St-Onge v. Canada, docket T-1212-90

                                                                                                                            Date: 19991130

                                                                                                                       Docket: T-1212-90

Ottawa, Ontario, November 30, 1999

Before:            HUGESSEN J.

BETWEEN:

                                                   JEAN-CHARLES ST-ONGE,

                                                                                                                                         Plaintiff,

                                                                     - AND -

                                                 HER MAJESTY THE QUEEN,

                                                                                                                                    Defendant.

                                                                    ORDER

The application for a summary judgment is allowed and the plaintiff's action is dismissed with costs.

Certified true translation

Bernard Olivier, LL. B.

                                                                                                                             Date: 19991130

                                                                                                                        Docket: T-1212-90

Between:

                                                   JEAN-CHARLES ST-ONGE,

                                                                                                                                         Plaintiff,

                                                                      - and -

                                                 HER MAJESTY THE QUEEN,

                                                                                                                                     Defendant.

                                                      REASONS FOR ORDER

HUGESSEN J.

[1]         This application for a summary judgment is made by the defendant. She is asking that the plaintiff's action be dismissed because it is prescribed.

[2]         The amended statement of claim, which is very involved and difficult to understand, essentially alleges that the defendant's officials, employees of the Canada Employment Centre (CEC) in Timmins, Ontario, committed a series of delicts and quasi-delicts against the plaintiff, and in particular infringed his equality and language rights guaranteed under ss. 15 and 20 of the Canadian Charter of Rights and Freedoms. I feel there is no need to describe these allegations in detail. Suffice it to say that the acts which the CEC employees are alleged to have committed all took place during the period between September 2, 1982 and February 22, 1984.

[3]         On February 22, 1984, the CEC told the plaintiff verbally that its services would no longer be available to him. This CEC decision was prompted by the plaintiff's refusal to take the advice of one of its advisors and undergo a psychological examination. The decision was confirmed by a letter sent to the plaintiff on March 13, 1984.

[4]         As the cause of action arose in Ontario it is Ontario law on prescription which applies. The defendant alleged two different periods of prescription, the general six-year prescription imposed in s. 45(1)(g) of the Limitations Act^[1] which applies to all actions delictual or quasi-delictual in nature, and the short six-month prescription contained in the Public Authorities Protection Act.^[2] Since the plaintiff's action was not brought until May 1990, over six years after the CEC's refusal to continue providing the plaintiff with its services, there is no need to consider the question, much in dispute in the courts,^[3] namely whether a short provincial prescription applies against a claim based on an alleged infringement of a right guaranteed by the Charter. In my view, there is absolutely no doubt that an action in tort based on delicts which are at the same time infringements of rights guaranteed by the Charter is subject to the prescription generally applicable to any action of a delictual nature. The Charter was adopted in a context which already included two well-developed systems of civil law with sophisticated rules of procedure and the appropriate courts to give effect to them. The Charter contains no purely procedural provisions and no rule governing prescription.

[5]         Clearly, it does not follow from this that the Charter has completely destroyed existing systems and created a system in which no procedure or prescription exists. On the contrary, existing legislation and procedures continued to apply except where they were clearly inconsistent with the Charter itself. A prescription deadline which generally applies to all actions of the same nature and does not in any way discriminate against certain groups of litigants does not in any way contravene the Charter.^[4] I will note in passing that even if I considered that one or another of the Ontario statutes in question was inconsistent with the Charter, which is not the case, the plaintiff did not request a ruling to that effect and did not give the notice required by s. 57 of the Federal Court Act.^[5]

[6]         As to the part of the application alleging infringements of the equality right, it is clear that it must be dismissed for the simple reason that each of the incidents alleged took place before April 1985, the date on which s. 15 of the Charter came into effect.

[7]         The remainder of the amended statement of claim does not allege any specific delict later than March 1984 either. In my opinion, the claim is prescribed for the reasons mentioned above.

[8]         However, the plaintiff argued that his action cannot be prescribed as although the CEC's decision to cease offering him its services was taken on February 1984 it continued to produce consequences until 1997, long after the action was brought.

[9]         The defendant's officials, employees of the CEC, continued to refuse services so long as he did not agree to take another psychological test, until the Act was amended in 1997. However, the plaintiff was wrong to argue that this was a series of delicts or quasi-delicts, each giving rise to a new right of action. On the contrary, it was actually the application over time of a single decision. Accordingly, even if the plaintiff was right in arguing that this decision was wrong and so gave rise to a cause of action, the fact that its implementation extended over a period of several years does not thereby extend the applicable period of prescription.

[10]       Finally, the plaintiff argued that his right of action was not prescribed because it was not until 1996 that he learned of the existence of certain proof of allegedly wrongful acts by

CEC employees. In his submission, so long as he did not have this proof available he could not act. He is wrong. It is clear from several documents in the record that in February 1984 the plaintiff knew exactly the nature and extent of the grievances he had against the defendant. He complained of them, first in a letter to the responsible Minister, then in a complaint to the Human Rights Commission and later to the Commissioner of Official Languages. The fact that he did not have all the evidence of an alleged delict available does not prevent prescription from running against a person who is aware of the fact that the said delict caused him injury. In other words, since there was nothing to prevent the plaintiff exercising his alleged rights of action immediately in 1984, the prescription began to run as soon as the acts of the defendant to which he objected took place. There is a clear distinction to be made between knowledge that one is owed a duty and having the means to prove its existence. The prescription period begins to run from the former, not the latter situation.

[11]       I therefore conclude that the application for a summary judgment should be allowed and the plaintiff's action dismissed with costs.

Ottawa, Ontario

November 30, 1999

Certified true translation

Bernard Olivier, LL. B.

                                                FEDERAL COURT OF CANADA

                                                             TRIAL DIVISION

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:                                                    T-1212-90

STYLE OF CAUSE:                                         JEAN-CHARLES ST-ONGE v. HER MAJESTY THE QUEEN

PLACE OF HEARING:                                    Ottawa, Ontario

DATE OF HEARING:                                      November 22, 1999

REASONS FOR ORDER BY:                         HUGESSEN J.

DATED:                                                            November 30, 1999

APPEARANCES:

Jean-Charles St-Onge                                       FOR HIMSELF

Jan Brongers                                                     FOR THE DEFENDANT

SOLICITORS OF RECORD:

Jean-Charles St-Onge                                       FOR HIMSELF

Ottawa, Ontario

Morris Rosenberg                                              FOR THE DEFENDANT

Deputy Attorney General of Canada

Ottawa, Ontario