Date:20010810
Docket: IMM-435-00
Neutral Citation: 2001 FCT 871
BETWEEN:
WILLIS IRVINE ARCHER
Plaintiff
- and -
ROXANNE POLLYDORE AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendants
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Minister of Citizenship and Immigration (the "Minister") brings a motion in writing for the entry of summary judgment against Willis Irvine Archer (the "Plaintiff") pursuant to the Federal Court Rules, 1998, SOR/98-106 (the "Rules").
FACTS
[2] In this action the Plaintiff seeks recovery of special damages, general damages, punitive damages, interest and costs against Roxanne Pollydore (the "First Defendant") and the Minister. This claim arises from the Plaintiff's sponsorship undertaking in relation to the First Defendant and her son, Avery Babb, in May 1987.
[3] The sponsorship was to remain in effect for ten years and contained a clause that, as a condition for the landing of the First Defendant, she and the Plaintiff would marry within ninety days.
[4] The first Defendant arrived in Canada on December 29, 1987 but the relationship did not flourish and the plans for marriage did not mature. Three months after her arrival, the first Defendant and the Plaintiff parted company. According to the Plaintiff, the first Defendant never intended to marry him but held marriage as a pretext to induce him to sponsor her admission into Canada.
[5] Around March 3, 1988, the Plaintiff wrote to the office of the Minister, advising of the deterioration of his relationship with the Plaintiff and of his decision not to marry her. He also advised of his intention to cancel or withdraw his sponsorship undertaking of the first Defendant and her son.
[6] The Plaintiff states, in the Statement of Claim, that he subsequently contacted representatives of the Minister's office. He was told that an investigation would be undertaken and he would be contacted about it, in due course. The Plaintiff heard nothing further.
[7] The Plaintiff made further inquiries around July 12, 1993. At that time, he was informed that the First Defendant had been granted landed status on the ground that she was married to the Plaintiff.
[8] The Plaintiff advised that this was incorrect and was a misrepresentation by the First Defendant. The Plaintiff again requested that the records be corrected. The Plaintiff subsequently learned, following further contact with the Office of the Minister, that the records had been changed to replace the landing of the First Defendant on humanitarian and compassionate grounds. The Plaintiff was also advised, at the same time, that his sponsorship undertaking would remain in force for ten years, notwithstanding the change in his relationship with the First Defendant.
[9] The Plaintiff claims that as a result of the Minister's refusal to release him from his sponsorship undertaking, he suffered emotional and mental stress which contributed to the loss of his employment and consequential loss of income, and that the Defendants are liable in law for such loss and damages
[10] The Plaintiff alleges that he was laid off in August 1992, apparently due to his inability to cope with the requirements of his job. He was unable to find other work after he was laid off and now maintains himself on pension payments.
[11] The Minister defended the Plaintiff's action and in her Statement of Defence denies any wrong-doing by failing to cancel the undertaking and specifically pleads a lack of authority to allow the withdrawal of such an undertaking once a visa has been issued.
[12] Furthermore, the Minister pleads that she has the authority to grant landing to the First Defendant on humanitarian and compassionate grounds where same are warranted.
[13] The Minister denies any intention to cause mental stress to the Plaintiff resulting from any representations made on her behalf and could not have foreseen any harm resulting from such representation, which were, in any event made in the exercise of her authority.
[14] Finally, the Minister argues that the Plaintiff's claim is time-barred since the words allegedly giving rise to misrepresentation or mental stress were spoken in 1988 and 1993. The Minister relies upon the Ontario Limitations Act, R.S.O. 1990, c. L.15, for the proposition that an action on the case for words can be brought only within two years of the words being spoken. The provision of provincial limitation legislation apply to proceedings against the federal Crown pursuant to the Crown Liability and Proceedings Act, R.S. 1985, C. c-50, section 32.
SUBMISSIONS
[15] The Minister's present motion for summary judgment is based on the limitation argument. In the Notice of Motion filed in this matter, the Minister relies on the Public Authorities Protection Act, R.S.O. 1990, c. P-38, as amended, which applies to actions arising in Ontario against the federal Crown and which prescribes a six month limitation period for the commencement of such actions. The Minister relies on these statutory provisions in support of the argument that the Plaintiff's claim, which was commenced by the Statement of Claim issued on February 1, 2000, is statute-barred.
[16] The Minister cites Olympia Interiors Ltd v. Canada (Minister of National Revenue) (1993), 66 F.T.R. 81; Collie Woolen Mills Limited v. Canada (1996), 107 F.T.R. 93 and Bourque, Pierre et Fils Ltée. v. Canada (1999), 162 F.T.R. 98, in support of these submissions.
[17] The Plaintiff, in response to this motion, takes the position that the Minister continues to be in breach of the law and as a result, the limitation provisions do not apply because they are permissive. In this regard the Plaintiff relies on Ihnat et al. v. Jenkins et al. [1972] 3 O.R. 629-633, Lapoint v. Saskatchewan, [1988] S.J. No. 113, McNabb v. Ontario (Attorney General) 50 O.R. (3d) 402.
[18] The Minister replied to the Plaintiff's submissions and submits that since the Plaintiff's claim does not arise from an alleged continuing failure to conduct an investigation, the Plaintiff's argument on that ground is without merit. The Minister argues that the Plaintiff's claim, as set out in the Statement of Claim, is one based on misrepresentations arising from words spoken. The Minister says that the Plaintiff's cause of action in this respect, if it exists at all, is time-barred. The Minister suggests that this is the only cause of action alleged and cannot proceed.
ISSUE
[19] Is this an appropriate case for the entry of summary judgment?
ANALYSIS
[20] This motion for summary judgment is governed by rules 213 et seq of the Rules. Rule 216(1) is relevant and it provides as follows:
216. (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.
216. (1) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue qu'il n'existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence.
[21] The test for granting a motion for summary judgment is whether there is a genuine issue for trial; see Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853, 111 F.T.R. 189 (T.D.). According to Riva Stahl GmbH v. Combined Atlantic Carriers GmbH (1999), 243 N.R. 183 (Fed. C.A.), a time-barred action will be summarily dismissed.
[22] Against this background, it appears that I must consider whether the pleadings disclose a genuine issue for trial. The preliminary question is to identify the cause of action raised in the Statement of Claim.
[23] The Statement of Claim does not explicitly state a cause of action. The Plaintiff seeks damages for mental stress and says that this stress was caused by the failure of the Minister to release his sponsorship undertaking despite representations by her servants and experts that an investigation would be undertaken. The clearest statement of the foundation of the Plaintiff's Claim is found in paragraph 22 of the Statement of Claim which says as follows:
The Plaintiff states that the respondent (sic) conduct and refusal to release him from the sponsorship, and in turn go ahead to grant his fiancee with landing on humanitarian and compassionate grounds and continue to hold him responsible for the sponsorship was wrong and bad in law and has resulted in emotional and mental stress, of which the defendants are liable in law.
[24] In my opinion, the Plaintiff is claiming that the manner in which the Minister exercised the discretion available under the Immigration Act, R.S. 1985, c. I-2 to grant standing to the First Defendant on humanitarian and compassionate grounds was wrong in law. That seems to be a challenge to the exercise of ministerial discretion which could be challenged only by way of an application for judicial review. Such an application is clearly out of time.
[25] However, if the issue of timeliness in that regard is ignored, the question still remains that the Plaintiff is complaining about the manner in which the Minister and her servants conducted themselves. That issue would seem to fall within the purview of the Ontario Public Authorities Protection Act, supra. If so, this next question is whether the limitation provisions of that Act apply to a continuing cause of action. Is there a continuing cause of action in this case?
[26] The Defendant Minister does not deny that representations were made but takes the position that such representations were not intended to cause mental stress or harm to the Plaintiff. Furthermore, the Minister pleads reliance on statutory discretion to grant landing on humanitarian and compassionate grounds, and that the exercise of statutory obligation or discretion protects her from any liability.
[27] In my opinion, there is no continuing cause of action in this case. A continuous cause of action refers to a cause of action which arises from the repetition of acts of omissions of the same kind as that for which the action was brought. In this regard see Hole v. Chard Union, [1894] 1 Ch. 293 at page 296. In that case, the defendants had polluted a stream and it was held that this was a nuisance and a continuous cause of action.
[28] The Respondent argues that the Plaintiff's Statement of Claim refers to the harm arising from two misrepresentations, whereas the Plaintiff's Statement of Claim makes reference to the Respondent's refusal to release the Plaintiff from sponsorship. In my opinion, the cause of action at bar arises from the Minister's decision not to release the Plaintiff from his sponsorship obligations.
[29] If this were to be characterized as a continuous cause of action, there would have to be an element of repetition or continuous action on the part of the Minister. The Minister's unwillingness to change her mind about a decision taken is not a continuous action. The only element of continuity in this case is the Plaintiff's claim for damages and mental stress, but it is trite law that a continuous tort does not include continuance of all the effects or repercussions of a defendant's action. In that regard see Ihnat, supra, and Freeborn v. Leeming, [1926] 1 K.B. 160 (C.A.).
ORDER
For these reasons, the motion is allowed. In the result, the action against the Minister is dismissed.
"E. Heneghan"
Ottawa, Ontario
August 10, 2001