Morneau Prothonotary:
Introduction
This is an application by the plaintiff under rule 470 of the Federal Court Rules (the Rules) for an order that the defendant have custody of and preserve the plaintiffs motor vehicle, which the defendant seized in March 1997 under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), as amended (the Act), until the end of the trial.
Background
The relevant background facts are found in the statement that on March 18, 1997, Canadian customs officers informed the plaintiff that they had seized her Honda Civic motor vehicle on the ground that the vehicle had been used as a method of transportation for importing undeclared goods.
Those goods consisted of narcotics that an acquaintance of the plaintiff was transporting inside her person while she was a passenger in the plaintiff’s vehicle. The plaintiff had apparently picked that person up, at her request, at John F. Kennedy Airport in New York so that she could return to the Montréal region. It must be understood that the seizure of the vehicle, and the narcotics, occurred at the Lacolle border crossing as they were returning.
The plaintiff recently heard that the defendant was preparing to sell the plaintiffs vehicle under s. 119.1 of the Act. Counsel for the defendant admitted that this was her client’s intention. Section 119.1 reads as follows:
119 1(1) Where any goods are seized under this Act, the Minister may authorize an officer to sell, destroy or otherwise deal with the goods.
(2) The Minister shall hold the proceeds from the sale of any goods under subsection (1) as forfeit in lieu of the goods sold.
(3) Where a person would be entitled to the return of goods if they were available to be returned, but it is not possible to return them, the person shall be paid:
(a) where the goods were sold, the proceeds from the sale; and
(b) in any other case, the value of the goods.
The relevant paragraphs of rule 470 are (1) and (5):
470 (1) Before or after the commencement of an action, the Court may, on the application of any party, make an order for the detention, custody or preservation of any property that is, or is to be, the subject-matter of the action, or as to which any question may arise therein; and any such application shall be supported by an affidavit establishing the facts that render necessary the detention, custody or preservation of such property and shall be made by motion upon notice to all other parties.
(5) An order under paragraph (1) shall have as its sole purpose the protection of the property pending suit.
(emphasis mine)
Analysis
It is common ground that if we are to consider applying rule 470, we must examine the three stages in the examination by a court of an application to stay proceedings or for an interlocutory injunction. First, there should be a preliminary examination of the substance of the case to determine whether there is a serious issue to be tried. Second, it must be determined whether the plaintiff would suffer irreparable harm if the application were dismissed. Third, it must be determined which of the two parties would suffer the greatest harm, if the remedy were granted or denied pending a decision on the substance. (See Perini America Inc. v. Alberto Con- sani North America Inc. (1992), 57 F.T.R. 139 (Fed. T.D.), 143.)
However, I do not believe that in the instant case we must undertake that analysis. As submitted by counsel for the defendant, the plaintiff’s application for custody and preservation falls outside the purpose contemplated by rule 470, in my view.
As suggested by the text of paragraphs 470(1) and (5) of the Rules, and as noted by this Court in Perini, at page 146:
What is being sought under rule 470 is tantamount to an order preserving evidence to enable the plaintiff to have facts upon which he can rely to prove his claim at trial.
In the instant case, I find it hard to see how preserving the plaintiffs vehicle is necessary in order for her to be able to prove her claim.
Under section 135 of the Act and the decisions referred to in Time Data Recorder International Ltd. v. Minister of National Revenue (1993), 66 F.T.R. 253 (Fed. T.D.) and, in the Court of Appeal, unreported decision dated April 21, 1997, file no. A-518-93 [reported (1997), 211 N.R. 229 (Fed. C.A.)], the plaintiff’s action must be regarded as an appeal of the de- fendant’s decision under section 131 of the Act relating to whether the Act or regulations had been contravened. In this context, the plaintiff’s vehicle is not proof on which the plaintiff will be seeking to rely to prove her claim. Preserving the vehicle will do nothing to assist her in proving the allegations found in her statement of claim.
The situation here is therefore very different from the situation found in Perini, in which it was held that rule 470 applied since the dismantling of a piece of equipment during the trial had to be avoided if it was intended to allow the plaintiffs to prove their claim.
In addition, there is also another reason for dismissing this application, even if it were to be admitted, in theory, that rule 470 might apply. It must be acknowledged that the sale of the plaintiff’s vehicle is directly permitted by section 119.1 of the Act. As this Court noted in Fisher v. R. (1977), [1978] 1 F.C. 300 (Fed. T.D.), 301, 307, “certainly, a Rule of the Court could not be used to defeat the express provision of a statute”. In that case, there was an attempt to use rule 470 to defeat a situation permitted by section 35 of the Expropriation Act, R.S.C. 1970, c. 16 (1st Supp.): putting the Crown in possession of land by executing a warrant for possession.
For these reasons, the plaintiff’s application will be dismissed, costs in the cause.
Application dismissed.
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