Date: 20050217
Docket: T-1519-02
Citation: 2005 FC 257
Ottawa, Ontario, this 17th day of February, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
ANDREW MARK MARSHALL, LASCELLES MARSHALL
and BEVERLY MARSHALL
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] This is a motion for summary judgment by the defendant under Rules 213(2) and 216(1) of the Federal Court Rules 1998, SOR/98-106, to dismiss the plaintiffs' action on the ground that the claim discloses no genuine issue for trial. In the alternative, the defendant asks the Court to make the necessary findings of fact and law on the evidence and grant summary judgment pursuant to Rule 216(3).
[2] Andrew Marshall was born in Jamaica and has lived in Canada since he was a young child. His parents, Lascelles and Beverly Marshall, are Canadian citizens. The Marshalls initiated an action on September 21, 2002 to obtain a declaration that Andrew Marshall is also a Canadian citizen. The action also seeks damages in negligence from the defendant for having failed to issue a certificate of citizenship in Andrew's name.
[3] Andrew Marshall was born in December, 1967 and came to live with his parents in Canada in 1972. His mother, Beverly Marshall, emigrated in 1969 and obtained Canadian citizenship in 1977. Lascelles Marshall arrived in 1970 and gained his citizenship in 1976.
[4] During the 1980s and 1990s, Andrew Marshall was convicted of a number of serious criminal offences and efforts were commenced under the former Immigration Act, R.S.C. 1985, C.I-2, as early as 1993, to have him certified as a danger to the public and removed from Canada. For reasons that are not apparent from the record, those efforts were not pursued in earnest until 2000. A danger inquiry was commenced that year under the former Act. It was not completed prior to the coming into force of the Immigration and Refugee Protection Act, S.C. 2001, c.27 but proceedings were continued under that statute to determine whether Mr. Marshall met the inadmissiblity test set out in subsection 36(1).
[5] On October 9th, 2002 an application for an interim injunction to restrain the Minister of Citizenship and Immigration from continuing the admissibility proceedings was dismissed by Justice O'Keefe for lack of jurisdiction. On December 5, 2002, Justice Dawson granted the defendant's motion for particulars, in part, but dismissed a motion to strike the claim for declaratory relief as "it was not sufficiently free from doubt" that the relief was not available to the plaintiffs in the law suit.
[6] Further particulars of the claim were delivered on January 6, 2003 alleging, among other things, that in 1976 when Lascelles Marshall made his application, citizenship officers failed to complete the required forms accurately so as to include his son and that in 1977, officers failed to inform Beverly Marshall that a separate application was required for Andrew Marshall. The particulars allege that the officers committed gross negligence by failing to complete an application for citizenship for Andrew Marshall on both occasions.
[7] The admissibility proceedings were resumed in 2003 and resulted in a deportation order. Leave for judicial review of that decision was granted and on January 12, 2004, Justice von Finckenstein allowed the application on the ground that the Immigration and Refugee Board had failed to exercise its jurisdiction to determine whether Andrew Marshall was a Canadian citizen (2004 FC 34). A second deportation order was issued on July 6, 2004. On September 2, 2004 an application for leave and for judicial review of that decision was dismissed by Justice Shore for failure on the part of the applicant to file an application record (IMM-6466-04).
[8] At the hearing of this motion, counsel acknowledged that the plaintiffs' objective in bringing the action is solely to obtain a declaration from the Court that Andrew Marshall is a Canadian citizen in order to bar the defendant's continuing efforts to deport him to his country of birth. The negligence claim is seen by the plaintiffs as the means to achieve that objective. They are not seriously pursuing damages.
[9] The defendant submits that there is no evidence to support the negligence claim and that it is, in any event, out of time and statute barred. No application for citizenship was ever completed for Andrew Marshall, nor could he have been, in law, included in his parents' applications under the legislation governing citizenship at the material times. Thus he is not now and has never been a Canadian citizen. Further, the defendant contends that the Court has no jurisdiction to declare that Andrew is a citizen of Canada as that authority is reserved exclusively to the Crown.
[10] The plaintiffs argue that if the action proceeds to trial, they may be able to prove that the failure to process an application for citizenship for Andrew was due to the gross negligence of the defendant's employees. They argue that if such gross negligence can be established, the Court must have jurisdiction to correct the error retrospectively. No authority is offered by the plaintiffs in support of that proposition.
[11] The parties have filed affidavit evidence and there has been cross examination on the affidavits, as well as discovery and production of documents. The defendant submits that there is sufficient evidence before the Court to determine the relevant facts and that no significant additional evidence would be found prior to or adduced at trial. This is not a case such as Trojan Technologies, Inc.v. Suntec Environment Inc. [2004] F.C.J. No.636, 2004 (F.C.A.) 140 where there were serious issues of credibility and factual disputes to be resolved. Accordingly, defendant argues, the action should not proceed to trial and summary judgment should be granted in its favour.
ISSUES
[12] 1. Has the defendant established that there is no genuine issue for trial with respect to:
a) the claim of negligence; and
b) the claim for declaratory relief?
2. Assuming there is a genuine issue for trial, is the Court on the whole of the evidence able to find the facts necessary to decide the questions of fact and law?
Genuine Issue for Trial?
[13] The plaintiffs claim that Andrew was included in his parents' applications for citizenship in the 1970's, and if there was a failure to grant or record his citizenship at that time it was entirely due to the negligence of the defendant. Further, they assert that they are not out of time in bringing their action as they only became aware of the problem with Andrew's citizenship in 2000 and this action was initiated in September 2002.
[14] Lascelles Marshall's evidence was that in order to obtain a permanent job as a carpenter at a military base, which required Canadian citizenship, he applied on June 30th, 1976 at Toronto, Ontario. He attests that he took Andrew's passport and photographs with him to the interview, to be submitted with his application. On cross-examination he stated that he took Andrew's documents with him about a week later as he needed to return with a photograph of himself. Lascelles Marshall paid the required fee for a single adult applicant, and no additional fee for any dependent minor children. Mr. Marshall also attests in his affidavit that after he obtained his citizenship, his wife included Andrew in her application the following year.
[15] On the microfilm copy of Lascelles Marshall's application for citizenship, Andrew is listed with two other children as born outside Canada. On the form they were all described as "residing at Jamaica". Lascelles states this entry on the form was not correct in relation to Andrew as he had been landed several years earlier and was with the family in Toronto. Two half-siblings remained in Jamaica. Under the names of the three children there was a notation "to apply at a later date". Lascelles testified on discovery that he recalled being told by the Citizenship officer that Andrew could apply at any time he wanted while he was a juvenile. When Lascelles received his certificate he was not concerned that there was none for Andrew as he assumed Andrew was covered under his.
[16] Lascelles's evidence is, further, that he first learned that there was a problem with Andrew's citizenship in June/July 1999 when he and his wife overheard a telephone conversation between Andrew and an immigration officer. In August 2000, they applied through the federal access to information process for the documents that were filed with their applications for landing and citizenship. Some documents have not been found, notably Lascelles' landing records.
[17] Beverly Marshall attests in her affidavit that she believed her son was included in her application for citizenship in April, 1977. On cross-exam, Beverly testified that at the time her husband received his citizenship certificate, in September 1976, she and her husband noticed that there was no certificate for Andrew but assumed that was because he was a child and could not sign his application for himself. When she received her own certificate she again noticed that there was no mention of Andrew and again assumed that was because he was a child based on what she had been told by other immigrants.
[18] Mrs. Marshall attests that she first became aware that her son's citizenship status was in question in 1999 as a result of the telephone call Andrew received and, more definitively, in 2000 when the family received copies of records from the department of Citizenship and Immigration ("C & I") and the proceedings were initiated to certify and remove him.
[19] Andrew Marshall's evidence is that he had always assumed that he was a Canadian citizen. He states that he was interviewed by an Immigration Officer, Tammy McKnight, in July 1994, while incarcerated, but was never definitively informed that he was not a Canadian citizen. In 1997, while in custody and awaiting placement, an institutional report was filed stating that he was subject to deportation under the former Immigration Act. Mr. Marshall says he disputed that report and a check box in a subsequent document received from Correctional Service Canada ("CSC") indicates that he is not deportable. The same document describes Mr. Marshall's citizenship as "Non Canadian". In 1999, he was again contacted by an Immigration Officer. He attests that it is at that point that he and his parents began to inquire into his citizenship status and retained counsel for that purpose.
[20] Correspondence from Rosemarie Redden, Manager, Citizenship Case Review, Citizenship and Immigration Canada, filed as an exhibit by the Defendant, states that none of the children listed on the citizenship applications for Lascelles and Beverly Marshall have been granted or issued a certificate of naturalization or citizenship.
[21] Olga Pankiw, a C & I manager based in Mississauga, Ontario, was examined on discovery by the plaintiffs as to the citizenship application procedures followed in 1976 and 1977. She was a supervisor with the then Department of Citizenship in Toronto during those years and conducted interviews with persons applying for citizenship. She testified that the information on the forms would have been verified with the applicant at the time they were completed. Applicants attested to the accuracy of the contents in signing the forms. Ms. Pankiw stated that applicants with minor children would be asked whether they were applying for the children or would be applying at a later date. She described the fees that were payable for the application and the certificates.
[22] The legislation governing citizenship that was in effect when Lascelles Marshall applied, the Canadian Citizenship Act, R.S.C., 1970, c.33, was repealed and replaced by the Citizenship Act, S.C. 1974-75-76, c. 108 prior to Mrs. Marshall's application. Nothing arises from the legislative changes, in my view, with respect to the merits of this motion or the action.
[23] Immigration officer Tammy McKnight stated in her affidavit that she sent a registered letter, copy filed in evidence, in October 1993 to Andrew Marshall at his parents' address in Calgary and that it was signed for by Beverly Marshall. Mrs. Marshall acknowledged on cross-examination that she accepted the letter. The letter informed Andrew Marshall that he appeared to be reportable under the Immigration Act and requested information including his criminal history and citizenship. Ms. McKnight attests that she visited Andrew Marshall in prison in July 1994 and that he acknowledged receiving her letter. She recorded in her notes of the interview that he told her that he was not a Canadian citizen, that he was not sure if he had applied for citizenship and that he held a valid Jamaican passport. Mr. Marshall denies that he made those statements to officer McKnight although he acknowledges the meeting. On September 21, 1999 Ms. McKnight conducted another interview with Andrew Marshall in the presence of his counsel at which time she requested a copy of his passport. His Jamaican passport was subsequently provided to her and formed part of the defendant's document disclosure in this action.
The negligence claim
[24] The plaintiffs' cause of action arises from alleged acts of negligence occurring in Toronto and Ottawa, Ontario in 1976 and 1977. Section 32 of the Crown Liability and Proceedings Act, R.S. 1985, c. C-50, provides that provincial limitation laws apply to an action against the Crown when the cause of action arises in a province. Section 39 of the Federal Courts Act, similarly provides that provincial limitation laws apply to an action in the Federal Court where the cause of action arises in a province.
[25] The plaintiffs' action was filed on September 17, 2002. As the alleged cause of action arose at federal offices in Ontario, the parties agree that the applicable provincial limitation legislation is the Ontario Limitations Act, R.S.O. 1990, c.L.15 (repealed and replaced in 2002). Paragraph 45 (1)(g) of the Limitations Act provided for a six year limitation period for actions in negligence. The defendant also relies on the Public Authorities Protection Act ("P.A.P.A.") R.S.O. 1990, c.P.38. Where the action alleged is neglect or default in the execution of a public servant's duty, P.A.P.A. section 7 further narrowed the limitation period to six months.
[26] The applicable limitation period begins to run when the material facts underlying the cause of action became known: Peixero v. Haberman [1997] 3 S.C.R. 549.
[27] Andrew Marshall argues that although he was first contacted in 1993 by the immigration authorities and met with Officer McKnight in 1994, he was never categorically told that there was a problem with his citizenship. He says they never followed up with him while he was in prison and he was subsequently given mixed signals by government that led him to believe it had all been a mistake. These signals were the CSC document referred to above and the fact that he was permitted to vote by Elections Canada. Thus he claims that he did not definitively know that his citizenship status was in question until proceedings were initiated in 2000 to certify him as a danger to the public, while he was again in prison, and argues that the limitation period for him should run from that date.
[28] The plaintiffs argue that the conflict between the evidence of Andrew Marshall and Officer McKnight must be tested at trial. The jurisprudence is clear that serious credibility issues ought not to be decided on summary judgment applications: MacNeil Estate v. Canada (Indian and Northern Affairs Department) [2004] F.C.J. No. 201, 2004 FCA 50; Trojan Technologies, supra.
[29] In my view, there is no room for dispute on the evidence that Andrew Marshall was notified in 1993 by letter and again by a personal interview in 1994 that his Canadian citizenship was in question and that he was at risk of being deported because of his criminal activities. Officer McKnight made contemporaneous and detailed notes of the 1994 interview. Her account of that meeting is, in my view, incontrovertible. Andrew Marshall chose to do nothing about the matter at the time and cannot now rely upon his willful blindness to establish a later discoverability date. Thus, if there was any basis for Andrew Marshall to have a cause of action against the defendant for the alleged negligence of its officers in 1976 and 1977, it is out of time whether one applies the six year limit in the Ontario Limitations Act or the six months permitted by P.A.P.A. As time barred, his action for negligence must be summarily dismissed: Riva Stahl GmbH v. Combined Atlantic Carriers GmbH (1999) 243 N.R. 183 (F.C.A.).
[30] Lascelles and Beverly Marshall's evidence was that they did not become aware of their son's difficulty until they overheard the phone call from the Immigration Officer in 1999 and were not fully apprised of the situation until 2000. Mrs. Marshall testified that she did not read the letter received by her son in 1993 and was never told that his citizenship was in question. Accordingly, Mr. and Mrs. Marshall argue that the discoverability date for them would be, at the earliest, the date on which the phone call was made by Officer McKnight, September 21, 1999. The action was filed on September 21, 2002 and would therefore be maintainable under the six years permitted by the Ontario Limitations Act but caught by the six months limitation prescribed by P.A.P.A.
[31] Mr. and Mrs. Marshall contend that P.A.P.A. does not apply to their claim but I have been provided with no reasoned argument as to why that may be . In Kelly v.Canada (1994) 80 F.T.R. 1 (F.C.T.D.) at p.11, Justice Reed held that the Crown Liability and Proceedings Act was intended to abrogate the Crown's former special position of immunity and ruled that s.7 of P.A.P.A. did not protect the federal Crown for the actions of its public servants who commit a tort. Gibson J., however, reached the opposite conclusion in Olympia Interiors Ltd.v. Her Majesty the Queen, [1993] 2 C.T.C. 126, (upheld without reference to this issue by the Federal Court of Appeal, [1994] F.C.J. No. 716). Justice Gibson, however, declined to grant summary judgment as there were serious allegations of malicious prosecution that, if proven, would bar the application of the limitation period. It appears that Kelly is the only decision to rule that P.A.P.A. does not limit federal liability in this Court. Olympia Interiors was also followed in Collie Wollen Mills Ltd.v.Canada (1996) 107 F.T.R. 93 (F.C.T.D.) and Scottish & York Insurance Co.v.Canada [1998] F.C.J. No.18.
[32] The Ontario Court of Appeal expressly disagreed with Justice Reed's reasoning in Al's Steak House and Tavern Inc.v. Deloitte & Touche [1997] O.J. No. 3046 and held that the federal Crown was entitled to rely upon s. 7 of P.A.P.A. in an action for negligence allegedly committed by its servants.
[33] I am satisfied that the limitation period in the Ontario Public Authorities Protection Act does apply to the alleged acts of negligence on the part of the defendant's servants and, accordingly, the Marshall's action is out of time and statute barred for that reason.
[34] Even if I were to find that the Ontario statute did not apply so as to limit the time within which an action could be brought by Mr. and Mrs. Marshall, I have considerable difficulty with the proposition that they have a sustainable claim in damages against the defendant for failure to grant Andrew Marshall citizenship in 1976 and 1977.
[35] Mr. and Mrs. Marshall have gone to considerable lengths, in good faith, to try to find some evidence to support their son's claim to Canadian citizenship. They argue that if the matter were to go to trial they might still uncover some proof that Andrew's application was mishandled or misplaced. They contend that the defendant's inability to find some of Mr. Marshall's landing records supports their contention that Andrew's application must have been misplaced and that evidence of the defendant's negligence may yet be found. That is, in my view, entirely speculative and unfounded on the evidence. To the contrary, the evidence supports the defendant's position that no application for citizenship was ever made on Andrew's behalf by either his father or his mother. No request was ever made for a certificate for Andrew nor was the required fee paid for that purpose by either parent.
[36] Liability for negligence is assessed on the basis of a breach of a duty of care arising from a foreseeable and unreasonable risk of harm to one person created by the act or omission of another. In my view, the plaintiffs have not established that the defendant owed Mr. and Mrs. Marshall a duty of care to ensure that an application for the grant of citizenship for Andrew Marshall was completed in 1976 or again in 1977. Rather that duty rested with Andrew's parents as his guardians or, when he achieved the age of majority, with Andrew himself. Further, there was no foreseeable or unreasonable risk of harm to Andrew at that time as an application for citizenship could have been made at any time, on his behalf by his parents while he was still a minor child, and by himself later as an adult. It is his own conduct that has placed that objective beyond his reach.
[37] For the purpose of this motion, it is not good enough for the plaintiffs to say that more or better evidence will or may be available at trial if they are unable to meet the defendant's case now that there is no serious issue to try. In my view, the defendant has met the test to establish that there is no serious issue to try with respect to the claim of negligence.
The claim for declaratory relief
[38] I accept the defendant's argument that, at the relevant dates in these proceedings, it was not possible in law to include a minor child on an adult's citizenship application and that both the Citizenship Act which came into effect in 1977 and its predecessor, the Canadian Citizenship Act, in effect in 1976, required that a separate application be made for each person born abroad who was not the child of a Canadian citizen at the time of birth. The plaintiffs have not drawn my attention to any statutory provision or authority that would allow the Court to reach a contrary conclusion. My finding that no application was ever made by or on behalf of Andrew Marshall is therefore sufficient, in my view, to dispose of the claim for declaratory relief.
[39] The defendant has also argued that the relief requested by the plaintiffs is not available in law as it can only be granted by the Minister, acting alone or on the recommendation of a citizenship judge and is therefore beyond the jurisdiction of the Court. The plaintiffs have not addressed the issue in their argument.
[40] I conclude on the basis of the materials filed on this motion that there is no serious issue to be tried with respect to the claim for declaratory relief in this action. I do not need to determine whether there is any jurisdiction for the Court to declare an entitlement to Canadian citizenship, where the evidence and authorities would support such a finding. In this case, there is no evidentiary foundation for such a declaration.
[41] I am, therefore, satisfied that there is no serious issue to be tried with respect to the plaintiffs' claim and grant summary judgment for the defendant under Rule 216(1) with costs.
ORDER
IT IS THE ORDER OF THIS COURT that the defendant shall be granted summary judgment and the plaintiffs' action shall be dismissed with costs.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1519-02
STYLE OF CAUSE: ANDREW MARK MARSHALL,
LASCELLES MARSHALL and
BEVERLY MARSHALL
and
HER MAJESTY THE QUEEN
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: November 15, 2004
REASONS FOR AND ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: February 17, 2005
APPEARANCES:
Roxanne Haniff-Darwent FOR THE PLAINTIFFS
Rick Garvin FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROXANNE HANIFF-DARWENT FOR THE PLAINTIFFS
Darwent Law Office
Calgary, Alberta
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Edmonton, Alberta