Date: 20050419
Docket: 05-T-21
Citation: 2005 FC 529
Vancouver, British Columbia, Tuesday, the 19th day of April, 2005
Present: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
JASVIR SINGH VIRDI
Applicant
- and -
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER AND ORDER
[1] The facts in this matter are not in dispute. The salient points are as follows.
[2] The Applicant brought a large amount of US dollar bills (equivalent in value to Canadian $195,849.04) into Canada on June 26, 2003. The monies were not declared and were seized by officers of the Canada Customs and Revenue Agency pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (hereafter "Proceeds of Crime Act").
[3] The monies were declared forfeited on February 20, 2004, under s. 12 and s. 29 of the Proceeds of Crime Act.
[4] On May 20, 2004, the Applicant started an action against the Minister of National Revenue, Court File T-958-04, trying to have the seizure set aside and the monies returned to him.
[5] On July 16, 2004, the Applicant became aware of the decision of this Court in Murtaza v. Ministre du revenu national, [2004] F.C. 1002, to the effect that the decision to declare the monies forfeited cannot be set aside under the Proceeds of Crime Act, but has to be challenged by an application for judicial review under s. 18 of the Federal Court Act.
[6] The Applicant's lawyer advised counsel for the Minister that he would bring an application for an extension of time to bring a judicial review application on November 23, 2004. However, due to scheduling difficulties, this application was not filed before March 29, 2005.
[7] It is well established that, to succeed on a motion for an extension of time, an applicant has to meet the fourfold test set out in Belmonte v. CUPE, [2004] F.C.J. No. 634:
The tests which a party claiming an extension of time must meet have been set out in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846 at paragraph 3:
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
[8] However, it is equally clear from Council of Canadians et al. v. Director of Investigation and Research et al. (1997), 212 N.R. 254:
There is no immutable check list of matters that must be reviewed whenever the grant of an extension of time is being considered; the most that can be said is that the court will generally look at whether there is an adequate explanation for the failure to act timely and whether the applicant has an arguable case.
[9] In this case, the application is over a year late. The legislation in question was new at the time this matter arose and it was not clear until Murtaza, supra, that the proper way to challenge a forfeiture was a judicial review application. The Applicant brought an action under the Proceeds of Crime Act in time and argues this demonstrates that, from the outset, he wanted to challenge the forfeiture.
[10] He was less than diligent in bringing his application. He alleges his failure to proceed was due to scheduling problems and due to the lack of clarity on the central issue of forfeiture due to the decision of this Court in Dokaj v. M.N.R. (Court File T-1118-04) which allegedly cast some doubt on the clarity of the Murtaza decision.
[11] At the hearing, counsel for the Applicant stated that the Applicant was prepared to abandon action T-958-04 if given an extension of time to bring an application for judicial review. However, as, by his own submission, that action is not the proper means of challenging the forfeiture, this does not amount to a meaningful undertaking.
[12] From the foregoing, it is evident that the Applicant has not met the test set out in Belmonte, supra. The Applicant has not adduced any evidence demonstrating an intention, in the 30 days following the decision in issue, to institute judicial review proceedings. Even if one were to accept his explanation regarding the newness of the Proceeds of Crime Act, he still has provided no explanation for not applying for leave when the Murtaza decision became known to him in July 2004. Finally, he has not provided any explanation why he did not institute the application for leave subsequent to his exchange of letters with counsel for the respondent in November 2004, when he signalled his intention to commence such proceedings. Counsel's scheduling problems may have prevented an earlier hearing, but they are no explanation for the delay that occurred between November 2004 and March 2005.
[13] Finally, and most significantly, the Applicant has not met the basic test required by Council of Canadians, supra, namely to provide a reasonable explanations for his delay.
[14] Consequently, this application for an extension of time to file a judicial review application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed, with costs in favour of the Respondent hereby fixed at $500.00.
(Sgd.) "K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: 05-T-21
STYLE OF CAUSE: JASVIR SINGH VIRDI
- and -
MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: April 18, 2005
REASONS FOR ORDER AND ORDER: VON FINCKENSTEIN J.
DATED: April 19, 2005
APPEARANCES:
Mr. Michael Klein for Applicant
Mr. Jan Brongers for Respondent
SOLICITORS OF RECORD:
Michael Klein Law Corporation for Applicant
Vancouver, BC
Department of Justice for Respondent
Civil Litigation Section
Ottawa, ON
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