Date: 20000503
Docket: T-354-00
BETWEEN:
CAN VAN LE,
Plaintiff,
- and -
THE MINISTER OF NATIONAL
REVENUE OF CANADA,
Defendant.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Plaintiff drove his vehicle to transport non-duty paid tobacco products on 27 October 1999. He says that the tobacco products did not belong to him and that he did not know they were illicit goods even though they belonged to his common law wife. On that date the vehicle was seized as forfeited under section 117(1) of the Excise Act, Ch. E-14, R.S.C. 1985, as amended.
[2] On 24 February 2000, the Defendant filed an Information and a Notice of Information as to the seizure of the vehicle.
[3] The Plaintiff"s Statement of Claim, filed 2 March 2000, that is within the time within which a vehicle owner must give notice under section 116(2) of the Excise Act , sets out the Plaintiff"s ownership and lack of knowledge about the transportation of the illicit goods. The Statement of Claim goes on to request a light penalty. The Crown had, at various stages, suggested penalties of $9,500 and $2,000, in effect the amounts needed to redeem the vehicle, but eventually decided on $6,000 as the appropriate penalty in lieu of forfeiture.
[4] The Crown now moves to strike out the statement of claim for want of a cause of action, without leave to amend. The Crown submits that the light penalty request of the Plaintiff is not relief which may be granted by the Federal Court, here referring to Weiten v. The Queen [1993] 1 C.T.C. 2 (F.C.T.D.). I do not take the case to stand for that proposition. However I take the general proposition put forward by the Crown as correct.
[5] What concerns me is that neither the Plaintiff, who acts for himself, nor counsel for the Defendant, as an officer of the Court, have explored the option of amending the Statement of Claim in order to seek relief from forfeiture. A third party interested in a vehicle, including an owner might, if innocent of any complicity or any collusion in the offence resulting in the seizure and, so long as he or she have exercised reasonable care, obtain an order that his or her interest is not affected by the seizure. This is provided for in section 116 of the Excise Act. Such an amendment, leading to the relief from forfeiture, might be possible although, given the Plaintiff"s relationship to the owner of the illicit tobacco products and the fact that he was himself driving the vehicle, such relief could be very difficult to obtain.
[6] While the filing of the Statement of Claim, being a presentation of the claim under section 116(2) of the Act was timely, there is a further consideration. Section 117 of the Excise Act provides that when a vehicle is seized, such as happened in the present instance on 27 October 1999, the owner has a month from the seizure to give notice in writing to the seizing officer or to the collector in the excise division in which the vehicle was seized, that he intends to claim the vehicle:
| 117. (1) All vehicles, vessels, goods and other things seized as forfeited under |
| this Act or any other Act relating to excise, trade or navigation, shall be deemed and taken to be condemned, and may be dealt with accordingly, unless the person from whom they were seized, or the owner thereof, within one month from the day of seizure, gives notice in writing to the seizing officer, or to the collector in the excise division in which the goods were seized, that he claims or intends to claim them. |
[7] The material indicates that the Plaintiff wrote to the RCMP constable who made the seizure, apparently received by the RCMP on 8 November 1999. He was advised by the RCMP that the letter had been forwarded to Revenue Canada in Ottawa. Subsequently the manager at Revenue Canada, in Surrey, B.C., called and discussed the matter with the Plaintiff on 17 November 1999. This I accept as the required Notice under section 117(1) of the Excise Act. That there has been notice differentiates the present situation from that found by Mr. Justice Pinard in Pourvoirie Hart 2551-5651 Quebec v. Canada (1993) 58 F.T.R. 114, in which the claimant to a small launch failed to give notice. In the present instance all that appears to be required from a procedural perspective is timely notice under section 117(1), not, as looked for in the Pourvoire Hart case, an action under section 164(1) which is in a portion of the Excise Act dealing with distilleries and their products (see section 129 of the Excise Act), together with an action seeking relief from forfeiture.
[8] In the present instance I am unable to say that the Statement of Claim, if amended, could not possibly succeed or could not lead to any practical result, being the tests suggested by the Defendant. Thus the Plaintiff has leave to amend to claim relief from forfeiture. However, relief from forfeiture, while a possibility, may be a difficult remedy to achieve given the Plaintiff"s relationship with the owner of the illicit goods, a point to which I have already referred.
[9] As a final thought, the amount at stake is not large. I would recommend that the parties negotiate a resolution. Costs shall be in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
May 3, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| STYLE OF CAUSE: Can Van Le |
v.
Minister of Citizenship and Immigration
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
WRITTEN SUBMISSIONS BY:
| Ms. Can Van Le on her own behalf |
| Ms. Donnaree Nygard for the Respondent |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General
| of Canada For the Respondent |
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