Date: 20020319
Docket: A-223-01
Neutral citation: 2002 FCA 110
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
JAN HOY CASSELLS, LORRAINE CASSELLS,
JACQUELINE WALLACE, DALTON HUGH and
CHEYENNE CASSELLS by their Litigation Guardian,
LORRAINE CASSELLS
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, Monday, March 18, 2002.
Judgment delivered from the Bench at Toronto, Ontario,
on Monday, March 18, 2002.
REASONS FOR JUDGMENT OF THE COURT: EVANS J.A.
Date: 20020319
Docket: A-223-01
Neutral citation: 2002 FCA 110
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
JAN HOY CASSELLS, LORRAINE CASSELLS,
JACQUELINE WALLACE, DALTON HUGH and
CHEYENNE CASSELLS by their Litigation Guardian,
LORRAINE CASSELLS
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario,
on Monday, March 18, 2002)
EVANS J.A.
[1] This is an appeal from an order of a Judge of the Trial Division (Cassells v.The Queen, 2001 FCT 263) dismissing a motion for summary judgment brought by the appellants against the respondent, Her Majesty the Queen. The motion arose from an action by Jan Hoy Cassells, his wife and their children claiming damages for various kinds of loss that they allegedly sustained when Mr. Cassells was unlawfully removed from Canada in 1998 pursuant to a deportation order.
[2] The removal was unlawful because Mr. Cassells was at that time subject to a witness summons issued at the instance of his wife. The summons required him to appear as a witness at the hearing of an application brought by Ms. Cassells in the Ontario Court (Family Division) to have a supervision order varied by transferring responsibility for the supervision of the family from a children's aid society in Toronto to one in Windsor, the city to which they had moved. The Immigration Act, R.S.C. 1985, c. I-2, paragraph 50(1)(a), provides that a removal order shall not be executed if the removal would "directly result in the contravention of any other order made by a judicial body in Canada."
[3] In an order dated June 8, 1998, Brockenshire J. of the Ontario Court (General Division) held that the existence of the witness summons rendered Mr. Cassells' removal unlawful and ordered the Minister of Citizenship and Immigration to permit him to return to Canada at public expense. He held that it was not for immigration officials to decide for themselves that the summons was a sham and, on the strength of their conclusion, to remove Mr. Cassells. If they had believed that the summons was a sham, an application should have been made to have it quashed, but no such application was made.
[4] The Motions Judge held that, although not pleaded in the defence to the appellants' motion for summary judgment, the Crown might have available to it the defence of ex turpi causa non oritur actio, on the ground that the witness summons might have been obtained for the improper purpose of delaying further Mr. Cassells' removal from Canada. The Motions Judge held that, in fairness to individuals who might be concerned in anti-social conduct of this kind, adverse findings should not be made without their first having an opportunity to put their position before the Court.
[5] In his argument before us, counsel for Mr. Cassells and his family submitted that the Motions Judge made three errors that justify this Court in reversing the decision and granting their motion for summary judgment. First, he submitted that the issue of ex turpi causa was res judicata because Brockenshire J. had found that the summons was not a sham. This is not how we read the reasons of the learned judge. In our view, he said only that it was not for the officials to take it upon themselves to disregard the witness summons and to remove Mr. Cassells.
[6] Counsel also argued that Brockenshire J. must have decided that the summons was not a sham, because otherwise he would have refused to grant the discretionary order requiring the Minister to permit Mr. Cassells to return to Canada at public expense. In the absence of any indication in the reasons on this point, we are unwilling to speculate and cannot conclude on the basis of his reasons and the order that he made that Brockenshire J. implicitly must have found that the summons was not a sham.
[7] Second, counsel argued that the ex turpi causa issue was res judicata because it was not raised by the Crown when it moved in the Federal Court to have the appellants' action for damages struck as frivolous and vexatious, a motion dismissed by Rouleau J. on June 9, 1998. In our view, the Crown's failure to rely on ex turpi causa in that motion, which was dismissed, does not preclude it from subsequently amending its statement of defence to the appellants' statement of claim.
[8] Third, counsel for the appellants maintained that the Crown had not explicitly raised the ex turpi causa issue at the hearing of the motion, and had not pleaded it in the statement of defence to the appellants' statement of claim. Consequently, counsel submitted, the Motions Judge erred in raising the issue himself, because it was incompatible with the adversarial nature of litigation and had prejudiced the appellants who had had no notice of the defence and consequently had been denied an adequate opportunity to respond to it.
[9] Whether or not the Motions Judge erred in raising on his own initiative the ex turpi causa issue, we are satisfied that the statement of claim contains issues of fact and law that are not appropriately resolved on a motion for summary judgment. In addition, the fact that, in the course of a motion for summary judgment, a Judge suggests a possible defence not previously pleaded does not in itself preclude the party concerned from seeking to amend its pleadings in accordance with that suggestion.
[10] In our opinion, it is clear from the materials before us that the appellants' claim should not be decided without a trial. Indeed, counsel for the appellants concedes that a trial is necessary to quantify the damages. As for the issues of liability, the appellants will have to prove much more than the fact that Mr. Cassells was removed from Canada in breach of paragraph 50(1)(a), the only issue decided by Brockenshire J.
[11] Not every administrative action taken in contravention of a statutory provision results in a right to monetary compensation. Our law does not recognise a general tort of causing loss by ultra vires acts or by conduct that violates a person's constitutional rights. In order to recover damages, the appellants may have to prove, among other things, not only that Mr. Cassells' removal was unlawful (the question that is res judicata), but also that the officials involved in the events surrounding his removal acted with malice, recklessness or in breach of a duty of care that they owed to Mr. Cassells, or that the removal gave rise to a claim by the appellants, other than Mr. Cassells himself, under subsection 61(1) of the Family Law Act, R.S.O. 1990, c. F-3.
[12] That the appellants cannot simply base their claim for damages on the order of Brockenshire J. appears to be acknowledged in their statement of claim. For example, in paragraph 28, they assert that, in ordering Mr. Cassells' removal, the expulsions officer was "reckless and ... [acted] without regard to his constitutional rights" and that there was no reasonable basis on which the warrant for his arrest could have been issued. Further, in paragraph 31, the appellants state that an allegedly defamatory letter given to Jamaican authorities when Mr. Cassells arrived was written by immigration officials "with malice". Moreover, difficult questions may arise on these issues as to whether, if the officials were mistaken, their mistakes were mistakes of law or of fact, and whether anything turns on that distinction in this context.
[13] Counsel argued that the respondent could not deprive the appellants of the benefit of summary judgment by including in their statement of defence wholesale and general denials of the allegations in the statement of claim, especially in view of Brockenshire J.'s finding that Mr. Cassells' removal was unlawful because of the existence of the witness summons, of which the officials concerned were aware at all material times.
[14] In our view, however, the Motions Judge was correct to refuse to grant the appellants' motion for summary judgment because the appellants' statement of claim evidently raises a multitude of difficult issues of law and fact that can properly be decided only on the basis of the kind of full factual record that is developed after a trial. Further, in her affidavit, Ms. Davidson, the expulsions officer, stated that neither she nor, to the best of her knowledge, other immigration officials, were motivated by any improper considerations, but believed that there was no legal impediment to Mr. Cassells' removal.
[15] In a case raising simpler, more clear-cut legal issues, it might have been necessary for the Crown, in putting its best foot forward in response to the motion, to have filed more evidence. However, in this case, which raises difficult issues, including issues of law that are fact-dependent, it was open to the Motions Judge on the totality of the material before him to dismiss the appellants' motion for summary judgment.
[16] For these reasons, and despite the efforts of Mr. Barnwell, counsel for the appellants, the appeal will be dismissed with costs.
"John M. Evans"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: A-223-01
STYLE OF CAUSE: JAN HOY CASSELLS, LORRAINE CASSELLS,
JACQUELINE WALLACE, DALTON HUGH and
CHEYENNE CASSELLS by their Litigation Guardian,
LORRAINE CASSELLS
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
DATE OF HEARING: MONDAY, MARCH 18, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: EVANS J.A.
DATED: TUESDAY, MARCH 19, 2002
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON MONDAY, MARCH 18, 2002.
APPEARANCES BY: Mr. Osborne G. Barnwell
For the Appellants
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: FERGUSON, BARNWELL
Barristers & Solicitors
515 Consumers Road, Suite 310
Toronto, Ontario
M2J 2Z4
For the Appellants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20020319
Docket: A-223-01
BETWEEN:
JAN HOY CASSELLS, LORRAINE CASSELLS,
JACQUELINE WALLACE, DALTON HUGH and
CHEYENNE CASSELLS by their Litigation Guardian,
LORRAINE CASSELLS
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
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