Homelife/Experience Realty Inc. v. Canada (Minister of Finance) et al., (2014) 458 F.T.R. 180 (FC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Strickland, J.
• Citation: (2014), 458 F.T.R. 180 (FC),2014 FC 657
• Date: 24 March 2014

Homelife/Experience Realty v. Can. (2014), 458 F.T.R. 180 (FC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. JL.014

Homelife/Experience Realty Inc. (appellant) v. The Minister of Finance and the Director, Financial Transactions and Reports Analysis Centre of Canada (respondents)

(T-27-10; 2014 FC 657; 2014 CF 657)

Indexed As: Homelife/Experience Realty Inc. v. Canada (Minister of Finance) et al.

Federal Court

Strickland, J.

July 4, 2014.

Summary:

The Director of the Financial Transactions and Reports Analysis Centre of Canada made a decision under s. 73.15(2) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act that a realty company committed four violations of the Act and its Regulations. The Director determined that the company failed to appoint a person to implement a compliance program, failed to develop and apply written compliance policies, failed to assess and document the risk, and failed to develop and maintain a written ongoing compliance training program for employees. The Director imposed an administrative monetary penalty of $27,000. The company appealed under s. 73.21 of the Act, arguing that it exercised due diligence by making reasonable attempts to meet its compliance obligations.

The Federal Court, applying the reasonableness standard of review, allowed the appeal in part. The Director's decision that the company committed four violations of the Act was reasonable. However, the penalty imposed was set aside and remitted for redetermination. Due to the lack of intelligibility respecting the reasons for the penalty, it was impossible for the court to determine how the amount was determined, whether mitigating or aggravating factors were considered, and what sentencing principles were applied.

Criminal Law - Topic 1995

Offences against property - Money laundering and terrorist financing legislation - Compliance offences - Defences (incl. due diligence) - The Director of the Financial Transactions and Reports Analysis Centre of Canada made a decision under s. 73.15(2) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act that a realty company committed four violations of the Act and its Regulations - The Act implemented measures to detect and deter money laundering and terrorist financing - Businesses susceptible to being used for that purpose were required to develop and apply procedures and policies to allow the business to assess, in the course of their activities, the risk of a money laundering or terrorist activity financing offence - The Director determined that the company failed to appoint a person to implement a compliance program, failed to develop and apply written compliance policies, failed to assess and document the risk, and failed to develop and maintain a written ongoing compliance training program for employees - The Director imposed an administrative monetary penalty of $27,000 - The company appealed under s. 73.21 of the Act, arguing that it exercised due diligence by making reasonable attempts to meet its compliance obligations - The Federal Court, applying the reasonableness standard of review, allowed the appeal in part - The Director's decision that the company committed four violations of the Act was reasonable - However, the penalty imposed was set aside and remitted for redetermination - Due to the lack of intelligibility respecting the reasons for the penalty, it was impossible for the court to determine how the amount was determined, whether mitigating or aggravating factors were considered, and what sentencing principles were applied - The court was unable to determine whether the penalty imposed was reasonable or not - See paragraphs 27 to 70.

Criminal Law - Topic 1997

Offences against property - Money laundering and terrorist financing legislation - Compliance offences - Appeals (incl. standard of review) - [See Criminal Law - Topic 1995 ].

Criminal Law - Topic 1999

Offences against property - Money laundering and terrorist financing legislation - Compliance offences - Penalties - [See Criminal Law - Topic 1995 ].

Cases Noticed:

Max Realty Solutions Ltd. v. Canada (Attorney General) (2014), 458 F.T.R. 160; 2014 FC 656, refd to. [para. 2].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 25].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 25].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 27].

Mega International Commercial Bank (Canada) v. Canada (Attorney General) (2012), 407 F.T.R. 232; 2012 FC 407, refd to. [para. 29].

Doyon v. Canada (Attorney General) (2009), 395 N.R. 176; 2009 FCA 152, refd to. [para. 31].

Rowan et al. v. Ontario Securities Commission (2012), 290 O.A.C. 159; 2012 ONCA 208, refd to. [para. 31].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 32].

Home Depot of Canada Inc. v. Minister of National Revenue, 2009 TCC 281, refd to. [para. 33].

Franck v. Minister of National Revenue, 2011 TCC 179, refd to. [para. 33].

Toronto-Dominion Bank v. Hylton (2010), 270 O.A.C. 98; 2010 ONCA 752, refd to. [para. 33].

R. v. Ellis Don Corp., 2006 ONCJ 590, refd to. [para. 33].

R. v. Sgotto, 2009 ONCJ 48, refd to. [para. 33].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 45].

Lemire v. Canadian Human Rights Commission - see Canadian Human Rights Commission v. Warman et al.

Canadian Human Rights Commission v. Warman et al. (2014), 456 N.R. 200; 2014 FCA 18, refd to. [para. 69].

Statutes Noticed:

Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, sect. 73.24 [para. 44].

Counsel:

Harry Margosutjahjo, for the appellant;

James Gorham, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This appeal was heard on March 24, 2014, at Toronto, Ontario, before Strickland, J., of the Federal Court, who delivered the following judgment on July 4, 2014.