Reference Manual for the WHMIS Requirements of the Hazardous Products Act and Controlled Products Regulations

HPA Sections 25 and 26 - Restoration

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25.(1) Where any product, material, substance or other thing has been seized under this Act, any person may, within two months after the date of the seizure on prior notice having been given in accordance with subsection (2) to the Minister by registered mail addressed to the Minister at Ottawa, apply to a provincial court judge within whose territorial jurisdiction the seizure was made for an order of restoration under subsection (3).

(2) The notice referred to in subsection (1) shall be mailed at least fifteen clear days prior to the day on which the application is to be made to the provincial court judge and shall specify

(a) the provincial court judge to whom the application is to be made;

(b) the place where and the time when the application is to be heard;

(c) the product, material, substance or other thing in respect of which the applicant is to be made; and

(d) the evidence on which the applicant intends to rely to establish that the applicant is entitled to possession of the thing in respect of which the application is to be made.

(3) Subject to section 26, where, on the hearing of an application made under subsection (1), the provincial court judge is satisfied

(a) that the applicant is entitled to possession of the product, material, substance or other thing seized, and

(b) that the thing seized is not and will not be required as evidence in any proceedings in respect of an offence under section 28, the judge shall order that the thing seized be restored forthwith to the applicant.

(4) Subject to section 26, where, on the hearing of an application made under subsection (1), the provincial court judge is satisfied that the applicant is entitled to possession of the thing seized but is not satisfied as to the matters mentioned in paragraph (3)(b), the judge shall order that the thing seized be restored to the applicant

(a) on the expiration of four months after the date of the seizure if no proceedings in respect of an offence under section 28 have been commenced before that time; or

(b) on the final conclusion of any such proceedings in any other case.

(5) Where no application has been made under subsection (1) for the restoration of any product, material, substance or other thing seized under this Act within two months after the date of the seizure, or an application therefor has been made but on the hearing thereof no order of restoration is made, the thing so seized shall be delivered to the Minister who may make such disposition thereof as the Minister thinks fit.

26.(1) Where a person has been convicted of an offence under section 28, any hazardous product seized under this Act by means of or in respect of which the offence was committed is forfeited to Her Majesty and shall be disposed of as the Minister directs.

(2) Where an inspector has seized a hazardous product under this Act and the owner thereof or the person in whose possession the product was at the time of seizure consents in writing to its destruction, the hazardous product is thereupon forfeited to Her Majesty and shall be destroyed or otherwise disposed of as the Minister directs.

Interpretation / Discussion of Sections 25 and 26

Subsection 25(1) and 25(2):

The owner of seized products may make an application to a judge for restoration of the products within two months of the date of seizure. "Two months" means two calendar months, for example, from June 7 to August 8. Under section 28 of the Interpretation Act, the actual date of seizure is not counted, but all of the last day of the two month period is included. For example, if a product was seized at 9:00 a.m. on June 7, the two month period would expire at 12:00 midnight on August 8. If the last day of the two month period was a holiday, the time period would then expire at midnight on the next day that was not a holiday. If the month in which the time period expires does not have a calender day corresponding to the specified expiry date, for example, February 31, then the time period expires at the end of the last day of that month, for example, midnight February (28 or 29, in a leap year).

The Minister must be notified of the restoration application at least fifteen days in advance. This notification must contain the information specified in subsection 25(2). "Fifteen clear days" does not include the first and last day of the fifteen day period. For example, if the application for restoration is to be made on July 31, the notice to the Minister must be mailed on July 15 or earlier.

Subsection 25(3) and 25(4):

At a restoration application, the judge does not rule on whether or not the product is hazardous, but only on who is entitled to possession of, or who owns, the seized products and whether or not the products are or will be required as evidence in court proceedings. This may have the effect of forcing the initiation of a prosecution to prevent restoration of seized goods.

Subsection 25(5):

After 2 months from the date of seizure, if no application for restoration has been made, or if such an application has been denied, the seized products must be delivered to the Minister for disposition. After the two month period, the things seized cannot be altered, removed, restored, exported, etc. without the Minister's authority.

"Delivered" means physically transporting the goods to the Minister or to a delegated person. In practice, physical delivery does not occur. The important aspect of subsection 25(5) is the delegation to the Minister of the authority to dispose of seized goods owned by another person. The goods are not forfeited, and do not become the property of the Crown under subsection 25(5). In practice, this authority is not always exercised immediately on the expiration of the 2 month period. For example, if seized goods are in the process of being altered by a dealer acting in good faith with the inspector's authority, it is likely that the alterations will be allowed to continue. When the products have been brought into compliance, the Minister will exercise his authority and restore the products to their owner as a "fit" disposition. Other circumstances, such as pending prosecution, or attempts to arrange export, can also result in a delay in the Minister exercising his authority of disposition.

In cases where no attempt to alter the seized products is being made or no other circumstances warrant delay, the Minister can exercise his authority at anytime after 2 months from the date of seizure. When the Minister orders the removal and destruction of a product, it is usual for the enforcing jurisdiction to bear the costs of such removal and destruction. If, however, the disposition involves restoration of the seized goods to their owner, or their export, the owner must bear all costs.

The practice of allowing a delay in the exercise of the authority given to the Minister in subsection 25(5) is neither expressly allowed by the Act nor is it prohibited. Such delays are consistent with both the intent and the reasonable administration of the Act.

Subsection 26(1):

After a conviction, the hazardous products are forfeited to and become the property of the Crown. They are then disposed of as the Minister directs, with the costs of removal and disposal paid by the enforcing jurisdiction.

Subsection 26(2):

The owner may consent to the destruction of the seized products. The products are then forfeited to the Crown for disposal under the direction of the Minister. The consent to destruction must be in writing and must be given by the legal owner of the goods or by the person in whose possession they were at the time of seizure.

Since forfeiture means that the right of property in the goods has been transferred to the Crown, the cost of removal and destruction becomes the responsibility of the enforcing jurisdiction. Even when products have not been seized, the owner may wish to forfeit the products to the Crown for disposal or destruction. As subsection 26(2) does not apply to products which have not been seized, written consent to the disposal is not required by law. However, consent in writing to the forfeiture and disposal or destruction of the products must always be obtained by the inspector to avoid any lawsuits for unauthorized disposal. Costs of removal and disposal are the responsibility of the enforcing jurisdiction.

Export of Seized Goods: The Act does not prohibit the export or re-export of hazardous products or seized goods, and there are some cases in which export or re-export may be a suitable method of disposition. Within 2 months after the date of seizure, the inspector may authorize the export of seized products under subsection 23(2). After the two months after the date of seizure, the Minister must approve any export of the seized products as a suitable method of disposition. In both cases, the goods are not released from seizure and thus remain under the control of the inspector or the Minister until they have left the country.

The appropriate authority in the receiving country must be advised of the nature of the hazard involved and of the fact that the product is not acceptable for sale in Canada. That authority must indicate by a notice of agreement that the products involved are acceptable for sale in the receiving country, before the export of the seized products is permitted. This authority is not required where the product is being returned to the country where it was manufactured. Policies regarding export of non-complying products that have not been seized are set out in the discussion under sections 22, 23 and 24 Search, Seizure and Forfeiture.