I get asked this question very often. The answer is “yes” with a BUT. Pursuant to subsection 106(1) of the Customs Act (Canada), an action or proceeding may be brought against an officer or person assisting an officer. Subsection 106(1) of the Customs Act (Canada) provides that “no action or judicial proceeding shall be commenced against an officer for anything done in the performance of his or her duties under [the Customs Act] or any other Act of Parliament or a person called to assist the officer in the performance of such duties more than three months after the time when the cause of action or the subject matter of the proceeding arose.”
Pursuant to subsection 106(2) of the Customs Act (Canada), an action or proceeding may be brought against the Crown to recover seized or detained goods. Subsection 106(1) of the Customs Act (Canada) provides that “no action or judicial proceeding shall be commenced against the Crown, an officer or any person in possession of goods under the authority of an officer for the recovery of anything seized, detained or held in custody or safe-keeping under [the Customs Act] more than three months after the later of (a) the time when the cause of action or the subject-matter of the proceeding arose and (b) the final determination of the outcome of any action or proceeding taken under [the Customs Act] in respect of the thing seized, detained or held in custody of safe-keeping.”
The important takes aways are:
1) Yes, you may bring an action or a proceeding against the Canada Border Services Agency (“CBSA”); and
2) You MUST file the notice of application or other commencement of proceeding within 3 months.
Often, the question about suing the CBSA comes after the expiration of the three month limitation period. The courts strictly apply the limitation period. So, if you wish to pursue a civil or criminal claim against a CBSA officer, do not delay. It may be possible to file a protective claim and withdraw the case if you later decide to not pursue the matter.