RADU HOCIUNG Appellant v. MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2019 FCA 215

Date: 20190807 Docket: A-101-18 Citation: 2019 FCA 215 CORAM: GAUTHIER J.A. WEBB J.A. RIVOALEN J.A. BETWEEN: RADU HOCIUNG Appellant And MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent Heard at Toronto, Ontario, on May 23, 2019. Judgment delivered at Ottawa, Ontario, on August 7, 2019. REASONS FOR JUDGMENT BY: GAUTHIER J.A. CONCURRED IN BY: WEBB J.A. RIVOALEN J.A. Date: 20190807 Dockets: A-101-18 Citation: 2019 FCA 215 CORAM: GAUTHIER J.A. WEBB J.A. RIVOALEN J.A.

BETWEEN: RADU HOCIUNG Appellant and MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent REASONS FOR JUDGMENT GAUTHIER J.A. [ 1 ] Mr. Hociung appeals the order of the Federal Court (per Gleeson J.) dated March 15, 2018 (T-1450-15) dismissing his motion to amend his statement of claim made in writing pursuant to Rule 369 of the Federal Courts Rules, SOR/98-106 . [ 2 ] In a companion appeal in file A-102-18, this Court dealt with Mr. Hociung’s appeal in respect of the judgment of the Federal Court granting the respondent’s motion for

summary judgment and dismissing Mr. Hociung’s action. [ 3 ] As noted in our reasons granting the appeal in

part in file A-102-18 ( 2019 FCA 214 ), the findings of our Court in that file have an impact on the merits of some of the proposed amendments. The factual background and the general nature of the amendments are described in paragraphs 1 to 11 of our reasons. I need not repeat them here (see also paragraph 1 of the order of the Federal Court).

[ 4 ] The Federal Court dismissed Mr. Hociung’s motion on the following bases: 1) The action brought pursuant to

section 135 of the Customs Act , R.S.C., 1985, c. 1 (2nd Supp .), is limited to whether or not a contravention of that statute and any other plea for relief must be pursued separately. The substantive aspects of Mr. Hociung’s proposed amendments consist of pleas for criminal penalties, damages and for extraordinary remedies pursuant to

section 18.1 of the Federal Courts Act , R.S.C., 1985, c. F-7 , and are beyond the scope and intent of

section 135 of the Customs Act . 2) The claim for damages arising from the performance by officers of their duties under the Customs Act must be brought within the limitation period set out at subsection 106(1) of the Customs Act , and in this case, the limitation period has passed. 3) The absence of a reasonable prospect of success is a valid basis upon which a court may dismiss a motion for leave to amend. While elements of the proposed amendments (see for example the proposed amendments at paras 1(

i) and 2) supplement the original claim by adding some factual details or update the plaintiff’s contact information, these elements do not substantially update or change the claims. [ 5 ] In file A-102-18, this Court held that Mr. Hociung’s action was not limited to an appeal under

section 135 of the Customs Act and that Rule 101 , allowing for joinder of causes of action applied. That said, our Court also confirmed that the allegations relating to the appeal under

section 135 could be dismissed. This confirmation made it obvious that the officers involved in the seizure of Mr. Hociung’s coins, as well as the prosecution of his opposition to the said seizure, were acting in the performance of their duties when they concluded that Mr. Hociung had contravened

section 12 of the Customs Act when he failed to report these goods upon re-entering Canada after his day trip to the United States. [ 6 ] This also means that any amendments to new claims in tort relating to the said seizure, or the fact that Mr. Hociung contravened

section 12 (see for example the proposed amendment at paras 6

c) to g)) were properly dismissed for they clearly have no chance of success. [ 7 ] Furthermore, the Federal Court has no inherent criminal jurisdiction, and I agree that any amendments, such as the references to courts having jurisdiction under

section 469 of the Criminal Code , R.S.C. 1985, c. C-46 ( C.C. ), to deal with allegations of fraud as defined under the C.C. , to criminal conduct (such as indictable offences as per

section 467.11 of the C.C. , and to criminal penalties were also properly dismissed. [ 8 ] That said, this Court did not agree with the Federal Court that the action based on alleged threats of violence could be dismissed simply on the basis referred to in the motion for

summary judgment. This means that amendments relating to this claim such as the addition of the Crown as a defendant (

section 3 of the Crown Liability and Proceedings Act , R.S.C., 1985, c. C-50 ) could not be dismissed on the Federal Court’s

interpretation of

section 135 of the Customs Act . [ 9 ] Thus, although the majority of the amendments could be dismissed by the Federal Court, it could not dismiss them all. [ 10 ] Should Mr. Hociung decide to pursue his action further, the parties may be able to agree on which amendments are still in play, and they should have an opportunity to present submissions should they not be able to do so. Furthermore, Mr.

Hociung may have to clarify certain things such as what portion of the damages are claimed solely as a result of the alleged threats of violence (see for example paragraph 17(a)) Whatever they may agree on should be submitted to the Federal Court. [ 11 ] Thus, in my view, the matter should be remitted to the Federal Court to enable it to reassess whatever amendments are still sought after considering our reasons in file A-102-18 and the parties’ additional representations, if any. [ 12 ] I conclude that I would grant the appeal in part, quash the order of the Federal Court and remit the matter back for reconsideration.

As in file A-102-18, I believe that each party should bear their own costs. I will note for the benefit of Mr. Hociung that disbursements arising from the fact that he now lives outside of Canada would not have been granted in any event. “Johanne Gauthier” J.A. “I agree Wyman W.Webb J.A.” “I agree Marianne Rivoalen J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD APPEAL FROM AN ORDER OF THE HONOURABLE JUSTICE GLEESON DATED MARCH 15, 2018, NO. T-1450-15 DOCKET: A-101-18

STYLE OF CAUSE: RADU HOCIUNG v. MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 23, 2019 REASONS FOR JUDGMENT BY: GAUTHIER J.A. CONCURRED IN BY: WEBB J.A. RIVOALEN J.A. DATED: AUGUST 7, 2019 APPEARANCES : R adu H ociung For The Appellant ON HIS OWN BEHALF Eric Peterson For The Respondent SOLICITORS OF RECORD : Nathalie G. Drouin Deputy Attorney General of Canada For The Respondent