Date: 20051003
Docket: T-1337-05
Citation: 2005 FC 1355
Montréal, Quebec, October 3, 2005
PRESENT: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
CAMILLE WANNA
Applicant
and
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] This is a motion by the respondent pursuant to paragraphs 208(d) and 221(1)(a) of the Federal Courts Rules (the Rules) to strike out the statement of claim filed in this case and dismiss the applicant’s action on the grounds that the latter cannot in the guise of an action not provided for in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act , S.C. 2000, c. 17 (the Act), obtain relief otherwise provided for under sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, within the allotted time, which has expired.
Background
[2] On September 6, 2004, as the applicant was about to leave Canada from Dorval Airport on a trip to Lebanon, a number of computers and the amount of $68,000 were seized from him as forfeit pursuant to subsection 18(1) of the Act.
[3] Pursuant to section 25 of the Act, a person from whom currency or monetary instruments have been seized may, within 90 days of the date of the seizure, request a decision of the Minister as to whether subsection 12(1) was contravened.
[4] As the seizure was made on September 6, 2004, the applicant had to submit his application for review to the respondent within 90 days of the seizure, that is, on or before December 5, 2004. However, the application for review was dated December 6, 2004 and, moreover, not received until December 8, 2004.
[5] The Minister’s representative refused to consider the application for review on the ground that it was sent after the 90 days had expired. He informed counsel for the applicant of his decision in a letter dated January 5, 2005 (the decision of January 5, 2005).
[6] Nevertheless, the applicant now seeks by way of an action to have the decision of January 5, 2005 set aside.
[7] The relevant sections of the Act read as follows:
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12. (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount.
18. (1) If an officer believes on reasonable grounds that subsection 12(1) has been contravened, the officer may seize as forfeit the currency or monetary instruments.
24. The forfeiture of currency or monetary instruments seized under this Part is final and is not subject to review or to be set aside or otherwise dealt with except to the extent and in the manner provided by sections 25 to 30.
25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place.
27. (1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened.
(2) If charges are laid with respect to a money laundering offence or a terrorist activity financing offence in respect of the currency or monetary instruments seized, the Minister may defer making a decision but shall make it in any case no later than 30 days after the conclusion of all court proceedings in respect of those charges.
(3) The Minister shall, without delay after making a decision, serve on the person who requested it a written notice of the decision together with the reasons for it.
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12. (1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l'agent, conformément aux règlements, l'importation ou l'exportation des espèces ou effets d'une valeur égale ou supérieure au montant réglementaire.
18. (1) S'il a des motifs raisonnables de croire qu'il y a eu contravention au paragraphe 12(1), l'agent peut saisir à titre de confiscation les espèces ou effets.
24. La confiscation d'espèces ou d'effets saisis en vertu de la présente partie est définitive et n'est susceptible de révision, de rejet ou de toute autre forme d'intervention que dans la mesure et selon les modalités prévues aux articles 25 à 30.
25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l'article 18 ou leur propriétaire légitime peut, dans les quatre‑vingt‑dix jours suivant la saisie, demander au ministre de décider s'il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l'agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie.
27. (1) Dans les quatre‑vingt‑dix jours qui suivent l'expiration du délai mentionné au paragraphe 26(2), le ministre décide s'il y a eu contravention au paragraphe 12(1).
(2) Dans le cas où des poursuites pour infraction de recyclage des produits de la criminalité ou pour infraction de financement des activités terroristes ont été intentées relativement aux espèces ou effets saisis, le ministre peut reporter la décision, mais celle‑ci doit être prise dans les trente jours suivant l'issue des poursuites.
(3) Le ministre signifie sans délai par écrit à la personne qui a fait la demande un avis de la décision, motifs à l'appui.
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30. (1) A person who requests a decision of the Minister under section 25 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant.
[Emphasis added] |
30. (1) La personne qui a présenté une demande en vertu de l'article 25 peut, dans les quatre‑vingt‑dix jours suivant la communication de la décision, en appeler par voie d'action devant la Cour fédérale à titre de demandeur, le ministre étant le défendeur.
[Non souligné dans l’original.] |
Analysis
[8] As the respondent noted, the Court was called on in the past, in Murtaza v. Minister of National Revenue, 2004 FC 1002, to analyse a dynamic similar to the one before us now. Here, too, the only issue before the Court is whether it has jurisdiction within the framework of the action by the applicant to overturn the decision of January 5, 2005.
[9] For the reasons that follow, I believe that the question must be answered in the negative and, consequently, that the motion under consideration must be granted.
[10] Under section 17 of the Federal Courts Act, supra, an applicant may obtain relief against the Crown through a proceeding “except as otherwise provided in this Act or any other Act of Parliament.”
[11] Section 24 of the Act stipulates that the forfeiture of currency seized is not subject to review except to the extent and in the manner provided by sections 25 to 30 of the Act. Within this restricted framework, subsection 30(1) of the Act provides a right of action before this Court. However, that subsection must be read carefully.
[12] Under subsection 30(1), a person who requests a decision of the Minister under section 25 may, within ninety (90) days after being notified of the decision, appeal the decision by way of an action before this Court.
[13] In order for an application to be considered a section 25 request to the Minister, a number of conditions must be met, inter alia, that the request was made in accordance with the provisions of section 25, that is, within 90 days of the seizure. Such was not the case here. Consequently, the decision by the Minister on January 5, 2005 cannot be considered a decision arising from section 25 and subsection 30(1) of the Act, which is the only type of decision giving rise to an appeal by way of an action before this Court.
[14] There is no doubt that the decision of January 5, 2005 is an executive decision. In theory, however, it could be opposed by way of an application for judicial review, if the applicant first obtained upon motion an extension of the deadline under subsection 18.1(2) of the Federal Courts Act, supra. Within the framework of such a motion for extension of time presented before a judge of this Court, the respondent would have to argue that no extension of time is warranted under subsection 18.1(2) of the Federal Courts Act because, ultimately, that very 90-day deadline under section 25 of the Act is not, according to his assertions, open to extension.
[15] For these reasons, the statement of claim by the applicant should be struck and his action pursuant to paragraphs 208(d) and 221(1)(a) of the Rules dismissed with costs.
[16] As the respondent filed in T-1339-05 a motion to strike similar to this one, it is hereby decreed that these reasons are also applicable mutatis mutandis to T-1339-05, and a separate order will be issued at the same time in that matter striking the statement of claim by the applicants and dismissing their action pursuant to paragraphs 208(d) and 221(1)(a) of the Rules, with costs.
[17] In the present case, that is, T-1337-05, there is another significant factor opposing the applicant’s action.
[18] It is useful to examine this point as well because, during the hearing of the respondent’s motion to strike, counsel for the applicant called the Court’s attention to a document that attempts to establish that the disputed seizure occurred on September 9, 2004 and not on September 6, meaning that the decision of January 5, 2005 would meet the deadline set out in section 25 of the Act.
[19] However, as the respondent pointed out in his motion record, at paragraphs 26 et seq. of his written submissions:
[TRANSLATION]
26. Had the applicant’s request for the review of the Minister’s decision been fully in accordance with the provisions of section 25 of the Act, and had the decision of the Minister dated January 5, 2005 been susceptible to legal challenge under section 30 of the Act, the applicant would have faced another hurdle: under section 30 of the Act, he would have had 90 days within which to appeal to the Federal Court by way of an action.
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30. (1) A person who requests a decision of the Minister under section 25 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant. |
30. (1) La personne qui a présenté une demande en vertu de l’article 25 peut, dans les quatre-vingt-dix jours suivant la communication de la décision, en appeler par voie d’action devant la Cour fédérale à titre de demandeur, le ministre étant le défendeur. |
27. Since the applicant was notified of the decision of January 5, 2005 on that same day (paragraph 16 of the Statement), the applicant would have had until the beginning of April 2005 to challenge the decision in Court. However, the applicant did not bring his action until August 1, 2005, about four months later.
28. The Court does not have jurisdiction to extend the deadline under section 30 of the Act, for the reasons previously set out in Kazazian and Solicitor General for Canada, [2004] FC 1177.
[20] In the end, therefore, even if the applicant were perceived as having successfully met the requirements and complied with the deadline under section 25 of the Act, there would still have been the matter of the deadline for initiating an action before the Federal Court under subsection 30(1) of the Act .
[21] It is therefore clear, in my opinion, as decreed in the preceding, that the respondent’s motion must be granted with costs.
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“Richard Morneau” |
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PROTHONOTARY |
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-1337-05
CAMILLE WANNA v. MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 26, 2005
REASONS FOR ORDER BY: Prothonotary Morneau
DATED: October 3, 2005
APPEARANCES:
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Anthony Karkar |
FOR THE APPLICANT |
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Jacques Mimar |
FOR THE RESPONDENT |
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SOLICITORS OF RECORD:
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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FOR THE APPLICANT |
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