Docket: T-158-12
T-159-12
Citation:
2014 FC 568
Ottawa, Ontario, June 13,
2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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CHRISTOPHER MYRON WARD
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Plaintiff
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Defendant
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JUDGMENT AND REASONS
[1]
These proceedings constitute two appeals by way
of simplified actions, pursuant to subsection 135(1) of the Customs Act,
RSC, 1985, c 1 (2nd Supp) [the Act], and rule 292 to 299 of the Federal
Court Rules, SOR/98-106 [the Rules].
[2]
The first, court file number T-158-12,
challenges a decision dated October 20, 2011, by Jonathan Ledoux-Cloutier, a
Senior Program Advisor, Appeals Division, Canadian Border Services Agency [the
Minister].
[3]
The second, court file number T-159-12, also
challenges a decision by the Minister, dated October 19, 2011.
I.
Facts
A.
T-158-12
[4]
The parties agree that on April 23, 2010, the
Plaintiff re-entered Canada in Sydney, British Columbia, at the Washington
State Ferries Terminal.
[5]
According to the affidavit of Border Services
Officer Roger Van Kempen Seket, the Plaintiff declared $4,000 USD in used
bicycle parts as gifts from his aunt, who lives in Washington State. Mr. Van Kempen Seket conducted a secondary examination, and the Plaintiff again confirmed
that the goods were valued at $4,000 and were gifts from his aunt. Mr. Van
Kempen Seket contacted the Plaintiff’s aunt via telephone. She stated that the
Plaintiff purchased the goods with his own money through eBay. She stated that
they were not gifts to the Plaintiff, but she did allow him to ship them to her
address.
[6]
When confronted with this information by Mr. Van
Kempen Seket, the Plaintiff admitted that his initial declaration of goods was
false. The Plaintiff agreed to log into his eBay account and cross reference
his purchase history with the goods in his possession. This list revealed a
number of undeclared goods, including additional bicycle parts, shoes and a
Rolex watch which he had concealed on his person. The value of the undeclared goods
totalled $19,804.74. The undeclared goods were seized as forfeit and upon
payment of $8,655.44 they were returned to the Plaintiff.
[7]
The Plaintiff’s affidavit describes an
essentially similar sequence of events as does the affidavit of Mr. Van Kempen
Seket. However, the Plaintiff disputes certain aspects and characterizes them
differently:
4. I never told my aunt that I was
using PayPal to pay for the items I bought on eBay…
6. I have been diagnosed with post
chemotherapy cognitive impairment, which is a permanent disability. Because of
this acquired disability I have difficulty with planning, organization, memory
and executive function. The task of returning to Canada with such a large
number of goods was something I had not planned for, I was not organized and I
was unprepared. I didn’t know exactly what I had packed in the boxes and I
didn’t have any idea of the total value of the goods. I have a lot of trouble
remembering where I put things so when I opened the package that the Rolex
watch was in, I put it on my arm so I wouldn’t forget where it was.
8. I think I asked him (Mr. Van Kempen
Seket) for the forms I needed and he replied in a manner that seemed to be
demeaning that he didn’t know what forms I was talking about, or words to that
effect. I remember feeling frustrated and annoyed by his demeanour which I
perceived to be arrogant and disrespectful. Without thinking I impulsively
stated that the goods were gifts, I didn’t consider the consequences of saying
that. It was a result of my frustration and being unprepared.
9. Van Kempen Seket asked me what I thought
the value of the goods was; I think I said I thought it might be around four
thousand, I really didn’t have any idea what the total value was and I didn’t
state that it was the value of the goods because at the time I didn’t know what
the value was.
12. I stated that I had purchased all of
the items on the eBay website. Van Kempen Seket turned on the computer and then
after a minute or so he told me to type my eBay password into the computer. He
spent several minutes looking at my eBay account then he gave me a sheet of
paper, I thought it was from the recycling, it had already been used on the
other side. He instructed me to make a list of the items and the price to the
nearest dollar. I could not see the computer screen and Van Kempen Seket did
not position the monitor for me to look at the information on my eBay account.
21. …the statement he (Mr. Van Kempen
Seket) made about the watch being pushed up my arm was also false.
22. Van Kempen Seket stated that I
continued to make false statements and that is also untrue.
[8]
On April 26, 2010, the Plaintiff made a written
request for a Minister’s decision pursuant to subsection 129(1) of the Act. In
a letter dated May 19, 2010, the CBSA Recourse Directorate informed the
Plaintiff that his request was accepted and his complaint was being considered.
[9]
By letter dated October 20, 2011, the Minister
found that the actions of the Plaintiff constituted a contravention of the Act
under section 131 and that $7,051.12 of the amount paid by the Plaintiff for
the return of his goods was to remain held as forfeit pursuant to section 133.
The Minister found that the $4,000 initially declared by the Plaintiff was not
considered in assessing the forfeit amount of $8,655.44 against the Plaintiff.
Accordingly, the Minister ordered the remittance of $1,604.32 to the Plaintiff
pursuant to section 132 of the Act. The Minister also noted in his decision:
It should be noted that the corrective nature
of the Customs Act does not allow for cancellation or mitigation of an
enforcement action issued based on the effort to correct the situation,
miscommunication, lack of intent, or assurances that the incident will not
occur again.
[10]
The Plaintiff launched this action on January
16, 2012. In his pleadings he claims that the length of time that elapsed from
the date on which he requested the Minister’s decision pursuant to subsection
129(1) and when he received the Minister’s decision constituted inordinate
delay, prejudiced the Plaintiff, was a breach of the duty of procedural
fairness, and that the Minister’s decision was unreasonable in finding that the
Plaintiff contravened the Act.
[11]
On May 2, 2013, the Defendant brought its motion
to strike the Plaintiff’s statement of claim in its entirety. At a pre-trial
conference on May 13, 2013, the motion was adjourned to the first day of
trial.
B.
T-159-12
[12]
The parties agree that on May 6, 2010, the
Plaintiff and his parents returned to Canada from the United States at the Pacific Highway port of entry in Surrey, British Columbia.
[13]
According to the affidavit of Border Services
Officer Michelle Stanworth, upon re-entry to Canada the Plaintiff declared that
he was bringing goods valued at $300 into Canada. However, according to the affidavit
of Border Services Officer Anuraj Sangha, on a secondary examination it was
determined that he was in fact bringing goods valued at $7,819.62. A Brietling
watch and various bicycle parts were seized as forfeit because they had not
been declared. The Plaintiff subsequently paid $5,128.48 for the return of the
forfeited goods.
[14]
In his affidavit, the Plaintiff characterizes
his re-entry on May 6, 2010, as follows:
2. I went inside with my parents and
presented myself at the counter with my documents. I spoke to BSO Sangha who
asked me if I was bringing any goods with me. As I reported each item, BSO
Sangha kept asking if I had anything else until I had declared all of the
goods, including the Brietling watch. BSO Sangha said he wanted to make sure I
had reported everything to save me money;
3. After declaring all of the goods I was
subjected to a pocket search by BSO Sangha. The pocket search, which was
witnessed by my parents, did not reveal any undeclared goods;
4. Prior to any search or seizure, I had
declared all the goods I was importing;
5. After the pocket search, BSO Sangha said
that the goods were seized because I hadn’t declared a ruby pendant that was
described in a receipt I had among my documents. That was the reason he gave
for the seizure, he did not find any undeclared goods on my person or in the
vehicle.
[15]
The Plaintiff also states that he was not alert
when he re-entered Canada, due to the effects of a morphine prescription.
[16]
On May 18, 2010, the Plaintiff made a written
request for a Minister’s decision pursuant to section 129(1) of the Act. In a
letter dated June 8, 2010, the CBSA Recourse Directorate informed the Plaintiff
that his request was accepted and his complaint was being considered.
[17]
By letter dated October 19, 2011, the Minister
found that the actions of the Plaintiff constituted a contravention of the Act
under section 131 and that the $5128.48 was to be held as forfeit pursuant to
section 133. The same rationale was applied in this decision as was applied in
T-158-12.
[18]
The Plaintiff launched this action on January
16, 2012. In his pleadings he claims that the length of time that elapsed from
the date on which he requested the Minister’s decision pursuant to subsection
129(1) and when he received the Minister’s decision constituted inordinate
delay, was a breach of the duty of procedural fairness, and that the decision
was unreasonable in finding that the Plaintiff contravened the Act.
[19]
On May 2, 2013, the Defendant brought its motion
to strike paragraphs 1(b), 1(c), 9, 10, 17 and 19 to 22 of the Plaintiff’s
statement of claim. At a pre-trial conference on May 13, 2013, the motion was
adjourned to the first day of trial.
II.
Issues
[20]
There are two categories of issues in this proceeding,
(i) those brought by way of the Defendant’s motions to strike the Plaintiff’s
claims, (ii) those in respect of the simplified trial.
[21]
The issues raised by the Defendant’s motions to
strike are as follows:
A.
T-158-12
[22]
Should the Plaintiff’s Statement of Claim be
struck and his action dismissed accordingly?
[23]
The Defendant argues that the Plaintiff’s
Statement of Claim should be struck pursuant to Rule 221(1)(a) of the Rules for
failing to reveal a cause of action and pleading a cause of action over which
the Court has no jurisdiction.
[24]
The Defendant notes that section 135 of the Act
provides for a statutory appeal of a decision under section 131. It does not
provide an appeal mechanism for decisions under section 133, which relate to
forfeiture amounts. Recourse for such decisions must be made via judicial review
(ACL Canada Inc v Canada (Minister of National Revenue), [1993] FCJ No
1048 at para 53 [ACL Canada]; Time Data Recorder International Ltd v
Canada (Minister of National Revenue), [1993] FCJ No 768 at para 22 [Time
Data Recorder]). I agree.
[25]
As such, the Defendant argues that portions of
the claim relating to forfeiture ought to be struck.
[26]
The Defendant also seeks to strike the remainder
of the claim relating to section 131 of the Act, on the basis that the facts
alleged, even if proven, would not reveal a cause of action.
[27]
The Defendant notes that the Plaintiff agrees
that he told Mr. Van Kempen Seket that the goods he brought into Canada were gifts. That statement, by the Defendant’s own admission, was not true. Only
after the Plaintiff was challenged was he subsequently honest about his
declaration. Strict liability attaches to the obligations under sections 12 and
13 of the Act to make a truthful initial customs declaration (He v Canada,
[2000] FCJ No 93 at paras 8-10; House of Giftwares Ltd v Canada (Minister of
National Revenue), [1998] FCJ No 1236 at para 9). As such, there is no
basis for the Plaintiff’s claim that the decision was incorrect.
[28]
Even on secondary examination to verify Mr.
Ward’s declaration, Mr. Ward made false statements about the value of the goods
in question and about the goods being gifts from his aunt to others. His aunt
confirmed these allegations were untrue.
[29]
Likewise, there are no material facts pleaded
that would support the assertion that the delay in the Minister rendering a
decision prejudiced the Plaintiff or constituted a breach of natural justice.
The failure of the Plaintiff to provide such facts shows that there is no
reasonable cause of action and his claim must be dismissed (Meigs v Her
Majesty the Queen, 2013 FC 389 at para 7 [Meigs]; Prue v Canada
(Minister of Public Safety and Emergency Preparedness), 2012 FCA 108).
[30]
Finally, the Plaintiff argues that if his claim
is deemed to be deficient, he should be allowed to amend his claim pursuant to
Rule 75(1) and (2). He does not specify how his claim would be amended.
Further, even if it was amended, it would not change the fact that Mr. Ward has
no cause of action based on the evidence before me.
[31]
The Plaintiff’s claim is struck without leave to
amend.
B.
T-159-12
[32]
Should paragraphs 1(b), 1(c), 9, 10, 17 and 19
to 22 be struck for failing to disclose a reasonable cause of action?
[33]
The Defendant argues that paragraphs 1(b), 1(c),
9, 10, 17 and 19 to 22 of the Plaintiff’s Statement of Claim should be struck
pursuant to Rule 221(1)(a) of the Rules as failing to reveal a cause of action
and pleading a cause of action over which the Court has no jurisdiction.
[34]
As above with respect to T-158-12, the Defendant
submits that section 135 of the Act provides for a statutory appeal of a decision
under section 131 (ACL Canada; Time Data Recorder, above), not
section 133, which is properly challenged by way of judicial review.
[35]
As such, the Defendant seeks to strike
paragraphs 1(b), (c), 9 and 10 of the Plaintiff’s Statement of Claim, which concern
the decision of the Minister pursuant to section 133 with respect to the
$5,128.48 in forfeit.
[36]
The Defendant also seeks to strike paragraphs 17
and 19 to 22 regarding the alleged delay in issuing the Minister’s decision, on
the basis that they reveal no reasonable cause of action. Under Rules 174 and
181, the Plaintiff is required to plead material facts to support his claims (Meigs
at para 7). However, there is no factual basis in the pleadings which
demonstrate that the alleged delay was prejudicial, or constituted a breach of
the rules of procedural fairness.
[37]
The Plaintiff’s argument with respect to this motion
is identical to that of T-158-12, above.
[38]
As such, I strike paragraphs 1(b), 1(c), 9, 10,
17 and 19 to 22, without leave to amend.
III.
Trial issues
[39]
The issues to be determined at trial, as stated
by Prothonotary Lafrenière in the minutes of a pre-trail conference held on May
13, 2013, and November 5, 2013, are:
1. Whether the Defendant was correct to determine that the
Plaintiff had contravened section 12(1) of the Customs Act?
2. Whether the time it took to complete the ministerial review and
issue the decision constitutes inordinate delay, and therefore a breach of
procedural fairness?
3. Whether this Court has jurisdiction in this proceeding to grant
all the remedies sought in the prayer for relief.
IV.
Analysis
A.
Evidence in respect of simplified trials
(1)
T-158-12
(a)
Byrl Ward Affidavit
[40]
This affidavit was filed with respect to
T-159-12, but appears to relate to the events in T-158-12.
[41]
Byrl Ward is the Plaintiff’s mother. She states
that in early 2010 the Plaintiff asked her to contact her sister, Marilynn
Leckenby, to see if the Plaintiff could use Ms. Leckenby’s United States
address to receive items he was purchasing on eBay, with the understanding that
Ms. Ward would collect the goods for the Plaintiff in May, 2010. Ms. Leckenby
later asked the Plaintiff to remove the items sooner than May, 2010.
[42]
Ms. Ward states she has no other information
concerning the events of April 23, 2010.
(b)
Christopher Ward Affidavit
[43]
The Plaintiff is a resident of Victoria, British Columbia.
[44]
The Plaintiff states that in February and March,
2010, he purchased bicycle parts, a Rolex watch, shoes and some sunglasses on
eBay. Due to shipping restrictions, he shipped these items to his aunt,
Marilynn Leckenby, in Mt. Vernon, Washington, United States. He states that she
did not have knowledge that he was using her address.
[45]
The Plaintiff travelled to his aunt’s house on
April 22, 2010. His aunt asked him to remove the goods from her residence. As
he suffers from post-chemotherapy cognitive impairment, which is a disability
which effects planning, organization, memory and executive function, he put the
Rolex watch on his wrist so he would not forget it.
[46]
On April 23, 2010, the Plaintiff arrived in Sydney, British Columbia with his goods. Mr. Van Kempen Seket asked for his “paperwork” in
a tone which the Plaintiff perceived as condescending. The Plaintiff took
offence and became frustrated and annoyed with Mr. Van Kempen Seket’s demeanour,
and impulsively stated that his goods were gifts.
[47]
Mr. Van Kempen Seket asked for the value of the
goods but the Plaintiff did not know, stating it was around four thousand
dollars. Mr. Van Kempen Seket stated that he needed to know the value and asked
if there was someone who might have that information. The Plaintiff gave Mr.
Van Kempen Seket Ms. Leckenby’s phone number. Ms. Leckenby confirmed via
telephone that the goods were not gifts.
[48]
The Plaintiff then admitted to Mr. Van Kempen
Seket that he had purchased the items on eBay. The Plaintiff alleges that Mr.
Van Kempen Seket stated he had “one chance to clear
things up” and told him to log on to his eBay account and make a list of
the items and their value. The Plaintiff complied.
[49]
Mr. Van Kempen Seket cross-referenced the list
with the goods possessed by the Plaintiff. There were two items outstanding. The
Plaintiff’s property was subsequently seized.
[50]
The Plaintiff alleges that Mr. Van Kempen Seket makes
false statements in his Narrative Report.
(c)
Roger Van Kempen Seket Affidavit
[51]
Mr. Van Kempen Seket is a Border Services
Officer in Sydney, British Columbia. He has been employed as an Officer since
2002. He was the Officer who interacted with the Plaintiff on April 23, 2010.
He states that he seized the goods at issue because the Plaintiff made untrue
statements about and failed to accurately report them.
[52]
On April 23, 2010, the Plaintiff was given a
primary examination by Mr. Van Kempen Seket. Mr. Van Kempen Seket noticed the
Plaintiff had a large number of boxes and cartons on a dolly. Mr. Van Kempen
Seket states that the Plaintiff initially declared the goods to have no value,
as they were gifts from his aunt to other family members in Canada. He stated they contained used bicycle parts only. Upon further questioning, he
stated that the goods were valued at $4,000. He did not ask the Plaintiff for
any written declaration forms, as at the Sydney re-entry point, Officers rely
on verbal declarations.
[53]
Mr. Van Kempen Seket then selected the Plaintiff
for a secondary examination. He conducted the secondary examination, as no
other Officer was available. During the secondary examination, the Plaintiff
stated that his goods included bicycle parts, shoes and a watch. He repeated
that the goods were gifts to others and had purchased nothing for himself. Mr.
Van Kempen Seket stated that he would need to ascertain the value of the goods.
The Plaintiff provided Mr. Van Kempen Seket with the telephone number of Ms.
Leckenby.
[54]
Mr. Van Kempen Seket spoke to Ms. Leckenby. She stated
that the Plaintiff is her nephew and that she lets him ship goods that he
purchases on eBay to her house, and that she did not give the items to the
Plaintiff as a gift for him or anyone else.
[55]
Mr. Van Kempen Seket informed the Plaintiff that
Ms. Leckenby had provided information that was contrary to his declaration
regarding the goods. The Plaintiff admitted to making false statements about
the goods, that he was trying to avoid paying duties and taxes, that all the
goods were intended for his use and that he had purchased them on eBay.
[56]
The Plaintiff prepared a list of the goods with
their corresponding values and Mr. Van Kempen Seket cross-referenced this list
with the goods belonging to the Plaintiff. Mr. Van Kempen Seket added three
items. The total value of this list was over $19,000. He seized the goods
because they had not been properly reported and because the Plaintiff had made
false statements regarding the goods. The terms of release were set at
$8,655.44. The Plaintiff paid this amount and the goods were returned to him.
(2)
T-159-12
(a)
Byrl Ward Affidavit
[57]
This affidavit was filed with respect to
T-158-12, but appears to relate to the events in T-159-12.
[58]
Byrl Ward is the Plaintiff’s mother and was with
the Plaintiff when he re-entered Canada at the Pacific Highway port of entry in
Surrey, British Columbia on May 6, 2010.
[59]
She states that she does not remember
particulars of that day, except that there was a lengthy wait and the delay was
stressful.
(b)
Christopher Ward Affidavit
[60]
The Plaintiff states that on May 6, 2010, he
re-entered Canada from Washington State as a passenger in his parent’s vehicle.
At the time he was suffering from a viral infection and had been prescribed
morphine for the pain. He and his parents were referred to a secondary examination
and he was asked by Border Services Officer Raj Sangha if he had goods to
declare. The Plaintiff states that as he was reporting each item Mr. Sangha
continually asked him if he had anything else to declare. This was done until
he declared all of the goods, including a Brietling watch.
[61]
The Plaintiff states that he declared all of the
goods he was importing prior to the pocket search, and that after the pocket
search, Mr. Sangha said that the goods were being seized because the Plaintiff
had not declared a ruby pendent that was described in a receipt he was
carrying.
(c)
Michelle Stanworth Affidavit
[62]
Ms. Stanworth is a Border Services Officer in Surrey, British Columbia. She has worked as an Officer since 2007. She was one of the
Officers who interacted with the Plaintiff on May 6, 2010.
[63]
Ms. Stanworth conducted the primary examination
of the Ward Family on May 6, 2010. She states that Ms. Ward informed her that
the total value of goods being brought into Canada was approximately $300.
[64]
Ms. Stanworth inputted the identification
information provided by Ms. Ward and discovered that the Plaintiff had been the
subject of a previous customs enforcement action or seizure. She asked each
member of the family individually whether they had anything further to declare.
Each member of the family, including the Plaintiff, answered in the negative.
She referred the Ward family to a secondary examination.
(d)
Anuraj Sangha Affidavit
[65]
Mr. Sangha is a Border Services Officer in Surrey, British Columbia. He has been employed as an Officer since 2007. He was one of the
Officers who interacted with the Plaintiff on May 6, 2010. He states that he
seized the goods at issue because the Plaintiff failed to report them.
[66]
On May 6, 2010, the Plaintiff and his parents
were given a secondary examination by Mr. Sangha.
[67]
The Plaintiff produced a receipt for a Davis
Wireless Vantage Vue Weather Station priced at $300 USD.
[68]
Mr. Sangha spoke to Byrl Ward, who informed Mr.
Sangha that the Plaintiff had installed rims onto a bicycle frame in Washington State. The Plaintiff was informed of this, and admitted that he was also
bringing bicycle rims into Canada which he had not declared. At that point, Mr.
Sangha conducted a pocket search. This produced an owners manual for a
Breitling watch. The Plaintiff admitted he was wearing the watch, which he had
purchased from eBay and had shipped to his aunt’s house. He admitted he had
also not declared this watch.
[69]
Mr. Sangha asked the Plaintiff if he possessed
further undeclared items. The Plaintiff admitted that he was carrying software
related to the weather station and a box containing additional bicycle parts.
[70]
Mr. Sangha asked Mr. Ward to log into his eBay
account and show the values of the Breitling watch and bicycle parts. Their
total value was $7,617. Mr. Sangha seized those items as they were undeclared.
Mr. Sangha did not seize the Weather Station and its related software, as their
value fell within the terms of a personal exemption which was in effect at that
time.
[71]
The terms of the release was $5,128.46, and the
applicable sales tax was $547.37. Ms. Ward paid these amounts and the goods
were returned to the Plaintiff.
[72]
No cross-examinations were conducted during the
course of the hearings before me. Mr. Ward started to cross-examine Mr. Van
Kempen Seket, but indicated he could not focus and chose not to continue with
his cross-examination and advised that he would not cross-examine the
Defendant’s other witnesses. He stated that he relied upon his affidavit
evidence to support his claims.
[73]
Given that I struck the Plaintiff’s claim in
T-158-12 in it entirety, I need not deal with the simplified trial evidence in
this matter. However, even if I was to do so, I would find that Mr. Ward’s action
fails. He contravened sections 12 and 13 of the Act and the seizure and
forfeiture under sections 110 and 122 and the subsequent decision of the
Minister under section 133 was justified.
[74]
Given that the Act was violated when the
Plaintiff made a false declaration to the officer during the primary examination,
the officer was not obliged to consider evidence in respect of the declaration
made during secondary examination (Trites v Canada (Minister of Public
Safety and Emergency Preparedness), 2011 FC 1365, at para 11). But here,
Mr. Ward went further and made untrue statements during the secondary
examination.
[75]
Moreover, reasons for failing to report or the
lack of intention to deceive is irrelevant when determining if a seizure is
valid (Kennedy v Canada (Minister of Public Safety and Emergency
Preparedness), 2013 FC 1196, at para 61).
[76]
Likewise, given my findings above and having
struck paragraphs 1(b), 1(c), 9, 10, 17 and 19 to 22 of action T-159-12, I find
that action T-159-12 has no merit and the Plaintiff fails based on the evidence
before me. Mr. Ward contravened sections 12 and 13 of the Act, by falsely
declaring the value of the goods he brought into Canada, during both the
primary and secondary examinations by Ms. Stanworth and Mr. Sangha.
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