Tulk v. Can. (1988), 74 Nfld. & P.E.I.R. 322 (NFTD);
231 A.P.R. 322
MLB headnote and full text
Onslow Tulk (plaintiff) v. Her Majesty in right of Canada (defendant)
(1988 St. J. No. 1762)
Indexed As: Tulk v. Canada
Newfoundland Supreme Court
Trial Division
Cameron, J.
September 2, 1988.
Summary:
The owner of a speed boat applied for a declaration regarding the return of the boat under s. 138 of the Customs Act. The owner loaned the boat to his brother-in-law. The boat was seized while in the brother-in-law’s possession. The brother-in-law was charged with contravening s. 155 of the Customs Act.
The Newfoundland Supreme Court, Trial Division, dismissed the application because the owner failed to exercise all reasonable care when he loaned the boat.
Customs – Topic 3126
Search and seizure – Return of seized goods – Requirements for – The owner of a boat applied for a declaration concerning its return under s. 138 of the Customs Act – The Newfoundland Supreme Court, Trial Division, held that the owner must show: (1) that he acquired his interest in the boat in good faith before the offending conduct; (2) that the owner was innocent of any complicit; (3) and that he exercised all reasonable care in loaning the boat – The court also held that where smuggling was a foreseeable activity, a reasonable man would take positive measures to insure that the borrower did not intend to use the boat to smuggle – See paragraphs 4 through 10.
Customs – Topic 3128
Search and seizure – Return of seized goods – Burden of proof – A speedboat owner applied for a declaration concerning its return under s. 138 of the Customs Act – The boat was seized while in the possession of the owner’s brother-in-law – There was no evidence that the owner inquired about why the brother-in-law wanted the boat – The Newfoundland Supreme Court, Trial Division, dismissed the application – The Court noted that smuggling was a foreseeable activity – The owner should have taken some positive steps to insure that the boat would not be used to smuggle goods before loaning the boat – See paragraph 10.
Customs – Topic 9802
Practice – General – Parties – The owner of a seized boat applied for a declaration concerning the return of the craft under s. 138 of the Customs Act – The owner named “Her Majesty In Right of Canada” as the defendant – A Justice of the Newfoundland Supreme Court, Trial Division, observed that the proper defendant was the Minister of National Revenue for Customs and Excise – See paragraph 12.
Words and Phrases
All reasonable care
– The Newfoundland Supreme Court, Trial Division, considered the meaning of the phrase within the context of s. 139 of the Customs Act.
Cases Noticed:
Strang v. Canada (1987), 67 Nfld. & P.E.I.R. 193; 206 A.P.R. 193, dist. [para 2].
Re Ambrose (1949), 96 C.C.C. 328 (Man. K.B.), refd to. [para. 3].
D.M.N.R. v. Industrial Acceptance Corporation (1958), 15 D.L.R.(2d) 369 (S.C.C.), refd to. [para. 9].
Re Fitzpatrick and Industrial Acceptance Corporation (1958), 42 M.P.R. 42, appld. [para. 9].
Statutes Noticed:
Customs Act, S.C. 1986, c. 1, sect. 138 [paras. 1, 3]; sect. 138(5) [para. 2]; sect. 139 [para. 4]; sect. 139(c) [para. 9]; sect. 155 [para. 5].
Counsel:
Thomas E. Williams, for the plaintiff;
Robert Simmons, for the defendant.
This application was heard on August 17, 1988, by Cameron, J., of the Newfoundland Supreme Court, Trial Division, who filed the following judgment on September 2, 1988.
