation
period would not be relied on. There is not even evidence of an admission of
liability. Absolutely nothing in the evidence submitted, including the only
evidence referred to on this point by the plaintiff (paragraph 10 and Exhibit C
of Ms. Sandhu’s affidavit), supports the allegation that there was an “implied promise
to pay the plaintiff for the damages” (MRP at 22, para 22).
[20]
In
Riva, above, where promissory estoppel was also invoked, the Federal
Court of Appeal acknowledged summary judgments could be granted even where the
motion for such a judgment was based exclusively on a time-bar defence (Riva,
above, [1999] FCJ 762 at para 11, 243 NR 183). As a result, I am satisfied that
the action in this case is time-barred, that this is determinative of the whole
of the action, and that there is no genuine issue for trial (subsection 216(1)
of the Federal Court Rules, 1998, SOR/98-106). Consequently, the Crown’s
motion for summary judgment is granted with costs and the plaintiff’s action is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the defendant’s motion for summary judgment is
granted with costs and the plaintiff’s action is dismissed.
“Simon Noël”
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