Date: 20050624
Docket: T-1955-02
Citation: 2005 FC 900
Ottawa, Ontario, this 24th day of June, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
ISAAC AMANKWAH
KWABENA POKU AMANKWAH
Plaintiffs
- and -
HER MAJESTY THE QUEEN
DR. BLANKSON AND MEDLAB LTD. GHANA
Defendants
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] In this motion, the Defendant, Her Majesty the Queen (the "Crown") seeks an order of this Court for summary judgment and dismissing the Plaintiffs' claim as against the Crown.
[2] For the reasons that follow, I am of the view that the motion should succeed.
Background
[3] The Plaintiffs are Isaac Amankwah, a Canadian citizen, and Kwabena Poku Amankwah, his son. For ease of reference, I will refer to them as father and son.
[4] In 1997, the father sponsored his son to join him in Canada. As part of the routine immigration protocol, the son was examined by Dr. Blankson, a medical practitioner in Ghana and a Defendant in this action. Prior to his examination, he attended for testing by Defendant lab, Medlab, in Ghana. Dr. Blankson concluded, on the basis of the test results, that the son was an "HIV carrier".
[5] The medical file was forwarded for review and assessment by Dr. Lapointe, a Canadian medical officer employed by the Medical Officer and Specialist Advisor with the Medical Services Branch of Citizenship and Immigration Canada ("CIC"). Dr. Lapointe determined that the son was medically inadmissible to Canada based on his HIV status. The Plaintiffs were given 60 days to respond with new medical evidence once they had been notified of the results in August 1997. The father advised the Canadian High Commission in Ghana that they did not dispute the lab findings; the son's immigration application was denied.
[6] In March 2001, the son underwent new tests which were HIV negative. On March 12, 2002, a visa was issued to the son.
[7] On November 22, 2002, the Plaintiffs commenced this action against the Defendants.
Analysis
Test for summary judgment
[8] Rule 213(2) of the Federal Court Rules, 1998, SOR/98-106 provides that:
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(2) Where available to defendant - 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.
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(2) Requête du défendeur - Le défendeur peut, après avoir signifié et déposé sa défense et avant que l'heure, la date et le lieu de l'instruction soient fixés, présenter une requête pour obtenir un jugement sommaire rejetant tout ou partie de la réclamation contenue dans la déclaration.
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[9] In assessing this motion, the test is "not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial" (Granville Shipping Co. v. Pegasus Lines Ltd. [1996] 2 F.C. 853, at para. 8 (F.C.T.D.)).
[9] Rule 216(1) states that:
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(1) Where no genuine issue for trial - 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.
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(1) Absence de véritable question litigieuse - 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.
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Burden on Plaintiffs/Respondents
[10] There is a burden on the Plaintiffs in responding to a motion for summary judgment to put their best foot forward and, as provided by Rule 215, a response to this motion cannot "rest merely on allegations or denials of the pleadings, but must set out specific facts showing that there is a genuine issue for trial". The Plaintiffs must submit such specific and relevant evidence as is reasonably available showing that a genuine issue for trial exists (Feoso Oil Ltd. v. Ship Sarla (The) (1995), 184 N.R. 307, at para. 15 (F.C.A.)). I note that, beyond an affidavit of the father, which merely restates the alleged facts disclosed in the statement of claim, no evidence was submitted by the Plaintiffs.
[11] The Plaintiffs submit that they cannot produce any further evidence with respect to the actions of the Crown or the Crown's agent since it is evidence within the control of the Crown which they have been unable to obtain. However, I note that the Plaintiffs did not request any examinations for discovery of the Defendants as they could have. The Plaintiffs could have and should have exercised their rights of discovery. It would not be equitable, at this stage, to allow the Plaintiffs to rely on their own omissions to bolster their position on this motion.
[12] As noted, the Plaintiffs claim the Crown is liable in tort. Therefore, it must be shown that there was an act or omission committed by a servant of the Crown, that there would be a cause of action in tort against the Crown servant personally and that the circumstances are such that the Crown would be held vicariously liable (Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 3 and s. 10). In this case, as clarified (in part) during oral submissions on this motion, the Plaintiffs claim that each of Dr. Lapointe, the medical officer of CIC, and MedLab were negligent in misdiagnosing the son as being HIV positive. The claim against the Crown, in their submission, results because:
1. Dr. Lapointe is an employee of the Crown.
2. Because the department officials required that the Plaintiffs use the MedLab facilities, MedLab was an agent of the Crown.
[13] To prove a claim of negligence, the Plaintiffs must establish that:
(a) the Defendants owed the Plaintiffs a duty of care;
(b) the Defendants breached or failed to meet that duty;
(c) the failure or breach must be the proximate cause of the damages; and
(d) the resulting damages must be foreseeable.
[14] For purposes of this analysis, I will assume, without deciding, that the MedLab is an agent of the Crown.
[15] Absent a duty of care, there can be no liability. In this case, the Plaintiffs have not pleaded or identified the nature of the duty of care owed to them and the manner in which it was negligently breached in the assessment of the son's application for permanent residence in Canada. Nor have they, as part of this motion, put forward any evidence on the duty of care owed by either Dr. Lapointe or MedLab to the Plaintiffs. A bare assertion that misdiagnosis constitutes negligence is insufficient. As set out in Anns v. Merton London Borough Council [1978] A.C. 728 (H.L.), a duty of care imposed on a public body requires a finding of proximity sufficient to create a prima facie duty of care, followed by consideration of whether there were any factors negativing that duty of care. The Supreme Court of Canada has repeatedly affirmed that approach as appropriate in the Canadian context (Cooper v. Hobart, [2001] S.C.J. No. 76, at para. 24). In the circumstances of this claim, the Plaintiffs have raised no arguments to persuade me that either aspect of that test can be made out. Accordingly, on this basis alone, the claim should fail.
[16] Even assuming that there was a duty of care owed by the Crown or the Crown's agents in this case, there is no evidence that the Defendants breached that duty. The Plaintiffs baldly and without support contend that the misdiagnosis of the son constituted negligence on the part of Dr. Lapointe and MedLab. However, the only evidence on this point, produced by the Crown, is that there are a number of reasons that the HIV tests could have led to the conclusion that the son was an "HIV carrier". Dr. Lapointe, affiant for the Crown and the medical officer who examined the initial test results, listed three hypotheses about how the results could have shown positive:
_ In a laboratory error, the tests of two different individuals were interchanged;
_ The Western blot test of July 1997 was a false positive;
_ The samples in 1997 and 2001 came from two different individuals (falsification and substitution).
[17] The Plaintiffs do not put forward any evidence that would enable the Court to conclude, even on a prima facie basis, that negligence of MedLab or Dr. Lapointe, rather than the other possible reasons, led to the diagnosis of the son as an "HIV carrier".
Facts in Dispute
[18] In assessing whether summary judgment should be granted, the Court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exits as to the material facts requiring a trial. If a fact is not material to an action, in the sense that the result of the proceeding does not turn on its existence or non-existence, then it cannot relate to a genuine issue for trial (MacNeil Estates v. Canada 2004 FCA 50, at para 38). In this case, the Plaintiffs assert that some material facts are in issue. They point to the disagreement as to whether the first HIV test was a misdiagnosis as they claim or an "inconsistency" as the Crown posits. In my view, this difference is immaterial to whether the Crown breached a duty of care. The Plaintiffs also point to the issue of the relationship between MedLab and the Crown. Again, the answer to this question is immaterial as, whether there is an agency relationship or not, the Plaintiffs have failed to present any evidence whatsoever that there exists or has been a breach of any duty of care by MedLab.
Conclusion
[19] For these reasons, I conclude that this case is so doubtful that it does not deserve consideration by the trier of fact at a future trial. Accordingly, pursuant to Rule 216(1), I am satisfied that there is no genuine issue for trial with respect to the Statement of Claim of the Plaintiffs. The Defendant Crown is entitled to summary judgment with costs to be assessed with reference to column III of the table to Tariff B in the Federal Court Rules, 1998.
ORDER
This Court orders that:
1. The motion for summary judgment is granted and the Plaintiffs' claim against Her Majesty the Queen is dismissed; and
2. Costs of this motion and of the action are awarded to the Crown, to be assessed with reference to column III of the table to Tariff B in the Federal Court Rules,1998.
______________________________
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1955-02
STYLE OF CAUSE: ISAAC AMANKWAH ET AL v.
HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 22, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: June 24, 2005
APPEARANCES:
Mr. V. Charles Anipare FOR PLAINTIFFS / RESPONDING PARTY
Ms. Marina Stefanovic
Ms. Neeta Logsetty FOR DEFENDANTS / MOVING PARTY
SOLICITORS OF RECORD:
Mr. V. Charles Anipare
Toronto, Ontario FOR PLAINTIFFS / RESPONDING PARTY
John H. Sims, Q.C.
Department of Justice
Toronto, Ontario FOR DEFENDANTS/ MOVING PARTY
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