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

Marginal note:Extension of time by Federal Court

• 129.2 (1) A person may apply to the Federal Court to have their application under section 129.1 granted if

  • (a) the Minister dismisses that application; or

  • (b) ninety days have expired after the application was made and the Minister has not notified the person of a decision made in respect of it.

  If paragraph (a) applies, the application under this subsection must be made within ninety days after the application is dismissed.

• Marginal note:Application process

  (2) The application must be made by filing a copy of the application made under section 129.1, and any notice given in respect of it, with the Minister and the Administrator of the Court.

• Marginal note:Powers of the Court

  (3) The Court may grant or dismiss the application and, if it grants the application, may impose any terms that it considers just or order that the request under section 129 be deemed to have been made on the date the order was made.

• Marginal note:Conditions for granting application

  (4) The application may not be granted unless

  • (a) the application under subsection 129.1(1) was made within one year after the expiration of the time provided in section 129; and

  • (b) the person making the application demonstrates that

    • (i) within the time provided in section 129 for making a request for a decision of the Minister, the person was unable to act or to instruct another person to act in the person’s name or had a bona fide intention to request a decision,

    • (ii) it would be just and equitable to grant the application, and

    • (iii) the application was made as soon as circumstances permitted.

Marginal note:Notice of reasons for action

• 130 (1) Where a decision of the Minister under section 131 is requested under section 129, the President shall forthwith serve on the person who requested the decision written notice of the reasons for the seizure, or for the notice served under section 109.3 or 124, in respect of which the decision is requested.

• Marginal note:Evidence

  (2) The person on whom a notice is served under subsection (1) may, within thirty days after the notice is served, furnish such evidence in the matter as he desires to furnish.

• Marginal note:Evidence

  (3) Evidence may be given under subsection (2) by affidavit made before any person authorized by an Act of Parliament or of the legislature of a province to administer oaths or take affidavits.

Marginal note:Decision of the Minister

• 131 (1) After the expiration of the thirty days referred to in subsection 130(2), the Minister shall, as soon as is reasonably possible having regard to the circumstances, consider and weigh the circumstances of the case and decide

  • (a) in the case of goods or a conveyance seized or with respect to which a notice was served under section 124 on the ground that this Act or the regulations were contravened in respect of the goods or the conveyance, whether the Act or the regulations were so contravened;

  • (b) in the case of a conveyance seized or in respect of which a notice was served under section 124 on the ground that it was made use of in respect of goods in respect of which this Act or the regulations were contravened, whether the conveyance was made use of in that way and whether the Act or the regulations were so contravened; or

  • (c) in the case of a penalty assessed under section 109.3 against a person for failure to comply with subsection 109.1(1) or (2) or a provision that is designated under subsection 109.1(3), whether the person so failed to comply.

  • (d) [Repealed, 2001, c. 25, s. 72]

• Marginal note:Exception

  (1.1) A person on whom a notice is served under section 130 may notify the Minister, in writing, that the person will not be furnishing evidence under that section and authorize the Minister to make a decision without delay in the matter.

• Marginal note:Notice of decision

  (2) The Minister shall, forthwith on making a decision under subsection (1), serve on the person who requested the decision a detailed written notice of the decision.

• Marginal note:Judicial review

  (3) The Minister’s decision under subsection (1) is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by subsection 135(1).

Marginal note:Where there is no contravention

• 132 (1) Subject to this or any other Act of Parliament,

  • (a) where the Minister decides, under paragraph 131(1)(a) or (b), that there has been no contravention of this Act or the regulations in respect of the goods or conveyance referred to in that paragraph, or, under paragraph 131(1)(b), that the conveyance referred to in that paragraph was not used in the manner described in that paragraph, the Minister shall forthwith authorize the removal from custody of the goods or conveyance or the return of any money or security taken in respect of the goods or conveyance; and

  • (b) where, as a result of a decision made by the Minister under paragraph 131(1)(c), the Minister decides that a penalty that was assessed under section 109.3 is not justified by the facts or the law, the Minister shall forthwith cancel the assessment of the penalty and authorize the return of any money paid on account of the penalty and any interest that was paid under section 109.5 in respect of the penalty.

• Marginal note:Interest on money returned

  (2) Where any money is authorized under subsection (1) to be returned to any person, there shall be paid to that person, in addition to the money returned, interest on the money at the prescribed rate for the period beginning on the day after the day the money was paid and ending on the day the money is returned.

• (3) [Repealed, 1992, c. 28, s. 26]

Marginal note:Where there is contravention

• 133 (1) Where the Minister decides, under paragraph 131(1)(a) or (b), that there has been a contravention of this Act or the regulations in respect of the goods or conveyance referred to in that paragraph, and, in the case of a conveyance referred to in paragraph 131(1)(b), that it was used in the manner described in that paragraph, the Minister may, subject to such terms and conditions as the Minister may determine,

  • (a) return the goods or conveyance on receipt of an amount of money of a value equal to an amount determined under subsection (2) or (3), as the case may be;

  • (b) remit any portion of any money or security taken; and

  • (c) where the Minister considers that insufficient money or security was taken or where no money or security was received, demand such amount of money as he considers sufficient, not exceeding an amount determined under subsection (4) or (5), as the case may be.

• Marginal note:Powers of Minister

  (1.1) If the Minister decides under paragraph 131(1)(c) that the person failed to comply, the Minister may, subject to any terms and conditions that the Minister may determine,

  • (a) remit any portion of the penalty assessed under section 109.3; or

  • (b) demand that an additional amount be paid.

  If an additional amount is demanded, the total of the amount assessed and the additional amount may not exceed the maximum penalty that could be assessed under section 109.3.

• Marginal note:Return of goods under paragraph (1)(a)

  (2) Goods may be returned under paragraph (1)(a) on receipt of an amount of money of a value equal to

  • (a) the aggregate of the value for duty of the goods and the amount of duties levied thereon, if any, calculated at the rates applicable thereto

    • (i) at the time of seizure, if the goods have not been accounted for under subsection 32(1), (2) or (5) or if duties or additional duties have become due on the goods under paragraph 32.2(2)(b) in circumstances to which subsection 32.2(6) applies, or

    • (ii) at the time the goods were accounted for under subsection 32(1), (2) or (5), in any other case; or

  • (b) such lesser amount as the Minister may direct.

• Marginal note:Return of a conveyance under paragraph (1)(a)

  (3) A conveyance may be returned under paragraph (1)(a) on receipt of an amount of money of a value equal to

  • (a) the value of the conveyance at the time of seizure, as determined by the Minister; or

  • (b) such lesser amount as the Minister may direct.

• Marginal note:Amount demanded in respect of goods under paragraph (1)(c)

  (4) The amount of money that the Minister may demand under paragraph (1)(c) in respect of goods shall not exceed an amount equal to the aggregate of the value for duty of the goods and the amount of duties levied thereon, if any, calculated at the rates applicable thereto,

  • (a) at the time of seizure or of service of the notice under section 124, if the goods have not been accounted for under subsection 32(1), (2) or (5) or if duties or additional duties have become due on the goods under paragraph 32.2(2)(b) in circumstances to which subsection 32.2(6) applies; or

  • (b) at the time the goods were accounted for under subsection 32(1), (2) or (5), in any other case.

• Marginal note:Amount demanded in respect of conveyance under paragraph (1)(c)

  (5) The amount of money that the Minister may demand under paragraph (1)(c) in respect of a conveyance shall not exceed an amount equal to the value of the conveyance at the time of seizure or of service of the notice under section 124, as determined by the Minister.

• Marginal note:Value substituted for value for duty

  (6) For the purpose of calculating the amount of money referred to in subsection (2) or (4), where the value for duty of goods cannot be ascertained, the value of the goods at the time of seizure or of service of the notice under section 124, as determined by the Minister, may be substituted for the value for duty thereof.

• Marginal note:Interest

  (7) If an amount of money is demanded under paragraph (1)(c) or (1.1)(b), the person to whom the demand is made shall pay the amount demanded together with interest at the prescribed rate for the period beginning on the day after the notice is served under subsection 131(2) and ending on the day the amount has been paid in full, calculated on the outstanding balance of the amount. However, interest is not payable if the amount demanded is paid in full within thirty days after the notice is served.

• (8) [Repealed, 1992, c. 28, s. 27]

134 [Repealed, 1998, c. 19, s. 263]

Marginal note:Federal Court

• 135 (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant.

• Marginal note:Ordinary action

  (2) The Federal Courts Act and the rules made under that Act applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions.

Marginal note:Restoration of goods pending appeal

136 Where an appeal is taken by the Crown from any judgment that orders the Crown to give or return anything that has been seized under this Act to any person, the execution of the judgment shall not be suspended if the person to whom the goods are ordered given or returned gives such security to the Crown as the court that rendered the judgment, or a judge thereof, considers sufficient to ensure delivery of the goods or the full value thereof to the Crown if the judgment so appealed is reversed.

Marginal note:Service of notices

137 The service of the President’s notice under section 130 or the notice of the Minister’s decision under section 131 is sufficient if it is sent by registered mail addressed to the person on whom it is to be served at his latest known address.

Third Party Claims

Marginal note:Third party claims

• 138 (1) If goods or a conveyance is seized as forfeit under this Act or if a conveyance is detained under subsection 97.25(2), any person, other than the person in whose possession it was when seized or detained, who claims an interest in it as owner, mortgagee, hypothecary creditor, lien-holder or holder of any like interest may, within ninety days after the seizure or detention, apply for a decision by the Minister under section 139.

• Marginal note:Application procedure

  (2) A person may apply for a decision by giving notice to the Minister in writing or by any other means that is satisfactory to the Minister.

• Marginal note:Burden of proof of application

  (3) The burden of proof that an application has been made under subsection (1) lies on the person claiming to have made it.

• Marginal note:Provision of evidence

  (4) A person who applies under subsection (1) must provide evidence that relates to their interest in the seized or detained goods or conveyance and any other evidence requested by the Minister in respect of that interest.

• Marginal note:Manner of giving evidence

  (5) Evidence may be given under subsection (4) by affidavit made before any person authorized by an Act of Parliament or of the legislature of a province to administer oaths or take affidavits.

• Marginal note:Late applications

  (6) The Minister may accept an application made within one year after the expiration of the ninety days referred to in subsection (1) by a person who has not claimed an interest in the seized or detained goods or conveyance within those ninety days.

• Marginal note:Conditions for late applications

  (7) When making an application under subsection (6), the person must demonstrate to the Minister that

  • (a) within the time provided in subsection (1) for making an application the person

    • (i) was unable to act or to instruct another person to act in the person’s name, or

    • (ii) had a bona fide intention to apply under that subsection;

  • (b) it would be just and equitable to grant the application; and

  • (c) the application was made as soon as circumstances permitted.