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

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.

Marginal note:Decision of Minister

139 The Minister must decide an application made under section 138 without delay and, if the Minister is satisfied that the following conditions are met, must make a determination that the applicant’s interest in the goods or conveyance is not affected by the seizure or detention and as to the nature and extent of the applicant’s interest at the time of the contravention or use:

• (a) the applicant acquired the interest in good faith before the contravention or use;

• (b) the applicant is innocent of any complicity or collusion in the contravention or use; and

• (c) the applicant exercised all reasonable care in respect of any person permitted to obtain possession of the goods or conveyance in order to satisfy the applicant that it was not likely to be used in a contravention or, if the applicant is a mortgagee, hypothecary creditor or lien-holder, the applicant exercised that care in relation to the mortgagor, hypothecary debtor or lien-giver.

Marginal note:Order

• 139.1 (1) A person who makes an application under section 138 may, within ninety days after being notified of the decision, apply for an order under this section by giving notice in writing to the court.

• Meaning of court

  (2) In this section, court means

  • (a) in the Province of Ontario, the Superior Court of Justice;

  • (b) in the Province of Quebec, the Superior Court;

  • (c) in the Provinces of Nova Scotia, British Columbia and Prince Edward Island, Yukon and the Northwest Territories, the Supreme Court;

  • (d) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench;

  • (e) in the Province of Newfoundland and Labrador, the Trial Division of the Supreme Court; and

  • (f) in Nunavut, the Nunavut Court of Justice.

• Marginal note:Date of hearing

  (3) A judge of the court must fix a day, not less than thirty days after the application has been made, for the hearing of the application.

• Marginal note:Notice to Minister

  (4) The applicant, no later than fifteen days before the day fixed for the hearing, must serve notice of the application and of the hearing on the Minister, or an officer designated by the Minister for the purposes of this section.

• Marginal note:Service by registered mail

  (5) Service of the notice is sufficient if it is sent by registered mail addressed to the Minister.

• Marginal note:Order

  (6) The applicant is entitled to an order declaring that the applicant’s interest is not affected by the seizure or detention and declaring the nature and extent of the applicant’s interest at the time of the contravention or use if, on the hearing of the application, the court is satisfied that the applicant

  • (a) acquired the interest in good faith prior to the contravention or use;

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

  • (c) exercised all reasonable care in respect of any person permitted to obtain possession of the goods or conveyance in order to satisfy the applicant that it was not likely to be used in a contravention or, if the applicant is a mortgagee, hypothecary creditor or lien-holder, that the applicant exercised that care in relation to the mortgagor, hypothecary debtor or lien-giver.