Date: 20110510
Docket: T-565-10
Citation: 2011 FC 539
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Montréal, Quebec, May 10, 2011
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
|
|
JACQUES GERMAIN - ARTS
ETHNOGRAPHIQUES INC.
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 18.1(1) of the Federal
Courts Act, R.S.C. 1985, c. F-7, of a decision of the Canada Border
Services Agency (the CBSA), dated March 17, 2010, confirming the
applicant's notice of assessment of a penalty in the amount of $5,000 on the
ground that it did not report that it had in its possession an ivory statuette
valued at US$25,000 in accordance with the Customs Act, R.S.C. 1985, c.
1 (2nd Supp.) (the Act), and the Reporting of Imported Goods Regulations,
SOR/86-873.
THE FACTS
[2]
On
September 18, 2008, Mr. Germain and his spouse arrived at the Pierre Elliott
Trudeau Airport aboard a flight from Paris. They submitted a joint declaration
card to the customs officer in the primary inspection line, in which Mr.
Germain reported that the value of the goods purchased or received abroad was
$500; his spouse declared an amount of $400.
[3]
They
were then referred to the secondary inspection line in order for their baggage
to be inspected and the value of the goods reported to be verified. Mr. Germain
then showed the customs officer a CITES (Convention on International Trade in
Endangered Species) export permit issued by Belgian authorities, authorizing
the exportation of a statuette made of elephant ivory from the Democratic
Republic of the Congo. He requested that the permit be stamped by the CBSA,
which the customs officer refused to do. The CBSA informed Mr. Germain that he
had to obtain a CITES import permit from the Canadian authorities.
[4]
At
Mr. Germain's request, a customs superintendant came to the secondary line of
inspection. He then admitted that he had bought the statuette for US$25,000.
Noting that the goods were commercial in nature and that their existence or
value had not been reported on a declaration card at the nearest customs
office, the customs officer issued a [Translation] "notice
of assessment of a penalty" in the amount of $5,000.
[5]
On
September 30, 2008, Mr. Germain filed with the Minister an application for a review
of the notice of assessment of a penalty under section 129 of the Act. On
January 9, 2009, under section 130 of the Act, the adjudicator requested that
Mr. Germain provide him with the proof of purchase for the statuette in order
to determine whether the amount of the penalty had been correctly calculated. On
January 26, 2009, he forwarded to the adjudicator the proof of purchase for the
statuette dated June 15, 2006, which confirmed that the value of the object was
US$25,000.
[6]
At
the end of the adjudication process, the Minister informed the applicant of the
decisions rendered by letter dated March 17, 2010. He determined, under section
131 of the Act, that the Act or the regulations were contravened. He also
decided to uphold the penalty of $5,000 under section 133 of the Act. On
April 13, 2010, Mr. Germain filed this application for judicial review of that
decision.
[7]
Mr.
Germain's argument can be summarized as follows: he acted in good faith and
verbally reported to the customs officers that he had in his possession an
ivory statuette. He did not clearly understand that he had to state that he was
in possession of the statuette in writing in the customs declaration.
[8]
For
his part, the respondent argues that the CBSA's response to Mr. Germain's
application for administrative review was made up of two separate decisions. The
first is the decision that states that section 131 of the Act was contravened. The
second is the decision to uphold the $5,000 penalty under section 133.
[9]
He
maintains that the applicant cannot challenge the decision made under section
131 of the Act because it can be challenged only by way of an action. Judicial
review is therefore not the appropriate means for challenging a decision under
that section, and only the decision to apply section 133 of the Act may be
reviewed. However, there is nothing in the evidence or the applicant's
arguments that would make it possible to challenge the legality of the penalty
imposed. I agree with that view.
[10]
Section
131 of the Act, which deals with the Minister's decision following an
administrative review, contains a privative clause in its subsection (3):
|
Judicial
review
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).
|
Recours
judiciaire
131. (3) La décision rendue par le ministre en vertu du paragraphe (1) n’est
susceptible d’appel, de restriction, d’interdiction, annulation, de rejet ou
de toute autre forme d’intervention que dans la mesure et selon les modalités
prévues au paragraphe 135(1).
|
[11]
Subsection
135(1) provides that any challenge with regard to section 131 must be done by
way of an action, not judicial review:
|
Federal Court
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.
|
Cour fédérale
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.
|
[12]
Nguyen
v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC
724, [2009] FCJ No. 884, at paragraph 20, confirms that decisions made under
sections 131 and 133 of the Act are distinct decisions that must be challenged separately.
The decision under section 131 can be appealed only by way of an action, while the
decision under section 133 can be challenged only by way of judicial review.
[13]
The
letter sent to Mr. Germain by the CBSA in reply to his application for
administrative review, dated March 17, 2010, clearly stated that he had to
choose between those two types of recourse, depending on which decision he
wanted to challenge:
[Translation]
. . .
To appeal a decision under section 131,
you may commence an action with the Federal Court in accordance with section
135 of the Customs Act. Such an application to the Court must be made
within 90 days of the mailing of that decision.
To appeal a decision under section 133,
you may file an application for judicial review with the Federal Court in
accordance with subsection 18.1(1) of the Federal Courts Act. Such an
application to the Court must be made within 30 days of the mailing of that
decision.
. . .
[14]
In
this case, the applicant chose to challenge the Minister's decision before this
Court by way of judicial review. Mr. Germain commenced this type of recourse
with a notice of application, which also referred exclusively to section 133 of
the Act. Therefore, it is only the CBSA’s decision made under that section that
is the subject of this judicial review.
[15]
The
decision under section 133 is dependent on the statement of contravention before
the Court. In fact, if the Minister decides under section 131 that section 12
of the Act was contravened, he may impose a fine or any other applicable
relief.
[16]
According
to Nguyen, supra, at paragraph 23, it is for the applicant to demonstrate
that the decision made by the Minister under section 133, which concerns only
the amount of the request for payment, is unreasonable. However, Mr. Germain
presented no arguments or evidence showing that the amount of the penalty was
unjustified or unreasonable. His reasons for challenging the decision relate only
to the decision under section 131 of the Act, on which, for reasons stated
above, the Court does not have the power to intervene as part of this judicial
review. He did not discharge his burden of proving that the penalty of $5,000 did
not comply with the Act.
[17]
The
invoice that he provided, in fact, confirms that the unreported statuette was
valued at US$25,000. The $5,000 penalty imposed by the CBSA and confirmed in
administrative review is lower than the maximum penalty authorized by section
109.1 of the Act, which is $25,000, and corresponds to 20% of the value for
duty of the unreported statuette for a first contravention.
[18]
Therefore,
the applicant did not demonstrate that the penalty amount was unreasonable. For
these reasons, the application for judicial review is dismissed without costs.
Email this Content