An Act to amend the Customs Act and to make related amendments to other Acts

Link to law: http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2001_25/FullText.html

An Act to amend the Customs Act and to make related amendments to other Acts

S.C. 2001, c. 25

Assented to 2001-10-25

An Act to amend the Customs Act and to make related amendments to other Acts

SUMMARY

This enactment amends the Customs Act to modernize the customs administration by

(a) providing for the expedited movement of persons and goods into Canada;

(b) providing for streamlined clearance procedures for low risk passengers by pre-arrival risk assessment of passenger information;

(c) providing for new requirements in respect of the provision of information obtained under that Act;

(d) providing for monetary penalties in respect of designated contraventions;

(e) extending the time for requesting reviews and appeals beyond current time limits;

(f) harmonizing provisions for the collection of amounts owing under that Act with those of the Income Tax Act and the Excise Tax Act;

(g) making technical and housekeeping amendments; and

(h) making related amendments to other Acts.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. 1 (2nd Supp.) CUSTOMS ACT

Marginal note:1997, c. 36, s. 147(1)

1. (1) The definitions “person”, “prescribed” and “release” in subsection 2(1) of the Customs Act are replaced by the following:

“person”

« personne »

“person” means an individual, a partnership, a corporation, a trust, the estate of a deceased individual or a body that is a society, a union, a club, an association, a commission or other organization of any kind;

“prescribed”

« régle­mentaire »

“prescribed” means

(a) in respect of a form or the manner of filing a form, authorized by the Minister,

(b) in respect of the information to be provided on or with a form, specified by the Minister, and

(c) in any other case, prescribed by regulation or determined in accordance with rules prescribed by regulation;

“release”

« dédouane­ment »

“release” means

(a) in respect of goods, to authorize the removal of the goods from a customs office, sufferance warehouse, bonded warehouse or duty free shop for use in Canada, and

(b) in respect of goods to which paragraph 32(2)(b) applies, to receive the goods at the place of business of the importer, owner or consignee;

(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

“Agency”

« Agence »

“Agency” means the Canada Customs and Revenue Agency;

“data”

« données »

“data” means representations, in any form, of information or concepts;

“record”

« document »

“record” means any material on which data are recorded or marked and which is capable of being read or understood by a person or a computer system or other device;

(3) Section 2 of the Act is amended by adding the following after subsection (1.2):

Marginal note:Electronic records

(1.3) Every person required by this Act to keep records who does so electronically shall retain them in an electronically readable format for the prescribed retention period.

Marginal note:1999, c. 17, s. 123(3)

(4) Subsection 2(3) of the French version of the Act is replaced by the following:

Marginal note:Attributions du commissaire

(3) Les attributions conférées au commissaire par la présente loi peuvent être exercées par toute personne qu’il autorise à agir ainsi ou par tout agent appartenant à une catégorie d’agents qu’il autorise à agir ainsi. Les attributions ainsi exercées sont réputées l’avoir été par le commissaire.

Marginal note:1992, c. 28, s. 2(1)

2. Section 3.1 of the Act is replaced by the following:

Marginal note:Interest to be compounded

3.1 Interest shall be computed at a prescribed rate or at a specified rate and compounded daily and, if interest is computed in respect of an amount under a provision of this Act and is unpaid on the day it would, but for this section, have ceased to be computed under that provision, interest at the specified rate shall be computed and compounded daily on that unpaid interest from that day to the day it is paid and shall be paid as that provision required the amount to be paid.

Marginal note:1995, c. 41, s. 2

3. Subsection 3.3(1) of the Act is replaced by the following:

Marginal note:Waiver of penalty or interest

3.3 (1) The Minister or any officer designated by the Minister for the purposes of this section may at any time waive or cancel all or any portion of any penalty or interest otherwise payable by a person under this Act.

Marginal note:Exception

(1.1) Subsection (1) does not apply if measures may be taken under section 127.1, a request under section 129 is made or the time for making a request set out in that section has not expired.

4. The Act is amended by adding the following after section 3.4:

Payment of Large Amounts

Marginal note:Where excess amount to be paid

3.5 Except in the circumstances that the Minister may specify, every person who makes a payment of any amount under this Act shall, if the amount exceeds the amount specified by the Minister, make the payment to the account of the Receiver General in the prescribed manner and within the prescribed time at

(a) a bank;

(b) a credit union;

(c) a corporation authorized by an Act of Parliament or of the legislature of a province to carry on the business of offering its services as a trustee to the public; or

(d) a corporation authorized by an Act of Parliament or of the legislature of a province to accept deposits from the public and that carries on the business of lending money on the security of real property or immovables or of investing in mortgages or hypothecary claims on immovables.

5. The Act is amended by adding the following after section 4:

Marginal note:Undertakings

4.1 In the case of goods to which paragraph 32(2)(b) applies, the Minister may accept from an importer or transporter an undertaking to assume obligations in relation to compliance with this Act and the regulations.

6. The Act is amended by adding the following after section 7:

Provision of Information

Marginal note:Obligation to provide accurate information

7.1 Any information provided to an officer in the administration or enforcement of this Act, the Customs Tariff or the Special Import Measures Act or under any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods, shall be true, accurate and complete.

7. Section 8 of the Act is replaced by the following:

Marginal note:Declaration

8. The Minister may include on any form a declaration, to be signed by the person completing the form, declaring that the information given by that person on the form is true, accurate and complete.

Marginal note:1997, c. 36, s. 148

8. (1) Subsection 8.1(7) of the French version of the Act is replaced by the following:

Marginal note:Imprimés en preuve

(7) Pour l’application de la présente loi et du Tarif des douanes, un document présenté par le ministre, paraissant être l’imprimé d’un formulaire reçu en application du present article, est admissible en preuve et établit, sauf preuve contraire, la production ou la fourniture du formulaire en application du présent article.

Marginal note:1997, c. 36, s. 148

(2) The portion of subsection 8.1(8) of the Act before paragraph (a) is replaced by the following:

Marginal note:Regulations

(8) The Governor in Council may, on the recommendation of the Minister, make regulations in respect of electronic systems or any other technology to be used in the administration of this Act or the Customs Tariff, including regulations respecting

9. Subsection 9(3) of the Act is replaced by the following:

Marginal note:Records

(3) If an officer so requests, a customs broker shall make available to the officer, within the time specified by the officer, any records that the customs broker is required by the regulations to keep.

10. (1) Subsections 11(1) and (2) of the Act are replaced by the following:

Marginal note:Presentation of persons on arrival in Canada

11. (1) Subject to this section, every person arriving in Canada shall, except in such circumstances and subject to such conditions as may be prescribed, enter Canada only at a customs office designated for that purpose that is open for business and without delay present himself or herself to an officer and answer truthfully any questions asked by the officer in the performance of his or her duties under this or any other Act of Parliament.

Marginal note:Exception

(2) Subsection (1) does not apply to any person who has presented himself or herself outside Canada at a customs office designated for that purpose and has not subsequently stopped at any other place prior to his or her arrival in Canada unless an officer requires that person to present himself or herself to the officer.

(2) Section 11 of the Act is amended by adding the following after subsection (5):

Marginal note:Exception — alternative manner

(6) Subsection (1) does not apply to a person who

(a) holds an authorization issued by the Minister under subsection 11.1(1) to present himself or herself in a prescribed alternative manner and who has presented himself or herself in the manner authorized for that person; or

(b) is a member of a prescribed class of persons authorized by regulations made under subsection 11.1(3) to present himself or herself in a prescribed alternative manner and who has presented himself or herself in the manner authorized for that class.

Marginal note:Powers of officer

(7) Notwithstanding that a person holds an authorization under subsection 11.1(1) or is authorized under the regulations made under subsection 11.1(3), an officer may require a person to present himself or herself in accordance with subsection (1).

11. The Act is amended by adding the following after section 11:

Marginal note:Minister may authorize

11.1 (1) Subject to the regulations, the Minister may issue to any person an authorization to present himself or herself in an alternative manner.

Marginal note:Amendment, etc., of authorization

(2) The Minister may, subject to the regulations, amend, suspend, renew, cancel or reinstate an authorization.

Marginal note:Regulations

(3) The Governor in Council may make regulations

(a) prescribing classes of persons who may be authorized to present themselves in alternative manners;

(b) respecting alternative manners of presentation;

(c) respecting the requirements and conditions that are to be met before authorizations may be issued;

(d) respecting the terms and conditions of authorizations;

(e) respecting the amendment, suspension, renewal, cancellation or reinstatement of authorizations; and

(f) respecting fees or the manner of determining fees to be paid for authorizations.

Marginal note:Designation of customs controlled areas

11.2 (1) The Minister may designate an area as a customs controlled area for the purposes of this section and sections 11.3 to 11.5 and 99.2 and 99.3.

Marginal note:Amendment, etc. of designation

(2) The Minister may amend, cancel or reinstate at any time a designation made under this section.

Marginal note:Entry prohibited

11.3 No owner or operator of a facility where a customs controlled area is located shall grant or allow to be granted access to the customs controlled area to any person unless the person

(a) has been authorized by the Minister in accordance with regulations made under section 11.5; or

(b) is a prescribed person or a member of a prescribed class of persons.

Marginal note:Presentation and reporting

11.4 (1) Subject to subsection (2), every person leaving a customs controlled area, other than for the purpose of boarding a flight with a destination outside Canada, shall

(a) present himself or herself in the prescribed manner to an officer and identify himself or herself;

(b) report in the prescribed manner and make available to the officer any goods that he or she has acquired through any means while in the customs controlled area; and

(c) answer truthfully any questions asked by an officer in the performance of his or her duties under this or any other Act of Parliament.

Marginal note:Non-application of subsection (1)

(2) Subsection (1) does not apply to

(a) persons who are required to present themselves under section 11 or report goods under section 12; or

(b) prescribed persons or members of prescribed classes of persons in prescribed circumstances.

Marginal note:Regulations

11.5 The Governor in Council may make regulations

(a) respecting the authorization of persons under paragraph 11.3(a);

(b) prescribing persons or classes of persons who may be granted access under paragraph 11.3(b);

(c) respecting the circumstances in which an authorization under paragraph 11.3(a) may be amended, suspended, renewed, cancelled or reinstated;

(d) respecting the manner in which a person must present himself or herself under paragraph 11.4(1)(a) and report goods under paragraph 11.4(1)(b); and

(e) prescribing for the purposes of paragraph 11.4(2)(b) persons or classes of persons who are exempt from the requirements imposed by subsection 11.4(1) and the circumstances in which they are exempted.

12. Paragraph 12(3)(a) of the Act is replaced by the following:

(a) in the case of goods in the actual possession of a person arriving in Canada, or that form part of the person’s baggage where the person and the person’s baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance;

13. Section 13 of the Act is replaced by the following:

Marginal note:Obligation to answer questions and present goods

13. Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall

(a) answer truthfully any question asked by an officer with respect to the goods; and

(b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine.

14. Subsection 17(2) of the Act is replaced by the following:

Marginal note:Rates of duties

(2) Subject to this Act, the rates of duties on imported goods shall be the rates applicable to the goods at the time they are accounted for under subsection 32(1), (2) or (5) or, where goods have been released in the circumstances set out in paragraph 32(2)(b), at the time of release.

15. The portion of subsection 18(2) of the Act before paragraph (a) is replaced by the following:

Marginal note:Liability of person reporting goods short landed

(2) Subject to subsections (3) and 20(2.1), any person who reports goods under section 12, and any person for whom that person acts as agent or employee while so reporting, are jointly and severally or solidarily liable for all duties levied on the goods unless one or the other of them proves, within the time that may be prescribed, that the duties have been paid or that the goods

16. (1) The portion of subsection 19(1) of the Act before paragraph (a) is replaced by the following:

Marginal note:Disposition of goods before release

19. (1) Subject to section 20, any person who is authorized by an officer or by any prescribed means to do so may

(2) Section 19 of the Act is amended by adding the following after subsection (1):

Marginal note:Authorization to deliver goods

(1.1) In prescribed circumstances and under prescribed conditions, a person may be authorized by an officer or by any prescribed means to deliver goods or cause them to be delivered to the place of business of the importer, owner or consignee.

Marginal note:1995, c. 41, s. 3(2)

(3) The portion of subsection 19(2) of the Act before paragraph (a) is replaced by the following:

Marginal note:Movement and storage of goods

(2) Subject to section 20, where goods that have been reported under section 12 have been described in the prescribed form at a customs office designated for that purpose, any person who is authorized by an officer or by any prescribed means to do so may

17. (1) The portion of subsection 20(2) of the Act before paragraph (a) is replaced by the following:

Marginal note:Liability of transporter

(2) Subject to subsection (2.1), every person who transports or causes to be transported within Canada goods, other than goods to which paragraph 32(2)(b) applies, that have been imported but have not been released is liable for all duties on the goods unless the person proves, within the time that may be prescribed, that the goods were

(2) Section 20 of the Act is amended by adding the following after subsection (2):

Marginal note:Exception

(2.1) If a person transports within Canada goods to which paragraph 32(2)(b) applies, which the person is required to report under section 12 but which have not been released, the person is liable for all duties on the goods unless the person proves, within the time that may be prescribed, that the goods were

(a) destroyed while being transported;

(b) received in a customs office, bonded warehouse or duty free shop;

(c) if the goods are designated as ships’ stores by regulations made under paragraph 99(g) of the Customs Tariff, received on board a conveyance of a class prescribed under that paragraph for use on the conveyance in accordance with regulations made under that paragraph;

(d) exported; or

(e) received at the place of business of the importer, owner or consignee.

Marginal note:1995, c. 41, s. 5

18. Subsection 22(1) of the Act is replaced by the following:

Marginal note:Records

22. (1) Subject to subsection (2), the following persons shall keep the prescribed records at their place of business in Canada or at any other place that the Minister may designate, for the prescribed period and in the prescribed manner, and shall on the request of an officer make them available to the officer, within the time specified by the officer, and answer truthfully any questions asked by the officer about those records:

(a) a person who transports or causes to be transported goods into Canada; or

(b) a person who transports or causes to be transported within Canada goods that have been imported but have not been released.

Marginal note:1995, c. 39, s. 168

19. (1) The portion of subsection 28(1) of the Act before paragraph (a) is replaced by the following:

Marginal note:Liability of operator

28. (1) Subject to subsection (1.2), the operator of a sufferance warehouse, bonded warehouse or duty free shop is liable for all duties or taxes levied under the Customs Tariff, the Excise Tax Act, the Excise Act, the Special Import Measures Act or any other law relating to customs on goods that have been received in that warehouse or shop unless the operator proves that the goods

Marginal note:1993, c. 25, s. 72(1)

(2) Subsection 28(1.1) of the Act is replaced by the following:

Marginal note:Exception — certain goods

(1.1) This section does not apply to goods to which paragraph 32(2)(b) applies.

Marginal note:1993, c. 25, s. 72(2)

(3) Subsection 28(3) of the Act is replaced by the following:

Definition “duties” does not apply

(3) The definition “duties” in subsection 2(1) does not apply for the purposes of subsections (1) and (2).

20. Section 31 of the Act is replaced by the following:

Marginal note:Release

31. Subject to section 19, no goods shall be removed from a customs office, sufferance warehouse, bonded warehouse or duty free shop by any person other than an officer in the performance of his or her duties under this or any other Act of Parliament unless the goods have been released by an officer or by any prescribed means.

21. Subsections 32(2) and (3) of the Act are replaced by the following:

Marginal note:Release prior to accounting

(2) In prescribed circumstances and under prescribed conditions, goods may be released prior to the accounting required under subsection (1) if

(a) the importer or owner of the goods makes an interim accounting in the prescribed manner and form and containing the prescribed information, or in the form and containing the information that is satisfactory to the Minister; or

(b) the goods have been authorized by an officer or by any prescribed means for delivery to, and have been received at, the place of business of the importer, owner or consignee of the goods.

Marginal note:Accounting after release

(3) If goods are released under subsection (2), they shall be accounted for within the prescribed time and in the manner described in paragraph (1)(a) by, in the case of goods to which paragraph (2)(a) applies, the person who made the interim accounting under that paragraph in respect of the goods and, in the case of goods to which paragraph (2)(b) applies, by the importer or owner of the goods.

Marginal note:1997, c. 36, s. 152

22. Subsection 32.2(6) of the Act is replaced by the following:

Marginal note:Diversions

(6) The obligation under this section to make a correction to a declaration of tariff classification includes an obligation to correct a declaration of tariff classification that is rendered incorrect by a failure, after the goods are accounted for under subsection 32(1), (3) or (5) or, in the case of prescribed goods, after the goods are released without accounting, to comply with a condition imposed under a tariff item in the List of Tariff Provisions set out in the schedule to the Customs Tariff or under any regulations made under that Act in respect of a tariff item in that List.

23. The Act is amended by adding the following after section 32.2:

Marginal note:Diversion of goods used as ships’ stores

32.3 If goods are removed or caused to be removed for use as ships’ stores under paragraph 19(1)(c) or (2)(c), and the goods are subsequently diverted to another use, the person who diverted the goods shall, at the time of the diversion,

(a) report the diversion to an officer at a customs office;

(b) account for the goods in the prescribed manner and in the prescribed form containing the prescribed information; and

(c) pay as duties on the goods an amount equal to the amount of duties that would be payable on like goods imported in like condition at the time of the diversion.

Marginal note:1997, c. 36, s. 153

24. Section 33.1 of the Act is repealed.

Marginal note:1992, c. 28, s. 7(1)

25. Section 33.3 of the Act is repealed.

Marginal note:1992, c. 28, s. 7(1); 1994, c. 47, s. 70; 1995, c. 41, s. 9; 1997, c. 36, s. 154

26. Section 33.4 of the Act is replaced by the following:

Marginal note:Interest

33.4 (1) Subject to subsection (3), any person who is liable to pay an amount of duties in respect of imported goods shall pay, in addition to the amount, interest at the specified rate for the period beginning on the first day after the day the person became liable to pay the amount and ending on the day the amount has been paid in full, calculated on the outstanding balance of the amount.

Marginal note:When duties deemed payable

(2) For the purposes of subsection (1), any duties in respect of goods payable under paragraph 59(3)(a) or 65(1)(a) of this Act or under the Special Import Measures Act are deemed to have become payable on the day duties became payable in respect of the goods under this Part or that Act.

Marginal note:Interest-free period

(3) If an amount of duties in respect of goods that is payable by a person under paragraph 59(3)(a) or 65(1)(a) in accordance with a determination, re-determination or further re-determination made under this Act is paid by the person or if an amount of duties in respect of goods that is payable under the Special Import Measures Act in accordance with a determination or re-determination made under that Act is paid by the importer in Canada within thirty days after the day the determination, re-determination or further re-determination, as the case may be, is made (in this subsection referred to as the “decision day”), interest is not payable under subsection (1) on the amount for the period beginning on the day after the decision day and ending on the day the amount is paid.

Marginal note:1992, c. 28, s. 7(1)

27. Section 33.6 of the Act is repealed.

Marginal note:1992, c. 28, s. 7(1)

28. (1) Paragraph 33.7(2)(b) of the Act is replaced by the following:

(b) if the person accounts for the goods within the extended time, no penalty shall be imposed under section 109.1; and

Marginal note:1992, c. 28, s. 7(1)

(2) Paragraph 33.7(3)(b) of the Act is replaced by the following:

(b) if the person pays that amount within the time as so extended, subsection 33.4(1) shall apply in respect of that amount as if the time had not been so extended, but interest payable under that subsection in respect of that amount shall be computed at the prescribed rate rather than at the specified rate; and

Marginal note:1992, c. 28, s. 7(1)

29. Section 33.8 of the Act is repealed.

Marginal note:1993, c. 44, s. 83

30. (1) Subsection 35.02(1) of the Act is repealed.

Marginal note:1993, c. 44, s. 83

(2) Subsection 35.02(3) of the Act is repealed.

Marginal note:1993, c. 44, s. 83

(3) The portion of subsection 35.02(4) of the Act before paragraph (a) is replaced by the following:

Marginal note:Goods imported from a NAFTA country

(4) If a person imports goods of a prescribed class from a NAFTA country, that person is not liable to a penalty under section 109.1 unless

Marginal note:1993, c. 44, s. 83

(4) Subsection 35.02(5) of the Act is repealed.

Marginal note:1993, c. 44, s. 85; 1995, c. 41, s. 15; 1997, c. 36, s. 159

31. Subsections 40(1) to (3) of the Act are replaced by the following:

Marginal note:Importers’ records

40. (1) Every person who imports goods or causes goods to be imported for sale or for any industrial, occupational, commercial, institutional or other like use or any other use that may be prescribed shall keep at the person’s place of business in Canada or at any other place that may be designated by the Minister any records in respect of those goods in any manner and for any period of time that may be prescribed and shall, where an officer so requests, make them available to the officer, within the time specified by the officer, and answer truthfully any questions asked by the officer in respect of the records.

Marginal note:Minister’s request

(2) If, in the opinion of the Minister, a person has not kept records in accordance with subsection (1), the Minister may request that person to comply with that subsection in respect of the records.

Marginal note:Requirement to keep records

(3) The following persons shall keep at their place of business or at any other place that may be designated by the Minister the prescribed records with respect to the prescribed goods, in the manner and for the period that may be prescribed, and shall, where an officer requests, make them available to the officer, within the time specified by the officer, and answer truthfully any questions asked by the officer in respect of the records:

(a) a person who is granted a licence under section 24;

(b) a person who receives goods authorized for delivery to the person’s place of business in the circumstances set out in paragraph 32(2)(b);

(c) a person who is authorized under paragraph 32(6)(a) or subsection 32(7) to account for goods;

(d) a person who is granted a certificate under section 90 of the Customs Tariff; and

(e) a person who is granted a licence under section 91 of that Act.

32. Section 42 of the Act is replaced by the following:

Definition of “dwelling-house”

42. (1) In this section, “dwelling-house” means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes

(a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passageway; and

(b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence.

Marginal note:Inspections

(2) An officer, or an officer within a class of officers, designated by the Minister for the purposes of this section, may at all reasonable times, for any purpose related to the administration or enforcement of this Act,

(a) inspect, audit or examine any record of a person that relates or may relate to the information that is or should be in the records of the person or to any amount paid or payable under this Act;

(b) examine property in an inventory of a person and any property or process of, or matter relating to, the person, an examination of which may assist the officer in determining the accuracy of the inventory of the person or in ascertaining the information that is or should be in the records of the person or any amount paid or payable by the person under this Act;

(c) subject to subsection (3), enter any premises or place where any business is carried on, any property is kept, anything is done in connection with any business or any records are or should be kept; and

(d) require the owner or manager of the property or business and any other person on the premises or place to give the officer all reasonable assistance and to answer truthfully any question, and, for that purpose, require the owner, manager or other person designated by the owner or manager to attend at the premises or place with the officer.

Marginal note:Prior authorization

(3) If any premises or place referred to in paragraph (2)(c) is a dwelling-house, an officer may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant under subsection (4).

Marginal note:Warrant

(4) On ex parte application by the Minister, a judge may issue a warrant authorizing an officer to enter a dwelling-house subject to the conditions that may be specified in the warrant, if the judge is satisfied by information on oath that

(a) there are reasonable grounds to believe that the dwelling-house is a premises or place referred to in paragraph (2)(c);

(b) entry into the dwelling-house is necessary; and

(c) entry into the dwelling-house has been, or there are reasonable grounds to believe that entry into the dwelling-house will be, refused.

Marginal note:Other access to document

(5) If the judge is not satisfied that entry into that dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act but is satisfied that access to a document or property that is or should be kept in the dwelling-house has been or may be expected to be refused, the judge may

(a) order the occupant of the dwelling-house to provide the officer with reasonable access to any document or property; and

(b) make any other order that is appropriate in the circumstances to carry out the purposes of this Act.

Marginal note:1997, c. 36, s. 160

33. Section 42.01 of the Act is replaced by the following:

Marginal note:Methods of verification

42.01 An officer, or an officer within a class of officers, designated by the Minister for the purposes of this section may conduct a verification of origin (other than a verification of origin referred to in section 42.1), verification of tariff classification or verification of value for duty in respect of imported goods in the manner that is prescribed and may for that purpose at all reasonable times enter any prescribed premises.

Marginal note:1997, c. 36, s. 163

34. (1) Subsection 42.3(2) of the French version of the Act is replaced by the following:

Marginal note:Prise d’effet de la révision ou du réexamen

(2) Sous réserve du paragraphe (4), si, à la suite de la révision ou du réexamen, en application du paragraphe 59(1), de l’origine de marchandises qui font l’objet d’une demande visant l’obtention du traitement tarifaire préférentiel de l’ALÉNA ou de celui de l’ALÉCC et dont la vérification de l’origine est prévue par la présente loi, celles-ci ne peuvent pas bénéficier du traitement tarifaire préférentiel demandé pour le motif que le classement tarifaire ou la valeur d’une matière ou d’un matériel ou de plusieurs matières ou matériels utilisés pour la production de ces marchandises diffère du classement ou de la valeur correspondants de ces matières ou matériels dans le pays d’exportation — pays ALÉNA ou Chili —, la prise d’effet de la révision ou du réexamen est subordonnée à leur notification à l’importateur et à la personne qui a rempli et signé le certificat d’origine des marchandises.

Marginal note:1997, c. 36, s. 163

(2) Subsection 42.3(4) of the French version of the Act is replaced by the following:

Marginal note:Report de la date de prise d’effet

(4) La date de prise d’effet de la révision ou du réexamen de l’origine visé au paragraphe (2) est reportée pour une période maximale de quatre-vingt-dix jours, si le ministre est convaincu que l’importateur des marchandises ou la personne qui a rempli et signé le certificat d’origine de celles-ci a démontré qu’il s’est fondé de bonne foi, à son détriment, sur le classement tarifaire ou la détermination de la valeur des matières ou matériels visés à ce paragraphe effectués par l’administration douanière du pays ALÉNA d’exportation des marchandises ou du Chili, selon le cas.

Marginal note:2000, c. 30, s. 160

35. Subsection 43(1) of the Act is replaced by the following:

Marginal note:Production of records

43. (1) The Minister may, for any purpose related to the administration or enforcement of this Act, including the collection of any amount owing under this Act by any person, by notice served personally or sent by registered or certified mail, require any person to provide any record at a place specified by the Minister and within any reasonable time that may be stipulated in the notice.

36. Subsection 43.1(1) of the Act is amended by striking out the word “and” at the end of paragraph (a), by adding the word “and” at the end of paragraph (b) and by adding the following after paragraph (b):

(c) the tariff classification of the goods.

37. Subsection 51(6) of the Act is replaced by the following:

Definition of “time of importation”

(6) In this section, “time of importation” means

(a) in respect of goods other than those to which paragraph 32(2)(b) applies, the date on which an officer authorizes the release of the goods under this Act or the date on which their release is authorized by any prescribed means; and

(b) in respect of goods to which paragraph 32(2)(b) applies, the date on which the goods are received at the place of business of the importer, owner or consignee.

38. Section 54 of the French version of the Act is replaced by the following:

Marginal note:Marchandises exportées au Canada en passant par un autre pays

54. Pour l’application des articles 45 à 55, les marchandises provenant d’un pays qui sont exportées au Canada en passant par un autre pays sont considérées, sous réserve des conditions réglementaires, comme ayant été expédiées directement au Canada à partir du premier pays.

Marginal note:1997, c. 36, s. 165

39. (1) Subsection 57.01(1) of the Act is replaced by the following:

Marginal note:Marking determination

57.01 (1) Any officer, or any officer within a class of officers, designated by the Minister for the purposes of this section may, at or before the time goods imported from a NAFTA country are accounted for under subsection 32(1), (3) or (5), in the prescribed manner and subject to the prescribed conditions, make a determination as to whether the goods have been marked in the manner referred to in section 35.01.

Marginal note:1997, c. 36, s. 165

(2) Subsection 57.01(2) of the French version of the Act is replaced by the following:

Marginal note:Décision présumée

(2) Dans le cas où l’agent ne rend pas sa décision au plus tard au moment de la déclaration en détail des marchandises prévue aux paragraphes 32(1), (3) ou (5), celles-ci sont réputées marquées conformément à l’article 35.01 sur le fondement des déclarations faites par l’auteur de la déclaration en détail.

Marginal note:1997, c. 36, s. 166

40. Paragraph 57.1(b) of the Act is replaced by the following:

(b) the tariff classification of imported goods is to be determined in accordance with sections 10 and 11 of the Customs Tariff, unless otherwise provided in that Act; and

Marginal note:1997, c. 36, s. 166

41. (1) The portion of paragraph 59(1)(a) of the Act before subparagraph (i) is replaced by the following:

(a) in the case of a determination under section 57.01 or 58, re-determine the origin, tariff classification, value for duty or marking determination of any imported goods at any time within

Marginal note:1997, c. 36, s. 166

(2) Subsection 59(2) of the Act is replaced by the following:

Marginal note:Notice requirement

(2) An officer who makes a determination under subsection 57.01(1) or 58(1) or a re-determination or further re-determination under subsection (1) shall without delay give notice of the determination, re-determination or further re-determination, including the rationale on which it is made, to the prescribed persons.

Marginal note:1997, c. 36, s. 166

(3) The portion of subsection 59(3) of the Act before paragraph (b) is replaced by the following:

Marginal note:Payment or refund

(3) Every prescribed person who is given notice of a determination, re-determination or further re-determination under subsection (2) shall, in accordance with that decision,

(a) pay any amount owing, or additional amount owing, as the case may be, as duties in respect of the goods or, if a request is made under section 60, pay that amount or give security satisfactory to the Minister in respect of that amount and any interest owing or that may become owing on that amount; or

Marginal note:1997, c. 36, s. 166

(4) Subsection 59(4) of the Act is replaced by the following:

Marginal note:Amounts payable immediately

(4) Any amount owing by or to a person under subsection (3) or 66(3) in respect of goods, other than an amount in respect of which security is given, is payable immediately, whether or not a request is made under section 60.

Marginal note:1997, c. 36, s. 166

42. (1) Subsections 60(1) and (2) of the Act are replaced by the following:

Marginal note:Request for re-determination or further re-determination

60. (1) A person to whom notice is given under subsection 59(2) in respect of goods may, within ninety days after the notice is given, request a re-determination or further re-determination of origin, tariff classification, value for duty or marking. The request may be made only after all amounts owing as duties and interest in respect of the goods are paid or security satisfactory to the Minister is given in respect of the total amount owing.

Marginal note:Request for review

(2) A person may request a review of an advance ruling made under section 43.1 within ninety days after it is given to the person.

Marginal note:1997, c. 36, s. 166

(2) Paragraph 60(4)(b) of the French version of the Act is replaced by the following:

b) la confirmation, la modification ou l’annulation de la décision anticipée;

Marginal note:1997, c. 36, s. 166

(3) Paragraph 60(4)(c) of the Act is replaced by the following:

(c) re-determine or further re-determine the marking determination.

43. The Act is amended by adding the following after section 60:

Marginal note:Extension of time to make a request

60.1 (1) If no request is made under section 60 within the time set out in that section, a person may make an application to the Commissioner for an extension of the time within which the request may be made, and the Commissioner may extend the time for making the request.

Marginal note:Reasons

(2) The application must set out the reasons why the request was not made on time.

Marginal note:How application made

(3) The application must be made to the Commissioner in the prescribed manner and form and contain the prescribed information.

Marginal note:Duties of Commissioner

(4) On receipt of an application, the Commissioner must, without delay, consider it and notify the person making the application, in writing, of the Commissioner’s decision.

Marginal note:Date of request

(5) If the Commissioner grants the application, the request is valid as of the date of the Commissioner’s decision.

Marginal note:Conditions for granting application

(6) No application may be granted unless

(a) the application is made within one year after the expiry of the time set out in section 60; and

(b) the person making the application demonstrates that

(i) within the time set out in section 60, the person was unable to act or to give a mandate to act in the person’s name or the person had a bona fide intention to make a request,

(ii) it would be just and equitable to grant the application, and

(iii) the application was made as soon as circumstances permitted.

Marginal note:Extension of time by Canadian International Trade Tribunal

60.2 (1) A person who has made an application under section 60.1 may apply to the Canadian International Trade Tribunal to have the application granted after either

(a) the Commissioner has refused the application; or

(b) ninety days have elapsed after the application was made and the Commissioner has not notified the person of the Commissioner’s decision.

If paragraph (a) applies, the application under this subsection must be made within ninety days after the application is refused.

Marginal note:How application made

(2) The application must be made by filing with the Commissioner and the Secretary of the Canadian International Trade Tribunal a copy of the application referred to in section 60.1 and, if notice has been given under subsection 60.1(4), a copy of the notice.

Marginal note:Powers of Canadian International Trade Tribunal

(3) The Canadian International Trade Tribunal may dispose of an application by dismissing or granting it and, in granting an application, it may impose any terms that it considers just or order that the request be deemed to be a valid request as of the date of the order.

Marginal note:When application to be granted

(4) No application may be granted under this section unless

(a) the application under subsection 60.1(1) was made within one year after the expiry of the time set out in section 60; and

(b) the person making the application demonstrates that

(i) within the time set out in section 60, the person was unable to act or to give a mandate to act in the person’s name or the person had a bona fide intention to make a request,

(ii) it would be just and equitable to grant the application, and

(iii) the application was made as soon as circumstances permitted.

Marginal note:1997, c. 36, s. 166

44. Subparagraph 61(1)(b)(ii) of the Act is replaced by the following:

(ii) at any time, if the person who is given notice of a marking determination under section 57.01 or of a re-determination under paragraph 59(1)(a) fails to comply with any provision of this Act or the regulations or commits an offence under this Act in respect of the goods,

Marginal note:1992, c. 28, s. 16(1)

45. (1) Paragraph 65(1)(a) of the French version of the Act is replaced by the following:

a) soit verser tout complément de droits dû sur les marchandises ou, si appel a été interjeté en vertu de l’article 67, payer cette somme ou donner la garantie, jugée satisfaisante par le ministre, du versement de ce complément et des intérêts échus ou à échoir sur ce complément;

Marginal note:1992, c. 28, s. 16(2)

(2) Subsection 65(2) of the Act is replaced by the following:

Marginal note:Amount owing or refund payable immediately

(2) Any amount owing by or to a person under subsection (1) or 66(3) of this Act or as a result of a determination or re-determination under the Special Import Measures Act in respect of goods, other than an amount in respect of which security is given, is payable immediately, whether or not an appeal is taken under section 67 of this Act or subsection 61(1) of that Act.

46. Section 65.1 of the Act is amended by adding the following after subsection (2):

Marginal note:Exception — marking determinations

(3) This section does not apply to a marking determination.

Marginal note:1997, c. 36, s. 168

47. (1) Subsection 66(1) of the Act is replaced by the following:

Marginal note:Interest on payments

66. (1) If the amount paid by a person on account of duties expected to be owing under paragraph 59(3)(a) or 65(1)(a) of this Act or under the Special Import Measures Act exceeds the amount of duties, if any, owing as a result of a determination, re-determination or further re-determination, the person shall be paid, in addition to the excess amount, interest at the prescribed rate for the period beginning on the first day after the day the amount was paid and ending on the day the determination, re-determination or further re-determination, as the case may be, was made, calculated on the excess amount.

Marginal note:1997, c. 36, s. 168

(2) Subsection 66(3) of the Act is replaced by the following:

Marginal note:Interest on refunds

(3) A person who is given a refund under paragraph 59(3)(b) or 65(1)(b) of this Act or under the Special Import Measures Act of an amount paid shall be given, in addition to the refund, interest at the prescribed rate for the period beginning on the first day after the day the amount was paid and ending on the day the refund is given, calculated on the amount of the refund.

Marginal note:1997, c. 36, s. 169; 1999, c. 17, par. 127(d)

48. Subsection 67(1) of the French version of the Act is replaced by the following:

Marginal note:Appel devant le Tribunal canadien du commerce extérieur

67. (1) Toute personne qui s’estime lésée par une décision du commissaire rendue conformément aux articles 60 ou 61 peut en interjeter appel devant le Tribunal canadien du commerce extérieur en déposant par écrit un avis d’appel auprès du commissaire et du secrétaire de ce Tribunal dans les quatre-vingt-dix jours suivant la notification de l’avis de décision.

49. The Act is amended by adding the following after section 67:

Marginal note:Extension of time to appeal

67.1 (1) If no notice of appeal has been filed within the time set out in section 67, a person may make an application to the Canadian International Trade Tribunal for an order extending the time within which a notice of appeal may be filed, and the Tribunal may make an order extending the time for appealing and may impose any terms that it considers just.

Marginal note:Reasons

(2) The application must set out the reasons why the notice of appeal was not filed on time.

Marginal note:How application made

(3) The application must be made by filing with the Commissioner and the Secretary of the Canadian International Trade Tribunal the application accompanied by the notice of appeal.

Marginal note:Conditions for granting application

(4) No order may be made under this section unless

(a) the application is made within one year after the expiry of the time set out in section 67; and

(b) the person making the application demonstrates that

(i) within the time set out in section 67 for appealing, the person was unable to act or to give a mandate to act in the person’s name or the person had a bona fide intention to appeal,

(ii) it would be just and equitable to grant the application,

(iii) the application was made as soon as circumstances permitted, and

(iv) there are reasonable grounds for the appeal.

Marginal note:1992, c. 28, s. 19(1)

50. Subsection 69(1) of the French version of the Act is replaced by the following:

Marginal note:Remboursement en cas d’appel

69. (1) La personne qui interjette appel, en vertu des articles 67 ou 68, d’une décision portant sur des marchandises, après avoir versé une somme à titre de droits et d’intérêts sur celles-ci, et qui donne la garantie, jugée satisfaisante par le ministre, du versement de la partie impayée des droits et intérêts dus sur les marchandises et de tout ou partie de la somme versée à titre de droits et d’intérêts (sauf les intérêts payés en raison du non-paiement de droits dans le délai prévu au paragraphe 32(5) ou à l’article 33) sur les marchandises, est remboursée de tout ou partie de la somme versée pour laquelle la garantie a été donnée.

51. (1) Paragraph 74(3)(a) of the French version of the Act is replaced by the following:

a) d’une part, le réclamant donne à l’agent toute possibilité d’examiner les marchandises en cause ou, d’une façon générale, d’apprécier les motifs de la réclamation;

(2) Section 74 of the Act is amended by adding the following after subsection (5):

Marginal note:Refund without application

(6) The Minister, within four years after goods are accounted for under subsection 32(1), (3) or (5), may refund all or part of duties paid on imported goods without application by the person who paid them if it is determined that the duties were overpaid or paid in error in any of the circumstances set out in

(a) paragraphs (1)(a) to (c) or (d); or

(b) paragraph (1)(g), only to the extent that the refund is not based on tariff classification, value for duty or origin of the goods.

Marginal note:Duties that may not be refunded

(7) The duties that may be refunded under subsection (6) do not include duties or taxes levied under the Excise Act, the Excise Tax Act or the Special Import Measures Act or a surtax or temporary duty imposed under Division 4 of Part II of the Customs Tariff.

Marginal note:Application of refund

(8) A person of a prescribed class may apply, within four years after goods are accounted for under subsection 32(1), (3) or (5), in prescribed circumstances and under prescribed conditions, the amount of any refund to which they are entitled under this section to the payment of any amount for which they are liable or may become liable under this Act.

52. Subsection 76(1) of the French version of the Act is replaced by the following:

Marginal note:Marchandises défectueuses

76. (1) Sous réserve des règlements pris en vertu de l’article 81, le ministre peut, dans les circonstances prévues par règlement, accorder à une personne le remboursement de tout ou partie des droits qu’elle a payés sur des marchandises importées qui, d’une part, sont défectueuses, de qualité inférieure à celle pour laquelle il y a eu paiement ou différentes des marchandises commandées et, d’autre part, après leur importation, ont, sans frais pour Sa Majesté du chef du Canada, été aliénées conformément à des modalités acceptées par le ministre, ou ont été exportées.

Marginal note:1992, c. 28, s. 20(1); 1997, c. 36, s. 178

53. Section 80 of the Act is replaced by the following:

Marginal note:Interest on refunds

80. Any person who is granted a refund of duties under section 74, 76 or 79 shall be granted, in addition to the refund, interest on the refund at the prescribed rate for the period beginning on the ninety-first day after the day an application for the refund is received in accordance with paragraph 74(3)(b) and ending on the day the refund is granted.

Marginal note:1997, c. 36, s. 180

54. Subsection 80.2(2) of the Act is replaced by the following:

Marginal note:Excess to be repaid — paragraph 74(1)(f)

(2) If an abatement or refund is granted to a person under paragraph 74(1)(f) and the goods are sold or otherwise disposed of or are subsequently used in a manner that fails to comply with a condition imposed under a tariff item in the List of Tariff Provisions set out in the schedule to the Customs Tariff, or under any regulations made under that Act in respect of a tariff item in that List, the person who was granted the refund or abatement shall, within ninety days after the failure to comply,

(a) report the failure to an officer at a customs office; and

(b) pay to Her Majesty in right of Canada any amount to which they are not entitled, together with any interest that was granted to the person under section 80 or 80.1 on that amount.

55. (1) Paragraph 95(3)(b) of the French version of the Act is replaced by the following:

b) à la demande de l’agent, lui présenter les marchandises et les déballer, ainsi que décharger les moyens de transport et en ouvrir les parties, ouvrir ou défaire les colis et autres contenants que l’agent veut examiner.

(2) Subsection 95(4) of the Act is replaced by the following:

Marginal note:Written report

(4) If goods are required to be reported in writing, they shall be reported in the prescribed form containing the prescribed information or in such form containing such information as is satisfactory to the Minister.

Marginal note:1997, c. 14, s. 44

56. Subsection 97.1(3) of the French version of the Act is replaced by the following:

Marginal note:Modification du certificat

(3) La personne qui a rempli et signé le certificat et qui a des motifs de croire que celui-ci contient des renseignements inexacts communique sans délai à tout destinataire du certificat les renseignements corrigés.

Marginal note:1997, c. 14, s. 45

57. Subsection 97.2(1) of the Act is replaced by the following:

Marginal note:Exporters’ or producers’ records

97.2 (1) Every person who exports goods or causes them to be exported for sale or for any industrial, occupational, commercial, institutional or other like use or any other use that may be prescribed, and every other person who has completed and signed a certificate in accordance with subsection 97.1(1), shall keep at the person’s place of business in Canada or at any other place that may be designated by the Minister any records in respect of those goods in the manner and for the period that may be prescribed and shall, if an officer requests, make them available to the officer, within the time specified by the officer, and answer any questions asked by the officer in respect of the records.

58. (1) The Act is amended by adding the following after section 97.2:

PART V.1 COLLECTIONS

Interpretation

Marginal note:Definitions

97.21 The definitions in this section apply in this Part.

“debtor”

« débiteur »

“debtor” means a person liable to pay an amount owing or payable in accordance with this Act.

“judge”

« juge »

“judge” means a judge of a superior court having jurisdiction in the province where a matter arises or a judge of the Federal Court.

“receiver”

« séquestre »

“receiver” means a person who

(a) under the authority of a debenture, bond or other debt security, a court order or an Act of Parliament or of the legislature of a province, is empowered to operate or manage a business or a property of another person;

(b) is appointed by a trustee under a trust deed in respect of a debt security to exercise the authority of the trustee to manage or operate a business or a property of the debtor under the debt security;

(c) is appointed by a bank to act as agent of the bank in the exercise of the authority of the bank under subsection 426(3) of the Bank Act in respect of property of another person;

(d) is appointed as a liquidator to liquidate the assets of a corporation or to wind up the affairs of a corporation; or

(e) is appointed as a committee, guardian or curator with authority to manage and care for the affairs and assets of an individual who is incapable of managing those affairs and assets.

It includes a person who is appointed to exercise the authority of a creditor under a debenture, bond or other debt security to operate or manage a business or a property of another person. However, if a person is so appointed it does not include that creditor.

General

Marginal note:Debts to Her Majesty

97.22 (1) Subject to subsections (2) and (3), any duties, fee, charge or other amount owing or payable under this Act is a debt due to Her Majesty in right of Canada from and after the time such amount should have been paid, and any person from whom the amount is owing shall, after a notice of arrears is sent by mail addressed to the person at their latest known address or delivered to that address, pay the amount owing as indicated in the notice or appeal the notice under section 97.23.

Marginal note:Penalty or ascertained forfeiture

(2) Any amount of money demanded as a penalty in a notice of assessment served under section 109.3 and any interest payable under section 109.5 or any amount of money demanded in a notice under section 124 and any interest payable under subsection 124(6), from and after the time of service, is a debt due to Her Majesty in right of Canada from the person on whom the notice is served and the person shall pay that amount or, within ninety days after the time of service, request a decision of the Minister under section 131.

Marginal note:Amounts demanded by the Minister

(3) Any amount of money demanded under paragraph 133(1)(c) or (1.1)(b) and any interest payable under subsection 133(7), from and after the time notice is served under subsection 131(2), is a debt due to Her Majesty in right of Canada from the person who requested the decision and the person shall pay the amount so demanded or, if the person appeals the decision of the Minister under section 135, give security satisfactory to the Minister.

Marginal note:Court costs

(4) If an amount is payable by a person to Her Majesty in right of Canada because of an order, judgment or award of a court in respect of the costs of litigation relating to a matter to which this Act applies, sections 97.24, 97.26, 97.28 and 97.3 to 97.33 apply to the amount as if the amount were a debt owing by the person to Her Majesty on account of duties payable by the person under this Act.

Marginal note:Court

(5) Any amount payable under this Act is recoverable in the Federal Court or any other court of competent jurisdiction or in any other manner provided under this Part.

Marginal note:Interest on judgments

(6) If a judgment is obtained for any amount payable under this Act, including a certificate registered under section 97.24, the provisions of this Act under which interest is payable for failure to pay the amount apply, with any modifications that the circumstances require, to a failure to pay the judgment debt, and the interest is recoverable in the same manner as the judgment debt.

Marginal note:Appeal

97.23 A person to whom a notice is sent or delivered under subsection 97.22(1) may, within thirty days after that notice is sent, appeal the notice by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant if

(a) no appeal is or was available to that person under section 67 or 68 in respect of the same matter; and

(b) the notice is not in respect of an amount assessed under section 97.44.

Certificates, Liens and Set-off

Marginal note:Certificate

97.24 (1) Any debt, or any part of a debt, due to Her Majesty in right of Canada under this Act may be certified by the Minister as an amount payable by the debtor.

Marginal note:Registration in court

(2) On production to the Federal Court, the certificate must be registered in the Court. When it is registered, it has the same force and effect, and all proceedings may be taken, as if the certificate were a judgment obtained in the Court for a debt of the amount specified in the certificate and interest on the amount as provided under this Act. For the purposes of any such proceedings, the certificate is a judgment of the Court against the debtor and enforceable as such.

Marginal note:Costs

(3) All reasonable costs and charges for the registration of the certificate or in respect of any proceedings taken to collect the amount certified are recoverable in the same way as if they had been certified in the certificate registered under this section.

Marginal note:Protected interest in property

(4) A memorial may be recorded for the purpose of creating a protected interest in property in a province or an interest in such property held by the debtor in the same manner as a document evidencing the following may be recorded in accordance with the law of the province:

(a) a judgment of the superior court of the province against a person for a debt owing by the person; and

(b) an amount payable by a person in the province in respect of a debt owing to Her Majesty in right of the province.

Marginal note:Creation of protected interest

(5) The effect of recording a memorial is, in the same manner and to the same extent as if the memorial were a document evidencing a judgment or an amount referred to in subsection (4), to create a protected interest in the property of the debtor in the province, or in any interest in that property, held by the debtor or to otherwise bind that property or interest in the property. The protected interest created is subordinate to any protected interest in respect of which all steps necessary to make it effective against other creditors were taken before the time the memorial was recorded.

Marginal note:Proceedings in respect of memorial

(6) If a memorial is recorded in a province, proceedings may be taken, in the same manner and to the same extent as if the memorial were a document evidencing a judgment or an amount referred to in subsection (4), in the province in respect of the memorial, including proceedings

(a) to enforce payment of the amount evidenced by the memorial, interest on the amount and all costs and charges paid or incurred in respect of the recording of the memorial and proceedings taken to collect the amount;

(b) to renew or otherwise prolong the effectiveness of the recording of the memorial;

(c) to cancel or withdraw the memorial wholly or in respect of any of the property or interests affected by the memorial; or

(d) to postpone the effectiveness of the recording of the memorial in favour of any protected interest that has been or is intended to be recorded in respect of any property or interest affected by the memorial.

Marginal note:Federal Court may make order, etc.

(7) If in any proceeding or as a condition precedent to any proceeding referred to in subsection (6) any order, consent or ruling is required under the law of a province to be made or given by the superior court of the province or by a judge or official of the court, a like order, consent or ruling may be made or given by the Federal Court or by a judge or official of the Federal Court and, when so made or given, has the same effect for the purposes of the proceeding as if it were made or given by the superior court of the province or by a judge or official of the court.

Marginal note:Presentation of documents

(8) If a memorial, or a document relating to it, is presented for recording, for the purpose of any proceeding referred to in subsection (6), to any official in the land, personal property or other registry system of a province, it is to be accepted for recording in the same manner and to the same extent as if the memorial or document were a document evidencing a judgment or an amount referred to in subsection (4) for the purpose of a like proceeding.

Marginal note:Access for recording

(9) If access is sought to any person, place or thing in a province for the purpose of recording a memorial, or a document relating to it, the access must be granted in the same manner and to the same extent as if the memorial or document were a document evidencing a judgment or an amount referred to in subsection (4) for the purpose of a like proceeding.

Marginal note:Evidence deemed to have been provided

(10) If a memorial or document is issued by the Federal Court or signed or certified by a judge or official of the Court, any affidavit, declaration or other evidence required under the law of the province to be provided with or to accompany the memorial or document in the proceeding is deemed to have been provided with or to have accompanied the memorial or document as so required.

Marginal note:Prohibition — sale, etc., without consent

(11) Despite any law of Canada or of a province, no sheriff or other person may, without the written consent of the Minister, sell or otherwise dispose of any property or publish any notice or otherwise advertise in respect of any sale or other disposition of any property pursuant to any process issued or protected interest created in any proceeding to collect an amount certified in a certificate, any interest on the amount and any costs.

Marginal note:Subsequent consent

(12) Despite subsection (11), if the Minister’s consent is subsequently given, any property that would have been affected by a process or protected interest referred to in that subsection had the Minister’s consent been given at the time the process was issued or the protected interest was created is bound, seized, attached, charged or otherwise affected as if that consent had been given at the time the process was issued or the protected interest was created, as the case may be.

Marginal note:Completion of notices, etc.

(13) If information required to be set out by any sheriff or other person in a minute, notice or document required to be completed for any purpose cannot, because of subsection (11), be so set out, the sheriff or other person must complete the minute, notice or document to the extent possible without that information and, when the consent of the Minister is given, a further minute, notice or document setting out all the information is to be completed for the same purpose. The sheriff or other person is deemed to have complied with any law or rule of court requiring the information to be set out in the minute, notice or document.

Marginal note:Application for an order

(14) A sheriff or other person who is unable, because of subsection (11) or (13), to comply with any law or rule of court is bound by any order made by a judge of the Federal Court, on an ex parte application by the Minister, for the purpose of giving effect to the proceeding or protected interest.

Marginal note:Secured claims

(15) A protected interest that is registered in accordance with subsection 87(1) of the Bankruptcy and Insolvency Act is deemed to be a claim that

(a) is secured by a security and that, subject to subsection 87(2) of that Act, ranks as a secured claim under that Act; and

(b) is referred to in paragraph 86(2)(a) of that Act.

Marginal note:Details in certificates and memorials

(16) Despite any law of Canada or of a province, in any certificate in respect of a debtor, in any memorial evidencing the certificate or in any writ or document issued for the purpose of collecting an amount certified, it is sufficient for all purposes

(a) to set out, as the amount payable by the debtor, the total of amounts payable by the debtor without setting out the separate amounts making up that total; and

(b) to refer to the rate of interest to be charged on the separate amounts making up the amount payable in general terms as interest at the rate prescribed under this Act applicable from time to time on amounts payable to the Receiver General, without indicating the specific rates of interest to be charged on each of the separate amounts or to be charged for any particular period of time.

Marginal note:Definitions

(17) The definitions in this subsection apply in this section.

“memorial”

« extrait »

“memorial” means a document issued by the Federal Court evidencing a certificate registered under subsection (2) in respect of a debtor and includes a writ of that Court issued pursuant to the certificate or any notification of the document or writ.

“protected interest”

« droit garanti »

“protected interest” means a charge, lien, prior claim, priority on or binding interest in property.

“record”

« enregistrement »

“record”, in respect of a memorial, means to file, register or otherwise record the memorial.

Marginal note:Detention of and lien on imported or exported goods

97.25 (1) Any goods reported for exportation under section 95 or imported by or on behalf of a debtor are subject to a lien for the amount owed by the debtor and may be detained by an officer at the expense of the debtor until that amount is paid.

Marginal note:Conveyances

(2) Any conveyance used for the importation of goods in respect of which a notice under section 109.3 has been served is subject to a lien for the amount owed by the debtor and may be detained by an officer at the expense of the person on whom the notice was served until the amount set out in the notice is paid.

Marginal note:Sale of detained goods

(3) The Minister, on giving 30 days notice in writing to the debtor at the debtor’s latest known address, may direct that any goods imported or reported for exportation by or on behalf of the debtor, or any conveyance, that has been detained be sold by public auction or public tender or by the Minister of Public Works and Government Services under the Surplus Crown Assets Act, subject to such regulations as may be made.

Marginal note:Proceeds of sale

(4) The proceeds of any sale shall be applied to amounts owed by the debtor, any expenses incurred by Her Majesty in right of Canada in respect of the goods sold and any duties on the goods and the surplus, if any, shall be paid to the debtor.

Marginal note:Set-off

97.26 The Minister may require that an amount specified by the Minister be deducted from or set-off against an amount that is or may become payable to a debtor by Her Majesty in Right of Canada. If an amount payable to a person under a provision of this Act has at any time been deducted or set-off, the amount is deemed to have been paid to the debtor at that time under that provision and to have been paid by the debtor at that time on account of the debt to Her Majesty.

Marginal note:Refund may be applied against liabilities

97.27 The Minister may, if a person is or is about to become liable to make any payment to Her Majesty in right of Canada or in right of a province, apply the amount of any drawback, refund or relief granted under section 74 or 76 of this Act or section 89, 101 or 113 of the Customs Tariff to that other liability and notify the person of that action.

Garnishment and Non-arm’s Length Transfers

Marginal note:Garnishment — general

97.28 (1) If the Minister has knowledge or suspects that a person is or will be, within one year, liable to make a payment to a debtor, the Minister may, by notice in writing, require the person to pay without delay, if the moneys are immediately payable, and, in any other case, as and when the moneys become payable, the moneys otherwise payable to the debtor in whole or in part to the Receiver General on account of the debtor’s liability under this Act.

Marginal note:Garnishment — institutions

(2) The Minister may, by notice in writing, require the following institutions or persons to pay in whole or in part to the Receiver General on account of a debtor’s liability the moneys that would otherwise be loaned, advanced or paid if the Minister has knowledge or suspects that within ninety days

(a) a bank, credit union, trust company or other similar person (in this section referred to as the “institution”) will loan or advance moneys to, or make a payment on behalf of, or make a payment in respect of a negotiable instrument issued by, a debtor who is indebted to the institution and who has granted security in respect of the indebtedness; or

(b) a person, other than an institution, will loan or advance moneys to, or make a payment on behalf of, a debtor who the Minister knows or suspects

(i) is employed by, or is engaged in providing services or property to, that person or was or will be, within ninety days, so employed or engaged, or

(ii) if that person is a corporation, is not dealing at arm’s length with that person.

Any moneys so paid to the Receiver General are deemed to have been loaned, advanced or paid to the debtor.

Marginal note:Effect of receipt

(3) A receipt issued by the Minister for moneys paid as required under this section is a good and sufficient discharge of the original liability to the extent of the payment.

Marginal note:Periodic payments

(4) If the Minister has, under this section, required a person to pay to the Receiver General on account of the liability under this Act of a debtor moneys otherwise payable by the person to the debtor as interest, rent, remuneration, a dividend, an annuity or other periodic payment, the requirement applies to all such payments to be made by the person to the debtor until the liability under this Act is satisfied, and operates to require payments to the Receiver General out of each such payment of such amount as is required by the Minister in a notice in writing.

Marginal note:Failure to comply

(5) Every person who fails to comply with a requirement under subsection (1) or (4) is liable to pay to Her Majesty in right of Canada an amount equal to the amount that the person was required under that subsection to pay to the Receiver General.

Marginal note:Failure to comply — institutions

(6) Every institution or person that fails to comply with a requirement under subsection (2) is liable to pay to Her Majesty in right of Canada an amount equal to the lesser of

(a) the total of moneys loaned, advanced or paid to the debtor, and

(b) the amount that the institution or person was required under that subsection to pay to the Receiver General.

Marginal note:Service

(7) If a person carries on business under a name or style other than the person’s own name, notification to the person of a requirement under subsection (1) or (2) may be addressed to the name or style under which the person carries on business and, in the case of personal service, is validly served if it is left with an adult person employed at the place of business of the addressee.

Marginal note:Service — partnerships

(8) If persons carry on business in partnership, notification to the persons of a requirement under subsection (1) or (2) may be addressed to the partnership name and, in the case of personal service, is deemed to be validly served if it is served on one of the partners or left with an adult person employed at the place of business of the partnership.

Marginal note:Effect of payment as required

(9) If an amount that would otherwise have been payable to or on behalf of a debtor is paid by a person to the Receiver General pursuant to a notice served on the person under this section or pursuant to an assessment under section 97.44, the person is deemed, for all purposes, to have paid the amount to or on behalf of the debtor.

Marginal note:Application to Her Majesty in right of a province

(10) Provisions of this Part that provide that a person who has been required by the Minister to pay to the Receiver General an amount that would otherwise be loaned, advanced or paid to a debtor who is liable to make a payment under this Act apply to Her Majesty in right of a province.

Marginal note:Liability — non-arm’s length transfers

97.29 (1) If a person transfers property, either directly or indirectly, by means of a trust or by any other means, to the transferor’s spouse or common-law partner or an individual who has since become the transferor’s spouse or common-law partner, an individual who was under eighteen years of age, or another person with whom the transferor was not dealing at arm’s length, the transferee and transferor are jointly and severally or solidarily liable to pay an amount equal to the lesser of

(a) the amount determined by the formula

A – B

where


is the amount, if any, by which the fair market value of the property at the time of transfer exceeds the fair market value at that time of the consideration given by the transferee for the transfer of the property, and


is the amount, if any, by which the amount assessed the transferee under subsection 325(2) of the Excise Tax Act and subsection 160(2) of the Income Tax Act in respect of the property exceeds the amount paid by the transferor in respect of the amount so assessed, and

(b) the total of all amounts each of which is

(i) an amount that the transferor is liable to pay under this Act, or

(ii) interest or a penalty for which the transferor is liable as of the time of transfer.

However, nothing in this subsection limits the liability of the transferor under any other provision of this Act.

Marginal note:Fair market value of undivided interest

(2) For the purpose of this section, the fair market value at any time of an undivided interest in a property, expressed as a proportionate interest in that property, is, subject to subsection (4), equal to the same proportion of the fair market value of that property at that time.

Marginal note:Rules applicable

(3) If a transferor and transferee have, under subsection (1), become jointly and severally or solidarily liable in respect of all or part of the liability of the transferor under this Act, the following rules apply:

(a) a payment by the transferee on account of the transferee’s liability discharges, to the extent of the payment, the joint liability; and

(b) a payment by the transferor on account of the transferor’s liability discharges the transferee’s liability only to the extent that the payment operates to reduce the transferor’s liability to an amount less than the amount in respect of which the transferee was made jointly and severally or solidarily liable.

Marginal note:Transfers to spouse or common-law partner

(4) Despite subsection (1), if at any time a debtor transfers property to the debtor’s spouse or common-law partner under a decree, order or judgment of a competent tribunal or under a written separation agreement and, at that time, the debtor and the debtor’s spouse or common-law partner were separated and living apart as a result of the breakdown of their marriage or common-law partnership (as defined in subsection 248(1) of the Income Tax Act), for the purposes of paragraph (1)(a), the fair market value at that time of the property so transferred is deemed to be nil. However, nothing in this subsection limits the liability of the debtor under any other provision of this Act.

Marginal note:Related persons

(5) For the purposes of this section,

(a) related persons are deemed not to deal with each other at arm’s length, and it is a question of fact whether persons not related to each other were, at any particular time, dealing with each other at arm’s length;

(b) persons are related to each other if they are related persons within the meaning of subsections 251(2) to (6) of the Income Tax Act, except that references in those subsections to “corporation” are to be read as references to “corporation or partnership”, and references in those subsections to “shares” or “shareholders” are, in respect of a partnership, to be read as references to “rights” or “partners”, respectively; and

(c) a member of a partnership is deemed to be related to the partnership.

Marginal note:Definitions

(6) The definitions in this subsection apply in this section.

“common-law partner”

« conjoint de fait »

“common-law partner” has the same meaning as in subsection 248(1) of the Income Tax Act except that references to “taxpayer” in that definition are to be read as references to “debtor”.

“common-law partnership”

« union de fait »

“common-law partnership” has the same meaning as in subsection 248(1) of the Income Tax Act.

“property”

« bien »

“property” includes money.

Acquisition of Property and Seizures

Marginal note:Acquisition of debtor’s property

97.3 For the purpose of collecting amounts owed by a debtor, the Minister may purchase or otherwise acquire any interest in the debtor’s property that the Minister is given a right to acquire in legal proceedings or under a court order or that is offered for sale or redemption, and may dispose of any interest so acquired in any manner that the Minister considers reasonable.

Marginal note:Moneys seized from debtor

97.31 (1) If the Minister has knowledge or suspects that a person is holding moneys that were seized by a police officer, in the course of administering or enforcing the criminal law of Canada, from a debtor and that are restorable to the debtor, the Minister may, by notice in writing, require that person to turn over the moneys otherwise restorable to the debtor, in whole or in part, to the Receiver General on account of the debtor’s liability under this Act.

Marginal note:Receipt

(2) A receipt issued for moneys turned over is a good and sufficient discharge of the requirement to restore the moneys to the debtor to the extent of the amount so turned over.

Marginal note:Seizure of chattels

97.32 (1) If a person fails to pay an amount as required under this Act, the Minister may give thirty days notice to the person by registered or certified mail addressed to the person at their latest known address of the Minister’s intention to direct that the person’s goods and chattels be seized and sold. If the person fails to make the payment before the expiration of the thirty days, the Minister may issue a certificate of the failure and direct that the person’s goods and chattels be seized.

Marginal note:Sale of seized property

(2) Seized property must be kept for ten days at the expense and risk of the owner and, if the owner does not pay the amount due together with all expenses within the ten days, the property seized shall be sold by public auction.

Marginal note:Notice of sale

(3) Except in the case of perishable goods, notice of the sale setting out the time and place of the sale together with a general description of the property to be sold must be published, a reasonable time before the goods are sold, in one or more newspapers of general local circulation.

Marginal note:Surplus

(4) Any surplus resulting from a sale, after deduction of the amount owing and all expenses, must be paid or returned to the owner of the property seized.

Marginal note:Exemption from seizure

(5) Goods and chattels of any person that would be exempt from seizure under a writ of execution issued out of a superior court of the province in which the seizure is made are exempt from seizure under this section.

Marginal note:Person leaving Canada

97.33 (1) If the Minister suspects that a person who is liable to pay an amount under this Act or would be so liable if the time for payment of the amount had arrived has left or is about to leave Canada, the Minister may, before the day otherwise fixed for payment, by notice in writing, demand payment of the amount. Despite any other provision of this Act, the person shall pay the amount immediately.

Marginal note:Failure to pay

(2) If a person fails to pay an amount as required, the Minister may direct that the goods and chattels of the person be seized and subsections 97.32(2) to (5) apply.

Collection Restrictions

Marginal note:Collection action delayed

97.34 (1) If a person is liable for the payment of an amount under this Act, if an amount is demanded in a notice served under section 109.3 or 124, or if an amount is demanded under paragraph 133(1)(c) or subsection 133(1.1) in a notice served under subsection 131(2), the Minister must not, for the purpose of collecting the amount, take the following actions until the ninety-first day after the day notice is given to the debtor:

(a) commence legal proceedings in a court;

(b) certify the amount under section 97.24;

(c) require the retention of the amount by way of deduction or set-off under section 97.26;

(d) require a person or institution to make a payment under section 97.28;

(e) require a person to turn over moneys under subsection 97.31(1); or

(f) give a notice, issue a certificate or make a direction under subsection 97.32(1).

Marginal note:Appeal to Federal Court

(2) If a person has appealed a decision of the Minister to the Federal Court under section 97.23 or 135, the Minister must not take any action described in subsection (1) to collect the amount in controversy before the date of the decision of the Court or the day on which the person discontinues the appeal.

Marginal note:Reference to Canadian International Trade Tribunal

(3) If the Commissioner has referred a question to the Canadian International Trade Tribunal under section 70, the Minister must not take any action described in subsection (1) to collect the amount in controversy before the day on which the question is determined by the Tribunal.

Marginal note:Effect of appeal

(4) If a person has made a request under section 60 or 129 or has appealed under section 67 or 68 and the person agrees in writing with the Minister to delay proceedings on the request or appeal, as the case may be, until judgment has been given in another action before the Federal Court, the Canadian International Trade Tribunal or the Supreme Court of Canada, in which action the issue is the same or substantially the same as that raised in the request or appeal of the person, the Minister may take any of the actions described in subsection (1) for the purpose of collecting the amount payable, or a part of the amount payable, determined in a manner consistent with the decision or judgment in the other action at any time after the Minister notifies the person in writing that

(a) the decision of the Canadian International Trade Tribunal or Federal Court in that action has been mailed to the Minister;

(b) judgment has been pronounced by the Federal Court of Appeal in that action; or

(c) judgment has been delivered by the Supreme Court of Canada in that action.

Marginal note:Effect of taking security

(5) The Minister must not, for the purpose of collecting an amount payable, or a part of an amount payable, under this Act, take any of the actions described in subsection (1) if a person has given security to the Minister when requesting or appealing from a decision of the Commissioner or Minister.

Marginal note:Authorization to proceed immediately

97.35 (1) Despite section 97.34, if, on ex parte application by the Minister, a judge is satisfied that there are reasonable grounds to believe that the collection of all or any part of an amount assessed or demanded under this Act would be jeopardized by a delay in the collection of that amount, the judge shall, on any terms that the judge considers reasonable in the circumstances, authorize the Minister to immediately take any action described in that section to collect the amount.

Marginal note:Notice not sent

(2) An authorization may be granted by a judge notwithstanding that a notice in respect of the amount has not been sent to the debtor at or before the time the application is made if the judge is satisfied that the receipt of the notice by the debtor would likely further jeopardize the collection of the amount and, for the purposes of sections 97.22, 97.24, 97.26, 97.28, 97.31 and 97.32, the amount in respect of which an authorization is granted is deemed to be an amount payable under this Act.

Marginal note:Affidavits

(3) Statements contained in an affidavit filed in the context of an application made under this section may be based on belief but must include the grounds for the belief.

Marginal note:Service of authorization

(4) An authorization must be served by the Minister on the debtor within 72 hours after it is granted, except if the judge orders the authorization to be served at some other time specified in the authorization, and, if a notice has not been sent to the debtor at or before the time of the application, the notice is to be served together with the authorization.

Marginal note:How service effected

(5) Service on a debtor must be effected by personal service or in accordance with the directions of a judge.

Marginal note:Application to judge for direction

(6) If service on a debtor cannot reasonably otherwise be effected as and when required under this section, the Minister may, as soon as is practicable, apply to a judge for further direction.

Marginal note:Review of authorization

(7) If a judge of a court has granted an authorization, the debtor may, on six clear days notice to the Deputy Attorney General of Canada, apply to a judge of the court to review the authorization.

Marginal note:Limitation period for review application

(8) An application under subsection (7) must be made

(a) within thirty days after the day on which the authorization was served on the debtor in accordance with this section; or

(b) within any further time that a judge may allow, on being satisfied that the application was made as soon as was practicable.

Marginal note:Hearing in camera

(9) An application may, on request of the debtor, be heard in camera, if the debtor establishes to the satisfaction of the judge that the circumstances of the case justify in camera proceedings.

Marginal note:Disposition of application

(10) On an application, the judge is to determine the question summarily and may confirm, set aside or vary the authorization and make any other order that the judge considers appropriate.

Marginal note:Directions

(11) If any question arises as to the course to be followed in connection with anything done or being done under this section and there is no direction in this section in respect of the matter, a judge may give any direction in respect of the matter that, in the opinion of the judge, is appropriate.

Marginal note:No appeal from review order

(12) No appeal lies from an order of a judge made under subsection (10).

Trustees, Receivers and Personal Representatives

Marginal note:Bankruptcies

97.36 (1) The following rules apply to a person who is a bankrupt:

(a) the trustee in bankruptcy is the agent of the bankrupt and any act performed by the trustee in the administration of the estate of the bankrupt or in the carrying on of any business of the bankrupt is deemed to have been made by the trustee as agent of the bankrupt;

(b) the estate of the bankrupt is not a trust or an estate;

(c) the property and money of the bankrupt immediately before the day of the bankruptcy does not pass to or vest in the trustee in bankruptcy on the receiving order being made or the assignment in bankruptcy being filed but remains vested in the bankrupt;

(d) the trustee in bankruptcy, and not the bankrupt, is liable for the payment of all amounts (other than amounts that relate solely to activities in which the bankrupt begins to engage on or after the day of the bankruptcy and to which the bankruptcy does not relate) that become payable by the bankrupt under this Act during the period beginning on the day immediately after the day the trustee became the trustee in bankruptcy of the bankrupt and ending on the day the discharge of the trustee is granted under the Bankruptcy and Insolvency Act, except that

(i) the trustee is liable for the payment of amounts that became payable by the bankrupt after the day of the bankruptcy only to the extent of the property and money of the bankrupt in possession of the trustee available to satisfy the liability, and

(ii) the trustee is not liable for the payment of any amount for which a receiver is liable under section 97.37,

(e) if, on or after the day of bankruptcy, the bankrupt begins to engage in particular activities to which the bankruptcy does not relate, the particular activities are deemed to be separate from the activities of the person to which the bankruptcy relates as though the particular activities were activities of a separate person;

(f) subject to paragraph (h), the trustee in bankruptcy shall perform all the obligations under this Act of the bankrupt in respect of the activities of the bankrupt to which the bankruptcy relates for the period beginning on the day immediately after the day of bankruptcy and ending on the day the discharge of the trustee is granted under the Bankruptcy and Insolvency Act;

(g) subject to paragraph (h), if the bankrupt has not on or before the day of bankruptcy fulfilled all of their obligations under this Act in respect of any activities of the bankrupt on or before the day of bankruptcy, the trustee in bankruptcy shall fulfil those obligations, unless the Minister waives in writing the requirement for the trustee to do so;

(h) if there is a receiver with authority in respect of a business, a property, affairs or assets of the bankrupt, the trustee in bankruptcy is not required to perform the obligations of the bankrupt under this Act to the extent that the receiver is required under section 97.37 to perform those obligations; and

(i) the property and money held by the trustee in bankruptcy for the bankrupt on the day an order of absolute discharge of the bankrupt is granted under the Bankruptcy and Insolvency Act does not pass to the bankrupt on the order being granted but is held by and vested in the bankrupt continuously since the day it was acquired by the bankrupt or the trustee, as the case may be.

Definition of “bankrupt”

(2) In this section, “bankrupt” has the same meaning as in subsection 2(1) of the Bankruptcy and Insolvency Act.

Marginal note:Definitions

97.37 (1) The definitions in this subsection apply in this section.

“business”

« entreprise »

“business” includes a part of a business.

“relevant assets”

« actif pertinent »

“relevant assets” of a receiver means

(a) if the receiver’s authority relates to all the properties, businesses, affairs and assets of a person, all those properties, businesses, affairs and assets; and

(b) if the receiver’s authority relates to only part of the properties, businesses, affairs or assets of a person, that part of the properties, businesses, affairs or assets, as the case may be.

Marginal note:Receivers

(2) The following rules apply to a receiver who on a particular day is vested with the authority to manage, operate, liquidate or wind up any business or property, or to manage and care for the affairs and assets, of a person:

(a) the receiver is an agent of the person and any act performed by the receiver in respect of the relevant assets of the receiver is deemed to have been performed, as the case may be, by the receiver as agent on behalf of the person;

(b) the receiver is not a trustee of the estate of the person or any part of the estate of the person;

(c) if the relevant assets of the receiver are a part and not all of the person’s businesses, properties, affairs or assets, the relevant assets of the receiver are deemed to be, throughout the period during which the receiver is acting as receiver of the person, separate from the remainder of the businesses, properties, affairs or assets of the person as though the relevant assets were businesses, properties, affairs or assets, as the case may be, of a separate person;

(d) the person and the receiver are jointly and severally or solidarily liable for the payment of all amounts that become payable by the person under this Act before or during the period during which the receiver is acting as receiver of the person to the extent that the amounts can reasonably be considered to relate to the relevant assets of the receiver or to the businesses, properties, affairs or assets of the person that would have been the relevant assets of the receiver if the receiver had been acting as receiver of the person at the time the amounts became payable except that

(i) the receiver is liable for the payment of amounts that became payable before that period only to the extent of the property and money of the person in possession or under the control and management of the receiver after

(A) satisfying the claims of creditors whose claims ranked, on the particular day, in priority to the claim of the Crown in respect of the amounts, and

(B) paying any amounts that the receiver is required to pay to a trustee in bankruptcy of the person, and

(ii) the payment by the person or the receiver of an amount in respect of the liability discharges the joint liability to the extent of that amount;

(e) the receiver shall perform all the obligations, in respect of the relevant assets of the receiver for the period during which the receiver is acting as receiver, that are required under this Act to be performed by the person, as if the relevant assets were the only properties, businesses, affairs and assets of the person; and

(f) if the person has not on or before the particular day fulfilled their obligations under this Act before the period during which the receiver was acting as receiver, the receiver shall fulfil those obligations for that period that relate to the businesses, properties, affairs or assets of the person that would have been the relevant assets of the receiver if the receiver had been acting as receiver of the person during that period, unless the Minister waives in writing the requirement for the receiver to do so.

Marginal note:Definitions

97.38 (1) The definitions in this subsection apply in this section and in section 97.39.

“trust”

« fiducie »

“trust” includes the estate of a deceased individual.

“trustee”

« fiduciaire »

“trustee” includes the personal representative of a deceased individual, but does not include a receiver.

Marginal note:Trustee’s liability

(2) Subject to subsection (3), each trustee of a trust is liable to satisfy every obligation imposed on the trust under this Act, whether the obligation was imposed during or before the period during which the trustee acts as trustee of the trust, but the satisfaction of an obligation of a trust by one of the trustees of the trust discharges the liability of all other trustees of the trust to satisfy that obligation.

Marginal note:Joint and several or solidary liability

(3) A trustee of a trust is jointly and severally or solidarily liable with the trust and each of the other trustees, if any, for the payment of all amounts that become payable by the trust under this Act before or during the period during which the trustee acts as trustee of the trust except that

(a) the trustee is liable for the payment of amounts that became payable before that period only to the extent of the property and money of the trust under the control of the trustee; and

(b) the payment by the trust or the trustee of an amount in respect of the liability discharges the joint liability to the extent of that amount.

Marginal note:Waiver

(4) The Minister may, in writing, waive the requirement for the personal representative of a deceased individual to fulfil the obligations under this Act in respect of the activities of the deceased individual that occurred on or before the day the individual died.

Marginal note:Activities of a trustee

(5) For the purposes of this Act, if a person acts as trustee of a trust, anything done by the person in the person’s capacity as trustee of the trust is deemed to have been done by the trust and not by the person.

Definition of “representative”

97.39 (1) In this section, “representative” means a person, other than a trustee in bankruptcy or a receiver, who is administering, winding up, controlling or otherwise dealing with any property, business, commercial activity or estate of another person.

Marginal note:Certificates for receivers

(2) Every receiver shall, before distributing to any person any property or money under the control of the receiver in the receiver’s capacity as receiver, obtain a certificate from the Minister certifying that the following amounts have been paid or security for the payment of the amounts has been accepted by the Minister:

(a) amounts that the person is or can reasonably be expected to become liable to pay under this Act at or before the time the distribution is made; and

(b) amounts that the receiver is or can reasonably be expected to become liable to pay in the receiver’s capacity as receiver.

Marginal note:Certificates for representatives

(3) Every representative shall, before distributing to any person any property or money under the control of the representative in the representative’s capacity as representative, obtain a certificate from the Minister certifying that the following amounts have been paid or that security for the payment of the amounts has been accepted by the Minister:

(a) amounts that the person is or can reasonably be expected to become liable to pay under this Act at or before the time the distribution is made; and

(b) amounts that the representative is or can reasonably be expected to become liable to pay in the representative’s capacity as representative.

Marginal note:Liability for failure to obtain certificate

(4) Any receiver or representative who distributes property or money without obtaining a certificate in respect of the amounts referred to in subsection (2) or (3) is personally liable for the payment of those amounts to the extent of the value of the property or money so distributed.

Amalgamations and Windings-up

Marginal note:Amalgamations

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.

Marginal note:Exception

(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.

Marginal note:Winding-up

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.

Partnerships

Marginal note:Partnerships

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.

Marginal note:Joint and several or solidary liability

(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

(a) the payment of all amounts that become payable by the partnership under this Act before or during the period during which the member is a member of the partnership or, if the member was a member of the partnership at the time the partnership was dissolved, after the dissolution of the partnership, except that

(i) the member is liable for the payment of amounts that become payable before that period only to the extent of the property and money that is regarded as property or money of the partnership in accordance with the laws of the province governing the partnership, and

(ii) the payment by the partnership or by any member of the partnership of an amount in respect of the liability discharges the joint liability to the extent of that amount; and

(b) all other obligations under this Act that arose before or during the period for which the partnership is liable or, if the member was a member of the partnership at the time the partnership was dissolved, the obligations that arose upon or as a consequence of the dissolution.

Unincorporated Bodies

Marginal note:Compliance by unincorporated bodies

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:

(a) every member of the body holding office as president, chairperson, treasurer, secretary or similar officer of the body;

(b) if there are no members referred to in paragraph (a), every member of any committee having management of the affairs of the body; and

(c) if there are no members referred to in paragraph (a) or (b), every member of the body.

The payment of the amount or the fullfilment of the requirement by a member is deemed to be compliance with the requirement.

Assessments, Objections and Appeals

Assessments

Marginal note:Assessments — garnishments and non-arms length transfers

97.44 (1) The Minister may assess any amount that a person is liable to pay

(a) under section 97.28, before the expiry of four years after the notice from the Minister requiring the payment is issued to the person; and

(b) under section 97.29, at any time.

The Minister may reassess the amount or make an additional assessment.

Marginal note:Interest

(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.

Marginal note:Exception

(3) Paragraph (1)(a) does not apply in respect of a reassessment of a person made

(a) to give effect to a decision on an objection or appeal; or

(b) with the consent in writing of the person to dispose of an appeal.

Marginal note:When assessment may be made

(4) An assessment under paragraph (1)(a) may be made at any time if the person to be assessed has

(a) made a misrepresentation that is attributable to the person’s neglect, carelessness or wilful default;

(b) committed fraud in supplying, or failing to supply, any information under this Act; or

(c) filed a waiver under subsection (5) that is in effect at that time.

Marginal note:Waiver

(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.

Marginal note:Revoking waiver

(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.

Marginal note:Liability not affected

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.

Marginal note:Assessment deemed valid

(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.

Marginal note:Irregularities

(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.

Marginal note:Notice of assessment

97.46 After making an assessment, the Minister must send to the person assessed a notice of assessment.

Marginal note:Assessment before collection

97.47 (1) The Minister may not collect an amount under section 97.44 unless that amount has been assessed.

Marginal note:Payment of remainder

(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.

Marginal note:Security if objection or appeal

(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.

Objections and Appeals

Marginal note:Objection to assessment

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.

Marginal note:Issues to be decided

(2) If a person objects to an assessment, the notice of objection must

(a) reasonably describe each issue to be decided;

(b) specify in respect of each issue the relief sought, expressed as the change in any amount that is relevant for the purposes of the assessment; and

(c) provide the facts and reasons relied on by the person in respect of each issue.

Marginal note:Late compliance

(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.

Marginal note:Limitation on objections

(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

(a) only if the person complied with subsection (2) in the notice with respect to that issue; and

(b) only with respect to the relief sought in respect of that issue as specified by the person in the notice.

Marginal note:Application of subsection (4)

(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.

Marginal note:Limitation on objections

(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.

Marginal note:Acceptance of objection

(7) The Minister may accept a notice of objection even if it was not filed in the prescribed manner.

Marginal note:Consideration of objection

(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.

Marginal note:Waiving reconsideration

(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.

Marginal note:Notice of decision

(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.

Marginal note:Appeal to the Tax Court of Canada

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,

(a) appeal to the Tax Court of Canada; or

(b) if an appeal has already been instituted in respect of the matter, amend the appeal by joining to it an appeal in respect of the reassessment or additional assessment in any manner and on any terms that the Court directs.

Marginal note:Extension of time by Minister

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.

Marginal note:Contents of application

(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.

Marginal note:How application made

(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.

Marginal note:Exception

(4) The Minister may accept the application even if it was not delivered or mailed to the person or place specified in subsection (3).

Marginal note:Duties of Minister

(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.

Marginal note:Date of objection if application granted

(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.

Marginal note:When order to be made

(7) No application may be granted under this section unless

(a) the application is made within one year after the expiration of the time otherwise limited by this Part for objecting; and

(b) the person demonstrates that

(i) within the time otherwise limited by this Part for objecting, the person was unable to act or to give a mandate to act in the person’s name, or the person had a bona fide intention to object to the assessment,

(ii) it would be just and equitable to grant the application, and

(iii) the application was made as soon as circumstances permitted.

Marginal note:Extension of time by Tax Court of Canada

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

(a) the Minister has refused the application; or

(b) ninety days have elapsed after service of the application and the Minister has not notified the person of the Minister’s decision.

If paragraph (a) applies, the application under this subsection must be made within thirty days after the application is refused.

Marginal note:How application made

(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).

Marginal note:Copy to the Commissioner

(3) After receiving the application, the Tax Court of Canada must send a copy of it to the office of the Commissioner.

Marginal note:Powers of Court

(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.

Marginal note:When application to be granted

(5) No application may be granted under this section unless

(a) the application was made under subsection 97.5(1) within one year after the expiration of the time set out in this Part for objecting; and

(b) the person demonstrates that

(i) within the time otherwise limited by this Part for objecting, the person was unable to act or to give a mandate to act in the person’s name, or the person had a bona fide intention to object to the assessment,

(ii) it would be just and equitable to grant the application, and

(iii) the application was made under subsection 97.5(1) as soon as circumstances permitted.

Marginal note:Extension of time to appeal

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.

Marginal note:Contents of application

(2) The application must set out the reasons why the appeal was not taken on time.

Marginal note:How application made

(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.

Marginal note:Copy to Deputy Attorney General of Canada

(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.

Marginal note:When order to be made

(5) No order may be made under this section unless

(a) the application was made within one year after the expiration of the time otherwise limited by this Part for appealing; and

(b) the person demonstrates that

(i) within the time otherwise limited by this Part for appealing, the person was unable to act or to give a mandate to act in the person’s name, or the person had a bona fide intention to appeal,

(ii) it would be just and equitable to grant the application,

(iii) the application was made as soon as circumstances permitted, and

(iv) there are reasonable grounds for appealing from an assessment.

Marginal note:Appeal

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

(a) the Minister has confirmed the assessment or has reassessed; or

(b) 180 days have elapsed after the filing of the notice of objection and the Minister has not notified the person that the Minister has vacated or confirmed the assessment or has reassessed.

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).

Marginal note:Limitation on appeals to the Tax Court of Canada

97.54 (1) Despite section 97.49 and 97.53, a person may appeal to the Tax Court of Canada only with respect to

(a) an issue in respect of which the person has complied with subsection 97.48(2) in the notice of objection; or

(b) an issue described in subsection 97.48(5) if the person was not required to file a notice of objection to the assessment that gave rise to the issue.

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.

Marginal note:No right of appeal

(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.

Marginal note:Institution of appeal

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.

Marginal note:Notice to Commissioner

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.

Marginal note:Notice, etc., forwarded to Tax Court of Canada

(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.

Marginal note:Disposition of appeal

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.

Marginal note:References to Tax Court of Canada

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.

Marginal note:Time during consideration not to count

(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

(a) the four-year period referred to in paragraph 97.44(1)(a);

(b) the time for service of a notice of objection to an assessment under section 97.48; or

(c) the time within which an appeal may be instituted under section 97.53.

(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.

59. (1) Paragraph 99(1)(a) of the French version of the Act is replaced by the following:

a) tant qu’il n’y a pas eu dédouanement, examiner toutes marchandises importées et en ouvrir ou faire ouvrir tous colis ou contenants, ainsi qu’en prélever des échantillons en quantités raisonnables;

(2) Paragraph 99(1)(b) of the Act is replaced by the following:

(b) at any time up to the time of release, examine any mail that has been imported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods referred to in the Customs Tariff, or any goods the importation of which is prohibited, controlled or regulated under any other Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;

(3) Paragraph 99(1)(c) of the French version of the Act is replaced by the following:

c) tant qu’il n’y a pas eu exportation, examiner toutes marchandises déclarées conformément à l’article 95 et en ouvrir ou faire ouvrir tous colis ou contenants, ainsi qu’en prélever des échantillons en quantités raisonnables;

(4) Subsection 99(1) of the Act is amended by adding the following after paragraph (c):

(c.1) at any time up to the time of exportation, examine any mail that is to be exported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods the exportation of which is prohibited, controlled or regulated under any Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;

Marginal note:1988, c. 65, s. 79

(5) Paragraphs 99(1)(d) to (f) of the French version of the Act are replaced by the following:

d) examiner les marchandises au sujet desquelles il soupçonne, pour des motifs raisonnables, qu’il y a eu une erreur de classement tarifaire, de valeur en douane ou d’indication quantitative dans la déclaration en détail ou la déclaration provisoire dont elles ont fait l’objet conformément à l’article 32 ou pour lesquelles est demandé un remboursement ou un drawback en vertu de la présente loi ou du Tarif des douanes, ainsi qu’en prélever des échantillons en quantités raisonnables;

d.1) examiner les marchandises au sujet desquelles il soupçonne, pour des motifs raisonnables, qu’il y a eu une erreur sur leur origine dans la déclaration en détail ou la déclaration provisoire dont elles ont fait l’objet conformément à l’article 32, ainsi qu’en prélever des échantillons en quantités raisonnables;

e) examiner les marchandises dont il soupçonne, pour des motifs raisonnables, qu’elles ont donné ou pourraient donner lieu à une infraction soit à la présente loi, soit à toute autre loi fédérale à l’égard de laquelle il a des fonctions d’exécution ou de contrôle d’application, soit aux règlements d’application de ces lois, ainsi qu’en ouvrir ou faire ouvrir tous colis ou contenants;

f) s’il soupçonne, pour des motifs raisonnables, qu’un moyen de transport ou que les marchandises se trouvant à son bord ont donné ou pourraient donner lieu à une infraction visée à l’alinéa e), immobiliser le moyen de transport, monter à son bord et le fouiller, examiner les marchandises et en ouvrir ou faire ouvrir tous colis ou contenants, ainsi que faire conduire le moyen de transport à un bureau de douane ou à tout autre lieu indiqué pour ces opérations.

(6) Subsections 99(2) and (3) of the Act are replaced by the following:

Marginal note:Exception for mail

(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 Convention.

Marginal note:Exception for mail

(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.

60. The Act is amended by adding the following after section 99:

Marginal note:Power to stop

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.

Marginal note:Powers of officer

(2) An officer who stops a person referred to in subsection (1) may

(a) question the person; and

(b) in respect of goods imported by that person, examine them, cause to be opened any package or container of the imported goods and take samples of them in reasonable amounts.

Marginal note:Search of persons

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.

Marginal note:Search of prescribed persons

(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.

Marginal note:Person taken before senior officer

(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.

Marginal note:Review by senior officer

(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.

Marginal note:Limitations on searches

(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.

Marginal note:Non-intrusive examination of goods

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.

Marginal note:Other examination of goods

(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.

Marginal note:Examination of abandoned goods

(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.

Marginal note:Regulations

99.4 The Governor in Council may make regulations

(a) prescribing persons or classes of persons who may be searched under subsection 99.2(2);

(b) respecting, for the purposes of subsection 99.2(2), the circumstances and manner in which searches are to be conducted and the types of searches that may be conducted; and

(c) respecting, for the purposes of subsection 99.3(1), the manner in which examinations are to be conducted and the machines, instruments, devices or other apparatuses or classes of machines, instruments, devices or apparatuses that may be used to conduct examinations.

Marginal note:1992, c. 28, s. 25(1); 1995, c. 41, ss. 27, 28; 1999, c. 17, s. 124

61. Sections 107 and 108 of the Act are replaced by the following:

Marginal note:Definitions

107. (1) The definitions in this subsection apply in this section.

“customs information”

« renseignement douanier »

“customs information” means information of any kind and in any form that

(a) relates to one or more persons and is obtained by or on behalf of the Minister for the purposes of this Act or the Customs Tariff; or

(b) is prepared from information described in paragraph (a).

“official”

« fonctionnaire »

“official” means a person who

(a) is or was employed in the service of Her Majesty in right of Canada or of a province;

(b) occupies or occupied a position of responsibility in the service of Her Majesty in right of Canada or of a province; or

(c) is or was engaged by or on behalf of Her Majesty in right of Canada or of a province.

“specified person”

« personne déterminée »

“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.

Marginal note:Prohibition — provision or use of customs information

(2) Except as authorized under this section, no person shall

(a) knowingly provide, or allow to be provided, to any person any customs information;

(b) knowingly allow any person to have access to any customs information; or

(c) knowingly use customs information.

Marginal note:Authorized use of customs information by official

(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).

Marginal note:Authorized provision of information

(4) An official may provide, allow to be provided or provide access to customs information if the information

(a) will be used solely in or to prepare for criminal proceedings commenced under an Act of Parliament;

(b) will be used solely in or to prepare for any legal proceedings relating to the administration or enforcement of an international agreement relating to trade, this Act, the Customs Tariff, the Special Import Measures Act, any other Act of Parliament or law of a province that provides for the imposition or collection of a tax or duty or Part 2 of the Proceeds of Crime (Money Laundering) Act, before

(i) a court of record, including a court of record in a jurisdiction outside Canada,

(ii) an international organization, or

(iii) a dispute settlement panel or an appellate body created under an international agreement relating to trade;

(c) may reasonably be regarded as necessary solely for a purpose relating to the administration or enforcement of this Act, the Canada Pension Plan, the Customs Tariff, the Employment Insurance Act, the Excise Act, the Excise Tax Act, the Export and Import Permits Act, the Income Tax Act, the Special Import Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) Act by an official of the Agency;

(d) may reasonably be regarded as necessary solely for a purpose relating to the administration or enforcement of this Act, the Excise Act or the Export and Import Permits Act by a member of the Royal Canadian Mounted Police;

(e) may reasonably be regarded as necessary solely for a purpose relating to the life, health or safety of an individual or to the environment in Canada or any other country;

(f) will be used solely for a purpose relating to the supervision, evaluation or discipline of a specified person by Her Majesty in right of Canada in respect of a period during which the person was employed or engaged by, or occupied a position of responsibility in the service of, Her Majesty in right of Canada to administer or enforce this Act, the Customs Tariff, the Special Import Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) Act to the extent that the information is relevant for that purpose;

(g) is reasonably regarded by the official to be information that does not directly or indirectly identify any person; or

(h) is reasonably regarded by the official to be information relating to the national security or defence of Canada.

Marginal note:Provision of information to certain persons

(5) An official may provide, allow to be provided or provide access to customs information to the following persons:

(a) a peace officer having jurisdiction to investigate an alleged offence under any Act of Parliament or of the legislature of a province subject to prosecution by indictment, the Attorney General of Canada and the Attorney General of the province in which proceedings in respect of the alleged offence may be taken, if that official believes on reasonable grounds that the information relates to the alleged offence and will be used in the investigation or prosecution of the alleged offence, solely for those purposes;

(b) a person that is otherwise legally entitled to the information by reason of an Act of Parliament, solely for the purposes for which that person is entitled to the information;

(c) an official solely for the purposes of developing, administering or enforcing an Act of Parliament or developing or implementing a policy related to an Act of Parliament if the information relates to

(i) goods, the importation, exportation or in-transit movement of which is or may be prohibited, controlled or regulated under that Act,

(ii) a person who that official has reasonable grounds to believe may have committed an offence under that Act in respect of goods imported or exported by that person, or

(iii) goods that may be evidence of an offence under that Act;

(d) an official, solely for the purpose of administering or enforcing an Act of the legislature of a province, if the information relates to goods that are subject to import, in-transit or export controls or taxation upon importation into the province under that Act;

(e) an official of a participating province, as defined in subsection 123(1) of the Excise Tax Act, or an official of the province of Quebec, if the information relates to the administration or enforcement of Part IX of that Act in that province, solely for that purpose;

(f) an official solely for the purpose of the formulation or evaluation of fiscal or trade policy or the development of a remission order under an Act of Parliament;

(g) an official solely for the purpose of setting off, against any sum of money that may be due to or payable by Her Majesty in right of Canada, a debt due to

(i) Her Majesty in right of Canada, or

(ii) Her Majesty in right of a province on account of taxes payable to the province if an agreement exists between Canada and the province under which Canada is authorized to collect taxes on behalf of the province;

(h) counsel, as defined in subsection 84(4) of the Special Import Measures Act, in accordance with subsection 84(3) of that Act and subject to subsection 84(3.1) of that Act, except that the word “information” in those subsections is to be read as a reference to the words “customs information”;

(i) an official of the Department of Human Resources Development solely for the purpose of administering or enforcing the Employment Insurance Act, if the information relates to the movement of people into and out of Canada;

(j) an official of the Department of Citizenship and Immigration solely for the purpose of administering or enforcing the Immigration Act, if the information relates to the movement of people into and out of Canada;

(k) an official of the Financial Transactions and Reports Analysis Centre of Canada solely for the purpose of administering or enforcing the Proceeds of Crime (Money Laundering) Act;

(l) a person solely for the purpose of determining any entitlement, liability or obligation of the person under this Act or the Customs Tariff including the person’s entitlement to any refund, relief, drawback or abatement under those Acts;

(m) any person, if the information is required to comply with a subpoena or warrant issued or an order made by a court of record in Canada;

(n) any person, if the information is required to comply with a subpoena or warrant issued or an order made by a court of record outside of Canada, solely for the purposes of criminal proceedings; and

(o) prescribed persons or classes of persons, in prescribed circumstances for prescribed purposes, solely for those purposes.

Marginal note:Provision of customs information by Minister

(6) The Minister may provide, allow to be provided or provide access to customs information to any person if

(a) the information may not otherwise be provided, allowed to be provided or provided access to under this section and, in the Minister’s opinion, the public interest in providing the information clearly outweighs any invasion of privacy, or any material financial loss or prejudice to the competitive position of the person to whom the information relates, that could result from the provision of the information; or

(b) in the Minister’s opinion, providing the information would clearly benefit the individual to whom the information relates.

Marginal note:Notification of Privacy Commissioner

(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.

Marginal note:Providing customs information to other governments

(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.

Marginal note: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

(a) to that particular person;

(b) to a person authorized to transact business under this Act or the Customs Tariff as that particular person’s agent, at the request of the particular person and on receipt of such fee, if any, as is prescribed; and

(c) with the consent of that particular person, to any other person.

Marginal note: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.

Marginal note: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

(a) holding a hearing in camera;

(b) banning the publication of the information;

(c) concealing the identity of the person to whom the information relates; and

(d) sealing the records of the proceeding.

Marginal note: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

(a) to the court of appeal of the province in which the order or direction is made, in the case of an order or direction made by a court or other tribunal established under the laws of the province, whether or not that court or tribunal is exercising a jurisdiction conferred by the laws of Canada; or

(b) to the Federal Court of Appeal, in the case of an order or direction made by a court or other tribunal established under the laws of Canada.

Marginal note: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.

Marginal note:Stay

(14) An appeal stays the operation of the order or direction appealed from until judgment in the appeal is pronounced.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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:

Marginal note: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.

Marginal note: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.

Marginal note:Designation by regulation

(3) The Governor in Council may make regulations

(a) designating any provisions of this Act, the Customs Tariff or the Special Import Measures Act or of any regulation made under any of those Acts; and

(b) establishing short-form descriptions of the provisions designated under paragraph (a) and providing for the use of those descriptions.

Marginal note:1993, c. 25, s. 80; 1995, c. 41, s. 30

63. Section 109.3 of the Act is replaced by the following:

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:1993, c. 25, s. 80

64. Section 109.5 of the Act is replaced by the following:

Marginal note: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.

Marginal note: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:

Marginal note: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.

Marginal note: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,

(a) the person from whom it was seized agrees to its further detention for a specified period;

(b) a justice of the peace is satisfied on application that, having regard to the circumstances, its further detention for a specified period is warranted and he or she so orders; or

(c) judicial proceedings are instituted in which the seized record may be required.

66. Section 123 of the Act is replaced by the following:

Marginal note: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):

Marginal note: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”.

Marginal note: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.

Marginal note: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):

Marginal note: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.

Marginal note:1993, c. 25, s. 81

68. Section 127 of the Act is replaced by the following:

Marginal note: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.

Marginal note: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

(a) the Minister is satisfied that there was no contravention; or

(b) there was a contravention but the Minister considers that there was an error with respect to the amount assessed, collected, demanded or taken as security and that the amount should be reduced.

Marginal note: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.

Marginal note:1993, c. 25, s. 82

69. Subsection 129(1) of the Act is replaced by the following:

Marginal note: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:

(a) any person from whom goods or a conveyance is seized under this Act;

(b) any person who owns goods or a conveyance that is seized under this Act;

(c) any person from whom money or security is received pursuant to section 117, 118 or 119 in respect of goods or a conveyance seized under this Act; or

(d) any person on whom a notice is served under section 109.3 or 124.

70. The Act is amended by adding the following after section 129:

Marginal note: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.

Marginal note:Reasons

(2) An application must set out the reasons why the request was not made on time.

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: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.

Marginal note:Conditions for granting application

(5) The application may not be granted unless

(a) it is made within one year after the expiration of the time provided in section 129; and

(b) the applicant demonstrates that

(i) within the time provided in section 129, the applicant was unable to request a decision or to instruct another person to request a decision on the applicant’s behalf or the applicant had a bona fide intention to request a decision,

(ii) it would be just and equitable to grant the application, and

(iii) the application was made as soon as circumstances permitted.

Marginal note: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

(a) the Minister dismisses that application; or

(b) ninety days have expired after the application was made and the Minister has not notified the person of a decision made in respect of it.

If paragraph (a) applies, the application under this subsection must be made within ninety days after the application is dismissed.

Marginal note: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.

Marginal note: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.

Marginal note:Conditions for granting application

(4) The application may not be granted unless

(a) the application under subsection 129.1(1) was made within one year after the expiration of the time provided in section 129; and

(b) the person making the application demonstrates that

(i) within the time provided in section 129 for making a request for a decision of the Minister, the person was unable to act or to instruct another person to act in the person’s name or had a bona fide intention to request a decision,

(ii) it would be just and equitable to grant the application, and

(iii) the application was made as soon as circumstances permitted.

71. Subsection 130(3) of the Act is replaced by the following:

Marginal note: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.

Marginal note: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:

(c) in the case of a penalty assessed under section 109.3 against a person for failure to comply with subsection 109.1(1) or (2) or a provision that is designated under subsection 109.1(3), whether the person so failed to comply.

(2) Section 131 of the Act is amended by adding the following after subsection (1):

Marginal note: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.

Marginal note:1993, c. 25, s. 85

73. Paragraph 132(1)(b) of the Act is replaced by the following:

(b) where, as a result of a decision made by the Minister under paragraph 131(1)(c), the Minister decides that a penalty that was assessed under section 109.3 is not justified by the facts or the law, the Minister shall forthwith cancel the assessment of the penalty and authorize the return of any money paid on account of the penalty and any interest that was paid under section 109.5 in respect of the penalty.

Marginal note:1993, c. 25, s. 86(2)

74. (1) Subsection 133(1.1) of the Act is replaced by the following:

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:1993, c. 25, s. 86(3)

(2) Subsection 133(7) of the Act is replaced by the following:

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.

Marginal note: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:

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 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.

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 and British Columbia, the Yukon Territory 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 Provinces of Prince Edward Island and Newfoundland, 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.

76. Subsection 140(1) of the Act is replaced by the following:

Marginal note: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.

Marginal note:1999, c. 17, par. 127(m)

77. Section 141 of the Act is replaced by the following:

Marginal note: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

(a) in the case of goods or a conveyance the forfeiture of which has become final, the goods or conveyance, as the case may be, be given to the applicant; and

(b) in the case of a conveyance detained under subsection 97.25(2), the conveyance be given to the applicant.

Marginal note: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.

Marginal note: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).

Marginal note: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:

Marginal note:Members of partnerships

148.1 (1) For the purposes of this Act,

(a) a reference in any notice or other document to the firm name of a partnership is to be read as a reference to all the members of the partnership; and

(b) any notice or other document is deemed to have been provided to each member of a partnership if the notice or other document is mailed to, served on or otherwise sent to the partnership

(i) at its latest known address or place of business, or

(ii) at the latest known address

(A) if it is a limited partnership, of any member of the limited partnership whose liability as a member is not limited, or

(B) in any other case, of any member of the partnership.

Marginal note:Members of unincorporated bodies

(2) For the purposes of this Act,

(a) a reference in any notice or other document to the firm name of an unincorporated body is to be read as a reference to all the members of the body; and

(b) any notice or other document is deemed to have been provided to each member of an unincorporated body if the notice or other document is mailed to, served on or otherwise sent to the body at its latest known address or place of business.

80. The Act is amended by adding the following after section 149:

Marginal note:Proof of no appeal

149.1 An affidavit of an officer, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and has knowledge of the practice of the Agency and that an examination of the records shows that a notice of assessment under Part V.1 was mailed or otherwise sent to a person under this Act and that, after careful examination and search of the records, the officer has been unable to find that a notice of objection or of appeal from the assessment was received within the time allowed for the notice, is evidence of the statements contained in the affidavit.

Marginal note:Objection or appeal

149.2 If a person who is required under this Act to keep records serves a notice of objection or is a party to an appeal or reference under Part V.1, the person shall retain, until the objection, appeal or reference and any appeal from it is finally disposed of, every record that pertains to the subject-matter of the objection, appeal or reference.

Marginal note:1993, c. 44, s. 106; 1997, c. 36, s. 191

81. Section 159.1 of the Act is replaced by the following:

Marginal note:Offences re marking of goods

159.1 No person shall

(a) fail to mark imported goods in the manner referred to in section 35.01;

(b) mark imported goods in a deceptive manner so as to mislead another person as to the country of origin or geographic origin of the goods; or

(c) with intent to conceal the information given by or contained in the mark, alter, deface, remove or destroy a mark on imported goods made as required by the regulations made under subsection 19(2) of the Customs Tariff.

Marginal note:1993, c. 44, s. 107

82. (1) The portion of section 160 of the Act before paragraph (a) is replaced by the following:

Marginal note:General offence and punishment

160. (1) Every person who contravenes section 11, 12, 13, 15 or 16, subsection 20(1), section 31 or 40, subsection 43(2), 95(1) or (3), 103(3) or 107(2) or section 153, 155, 156 or 159.1 or commits an offence under section 159 or knowingly contravenes an order referred to in subsection 107(11)

(2) Section 160 of the Act is amended by adding the following after subsection (1):

Marginal note:Court order — subsection 43(2)

(2) If a person has been convicted by a court of an offence under subsection (1) for a contravention of subsection 43(2), the court may make any order that it considers appropriate in order to enforce compliance with that subsection.

83. Section 161 of the Act is replaced by the following:

Marginal note:Summary conviction offence and punishment

161. Every person who contravenes any of the provisions of this Act not otherwise provided for in section 160 is guilty of an offence punishable on summary conviction and liable to a fine of not more than twenty-five thousand dollars and not less than one thousand dollars or to imprisonment for a term not exceeding six months or to both fine and imprisonment.

Marginal note:1998, c. 7, s. 1

84. Subsections 163.5(1) and (2) of the Act are replaced by the following:

Marginal note:Powers of designated officers

163.5 (1) In addition to the powers conferred on an officer for the enforcement of this Act, a designated officer who is at a customs office and is performing the normal duties of an officer or is acting in accordance with section 99.1 has, in relation to a criminal offence under any other Act of Parliament, the powers and obligations of a peace officer under sections 495 to 497 of the Criminal Code, and subsections 495(3) and 497(3) of that Act apply to the designated officer as if he or she were a peace officer.

Marginal note:Impaired driving offences

(2) A designated officer who is at a customs office and is performing the normal duties of an officer or is acting in accordance with section 99.1 has the powers and obligations of a peace officer under sections 254 and 256 of the Criminal Code and may, on demanding samples of a person’s blood or breath under subsection 254(3) of that Act, require that the person accompany the officer, or a peace officer referred to in paragraph (c) of the definition “peace officer” in section 2 of that Act, for the purpose of taking the samples.

85. (1) Paragraph 164(1)(b) of the Act is replaced by the following:

(b) requiring, in any circumstances that may be prescribed, the owner or person in charge of a conveyance to give advance notice of the time and place of its arrival in Canada and any other information relating to its passengers and goods or its movement inside or outside Canada that may be prescribed, and prescribing the time within which and the manner in which the notice is to be given;

(2) Subsection 164(1) of the Act is amended by adding the following after paragraph (b):

(c) requiring the payment of costs incurred for the inspection of records held in a place outside of Canada and respecting the manner of determining those costs and the time and manner in which the costs must be paid;

Marginal note:1992, c. 28, s. 30(3); 1994, c. 47, s. 72; 1997, c. 14, ss. 47(2), (3)

(3) Subsections 164(3) and (4) of the Act are repealed.

RELATED AMENDMENTS

R.S., c. A-1Access to Information Act

86. Schedule II to the Access to Information Act is amended by replacing the reference to “section 107” opposite the reference to “Customs Act” with a reference to “sections 107 and 107.1”.

R.S., c. C-10Canada Post Corporation Act

87. (1) Section 42 of the Canada Post Corporation Act is amended by adding the following after subsection (1):

Marginal note:Submission of exported mail to customs officer

(1.1) On request of a customs officer, all mail leaving Canada for a place outside Canada that contains or is suspected to contain anything the exportation of which is prohibited, controlled, regulated or subject to reporting under the Customs Act or any other Act of Parliament shall be submitted by the Corporation to the customs officer.

(2) Subsection 42(3) of the Act is replaced by the following:

Marginal note:Mail subject to customs laws

(3) A customs officer shall deal with mail submitted to him or her under this section in accordance with the laws relating to customs and the importation and exportation of goods and, subject to those laws, shall deliver it to the addressee, on payment of any postage due, or return it to the Corporation.

1997, c. 36Customs Tariff

88. (1) Subsections 123(1) to (3) of the French version of the Customs Tariff are replaced by the following:

Marginal note:Intérêts

123. (1) Quiconque est astreint, en application du paragraphe 114(1), à payer une somme, sauf pour des droits perçus au titre de la Loi sur les mesures spéciales d’importation, paie, en plus de cette somme, des intérêts au taux déterminé, calculés sur les arriérés pour la période commençant le lendemain de l’octroi du remboursement ou du drawback et se terminant le jour de son paiement intégral.

Marginal note:Intérêts : contraventions ou réaffectations

(2) Sous réserve du paragraphe (4), quiconque est astreint, en application des paragraphes 118(1) ou (2), à payer une somme, sauf pour des droits perçus au titre de la Loi sur les mesures spéciales d’importation, paie, en plus de cette somme, des intérêts au taux qui est déterminé, calculés sur les arriérés pour la période commençant le jour où la somme devient exigible et se terminant le jour de son paiement intégral.

Marginal note:Intérêts : sous-produits ou résidus ou déchets vendables

(3) Sous réserve du paragraphe (4), quiconque est astreint, en application des articles 121 ou 122, à payer une somme, sauf pour des droits perçus au titre de la Loi sur les mesures spéciales d’importation, paie, en plus de cette somme, des intérêts au taux qui est déterminé, calculés sur les arriérés pour la période commençant le lendemain de la production des sous-produits ou des résidus ou déchets vendables et se terminant le jour de son paiement intégral.

(2) Subsections 123(5) and (6) of the Act are replaced by the following:

Marginal note:Computation of interest on certain duties

(5) A person who is liable under paragraph 118(1)(b) or section 121 or 122 to pay an amount in respect of duty levied under the Special Import Measures Act shall pay interest at the specified rate for the period beginning on the ninety-first day after the day the amount became payable and ending on the day the amount is paid in full, calculated on the amount of the balance outstanding.

Marginal note:Computation of interest on certain duties

(6) A person who is liable under section 98, subsection 114(1) or paragraph 118(2)(b) to repay the amount of a drawback or relief in respect of duty levied under the Special Import Measures Act and any interest on the drawback shall pay, in addition to those amounts, interest at the specified rate for the period beginning on the first day after the day the drawback was granted or the person failed to comply with a condition to which the relief was subject, as the case may be, and ending on the day those amounts are repaid in full, calculated on the amount of the balance outstanding.

89. Section 124 of the Act is replaced by the following:

Marginal note:Interest to be compounded

124. Interest computed at a prescribed rate or at a specified rate shall be compounded daily and, if interest computed in respect of an amount under a provision of this Act is unpaid on the day it would, but for this section, have ceased to be computed under that provision, interest at the specified rate, computed and compounded daily on the unpaid interest from that day to the day it is paid, shall be paid in the same manner as the provision requires the principal amount to be paid.

90. Subsection 127(2) of the Act is replaced by the following:

Marginal note:Interest on SIMA duty

(2) A person who, under a provision of this Part other than section 115, is granted a drawback or refund of an amount in respect of duty levied under the Special Import Measures Act shall be granted, in addition to the drawback or refund, interest on it at the prescribed rate for the period beginning on the ninety-first day after the day an application for the drawback or refund is made in accordance with this Part and ending on the day the drawback or refund is granted.

R.S., c. S-15Special Import Measures Act

91. (1) The definition “release” in subsection 2(1) of the Special Import Measures Act is replaced by the following:

“release”

« dédouanement »

“release” means

(a) in respect of goods, to authorize the removal of the goods from a customs office, sufferance warehouse, bonded warehouse or duty free shop for use in Canada, and

(b) in respect of goods to which paragraph 32(2)(b) of the Customs Act applies, to receive the goods at the place of business of the importer, owner or consignee;

(2) Section 2 of the Act is amended by adding the following after subsection (9):

Marginal note:Application of Customs Act

(10) The Customs Act applies, with any modifications that the circumstances require, in respect of

(a) the payment, collection or refund of any duty levied or returned under this Act;

(b) the payment, collection, refund or waiver of interest on duty payable or returned under this Act; and

(c) the time within which duties payable under this Act, or security posted under this Act, are deemed to be paid or posted.

Marginal note:1994, c. 47, s. 149(1), par. 185(2)(b)(E); 1999, c. 17, par. 183(1)(h)

92. (1) Subsection 8(1) of the Act is replaced by the following:

Marginal note:Imposition of provisional duty

8. (1) Where the Commissioner makes a preliminary determination of dumping or subsidizing in an investigation under this Act and considers that the imposition of provisional duty is necessary to prevent injury, retardation or threat of injury, the importer in Canada of dumped or subsidized goods that are of the same description as any goods to which the preliminary determination applies and that are released during the period commencing on the day the preliminary determination is made and ending on the earlier of

(a) the day on which the Commissioner causes the investigation to be terminated pursuant to subsection 41(1) with respect to goods of that description, and

(b) the day on which the Tribunal makes an order or finding with respect to goods of that description,

shall, within the time prescribed under the Customs Act for the payment of duties, at the option of the importer,

(c) pay or cause to be paid on the imported goods provisional duty in an amount not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods, or

(d) post or cause to be posted security for provisional duty in the prescribed form and in an amount or to a value not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods.

Marginal note:1988, c. 65, s. 26(1); 1994, c. 47, par. 185(2)(c)(E); 1999, c. 12, ss. 3(1), (2), c. 17, paras. 183(1)(h), 184(a)

(2) Subsections 8(1.1) and (1.2) of the Act are replaced by the following:

Marginal note:Imposition of provisional duties on referral back to Tribunal

(1.1) If an order or finding of the Tribunal under subsection 43(1), 76.02(4) respecting a review under subsection 76.02(1), or 91(3), other than an order or finding described in any of sections 3 to 6, is referred back to the Tribunal under subsection 77.015(3) or (4) or 77.019(5), or under subsection 77.15(3) or (4) or 77.19(4), the importer of dumped or subsidized goods that are of the same description as any goods to which the order or finding applies and that are released during the period beginning on the day on which the preliminary determination is made under subsection 38(1) and ending on the day on which the Tribunal makes an order or finding, on the referral back, with respect to goods of that description, shall, within the time prescribed under the Customs Act for the payment of duties, at the option of the importer,

(a) pay or cause to be paid on the imported goods provisional duty in an amount not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods; or

(b) post or cause to be posted security for provisional duty in the prescribed form and in an amount or to a value not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods.

Marginal note:Imposition of provisional duties on referral back from Federal Court of Appeal

(1.2) If an order or finding of the Tribunal under subsection 43(1), 76.02(4) respecting a review under subsection 76.02(1), or 91(3), other than an order or finding described in any of sections 3 to 6, is referred back to the Tribunal by the Federal Court of Appeal, the importer of dumped or subsidized goods that are of the same description as any goods to which the order or finding applies and that are released during the period beginning on the day on which the preliminary determination is made under subsection 38(1) and ending on the day on which the Tribunal makes an order or finding, on the referral back, with respect to goods of that description, shall, within the time prescribed under the Customs Act for the payment of duties, at the option of the importer,

(a) pay or cause to be paid on the imported goods provisional duty in an amount not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods; or

(b) post or cause to be posted security for provisional duty in the prescribed form and in an amount or to a value not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods.

Marginal note:R.S., c. 1 (2nd Supp.), s. 198(2)

(3) Subsections 8(3) and (4) of the Act are repealed.

Marginal note:1999, c. 17, par. 183(1)(i)

(4) The portion of subsection 8(6) of the Act after paragraph (b) and before paragraph (c) is replaced by the following:

shall, within the time prescribed under the Customs Act for the payment of duties, at the option of the importer,

Marginal note:1999, c. 12, par. 52(b)(E), c. 17, par. 183(1)(i)

(5) The portion of subsection 8(6) of the Act after paragraph (c) is replaced by the following:

(d) post or cause to be posted security for provisional duty in the prescribed form and in an amount or to a value not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods.

Marginal note:R.S., c. 1 (2nd Supp.), s. 199(2); 1994, c. 47, s. 150; 1999, c. 17, par. 183(1)(n)

93. Section 11 of the Act is replaced by the following:

Marginal note:Duty payable by importer in Canada

11. The importer in Canada of any goods imported into Canada in respect of which duty, other than provisional duty, is payable shall, notwithstanding any security posted pursuant to section 8 or 13.2, pay or cause to be paid all such duties on the goods.

Marginal note:R.S., c. 1 (2nd Supp.), s. 200; 1988, c. 65, s. 30

94. Section 13.1 of the Act is repealed.

Marginal note:1994, c. 47, s. 151; 1999, c. 17, par. 183(1)(q)

95. Subsection 13.2(4) of the Act is replaced by the following:

Marginal note:Posting of security

(4) An importer of goods that are of the same description as any goods to which a review under subsection (3) applies and that are released during the period beginning on the day the review is initiated and ending on the day on which the Commissioner completes the review shall, within the time prescribed under the Customs Act for the payment of duties, post, or cause to be posted, security in the prescribed manner and form and in an amount, or of a value, equal to the margin of dumping of, or amount of subsidy on, the goods.

Marginal note:1994, c. 47, s. 177

96. Paragraph 60(1)(b) of the Act is replaced by the following:

(b) the whole or a part of any duty, or duty and interest paid (other than interest that was paid because duties were not paid when required by subsection 32(5) or section 33 of the Customs Act), in excess of the duties owing in respect of the goods shall be returned to the importer forthwith,

97. The Act is amended by adding the following after section 60:

Marginal note:Notice to be given

60.1 If a determination or a re-determination has been made under section 55, subsection 56(1) or section 57 or 59, notice of the determination or re-determination shall be given without delay to the importer in Canada.

Marginal note:R.S., c. 1 (2nd Supp.), s. 207; 1994, c. 47, s. 178

98. Section 62.1 of the Act is repealed.

99. Sections 91 to 98 apply in relation to goods of a NAFTA country as defined in subsection 2(1) of the Special Import Measures Act.

R.S., c. T-2Tax Court of Canada Act

Marginal note:1990, c. 45, s. 55

100. Subsection 2.2(2) of the Tax Court of Canada Act is replaced by the following:

Definition of “amount in dispute”

(2) For the purposes of this Act, the “amount in dispute” in an appeal means

(a) in the case of an appeal under Part V.1 of the Customs Act, the total of all amounts assessed by the Minister of National Revenue under section 97.44 of that Act; and

(b) in the case of an appeal under Part IX of the Excise Tax Act,

(i) the amount of tax, net tax and rebate, within the meaning of that Part, that is in issue in the appeal,

(ii) any interest or penalty under that Part that is in issue in the appeal, and

(iii) any amount of tax, net tax or rebate, within the meaning of that Part, that is likely to be affected by the appeal in any other appeal, assessment or proposed assessment of the person who has brought the appeal.

Marginal note:1996, c. 23, s. 188

101. (1) Subsection 12(1) of the Act is replaced by the following:

Marginal note:Jurisdiction

12. (1) The Court has exclusive original jurisdiction to hear and determine references and appeals to the Court on matters arising under the Canada Pension Plan, the Cultural Property Export and Import Act, Part V.1 of the Customs Act, the Employment Insurance Act, Part IX of the Excise Tax Act, the Income Tax Act, the Old Age Security Act and the Petroleum and Gas Revenue Tax Act, where references or appeals to the Court are provided for in those Acts.

Marginal note:1990, c. 45, s. 57(2); 1998, c. 19, s. 290

(2) Subsections 12(3) and (4) of the Act are replaced by the following:

Marginal note:Further jurisdiction

(3) The Court has exclusive original jurisdiction to hear and determine questions referred to it under section 173 or 174 of the Income Tax Act, section 97.58 of the Customs Act or section 310 or 311 of the Excise Tax Act.

Marginal note:Extensions of time

(4) The Court has exclusive original jurisdiction to hear and determine applications for extensions of time under section 97.52 or 97.53 of the Customs Act, section 166.2 or 167 of the Income Tax Act, subsection 103(1) of the Employment Insurance Act, section 304 or 305 of the Excise Tax Act, subsection 28(1) of the Canada Pension Plan or section 33.2 of the Cultural Property Export and Import Act.

Marginal note:1990, c. 45, s. 58

102. Subsection 18.18(2) of the Act is replaced by the following:

Marginal note:Calculation of time limits

(2) For the purpose of calculating a time limit for the purposes of section 18.3003 or 18.3005, the following periods shall be excluded:

(a) the period beginning on December 21 in any year and ending on January 7 of the next year; and

(b) the period during which proceedings are stayed in accordance with subsection 106(3) of the Customs Act, in the case of an appeal under Part V.1 of that Act, or subsection 327(4) of the Excise Tax Act, in the case of an appeal under Part IX of that Act.

Marginal note:1998, c. 19, s. 295(2)

103. Subsection 18.29(3) of the Act is replaced by the following:

Marginal note:Extensions of time

(3) The provisions referred to in subsection (1) also apply, with any modifications that the circumstances require, in respect of applications for extensions of time under section 97.51 or 97.52 of the Customs Act, section 166.2 or 167 of the Income Tax Act, section 304 or 305 of the Excise Tax Act, subsection 103(1) of the Employment Insurance Act, subsection 28(1) of the Canada Pension Plan or section 33.2 of the Cultural Property Export and Import Act.

Marginal note:1998, c. 19, s. 296(1)

104. Section 18.3001 of the Act is replaced by the following:

Marginal note:Application — Customs Act and Excise Tax Act

18.3001 Subject to section 18.3002, if a person has so elected in the notice of appeal for an appeal under Part V.1 of the Customs Act or Part IX of the Excise Tax Act or at such later time as is provided in the rules of Court, this section and sections 18.3003 to 18.302 apply, with any modifications that the circumstances require.

Marginal note:1990, c. 45, s. 61

105. Subsection 18.3002(3) of the Act is replaced by the following:

Marginal note:Costs

(3) The Court shall, on making an order under subsection (1), order that all reasonable and proper costs of the person who has brought the appeal be borne by Her Majesty in right of Canada where

(a) in the case of an appeal under Part V.1 of the Customs Act, the amount in dispute is equal to or less than $10,000; and

(b) in the case of an appeal under Part IX of the Excise Tax Act, the amount in dispute is equal to or less than $7,000 and the aggregate of supplies for the prior fiscal year of that person is equal to or less than $1,000,000.

Marginal note:1993, c. 27, s. 222

106. Subsection 18.3003(1) of the English version of the Act is replaced by the following:

Marginal note:Time limit for reply to notice of appeal

18.3003 (1) Subject to subsection (2), the Minister of National Revenue shall file a reply to a notice of appeal referred to in section 18.3001 within sixty days after the day the Registry of the Court transmits to that Minister the notice of appeal, unless the person who has brought the appeal consents, before or after the sixty day period has elapsed, to the filing of that reply after the expiration of those sixty days or the Court allows the Minister, on application made before or after the expiration of those sixty days, to file the reply after that period.

Marginal note:1990, c. 45, s. 61

107. Subsection 18.3007(1) of the Act is replaced by the following:

Marginal note:Costs

18.3007 (1) The Court may, if the circumstances so warrant, make no order as to costs or order that the person who brought an appeal be awarded costs, notwithstanding that under the rules of Court costs would be adjudged to Her Majesty in right of Canada, or make an order that that person be awarded costs, notwithstanding that under the rules of Court no order as to costs would be made if

(a) an order has been made under subsection 18.3002(1) in respect of the appeal;

(b) the appeal is not an appeal referred to in subsection 18.3002(3); and

(c) in the case of an appeal

(i) under Part V.1 of the Customs Act, the amount in dispute in the appeal is equal to or less than $50,000, and

(ii) under Part IX of the Excise Tax Act, the amount in dispute in the appeal is equal to or less than $50,000 and the aggregate of supplies for the prior fiscal year of the person who brought the appeal is equal to or less than $6,000,000.

Marginal note:1990, c. 45, s. 61

108. Paragraphs 18.3008(a) and (b) of the Act are replaced by the following:

(a) in the case of an appeal under Part V.1 of the Customs Act, the amount in dispute was equal to or less than $10,000; and

(b) in the case of an appeal under Part IX of the Excise Tax Act, the amount in dispute was equal to or less than $7,000 and the aggregate of supplies for the prior fiscal year of that person was equal to or less than $1,000,000.

Marginal note:1998, c. 19, s. 298

109. Subsection 18.3009(1) of the Act is replaced by the following:

Marginal note:Costs — appeal under Customs Act or Excise Tax Act

18.3009 (1) If an appeal referred to in section 18.3001 is allowed, the Court shall reimburse to the person who brought the appeal the filing fee paid under paragraph 18.15(3)(b) by that person and may award costs, in accordance with the rules of Court, to that person if

(a) in the case of an appeal under Part V.1 of the Customs Act, the amount in dispute in the appeal was equal to or less than $10,000 and was reduced by more than one half by the judgement of the Court; and

(b) in the case of an appeal under Part IX of the Excise Tax Act,

(i) the amount of tax, net tax, rebate, interest or penalty in issue in the appeal was reduced by more than one half by the judgement of the Court,

(ii) the amount in dispute was equal to or less than $7,000, and

(iii) the aggregate of supplies for the prior fiscal year of that person was equal to or less than $1,000,000.

Marginal note:1990, c. 45, s. 62

110. Subsection 18.31(2) of the Act is replaced by the following:

Marginal note:Determination of question

(2) If it is agreed under section 97.58 of the Customs Act or under section 310 of the Excise Tax Act that a question should be determined by the Court, sections 17.1, 17.2 and 17.4 to 17.8, apply, with any modifications that the circumstances require, in respect of the determination of the question.

COORDINATING AMENDMENT

Marginal note:Bill C-11

111. If Bill C-11, introduced in the first session of the thirty-seventh Parliament and entitled the Immigration and Refugee Protection Act (the “other Act”), receives royal assent, then, on the later of the coming into force of subsection 107(5) of the Customs Act, as enacted by section 61 of this Act, and the coming into force of section 1 of the other Act, paragraph 107(5)(j) of the Customs Act is replaced by the following:

(j) an official of the Department of Citizenship and Immigration solely for the purpose of administering or enforcing the Immigration and Refugee Protection Act, if the information relates to the movement of people into and out of Canada;

COMING INTO FORCE

112. The provisions of this Act, and the provisions of any Act as enacted by this Act, come into force on a day or days to be fixed by order of the Governor in Council.
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