Docket: T-1372-13
Citation:
2014 FC 770
Ottawa, Ontario, August 1, 2014
PRESENT: The
Honourable Mr. Justice LeBlanc
|
BETWEEN:
|
|
SCOTT HERON
|
|
Applicant
|
|
and
|
|
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
In the fall of 2012, Mr. Heron was charged with
a number of offences under the Criminal Code, RSC, 1985, c C-46
and the Customs Act, RSC, 1985, c1 (2nd Supp) (the “Act”)
for, inter alia, illegally importing and smuggling goods into Canada.
Following his arrest on these charges, he was served with a Notice of
Ascertained Forfeiture demanding payment in an amount equal to the deemed value
of these goods (the “Notice”). According to the Act, Mr. Heron had 90 days
from that date to object to the Notice. He did eventually file an objection to
the Notice, but the lawyer he had instructed to do so missed the prescribed
deadline by two days as he thought this deadline had to be calculated in months
rather than in days. This late filing resulted in the objection being
rejected. Mr. Heron then sought from the Respondent Minister (the “Minister”)
an extension of time to proceed with his objection. His request was refused.
[2]
As the Act permits him to do, Mr. Heron is now
asking this Court to extend that 90-day time limit in order to allow him to
file his objection. In order to succeed, he has to meet the following three
conditions. First, his application to the Court had to be filed within the
year following the expiration of that time limit, and as soon as circumstances
permitted. This was done. He then has to show that he had a bona fide
intention to object to the Notice. The Minister concedes that he did show such
an intention.
[3]
The only issue to be decided then is whether Mr.
Heron meets the third and final condition, which is whether it would be “just
and equitable” to grant his application for an extension of time. In this
regard, Mr. Heron claims it would be “just and equitable” to grant his
application because the Minister has suffered no prejudice from the late filing
of the objection, and the computational error that led to this late filing is
an excusable error. The Minister responds that Mr. Heron’s application must be
dismissed because he did not provide satisfactory explanations to justify the
entire duration of the delay and because both inadvertence and heavy workload
of counsel are insufficient excuses for delay when one requests an extension of
time.
[4]
For the reasons that follow, I find that Mr.
Heron is entitled to an extension of time.
II.
Background
A.
The Ascertained Forfeiture Process
[5]
Notices of Ascertained Forfeiture are issued
under s. 124 of the Act when the Minister has reasonable grounds to believe
that a person has contravened any of the provisions of the Act or Regulations
in respect of any goods or conveyance. In particular, they are issued when the
goods are not found or if their seizure would be impractical. They consist of
a written notice demanding payment of an amount of money, which is normally equal
to the aggregate of the value for duty of the goods and the amount of duties
levied on them.
B.
The Ascertained Forfeiture Objection Process
[6]
Section 129 of the Act allows a person who has
been served with a Notice of Ascertained Forfeiture to object to this
enforcement action by applying for ministerial review under s. 131 of the Act.
Such objection, however, must be brought within 90 days of the service of the
Notice. If that person fails to request a ministerial review within that time
frame, he or she may apply to the Minister, under s. 129.1 of the Act, for an
extension of time to seek such a review.
[7]
If the Minister refuses to grant the requested
extension of time, then the person to whom a Notice of Ascertained Forfeiture
has been served may turn to this Court, under s. 129.2 of the Act, in order to
seek an extension of time to file his or her request for ministerial review.
[8]
In both instances, claimants must meet the same
set of conditions, the one set out in ss. 129.1(5) and 129.2(4) of the Act. According
to this set of conditions, they must show:
a.
that the application for an extension of time
was made within one year after the expiration of the prescribed 90 day time
limit;
b.
that within this prescribed time limit, they
were either unable to request a ministerial review or to instruct another
person to do so on their behalf, or they had a bona fide intention to
request that review;
c.
that it would be “just and equitable” to grant
the application; and
d.
that the application was made as soon as
circumstances permitted.
[9]
The statutory provisions referred to above are
reproduced in the Annex to this decision.
C.
Mr. Heron’s Objection to the Ascertained
Forfeiture
[10]
In the case at bar, the Notice was served on Mr.
Heron on November 27, 2012. It demanded payment in the amount of $783,741.15.
About three days later, he instructed his lawyer to file an objection to the
Notice. The said objection was signed by Mr. Heron’s lawyer on February 20,
2013 and filed with the Minister on February 26, 2013, that is 92 days after service
of the Notice.
[11]
On April 23, 2013, Mr. Heron was informed that
his request for a ministerial review could not be allowed because the
prescribed 90-day time limit had not been respected. He was also informed that
he could seek an extension of that time limit from the Minister, which he did
on May 1 2013.
[12]
In support of this request, Mr. Heron’s lawyer
alleged having been unable to properly review his client’s file in due time due
to a particularly demanding workload in December 2012 and January 2013, and to
his desire to receive, prior to drafting the objection, the disclosure of the
Crown on the charges Mr. Heron was facing. He also alleged that he had made an
honest mistake by computing the prescribed time limit as a 3-month period
instead of a 90-day period.
[13]
On July 16, 2013, the Minister denied Mr.
Heron’s request for an extension of time on the ground that the reasons
advanced by his lawyer for not filing the request for ministerial review within
the prescribed time period did not establish that he was either unable to file
such request himself within that time period or to instruct another person to
do it on his behalf.
[14]
Mr. Heron was then informed that he could apply
to this Court under s. 129.2 of the Act for an extension of time to file his
request for ministerial review. This is what he did.
III.
Issue
[15]
There is only one issue to be resolved in the
present case and it is whether it would be “just and equitable” to grant Mr.
Heron’s application for an extension of time.
[16]
This is indeed the only area of dispute between
the parties as they otherwise agree that all the other conditions set out in
ss. 129.2(4) of the Act have been satisfied in the present instance.
[17]
An application brought under s. 129.2 of the Act
is not a judicial review application. It is a proceeding in which the Court
has to conduct its own analysis of the facts and the law, with no need to apply
any standard of review to the Minister’s decision to refuse a request for an
extension of time (Cantell v Canada (Minister of National Revenue) [Cantell],
2004 FC 1134, at para 7).
IV.
Analysis
A.
The “just and equitable” criteria
[18]
The expression “just and equitable” is not
defined in the Act and there is very little jurisprudence dealing with it in
the context of s. 129.2 of the Act. What seems clear though is that what will
be “just and equitable” in the context of an application for an extension of
time brought under that provision will vary from one case to another, according
to fact situation arising in each of them (Canada (Attorney General) v. Hennelly,
244 NR 399, [1999] FCJ No 846 (QL) [Hennelly] at para 4 and Cantell,
above, at para 14).
[19]
Although the criteria to be met are not
formulated in the exact same manner, the test applied by this Court on
applications for an extension of time brought in the context of appeals or
judicial review applications can, in my view, inform how s. 129.2’s “just and
equitable” criteria is to be understood. As a matter of fact, the Minister has
submitted a certain number of decisions rendered in such context in support of
his position that it would not be just and equitable to grant Mr. Heron’s
application for an extension of time.
[20]
According to this test, a person seeking an
extension of time to appeal or judicially review a decision must show: (a) a
continuing intention to pursue the claim; (b) the claim has some merit; (c) no
prejudice to the responding party arises from the delay; and (d) a reasonable
explanation for the delay exists (Hennelly, above, at para 3; Canada
(Minister of Human Resources Development) v Hogervost, 2007 FCA 41, at para
32; Strungmann v Canada (Citizenship and Immigration) [Strungmann],
2011 FC 1229, at para 9).
[21]
The case law makes it clear, however, that the
underlying consideration when weighing these four factors is that justice must
be done between the parties, which could even mean that in certain
circumstances, an extension of time would still be granted even if one of the
criteria is not satisfied (Hogervost, above, at para 33; Strungmann,
above, at para 9).
[22]
There is, in my view, a close resemblance
between this underlying consideration and the “just and equitable” criteria of
s. 129.2 as both concepts ensure that in any given case, all the circumstances
are to be taken into account and that some measure of flexibility can be
applied so that justice be done between the parties.
[23]
In stating that, I am mindful of the importance
of time limits imposed by Parliament for the commencement of challenges to
administrative decisions, and of the public interest these time limits serve by
bringing finality to administrative decisions (Hogervost, above, at para
24; Strungmann, above, at para 8; Dawe v. Her Majesty the Queen,
86 FTR 240 (FCA), [1994] FCJ No1327 [Dawe], at para 18).
B.
Application of the just and equitable criteria
to the facts of the case
[24]
Mr. Heron contends that the circumstances of
this case favour the granting of the present application. In that regard, he
claims that the Minister did not suffer any prejudice from the late filing of
the objection, that the late filing came about as a result of inadvertence from
his counsel in computing the 90-day time limit and that the delay resulting
from the late filing was of only two days. He further contends that this is
not a case in which counsel filed his material months after the expiration of
the prescribed time limit or filed it late as a result of an ill-conceived
tactical decision.
[25]
In response, the Minister stresses the
importance of time limits imposed by Parliament and submits that Mr. Heron’s
claim, when measured against that principle, must fail because he did not
provide satisfactory explanations to justify the entire duration of the
delay, and because both inadvertence and heavy workload of counsel are
insufficient excuses for delay when one requests an extension of time.
[26]
In my view, the Minister’s position cannot be
upheld.
[27]
I can find no cases, and the Minister’s counsel
has not offered any, that would support this contention or give an illustration
of a situation where all the other criteria of s. 129.2 are met and it is still
found not just and equitable to grant the requested extension of time.
[28]
I agree with Mr. Heron that the lack of
prejudice to the Minister, coupled with the bona fide intention to file
an objection and the explanation provided for the delay, militate towards granting
the extension of time.
[29]
The reasons and circumstances underlying the
present request for an extension of time are simply not giving rise to any
asserted injustice:
i.
Mr. Heron reacted promptly to the service of the
Notice by diligently hiring and instructing counsel to file an objection to the
Notice;
ii.
the late filing was, for all intents and
purposes, the result of a computational error on the part of the lawyer who
thought that the prescribed time limit was a 3-month period rather than a
90-day period ;
iii.
the prescribed time limit was exceeded by only
two days, which could not have possibly caused any prejudice to the Minister;
iv.
this is not a case in which counsel filed the
objection months after the expiration of the prescribed time limit or filed it
late as a result of an ill-conceived tactical decision;
v.
when it was pointed out to Mr. Heron that the
90-day deadline had been missed, he immediately took action by seeking an
extension of time from the Minister and, then, when this request was refused,
from this Court;
vi.
the amount Mr. Heron is called upon to pay by
virtue of the Notice is significant and not granting an extension of time
would, in these circumstances, inequitably prevent Mr. Heron from bringing his
case to the Minister for a review of the Notice, as contemplated by s. 131
of the Act;
[30]
The jurisprudence submitted by the Minister is
not helpful to the position it is putting forward.
[31]
In Cantell, this Court found that the
claimant, who acted some 10 months after the fact, had not satisfied any of the
requirements set out in ss. 129.2(4) of the Act (Cantell, above, at
para 12-13). In Kerzner, the applicant failed to establish that she was
unable to request a ministerial review either herself or through another
person. She also failed to establish that she had a bona fide intention
to request such a review, the evidence showing that the decision to request the
review had only arisen when the applicant was refused, many months after the
seizure of the goods, a Nexus pass. The Court in Kerzner did not consider
whether it would be just and equitable to grant the extension of time as it was
already clear that the applicant had not met all the criteria set out in ss.
129.2(4) of the Act (Kerzner v Canada (Minister of National Revenue), 2005
FC 1574, at para 22-23).
[32]
In Marimac Inc, another case involving
ss. 129.2(4) of the Act, the evidence showed that the applicant was aware of
the notices of penalty issued under the Act but that it knowingly failed to act
or instruct someone to act on its behalf in order to request a ministerial
review (Marimac Inc. v Canada (Public Safety and Emergency Preparedness), 2007
FC 353, 311 FTR 181, at para 27).
[33]
In Dawe, the Federal Court of Appeal set
aside a judgment granting the applicant an extension of time to commence an action
under s. 135 of the Act. In that case, the applicant had given instructions to
his lawyer to commence the action two days before the limitation period was to
expire and the action was filed six days after the limitation period had
expired. The primary issue in that case was whether the Federal Court Rules
could be used to enlarge the limitation period prescribed by s. 135 of the
Act. The Court of Appeal answered that question in the negative as it found
that these Rules did not allow for an extension of limitation periods found in
statutes (Dawe, above, at para 15-19).
[34]
Time Data Recorder International is the last case invoked by the Minister which involves the Act.
However, it does not concern an application for an extension of time. It is
invoked to support the proposition that seizures and forfeitures under the Act
are not criminal but civil proceedings so that it was not a valid excuse for
the lawyer for Mr. Heron to wait to receive disclosure from the Crown regarding
the charges laid against his client in order to craft a more informed objection
to the Notice (Time Data Recorder International Ltd v Minister of
National Revenue (Customs and Excise), 211 NR 229 (FCA)).
[35]
But, as I see it, the late filing in this case
was first and foremost the result of a computational error. In these
circumstances, the dichotomy between the civil and penal components of the Act
has little, if any, bearing on the issue to be resolved in this case.
According to the evidence before me, the objection was drafted and signed by
Mr. Heron’s lawyer on February 20, 2013, which is within the prescribed 90-day
time limit. It is therefore reasonable to assume that if it had not been for
the lawyer’s computational error, the objection would have been filed in time
despite the fact the lawyer waited to receive disclosure from the Crown, and
despite his alleged heavy workload.
[36]
The non-Customs Act case law relied on by
the Minister is not helpful either. In Strungmann, above, it is true
that this Court emphasized the need to justify the delay in its entire
duration. However, in that case, the judicial review application was filed some
10 months after the expiration of the prescribed time limit. Here, the time
limit was exceeded by two days.
[37]
In Hogervost, above, and Canada
(Minister of Human Resources Development) v Gattellaro, 2005 FC 883, two
cases involving proceedings before the Pension Appeal Board, the prescribed
limitation period applicable in these cases was exceeded by more than seven
years in each case.
C.
The Lawyer’s Computational Error is Excusable
[38]
The Minister relies on the Federal Court of
Appeal’s decision in Hennelly, above, to claim that inadvertence by
counsel is not a sufficient excuse for delay. However, I agree with Mr. Heron
that that Court’s subsequent judgment in Poitras v Sawridge Band,
2011 FCA 310 [Sawridge Band] no longer allows for such a categorical and
unequivocal conclusion. Although, as the Minister points out, Sawridge Band was
decided in a purely procedural context, it does nevertheless comment on Hennelly
and on what that Court meant in that case. This cannot be ignored. In my
view, therefore, Sawridge Band, stands for the proposition that Hennelly
has not abolished inadvertence as a possible reason to forgive delay, whatever
the context in which it is invoked.
[39]
As Mr. Justice Stratas stated in Sawridge
Band, inadvertence comes in all shapes and sizes, sometimes forgivable,
sometimes not, and it must be considered “in light of the
appropriate legal test and all the surrounding factual circumstances” (Sawridge
Band, above, at para 13).
[40]
Here, as I have already indicated, the
computational error of Mr. Heron’s lawyer, in light of the appropriate legal
test and all the surrounding factual circumstances, was an excusable one. By
analogy, this is no different, in my view, than the many cases where this Court
has granted an extension of time for bringing an application for judicial
review on the basis that a party wrongly, but in good faith, proceeded in
another court (Canada (Attorney General) v Larkman, 2012 FCA 204,
at para 81).
[41]
This Court’s decision in Muneeswarakumar v Canada (Citizenship and Immigration), 2012 FC 446, does not support the Minister’s
position on inadvertence. In that case, the sole explanation given by the
applicants for the delay in filing a judicial review application was an alleged
“inadvertent oversight” in providing their counsel with the information about
the charges they were facing. The applicants’ application for an extension of
time was dismissed because the record was silent on what had caused the
oversight or on what was involved in the oversight (Muneeswarakumar,
above, at para 17). This is not the case here.
[42]
I am therefore satisfied, when balancing the
just and equitable aspect of granting the application for both parties, that
the lack of prejudice to the Minister from the two days’ late filing, coupled
with the bona fide intention to file an objection and the explanation
provided for the delay, justify granting the extension of time.
[43]
Again, I am aware that the deadline sought to be
extended in this case is one imposed by Parliament and serves an important
public interest. I am also mindful of the fact that the time limit prescribed
by s. 129 of the Act is a long and reasonable one. But Parliament has also
provided for a mechanism allowing for that time period to be extended in
certain circumstances. If this mechanism is to be meaningful, it has to apply
to a case like this one and allow, as a result, that justice be done between
the parties.
[44]
According to ss. 129.2(3) of the Act, in
granting the present application, I may impose any terms that I consider just
or order that the request under s.129 be deemed to have been made on the date
the order was made.
[45]
As Mr. Heron’s objection to the Notice has
already been filed, I shall therefore, in granting Mr. Heron’s application for
an extension of time, order that the objection be deemed to have been made on
the date of the present order.
[46]
Mr. Heron did not seek costs. None shall
therefore be awarded.
Email this Content