Hiebert v. Canada (Attorney General), 2003 FC 1503

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: September 24, 2003
• Jurisdiction: Canada (Federal)
• Citations: 2003 FC 1503;(2003), 243 F.T.R. 168 (FC)

Hiebert v. Can. (A.G.) (2003), 243 F.T.R. 168 (FC)

MLB headnote and full text

Temp. Cite: [2004] F.T.R. TBEd. JA.018

Linda Heibert (applicant) v. Attorney General of Canada (respondent)

(T-66-02; 2003 FC 1503)

Indexed As: Hiebert v. Canada (Attorney General)

Federal Court

Russell, J.

December 19, 2003.

Summary:

The applicant was served a Notice of Ascertained Forfeiture under s. 124 of the Customs Act. Pursuant to s. 129 of the Act, the applicant requested a review by the Minister of National Revenue. The Minister dismissed her application. The applicant made an application under s. 3.3(1) of the Act (fairness provisions) to the Minister seeking a reduction of the sum payable. The Minister dismissed the application. The applicant applied for judicial review.

The Federal Court dismissed the application.

Civil Rights - Topic 8005

Canadian Bill of Rights - Principles of operation and interpretation - Due process - Right to life, liberty, security and enjoyment of property - The applicant was served a Notice of Ascertained Forfeiture under s. 124 of the Customs Act - Pursuant to s. 129 of the Act, the applicant requested a review by the Minister of National Revenue, which was dismissed - The Minister also dismissed an application under s. 3.3(1) of the Act (fairness provisions) seeking a reduction of the sum payable - Under s. 133 of the Act, the Minister did not have the power to review the amount payable under the notice - The applicant applied for judicial review, arguing that the imposition of a penalty by the Minister without any mechanism to challenge the calculation of the amount violated the due process provisions of the Canadian Bill of Rights - The Federal Court dismissed the application - The court held that "the imposition of a demand by the Minister pursuant to s. 124 of the Act is not arbitrary and, in this case, was not in violation of the Applicant's right to due process. No denial of natural justice took place. The ascertained forfeiture procedure is long-standing, it is equally applicable to everyone who contravenes the Act" - See paragraphs 52 to 68.

Civil Rights - Topic 8007

Canadian Bill of Rights - Principles of operation and interpretation - Equality before the law - [See Civil Rights - Topic 8005 ].

Customs - Topic 8208

Offences and penalties - Penalties - Forfeiture - The applicant was served a Notice of Ascertained Forfeiture under s. 124 of the Customs Act - Pursuant to s. 129 of the Act, the applicant requested a review by the Minister of National Revenue, which was dismissed - The Minister also dismissed an application under s. 3.3(1) of the Act (fairness provisions) seeking a reduction of the sum payable on the grounds that an ascertained forfeiture did not constitute a penalty - The Federal Court dismissed an application for judicial review - The Act expressly provided for penalties in ss. 109.1, 109.11 (repealed) and 109.2 - Only those penalties could be subject to review under s. 3.3(1) of the Act - Section 127 of the Act distinguished between an amount demanded under s. 124 and penalties described in other sections of the Act - The Act also provided a distinct way of dealing with the challenge of an ascertained forfeiture - See paragraphs 17 to 33.

Customs - Topic 8210

Offences and penalties - Penalties - Duty of fairness - [See Customs - Topic 8208 ].

Customs - Topic 8210

Offences and penalties - Penalties - Duty of fairness - The applicant was served a Notice of Ascertained Forfeiture under s. 124 of the Customs Act - Pursuant to s. 129 of the Act, the applicant requested a review by the Minister of National Revenue, which was dismissed - The Minister also dismissed an application under s. 3.3(1) of the Act (fairness provisions) seeking a reduction of the sum payable - The applicant applied for judicial review arguing that she was denied the opportunity to be heard both in respect to the initial imposition of the penalty and with respect to any reconsideration of that decision - The Federal Court dismissed the application - A review of whether the goods should have been forfeit did occur and the applicant took two and a half years to complete her submissions - The court held that the applicant's complaint was really that she failed to fully understand the scheme of the Act - The applicant was at liberty to consult legal advice and her failure did not amount to a failure to observe natural justice, procedural fairness or the legal procedure on the part of the Minister - See paragraphs 34 to 51.

Cases Noticed:

Dr. Q., Re (2003), 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 16].

ACL Canada Inc. v. Minister of National Revenue (1993), 68 F.T.R. 180 (T.D.), refd to. [para. 19].

R. v. Mason, [1935] S.C.R. 513, refd to. [para. 21].

He v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 706 (T.D.), refd to. [para. 21].

Berthier et al. v. Canada (Minister of Labour) et al. (2000), 190 F.T.R. 149 (T.D.), refd to. [para. 26].

Canada (Attorney General) v. Stark (1997), 213 N.R. 75 (F.C.A.), refd to. [para. 26].

Stark v. Minister of National Revenue - see Canada (Attorney General) v. Stark.

R. v. Drybones, [1970] S.C.R. 282, consd. [para. 60].

Bear v. Canada (Attorney General) (2003), 300 N.R. 57 (F.C.A.), leave to appeal dismissed [2003] S.C.C.A. No. 115, consd. [para. 62].

Authorson v. Canada (Attorney General) (2003), 306 N.R. 335 (S.C.C.), consd. [para. 63].

Statutes Noticed:

Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), sect. 124, sect. 127, sect. 129, sect. 131, sect. 133 [para. 14].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 20 [para. 20].

Counsel:

Barbara Shields, for the applicant;

Tracey Telford, for the respondent;

Solicitors of Record:

Aikins, Macaulay & Thorvaldson, Winnipeg, Manitoba, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on September 24, 2003, at Winnipeg, Manitoba, before Russell, J., of the Federal Court, who delivered the following decision on December 19, 2003.