PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is a motion for summary judgment brought by the Defendant, the Minister of Public Safety and Emergency Preparedness. The Minister seeks an order dismissing this action on the basis that it was commenced outside of the 90 day limitation period provided for in section 30 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, c. 17 (“the Act”).
[2] For the reasons that follow, I am satisfied that there is no genuine issue for trial with respect to Mr. Doukou’s claim, and that, therefore, his action must be dismissed.
Background
[3] In order to understand the facts giving rise to this motion, it is necessary to have some understanding of the legislative scheme provided for in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. To assist in this regard, the relevant provisions of the Act are attached as an appendix to this decision.
[4] The essential facts giving rise to this matter are not in dispute.
[5] On May 12, 2006, Mr. Doukou was travelling from Toronto to Amsterdam, en route to Accra, Ghana. He was asked by a Customs Officer if he was carrying currency worth more than $10,000 in Canadian funds. Mr. Doukou said that he was not, and that he was only carrying $200 in American funds.
[6] It was subsequently determined that Mr. Doukou was carrying $16,500 in American funds, or approximately $18,150 in Canadian dollars.
[7] As Mr. Doukou had failed to report to the Customs Officer in accordance with the requirements of the Cross-border Currency and Monetary Instruments Reporting Regulations, SOR/2002-412, contrary to the provisions of subsection 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the $16,500 in U.S. funds was seized as forfeit, pursuant to section 19 of the Act.
[8] In accordance with the provisions of section 25 of the Act, Mr. Doukou requested a decision from the Minister as to whether subsection 12(1) had been contravened. By letter dated October 13, 2006, the Minister issued a decision in accordance with section 27 of the Act, finding that there had been a contravention of subsection 12(1) in relation to the currency in issue.
[9] The Minister issued a second decision on October 13, 2006, this one under the provisions of section 29 of the Act, confirming that the seized funds were forfeited to Her Majesty the Queen in Right of Canada.
[10] Although there was initially a dispute as to when it was that Mr. Doukou was made aware of the decision under section 25 of the Act, at this point it is conceded by Mr. Doukou that he was provided with a copy of the decision on October 18, 2006.
[11] Subsection 30(1) of the Act provides a right of appeal in relation to decisions made under section 25 of the Act. Such an appeal is to be brought by way of an action in this Court “within 90 days after being notified of the decision”.
[12] On January 19, 2007, Mr. Doukou commenced an action in the Federal Court whereby he sought to appeal the Minister’s section 25 decision. His Statement of Claim was thus filed 93 days after he was notified of the Minister’s decision.
[13] The Minister now seeks an order dismissing this action on the basis that it was commenced outside of the 90 day limitation period provided for in the Act.
Mr. Doukou’s Position
[14] Mr. Doukou concedes that he made a mistake in failing to declare the currency, stating that he was unaware of his duty to declare the funds. He further states that he lied about the amount of money that he was carrying when he was asked by the Customs Officer, as he was in a hurry and didn’t want to be held up. He admits that he made a mistake in this regard.
[15] Mr. Doukou also explained that he had difficulty retaining counsel and obtaining documents relevant to his appeal. As I understand his submissions - not all of which were supported by evidence - he attempted to file his Statement of Claim prior to the expiry of the 90 day appeal period, but was not successful in doing so until after the expiry of the limitation period.
[16] Mr. Doukou says that he is neither a terrorist nor a money launderer, and asks that he be given his day in Court so as to be able to establish the provenance of the funds in question.
Principles Governing Summary Judgment
[17] Summary judgment in the Federal Court is governed, in part, by Rule 216 of the Federal Courts Rules, SOR/98-106, the operative portions of which provide that:
216. (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly …
|
216. (1) Lorsque, par suite d’une requête en jugement sommaire, la Cour est convaincue qu’il n’existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence …
|
[18] Judges hearing motions for summary judgment can only make findings of fact or law where the relevant evidence is available on the record, and does not involve a serious question of fact or law which turns on the drawing of inferences: see Apotex Inc. v. Merck & Co., [2003] 1 F.C. 242, 2002 FCA 210.
[19] In determining whether a case is so doubtful that it does not deserve consideration by the trier of fact at a future trial, a motions judge must proceed with care, as the effect of the granting of summary judgment will be to preclude a party from presenting any evidence at trial with respect to the issue in dispute. In other words, the unsuccessful responding party will lose its "day in court": see Apotex Inc. v. Merck & Co. (2004), 248 F.T.R. 82, 2004 FC 314 at ¶ 12, (aff’d 2004 FCA 298).
[20] With this understanding of the relevant principles governing motions for summary judgment, I turn now to consider the merits of the Minister’s motion.
Analysis
[21] Given that there is no dispute that Mr. Doukou’s appeal was commenced out of time, there are no relevant facts in dispute in this matter. The sole issue for determination on this motion is whether the limitation period contained in subsection 30(1) of the Act is absolute, or whether there is discretion in the Court to extend the limitation period in an appropriate case.
[22] In this regard, the jurisprudence is clear. That is, a limitation period fixed by statute cannot be extended by the Court unless the statute in question empowers the Court to extend the limitation period established by Parliament: see, for example, Dawe v. Canada (1994), 86 F.T.R. 240 (F.C.A.).
[23] In this case, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act contains no such language.
[24] While Dawe was a decision under the Customs Act, the principles articulated by the Federal Court of Appeal in that case are equally applicable to appeals under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act: see Kazazian v. Canada (Solicitor General), [2004] F.C.J. No. 1423.
[25] Subsection 30(2) of the Act provides that the Federal Courts Act, R.S. 1985, c. F-7, and the Federal Courts Rules apply to actions initiated under subsection 30(1), except as varied by special rules made in respect of such actions. While the Federal Courts Rules do permit the granting of extensions of time, they do not authorize the Court to dispense with statutory limitation periods: see Dawe, above, at ¶ 13.
[26] As a consequence, I am satisfied that Mr. Doukou’s claim is statute-barred. As such, there is no genuine issue for trial with respect to the claim, and summary judgment dismissing the claim is granted.
JUDGMENT
THIS COURTS ORDERS AND ADJUDGES THAT the motion for summary judgment is granted, and this action is dismissed, with costs.
APPENDIX
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-128-07
STYLE OF CAUSE: PATRICE DOUKOU v.
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
Patrice Doukou FOR THE PLAINTIFF
Jennifer Francis FOR THE DEFENDANT
SOLICITORS OF RECORD:
Mississauga, Ontario FOR THE PLAINTIFF
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE DEFENDANT