Date: 20031126
Docket: T-290-99
Citation: 2003 FC 1393
Toronto, Ontario, November 26th, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
EDWIN PEARSON
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] Her Majesty the Queen (the "Defendant") appeals from the order of Prothonotary Aronovitch dated September 11, 2003, dismissing the motion to strike this statement of claim filed by Mr. Edwin Pearson (the "Plaintiff"). In her Reasons for Order, Prothonotary Aronovitch considered the arguments submitted dealing with the alleged prescription of the Plaintiff's claim pursuant to the Quebec Civil Code and arguments relating to the Defendant's characterization of the Plaintiff's statement of claim as advancing a claim for malicious prosecution that fails to meet the legal test for such a claim.
[2] On February 28, 1999, the Plaintiff commenced the present action in the Federal Court of Canada Trial Division, as it then was. The Plaintiff raised the claim that his constitutional rights, pursuant to sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter") were breached by the action of certain employees of the Defendant, and that the breaches give rise to a claim for a remedy pursuant to section 24(1) of the Charter. He seeks recovery of several million dollars for compensation, general and punitive damages for the alleged breaches of his Charter rights by servants of the Defendant in relation to his prosecution upon charges of trafficking in narcotics.
[3] In the Reasons for Order, Prothonotary Aronovitch reviewed the history of the legal proceedings involving the Plaintiff in relation to these criminal charges. It is not necessary to repeat that factual background here. However, it is worth noting that in the trials, appeals to the Quebec Court of Appeal and an appeal to the Supreme Court of Canada, the issues of entrapment and possible breaches of his Charter rights were raised by the Plaintiff as part of his defence to the criminal proceedings. Ultimately, in the context of the criminal law, the issue of entrapment was decided against the Plaintiff when the Quebec Court of Appeal affirmed the trial judge's finding that entrapment had not been established in R v. Pearson, [1999] Q.J. No. 5135 (Que. C.A.).
[4] The Prothonotary dismissed the Defendant's motion to strike the statement of claim on the grounds that the issue of applicability of provincial time limitations to a claim for a section 24(1) remedy for an alleged breach of Charter rights is contentious, that a contested statement of claim should not be stricken out at an interlocutory stage on the basis of a limitation period, and that the Defendant had no right to adopt a different characterization of the Plaintiff's claim, that is malicious prosecution, when the Plaintiff did not describe his cause of action in those terms.
[5] The Defendant now argues that the Prothonotary erred in law. She argues that it is "plain and obvious" that the claim in this action is prescribed, according to the laws of the province of Quebec, specifically the Quebec Civil Code and the Civil Code of Lower Canada. Relying on Articles 2925 and 2926 of the Quebec Civil Code and Article 2261.2 of the Civil Code of Lower Canada, the Defendant says that the Plaintiff's claim originated on or before May 1991, the date on which the convictions on four charges were initially entered, or alternatively when the damage first became apparent to the Plaintiff. As a further alternative, the Defendant says that the cause of action was known to the Plaintiff at the second entrapment hearing in November 1994, and the prescription period would then begin to run from November 1994 and not later than November 16, 1994 when the Plaintiff filed his application for leave to appeal that decision.
[6] The Defendant says that according to the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as amended, the law of the province in which the cause of action arose governs the determination of the applicable limitation period. The law of Quebec provides a time bar of three years and accordingly, the Plaintiff's action is prescribed.
[7] The Defendant argues that the Prothonotary erred in failing to apply the Quebec law concerning prescription to the Plaintiff's claim and by failing to strike the statement of claim as disclosing no reasonable cause of action.
[8] The Defendant argues that the Prothonotary also erred by failing to recognize that the Plaintiff's claim is based on the tort of malicious prosecution and as such, it fails to meet the test adopted by the Supreme Court of Canada in Nelles v. Ontario, [1989] 2 S.C.R. 170.
[9] The Plaintiff takes the position that there was no error committed by the Prothonotary in dismissing the Defendant's motion. He says that the provincial law on prescription does not apply to an alleged breach of his Charter rights and additionally, argues that provincial legislation that attempts to impose a time limitation to protection of a constitutional right is unconstitutional. In that regard, the Plaintiff gave notice of a constitutional question pursuant to section 57 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended.
[10] The Plaintiff also argues that his statement of claim does not refer to the tort of malicious prosecution, but only to the malicious manner in which the agents and employees of the Defendant acted.
[11] The Prothonotary, in her Reasons for Order, reviewed the applicable and relevant law. She found that the law of the province of Quebec applies. She referred to conflicting jurisprudence as to the applicability of provincial limitation statutes to permit a claim for breach of a constitutional right. She noted that the law in this area is unsettled and said as follows, at paragraph 18:
I note in this connection, that Pearson's claim does not allege a common law tort, or indeed, show any cause of action independent of the Charter, but seeks damages ostensibly exclusively on the basis of constitutional or "Charter tort", (see: McGillivary supra, and Oniel v. Toronto (Metropolitan Police Force), [1998] O.J. No. 3840 reversed, Oniel v. Toronto (Metropolitan Police Force) [2001] O.J. No. 90 (Ont. C.A.). I note as well that leave to appeal to the Supreme Court of Canada was denied in both Prete and Gauthier, and do not accept that Gauthier is determinative of the issues, notwithstanding that the action arises in Quebec. I take the matter to be contentious and not one to be settled on a motion to strike.
[12] The Prothonotary also considered the propriety of dealing with the question of a time limitation on a motion to strike and concluded that such determination should not be made in the absence of a full factual context.
[13] Finally, the Prothonotary dismissed the Defendant's arguments on the issue of malicious prosecution in the following terms at paragraph 25:
It is without doubt for the litigant to choose the form of his or her claim. The defendant cannot impute a kind of action to the plaintiff that he did not institute, alleging that it is the most appropriate characterization of the plaintiff's action, and then ask the Court to dismiss it because it does not fit the elements necessary for such characterization. Pearson is not suing for malicious prosecution and whether his claim can meet the necessary elements of this tort, is irrelevant. An order will go accordingly.
[14] The standard of review applicable to appeals from a prothonotary was addressed by the Federal Court of Appeal in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (F.C.A.). Unless the decision is clearly wrong in that it was based upon a wrong legal principle or upon a misapprehension of facts, involved the exercise of discretion in an unjudicial manner, or raised issues vital to the final disposition of the action, the decision should remain undisturbed on appeal.
[15] In Telefonaktiebolaget LM Ericson v. Harris Canada, Inc., [2002] F.C.J. No. 789, the Court found that a de novo standard should be applied when a decision could be described as interlocutory or final, depending upon the result. That standard applies here and I will consider the Prothonotary's decision on a de novo basis. Did the Prothonotary make a reviewable error when she dismissed the Defendant's motion to strike the Plaintiff's statement of claim?
[16] In my opinion, she did not. It is apparent that she considered the relevant law concerning the application of provincial time limitations to a claim for a remedy pursuant to the Charter. She found that there is conflicting jurisprudence on that issue and in the exercise of her discretion refused to strike the statement of claim. I see no error in the manner in which the Prothonotary decided that issue.
[17] Likewise, I see no error in the manner in which the Prothonotary disposed of the Defendant's challenge to the statement of claim on the grounds that the Plaintiff is really advancing a claim for malicious prosecution and is unable to meet the legal test for such a claim. I agree with the Prothonotary's conclusion that the Plaintiff is at liberty to choose the manner in which he frames his action. The burden lies on the Plaintiff to prove the allegations made in his statement of claim and to demonstrate that he has suffered compensable breaches of his Charter rights.
[18] As for the issue of the constitutional question raised by the Plaintiff in this motion, this issue was not before the Prothonotary and is not properly before me on this appeal.
[19] The appeal is dismissed with costs.
ORDER
The appeal is dismissed, with costs.
"E. Heneghan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-290-99
STYLE OF CAUSE: EDWIN PEARSON
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
DATE OF HEARING: NOVEMBER 24, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: NOVEMBER 26, 2003
APPEARANCES BY:
Edwin Pearson For the Applicant
Jacques Savary For the Respondent
SOLICITORS OF RECORD:
Edwin Pearson
Burlington, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario For the Respondent
FEDERAL COURT
TRIAL DIVISION
Date: 20031126
Docket: T-290-99
BETWEEN:
EDWIN PEARSON
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
AND ORDER
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