Tre Maiali Fashion Group Inc. c. Canada (Border Services Agency), 2010 FC 1261 (2010)

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Tre Maiali Fashion Group Inc. c. Canada (Border Services Agency), 2010 FC 1261 (2010)

Federal Court - Tre Maiali Fashion Group Inc. v. Canada (Border Services Agency)

Source: http://decisions.fct-cf.gc.ca/en/2010/2010fc1261/2010fc1261.html

Federal Court

Cour fédérale

Date: 20101209

Docket: T-1597-09

Citation: 2010 FC 1261

Ottawa, Ontario , December 9, 2010

PRESENT: The Honourable Mr. Justice Shore

BETWEEN:

TRE MAIALI FASHION GROUP INC.

Applicant

and

The president of the Canada border services agency

AND

THE MINISTER OF NATIONAL REVENUE

Respondents

REASONS FOR JUDGMENT AND JUDGMENT

I. Introduction

[1] In regard to the Customs Act , R.S.C. 1985, c. 1 (2 nd Supp.), it is not the Letter of Credit that is excluded outright, at all, it is the nature of the provisions, in the Letter of Credit, itself.

[2] Every case must be related directly to pertinent legislation and interpreted in light of relevant jurisprudence ( Highland Produce Ltd. v. Egg Farmers of Canada , 2010 FC 401, [2010] F.C.J. No. 475 (QL)), if such relevant jurisprudence exists. In an affidavit, the deficiencies of a Letter of Credit as a security is specified:

(a) inadequate wording to protect the total amount owing, including interest;

(b) reference to an “agreement” between the CBSA and the customer (the Applicant), when no such agreement has been entered into or proposed by the Applicant;

(c) being time-limited, with an expiry date of March 31, 2010; and

(d) no right to call-in the credit in the event that TD Canada Trust declines to issue a new letter upon its expiry.

II. Judicial Procedure

[3] This is an application for judicial review from a decision of the Canada Border Services Agency (CBSA), Regional Recourse Division, dated September 1, 2009, pursuant to subsection 60(1) (section 59) of the Customs Act , in which the Respondents found that the Applicant did not provide satisfactory security to the Minister in respect of the amount and interest owed to the Respondents, and for the issuance of a writ of mandamus pursuant to subsection 18.1(1) of the Federal Courts Act , R.S.C., 1985, c. F-7, and Rule 300 and following of the Federal Courts Rules , SOR/98-106.

III. Background

[4] The Applicant, Tre Maiali Fashion Group Inc., imported certain items of clothing from various suppliers allegedly from the United States of America .

[5] The Respondents conducted an origin audit of the importation of goods under the trademarks Affliction, LLC, Sinful, Xtreme, Couture and A...

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