Date: 20070727

Docket: T-32-07

Citation: 2007 FC 770

Ottawa, Ontario, the 27th day of July 2007

PRESENT: THE HONOURABLE MR. JUSTICE MAURICE E. LAGACÉ

 

BETWEEN:

 

Monique Hébert

Applicant

and

 

and

Canada border services agency

Respondents

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review, in accordance with section 129.2 of the Customs Act, of the decision dated October 6, 2006, made by the Canada Border Services Agency (CBSA) on behalf of the Minister of Public Safety regarding file CS-42034-4560-05-0236, dismissing the application for an extension of time submitted by the applicant on January 10, 2006, under section 129.1 of the Customs Act (the Act), regarding a request for a refund of $31,968.75, which was retained by the Canada Border Services Agency following a seizure on April 29, 2005.

 

[2]               The applicant seeks to set aside the decision of the Minister dismissing the application for an extension of time pursuant to section 129.1 of the Act and to extend the time for requesting a refund pursuant to section 129 of the Act. 

 

[3]               Although the applicant has submitted an application for judicial review, a closer reading of the Act would suggest, as will be seen later, that this is actually an appeal to the Court, where the Court reviews the relevant statutory conditions within the factual context of this case, without having to apply standards of judicial review.

 

Facts

 

[4]               On April 29, 2005, Normand Daigle arrived in Canada, as a visitor, in his recreational vehicle, purchased in the United States in 2003 and registered in Florida, behind which he towed a boat. He had been a resident of Freeport, Bahamas since January 2002. On that day, Mr. Daigle was accompanied by his brother and his nephew.

 

[5]               He stated to the CBSA officers that he was a resident of the Bahamas, and the two passengers stated that they were Canadian residents.

 

[6]               Doubting the purpose of the trip to Canada and Mr. Daigle’s non‑resident status, and without waiting for the evidence of his non-resident status in Canada that Mr. Daigle was promising and was awaiting from the attorney whom he had contacted, the CBSA officers seized the recreational vehicle, its contents and its trailer on April 30, 2005. 

 

[7]               Wanting to recover his seized property, Mr. Daigle paid $31,718.75 to the CBSA that same day in exchange for the following receipt:

[translation]

On April 30, 2005, Officer Demers personally delivered a Customs Seizure Receipt to Mr. Daigle, indicating the condition for return of the seized goods, namely, payment of C$31,968.75 as an administrative penalty. Mr. Daigle paid this amount during the night of April 29 to April 30, 2005.

 

A penalty of $250 for undeclared currency was also paid to the CBSA. 

 

[8]               The CBSA also filed criminal charges against Mr. Daigle in accordance with the Act for failing to report goods (bottles of alcohol, US$28,900, etc.) that he was attempting to bring into Canada.

 

[9]               While laying the criminal charges and seizing the goods, the CBSA was operating under the impression that Mr. Daigle, contrary to what he had told the CBSA officers, was a resident of Canada.

 

[10]           Mr. Daigle appeared in court on the charges on June 17, and his trial was set for August 26, 2005, but never took place. Mr. Daigle returned to the United States with his recreational vehicle, which he parked at a campground in Florida before returning to his home in the Bahamas. He died on October 17 in Florida. 

 

[11]           In the meantime, and after three postponements, the trial was finally scheduled for November 4, 2005, while the charges against Mr. Daigle were withdrawn on the basis of submissions from Mr. Daigle’s counsel, without anyone being informed at that time of Mr. Daigle’s death.

 

[12]           In this case, the applicant, Monique Hébert, is acting in her capacity as liquidator of Mr. Daigle’s succession. Her brother is Mr. Hébert, the person whom Mr. Daigle contacted during the seizure of his property by the CBSA.

 

[13]           The applicant was also Mr. Daigle’s friend. Following his death, she asked her brother to help her carry out the liquidation of the succession. Together they had to go to the Bahamas and oversee the sale of all the property left by Mr. Daigle. They also had to go to Florida to retrieve the personal effects he had there, sell his recreational vehicle and cancel the lease for the campsite where the recreational vehicle was parked. 

 

[14]           As part of the settlement of the succession, the applicant also appointed Mr. Hébert to challenge the seizure by the CBSA as soon as possible and to request a refund of the money paid to the CBSA by Mr. Daigle to retrieve his seized property.

 

[15]           After having seen to the most urgent matters in the settlement of the succession (transportation of the remains back to Canada, burial, cancellation of the lease, sale of the property in the Bahamas, sale of the recreational vehicle in the United States, etc.), the applicant filed, on January 10, 2006, a challenge of the seizure and a request for a refund of the money paid to the CBSA, along with an application for an extension of time. The application to the Minister for an extension of time in accordance with section 129.1 of the Act was dismissed on October 6, 2006.

 

[16]           This decision was supported by the following reasons:

 

[translation]

[The applicant’s application] for an extension of time is not allowed because neither you [counsel for the applicant, Michel Hébert] nor Mr. Daigle [owner of the seized property] met the criteria for granting an extension of time set out in subsection 129.1(5) of the Customs Act. Mr. Daigle could have requested a decision within 90 days after the date of the offence, as provided by section 129. According to the documents submitted to us, it appears that you and Mr. Daigle were well aware of the seizure on the date of the offence, April 30, 2005. In addition, according to the report from the officer who seized the goods, Mr. Daigle contacted you [Mr. Hébert] personally by telephone from the office that seized the goods on the same day as the offence. Since this date, no appeal was made until reception of your letter dated January 10, 2006. Accordingly, I cannot allow your application for an extension of time.  

 

[17]           Notwithstanding this decision by the Minister, can the Court allow the applicant’s application for an extension of time under section 129.2 of the Act so that the request for a refund sought under section 129 of this Act can be heard on its merits by the CBSA?

 

[18]           The relevant statutory provisions in this case state the following:

 

 

[19]           Under these provisions, an application for an extension of time, regarding a request for review under section 129 of the Act, can be granted in two ways: initially, by the Minister under section 129.1 of the Act, and then, if this application is dismissed by the Minister, by the Federal Court under section 129.2 of the Act.  

 

[20]           The application to the Court is not for judicial review but, rather, it is an appeal where the Court conducts its own review of the relevant conditions required by the Act while considering the facts, without having to apply standards of review before ruling on the application for an extension, which would give rise to a review of the request on its merits by the CBSA. Consequently, the powers of the Court are not limited to carrying out a judicial review of the Minister’s decision that has the effect of extending the time.

 

[21]           In their review of the application for an extension of time, both the Minister and the Court must, before deciding, consider the same statutory conditions concerning the application, which are conjunctive:

By the Federal Court   129.2 (4)  The application may not be granted unless   (a) the application under subsection 129.1(1) was made within one year after the expiration of the time provided in section 129; and   (b) the person making the application demonstrates that    (i) within the time provided in section 129 for making a request for a decision of the Minister, the person was unable to act or to instruct another person to act in the person’s name or had a bona fide intention to request a decision,    (ii) it would be just and equitable to grant the application, and (iii) the application was made as soon as circumstances permitted.

By the Minister   129.1 (5) The application may not be granted unless   (a) it is made within one year after the expiration of the time provided in section 129; and   (b) the applicant demonstrates that    (i) within the time provided in section 129, the applicant was unable to request a decision or to instruct another person to request a decision on the applicant’s behalf or the applicant had a bona fide intention to request a decision,      (ii) it would be just and equitable to grant the application, and   (iii) the application was made as soon as circumstances permitted.

 

[22]           Section 129.2 of the Act therefore applies to the application before the Court.

 

[23]           As the parties maintain in their factums, subparagraph 129.2(4)(b)(i) of the Act is disjunctive, meaning that only one of the enacted conditions needs to be met. In addition, it must be noted that the first statutory condition, paragraph 129.2(4)(a) of the Act, which concerns the amount of time for submission, is not disputed. After the Minister dismissed the application for an extension of time, the applicant appealed to the Court within the legislated time, namely, before 90 days had passed since the Minister’s dismissal of the application.

 

[24]           Only the conditions in paragraph 129.2(4)(b) of the Act are disputed in this case.

 

Respondents’ Submissions

 

[25]           The respondents argue that the three statutory conditions in paragraph 129.2(4)(b) of the Act have not been met, and, therefore, the application must be dismissed. They believe that each condition in this section must be satisfied without exception and that failure to meet any one of them will result in dismissal of the application.

 

[26]           Therefore, and since the application to the Minister was not, according to the respondents, made “as soon as circumstances permitted”, and since the Customs Seizure Receipt stated in black and white what must be done from that moment on to challenge the seizure, the respondents argue that the incorrect advice allegedly given to the applicant by counsel regarding when she should act must not be taken into account and is not a valid excuse: “ignorance of the law cannot serve as an excuse” (Melekin v. Canada (Canadian Human Rights Commission), [2004] F.C.J. No.1815 (QL). Briefly stated, they are of the opinion that the applicant could have acted and did not and that, furthermore, she did not show a bona fide intention to do so, and it must be remembered that this burden is on the applicant. On this basis, the respondents submit that it is not necessary to review the conditions under subparagraphs 129.2(4)(b)(i) and (ii) of the Act.  

 

[27]           Since the applicant did not in the beginning act as soon as circumstances permitted, the respondents argue that it would be unjust and inequitable to grant the applicant the extension now, considering the negligence shown by Mr. Daigle and his counsel and Mr. Daigle’s conduct during the seizure, without taking into account the likelihood of success on its merits.

 

[28]           The respondents argue that [translation] “the nature of the law cited in this case, essentially pecuniary, prompts a greater respect for the deadline provided by the Act”, because it does not involve any fundamental rights and does not place a social or professional stigma on anyone. Put another way, if the application for an extension were dismissed, any pecuniary loss could be recovered through an action for damages against the person(s) responsible for the delay.

Applicant’s Submissions

[29]           The applicant correctly argues in her application to the Federal Court that she has met the three conditions in the Act:

 

1. She has always shown an intention to make a request under section 129 of the Act, and, therefore, she has met the requirement in subparagraph 129.2(4)(b)(i). In fact, once the goods had been seized, on April 30, 2005, she appointed counsel to act on this matter. But, because a criminal charge had been brought against Mr. Daigle by the CBSA, it was decided to wait for the resolution of this matter, in the belief that proceeding with a request under section 129 of the Act, without waiting for the outcome of the criminal case, would be premature.

 

2. It would be just and equitable, as required by subparagraph 129.2(4)(b)(ii) of the Act, to grant the application for extension in order to enable the applicant to show cause on the facts and the law without prejudicing the CBSA in any way.

 

3. She duly appointed counsel to challenge the seizure and request a refund of the money seized as soon as the seizure had occurred, but, on the advice of counsel, they agreed to wait for a ruling on the criminal charges against Mr. Daigle before formally challenging the seizure. Although counsel’s advice was wrong, it was nevertheless logical and reasonable to believe that the CBSA would not decide to refund the money paid to retrieve the seized goods  until a decision on the criminal charges had been delivered. Moreover, considering the settlement of the succession and the property that Mr. Daigle owned outside the country, the request to the Minister had been made “as soon as the circumstances permitted”. Therefore, the condition under subparagraph 129.2(4)(b)(iii) has also been met.

 

 

[30]           The Court agrees with the applicant, without taking into account the fact that only one of the three criteria listed in subparagraphs129.1(5)(b)(i) (ii) and (iii) needs to be met and the fact that she applied to the Court, as required, within the time provided by subsection 129.2(1), namely, within 90 days after the dismissal of the application by the Minister.

 

 

 

 

 

JUDGMENT

 

 

THE COURT ORDERS that the applicant be granted an extension of time to enable her to make her request in accordance with section 129 of the Customs Act, that this request be considered validly filed as of this date under section 129 of the Act, and that the CBSA review the request and make a decision as though it had been filed within the legislated deadlines, with costs in the cause.

 

 

 

Deputy Judge

 

 

 

 

Certified true translation

Gwendolyn May, LLB

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                                   T-32-07

 

STYLE OF CAUSE:                                   MONIQUE HÉBERT v. THE MINISTER OF PUBLIC SAFETY CANADA AND CANADA BORDER SERVICES AGENCY

 

PLACE OF HEARING:                             Montréal, Quebec

 

DATE OF HEARING:                               July 11, 2007

 

REASONS FOR JUDGMENT BY:          The Honourable Mr. Justice Lagacé

 

DATED:                                                      July 27, 2007

 

 

 

APPEARANCES:

 

Virginie Falardeau	FOR THE APPLICANT
Frédéric Paquin	FOR THE RESPONDENTS

 

SOLICITORS OF RECORD:

 

STARNINO MOTOVAC Montréal, Quebec	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec	FOR THE RESPONDENTS