Date: 20080429
Docket:
07-T-60
Citation: 2008
FC 557
Ottawa, Ontario, April 29, 2008
Present:
The Honourable Mr. Justice Harrington
BETWEEN:
JEAN-PIERRE
SAMSON
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
In September
2005, a manager of the Minister of Public Safety and Emergency Preparedness, pursuant
to section 133 of the Customs Act, confirmed a decision of the
Minister assessing a penalty of $2,000 against Mr. Samson for erroneously
declaring the value of goods that he imported to Canada. Mr. Samson is seeking
a judicial review of this decision. Subsection 18.1(2) of the Federal
Courts Act requires that such an application be made within 30 days of the
impugned decision or “within any further time that a judge of the Federal Court
may fix or allow before or after the end of those 30 days.” Mr. Samson is
seeking to have such additional time granted to him.
[2]
The applicant,
Mr. Samson, carries on business using the trade name and the style of identity “Boutique
de timbres, postes et monnaies.” In this capacity, he regularly imports stamps.
Carrying out a random audit, the Canada Customs and Revenue Agency was of the
opinion that the information relating to one cargo of goods in particular was
incorrect. According to section 7.1 of the Customs Act, “[a]ny
information provided to an officer … shall be true, accurate and complete…”
[3]
In September
2004, a customs agent issued a “notice of penalty assessment” of $2,000 against
the applicant, stating that he “…intentionally provided false information in
any permit, certificate, licence, document or declaration required to be
provided for imported … goods under the Customs Act…” Mr. Samson contested
this decision by sending a letter to the Minister requesting a redress. Ultimately,
he received two decisions from the Agency in a letter dated September 14, 2005, stating that:
[translation]
. . . after considering all of the
circumstances of your case, I have decided that there was an offence under
section 131 of the Customs Act, or under the regulations regarding
the notice served pursuant to section 109.3. Under section 133 of the
Customs Act, this demand for payment of the sum of $2,000 constitutes a debt to Her
Majesty.
[4]
The Customs
Act is somewhat distinctive in that the issue of whether the offence was
committed or not may be heard de novo through a regular action, while
recourse regarding a penalty issued under the auspices of section 133 is
strictly connected with an application for judicial review. All of this was
clearly explained by Mr. Justice Mackay in ACL
Canada Inc. v. Canada (Minister of National Revenue-M.N.R.), [1993] F.C.J. No. 1048, 68 F.T.R. 180. The two different forms
of recourse are also found in the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act, and were discussed
in Dokaj v. Canada (Minister of National Revenue- M.N.R.), [2005] F.C.J. No. 1783, [2006] 2 F.C.R. 152
and in Tourki v. Canada (Minister of Public Safety and Emergency
Preparedness), 2006 FC 50, [2006] F.C.J. No. 52, which was
confirmed by the Federal Court of Appeal (2007 FCA 186, [2007] F.C.J. No. 685).
[5]
This
implies, therefore, that it is best to file an application for judicial review
of a penalty even before a hearing is held deciding the grounds of the offence.
Clearly, if it were determined that no offence was ever committed, the penalty would
fall and the judicial review would become moot. In any event, the judicial
review ought to be suspended pending a decision on the matter before the Court.
[6]
The issue
bearing on the commission of the offence indeed ended up before the Court. On September 28, 2007, Madam Justice Tremblay-Lamer
decided that an offence had been committed. In her opinion, Mr. Samson’s
good faith was not relevant. Her reasons are found in Samson v. Canada (Minister of National Revenue- M.N.R.), 2007
FC 975, [2007] F.C.J. No. 1272. Mr. Samson had 30 days to appeal
this decision, which he failed to do.
[7]
On
December 30, 2007, he filed the application in the case at bar, intending to
get an extension of time in order to seek a judicial review of the amount of
the penalty.
ANALYSIS
[8]
In Canada (Attorney
General) v. Hennelly, [1999] F.C.J. No. 846, 244 N.R. 3996, the Federal Court
of Appeal set out a list of criteria,
while not exhaustive, where the necessary extension of time could be allowed. At paragraph 3 of this decision,
Mr. Justice McDonald stated that:
The proper
test is whether the applicant has demonstrated:
1. a
continuing intention to pursue his or her application;
2. that
the application has some merit;
3. that no
prejudice to the respondent arises from the delay; and
4. that a
reasonable explanation for the delay exists.
[9]
The
Minister did not join issue on points 2 and 3 referred to above. The other two points
may be analyzed together.
[10]
There are
several valid reasons for excusing Mr. Samson’s failure to file the application
for judicial review within the 30-day period stipulated by the Act. The department
misread its own legislation by alleging the applicant’s bad faith. The
applicant was confidant that he had acted in good faith. Further, Mr. Samson had
been properly informed of his right to bring an action, but not of the option
of applying for a judicial review of the notice of assessment of penalty.
[11]
However,
after the Attorney General became involved as counsel of record in the hearing
before the Court, everything was rectified. The legislation and case law were set
out in detail in his pre-trial conference memorandum filed with the Registry on
February 6, 2008, and even in Prothonotary
Morneau’s order issued on April 24, 2007, in which he had clearly indicated
that the penalty was not an issue before the Court.
[12]
At
that time, Mr. Samson was handling his own case and may have been confident that
he would prevail despite the clear and specific arguments of the Attorney General that good faith was not a relevant point in
this matter.
[13]
Mr.
Samson at that time should have requested an extension of time. Now it is too
late because he did not establish that he had a continuing intention to dispute
the penalty and his reasonable explanations lapsed around the end of May 2007.
[14]
For
the reasons given above, I will dismiss the application, with costs.
ORDER
THE COURT ORDERS that:
1. On consent of the parties, the
style of cause is amended by withdrawing “Minister of National Revenue” and
adding “Attorney General of Canada” as respondent.
2. On consent of the parties, the
application is amended to read that the application for extension of time relates
to the decision dated September
14, 2005, imposing
an administrative penalty of $2,000.
3. The application for extension
of time be dismissed.
4. With costs.
“Sean Harrington”
Certified true translation
Kelley A. Harvey, BCL, LLB
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