Excise Act, 2001 (S.C. 2002, c. 22)

Third Party Claims

Marginal note:Third party may claim interest in seized or forfeited thing

• 278. (1) On application by a person, other than a person who is entitled to make a request under section 271, who is an owner of, or who holds a security or property interest in, a thing seized under section 260 or forfeited under section 267, the Minister may declare

  • (a) that the applicant’s interest in the thing is not affected by the seizure or forfeiture of the thing; and

  • (b) the nature and extent of that interest at the time of the contravention on which the seizure or forfeiture is based.

• Marginal note:Conditions for declaration

  (2) A declaration referred to in subsection (1) shall not be made unless

  • (a) a request under section 271 has not been made in respect of the seizure of the thing or, if a request was made, the seizure has been confirmed by the Minister under paragraph 275(2)(a); and

  • (b) the Minister is satisfied that the applicant

    • (i) acquired in good faith the interest in the seized thing before the contravention occurred,

    • (ii) is innocent of any complicity and of any collusion in respect of the contravention, and

    • (iii) exercised all reasonable care to satisfy themselves that any person likely to have possession of the thing was not likely to use it in connection with a contravention of this Act.

• Marginal note:Manner and time limit for making application

  (3) An application must be submitted in writing,

  • (a) in the case of a seizure, within 90 days after the date of the seizure of the thing, to the officer who made the seizure; or

  • (b) in any other case, within 90 days after the date on which the person became aware of the contravention on which the forfeiture is based, to the Minister.

• Marginal note:Burden of proof

  (4) The burden of proving that an application was submitted lies on the person claiming that it was submitted.

• Marginal note:Evidence

  (5) An applicant may submit any evidence that they wish the Minister to consider for the purposes of the application within 30 days after the date of the request.

• Marginal note:Form of evidence

  (6) Evidence may be given by affidavit sworn before a commissioner for taking oaths or any other person authorized to take affidavits.

• Marginal note:Notification of decision

  (7) The Minister shall notify the applicant of the Minister’s decision regarding the application under subsection (1) by registered or certified mail.

Marginal note:Extension of time by Minister

• 279. (1) If no application for a declaration under section 278 is made within the time limited by that section, a person may apply in writing to the Minister to extend the time for making an application under that section.

• Marginal note:Conditions — grant of application

  (2) The Minister may extend the time for making an application under section 278 if an application under subsection (1) is made within one year after the time limit for the application under section 278 and the Minister is satisfied that

  • (a) the applicant had a bona fide intention to apply under section 278 before the expiration of the time limit but was unable to do so and was unable to instruct another person to do so on the applicant’s behalf;

  • (b) the application under subsection (1) was made as soon as circumstances permitted it to be made; and

  • (c) having regard to any reasons provided by the applicant and to the circumstances of the case, it would be just and equitable to extend the time.

• Marginal note:Notification of decision

  (3) The Minister shall notify the applicant of the Minister’s decision regarding the application under subsection (1) by registered or certified mail.

• Marginal note:If application granted

  (4) If the Minister decides to extend the time, the application under section 278 is deemed to have been made on the day of the decision of the Minister regarding the application under subsection (1).

• Marginal note:Decision final

  (5) A decision of the Minister under this section is final and binding and, despite any other Act of Parliament, no appeal lies from it.

Marginal note:Application to court

• 280. (1) If the Minister decides not to make a declaration under subsection 278(1) or the applicant is not satisfied with the declaration made, the applicant may, within 90 days after the date of the decision or declaration, apply by notice in writing to a superior court of competent jurisdiction for an order under section 281.

• Marginal note:Date of hearing

  (2) The court to which an application is made under this section shall fix a day for the hearing of the application that is not less than 30 days after the date of the filing of the application.

• Marginal note:Notice to Commissioner

  (3) An applicant shall serve notice of the application and of the hearing on the Commissioner, or an officer designated by the Commissioner for the purposes of this section, not later than 15 days after the day on which the date for the hearing of the application is fixed.

• Marginal note:Service of notice

  (4) The service of a notice is sufficient if it is sent by registered or certified mail addressed to the Commissioner.

Marginal note:Order

281. An applicant under section 280 is entitled to an order declaring that their interest in a seized or forfeited thing is not affected by the seizure or forfeiture and declaring the nature and extent of that interest at the time of the contravention on which the seizure or forfeiture is based if, on the hearing of an application made under section 280, the court is satisfied that the applicant

• (a) acquired in good faith the interest in the thing before the contravention occurred;

• (b) is innocent of any complicity and of any collusion in respect of the contravention; and

• (c) exercised all reasonable care to satisfy themselves that any person likely to have possession of the thing was not likely to use it in connection with a contravention of this Act.

Marginal note:Appeal

282. An applicant or the Crown may appeal an order made under section 281 to a court having appellate jurisdiction in other cases decided by the court that made the order and the appeal shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court.

Marginal note:Delivery to applicant

• 283. (1) If an applicant’s interest in a seized thing is established under section 278, 281 or 282, the Minister shall, on the request of the applicant, direct that

  • (a) the thing be given to the applicant; or

  • (b) an amount calculated on the basis of the interest of the applicant in the thing as established be paid to the applicant.

• Marginal note:Limit on amount paid

  (2) The total amount paid under paragraph (1)(b) in respect of a thing shall, if it was sold or otherwise disposed of under this Act, not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the thing and, if there are no proceeds of a disposition of a thing under this Act, no payment shall be made under that paragraph in respect of the thing.

Collection

Marginal note:Debts to Her Majesty

• 284. (1) Any duty, interest or other amount payable under this Act is a debt due to Her Majesty and is recoverable in the Federal Court or any other court of competent jurisdiction or in any other manner provided under this Act.

• Marginal note:Limitation

  (2) No proceedings for the recovery of an amount of duty, interest or other amount payable by a person under this Act shall be commenced in a court

  • (a) in the case of an amount that may be assessed under this Act, unless at the time the action is commenced the person has been or may be assessed for that amount; and

  • (b) in any other case, more than four years after the person became liable to pay the amount.

• Marginal note:Interest on judgments

  (3) If a judgment is obtained for any duty, interest or other amount payable under this Act, including a certificate registered under section 288, the provisions of this Act by which interest is payable for failure to pay an amount apply, with any modifications that the circumstances require, to the failure to pay the judgment debt, and the interest is recoverable in like manner as the judgment debt.

• Marginal note:Litigation costs

  (4) If an amount is payable by a person to Her Majesty because of an order, judgment or award of a court in respect of the costs of litigation relating to a matter to which this Act applies, sections 285 and 288 to 294 apply to the amount as if the amount were owing by the person on account of duty payable by the person under this Act.

Marginal note:Security

• 285. (1) The Minister may, if the Minister considers it advisable, accept security in an amount and a form satisfactory to the Minister for payment of any amount that is or may become payable under this Act.

• Marginal note:Surrender of excess security

  (2) If a person who has furnished security, or on whose behalf security has been furnished, under this section requests in writing that the Minister surrender the security or any part of it, the Minister must surrender the security to the extent that its value exceeds the amount, at the time the request is received by the Minister, of any duty, interest or other amount for the payment of which it was furnished.

Marginal note:Collection restrictions

• 286. (1) If a person is liable for the payment of an amount under this Act, the Minister shall not, for the purpose of collecting the amount, take any of the following actions until the end of 90 days after the date of a notice of assessment under this Act or a notice of penalty under section 254 is issued in respect of the amount:

  • (a) commence legal proceedings in a court;

  • (b) certify the amount under section 288;

  • (c) require a person to make a payment under subsection 289(1);

  • (d) require an institution or a person to make a payment under subsection 289(2);

  • (e) require the retention of the amount by way of deduction or set-off under section 290;

  • (f) require a person to turn over moneys under subsection 292(1); or

  • (g) give a notice, issue a certificate or make a direction under subsection 293(1).

• Marginal note:No action after service of notice of objection

  (2) If a person has served a notice of objection under this Act to an assessment of an amount payable under this Act, the Minister shall not, for the purpose of collecting the amount in controversy, take any of the actions described in subsection (1) until the end of 90 days after the date of the notice to the person that the Minister has confirmed or varied the assessment.

• Marginal note:No action after request for decision

  (3) If a person has requested a decision of the Minister under section 271 in respect of a penalty imposed under section 254, the Minister shall not, for the purpose of collecting the penalty, take any of the actions described in subsection (1) until the end of 90 days after the date of the decision.

• Marginal note:No action after making appeal to Tax Court

  (4) If a person has appealed to the Tax Court from an assessment of an amount payable under this Act, the Minister shall not, for the purpose of collecting the amount in controversy, take any of the actions described in subsection (1) before the day on which a copy of the decision of the Court is mailed to the person or the day on which the person discontinues the appeal, whichever is the earlier.

• Marginal note:No action after making appeal to Federal Court

  (5) If a person has appealed to the Federal Court from a decision of the Minister under section 273 in respect of a penalty imposed under section 254, the Minister shall not, for the purpose of collecting the penalty, take any of the actions described in subsection (1) before the day on which a copy of the decision of the Court is mailed to the person or the day on which the person discontinues the appeal, whichever is the earlier.

• Marginal note:No action pending determination by court

  (6) If a person has agreed under subsection 204(1) that a question should be determined by the Tax Court, or if a person is served with a copy of an application made under subsection 205(1) to that Court for the determination of a question, the Minister shall not take any of the actions described in subsection (1) for the purpose of collecting that part of an amount assessed, the liability for payment of which will be affected by the determination of the question, before the day on which the question is determined by the Court.

• Marginal note:Action after judgment

  (7) Despite any other provision in this section, if a person has served a notice of objection under this Act to an assessment or has appealed to the Tax Court from an assessment and agrees in writing with the Minister to delay proceedings on the objection or appeal, as the case may be, until judgment has been given in another action before the Tax Court, the Federal Court of Appeal or the Supreme Court of Canada in which the issue is the same or substantially the same as that raised in the objection or appeal of the person, the Minister may take any of the actions described in subsection (1) for the purpose of collecting the amount assessed, or a part of it, determined in a manner consistent with the judgment of the Court in the other action at any time after the Minister notifies the person in writing that the judgment has been given by the Court in the other action.

• Marginal note:No restriction on collection of large amounts

  (8) Despite subsections (1) to (7), if, at any time, the total of all amounts that a person has been assessed under this Act and that remain unpaid exceeds $1,000,000, the Minister may collect up to 50% of the total.