Digests

Customs and Excise

Customs Act

Judicial review of decision by Minister of Public Safety and Emergency Preparedness pursuant to Customs Act, R.S.C., 1985 (2nd Supp), c. 1, s. 129 upholding Canada Border Services Agency’s (CBSA) determination that United Parcel Service Canada Ltd. (UPS) contravened Act by failing to provide CBSA with opportunity to inspect shipments—CBSA identifying unreported shipments on UPS cargo release lists under heading “Count of packages Scanned Not Keyed” (SNK)—UPS submitting packages responsible for SNKs goods destined within U.S. or exported from U.S. going to overseas destinations, delivered into Canada due to human error; goods exported from Canada and returned; domestic goods misdirected to U.S.—Most of these packages later forwarded to their destinations without first being reported to CBSA—CBSA assessing penalty under Administrative Monetary Penalty System (AMPS), issuing single Notice of Penalty Assessment (NPA) to UPS of $489 000 in respect of 163 SNKs found in violation of AMPS, contravention C358—CBSA later finding 11 additional infractions of C358, replacing original penalty with 174 individual NPAs, demanding payment of $522 000—Minister finding UPS failure to allow CBSA to review shipments compromising CBSA mandate, penalties justified—Whether Minister exceeding statutory authority in cancelling original penalty, replacing it with increased penalty—UPS submitting original penalty exceeding statutory maximum described in Act, s. 109.1, nothing in Act allowing Minister to reissue penalties in respect of same contravention—Legislation not supporting contention that each NPA can only contain one contravention—One NPA may contain many contraventions—It is each contravention or penalty that is subject to statutory maximum, not NPA itself—Applicant not suffering any prejudice in reissuance of multiple NPAs for penalties of same amount—While nothing in Act explicitly granting CBSA, Minister authority to reissue penalties in different administrative form, or to cancel NPAs, nothing in applicable provisions suggesting NPA should be conflated with penalty—Even if Minister having no authority to cancel original penalty, cancellation technical irregularity wherein no substantial wrong occurring—Application dismissed.

United Parcel Service Canada Ltd. v. Canada (Public Safety and Emergency Preparedness) (T-5-10, 2011 FC 204, Near J., judgment dated February 21, 2011, 22 pp.)