Date: 19990316
Docket: T-2018-95
BETWEEN:
MUSHTAQ HUSSAIN carrying on business
as KHOKHAR JEWELLERS
Plaintiff
- and -
THE MINISTER OF NATIONAL REVENUE
Defendant
REASONS FOR ORDER
EVANS J.:
[1] As part of a wider investigation of the suspected smuggling of jewellery into Canada the RCMP searched the business premises of Mushtaq Hussain on June 24, 1995 and seized documents and jewellery. On September 8, 1995 the lawyer who was then acting for Mr. Hussain wrote to the Adjudication Division of Revenue Canada stating that Mr. Hussain wished to appeal against the seizure of the jewellery. The appeal was rejected as being out of time.
[2] On September 25, 1995 Mr. Hussain filed a statement of claim in this Court for the return of the jewellery, alleging that he had not imported it into Canada in breach of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.).
[3] In the motion before me the Minister of National Revenue seeks to have the plaintiff"s statement of claim struck out on the ground that the Court has no jurisdiction to grant the relief requested.
[4] The Minister"s argument is that an appeal to the Minister is the only remedy available to a person with respect to the seizure of goods under the Customs Act . And since the plaintiff failed to exercise this right of appeal within the statutory limitation period, which the Court has no discretion to extend, there is no legal basis on which the Court could order the return of the plaintiff"s property as requested in the statement of claim.
[5] The only legal issue raised by this motion is the starting date of the 30 day period within which appeals against the seizure of goods must be filed. The Minister argues that the law is crystal clear: it starts to run on the day that the goods are seized.
[6] The plaintiff, on the other hand, says that since an RCMP officer led him to believe that it started at a later date it should start from that date, and that the notice of appeal was filed within 30 days of that date.
| B. THE LEGISLATIVE FRAMEWORK |
[7] The statutory provisions of the Customs Act relevant to this motion are as follows, and I have underlined the portions that are most germane:
| 123. The forfeiture of goods or conveyances seized under this Act or any money or security held as forfeit in lieu thereof is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 129.
|
123. La confiscation des marchandises ou des moyens de transport saisis en vertu de la présente loi, ou celle des montants ou garanties qui en tiennent lieu, est
définitive et n'est susceptible de révision, de restriction, d'interdiction, d'annulation, de rejet ou de toute autre forme d'intervention que dans la mesure et selon les modalités prévues à l'article 129.
|
| 129. (1) Any person
(a) from whom goods or a conveyance is seized under this Act,
(b) who owns goods or a conveyance that is seized under this Act, ...
may, within thirty days after the date of the seizure ... request a decision of the Minister under section 131 by giving notice in writing to the officer who seized the goods or conveyance or served the notice or caused it to be served, or to an officer at the customs office closest to the place where the seizure took place or the notice was served.
(2) The burden of proof that notice was given under subsection (1) lies on the person claiming to have given the notice.
|
129. (1) Les personnes suivantes peuvent, dans les trente jours suivant la saisie ... en s'adressant par écrit à l'agent qui a saisi les biens ou a signifié ou fait signifier l'avis, ou à un agent du bureau de douane le plus proche du lieu de la saisie ou de la signification, présenter une demande en vue de faire rendre au ministre la décision prévue à l'article 131 :
a) celles entre les mains de qui ont été saisis des marchandises ou des moyens de transport en vertu de la présente loi;
b) celles à qui appartiennent les marchandises ou les moyens de transport saisis en vertu de la présente loi; ...
(2) Il incombe à la personne qui prétend avoir présenté la demande visée au paragraphe (1) de prouver qu'elle l'a présentée.131. (1) After the expiration of the thirty days referred to in subsection 130(2), the Minister shall, as soon as is reasonably possible having regard to the circumstances, consider and weigh the circumstances of the case and decide
(a) in the case of goods or a conveyance seized or with respect to which a notice was served under section 124 on the ground that this Act or the regulations were contravened in respect of the goods or the conveyance, whether the Act or the regulations were so contravened;
|
| 131. (1) Après l'expiration des trente jours visés au paragraphe 130(2), le ministre étudie, dans les meilleurs délais possible en l'espèce, les circonstances de l'affaire et décide si c'est valablement qu'a été retenu, selon le cas :
a) le motif d'infraction à la présente loi ou à ses règlements pour justifier soit la saisie des marchandises ou des moyens de transport en cause, soit la signification à leur sujet de l'avis prévu à l'article 124;
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131. (3) The Minister's decision under subsection (1) is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to
the extent and in the manner provided by subsection 135(1).
|
| 131. 3) La décision rendue par le ministre en vertu du paragraphe (1) n'est susceptible d'appel, de restriction, d'interdiction, d'annulation, de rejet ou de toute autre forme d'intervention que dans la mesure et selon les modalités prévues au paragraphe 135(1).
|
135. (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and
the Minister is the defendant.
|
| 135. (1) Toute personne qui a demandé que soit rendue une décision en vertu de l'article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d'action devant la Cour fédérale, à titre de
demandeur, le ministre étant le défendeur.
|
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[8] A reading of these provisions would seem to indicate that the 30 day period within which a person must file a notice of appeal with the Minister starts on the day of the seizure of the goods. In this case that was June 24, 1995. Accordingly, the limitation period expired approximately one month later, and the notice of appeal filed on Mr. Hussain"s behalf by his lawyer on September 8, 1995 was well out of time.
[9] The statutory provisions would seem to make it equally clear that, apart from the rights of appeal to the Minister and from the Minister to this Court, the forfeiture of seized goods is final and its legality is not otherwise reviewable in any legal proceedings.
[10] In addition, counsel for the Minister referred me to decisions of the Court in which it has been held that the statutory rights of appeal under these provisions of the Customs Act are exclusive, and that the Court has no jurisdiction to entertain other proceedings, regardless of any procedural deficiencies that there may have been in the search and seizure. In addition, the Court has no jurisdiction to extend the limitation periods provided in the Customs Act. Authority for these propositions is provided by Miucci v. Minister of National Revenue (1991), 52 F.T.R. 216 (F.C.T.D.); Smith v. Minister of National Revenue (1992), 58 F.T.R. 287 (F.C.T.D.); Dawe v. Minister of National Revenue (Customs and Excise) (1994), 174 N.R. 1 (F.C.A.); and Caron v. Minister of National Revenue (1996), 108 F.T.R. 133 (F.C.T.D.).
[11] Counsel for the plaintiff argued that on the facts of this case it would be grossly unfair for the Minister to rely on the limitation period in order to deny the plaintiff any legal redress, and that in law the statutory limitation period contained in the Customs Act must be interpreted in light of the "discoverability principle" established in Peixeiro v. Haberman , [1997] 3 S.C.R. 549.
[12] As to the facts, counsel drew my attention to the notes of Constable Pelletier, one of the RCMP officers who was present both when the plaintiff"s premises were searched and his property was seized, and on July 7, 1995 when he was given a Seizure Receipt and a K19 form. These documents itemized the jewellery that had been seized and was being treated as forfeit pending the payment of the penalty for illegal importation, and stated that any request to the Minister for a decision must be made in writing within 30 days of the seizure. Constable Pelletier"s notes state that one of the other officers told the plaintiff on July 7, 1995, when the Seizure Receipt was delivered, that the 30 day period ran from that day.
[13] In addition, counsel for the plaintiff observed that some of Mr. Hussain"s property was returned to him, and the lawyer then acting for him was attempting to settle the matter without the plaintiff"s having to pay the full amount of the penalty before the rest of his property was returned.
[14] I note here that the notice of appeal eventually filed on behalf of the plaintiff was also well outside the 30 days immediately following July 7, 1995. Nonetheless, counsel for the plaintiff maintained that on August 9, 1995 an amended Seizure Receipt and K19 form were delivered to the plaintiff, and that it was reasonable for Mr. Hussain to infer from the advice that he had been given previously by the RCMP officer that the 30 day period ran from the date when he received the amended forms.
[15] On the evidence before me it is not at all clear that the plaintiff was told that the limitation period ran from the date when the forms were given to him, or that he believed this to be the case. First, the plaintiff said in his affidavit that he was aware that he had 30 days within which to appeal the seizure, but did not state when he thought that the period commenced. Second, Constable Pelletier stated in her affidavit that Constable Chauhan, who was also present when the forms were given to the plaintiff on July 7, 1995, advised the plaintiff in Punjabi that he had 30 days to appeal from the date of the seizure of the jewellery.
[16] Even if I accepted that Constable Pelletier"s notes are correct, and that another officer gave the plaintiff the erroneous advice that he had 30 days to appeal from the day when he was given the Seizure Receipt and the K19 form, and that the plaintiff inferred from this that, when he was given the amended forms on August 8, the 30 day period ran from then, I would still conclude that this Court has no jurisdiction over the plaintiff"s statement of claim.
[17] An RCMP officer has no legal authority to extend the statutory period under the Customs Act by giving misinformation about the time from which it starts to run. In the face of the clear words contained in the K19 form and in the Customs Act itself, the plaintiff and his lawyer, whom Mr. Hussain retained shortly after July 7, 1995, relied at their peril on either the statement attributable to the officer, or the possible settlement of the matter. No facts came to light after the expiry of the statutory limitation period which prevented the plaintiff from filing a timely notice of appeal. Hence, the "discoverability principle" enunciated in Peixeiro is inapplicable to the facts of this case.
[18] I acknowledge that this result may seem harsh, but faced with the clear language of the statute prescribing the period for appealing and excluding other remedies, I have no alternative but to grant the defendant"s motion and to dismiss the plaintiff"s claim. The plaintiff may consider whether he has any recourse against the lawyer whom he stated that he retained in July 1995 and instructed to appeal against the seizure of the jewellery.
"John M. Evans" J.F.C.C.
Toronto, Ontario
March 16, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2018-95
| STYLE OF CAUSE: MUSHTAQ HUSSAIN carrying on business as KHOKHAR JEWELLERS |
- and -
| THE MINISTER OF NATIONAL REVENUE |
DATE OF HEARING: MONDAY, MARCH 15, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: EVANS J.
DATED: TUESDAY, MARCH 16, 1999
APPEARANCES: Mr. Pradeep B. Pachai
For the Plaintiff
Ms. Nancy Noble
For the Defendant
SOLICITORS OF RECORD: Kissoon, Pachai-Associates
For the Plaintiff
Morris Rosenberg
Deputy Attorney General
of Canada
For the Defendant
FEDERAL COURT OF CANADA
Date: 19990316
Docket: T-2018-95
Between:
| MUSHTAQ HUSSAIN carrying on business as KHOKHAR JEWELLERS |
Plaintiff
- and -
| THE MINISTER OF NATIONAL REVENUE |
Defendant
REASONS FOR ORDER
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