Sebag et al. v. Canada (Minister of Public Safety and Emergency Preparedness) et al., (2011) 386 F.T.R. 99 (FC)

• Judge: Scott, J.
• Court: Federal Court (Canada)
• Case Date: February 14, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 386 F.T.R. 99 (FC);2011 FC 310

Sebag v. Can. (2011), 386 F.T.R. 99 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. MR.035

Alain Sebag, Joseph Yossi Castiel, Moche Castiel, Isaac Castiel, Simon Castiel, 2756-2487 Québec Inc., Location Auto Impérial Inc., 9113-9279 Québec Inc., 1230588 Ontario Inc. (applicants) v. The Minister of Public Safety and Emergency Preparedness, The Minister of National Revenue (respondents)

(T-761-09; 2011 FC 310)

Indexed As: Sebag et al. v. Canada (Minister of Public Safety and Emergency Preparedness) et al.

Federal Court

Scott, J.

March 15, 2011.

Summary:

The applicants were private exporters dealing in the purchase and export of automobiles. In order to obtain a reimbursement from the Canada Border Services Agency (CBSA) of the custom duties, sales and excise taxes paid by them, the applicants had to obtain a K32A form from the companies who imported the vehicles to Canada. The applicants requested that various automobile companies complete those forms. Most companies replied that they had no obligation to submit such forms. A CBSA Agent decided that as the applicants had not submitted the necessary K32A forms, their drawback files were closed. The applicants applied for judicial review.

The Federal Court dismissed the application.

Civil Rights - Topic 5511

Equality and protection of the law - General principles and definitions - Equal benefit of the law - [See Customs - Topic 6805 ].

Civil Rights - Topic 5666.6

Equality and protection of the law - Particular cases - Customs legislation - [See Customs - Topic 6805 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See Customs - Topic 6805 ].

Customs - Topic 6805

Exports - General - Drawbacks - The applicants were private exporters dealing in the purchase and export of automobiles - In order to obtain a reimbursement from the Canada Border Services Agency (CBSA) of the custom duties, sales and excise taxes paid by them, the applicants had to obtain a K32A form from the companies who imported the vehicles to Canada - The applicants requested that various automobile companies complete those forms - Most companies replied that they had no obligation to submit such forms - A CBSA agent decided that as the applicants had not submitted the necessary K32A forms, their drawback files were closed - The applicants applied for judicial review - They submitted that exporters did not possess the legal means to enforce the drawback provisions of the legislation as the legislation did not impose an obligation on importers or intermediaries to provide the required documents - They argued that the court had to interpret the terms of the combined drawback legislation using the contextual approach and declare the applicants' right to the drawback - If not, the applicants petitioned the court to declare the law void for vagueness as it imposed an obligation beyond the control of its beneficiaries - Finally, based on s. 15(1) of the Charter, the applicants submitted that they could not benefit from the law since private exporters were treated differently than entities acting both as importers and exporters - The Federal Court dismissed the application - Section 119 of the Customs Tariff and ss. 5 and 9 of the Goods Imported and Exported Refund and Drawback Regulations required any exporter, whether or not the importer, to provide K32A forms in order to be eligible to a drawback - The provisions were clear and the applicants had to submit the required documents in order to receive a drawback - Having not done so, the CBSA's decision to close their drawback files was correct - With respect to the Charter argument, the individual applicants had standing as the constitutional issue arose in the course of civil proceedings - However, the court held that the applicants were treated equally to other Canadians and s. 119 of the Customs Tariff and ss. 5 and 9 of the Goods Imported and Exported Refund and Drawback Regulations were consistent with s. 15 of the Charter and not unconstitutional.

Statutes - Topic 4552

Operation and effect - Validity - Vagueness - [See Customs - Topic 6805 ].

Cases Noticed:

9058-3956 Québec Inc. et al. v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2006), 294 F.T.R. 48; 2006 FC 4, affd. (2007), 365 N.R. 133; 2006 FCA 363, leave to appeal denied (2007), 368 N.R. 392 (S.C.C.), consd. [para. 10].

Pineview Poultry Products Ltd. et al. v. Canada and Canadian Egg Marketing Agency, [1994] 2 F.C. 475; 73 F.T.R. 50 (T.D.), refd to. [para. 11].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 28].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 27].

Customs Tariff Regulations (Can.), Goods Imported and Exported Refund and Drawback Regulations, SOR/96-42, sect. 5, sect. 9 [para. 21].

Customs Tariff, S.C. 1997, c. 36, sect. 119 [para. 20].

Goods Imported and Exported Refund and Drawback Regulations - see Customs Tariff Regulations (Can.).

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.), c. 37, pp. 37-5 [para. 29]; 59-3 [para. 30]; 59-4 [para. 31].

Counsel:

Éric Markakis, for the applicant;

Jacques Savary, for the respondent.

Solicitors of Record:

Eric Markakis, Montreal, Quebec, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard on February 14, 2011, at Montreal, Quebec, before Scott, J., of the Federal Court, who delivered the following decision on March 15, 2011.