Ottawa, Ontario, Tuesday, the 22nd day of November, 2005
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
ULENE TAMARA KERZNER
aka TAMARA KERZNER
Applicant
- and -
MINISTER OF NATIONAL REVENUE (CANADA)
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Kerzner, by this application, seeks an extension of time within which to apply for a decision from the Minister of National Revenue (the "Minister") under section 131 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). The application is brought under section 129.2 of the Customs Act and arises out of an earlier application for an extension of time, pursuant to section 129.1 of the Customs Act, and a refusal by the Minister, dated February 1, 2005, to grant that extension.
Background
[2] On June 11, 2004, Ms. Kerzner passed through a border crossing between British Columbia and Washington, bringing a package into Canada that originated with a relative in the United States. At the border, Ms. Kerzner declared the package at a value of $200.00. Canadian customs officers Cecilia Greenhalgh and Randy Chreptyk suspected that the package had a higher value than had been claimed, but Ms. Kerzner could not verify the actual value at the time. Officer Greenhalgh retained possession of the package. Later that evening, Mr. Kerzner, the Applicant's husband, e-mailed Officer Greenhalgh with the exact value of the package, $519.95, and stated that Ms. Kerzner had made an "incorrect declaration". Shortly after midnight, Mr. Kerzner attended the customs office and paid the required taxes and penalties.
[3] A Canada Border Services Agency ("CBSA") Customs Seizure Receipt was completed on June 12, 2004, by one of the officers. This document states that "[t]he said goods were seized because they have been unlawfully imported by reason of Undervaluation (Sec. 32(1), C.A.)". Prominently described on the face of the Seizure Receipt are the rights of the recipient to request a Minister's Decision within 90 days and to apply for an extension of the 90-day limitation pursuant to section 129.1 of the Customs Act. A single copy of the Seizure Receipt is contained in the CBSA file record, provided to the Court and the parties to this application.
[4] Some six months later, in December, 2004, Ms. Kerzner applied for a Nexus pass (Nexus is a program to facilitate efficient border crossing between Canada and the U.S.A.). Ms. Kerzner's application was denied because of the customs' seizure record on her file, which record related to the June 2004 event. Mr. and Ms. Kerzner then sought to expunge the seizure record from Ms. Kerzner's file; the only way to do that was to apply under the relevant provisions of the Customs Act.
[5] Section 129 of the Customs Act allows a person from whom goods have been seized to apply to the Minister for a decision as to whether there was, based on the circumstances, a contravention of the Act. However, an application under section 129 can only be made within 90 days of the seizure. If the person affected misses the 90-day limitation in section 129, she may apply under section 129.1 for an extension of time. Since Ms. Kerzner was out of time, on December 7, 2004, Mr. Kerzner wrote to CBSA requesting an extension of time to request a review of the seizure. This letter was treated as an application to the Minister for an extension of time pursuant to subsection 129.1(1).
[6] In a decision dated February 1, 2005, the Minister denied the request. Having been denied the extension request by the Minister, Ms. Kerzner brings this application pursuant to section 129.2 of the Customs Act.
Issues
[7] The overarching issue is whether this Court is satisfied that Ms. Kerzner's application may be granted. Stated in other words, to succeed in this application, Ms. Kerzner must convince me that all of the elements set out in subsection 129.2(4) have been met. In particular, for this application, the determinative issue is whether Ms. Kerzner can demonstrate that she was unable to act or had a bona fide intention to request a decision within the time set out in subsection 129(1) of the Customs Act.
Statutory Framework
[8] The ability of Ms. Kerzner to apply to the Federal Court for an extension of time that has been dismissed by the Minister arises from the operation of section 129.2 of the Customs Act. The power of the Federal Court must be examined in light of the entire scheme for dealing with seizures in the Customs Act. The relevant provisions are set out in Appendix A of these reasons.
[9] If I allow this application, the result will be that the Minister will be required to make a decision under paragraph 131(1)(a) of the Customs Act.
[10] This provision of the Customs Act requires the Minister to decide whether Ms. Kerzner has an adequate defence to the strict liability offence of failing to properly declare goods. I note this possible outcome of this application to highlight the limited jurisdiction of this Court; I cannot overturn the seizure. Further, neither this Court nor the Minister, acting under these provisions of the Customs Act, can approve the issuance of a Nexus pass; that is a completely different application procedure.
Analysis
[11] As noted above, I cannot grant this application unless Ms. Kerzner convinces me that she meets all of the elements set out in subsection 129.2(4). In this case, the arguments of the parties focussed on subparagraph 129.2(4)(b)(i). This provision requires Ms. Kerzner to persuade me that, within the 90 days following the seizure:
· She was unable to act or instruct another person to act in her name to request a decision from the Minister; or
· She had a bona fide intention to request a decision.
[12] Ms. Kerzner maintains that her husband did not receive a Seizure Receipt when he paid the taxes and fines for the package, and that his testimony in this regard was not challenged on cross-examination. Therefore, in her view, the testimony of Mr. Kerzner must be accepted (Browne v. Dunn, [1984] 6 R. 67 (H.L.) at 70-71, 76-77; Parke-Davis Division, Warner-Lambert Canada Inc. v. Canada (Minister of Health) 2002 FCA 454, 22 C.P.R. (4th) 417 at paras. 98-104). She also points out that Officer Greenhalgh, on cross-examination on her affidavit, admitted that she does not remember giving the notice to Mr. Kerzner and that the officer's notes do not contain any reference to this particular seizure. In any event, Ms. Kerzner submits that any notice that her husband may have received is irrelevant, as there is no legal presumption that one spouse is the agent of another (Millard v. Bevan Lbr. & Shingle Co., [1928] 2 D.L.R. 367 (B.C.C.A.)).
Notice of Seizure
[13] While the parties do not disagree on the facts set out above, they dispute whether Ms. Kerzner ever received notice that the package had been "seized" by the CBSA. The critical point of disagreement is whether a copy of the Seizure Receipt was ever delivered to Ms. Kerzner or Mr. Kerzner. This document goes to the question of whether the Kerzners ever knew that the package was the subject of a seizure. If they did not know that they were subject to a seizure until advised during the Nexus application process, the logical conclusion would be that they were unable to bring an application under section 129 within the 90-day time frame.
[14] To determine this issue requires that I deal with conflicting testimony from Mr. Kerzner, who claims that he never received the Seizure Receipt, and Officer Greenhalgh, who claims that he did.
[15] In contrast to the evidence referred to by Ms. Kerzner, there is significant evidence pointing to a conclusion that Mr. Kerzner did receive a copy of the Seizure Receipt. In her affidavit, Officer Greenhalgh states that she explained to Mr. Kerzner that the package had been seized, the reason for the exact amount of taxes and penalties that he paid, gave him the Seizure Receipt, and drew his attention to the paragraphs on the Receipt explaining the right to request a review. All of this, she swore, was done as part of the officer's ordinary practice. Officer Greenhalgh's testimony as to her usual practice of giving a copy of the Report to the person affected did not waiver on cross examination. Officer Greenhalgh also testified that she deals with about 1500 seizures in a year. With respect to the omission of any handwritten notes in her notebook (the usual practice), she explained that her notebook was full and that she made notes in the computer that evening. I find her testimony to be clear and honest.
[16] I also note the testimony of Officer Greenhalgh that the customs office system creates two copies of all Seizure Receipts, with one going to the affected person and the other remaining in the file. In this case, only one copy of the Seizure Receipt was contained in the file. A reasonable inference from the testimony is that the other copy was given to Mr. Kerzner.
[17] Directly contradicting the sworn testimony of Mr. Kerzner is the December 7, 2004 letter written by Mr. Kerzner. In that letter, Mr. Kerzner states explicitly that "I am responding on [Ms. Kerzner's] behalf as I was the person who picked up the "seized items" and was given the seizure notice" [emphasis added]. No explanation for this statement was given by either Mr. Kerzner or Ms. Kerzner. On its face, it is an unequivocal admission that he received a copy of something that he calls a "seizure notice". Logically, he is referring to the Seizure Receipt.
[18] Having carefully reviewed the testimony and evidence, I am satisfied that, on a balance of probabilities, Mr. Kerzner was given a copy of the Seizure Receipt. It follows that he had notice of the seizure on June 12, 2004.
[19] I acknowledge that neither Mr. nor Ms. Kerzner were likely aware of the consequences of the seizure upon the subsequent application for a Nexus pass. This or any consequence, however, is irrelevant to the application before me. The focus in paragraph 129.2(4)(b) is simply whether the applicant is unable to request a decision and not whether the applicant was unaware of the consequences of a seizure on other processes.
Notice not given to Ms. Kerzner
[20] The person named on the Seizure Receipt is "BELZBERG, Ulene Tamara". No one disputes that this is the applicant, Ms. Kerzner. Does it matter that the Seizure Notice, although naming his wife, was provided to Ms. Kerzner? In my view, on the facts of this case, it does not. Ms. Kerzner cannot insulate herself from the effects of her actions through this argument.
[21] There is, as asserted by Ms. Kerzner, a presumption that the relationship between spouses does not create an agency by one spouse for the other. However, this presumption can be rebutted, with the burden on the party alleging agency "to prove that authority either directly or by inference" (Millard, at p. 371). In this case, I am satisfied that Mr. Kerzner was acting, at all times, as agent of his wife. After the initial seizure, it was Mr. Kerzner who communicated with CBSA by e-mail, who came to the border crossing and who, on December 7, 2004, wrote to ask for a Minister's decision.
Application of these findings to the test in subparagraph 129.2(4)(b)(i)
[22] Since I have found that Mr. Kerzner, as agent of his wife, had notice of the seizure, I am not persuaded that Ms. Kerzner was "unable" to request a Minister's decision.
[23] I turn now to consider whether Ms. Kerzner had a bona fide intention to request a decision within the 90-day limitation period. There is no evidence, apart from the submissions on the alleged failure to have notice of the seizure, that addresses this aspect of subparagraph 129.2(4)(b)(i). Indeed, the evidence establishes that the intention to request a decision only arose in December 2004. The strongest support for this intention is set out in the December 7, 2004 letter of Mr. Kerzner where he makes it clear that his intention to request a Minister's decision only arose when CBSA refused to issue a Nexus pass.
Conclusion
[24] In conclusion, Ms. Kerzner has not persuaded me that, within the 90 days following the seizure:
· She was unable to act or instruct another person to act in her name to request a decision from the Minister; or
· She had a bona fide intention to request a decision.
Since Ms. Kerzner has not met all the criteria set out in paragraph 129.2(4), it follows that I may not grant the application.
ORDER
THIS COURT ORDERS that:
1. The application is dismissed;
2. In my discretion, I decline to award costs.
"Judith A. Snider"
____________________________
Judge
| APPENDIX A
Customs Act R.S., 1985, c. 1 (2nd Supp.)
129. (1) The following persons may, within ninety days after the date of a seizure or the service of a notice, request a decision of the Minister under section 131 by giving notice in writing, or by any other means satisfactory to the Minister, to the officer who seized the goods or conveyance or served the notice or caused it to be served, or to an officer at the customs office closest to the place where the seizure took place or closest to the place from where the notice was served:
(a) any person from whom goods or a conveyance is seized under this Act;
(b) any person who owns goods or a conveyance that is seized under this Act;
(c) any person from whom money or security is received pursuant to section 117, 118 or 119 in respect of goods or a conveyance seized under this Act; or
(d) any person on whom a notice is served under section 109.3 or 124.
(2) The burden of proof that notice was given under subsection (1) lies on the person claiming to have given the notice.
... 129.2 (1) A person may apply to the Federal Court to have their application under section 129.1 granted if
(a) the Minister dismisses that application; or
(b) ninety days have expired after the application was made and the Minister has not notified the person of a decision made in respect of it.
If paragraph (a) applies, the application under this subsection must be made within ninety days after the application is dismissed.
(2) The application must be made by filing a copy of the application made under section 129.1, and any notice given in respect of it, with the Minister and the Administrator of the Court.
(3) The Court may grant or dismiss the application and, if it grants the application, may impose any terms that it considers just or order that the request under section 129 be deemed to have been made on the date the order was made.
(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.
...
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
(a) in the case of goods or a conveyance seized or with respect to which a notice was served under section 124 on the ground that this Act or the regulations were contravened in respect of the goods or the conveyance, whether the Act or the regulations were so contravened; |
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Loi sur les Douanes L.R. (1985), ch. 1 (2e suppl.)
129. (1) Les personnes ci-après peuvent, dans les quatre-vingt-dix jours suivant la saisie ou la signification de l'avis, en s'adressant par écrit, ou par tout autre moyen que le ministre juge indiqué, à l'agent qui a saisi les biens ou les moyens de transport ou a signifié ou fait signifier l'avis, ou à un agent du bureau de douane le plus proche du lieu de la saisie ou de la signification, présenter une demande en vue de faire rendre au ministre la décision prévue à l'article 131_:
a) celles entre les mains de qui ont été saisis des marchandises ou des moyens de transport en vertu de la présente loi;
b) celles à qui appartiennent les marchandises ou les moyens de transport saisis en vertu de la présente loi;
c) celles de qui ont été reçus les montants ou garanties prévus à l'article 117, 118 ou 119 concernant des marchandises ou des moyens de transport saisis en vertu de la présente loi;
d) celles à qui a été signifié l'avis prévu aux articles 109.3 ou 124.
(2) Il incombe à la personne qui prétend avoir présenté la demande visée au paragraphe (1) de prouver qu'elle l'a présentée. ...
129.2 (1) La personne qui a présenté une demande de prorogation en vertu de l'article 129.1 peut demander à la Cour fédérale d'y faire droit_:
a) soit après le rejet de la demande par le ministre;
b) soit à l'expiration d'un délai de quatre-vingt-dix jours suivant la présentation de la demande, si le ministre ne l'a pas avisée de sa décision.
La demande fondée sur l'alinéa a) doit être présentée dans les quatre-vingt-dix jours suivant le rejet de la demande.
(2) La demande se fait par dépôt auprès du ministre et de l'administrateur de la Cour d'une copie de la demande de prorogation présentée en vertu de l'article 129.1 et de tout avis donné à son égard.
(3) La Cour peut rejeter la demande ou y faire droit. Dans ce dernier cas, elle peut imposer les conditions qu'elle estime justes ou ordonner que la demande soit réputée avoir été présentée à la date de l'ordonnance.
(4) Il n'est fait droit à la demande que si les conditions suivantes sont réunies_:
a) la demande de prorogation a été présentée en vertu du paragraphe 129.1(1) dans l'année suivant l'expiration du délai prévu à l'article 129;
b) l'auteur de la demande établit ce qui suit_:
(i) au cours du délai prévu à l'article 129, il n'a pu ni agir ni mandater quelqu'un pour agir en son nom, ou il avait véritablement l'intention de demander une décision,
(ii) il serait juste et équitable de faire droit à la demande,
(iii) la demande a été présentée dès que possible.
...
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_:
a) le motif d'infraction à la présente loi ou à ses règlements pour justifier soit la saisie des marchandises ou des moyens de transport en cause, soit la signification à leur sujet de l'avis prévu à l'article 124; |
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-684-05
STYLE OF CAUSE: ULENE TAMARA KERZNER aka TAMARA KERZNER v.
MINISTER OF NATIONAL REVENUE (CANADA)
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 9, 2005
REASONS FOR ORDER
AND ORDER: SNIDER J.
DATED: November 22, 2005
APPEARANCES:
Amelia J. Staunton FOR THE APPLICANT
Neva Beckie FOR THE RESPONDENT
SOLICITORS OF RECORD:
Blake Cassels & Graydon LLP FOR THE APPLICANT
Vancouver, British Columbia
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada