Date: 19990609
Docket: IMM-5528-98
BETWEEN:
JAN HOY CASSELLS
LORRAINE CASSELLS, DALTON WALLACE, JACQUELINE WALLACE
CHEYENNE CASSELLS by their Litigation Guardian, LORRAINE CASSELLS
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
ROULEAU J.
[1] This motion brought by the defendant came before me at Toronto on June 7, 1999. It seeks an order striking the plaintiffs' statement of claim or in the alternative an order granting the defendant an extension of time to serve and file its statement of defence.
[2] The plaintiffs claim damages for wrongful detention and subsequent removal from Canada of the plaintiff Jan Hoy Cassells pursuant to the Immigration Act; the deprivation of his rights; the plaintiff Lorraine Cassells and the infant children claim damages for marital distress and deprivation of financial and moral support provided by their father the plaintiff Jan Hoy Cassells.
[3] The facts in the statement of claim are to be considered true and the Court should not strike out unless it is plain and obvious and beyond doubt that the case cannot succeed.
[4] The defendant argues that the Minister cannot be held liable in cases where there is an alternative remedy available; that the plaintiff should have attacked the removal order. I am not aware of any other available procedure that the plaintiffs could have initiated.
[5] The judicial review remedy may have been open to the plaintiff, but I doubt very much that such an intervention would have been feasible given the amount of time that elapsed between the time of arrest and the removal from Canada. May I suggest further that such a remedy may be available but it cannot sustain a claim to recover damages or pecuniary loss. The only available remedy was to commence an action by way of statement of claim in order to seek retribution for the alleged wrong-doing.
[6] A very cursory review of the statement of claim reveals a cause of action that could possibly meet with success.
[7] The facts briefly stated are the following. Jan Hoy Cassells was subject to a deportation order made against him in May of 1995. Pursuant to the order he was arrested April 28, 1998 by Immigration officers, detained and deported from Canada April 29, 1998.
[8] The male adult plaintiff had previously received a summons to appear in court in Canada to testify as a witness in a murder trial following which he had been placed under the Witness Protection Program of Ontario.
[9] In the latter part of 1997 he was served with a summons to appear in Provincial Family Court and Gibson J. of this Court on December 17, 1997 issued an order pursuant to section 50(1)(a) of the Immigration Act which was a bar to the removal of Mr. Cassells to Jamaica.
[10] In early April of 1998 he was served with a further summons to appear in Provincial Family Court on June 30, 1998. Shortly thereafter he received notification from Immigration Canada to report for removal on April 27, 1998. He did not report relying on the previous court order and expecting that the authorities would respect the past procedure.
[11] It is alleged that the authorities were aware and advised that procedures had been initiated in the Ontario Court General Division seeking the court's intervention. They nevertheless deported the adult male plaintiff. This procedure was followed up in the Ontario courts and by order dated June 8, 1998 the court found the removal to be illegal and ordered that he be returned to Canada at the expense of the Minister.
[12] After 57 days in Jamaica he was returned. The order of the Ontario Court General Division was not appealed.
[13] I am not convinced that the actions of the servants of the Crown are without blame and could possibly provide grounds for an action in tort from which pecuniary damages might flow.
[14] Though this was not a motion seeking particulars or requesting the striking of certain paragraphs or allegations, I agree that the statement of claim is in many ways deficient and certain prayers such as relief under the Family Law Reform Act of Ontario as well as declaratory relief respecting outstanding actions taken by the Immigration authorities are not appropriate; I agree that certain paragraphs should be amended, but the defendant's remedy for striking the statement of claim in its entirety should not be granted and I am satisfied that this exercise was an abuse of process. Other less drastic approaches were available.
[15] It should be noted that the plaintiffs filed their statement of claim in October of 1998; the defendant then filed a motion to strike in November of 1998; the Court ruled that the matter be heard on February 1, 1999; it was then adjourned to a special sitting to be fixed by the administrator but within 30 days. It is apparent that the motions judge when granting the adjournment was satisfied as to the urgency of the matter and underlined that it be brought to trial in an expeditious manner.
[16] No special date was available until June 7, 1999 when this matter came before me at Toronto. I am convinced of the need to bring this matter to a conclusion as rapidly as possible and I hereby order as follows:
| 1. That the motion to strike the Statement of Claim is hereby dismissed. Costs to the plaintiff payable forthwith in the amount of $750.00; |
| 2. That the Statement of Defence be served and filed not later than June 18, 1999; Reply, if necessary, by June 25, 1999; |
| 3. Discoveries are to be completed by July 30, 1999; |
| 4. A joint application for a trial date should be filed after the conclusion of discoveries; should the defendant fail to cooperate, the plaintiff is at liberty to file a unilateral application for a trial date; |
| 5. The motion and cross-motion have now been resolved. |
"Paul Rouleau"
Judge
TORONTO, ONTARIO
June 9, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-5528-98 |
| STYLE OF CAUSE: JAN HOY CASSELLS |
LORRAINE CASSELLS, DALTON WALLACE, JACQUELINE WALLACE CHEYENNE CASSELLS by their Litigation Guardian,
LORRAINE CASSELLS
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: MONDAY, JUNE 7, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: ROULEAU, J. |
DATED: WEDNESDAY, JUNE 9, 1999
APPEARANCES: Mr. Osborne Barnwell
For the Applicants
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: Ferguson, Barnwell
Barristers & Solicitors
310-515 Consumers Rd.
North York, Ontario
M2J 4Z2
| For the Applicants |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990609
Docket: IMM-5528-98
JAN HOY CASSELLS
LORRAINE CASSELLS, DALTON WALLACE, JACQUELINE WALLACE CHEYENNE CASSELLS by their Litigation Guardian,
LORRAINE CASSELLS
| Applicants |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER