Date: 20090923
Docket: T-1950-08
Citation: 2009 FC
953
Ottawa, Ontario, September 23, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
GERRARD
GORDON FINLAY
Plaintiff
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS and
KATHY RUSH, MANAGER,
ADJUDICATIONS DIVISION
Defendants
REASONS FOR ORDER AND ORDER
O’KEEFE J.
[1]
This is a
motion by the defendants for:
1. an order granting the defendant,
Minister of Public Safety and Emergency Preparedness summary judgment
dismissing the plaintiff’s entire claim with costs;
2. alternatively, an extension of time
within which to serve the defendants’ affidavit of documents;
3. an order striking Kathy Rush as a
defendant in this action; and
4. such further and other relief as the
Court deems just.
[2]
The
plaintiff arrived at Vancouver International Airport from the Philippines on March 27, 2008. On
arrival, he had in his possession $9,850 US, 2,300 New Taiwan dollars, 3,720
Philippine Pesos, 4,200 Thailand Baht and $20 CDN (the currency).
[3]
When the
official conversion rate of the Bank of Canada, as published in the Bank of
Canada’s Daily Memorandum of Exchange Rates in effect on March 27, 2008
was applied, the Canadian dollar value of the currency was $10,044.37.
[4]
Customs
officials at the airport found that the plaintiff had imported currency equal
to a value or exceeding $10,000 CDN without reporting it, contrary to
subsection 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act, S.C. 2000, c. 17 (the Act).
[5]
The
currency was seized and returned to the plaintiff pursuant to section 18 of the
Act after payment of the penalty of $2,500 set by section 18 of the Cross-Border
Currency and Monetary Instruments Reporting Regulations, SOR/2002-412.
[6]
The
plaintiff did not deny that he took the currency into Canada but disputed the conversion rates used
by the defendants.
[7]
The
plaintiff submitted that the conversion rates of financial institutions should
have been used to convert the currency rather than the Bank of Canada rates.
The plaintiff maintained that had these rates been used, the currency value
would not have exceeded the allowable amount.
[8]
By a
decision dated November 21, 2008, the defendants decided as follows:
After considering all of the circumstances,
I have decided, that under the provisions of section 27 of the Proceeds of
Crime (Money Laundering) and Terrorist Financing Act, that there has been a
contravention of the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act or the Regulations with respect to the currency or monetary
instruments which were seized;
Under the provisions of section 29 of the
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the
amount of $2,500.00 received for the return of the seized currency or monetary
instruments shall be held as forfeit.
[9]
Issues
1. Is Kathy Rush a proper party to this
action?
2. Is there a genuine issue for trial,
i.e. should summary judgment be granted?
[10]
Issue
1
Is Kathy Rush a proper party to this action?
Kathy Rush is employed by the Government of
Canada as a manager, Adjudications Division, Recourse Directorate with the
Canada Border Services Agency.
[11]
Subsection
30(1) of the Act states:
30.(1) A person who requests a decision
of the Minister under section 27 may, within 90 days after being notified of
the decision, appeal the decision by way of an action in the Federal Court in
which the person is the plaintiff and the Minister is the defendant.
[12]
It is
clear from this section that the appropriate defendant in the action is the
Minister. Accordingly, I am of the view that Kathy Rush is not an appropriate
defendant in the action and her name is removed or struck as a defendant.
[13]
Issue
2
Is there a genuine issue for trial, i.e.
should summary judgment be granted?
The relevant legislation (subsections 12(1) and
12(3) of the Act and sections 2, 3 and subsection 4(1) of the Regulations)
requires every person who imports currency worth $10,000 or more to report this
importation to a customs official.
[14]
In the present
case, the officer believed on reasonable grounds that subsection 12(1) of the
Act was violated when the plaintiff did not report the currency. The officer
did not believe that there were reasonable grounds to suspect that the currency
was the proceeds of crime or funds for terrorist financing. As a result, the
officer returned the currency after receipt of the $2,500 penalty.
[15]
Rules
213(2) and 216(3) of the Federal Courts Rules apply to the present
motion for summary judgment:
213.(2) A defendant may, after serving and filing a defence
and at any time before the time and place for trial are fixed, bring a motion
for summary judgment dismissing all or part of the claim set out in the
statement of claim.
216.(3) Where on a motion for summary judgment the Court
decides that there is a genuine issue with respect to a claim or defence, the
Court may nevertheless grant summary judgment in favour of any party, either on
an issue or generally, if the Court is able on the whole of the evidence to
find the facts necessary to decide the questions of fact and law.
[16]
In Granville
Shipping Co. v. Pegasus Lines Ltd. [1996] 2 F.C. 853 (T.D.) at paragraph 8,
Madam Justice Tremblay-Lamer summarized the case law relating to summary
judgment:
1. the
purpose of the provisions is to allow the Court to summarily dispense with
cases which ought not proceed to trial because there is no genuine issue to be
tried (Old Fish Market Restaurants Ltd. v. 1000357 Ontario Inc. et al);
2.
there is no determinative test (Feoso Oil Ltd. v. Sarla (The)) but
Stone J.A. seems to have adopted the reasons of Henry J. in Pizza Pizza Ltd.
v. Gillespie. It is not whether a party cannot possibly succeed at trial,
it is whether the case is so doubtful that it does not deserve consideration by
the trier of fact at a future trial;
3.
each case should be interpreted in reference to its own contextual
framework (Blyth and Feoso);
4.
provincial practice rules (especially Rule 20 of the Ontario Rules of
Civil Procedure, [R.R.O. 1990, Reg. 194]) can aid in interpretation (Feoso
and Collie);
5.
this Court may determine questions of fact and law on the motion for
summary judgment if this can be done on the material before the Court (this is
broader than Rule 20 of the Ontario Rules of Civil Procedure) (Patrick);
6.
on the whole of the evidence, summary judgment cannot be granted if the
necessary facts cannot be found or if it would be unjust to do so (Pallman
and Sears);
7.
in the case of a serious issue with respect to credibility, the case
should go to trial because the parties should be cross-examined before the
trial judge (Forde and Sears). The mere existence of apparent
conflict in the evidence does not preclude summary judgment; the court should
take a "hard look" at the merits and decide if there are issues of
credibility to be resolved (Stokes).
[17]
As was
stated at the hearing of this motion, there was only one issue raised on this
appeal. The issue was stated by the defendants at paragraphs 28 to 32 of the
defendants’ memorandum of fact and law:
28. The Plaintiff’s sole basis for
taking issue with the finding that he contravened section 12(1) of the PCMLTFA
on March 27, 2008 has consistently been that if currency conversion rates other
than those employed by Customs Officials were employed, the Canadian Dollar
value of the Currency would not meet the reporting threshold of $10,000.
See Letters dated March 29, 2008, July
31, 2008 and August 21, 2008; Exhibits “C”, “E” and “F” to the Rush Affidavit /
DMR pp. 11 – 13, 17 – 24 & 25 - 27
29. The sole issue in this action
is therefore which currency conversion rates should be employed to determine
the Canadian Dollar value of the Currency. If the rates relied on by the
Minister are employed, then the Currency exceeded the prescribed amount and a contravention
of section 12(1) of the PCMLTFA necessarily occurred. If the rates
advanced by the Plaintiff are employed, then the Currency did not exceed the
prescribed amount and this action must be allowed.
30. The issue of which conversion
rates should be employed in determining the Canadian Dollar value of the
Currency is not a genuine issue that requires determination at trial. There is
no discretion with respect to which rates are employed in determining the value
of currency for the purposes of the PCMLTFA. The Regulations are
clear – the Canadian Dollar value of currency is determined based on:
…the official conversion rate of the Bank
of Canada as published in the Bank of Canada’s Daily Memorandum of Exchange
Rates that is in effect at the time of importation […]
Regulations, s.
2(1)(a)
31. The official conversion rates
for the Bank of Canada as published in the Bank of Canada’s Daily Memorandum
of Exchange Rates for March 27, 2008 are in evidence on this motion. There
is no genuine issue with respect to whether they should be applied in
determining the Canadian Dollar value of the Currency as the Regulations
are clear.
Bank of Canada Daily Memorandum of Exchange Rates,
March 27, 2008, Exhibit “J” to the Rush Affidavit / DMR p. 34
32. The application of the Bank of
Canada’s rates to the Currency (see paragraph 6 above) shows indisputably that
the Currency was of a Canadian Dollar value in excess of $10,000. There simply
is no genuine issue with respect to what rates should apply and whether the Canadian
Dollar value of the Currency exceeded the reporting threshold.
[18]
There is
no issue as to credibility in the present case.
[19]
The
plaintiff relied on different rates of exchange to convert his foreign currency
and by using these rates he was below the $10,000 amount. However, Regulations
2(1) and 2(2)(a) of the Cross-Border Currency and Monetary Instruments
Reporting Regulations prescribes the conversion rate as follows:
2.(1)
For the purposes of reporting the importation or exportation of currency or
monetary instruments of a certain value under subsection 12(1) of the Act, the
prescribed amount is $10,000.
(2)
The prescribed amount is in Canadian dollars or its equivalent in a foreign
currency, based on
(a)
the official conversion rate of the Bank of Canada as published in the Bank of
Canada's Daily Memorandum of Exchange Rates that is in effect at the
time of importation or exportation; or . . .
[20]
Further,
whether the plaintiff knew that the value of the currency equalled or exceeded
the prescribed amount is not relevant. In Zeid v. Canada (Minister of Public Safety
and Emergency Preparedness,
2008 FC 539 at paragraph 53, Mr. Justice de Montigny stated:
The jurisprudence makes it abundantly
clear that a traveller’s subjective intention when failing to report is
irrelevant. It has been unequivocally held that such intention is not required
since the system is one of voluntary reporting and because strict liability
attaches to those who fail to report.
[21]
Accordingly,
I am of the view that there is no issue for trial in this action and an order
must issue granting the defendant, Minister of Public Safety and Emergency Preparedness
summary judgment dismissing the plaintiff’s claim (appeal). There shall be no
order as to costs.
ORDER
[22]
IT IS
ORDERED that:
1. Kathy Rush is not an appropriate
defendant in this action and her name is removed or struck as a defendant.
2. Summary judgment is granted to the
defendant Minister of Public Safety and Emergency Preparedness dismissing the
plaintiff’s claim (appeal) in this action.
3. There shall be no order as to costs.
“John
A. O’Keefe”
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