Customs Act (R.S.C., 1985, c. 1 (2nd Supp.))

Marginal note:Person leaving Canada

• 97.33 (1) If the Minister suspects that a person who is liable to pay an amount under this Act or would be so liable if the time for payment of the amount had arrived has left or is about to leave Canada, the Minister may, before the day otherwise fixed for payment, by notice in writing, demand payment of the amount. Despite any other provision of this Act, the person shall pay the amount immediately.

• Marginal note:Failure to pay

  (2) If a person fails to pay an amount as required, the Minister may direct that the goods and chattels of the person be seized and subsections 97.32(2) to (5) apply.

Collection Restrictions

Marginal note:Collection action delayed

• 97.34 (1) If a person is liable for the payment of an amount under this Act, if an amount is demanded in a notice served under section 109.3 or 124, or if an amount is demanded under paragraph 133(1)(c) or subsection 133(1.1) in a notice served under subsection 131(2), the Minister must not, for the purpose of collecting the amount, take the following actions until the ninety-first day after the day notice is given to the debtor:

  • (a) commence legal proceedings in a court;

  • (b) certify the amount under section 97.24;

  • (c) require the retention of the amount by way of deduction or set-off under section 97.26;

  • (d) require a person or institution to make a payment under section 97.28;

  • (e) require a person to turn over moneys under subsection 97.31(1); or

  • (f) give a notice, issue a certificate or make a direction under subsection 97.32(1).

• Marginal note:Appeal to Federal Court

  (2) If a person has appealed a decision of the Minister of Public Safety and Emergency Preparedness to the Federal Court under section 97.23 or 135, the Minister must not take any action described in subsection (1) to collect the amount in controversy before the date of the decision of the Court or the day on which the person discontinues the appeal.

• Marginal note:Reference to Canadian International Trade Tribunal

  (3) If the President has referred a question to the Canadian International Trade Tribunal under section 70, the Minister must not take any action described in subsection (1) to collect the amount in controversy before the day on which the question is determined by the Tribunal.

• Marginal note:Effect of appeal

  (4) If a person has made a request under section 60 or 129 or has appealed under section 67 or 68 and the person agrees in writing with the Minister of Public Safety and Emergency Preparedness to delay proceedings on the request or appeal, as the case may be, until judgment has been given in another action before the Federal Court, the Canadian International Trade Tribunal or the Supreme Court of Canada, in which action the issue is the same or substantially the same as that raised in the request or appeal of the person, the Minister may take any of the actions described in subsection (1) for the purpose of collecting the amount payable, or a part of the amount payable, determined in a manner consistent with the decision or judgment in the other action at any time after the Minister of Public Safety and Emergency Preparedness notifies the person in writing that

  • (a) the decision of the Canadian International Trade Tribunal or Federal Court in that action has been received by the Minister of Public Safety and Emergency Preparedness;

  • (b) judgment has been pronounced by the Federal Court of Appeal in that action; or

  • (c) judgment has been delivered by the Supreme Court of Canada in that action.

• Marginal note:Effect of taking security

  (5) The Minister must not, for the purpose of collecting an amount payable, or a part of an amount payable, under this Act, take any of the actions described in subsection (1) if a person has given security to the Minister of Public Safety and Emergency Preparedness when requesting or appealing from a decision of that Minister or the President.

Marginal note:Authorization to proceed immediately

• 97.35 (1) Despite section 97.34, if, on ex parte application by the Minister, a judge is satisfied that there are reasonable grounds to believe that the collection of all or any part of an amount assessed or demanded under this Act would be jeopardized by a delay in the collection of that amount, the judge shall, on any terms that the judge considers reasonable in the circumstances, authorize the Minister to immediately take any action described in that section to collect the amount.

• Marginal note:Notice not sent

  (2) An authorization may be granted by a judge notwithstanding that a notice in respect of the amount has not been sent to the debtor at or before the time the application is made if the judge is satisfied that the receipt of the notice by the debtor would likely further jeopardize the collection of the amount and, for the purposes of sections 97.22, 97.24, 97.26, 97.28, 97.31 and 97.32, the amount in respect of which an authorization is granted is deemed to be an amount payable under this Act.

• Marginal note:Affidavits

  (3) Statements contained in an affidavit filed in the context of an application made under this section may be based on belief but must include the grounds for the belief.

• Marginal note:Service of authorization

  (4) An authorization must be served by the Minister on the debtor within 72 hours after it is granted, except if the judge orders the authorization to be served at some other time specified in the authorization, and, if a notice has not been sent to the debtor at or before the time of the application, the notice is to be served together with the authorization.

• Marginal note:How service effected

  (5) Service on a debtor must be effected by personal service or in accordance with the directions of a judge.

• Marginal note:Application to judge for direction

  (6) If service on a debtor cannot reasonably otherwise be effected as and when required under this section, the Minister may, as soon as is practicable, apply to a judge for further direction.

• Marginal note:Review of authorization

  (7) If a judge of a court has granted an authorization, the debtor may, on six clear days notice to the Deputy Attorney General of Canada, apply to a judge of the court to review the authorization.

• Marginal note:Limitation period for review application

  (8) An application under subsection (7) must be made

  • (a) within thirty days after the day on which the authorization was served on the debtor in accordance with this section; or

  • (b) within any further time that a judge may allow, on being satisfied that the application was made as soon as was practicable.

• Marginal note:Hearing in camera

  (9) An application may, on request of the debtor, be heard in camera, if the debtor establishes to the satisfaction of the judge that the circumstances of the case justify in camera proceedings.

• Marginal note:Disposition of application

  (10) On an application, the judge is to determine the question summarily and may confirm, set aside or vary the authorization and make any other order that the judge considers appropriate.

• Marginal note:Directions

  (11) If any question arises as to the course to be followed in connection with anything done or being done under this section and there is no direction in this section in respect of the matter, a judge may give any direction in respect of the matter that, in the opinion of the judge, is appropriate.

• Marginal note:No appeal from review order

  (12) No appeal lies from an order of a judge made under subsection (10).

Trustees, Receivers and Personal Representatives

Marginal note:Bankruptcies

• 97.36 (1) The following rules apply to a person who is a bankrupt:

  • (a) the trustee in bankruptcy is the agent of the bankrupt and any act performed by the trustee in the administration of the estate of the bankrupt or in the carrying on of any business of the bankrupt is deemed to have been made by the trustee as agent of the bankrupt;

  • (b) the estate of the bankrupt is not a trust or an estate;

  • (c) the property and money of the bankrupt immediately before the day of the bankruptcy does not pass to or vest in the trustee in bankruptcy on the bankruptcy order being made or the assignment in bankruptcy being filed but remains vested in the bankrupt;

  • (d) the trustee in bankruptcy, and not the bankrupt, is liable for the payment of all amounts (other than amounts that relate solely to activities in which the bankrupt begins to engage on or after the day of the bankruptcy and to which the bankruptcy does not relate) that become payable by the bankrupt under this Act during the period beginning on the day immediately after the day the trustee became the trustee in bankruptcy of the bankrupt and ending on the day the discharge of the trustee is granted under the Bankruptcy and Insolvency Act, except that

    • (i) the trustee is liable for the payment of amounts that became payable by the bankrupt after the day of the bankruptcy only to the extent of the property and money of the bankrupt in possession of the trustee available to satisfy the liability, and

    • (ii) the trustee is not liable for the payment of any amount for which a receiver is liable under section 97.37,

  • (e) if, on or after the day of bankruptcy, the bankrupt begins to engage in particular activities to which the bankruptcy does not relate, the particular activities are deemed to be separate from the activities of the person to which the bankruptcy relates as though the particular activities were activities of a separate person;

  • (f) subject to paragraph (h), the trustee in bankruptcy shall perform all the obligations under this Act of the bankrupt in respect of the activities of the bankrupt to which the bankruptcy relates for the period beginning on the day immediately after the day of bankruptcy and ending on the day the discharge of the trustee is granted under the Bankruptcy and Insolvency Act;

  • (g) subject to paragraph (h), if the bankrupt has not on or before the day of bankruptcy fulfilled all of their obligations under this Act in respect of any activities of the bankrupt on or before the day of bankruptcy, the trustee in bankruptcy shall fulfil those obligations, unless the Minister waives in writing the requirement for the trustee to do so;

  • (h) if there is a receiver with authority in respect of a business, a property, affairs or assets of the bankrupt, the trustee in bankruptcy is not required to perform the obligations of the bankrupt under this Act to the extent that the receiver is required under section 97.37 to perform those obligations; and

  • (i) the property and money held by the trustee in bankruptcy for the bankrupt on the day an order of absolute discharge of the bankrupt is granted under the Bankruptcy and Insolvency Act does not pass to the bankrupt on the order being granted but is held by and vested in the bankrupt continuously since the day it was acquired by the bankrupt or the trustee, as the case may be.

• Definition of bankrupt

  (2) In this section, bankrupt has the same meaning as in subsection 2(1) of the Bankruptcy and Insolvency Act.

Marginal note:Definitions

• 97.37 (1) The definitions in this subsection apply in this section.

  business

  business includes a part of a business. (entreprise)

  relevant assets

  relevant assets of a receiver means

  • (a) if the receiver’s authority relates to all the properties, businesses, affairs and assets of a person, all those properties, businesses, affairs and assets; and

  • (b) if the receiver’s authority relates to only part of the properties, businesses, affairs or assets of a person, that part of the properties, businesses, affairs or assets, as the case may be. (actif pertinent)

• Marginal note:Receivers

  (2) The following rules apply to a receiver who on a particular day is vested with the authority to manage, operate, liquidate or wind up any business or property, or to manage and care for the affairs and assets, of a person:

  • (a) the receiver is an agent of the person and any act performed by the receiver in respect of the relevant assets of the receiver is deemed to have been performed, as the case may be, by the receiver as agent on behalf of the person;

  • (b) the receiver is not a trustee of the estate of the person or any part of the estate of the person;

  • (c) if the relevant assets of the receiver are a part and not all of the person’s businesses, properties, affairs or assets, the relevant assets of the receiver are deemed to be, throughout the period during which the receiver is acting as receiver of the person, separate from the remainder of the businesses, properties, affairs or assets of the person as though the relevant assets were businesses, properties, affairs or assets, as the case may be, of a separate person;

  • (d) the person and the receiver are jointly and severally or solidarily liable for the payment of all amounts that become payable by the person under this Act before or during the period during which the receiver is acting as receiver of the person to the extent that the amounts can reasonably be considered to relate to the relevant assets of the receiver or to the businesses, properties, affairs or assets of the person that would have been the relevant assets of the receiver if the receiver had been acting as receiver of the person at the time the amounts became payable except that

    • (i) the receiver is liable for the payment of amounts that became payable before that period only to the extent of the property and money of the person in possession or under the control and management of the receiver after

      • (A) satisfying the claims of creditors whose claims ranked, on the particular day, in priority to the claim of the Crown in respect of the amounts, and

      • (B) paying any amounts that the receiver is required to pay to a trustee in bankruptcy of the person, and

    • (ii) the payment by the person or the receiver of an amount in respect of the liability discharges the joint liability to the extent of that amount;

  • (e) the receiver shall perform all the obligations, in respect of the relevant assets of the receiver for the period during which the receiver is acting as receiver, that are required under this Act to be performed by the person, as if the relevant assets were the only properties, businesses, affairs and assets of the person; and

  • (f) if the person has not on or before the particular day fulfilled their obligations under this Act before the period during which the receiver was acting as receiver, the receiver shall fulfil those obligations for that period that relate to the businesses, properties, affairs or assets of the person that would have been the relevant assets of the receiver if the receiver had been acting as receiver of the person during that period, unless the Minister waives in writing the requirement for the receiver to do so.

Marginal note:Definitions

• 97.38 (1) The definitions in this subsection apply in this section and in section 97.39.

  trust

  trust includes the estate of a deceased individual. (fiducie)

  trustee

  trustee includes the personal representative of a deceased individual, but does not include a receiver. (fiduciaire)

• Marginal note:Trustee’s liability

  (2) Subject to subsection (3), each trustee of a trust is liable to satisfy every obligation imposed on the trust under this Act, whether the obligation was imposed during or before the period during which the trustee acts as trustee of the trust, but the satisfaction of an obligation of a trust by one of the trustees of the trust discharges the liability of all other trustees of the trust to satisfy that obligation.

• Marginal note:Joint and several or solidary liability

  (3) A trustee of a trust is jointly and severally or solidarily liable with the trust and each of the other trustees, if any, for the payment of all amounts that become payable by the trust under this Act before or during the period during which the trustee acts as trustee of the trust except that

  • (a) the trustee is liable for the payment of amounts that became payable before that period only to the extent of the property and money of the trust under the control of the trustee; and

  • (b) the payment by the trust or the trustee of an amount in respect of the liability discharges the joint liability to the extent of that amount.

• Marginal note:Waiver

  (4) The Minister may, in writing, waive the requirement for the personal representative of a deceased individual to fulfil the obligations under this Act in respect of the activities of the deceased individual that occurred on or before the day the individual died.

• Marginal note:Activities of a trustee

  (5) For the purposes of this Act, if a person acts as trustee of a trust, anything done by the person in the person’s capacity as trustee of the trust is deemed to have been done by the trust and not by the person.