Bill S-23
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Amalgamations and Windings-up |
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| Amalgama- tions
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97.4 (1) If two or more corporations (in this
section each referred to as a ``predecessor'')
are merged or amalgamated to form one
corporation (in this section referred to as the
``new corporation''), the new corporation is,
for the purposes of this Act, deemed to be a
separate person from each of the predecessors
and the same corporation as, and a
continuation of, each predecessor.
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| Exception
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(2) Subsection (1) does not apply to the
merger or amalgamation of two or more
corporations that is the result of the
acquisition of property of one corporation by
another corporation pursuant to the purchase
of the property by the other corporation or as
the result of the distribution of the property to
the other corporation on the winding-up of the
corporation.
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| Winding-up
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97.41 For the purposes of this Act, if at any
time a particular corporation is wound up and
not less than 90% of the issued shares of each
class of the capital stock of the particular
corporation were, immediately before that
time, owned by another corporation, the other
corporation is deemed to be the same
corporation as, and a continuation of, the
particular corporation.
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Partnerships |
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| Partnerships
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97.42 (1) For the purposes of this Act,
anything done by a person as a member of a
partnership is deemed to have been done by
the partnership in the course of the
partnership's activities and not to have been
done by the person.
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| Joint and
several or
solidary
liability
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(2) A partnership and each member or
former member (each of which is referred to
in this subsection as the ``member'') of the
partnership (other than a member which is a
limited partner and is not a general partner) are
jointly and severally or solidarily liable for
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Unincorporated Bodies |
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| Compliance
by
unincorpor- ated bodies
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97.43 If any amount is required to be paid
or any other thing is required to be done under
this Act by a person (in this section referred to
as the ``body'') that is not an individual,
corporation, partnership, trust or estate, the
following persons are jointly and severally or
solidarily liable to pay that amount or to
comply with the requirement:
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The payment of the amount or the fullfilment
of the requirement by a member is deemed to
be compliance with the requirement.
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Assessments, Objections and Appeals |
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Assessments
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| Assessments
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garnishments
and non-arms
length
transfers
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97.44 (1) The Minister may assess any
amount that a person is liable to pay
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The Minister may reassess the amount or
make an additional assessment.
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| Interest
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(2) If a person has been assessed an amount
under subsection (1), the person shall pay, in
addition to the amount, interest at the
prescribed rate for the period beginning on the
first day after the day the amount was assessed
and ending on the day the amount is paid.
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| Exception
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(3) Paragraph (1)(a) does not apply in
respect of a reassessment of a person made
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| When
assessment
may be made
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(4) An assessment under paragraph (1)(a)
may be made at any time if the person to be
assessed has
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| Waiver
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(5) Any person may, within the time
otherwise limited by paragraph (1)(a) for
assessing the person, waive the application of
that paragraph by filing with the Minister a
waiver in the prescribed form specifying the
matter in respect of which the person waives
the application of that paragraph.
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| Revoking
waiver
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(6) Any person who files a waiver may
revoke the waiver on six months notice to the
Minister by filing with the Minister a notice of
revocation of the waiver in the prescribed
form.
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| Liability not
affected
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97.45 (1) Liability under this Part to pay any
amount is not affected by an incorrect or
incomplete assessment or by the fact that no
assessment has been made.
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| Assessment
deemed valid
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(2) Subject to being reassessed or vacated as
a result of an objection or appeal under this
Part, an assessment is valid and binding,
despite any error, defect or omission in the
assessment or in any proceeding under this
Part relating to it.
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| Irregularities
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(3) An appeal from an assessment must not
be allowed by reason only of an irregularity,
informality, omission or error on the part of
any person in the observation of any directory
provision of this Part.
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| Notice of
assessment
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97.46 After making an assessment, the
Minister must send to the person assessed a
notice of assessment.
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| Assessment
before
collection
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97.47 (1) The Minister may not collect an
amount under section 97.44 unless that
amount has been assessed.
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| Payment of
remainder
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(2) An amount that is unpaid by a person
and the subject of a notice of assessment is
payable immediately by the person to the
Receiver General.
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| Security if
objection or
appeal
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(3) If a person objects to or appeals from an
assessment under this Part, the Minister shall
accept security, in an amount and a form
satisfactory to the Minister, given by or on
behalf of the person, for the payment of any
amount that is in controversy.
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Objections and Appeals
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| Objection to
assessment
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97.48 (1) Any person who has been assessed
under section 97.44 and who objects to the
assessment may, within ninety days after the
day notice of the assessment is sent to the
person, file with the Minister a notice of
objection in the prescribed form and manner
setting out the reasons for the objection and all
relevant facts.
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| Issues to be
decided
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(2) If a person objects to an assessment, the
notice of objection must
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| Late
compliance
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(3) If a notice of objection filed by a person
to whom subsection (2) applies does not
include the information required by paragraph
(2)(b) or (c) in respect of an issue to be decided
that is described in the notice, the Minister
may in writing request the person to provide
the information, and those paragraphs are
deemed to have been complied with in respect
of the issue if, within 60 days after the request
is made, the person submits the information in
writing to the Minister.
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| Limitation on
objections
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(4) If a person has filed a notice of objection
to an assessment and the Minister makes a
particular assessment under subsection (8)
pursuant to the notice of objection or in
accordance with an order of a court vacating,
varying or restoring an assessment or referring
an assessment back to the Minister for
reconsideration and reassessment, the person
may object to the particular assessment in
respect of an issue
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| Application of
subsection (4)
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(5) If a person has filed a notice of objection
to an assessment (in this subsection referred to
as the ``earlier assessment'') and the Minister
makes a particular assessment under
subsection (8) pursuant to the notice of
objection, subsection (4) does not limit the
right of the person to object to the particular
assessment in respect of an issue that was part
of the particular assessment and not a part of
the earlier assessment.
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| Limitation on
objections
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(6) Despite subsection (1), no objection
may be made by a person in respect of an issue
for which the right of objection has been
waived in writing by the person.
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| Acceptance of
objection
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(7) The Minister may accept a notice of
objection even if it was not filed in the
prescribed manner.
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| Considera- tion of objection
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(8) On receipt of a notice of objection, the
Minister must, without delay, reconsider the
assessment and vacate or confirm the
assessment or make a reassessment.
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| Waiving
reconsideratio
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(9) If, in a notice of objection, a person who
wishes to appeal directly to the Tax Court of
Canada requests the Minister not to reconsider
the assessment objected to, the Minister may
confirm the assessment without
reconsideration.
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| Notice of
decision
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(10) After reconsidering or confirming an
assessment, the Minister must send to the
person objecting a notice of the Minister's
decision by registered or certified mail.
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| Appeal to the
Tax Court of
Canada
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97.49 If a person files a notice of objection
to an assessment and the Minister sends to the
person a notice of a reassessment or an
additional assessment, in respect of any matter
dealt with in the notice of objection, the
person may, within ninety days after the day
the notice of reassessment or additional
assessment was sent by the Minister,
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| Extension of
time by
Minister
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97.5 (1) If no objection to an assessment is
filed under section 97.48, within the time limit
otherwise provided, a person may make an
application to the Minister to extend the time
for filing a notice of objection and the Minister
may grant the application.
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| Contents of
application
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(2) The application must set out the reasons
why the notice of objection was not filed
within the time otherwise limited by this Part
for doing so.
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| How
application
made
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(3) The application must be made by
delivering or mailing the application and a
copy of the notice of objection to the Chief of
Appeals in a Tax Services Office or Taxation
Centre of the Agency.
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| Exception
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(4) The Minister may accept the application
even if it was not delivered or mailed to the
person or place specified in subsection (3).
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| Duties of
Minister
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(5) On receipt of the application, the
Minister must, without delay, consider it, and
notify the person of his or her decision by
registered or certified mail.
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| Date of
objection if
application
granted
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(6) If the application is granted, the notice
of objection is deemed to have been filed on
the day the decision of the Minister is mailed
to the person.
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| When order to
be made
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(7) No application may be granted under
this section unless
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| Extension of
time by Tax
Court of
Canada
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97.51 (1) A person who has made an
application under section 97.5 may apply to
the Tax Court of Canada to have the
application granted after either
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If paragraph (a) applies, the application under
this subsection must be made within thirty
days after the application is refused.
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| How
application
made
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(2) The application must be made by filing
in the Registry of the Tax Court of Canada, in
accordance with the provisions of the Tax
Court of Canada Act, three copies of the
documents filed under subsection 97.5(3).
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| Copy to the
Commission- er
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(3) After receiving the application, the Tax
Court of Canada must send a copy of it to the
office of the Commissioner.
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| Powers of
Court
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(4) The Tax Court of Canada may dispose of
the application by dismissing or granting it. If
the Court grants the application, it may
impose any terms that it considers just or order
that the notice of objection be deemed to be a
valid objection as of the date of the order.
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| When
application to
be granted
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(5) No application may be granted under
this section unless
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| Extension of
time to appeal
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97.52 (1) If no appeal to the Tax Court of
Canada has been taken under section 97.53
within the time set out in that section, a person
may make an application to the Court for an
order extending the time within which an
appeal may be made, and the Court may make
an order extending the time for appealing and
may impose any terms that it considers just.
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| Contents of
application
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(2) The application must set out the reasons
why the appeal was not taken on time.
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| How
application
made
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(3) The application must be made by filing
in the Registry of the Tax Court of Canada, in
accordance with the Tax Court of Canada Act,
three copies of the application together with
three copies of the notice of appeal.
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| Copy to
Deputy
Attorney
General of
Canada
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(4) After receiving the application, the Tax
Court of Canada must send a copy of the
application to the office of the Deputy
Attorney General of Canada.
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| When order to
be made
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(5) No order may be made under this section
unless
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| Appeal
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97.53 A person who has filed a notice of
objection to an assessment under this Part may
appeal to the Tax Court of Canada to have the
assessment vacated or a reassessment made
after either
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If paragraph (a) applies, an application to
appeal under this section must be made within
ninety days after the day notice is sent to the
person under subsection 97.48(10).
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| Limitation on
appeals to the
Tax Court of
Canada
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97.54 (1) Despite section 97.49 and 97.53,
a person may appeal to the Tax Court of
Canada only with respect to
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If paragraph (a) applies, the person may
appeal only with respect to the relief sought in
respect of the issue specified by the person in
the notice.
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| No right of
appeal
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(2) Despite sections 97.49 and 97.53, a
person may not appeal to the Tax Court of
Canada to have an assessment vacated or
varied in respect of an issue for which the right
of objection or appeal has been waived in
writing by the person.
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| Institution of
appeal
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97.55 An appeal to the Tax Court of Canada
under this Part, other than one referred to in
section 18.3001 of the Tax Court of Canada
Act, must be taken in the manner set out in that
Act or in any rules made under that Act.
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| Notice to
Commission- er
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97.56 (1) If an appeal referred to in section
18.3001 of the Tax Court of Canada Act is
made to the Tax Court of Canada, the Court
must immediately send a copy of the notice of
appeal to the office of the Commissioner.
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| Notice, etc.,
forwarded to
Tax Court of
Canada
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(2) Immediately after receiving notice of an
appeal, the Commissioner must forward to the
Tax Court of Canada and the appellant copies
of all applications, notices of assessment,
notices of objection and notifications, if any,
that are relevant to the appeal. Once
forwarded, the copies form part of the record
before the Tax Court of Canada and are
evidence of the existence of the documents
and of the making of the statements contained
in them.
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| Disposition of
appeal
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97.57 The Tax Court of Canada may
dispose of an appeal from an assessment by
dismissing or allowing it. If the appeal is
allowed, the Court may vacate the assessment
or refer it back to the Minister for
reconsideration and reassessment.
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| References to
Tax Court of
Canada
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97.58 (1) If the Minister and another person
agree in writing that a question arising under
this Part, in respect of any assessment or
proposed assessment, should be determined
by the Tax Court of Canada, that question shall
be determined by that Court.
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| Time during
consideration
not to count
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(2) The time between the day proceedings
are taken in the Tax Court of Canada to have
a question determined and the day the
question is finally determined must not be
counted in the calculation of
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(2) Sections 97.21 to 97.58 of the Act, as
enacted by subsection (1), apply to amounts
that are payable after this Act is assented to,
regardless of when the amounts became
payable.
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59. (1) Paragraph 99(1)(a) of the French
version of the Act is replaced by the
following:
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(2) Paragraph 99(1)(b) of the Act is
replaced by the following:
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(3) Paragraph 99(1)(c) of the French
version of the Act is replaced by the
following:
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(4) Subsection 99(1) of the Act is amended
by adding the following after paragraph
(c):
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| 1988, c. 65,
s. 79
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(5) Paragraphs 99(1)(d) to (f) of the
French version of the Act are replaced by
the following:
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(6) Subsections 99(2) and (3) of the Act
are replaced by the following:
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| Exception for
mail
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(2) An officer may not open or cause to be
opened any mail that is being imported or
exported and that weighs thirty grams or less
unless the person to whom it is addressed
consents or the person who sent it has
completed and attached to the mail a label in
accordance with article RE 601 of the Letter
Post Regulations of the Universal Postal.
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| Exception for
mail
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(3) An officer may cause imported mail, or
mail that is being exported, that weighs thirty
grams or less to be opened in his or her
presence by the person to whom it is
addressed, the person who sent it or a person
authorized by either of those persons.
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60. The Act is amended by adding the
following after section 99:
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| Power to stop
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99.1 (1) If an officer has reasonable grounds
to suspect that a person has entered Canada
without presenting himself or herself in
accordance with subsection 11(1), the officer
may stop that person within a reasonable time
after the person has entered Canada.
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| Powers of
officer
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(2) An officer who stops a person referred to
in subsection (1) may
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| Search of
persons
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99.2 (1) An officer may search any person
leaving a customs controlled area, other than
a prescribed person or a member of a
prescribed class of persons who may be
searched under subsection (2), if the officer
suspects on reasonable grounds that the person
has secreted on or about their person anything
in respect of which this Act or the regulations
have been or might be contravened, anything
that would afford evidence with respect to a
contravention of this Act or the regulations or
any goods the importation or exportation of
which is prohibited, controlled or regulated
under this or any other Act of Parliament.
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| Search of
prescribed
persons
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(2) An officer may, in accordance with the
regulations, search any prescribed person or
member of a prescribed class of persons
leaving a customs controlled area.
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| Person taken
before senior
officer
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(3) An officer who is about to search a
person under this section shall, on the request
of the person, immediately take that person
before the senior officer at the place where the
search is to be conducted.
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| Review by
senior officer
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(4) A senior officer before whom a person
is taken by an officer shall, if the senior officer
agrees with the officer that under subsection
(1) or (2), as the case may be, the person may
be searched, direct that the person be searched
or, if the senior officer does not so agree,
discharge the person.
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| Limitations on
searches
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(5) No person may be searched by an officer
who is not of the same sex and, if there is no
officer of the same sex at the place at which the
search is to be conducted, an officer may
authorize any suitable person of the same sex
to conduct the search.
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| Non-intrusive
examination
of goods
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99.3 (1) An officer may, in accordance with
the regulations and without individualized
suspicion, conduct a non-intrusive
examination of goods in the custody or
possession of a person leaving a customs
controlled area.
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| Other
examination
of goods
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(2) An officer may examine any goods in
the custody or possession of a person leaving
a customs controlled area and open or cause to
be opened any baggage, package or container
and take samples of the goods in reasonable
amounts, if the officer suspects on reasonable
grounds that this Act or any other Act of
Parliament administered or enforced by the
officer or any regulations made under it have
been or might be contravened in respect of the
goods.
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| Examination
of abandoned
goods
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(3) An officer may, at any time, open or
cause to be opened, inspect and detain any
baggage, package or container found
abandoned in a customs controlled area.
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| Regulations
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99.4 The Governor in Council may make
regulations
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| 1992, c. 28,
s. 25(1); 1995,
c. 41, ss. 27,
28; 1999,
c. 17, s. 124
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61. Sections 107 and 108 of the Act are
replaced by the following:
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| Definitions
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107. (1) The definitions in this subsection
apply in this section.
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| ``customs
information'' « renseigne- ment douanier »
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``customs information'' means information of
any kind and in any form that
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| ``official'' « fonction- naire »
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``official'' means a person who
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| ``specified
person'' « personne déterminée »
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``specified person'' means a person who is
employed in the service of, who occupies a
position of responsibility in the service of,
or who is engaged by or on behalf of, Her
Majesty in right of Canada to carry out the
provisions of this Act, the Customs Tariff or
the Special Import Measures Act. It
includes a person who was formerly so
employed or engaged or who formerly
occupied such a position.
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| Prohibition -
provision or
use of
customs
information
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(2) Except as authorized under this section,
no person shall
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| Authorized
use of
customs
information
by official
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(3) An official may use customs
information for the purposes of administering
or enforcing this Act, the Customs Tariff, the
Special Imports Measures Act or Part 2 of the
Proceeds of Crime (Money Laundering) Act or
for any purpose set out in subsection (4), (5) or
(7).
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| Authorized
provision of
information
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(4) An official may provide, allow to be
provided or provide access to customs
information if the information
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| Provision of
information to
certain
persons
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(5) An official may provide, allow to be
provided or provide access to customs
information to the following persons:
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| Provision of
customs
information
by Minister
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(6) The Minister may provide, allow to be
provided or provide access to customs
information to any person if
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| Notification
of Privacy
Commission- er
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(7) If customs information provided under
subsection (6) is personal information within
the meaning of section 3 of the Privacy Act,
the Minister must notify, in writing, the
Privacy Commissioner appointed under
section 53 of that Act of any provision of
personal information under that subsection
before its provision if reasonably practicable
or, in any other case, without delay after the
provision. The Privacy Commissioner may, if
the Privacy Commissioner considers it
appropriate, notify the individual to whom the
information relates of the provision of the
information.
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| Providing
customs
information to
other
governments
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(8) Customs information may be provided
by any person to an official or any other person
employed by or representing the government
of a foreign state, an international
organization established by the governments
of states, a community of states, or an
institution of any such government or
organization, in accordance with an
international convention, agreement or other
written arrangement between the Government
of Canada or an institution of the Government
of Canada and the government of the foreign
state, the organization, the community or the
institution, solely for the purposes set out in
that arrangement.
|
|
| Disclosure of
customs
information to
certain
persons
|
(9) An official may provide, allow to be
provided or provide access to customs
information relating to a particular person
|
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|
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|
|
|
|
|
|
|
|
|
| Evidence
|
(10) Despite any other Act of Parliament or
other law, no official may be required, in
connection with any legal proceedings, to give
or produce evidence relating to any customs
information.
|
|
| Measures to
protect
customs
information
|
(11) The person presiding at a legal
proceeding relating to the supervision,
evaluation or discipline of a specified person
may order any measure that is necessary to
ensure that customs information is not used or
provided to any person for any purpose not
relating to that proceeding, including
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|
|
| Appeal from
order to
disclose
customs
information
|
(12) An order or direction that is made in the
course of or in connection with any legal
proceeding and that requires an official to give
or produce evidence relating to customs
information may, by notice served on all
interested parties, be immediately appealed
by the Minister or by the person against whom
the order or direction is made
|
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|
|
|
|
|
|
|
|
| Disposition of
appeal
|
(13) The court to which the appeal is taken
may allow the appeal and quash the order or
direction appealed from or may dismiss the
appeal. The rules of practice and procedure
from time to time governing appeals to the
courts apply, with any modifications that the
circumstances require, in respect of the
appeal.
|
|
| Stay
|
(14) An appeal stays the operation of the
order or direction appealed from until
judgment in the appeal is pronounced.
|
|
| Regulations
|
(15) The Governor in Council may make
regulations prescribing the circumstances in
which fees may be charged for providing or
providing access to customs information or
making or certifying copies of information
and the amount of any such fees.
|
|
| Passenger
information
|
107.1 (1) The Minister may, under
prescribed circumstances and conditions,
require any prescribed person or prescribed
class of persons to provide, or provide access
to, prescribed information about any person
on board a conveyance in advance of the
arrival of the conveyance in Canada or within
a reasonable time after that arrival.
|
|
| Disclosure
|
(2) Any person who is required under
subsection (1) to provide, or provide access to,
prescribed information shall do so despite any
restriction under the Aeronautics Act on the
disclosure of such information.
|
|
| 1995, c. 41,
s. 29; 1997,
c. 36, ss. 182,
183
|
62. Sections 109.1 and 109.11 of the Act
are replaced by the following:
|
|
| Designated
provisions
|
109.1 (1) Every person who fails to comply
with any provision of an Act or a regulation
designated by the regulations made under
subsection (3) is liable to a penalty of not more
than twenty-five thousand dollars, as the
Minister may direct.
|
|
| Failure to
comply
|
(2) Every person who fails to comply with
any term or condition of a licence issued under
this Act or the Customs Tariff or any obligation
undertaken under section 4.1 is liable to a
penalty of not more than twenty-five thousand
dollars, as the Minister may direct.
|
|
| Designation
by regulation
|
(3) The Governor in Council may make
regulations
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|
|
|
|
|
|
| 1993, c. 25,
s. 80; 1995,
c. 41, s. 30
|
63. Section 109.3 of the Act is replaced by
the following:
|
|
| Assessment
|
109.3 (1) A penalty to which a person is
liable under section 109.1 or 109.2 may be
assessed by an officer and, if an assessment is
made, an officer shall serve on the person a
written notice of that assessment by sending it
by registered or certified mail or delivering it
to the person.
|
|
| Limitation on
assessment
|
(2) A person shall not be assessed penalties
under both sections 109.1 and 109.2 in respect
of the same contravention of this Act, the
Customs Tariff or the Special Import Measures
Act or the regulations made under those Acts.
|
|
| Penalty in
addition to
other sanction
|
(3) An assessment under subsection (1) may
be made in addition to a seizure under this Act
or a demand for payment under section 124, in
respect of the same contravention of this Act
or the regulations.
|
|
| Sufficiency of
short-form
description
|
(4) The use on a notice of assessment of a
short-form description established under
paragraph 109.1(3)(b) or of a description that
deviates from that description without
affecting its substance is sufficient for all
purposes to describe the contravention.
|
|
| 1993, c. 25,
s. 80
|
64. Section 109.5 of the Act is replaced by
the following:
|
|
| Interest on
penalties
|
109.5 (1) Subject to subsection (2), a person
on whom a notice of assessment of a penalty
has been served under section 109.3 shall pay,
in addition to the penalty, interest at the
prescribed rate for the period beginning on the
day after the notice was served on the person
and ending on the day the penalty has been
paid in full, calculated on the outstanding
balance of the penalty.
|
|
| Exception
|
(2) Interest is not payable if the penalty is
paid in full by the person within thirty days
after the date of the notice of assessment.
|
|
|
|
65. Section 115 of the Act is replaced by
the following:
|
|
| Copies of
records
|
115. (1) If any record is examined or seized
under this Act, the Minister, or the officer by
whom it is examined or seized, may make or
cause to be made one or more copies of it, and
a copy purporting to be certified by the
Minister or a person authorized by the
Minister is admissible in evidence and has the
same probative force as the original would
have if it had been proved in the ordinary way.
|
|
| Detention of
records seized
|
(2) No record that has been seized as
evidence under this Act shall be detained for
a period of more than three months unless,
before the expiration of that period,
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|
|
|
|
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|
|
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|
|
|
|
|
66. Section 123 of the Act is replaced by
the following:
|
|
| Review of
forfeiture
|
123. The forfeiture of goods or
conveyances seized under this Act or any
money or security held as forfeit in lieu of such
goods or conveyances is final and 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 sections 127.1 and 129.
|
|
|
|
67. (1) Section 124 of the Act is amended
by adding the following after subsection (4):
|
|
| Value of
exported
goods
|
(4.1) Sections 117 and 119 and subsection
(2) apply to a contravention of this Act or the
regulations in respect of goods that have been
or are about to be exported, except that the
references to ``value for duty of the goods'' in
those provisions are to be read as references to
``value of the goods''.
|
|
| Value of
goods
|
(4.2) For the purposes of subsection (4.1),
the expression ``value of the goods'' means
the total of all payments made or to be made
by the purchaser of the goods to or for the
benefit of the vendor.
|
|
| Value of
goods set by
Minister
|
(4.3) If the value of the goods cannot be
determined under subsection (4.2), the
Minister may determine that value.
|
|
|
|
(2) Section 124 of the Act is amended by
adding the following after subsection (5):
|
|
| Interest
|
(6) A person on whom a notice of
ascertained forfeiture has been served shall
pay, in addition to the amount set out in the
notice, interest at the prescribed rate for the
period beginning on the day after the notice
was served and ending on the day the amount
is paid in full, calculated on the outstanding
balance. However, interest is not payable if
the amount is paid in full within thirty days
after the date of the notice.
|
|
| 1993, c. 25,
s. 81
|
68. Section 127 of the Act is replaced by
the following:
|
|
| Review of
ascertained
forfeiture or
penalty
assessment
|
127. The debt due to Her Majesty as a result
of a notice served under section 109.3 or a
demand under section 124 is final and 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 sections 127.1 and 129.
|
|
| Corrective
measures
|
127.1 (1) The Minister, or any officer
designated by the Minister for the purposes of
this section, may cancel a seizure made under
section 110, cancel or reduce a penalty
assessed under section 109.3 or an amount
demanded under section 124 or refund an
amount received under any of sections 117 to
119 within thirty days after the seizure,
assessment or demand, if
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|
|
|
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|
|
|
| Interest
|
(2) If an amount is returned to a person
under paragraph (1)(a), the person shall be
given interest on that amount at the prescribed
rate for the period beginning on the day after
the amount was originally paid by that person
and ending on the day it was returned.
|
|
| 1993, c. 25,
s. 82
|
69. Subsection 129(1) of the Act is
replaced by the following:
|
|
| Request for
Minister's
decision
|
129. (1) The following persons may, within
ninety days after the date of a seizure or the
service of a notice, request a decision of the
Minister under section 131 by giving notice in
writing, or by any other means satisfactory to
the Minister, to the officer who seized the
goods or conveyance or served the notice or
caused it to be served, or to an officer at the
customs office closest to the place where the
seizure took place or closest to the place from
where the notice was served:
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|
|
70. The Act is amended by adding the
following after section 129:
|
|
| Extension of
time by
Minister
|
129.1 (1) If no request for a decision of the
Minister is made under section 129 within the
time provided in that section, a person may
apply in writing to the Minister for an
extension of the time for making the request
and the Minister may grant the application.
|
|
| Reasons
|
(2) An application must set out the reasons
why the request was not made on time.
|
|
| 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.
|
|
| Notice of
decision
|
(4) The Minister must, without delay after
making a decision in respect of an application,
notify the applicant in writing of the decision.
|
|
| Conditions for
granting
application
|
(5) The application may not be granted
unless
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|
|
| 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
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|
If paragraph (a) applies, the application under
this subsection must be made within ninety
days after the application is dismissed.
|
|
| 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.
|
|
| 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.
|
|
| Conditions for
granting
application
|
(4) The application may not be granted
unless
|
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|
|
71. Subsection 130(3) of the Act is
replaced by the following:
|
|
| 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.
|
|
| 1993, c. 25,
s. 84
|
72. (1) Subsection 131(1) of the Act is
amended by adding the word ``or'' at the
end of paragraph (b) and by replacing
paragraphs (c) and (d) with the following:
|
|
|
|
|
|
|
|
(2) Section 131 of the Act is amended by
adding the following after subsection (1):
|
|
| 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.
|
|
| 1993, c. 25,
s. 85
|
73. Paragraph 132(1)(b) of the Act is
replaced by the following:
|
|
|
|
|
|
| 1993, c. 25,
s. 86(2)
|
74. (1) Subsection 133(1.1) of the Act is
replaced by the following:
|
|
| 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,
|
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|
|
|
|
|
|
|
|
|
|
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.
|
|
| 1993, c. 25,
s. 86(3)
|
(2) Subsection 133(7) of the Act is
replaced by the following:
|
|
| 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.
|
|
| 1992, c. 1,
s. 62, c. 51,
s. 45; 1998,
c. 30,
par. 14(e);
1999, c. 3,
s. 60, c. 17,
par. 127(l)
|
75. Sections 138 and 139 of the Act are
replaced by the following:
|
|
| 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.
|
|
| Application
procedure
|
(2) A person may apply for a decision by
giving notice in writing to the officer who
seized or detained the goods or conveyance or
to an officer at the customs office closest to the
place where the seizure or detention took
place.
|
|
| 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.
|
|
| 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.
|
|
| 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.
|
|
| 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.
|
|
| Conditions for
late
applications
|
(7) When making an application under
subsection (6), the person must demonstrate to
the Minister that
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|
|
|
|
| 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:
|
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|
|
|
|
|
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|
|
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|
|
| 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
|
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|
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|
|
|
| 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.
|
|
| 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.
|
|
| Service by
registered
mail
|
(5) Service of the notice is sufficient if it is
sent by registered mail addressed to the
Minister.
|
|
| 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
|
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|
|
|
|
|
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|
|
|
|
|
|
|
|
76. Subsection 140(1) of the Act is
replaced by the following:
|
|
| Appeal
|
140. (1) A person who makes an application
under section 139.1 or the Crown may appeal
to the court of appeal from an order made
under that section and the appeal shall be
asserted, heard and decided according to the
ordinary procedure governing appeals to the
court of appeal from orders or judgments of a
court.
|
|
| 1999, c. 17,
par. 127(m)
|
77. Section 141 of the Act is replaced by
the following:
|
|
| Goods or
conveyance
given to
applicant
|
141. (1) The Commissioner, on application
by a person whose interest in a conveyance
detained under subsection 97.25(2) or in
goods or a conveyance seized as forfeit under
this Act has been determined under section
139 or ordered under section 139.1 or 140 to
be unaffected by the seizure or detention, shall
direct that
|
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|
|
|
|
|
|
|
|
| Amount paid
if goods or
conveyance
sold
|
(1.1) If goods or a conveyance that is to be
given to the applicant has been sold or
disposed of, an amount calculated on the basis
of the interest of the applicant in the goods or
conveyance at the time of the contravention or
use, as determined under section 139 or
ordered under section 139.1 or 140, shall be
paid to the applicant.
|
|
| Limit on
amount paid
|
(2) The total amount paid under subsection
(1.1) in respect of goods or a conveyance shall,
if the goods or conveyance was sold or
otherwise disposed of under this Act, not
exceed the proceeds of the sale or disposition,
if any, less any costs incurred by Her Majesty
in respect of the goods or conveyance, and, if
there are no proceeds of disposition, no
payment shall be made pursuant to subsection
(1.1).
|
|
| 1990, c. 8,
s. 50; 1992,
c. 28, s. 28;
1993, c. 25,
s. 87; 2000,
c. 30,
s. 161(1)
|
78. The heading before section 143 and
sections 143 to 147 of the Act are repealed.
|
|
|
|
79. The Act is amended by adding the
following after section 148:
|
|
| Members of
partnerships
|
148.1 (1) For the purposes of this Act,
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