96-T-26
Between:
DAVID SIU,
- and -
HER MAJESTY THE QUEEN AS REPRESENTED
BY THE MINISTER OF NATIONAL REVENUE,
Defendant.
REASONS FOR ORDER AND ORDER
JOHN A. HARGRAVE
PROTHONOTARY
These reasons arise out of an application in writing pursuant to Rule 324 for an extension of time within which to commence an action under section 135(1) of the Customs Act, c. C-52.6, being an appeal of the Minister's decision of 5 December, 1995, as to the forfeiture of a wristwatch. The watch was declared as settlers effects, but, according to the Crown, was given to the Plaintiff within 12 months, thus becoming subject to forfeiture.
The motion has not been dealt with within a reasonable time, for the file apparently became misplaced - an unfortunate circumstance. However, in this instance there is no prejudice, but rather, one might expect, unnecessary plolonged uncertainty on the part of the Plaintiff as to his rights.
There is no doubt that the 90-day appeal period specified in section 135(1) of the Customs Act was missed. The Plaintiff says the Minister would suffer no prejudice if an extension were granted, and in any event the Minister was aware his decision would be appealed. In answer to this last point the Federal Court of Appeal dealt with a missed limitation under section 135(1) of the Customs Act and notice of an intention to appeal in Dawe v. Minister of National Revenue (Customs & Excise) (1995), 174 N.R. 1 at p. 5, holding that "...a mere notice of an intension to eventually bring an action is not tantamount to, and is no valid substitute for, the actual bringing of an action.". The Court of Appeal went on to note that section 135(1) of the Customs Act sets out a required reasonable adn long time limit and that there would be chaos and unwarranted litigation if appellants were allowed to substitute their own views as to what ought to be the procedure for bringing an appeal.
As to the request for an extension of the 90-day time for appeal provided for in section 135(1) of the Customs Act, Dawe v. Canada [supra], Miucci v. Canada (1991), 52 F.T.R. 216 and the unreported August 28, 1996, decision of Mr. Justice Richard in Bearskin Lake Air Service v. Department of Transport (Canada) in action 96-T-43 are all authorities for the proposition that where a statute does not provide for an extension of time the Federal Court Rules cannot be relied upon to enlarge the statutory time limit.
Regrettably the motion for an extension must be denied.
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