When one feels mistreated at the border by Canada Border Services Agency (“CBSA”) officers, can one really do anything about it? The answer is “yes”, because the CBSA can be held indirectly liable for negligence as well as Charter breaches (through its officers). 

As a recent case demonstrates, the road to judgement will usually be long and difficult and perhaps reserved for only the most egregious of cases, or where the matter is one of principle.  Extreme facts will generally be required to make out a negligence claim against government departments like the CBSA, and inappropriately short limitations periods exist for bringing these suits.

Shanthakumar Case

In the 2023 Ontario Superior Court (“ONSC”) decision in Shanthakumar v. CBSA (2023 ONSC 3180), two Canadian residents were returning to Canada by car from the US.  At the border, CBSA took the view, based on incorrect information from an RCMP database, that both had active undertakings not to leave Ontario arising from a criminal matter stayed years ago.  While this later proved to be incorrect (the undertakings were vacated, but were not updated in the database), both were arrested, handcuffed, and jailed.  The car was also seized.

The residents later sued the CBSA, the RCMP (by way of the Attorney General of Canada), and the local police services board — the first resident initiating their lawsuit about seven months after the arrests — and were partially successful.  The ONSC ruled that the CBSA and police board were negligent in unreasonably arresting and jailing the residents without any inquiry being made as to the accuracy of the information in the RCMP database.  The RCMP’s failure to update the database was also negligent, with the ONSC observing: “It’s unacceptable that our national, local and border police had such a cavalier attitude towards the rights of these elderly citizens”.  The initial detention at secondary inspection was held to be reasonable — with only the arrest and jailing constituting negligence.

Then the unfortunate left turn: the ONSC concluded that the claims against the CBSA would be dismissed because the plaintiffs had not commenced their suit within the three-month limitations period provided under subsection 106(1) of the Customs Act.  However, total damages of $30,000 and $20,000 were awarded from the RCMP and police board, respectively, to each plaintiff, with the ONSC noting that a further $20,000 in total damages would have been awarded against the CBSA if the claims had not been statute-barred.  The racial profiling claim was also taken seriously, but the ONSC concluded that there was insufficient evidence to conclude same.

Bottom Line

Cases against the CBSA or RCMP for mistreatment are difficult to make out but can be successful in the right circumstances.  Timing is everything, with potentially short limitations periods.  Thus, legal advice is usually required immediately.  A positive takeaway from the case was the ONSC’s willingness to consider racial bias arguments, which can be brought in the appropriate case.

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