Date: 20000615
Docket: T-1683-97
SIMPLIFIED ACTION ON APPEAL PURSUANT TO SECTION 135 OF
CUSTOMS ACT, R.S.C. 1985 C.1, A DECISION OF
THE MINISTER OF NATIONAL REVENUE
BETWEEN:
PAUL FRANZ NIEDERAUER,
Plaintiff,
- and -
MINISTER OF NATIONAL REVENUE,
Defendant.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] This proceeding, challenging the size of a customs penalty, arises out of a 16 December 1996 Customs Act breach and an 8 May 1997 Ministerial decision. The proceeding was commenced by Statement of Claim filed 6 August 1997. In October of 1999 the matter was ordered case managed by the Associate Chief Justice. It was subsequently the subject of case management correspondence with the Court in November of 1999, a case management conference 7 March 2000 and a pre-trial conference 11 April 2000. In the result, at issue being the size of the penalty assessed by the Minister, some $3,400, the matter was set to be heard 15 June 2000 as a trial of a simplified action.
[2] On Monday, 12 June 2000, counsel for the Defendant Minister advised counsel for the Plaintiff that the Minister would be bringing a short leave motion, on the morning of trial, to strike out for want of a cause of action, for in the Crown"s view the matter ought to have been commenced by way of judicial review. The material was served and filed the morning of the 15 June 2000 trial.
[3] Counsel for the Plaintiff was somewhat disadvantaged by the short time frame for the motion, but was forced to concede to the Minister"s point.
[4] This outcome is embarrassing to all concerned: no one had, in some three years, questioned that the proceeding, as an action, had been commenced in the wrong form. This is no longer fatal for, as Mr. Justice Blais pointed out in Khaper v. Canada, an as yet unreported 20 December 1999 decision in action T-2763-92, there acknowledging the views of Mr. Justice Lutfy, as he then was, in McLean v. The Queen, an unreported 26 March 1999 decision in action T-2509-90, that Rule 57 might be applied to convert an action into a judicial review application. In short, it is an irregularity that may be remedied.
[5] In the present instance, the Plaintiff, in bringing such an application for conversion to judicial review, would also have to apply for an extension of time as the 30 day limitation period, beginning with the Minister"s decision, 8 May 1997, had run by the time the Statement of Claim was filed, 6 August 1997. As I say, there is a remedy for all of this. While the amount is small, counsel for the Plaintiff may feel bound to move to obtain this remedy to allow his client a day in Court. But it is not a practical remedy from the point of view either of the Plaintiff, the Defendant, or the taxpayers who must provide the Court services and premises in order to allow the parties a forum in which to deal with a dispute over about $3,400.
[6] I suggested to counsel, once I determine that the matter ought to have been commenced as a judicial review proceeding and thus the success of the motion, that there ought to be a practical solution. One practical and equitable solution would be for the Minister to reconsider the amount of the penalty. This is an equitable solution in that the Plaintiff might well be able to obtain the extension of time within which to bring a judicial review proceeding, including demonstrating an arguable case. The taxpayers ought not to have to expend many times the amount at stake, in order to reach a decision, a decision which will establish no precedent one way or the other.
[7] In the Order which follows I have suggested that the Minister might wish to reconsider the penalty but, in the absence of a reconsideration, have left it open for the Plaintiff to apply for the time extension for judicial review and a Rule 57 remedy.
[8] I thank counsel for making suggestions leading to what may be an equitable solution.
ORDER:
| 1. In the event that the Minister, within the next 60 days, reconsiders the decision of 8 May 1997, as to the penalty portion of the customs assessment, this matter will stand as struck out for want of a cause of action, on the delivery of that decision to Mr. Niederauer. In the event that no decision is made within 60 days, Mr. Niederauer may have until 13 October 2000 within which to apply for an extension of time and for conversion of the present action into a judicial review proceeding, failing which this matter shall stand as dismissed. |
| 2. Given that neither side recognized the basic defect in this action and that the Defendant, even though successful in the want of cause of action motion, delayed in bringing it, each side shall bear their own costs both of the action and of the motion. |
(Sgd.) "John A. Hargrave"
Prothonotary
June 15, 2000
Vancouver, British Columbia
I HEREBY CERTIFY that the above document
is a true copy of the original filed of record
in the Registry of the Federal Court of Canada
in the _______ day of ___________ A.D. 20 ____
Dated this _______ day of ____________ 20 ____
________________________
Julia Platt, Registry Officer
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1683-97
STYLE OF CAUSE: PAUL FRANZ NIEDERAUER
v.
MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: June 15, 2000
REASONS FOR ORDER AND ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
DATED: June 15, 2000
APPEARANCES:
Mr. Eric Thomson FOR PLAINTIFF
Mr. John McLachlan FOR DEFENDANT
SOLICITORS OF RECORD:
Eric Thomson
Barrister & Solicitor
Roberts Creek, BC FOR PLAINTIFF
Singleton Urquhart
Vancouver, BC FOR DEFENDANT