Date: 20020717
Docket: T-1482-91
Neutral citation: 2002 FCT 792
BETWEEN:
MINNIE NORMA MACNEIL and
ROBERT GARRY MILLER as representative
of the heirs of the late Minnie Norma MacNeil
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as
represented by the INDIAN AND NORTHERN AFFAIRS DEPARTMENT,
CHARLOTTE MILDRED MARTIN, RANDOLF LAWRENCE MARTIN,
JOYCE PATRICIA MARTIN, CHAD EVERITT MARTIN,
DAVID ALLAN MARTIN and BRADLY KENNITH HILL
Defendants
(Delivered from the Bench in Toronto, Ontario
on Friday, July 12, 2002)
[1] David General, an Indian, died on January 6, 1952. In his will dated August 31, 1948, he appointed Charlotte Martin to be the executrix of his estate.
[2] David General's will contained a bequest in the following terms:
Charlotte (Martin) is also to have a life lease on the homestead and premises situated on Lot 18, Concession 3, containing 25 acres just so long as she remains as she is now. In the event that she returns to her husband she is to vacate the property in Lot 18 and same is to be sold and the proceeds to be divided equal between Minnie Miller, Charlotte Martin, Morgan General and Theodore General. In the event that Charlotte dies without returning to her husband, the same division above mentioned is to apply to this parcel.
[3] In the present action, the named plaintiff, Minnie Norma MacNeill, is the Minnie Miller referred to in the bequest. She was David General's granddaughter. She died in 1999 and her son pursues the action on her behalf. The defendant, Charlotte Martin, also died in 1999. She was David General's adopted daughter. Her interests have now been taken up in this action by her heirs who have been added as defendants. Neither of the original parties was examined for discovery before their death and their evidence is accordingly not available.
[4] In 1968 Charlotte Martin had a certificate of possession under the Indian Act, R.S.C. 1952, c. 149, issued to her with respect to the "Homestead" property. In 1972, she subdivided the property and transferred a part of it to her son and a part to herself. In this action the plaintiffs seek declarations and damages against both Charlotte Martin and against the Crown. They do not seek to recover possession of the land but only the proceeds of its sale, or in the alternative, damages.
[5] The present motion for summary judgment is brought by the defendant Crown only. It seeks to have the action against it dismissed because it is said to be statute barred under the applicable provisions of the Ontario Limitations Act, R.S.O. 1990, c. 214. For the reasons which follow I have concluded that the motion must be allowed.
[6] First, I reject the plaintiff's argument that the Crown is somehow precluded by laches from bringing the present motion. It is true, of course, that the action has been pending for over 11 years, but that is not by any means the Crown's doing alone. More important, however, the wording of rule 213(2) of the Federal Court Rules, 1998 is specific in allowing a motion for summary judgment to be brought "at any time" before the case has been set down for trial and I do not think that the equitable doctrine of laches can operate to defeat a specific statutory provision such as this.
213. (2) A defendant may, after serving and filing a defence and at any time before the time and place for trial are fixed, bring a motion for summary judgment dismissing all or part of the claim set out in the statement of claim.
[7] Second, I am of the view that this is an appropriate case for summary judgment. In this, I am aware that I am going counter to at least two decisions of the Ontario Court of Appeal (Aguoinie v. Galion Solid Waste Material Inc., [1998] 38 O.R. (3d) 161, O.C.A., and Smyth v. Waterfall et al. (2000), 50 O.R. (3d) 481)) in which it has been held that the Court, on summary judgment, ought not to make findings of fact, particularly where, as in this case, the issue is one of prescription and of "discoverability". In my view, the wording of rule 216(3) is specific in instructing the Court to make findings of fact where it is able to do so on the material and in a fair and just manner. The Ontario rule appears to be different and the Ontario case law should not be followed in this Court.
216.(3) Where on a motion for summary judgment the Court decides that there is a genuine issue with respect to a claim or defence, the Court may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law.
[8] Next, it is to me of cardinal importance that the present motion is brought only by the defendant Crown and seeks the dismissal only of the action as against that defendant. That action, as I have said, does not seek possession of land and the allegations against the Crown are, as plaintiff's counsel concedes, based on negligence. If there has been wrongful action by the other defendants who have not moved for summary judgment, or by their predecessors in title, the plaintiffs' claim against those defendants will not be affected by this motion. As I have already indicated the issue raised by the Crown's motion is that of "discoverability". On the present state of this record, that in turn, raises the issue of the burden of proof. Somewhat to my surprise, both counsel tell me that there is no case law on the subject, but I have no doubt in my mind, based simply on principle, that the law must require that a plaintiff who maintains that the statute has not run against him or her bears the burden of showing that he or she did not know and could not with reasonable diligence have known that he or she had a right of action. I base this view not only on the principle that "he who asserts must prove" but also on the fact that the plaintiff's state of mind is peculiarly a matter within his or her knowledge alone and that it would be unjust to expect the defendant to lead evidence on the subject.
[9] Here, the plaintiff has failed to give any evidence to show that Minnie Norma MacNeil did not know and could not reasonably have discovered that Charlotte Martin had dealt with the property in a very public manner and one which was incompatible with her claim some 20 years before the action was brought. The burden has not been discharged. Furthermore, such evidence as there is, and there is very little indeed, and I have by no means been persuaded of its admissibility, indicates that as early as 1968 Ms. MacNeil had been told of the issuance of the Certificate of Possession to Charlotte Martin and had warned the latter not to act in a way incompatible with her interests. At the very least, that would indicate to me that she was put on inquiry. That is enough, in my view, to dispose of the issue of discoverability on which, as I say, the plaintiff bears the burden.
[10] Finally, I reject the argument, ably advanced by plaintiffs' counsel, that time did not start to run against her client until the death of Charlotte Martin and the "vesting" of the plaintiffs' rights to the property. That might well be the case in a claim against Charlotte Martin, for possession of the property but as I have said earlier, I am only concerned here with the claim against the Crown and that claim is based on an allegation of an improper action by Crown's servants in 1968 and that improper action should have been known to Ms. MacNeil and was discoverable many years before the action was brought.
[11] The motion will accordingly be allowed and the action as against the Crown will be dismissed. While I have rejected the plaintiff's argument based on laches in the bringing of the motion, I am not minded to grant the Crown its costs in view of the long delay in bringing the present motion.
Judge
Ottawa, Ontario
July 17, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1482-91
STYLE OF CAUSE: MINNIE NORMA MACNEIL ET AL AND
HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FRIDAY, JULY 12, 2002
REASONS FOR ORDER : HUGESSEN J.
DATED: JULY 17, 2002
APPEARANCES: Ms. Carol Godby
FOR THE PLAINTIFFS
Mr. Sean Gaudet
_ FOR THE DEFENDANT (THE CROWN)
No Appearance
FOR THE DEFENDANT(THE MARTINS)
SOLICITORS OF RECORD:HARRISON PENSA
Barrister and Solicitors
450 Talbot Street, P.O.Box 3237
London, Ontario, N6A 4K3
FOR THE PLAINTIFFS
Morris Rosenberg
Deputy Attorney General of Canada
FOR DEFENDANT (CROWN)
Lonny C. Bomberry
Barrister and Solicitor
RR#2, Sixth Line Road
Ohsweken, Ontario, NOA 1MO
FOR DEFENDANTS (THE
MARTINS)