Mahoney,
J.:—The
applicants
seek
an
extension
of
time
within
which
to
bring
an
application
under
section
28
of
the
Federal
Court
Act
to
set
aside
the
decision
of
the
Minister
of
National
Revenue,
Customs
and
Excise,
which
held
that
goods
imported
by
the
applicants
had
been
misdescribed
and
undervalued
and
demanded
payment
by
way
of
an
ascertained
forfeiture
in
the
sum
of
$169,151.84.
Such
an
application
may
be
granted
if
the
entire
delay
is
satisfactorily
accounted
for,
concerning
which
I
see
no
apparent
difficulty,
and
if
the
application
discloses
a
fairly
arguable
case
within
the
jurisdiction
of
the
Federal
Court
of
Appeal
under
section
28.
One
of
the
effects
of
section
29
of
the
Federal
Court
Act
is
to
oust
the
jurisdiction
of
the
Federal
Court
of
Appeal
under
section
28
when
express
provision
is
made
in
an
Act
of
Parliament
for
an
appeal
from
the
decision
in
issue
to
the
Federal
Court,
Trial
Division.
The
circumstances
underlying
the
proposed
section
28
application
arise
out
of
the
coming
into
force
of
the
Customs
Act,
S.C.
1986,
c.
1,
hereafter
"the
new
Act",
on
November
10,
1986,
evidently
without
either
comprehensive
transitional
provisions
or
responsible
departmental
officials
or
importers
being
prepared
for
an
abrupt
change.
This
is
but
one
of
many
similarly
based
problems
presented
to
the
Court.
In
some,
the
Minister
is
being
challenged
in
attempts
to
appeal
decisions
of
the
Tariff
Board.
The
new
Act
repealed
the
Customs
Act,
R.S.C.
1970,
c.
C-40,
hereafter
"the
former
Act",
with
only
the
following
relevant
transitional
provision:
169.(2)
Any
proceedings
instituted
under
the
former
Act
before
the
commencement
of
this
Act
shall
be
continued
and
completed
as
if
this
Act
and
any
regulations
made
hereunder
had
not
been
enacted.
The
present
forfeiture
was
initially
effected
July
28,
1986.
The
procedures
of
the
former
Act
were
followed
until,
on
December
5,
1986,
after
its
repeal,
the
Minister
communicated
a
decision
under
section
163
of
the
former
Act
by
a
notice
which
expressly
directed
attention
to
sections
160
to
167
of
that
Act.
The
applicants
took
timely
objection
under
section
165
and
the
Minister
then
instructed
the
Attorney
General
to
refer
the
matter
to
the
Federal
Court,
Trial
Division,
for
adjudication
as
provided
by
section
166.
Before
the
matter
was
so
referred
the
Attorney
General
noticed,
in
August
1987,
that
the
former
Act
had
been
repealed
and
that
the
new
Act
makes
no
provision
for
such
a
reference.
Rather,
the
new
Act,
by
subsection
131(2)
provides,
in
mandatory
terms,
that
"the
Minister
shall
forthwith
on
making
[the]
decision
.
.
.
serve
on
the
person
.
.
.
written
notice
thereof".
Thereupon,
by
subsection
135(1),
that
person
may
within
90
days
appeal
the
decision,
by
way
of
an
action,
to
the
Federal
Court,
Trial
Division.
The
term
"proceeding"
in
subsection
169(2)
of
the
new
Act
remains
to
be
authoritatively
construed.
A
number
of
challenging
questions
are
apparent
in
the
context
of
the
present
circumstances.
Was
the
process
within
the
Department
of
National
Revenue
a
"proceeding"
at
all
within
its
terms
so
as
to
render
valid
the
decision
under
the
repealed
section
163?
If
not,
is
the
Minister
obliged
to
restate
his
decision
in
terms
of
the
new
Act?
If
so,
does
that
"proceeding"
extend
beyond
the
decision
itself
to
include
the
adjudication
by
the
Federal
Court,
Trial
Division,
contemplated
by
the
repealed
section
166
or
is
that
adjudication
a
discrete
"proceeding"
not
contemplated
by
the
transitional
provision?
If
the
"proceeding"
under
the
former
Act
terminated
with
the
Minister's
decision
under
repealed
section
163,
did
notification
of
that
decision
fulfil
the
requirements
of
the
new
subsection
131(2)
so
as
to
start
the
90-day
clock
under
subsection
135(1)?
Important
as
those
questions
are,
the
bottom
line
in
so
far
as
the
proposed
section
28
application
is
concerned
is
that
Parliament
has,
under
both
the
former
Act
and
the
new
Act,
expressly
provided
for
an
appeal
from
the
decision
in
issue
to
the
Federal
Court,
Trial
Division.
It
follows
that,
whichever
the
Act
authorizing
the
forfeiture
decision,
this
Court
is
without
jurisdiction
to
entertain
the
proposed
application
and
that
this
application
for
an
extension
of
time
to
bring
it
must
be
dismissed.
In
conclusion,
I
would
simply
observe
that
since,
on
the
record,
it
is
apparent
that
both
parties
are
disposed
to
have
the
matter
adjudicated
and
since
the
method
and
forum
of
adjudication
under
both
Acts
are
identical
in
substance:
a
trial
in
the
Federal
Court,
Trial
Division,
with
the
burden
of
proof
resting
on
the
applicants,
surely
they
can
agree
to
get
it
before
that
Court
and
to
waive
procedural
and
limitation
of
action
objections
and
defences.
Those
objections,
if
valid
at
all,
are
founded
in
ignorance
of
the
law
on
the
part
of
those
charged
with
its
administration.
Order
The
application
for
an
extension
of
time
to
bring
an
application
under
section
28
of
the
Federal
Court
Act
to
set
aside
the
decision
of
the
Minister
of
National
Revenue,
Customs
and
Excise,
dated
December
5,
1986,
re:
Customs
Seizure
No.
65059/PA-1908,
is
refused.
Application
denied.
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