T-2838-83
Montreal Lithographing Ltd. (Applicant)
v.
Deputy Minister of National Revenue for Customs
and Excise, and Rupert J. King, es qualité, as
Regional Collector of Customs and Excise for the
Atlantic Region, and Camille Violette, es qualité,
as collector of Customs and Excise for the Port of
Edmundston in the Province of New Brunswick
(Respondents)
Trial Division, Cattanach J.—Ottawa, December
15, 16, 1983 and January 6, 1984.
Customs and excise — Application for injunction against
imposition of duties and invocation of Customs Act s. 102 for
unpaid duties — Dispute as to Tariff classification —
Application premature until acts attempted — Statutory
appeals not exhausted — Provision for refund ensuring no
irreparable, non-compensable harm — No violation of Charter
s. 8 by s. 102 withholding of wares for duties currently or
previously demanded — S. 8 prohibiting search or seizure in
respect of person, not real or personal property — S. 102
providing for lien not seizure — Lien being right to retain
possession of property until satisfaction of debt — Common
meaning of "seizure" — "Seizure" term of art — Bona fide
assertion of lien not "unreasonable" seizure — Lien long
accepted in free and democratic societies — Application dis
missed — Customs Act, R.S.C. 1970, c. C-40, s. 102 —
Customs Tariff, R.S.C. 1970, c. C-41 — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 8
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Constitutional law — Charter of Rights — Search or sei
zure — Application for injunction — Withholding wares under
Customs Act s. 102 for duties currently or previously demand
ed not violating Charter s. 8 — S. 8 prohibiting search or
seizure in respect of person, not real or personal property —
Reasoning of Montgomery J. in Re Becker applied — S. 102
providing for lien not seizure — Meaning of "lien" in law —
Common meaning of "seizure" — "Seizure" term of art —
Bona fide assertion of lien not "unreasonable" seizure — Lien
long accepted in free and democratic societies — Application
dismissed — Customs Act, R.S.C. 1970, c. C-40, s. 102 —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 8.
Judicial review — Equitable remedies — Injunctions —
Application for injunction against imposition of duties and
invocation of Act s. 102 for unpaid duties — Application
premature until acts attempted — Act providing sequence of
appeals — Discretionary grant of injunction inexpedient in
circumstances unless statutory options exhausted — Provision
for refund of duties ensuring no irreparable, non-compensable
harm — Application dismissed — Customs Act, R.S.C. 1970,
c. C-40, s. 102 — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 18.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Becker and The Queen in Right of Alberta (1983),
148 D.L.R. (3d) 539 (Alta. Q.B.).
COUNSEL:
J. R. Miller for applicant.
M. Y. Perrier and D. T. Sgayias for
respondents.
SOLICITORS:
Martineau Walker, Montreal, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
CATTANACH J.: For the reasons discussed at
length during the hearing of this matter which
counsel for the applicant has agreed should be
considered as being an application exclusively for
relief by way of injunction under section 18 of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10] and that Her Majesty the Queen and the
Attorney General be deleted as parties, the
application for the injunction was denied with
costs to the respondents if demanded.
The dispute between the parties had been under
what item of the Customs Tariff [R.S.C. 1970, c.
C-41] goods imported fell, one of which contended
for by the applicant attracted no duty whereas that
contended for by the respondents did attract duty.
The applicant has paid the duties exacted by the
respondents so there is nothing which the respond
ents can now be restrained from doing.
However the applicant seeks an injunction
against the future imposition of such duties and
the invocation of section 102 of the Customs Act
[R.S.C. 1970, c. C-40] for unpaid duties on past
importations. That is premature until sought to be
done.
Because there is a statutory appeal procedure
provided in the Customs Act through the depart
mental hierarchy, then to the Tariff Board and
from there to the Federal Court of Canada, if
satisfaction is not obtained en route, it is con
sidered inexpedient that discretionary relief by
way of injunction in the present circumstances
should be granted unless that right of appeal has
first been exhausted.
Further should it be resolved at any stage of the
appeal procedure which may be final that the
wares were improperly classified the appeal proce
dure provides for a refund of the whole or part of
the duties exacted.
Therefore the plaintiff would not suffer irrepa
rable harm not compensatable in damages.
These, in brief, were the paramount reasons for
which the application for an injunction was denied
at the conclusion of the hearing and an order to
that effect endorsed on page 4 of the notice of
motion.
The following is the addendum to reasons for
order rendered in English by
CATTANACH J.: In the anxiety to summarize
and expedite the reasons discussed at the hearing
of the application for an injunction in this matter
to writing, specific mention was not made of the
serious contention advanced and seriously argued
on behalf of the applicant and of the reasons given
for not accepting that contention at the hearing.
The contention so advanced was that the
respondents by invoking section 102 of the Cus
toms Act by withholding the release of wares
imported by the applicant until payment of an
indebtedness alleged to be payable with respect to
previously imported wares by the applicant or
because a refusal by the respondents to release
imported goods until duties were paid which were
imposed thereon, contrary to the contention of the
applicant that the goods were duty-free, would
amount to an "unreasonable seizure" of the goods
contrary to the guarantee of rights against "unrea-
sonable search or seizure" in section 8 of [the
Canadian Charter of Rights and Freedoms, being
Part I of] the Constitution Act, 1982 [Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)].
The reasons for not accepting that contention on
behalf of the applicant were threefold, the first of
which was predicated upon the adoption of the
reasoning by Montgomery J. in Re Becker and
The Queen in Right of Alberta (1983), 148 D.L.R.
(3d) 539 (Alta. Q.B.), to the effect that the free
dom from unreasonable search or seizure so guar
anteed in section 8 of the Charter of Rights and
Freedoms was applicable to search or seizure in
respect of the person and not as to real property.
While Mr. Justice Montgomery directed his rea
soning to real property, that reasoning in my view
applied with equal logic to personal property.
The second reason was that while the word
"seizure" in common parlance means the confisca
tion or forcible taking possession of lands or goods,
it is a term of art in law. The right granted in
section 102 of the Customs Act to the Crown is a
lien upon the wares. In law a lien is a right to
retain possession of property until a debt due to
the person detaining the property is satisfied. In
my view there is a substantial difference between a
"seizure" and a "lien" from which it follows that
said section 8 of the Charter in which section
specific reference is made to "unreasonable search
or seizure" does not apply to a "lien".
Thirdly, assuming that not to be so, which
assumption I did not accept, the bona fide invoca
tion of a lien (as was here the case) does not
amount to an "unreasonable" seizure.
The concept of a lien on goods for the security
of the supplier of services or repairs has been in
effect in the common law for at least five
centuries.
The common law in this respect has been repeat
ed in legislation in Canada, an example of which is
found in mechanics' liens, which can be a charge
on real property for work done with respect there
to, or by which a repairman may retain possession
of the wares until payment for that repair service.
If possession of the wares is surrendered the lien
then fails. Similarly, there are the further exam
ples of an innkeeper's lien, and a warehouseman's
lien amongst others. Thus it is a very reasonable
concept accepted from time immemorial in free
and democratic societies.
It was for these reasons that the contention that
section 102 of the Customs Act was inoperative as
being in conflict with section 8 of the Charter of
Rights and Freedoms was not accepted.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.