Date: 20110901
Docket: A-1-11
Citation: 2011 FCA 241
CORAM: SHARLOW J.A.
DAWSON J.A.
MAINVILLE
J.A.
BETWEEN:
MINISTER
OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellant
(Defendant)
and
DEREK
PRUE
Respondent (Plaintiff)
Dealt with in writing without appearance
of parties.
Judgment delivered
at Ottawa, Ontario, on September 1, 2011.
REASONS
FOR JUDGMENT BY: SHARLOW
J.A.
CONCURRED
IN BY: DAWSON J.A.
MAINVILLE
J.A.
Date: 20110901
Docket:
A-1-11
Citation: 2011 FCA 241
CORAM: SHARLOW
J.A.
DAWSON J.A.
MAINVILLE
J.A.
BETWEEN:
MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellant
(Defendant)
and
DEREK PRUE
Respondent (Plaintiff)
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
The
Minister of Public Safety and Emergency Preparedness has appealed the judgment
of Justice Mosley dated December 7, 2010 (2010 FC 1234). That judgment allowed
the appeal of the respondent Mr. Prue from the decision of the Minister to
uphold a notice of ascertained forfeiture issued under the Customs Act,
R.S. 1985, c. 1 (2nd Supp.), and required the parties to bear their
own costs. Mr. Prue has cross-appealed the costs award.
[2]
According
to Justice Mosley’s reasons, the notice of ascertained forfeiture relates to
Mr. Prue’s undeclared importation of a vehicle in 2001. The notice was served
on Mr. Prue on May 8, 2002. The amount of the ascertained forfeiture was
$18,178.61, an amount that would bear interest until paid. Mr. Prue appealed to
the Minister on a timely basis pursuant to sections 129(d) and 131 of the Customs
Act. His notice of appeal was misplaced for three and one-half years, with
the result that it was not until December 13, 2005 that the Minister made a
decision to confirm the ascertained forfeiture. The decision was not
communicated to Mr. Prue until March of 2008 through no fault of the Minister.
[3]
The
closing paragraphs of Justice Mosley’s reasons summarized the basis upon which
he quashed the Minister’s decision to confirm the notice of ascertained
forfeiture:
|
[45] It is apparent that both parties
involved in this matter have not diligently observed their responsibilities.
Mr. Prue was obliged to declare the vehicle on bringing it into Canada which
he failed to do. In other circumstances, I would have had little difficulty
in finding that the seizure and forfeiture of the vehicle or the forfeiture
of its assessed value was warranted.
[46] But Mr. Prue was entitled pursuant to s.
131(1) of the Customs Act, to receive reasons for
the Minister's decision on his appeal of the forfeiture within a time period
that is "reasonably possible having regard to the circumstances".
That did not happen due to an error on the part of the Minister's officials
in misplacing the plaintiff's request for a decision. This caused a three and
a half-year delay in providing the plaintiff with reasons for the notice of
ascertained forfeiture.
[47] There
are no circumstances in this case which justify a delay of three and a half
years in making a decision and providing reasons to Mr. Prue. I find that
there was a failure to comply with s. 131(1), that Mr. Prue was prejudiced by
that failure and was denied natural justice. Consequently, I find in his
favour.
[48] In
the particular circumstances of this case, I will not award costs to Mr. Prue
despite his success in the outcome. As I have found above, the ascertained
forfeiture was reasonable. But for the error on the part of the Minister to
consider his request to review the forfeiture in a timely manner, Mr. Prue
would have been liable for that amount.
|
[4]
Subsection
131(1) of the Customs Act reads in relevant part as follows (my
emphasis):
|
131.
(1) After the expiration of the thirty days referred to in subsection
130(2), the Minister shall, as soon as is reasonably possible having
regard to the circumstances, consider and weigh the circumstances of the
case and decide ….
|
131. (1) Après l’expiration des
trente jours visés au paragraphe 130(2), le ministre étudie, dans les
meilleurs délais possible en l’espèce, les circonstances de l’affaire et
décide si c’est valablement qu’a été retenu, selon le cas : […]
|
[5]
The Minister’s
memorandum of fact and law was served and filed on April 15, 2011. At that
time, Mr. Prue was represented by counsel. Shortly thereafter, Mr. Prue served
the Minister with a notice of intention to act in person.
[6]
Mr.
Prue was obliged by Rule 346(2) of the Federal Courts Rules, SOR/98-106,
to file his memorandum of fact and law by May 16, 2011, but failed to do so.
Therefore, he is in default.
[7]
The
Minister was obliged by Rule 347 to serve and file a requisition for hearing
within 20 days after service of Mr. Prue’s memorandum of fact and law or 20
days after the expiration of the time for service of the respondent’s
memorandum of fact and law, whichever was earlier. Since Mr. Prue did not file
a memorandum of fact and law, the time for filing the requisition for hearing
expired on June 6, 2011. The Minister did not file a requisition by that date, and
so the Minister is also in default.
[8]
On
July 12, 2011, a notice of status review was issued because no requisition for
hearing had been filed within 180 days of the issuance of the notice of appeal.
The notice of status review required Mr. Prue to file, within 30 days,
“representations stating the reasons why default judgment should not be
entered”. The representations were to include “a justification for the delay
and a proposed timetable for completion of the steps necessary to advance the
proceedings in an expeditious manner.” Mr. Prue filed no representations.
[9]
According
to the notice of status review, the Minister was entitled to serve and file
representations within 10 days after being served with the representations of
Mr. Prue. Although Mr. Prue filed nothing, the Minister has filed representations
suggesting that this Court make an order dismissing Mr. Prue’s cross appeal and
scheduling the Minister’s appeal for hearing as soon as possible.
[10]
In
my view, that is a reasonable suggestion and I would accept it.
“K. Sharlow”
“I agree
Eleanor R. Dawson J.A.”
“I
agree
Robert M.
Mainville J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-1-11
STYLE OF CAUSE: Minister
of Public Safety and Emergency Preparedness v. Derek Prue
MOTION
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
CONCURRED IN BY: DAWSON J.A.
MAINVILLE J.A.
DATED: September 1, 2011
WRITTEN
REPRESENTATIONS BY:
|
Kerry E. S. Boyd
|
FOR
THE APPELLANT (DEFENDANT)
|
|
Derek Prue
|
FOR
THE RESPONDENT (PLAINTIFF)
(SELF
REPRESENTED)
|
SOLICITORS
OF RECORD:
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR
THE APPELLANT (DEFENDANT)
|
|
N/A
|
FOR
THE RESPONDENT (PLAINTIFF)
(SELF
REPRESENTED)
|
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