Date: 19990920
Docket: A-343-98
IN RE THE CROWN LIABILITY AND PROCEEDINGS ACT, 1995
s.3(a)
IN RE THE FEDERAL COURT ACT, 1997
s. 17(2)(d) and s. 17(5)(b)
CORAM: DÉCARY J.A.
ROBERTSON J.A.
McDONALD J.A.
BETWEEN:
ISTVAN SZEBENYI JR.
GIZELLA SZEBENYI
ISTVAN SZEBENYI SR.
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, Monday, September 20, 1999
Judgment delivered orally from the Bench
at Toronto, Ontario on Monday, September 20, 1999
REASONS FOR JUDGMENT BY: ROBERTSON J.A.
Date: 19990920
Docket: A-343-98
IN RE THE CROWN LIABILITY AND PROCEEDINGS ACT, 1995
s.3(a)
IN RE THE FEDERAL COURT ACT, 1997
s. 17(2)(d) and s. 17(5)(b)
CORAM: DÉCARY J.A.
ROBERTSON J.A.
McDONALD J.A.
BETWEEN:
ISTVAN SZEBENYI JR.
GIZELLA SZEBENYI
ISTVAN SZEBENYI SR.
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
(Delivered orally from the Bench at Toronto, Ontario on
Monday, September 20, 1999)
ROBERTSON J.A.:
[1] This is an appeal from an order of the Trial Division allowing the respondent"s application to strike the appellants" statement of claim. No reasons were given for the order but it is common ground that the respondent had argued that the statement of claim disclosed no reasonable cause of action. We are all of the view that the appeal should be allowed.
[2] The appellants, who are unrepresented, filed a statement of claim seeking damages flowing from the manner in which an application for landing was handled by Canadian immigration officials in Austria. The appellant Istvan Szevenyi Jr. is seeking to sponsor his parents, Gizella Szebenyi and Istvan Szebenyi Sr. The latter two appellants are or were residents of Hungary. Apparently no decision on the application for landing has been made as all of the requested medical information has not been received from the concerned appellants. It is the position of the appellant Gizella Szebenyi that she has been required to submit to several medical examinations despite the fact that initial results proved to be negative. There is also an allegation that immigration officials in Vienna have lost or destroyed confidential medical documents. Despite the broad nature of the allegations contained in the statement of claim it is apparent that the cause of action is founded in the negligent handling of the application for landing. That being said we are also of the view that the appellants should restrict their attack to that ground only and, therefore, should restrain themselves from pursuing the grounds of "discrimination", "professional misconduct", "vexation" and "violation of privacy".
[3] The respondent takes the position that the substance of the statement of claim comes within the purview of an application for judicial review rather than an action. We disagree. The fact of the matter is that the appellants are seeking damages for the mishandling of the application for landing. More importantly, the appellants are not challenging a decision which has yet to be made with respect to that application. For this reason, Zubi v. Canada (1993), 71 F.T.R. 168 is not applicable.
[4] Accordingly, the appeal should be allowed and the order of the Trial Division dated June 3, 1998 set aside. It follows that the respondent"s motion to strike the statement of claim must be dismissed. The appellants should be reimbursed for their costs both here and below.
"J.T. Robertson"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-343-98
| STYLE OF CAUSE: ISTVAN SZEBENYI JR. |
GIZELLA SZEBENYI
ISTVAN SZEBENYI SR.
| Appellants |
- and -
| HER MAJESTY THE QUEEN |
| Respondent |
DATE OF HEARING: MONDAY, SEPTEMBER 20, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: ROBERTSON J.A. |
Delivered at Toronto, Ontario
on Monday, September 20, 1999
APPEARANCES: Istvan Szebenyi Jr.
| For the Appellants in Person |
Ms. Susan Nucci
For the Respondent
| SOLICITORS OF RECORD: Istvan Szebenyi Jr. |
Gizella Szebenyi
Istvan Szebenyi Sr.
375 Trafalgar Avenue
Oshawa, Ontario
L1H 3V2
| For the Appellants in Person |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF APPEAL
Date: 19990920
Docket: A-343-98
BETWEEN:
ISTVAN SZEBENYI JR.
GIZELLA SZEBENYI
ISTVAN SZEBENYI SR.
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT