A-1666-83
Aleksandar Glisic (Appellant)
v.
The Queen (Respondent)
INDEXED AS: GL/SIC V. CANADA
Court of Appeal, Urie, Mahoney and Stone JJ.—
Toronto, September 11; Ottawa, October 1, 1987.
Practice — Pleadings — Goods seized and forfeited on
ground smuggled or clandestinely introduced into Canada
contrary to Customs Act — Statement of defence pleading
specific provisions, including s. 192 re smuggling — Submis
sion by Crown after close of case at trial facts within ss. 18
and 180 of Act — Neither section pleaded — Purpose of rules
governing pleadings to ensure proper administration of justice
and protection of litigants — Crown cannot rely on provisions
not specifically pleaded without amendment to pleading.
Customs and excise — Customs Act — Allegation seizure
and forfeiture of goods valid on ground smuggled or clandes
tinely introduced into Canada contrary to Act — Specific
provisions pleaded, including s. 192 re smuggling — Submis
sion by Crown, after close of case at trial, facts within ss. 18
and 180 of Act — Neither section pleaded — Not open to
Crown to rely on new ground of defence.
This is an appeal from the judgment of the Trial Division
dismissing the appellant's action to recover jewellery seized and
forfeited by Customs. The only defence was that the goods had
been properly seized and forfeited as smuggled or clandestinely
introduced into Canada contrary to the Customs Act. The
respondent relied on specific provisions of the Act, including
section 192 which deals with the smuggling of goods. However,
after both sides had closed their cases at trial, the respondent
submitted to the Judge that the evidence adduced brought the
case within sections 18 and 180 of the Act and that the seizure
and forfeiture were valid even if the goods were not found to
have been smuggled into Canada. Those provisions had not
been pleaded. The Trial Judge accepted the appellant's evi
dence that he had not declared the goods upon re-entering the
country and concluded that, in those circumstances, the jewel
lery had been properly forfeited under subsection 180(1). The
issue is whether it was open to the respondent to rely on
statutory provisions not pleaded.
Held (Mahoney J. dissenting): the appeal should be allowed.
Per Stone J.: This action is one to which the normal rules of
pleading apply. The purpose of those rules is to ensure the
proper administration of justice and the protection of litigants.
That purpose is not served when a plaintiff is taken by surprise
at the eleventh hour of a trial by the raising of a ground of
defence not specifically pleaded. Rule 409(b), which provides
that a party shall plead specifically any matter that, if not
specifically pleaded, might take the opposite party by surprise,
was designed to avoid such a situation. A plaintiff should not be
left in a position of having to guess what provisions, in addition
to those expressly pleaded, may be relied upon at trial by way
of defence. It was not open to the respondent without prior
amendment of the pleading to rely upon sections 18 and 180 of
the Act in the alternative.
Per Urie J.: A surprise tactic of the kind at issue cannot be
tolerated without safeguards for the rights of the other party,
particularly in an action arising from the seizure of property
belonging to the party challenging the seizure. It is irrelevant
whether the appellant has any likelihood of successfully defend
ing the new allegation; what is relevant is that he be treated
fairly.
Per Mahoney J. (dissenting): The pleadings were not inade
quate. The appellant pleaded that the jewellery had been
lawfully brought into Canada. However, he did not discharge
the onus of proving his allegation. The respondent accurately
pleaded the basis upon which it effected the seizure and
forfeiture. The Trial Judge did not give effect to a defence that
had not been fairly raised; he simply decided that the appellant
had not made out his case.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Customs Act, R.S.C. 1970, c. C-40, ss. 18, 161(1), 165,
166(1), 180, 192(1),(3).
Federal Court Rules, C.R.C., c. 663, R. 409(b).
CASES JUDICIALLY CONSIDERED
APPLIED:
In re Robinson's Settlement, Gant v. Hobbs, [1912] 1 Ch.
717 (C.A.); The Queen v. Transworld Shipping Ltd.,
[1976] 1 F.C. 159; (1977), 12 N.R. 129 (C.A.).
DISTINGUISHED:
The King v. Bureau, [ 1949] S.C.R. 367.
REFERRED TO:
James v. Smith, [1891] 1 Ch. 384.
APPEARANCE:
Aleksandar Glisic on his own behalf.
COUNSEL:
Michael Duffy for respondent.
SOLICITOR:
Deputy Attorney General of Canada for
respondent.
Appellant on his own behalf:
Aleksandar Glisic, Toronto.
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of both of my colleagues.
I am in agreement with those prepared by my
brother Stone J. and wish only to add the following
few words.
One of the reasons for requiring pleadings in
litigation and discovery of the parties is to ensure
that no party is surprised by allegations made. As
Stone J. has so clearly set out, the complete tenor
of both the negotiations between the appellant and
customs officials and the pleadings exchanged by
the parties disclose that the respondent in seizing
the goods in issue, relied exclusively on the allega
tion that they were smuggled or clandestinely
introduced into Canada by the appellant—an alle
gation which he vigorously denied. A proposal for
a reference to the Trial Division of this Court was
refused by those officials thus necessitating this
action to enable the appellant to obtain his day in
Court. At the trial, when apparently the respon
dent's counsel felt that he no longer could substan
tiate the original allegation, he shifted ground
without asking for or having obtained leave to
amend his client's pleadings, requesting an
adjournment of the case to permit the appellant to
prepare a defence to the new allegation or in any
way assist the appellant in meeting the new case
against him. Had the appellant been represented
by competent counsel rather than representing
himself, undoubtedly one or other of the above
actions would have been requested of the Trial
Judge.
In my opinion, a surprise tactic of this kind
simply cannot be tolerated without safeguards for
the rights of the other party particularly in an
action arising from the seizure of property of the
party disputing the right to seize. Whether or not
the appellant has any likelihood of successfully
defending the new allegation is irrelevant. What is
relevant is that he be treated fairly. That being so,
the judgment a quo must be set aside. I would
dispose of the matter in the manner proposed by
Mr. Justice Stone.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J. (dissenting): This is an appeal
from a judgment of the Trial Division [[1984] 1
F.C. 797] which dismissed with costs the appel
lant's action to recover three items of jewellery,
valued at $5,000, seized and forfeited upon his
return from a holiday in Brazil in April 1980. The
seizure was effected on the grounds that the jewel
lery had been smuggled or clandestinely intro
duced into Canada contrary to subsection 192(3)
of the former Customs Act, R.S.C. 1970, c. C-40,
as amended.
The learned Trial Judge accepted the appel
lant's evidence that the jewellery seized had been
owned by him when he emigrated to Canada in
1967, that he had brought it into Canada with him
then but had not declared it as required by section
18 because he did not know and was not told he
was required to do so, and that he had not declared
it on several subsequent re-entries when he had
taken it abroad with him. The learned Trial Judge
found that, in those circumstances, the jewellery
had been properly forfeited under subsection
180(1).
18.... every person arriving in Canada ... shall
(b) ... make a report in writing ... of all goods in his
charge or custody....
180. (1) Where the person in charge or custody of any
article mentioned in paragraph 18(b) has failed to comply with
any of the requirements of section 18, all the articles mentioned
in paragraph (b) of that section in the charge or custody of
such person shall be forfeited and may be seized and dealt with
accordingly.
Neither sections 18 or 180 of the Act were plead
ed. The goods were, it follows, held to have been
properly seized and forfeited but on grounds other
than those stated upon their seizure and forfeiture
and pleaded by the respondent.
In my respectful opinion, the pleadings, particu
larly the statement of defence, were not inade
quate. The appellant pleaded that the jewellery
had been lawfully brought into Canada. He had
the onus to prove that and he did not do so. On the
contrary, by his own evidence he proved that it had
not. The respondent accurately pleaded the basis
upon which it had actually been seized and forfeit
ed. I fail to see how she could have pleaded
differently. In short, in my view of the matter, the
learned Trial Judge did not give effect to a defence
that had not been fairly raised; he simply decided
that the appellant had not made out his case.
I would dismiss this appeal with costs.
* * *
The following are the reasons for judgment
rendered in English by
STONE J.: I have concluded that this appeal
should succeed. That being so, I find I am unable
to agree with the conclusion arrived at by Mr.
Justice Mahoney whose draft reasons for judgment
I have read.
The appellant makes the following allegations in
his handwritten statement of claim. I shall read
them as they appear, for their intent is clear. It is
apparent that English is not the appellant's first
language. Paragraphs 2 to 10 read:
2. The Plaintiff is and was at all material times the owner and
entitled to the possession of the following pieces of jewellery
(hereinafter collectively referred to as the "jewellery") namely:
(a) 1 yellow gold bracelet
(b) 1 yellow gold (7 diamonds) ring
(c) 1 yellow gold ring (1 emer. 16 diamonds)
3. In March and April, 1980 the Plaintiff was on vacation in
Brasil. As usual he was tarring hiw jewellery with him.
4. On 7th day of April, 1980 the Plaintiff returned from Brasil
to Canada, arriving at the Toronto International Airport.
5. At that time the customs officials sized [sic] from the
Plaintiff the jewellery and all his other pieces of jewellery.
6. The Plaintiff received from the customs officials a statement
of goods sized [sic], dated the 7th day of April, 1980, that later
received file No. 44947/497-1-1430.
7. By letter dated May 1st, 1980, the Plaintiff gave a Notice of
Claim to the Defendant and thereafter he gave many Notices
with informations that indicate that subject jewellery was
legaly brought in country long time ago.
8. The Plaintiff received a decision of the Minister dated June
4th, 1981, under section 163 of the Customs Act whereby some
of his pieces of jewellery were retained by Revenue Canada
Customs and Excise Branch.
9. By letter dated June 27th, 1981 the Plaintiff advised the
Defendant that the decision would not be acceptable and asked
that the matter be referred to the Federal Court of Canada,
Trial Division pursuant to section 165 of the Customs Act.
10. By letter dated August 13th, 1981 the Plaintiff was advised
that the Minister would not refer the matter to the Federal
Court of Canada, Trial Division.
In the defence, the Deputy Attorney General of
Canada makes the following allegations:
1. He admits the allegations of fact contained in paragraphs
one, nine and ten of the Statement of Claim and, except as
expressly admitted in this Statement of Defence, he denies
every other allegation of fact contained in the Statement of
Claim.
2. In answer to paragraph two of the Statement of Claim he
specifically denies the allegations of fact contained in that
paragraph and he puts the Plaintiff to the strict proof of those
allegations.
3. He has no knowledge of the facts alleged in paragraph three
of the Statement of Claim.
4. With respect to paragraph four of the Statement of Claim
he admits that on April 7th, 1980 the Plaintiff arrived in
Canada, having returned from Brazil via New York City in the
United States of America.
5. In answer to paragraphs two and five of the Statement of
Claim, and in answer to the Statement of Claim as a whole, he
states that on April 7th, 1980 customs officials caused a search
to be made of the Plaintiff's person and belongings. He states
further that as a result of this search the goods described in the
Statement of Goods Seized were seized as being liable to
forfeiture on the ground that they had been smuggled or
clandestinely introduced into Canada contrary to the provisions
of the Customs Act, R.S.C. 1970, Chapter C-40 as amended. A
copy of the Statement of Goods Seized is marked as Schedule
A to the Statement of Particulars attached to this Statement of
Defence.
6. He admits the allegations of fact contained in paragraph six
of the Statement of Claim. For greater certainty, however, he
states that the goods referred to in the Statement of Goods
Seized were the subject of Seizure Number 497-1-1430. The
Department of National Revenue, Customs and Excise used
Number 44947/497-1-1430 as its file number on correspond
ence and documentation.
7. With respect to paragraph seven of the Statement of Claim
he admits that by letter dated May 1st, 1980 the Plaintiff gave
notice of his intention to claim the goods referred to in the
Statement of Goods Seized. With respect to the other allega
tions of fact contained in paragraph seven, however, he states
that the Plaintiff's correspondence speaks for itself and he does
not admit the conclusions stated by the Plaintiff in that
paragraph.
8. In answer to paragraph eight of the Statement of Claim he
admits that on June 4th, 1981 a ministerial decision was
rendered pursuant to Section 163 of the Customs Act. He
states that the decision speaks for itself. A copy of the minis
terial decision is marked as Schedule B to the Statement of
Particulars attached to this Statement of Defence.
12. In answer to the Statement of Claim as a whole he pleads
and relies upon the provisions of the Customs Act, and in
particular upon the provisions of Sections 133, 143, 160-3, 185
and 192.
At the time the goods were seized on April 7,
1980 the seizing officer delivered to the appellant
a "Seizure Receipt" which gave the following
reason for the seizure:
That the said goods were smuggled or clandestinely introduced
into Canada.
Later, by letter of June 11, 1980, the Deputy
Minister of National Revenue informed the appel
lant as follows:
This refers to correspondence received concerning the above
seizure at the Port of Toronto, Ontario, on April 7th, 1980, of
the following goods:
2 — bracelets
6 — rings
1 — chain
1 — chain and pendant
The above goods or deposit received in lieu thereof, are subject
to forfeiture under the Customs Act for the following reason(s):
That the said goods were smuggled or clandestinely introduced
into Canada.
This notice was given pursuant to subsection
161(1) of the statute which authorized the Deputy
Minister to notify an owner or claimant of various
matters including "the reasons for the seizure" of
goods.
Given these facts, the respondent's plea in para
graph 5 of her defence may be readily understood.
In answer to the whole of the statement of claim it
is there alleged that the goods had been seized "as
being liable to forfeiture on the ground that they
had been smuggled or clandestinely introduced
into Canada contrary to the provisions of the
Customs Act, R.S.C. 1970, Chapter C-40 as
amended". In paragraph 12 of the defence, specif
ic reliance is placed on section 192 which reads in
part:
192. (1) If any person
(a) smuggles or clandestinely introduces into Canada any
goods subject to duty under the value for duty of two
hundred dollars;
(b) makes out or passes or attempts to pass through the
custom-house, any false, forged or fraudulent invoice of any
goods of whatever value; or
(c) in any way attempts to defraud the revenue by avoiding
the payment of the duty or any part of the duty on any goods
of whatever value;
such goods if found shall be seized and forfeited, or if not found
but the value thereof has been ascertained, the person so
offending shall forfeit the value thereof as ascertained, such
forfeiture to be without power of remission in cases of offences
under paragraph (a).
(3) Every one who smuggles or clandestinely introduces into
Canada any goods subject to duty of the value for duty of two
hundred dollars or over is guilty of an indictable offence and
liable on conviction, in addition to any other penalty to which
he is subject for any such offence, to a penalty not exceeding
one thousand dollars and not less than two hundred dollars, or
to imprisonment for a term not exceeding four years and not
less than one year, or to both fine and imprisonment, and such
goods if found shall be seized and forfeited without power of
remission, or if not found but the value thereof has been
ascertained, the person so offending shall forfeit without power
of remission the value thereof as ascertained.
It was on the basis of the issue so defined in the
pleadings that the case proceeded to trial. The
relief sought is for return of the goods seized and
forfeited. The defence, and the only specific
defence taken, was that the goods had been prop
erly seized and forfeited because they had been
smuggled or clandestinely introduced into Canada.
No alternative justification for the seizure and
forfeiture is raised by the defence. The trial tran
script strongly suggests that the appellant
appreciated the issue as one arising under section
192 for he mentions smuggling several times (see
e.g. Transcript, at pages 11 and 66). The following
exchange between the appellant and the learned
Trial Judge at page 25 of the Transcript further
illustrates that focus:
HIS LORDSHIP: Is there anything else you wish to add at this
time?
THE DEPONENT: Maybe, and I do not know if it is the
appropriate time. I could deal with the statement of defence if
that is appropriate.
HIS LORDSHIP: I think that is more of a matter for argument
unless there are some facts, suggested in the defence, that you
want to deny under oath?
THE DEPONENT: As far as I am concerned, none of these
statements—they are just like, you know, the legal language.
And any of those statements I really don't consider they have
base for retaining the goods. They have a right to retain the
goods, but I believe I have sufficient information that I did not
smuggle the items into this country .... [Emphasis added.]
It was only at a very late stage of the trial itself,
after both sides had closed their cases, that the
respondent addressed a submission to the learned
Trial Judge to the effect that the evidence adduced
brought the case within sections 18 and 180 of the
statute' and, accordingly, that the goods had been
properly seized and forfeited even if not found to
have been smuggled or clandestinely introduced
into Canada. It is not clear what, if any, response
the appellant may have made to this submission
which had no basis in the respondent's pleading.
He was not represented by counsel.
As I see it, the action is one to which the normal
rules and principles of pleading apply. Having, in
effect, said to the appellant in her defence that the
seizure and forfeiture was founded upon section
192 of the statute, it was not open to the respon
dent without prior amendment of the pleading to
rely upon sections 18 and 180 of the statute as an
alternative. To do so after the evidence was in,
I 18. Every person in charge of a vehicle arriving in Canada,
other than a railway carriage, and every person arriving in
Canada on foot or otherwise, shall
(a) come to the custom-house nearest to the point at which
he arrived in Canada, or to the station of the officer nearest
to such point if that station is nearer thereto than a
custom-house;
(b) before unloading or in any manner disposing thereof,
make a report in writing to the collector or proper officer at
such custom-house or station of all goods in his charge or
custody or in the vehicle and of the fittings, furnishings and
appurtenances of the vehicle and any animals drawing it and
their harness and tackle, and of the quantities and values of
such goods, fittings, furnishings, appurtenances, harness and
tackle; and
(c) then and there truly answer all such questions respecting
the articles mentioned in paragraph (b) as the collector or
proper officer requires of him and make due entry thereof as
required by law.
(Continued on next page)
placed the appellant in a most invidious position.
He had, at that late stage, to meet an entirely new
ground of defence not expressly relied upon in the
respondent's pleading. Although paragraph 12 of
the defence asserts a general reliance upon the
whole of the statute it takes care to single out
certain sections, particularly section 192. The
Customs Act is a long and complex piece of legis
lation providing for a number of severe penalties
according to a variety of circumstances. In my
view, a plaintiff ought not to be left to guess what
provisions, in addition to those expressly pleaded,
may be relied upon at trial by way of defence. The
record suggests that the respondent was aware of
this possible ground of defence shortly after the
seizure occurred (see e.g. Appeal Book, page 23).
Had it been properly raised prior to commence
ment of the trial, the appellant would have been
able to prepare his case accordingly and, if he
thought fit, to retain counsel. On the other hand,
had it been raised earlier in the trial itself, before
the parties had closed their respective cases, its
propriety could have been ruled upon in good time
and the learned Trial Judge could have determined
whether any prejudice to the appellant might
result. In that case, ways of removing the prejudice
could have been addressed including, if necessary,
(Continued from previous page)
180. (I) Where the person in charge or custody of any
article mentioned in paragraph 18(b) has failed to comply with
any of the requirements of section 18, all the articles mentioned
in paragraph (b) of that section in the charge or custody of
such person shall be forfeited and may be seized and dealt with
accordingly.
(2) If the articles so forfeited or any of them are not found,
the owner at the time of importation and the importer, and
every other person who has been in any way connected with the
unlawful importation of such articles shall forfeit a sum equal
to the value of the articles, and, whether such articles are found
or not,
(a) if the value for duty of the articles is under two hundred
dollars, is further liable on summary conviction before two
justices of the peace to a penalty not exceeding two hundred
dollars and not less than fifty dollars, or to imprisonment for
a term not exceeding one year and not less than one month,
or to both fine and imprisonment; and
(b) if the value for duty of the goods is two hundred dollars
or over, is guilty of an indictable offence and liable on
conviction to a penalty not exceeding one thousand dollars
and not less than two hundred dollars, or to imprisonment for
a term not exceeding four years, and not less than one year,
or to both fine and imprisonment.
adjournment of the trial so as to enable the appel
lant to meet a ground not previously pleaded.
The rules governing pleadings are meant to
assist in the proper administration of justice and to
protect litigants. That purpose is not served where,
as here, a plaintiff is taken by surprise at the
eleventh hour of the trial by a ground of defence
not specifically pleaded. It seems to me that Rule
409(b) of the Federal Court Rules [C.R.C., c.
663] was designed to avoid just such a circum
stance. It requires that:
Rule 409. A party shall plead specifically any matter (e.g.,
performance, release, a statute of limitation, prescription, fraud
or any fact showing illegality)
(b) that, if not specifically pleaded, might take the opposite
party by surprise; 2
The following observations of Buckley L.J. con
cerning the effect of the corresponding English
rule are apposite. In In re Robinson's Settlement,
Gant v. Hobbs, [1912] 1 Ch. 717 (C.A.), at page
728, he said:
The effect of the rule is, I think, for reasons of practice and
justice and convenience to require the party to tell his opponent
what he is coming to the Court to prove. If he does not do that
the Court will deal with it in one of two ways. It may say that it
is not open to him, that he has not raised it and will not be
allowed to rely on it; or it may give him leave to amend by
raising it, and protect the other party if necessary by letting the
case stand over. The rule is not one that excludes from the
consideration of the Court the relevant subject-matter for
decision simply on the ground that it is not pleaded. It leaves
the party in mercy and the Court will deal with him as is just. 3
The respondent relies upon the case of The King
v. Bureau, [1949] S.C.R. 367 but it does not assist
2 In The Queen v. Transworld Shipping Ltd., [1976] 1 F.C.
159; (1977), 12 N.R. 129 (C.A.), after citing Rule 409, Jackett
C.J. observed at pp. 170 F.C.; 142 N.R.:
In my view, justice requires that any defence based on special
statutory provisions must be pleaded, particularly if it is
based on specific facts, so that the opposite party may have
discovery with regard to such facts and prepare to adduce
evidence with regard thereto.
3 Compare James v. Smith, [1891] 1 Ch. 384, at p. 389.
me. That case concerns the sweep of the Court's
power under subsection 166(1) of the statute upon
a reference made to it by the Minister pursuant to
section 165. 4 In this case, as the pleadings show,
there was an express refusal of the appellant's
request for a reference, leaving him with no option
but to sue on his own behalf or abandon his claim.
This being an ordinary action in the Court, the
respondent was not entitled in the closing minutes
of the trial, and after the parties had closed their
cases, to defend the action on a basis that is
entirely different from that relied upon in her
pleading.
In the result, I would allow this appeal with
costs both here and in the Trial Division, set aside
the judgment below and would order that the
respondent forthwith return to the appellant the
items of jewellery identified in paragraph 2 of the
statement of claim.
These two provisions read:
165. If the owner or claimant of the thing seized or
detained, or the person alleged to have incurred the penalty,
within thirty days after being notified of the Minister's
decision, gives him notice in writing that such decision will
not be accepted, the Minister may refer the matter to the
court.
166. (1) On any reference of any such matter by the
Minister to the court, the court shall hear and consider the
matter upon the papers and evidence referred and upon any
further evidence which, under the direction of the court, the
owner or claimant of the thing seized or detained, or the
person alleged to have incurred the penalty, or the Crown,
produces, and the court shall decide according to the right of
the matter.
(2) Judgment may be entered upon any such decision, and
the judgment is enforceable and shall be enforced in like
manner as other judgments of the court.
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.