Federal Appeal


Administrative Law

DUTY TO ACT FAIRLY
Judge erred by setting aside otherwise reasonable decision

Respondent entered Canada driving Ford Expedition motor vehicle (the “goods”) leased through dealership in Texas without reporting same to Canadian Customs officers. Respondent served with notice of ascertained forfeiture on May 8, 2002, specifying that goods unlawfully imported. Respondent requesting decision of Minister on June 5, 2002 and appeal faxed to Customs Collections on June 10, 2002. Matter not brought to attention of Recourse Directorate of Canada Border Services Agency (“CBSA”) until December 9, 2005. CBSA acknowledged receipt of appeal December 13, 2005, but registered letter affording respondent opportunity to provide additional information returned by Canada Post and resent January 20, 2006 by regular mail. CBSA sent decision letter dismissing respondent’s appeal on January 24, 2007, but decision letter returned by Canada Post and not resent until February 29, 2008. Federal Court Judge found that Minister failed to comply with Customs Act (Can.), to make decision “as soon as reasonably possible having regard to the circumstances”, thereby breaching rules of procedural fairness or natural justice. Although judge found Minister’s determination reasonable and rejected respondent’s contention he was prejudiced in ability to provide additional information or documents, he set aside Minister’s decision. Appeal to Federal Court of Appeal allowed. Since judge found respondent suffered no evidentiary prejudice, in order to impugn Minister’s decision he was required, as matter of law, to find some significant prejudice accruing to respondent such that delay tainted proceeding or contrary to interests of justice to allow Minister’s decision to stand. Judge made no such finding and erred, in absence of such finding, by finding abuse of process or breach of natural justice. Judge erred by setting aside otherwise reasonable decision.

Prue v. Canada (Minister of Public Safety and Emergency Preparedness)

(Apr. 11, 2012, F.C.A., Sharlow, Dawson and Trudel JJ.A., File No. A-1-11) Decision at 195 A.C.W.S. (3d) 1016 was reversed. 214 A.C.W.S. (3d) 662 (20 pp.).

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