Date: 20010330
Docket: IMM-5528-98
Neutral Citation: 2001 FCT 263
Ottawa, Ontario, this 30th day of March 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
JAN HOY CASSELLS
Lorraine Cassells, DALTON WALLACE, JACQUELINE WALLACE
CHEYENNE CASSELLS by their Litigation Guardian, LORRAINE CASSELLS
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
PELLETIER J.
1. This is an application for summary judgment against the Crown in an action for damages arising from the unlawful removal from Canada of an individual who is subject to a deportation order. It is an unusual turn of events that a person who has no right to be in Canada is ordered to be returned to Canada once removed but that is what happened here. I have decided that this is not an appropriate case for summary judgment because it would be possible for a trier of fact to conclude that the cause of action asserted against the Crown is based upon discreditable conduct which, if proved, might justify a refusal to grant the remedies sought by the plaintiffs. This is so even though a judge has already decided that the removal in question was unlawful. If a conclusion as to discreditable conduct is to be drawn, it should only be drawn after hearing from the principals in person, and not on the basis of affidavit evidence.
2. Jan Hoy Cassells came to Canada as a visitor in 1992 and he is still here. Along the way he has become well known to certain police forces though, in fairness to him, many more charges were laid than convictions obtained. He has been the subject of a deportation order since May 1995. Various attempts to remove him have resulted in extensions being granted by Immigration officials or orders staying the removal being made by this Court.
3. Mr. Cassells has a long standing relationship with Lorraine Cassells (formerly Lorraine Lee). It has been a tumultuous relationship, complete with restraining orders and allegations of assault. Mrs. Cassells has two children from prior relationships and there is one child of this relationship. The family came to the attention of the York Region Children's Aid Society following an allegation that Mr. Cassells had assaulted one of the children.
4. In the fall of 1997, Mr. Cassells was given a Direction to Report which required him to present himself for removal to Jamaica on October 28, 1997. At the time, he was under subpoena to appear at the hearing at which the Children's Aid Society was applying for a supervision order as a result of the allegation of assault. Some accommodation was arrived at with respect to that date but when the hearing was adjourned to a later date, the officials in charge of removals insisted on proceeding with the deportation. On December 17, 1997, on an application brought by counsel for Mr. Cassells, Gibson J. held that the subpoena was an order of a court so that the removal of Mr. Cassells while under subpoena would result in a violation of subsection 50(1) of the Immigration Act, R.S.C. 1985, c. I-2 which reads as follows:
50. (1) A removal order shall not be executed where
(a) the execution of the order would directly result in a contravention of any other order made by any judicial body or officer in Canada; or
(b) the presence in Canada of the person against whom the order was made is required in any criminal proceedings and the Minister stays the execution of the order pending the completion of those proceedings.
50. (1) La mesure de renvoi ne peut être exécutée dans les cas suivants_:
a) l'exécution irait directement à l'encontre d'une autre décision rendue au Canada par une autorité judiciaire;
b) la présence au Canada de l'intéressé étant requise dans le cadre d'une procédure pénale, le ministre ordonne d'y surseoir jusqu'à la conclusion de celle-ci.
5. As a result, no further attempts were made to remove Mr. Cassells while he was under subpoena. The deportation order, however, remained outstanding.
6. On April 8, 1998, after the conclusion of the Children's Aid proceedings, Mr. Cassells was advised by letter that he was to report for removal from Canada on April 27, 1998. Counsel for Mr. Cassells brought an application for a stay of the removal on April 23, 1998 but it was dismissed. Counsel for Mr. Cassells brought a second application for a stay on April 24, 1998 but it too was dismissed.
7. On April 27, 1998, Mrs. Cassells attended without counsel at the Ontario Court Family Division and made an application to have the supervision order (which had been made in the prior proceedings) varied to transfer responsibility for supervision of the family from the York Region Children's Aid Society to the Essex County Children's Aid Society of Windsor[1]. The family had moved from Toronto to Windsor after the original order had been made, and responsibility for supervising the family had been transferred administratively, though not legally, to the Children's Aid Society in Windsor. The children in question are children in respect of whom Mr. Cassells was acting as parent and included his own daughter. Mrs. Cassells then caused a summons to be issued which she served on Mr. Cassells. In reliance on the order of Justice Gibson in the earlier proceedings, Mr. Cassells did not present himself for removal. This resulted in his arrest under an immigration warrant on April 28, 1998.
8. Mrs. Cassells was cross-examined on her affidavit in respect of this transaction. This is what she said:
60. Q. Who filed this application?
A. I did.
61. Q. Why did you file this application on April 27th of 1998 as opposed to any other time?
A. Because it appeared that his removal was imminent and I felt that our children should be protected. I felt that the Essex County Children's Aid would be the best agency to do that, and I had hoped that they would help me in my efforts to support the function that I had made as far as the injunction goes.
62. Q. Well, at this point the Essex Children's Aid Services was already supervising the file weren't they?
A. For intents and purposes, yes, but they didn't have a lot of the information that they should have had because it wasn't transferred until there's a court proceeding.
....
70. Q. Is it fair to say then that your main concern in bringing this application when you did was the removal of your husband or your spouse?
A. Because that would prevent me from pursuing this application and because he would not be here as the father to pursue it with me. Yes, you can say it was. Yes.
71. Q. Was there any need to issue a summons to witness to Mr. Cassells other than to prevent his deportation?
A. The need to have him summonsed was to have him here for the application.
72. Q. Was there any expectation that he wouldn't co-operate as a witness?
A. There was an expectation that he wouldn't be here.
73. Q. Well, that's what I am suggesting to you, that the reason for the summons is to prevent his removal, not to --
A. Not to prevent his removal, sir. To keep him here for the application.
74. Q. But you didn't need to summons him as a witness in order to have him testify?
A. I don't know. I needed to summons him as a witness to have him here.
75. Q. That's my point. The point of the summons is --
A. Then I guess I --
76. Q. – to keep him in Canada.
A. Then I guess I concur with your point that I needed him in Canada for the application.
9. It is a fair question as to why Mr. Cassells was not a party to the application instead of a witness. The affidavit sworn by Mrs. Cassells contains, among others, the following paragraphs:
The three children Jacqueline Wallace, Dalton Hugh and Cheyenne Cassells have been returned to my/our care and custody and reside in Essex County with me.
The children were returned to my/our care subject to a supervision order for a period of twelve months. (emphasis added)
10. The reference to our care can only be a reference to the care of Mr. and Mrs. Cassells.
11. The provision under which a supervision order may be made is found at section 57 of the Child and Family Services Act (the "Act"), R.S.O. 1990, c. C.11 which provides as follows:
57.(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, in the child's best interests:
1. That the child be placed with or returned to a parent or another person, subject to the supervision of the society, for a specified period of at least three and not more than twelve months.
57.(1) Si le tribunal constate qu'un enfant a besoin de protection et qu'il est convaincu qu'une ordonnance est nécessaire afin de protéger l'enfant à l'avenir, il ordonne, dans l'intérêt véritable de l'enfant, selon le cas:
1. Que l'enfant soit placé chez son père ou sa mère ou chez une autre personne, ou lui soit rendu, sous réserve d'une surveillance exercée par la société, pendant une période précise de trois mois au moins et douze mois au plus.
12. This provision appears in Part III of the Act, Child Protection, as does section 39:
39.(1) The following are parties to a proceeding under this Part:
1. The applicant.
2. The society having jurisdiction in the matter.
3. The child's parent.
4. Where the child is an Indian or a native person, a representative chosen by the child's band or native community.
39.(1) Sont parties à l'instance introduite en vertu de la présente partie:
1.Le requérant.
2.La société compétente en la matière.
3.Le père ou la mère de l'enfant.
4.Si l'enfant est Indien ou autochtone, un représentant que choisit la bande ou la communauté autochtone de l'enfant.
13. Whatever Mr. Cassell's relationship to the other two children in the home, he is a parent to Cheyenne Cassells and was therefore required to be a party.
14. As for the necessity of the application itself, as opposed to its timing, the following appears in the transcript of the cross-examination of Karen Stecher, the Cassell's family service worker in Windsor:
90. Q. I have to admit that Family Court is not my usual area of practice. I'm just wondering if in order to transfer the supervision of the children from one Children's Aid Society to another in a different jurisdiction, is a motion like this absolutely necessary?
A. I am not sure.
91. Q. Is it possible to effectively have your society take over the supervision of the children without the need for a motion and an order?
A. Yes, it is.
92. Q. And how would that happen?
A. Well, the situation right now is that I am supervising. They called us and asked us to do it.
93. Q. Who called you?
A. The executive director of the York Region C.A.S. contacted our executive director.
94. Q. So, from that contact would you agree with me that York Region has no problem with your society taking over?
A. No.
95. Q. And you have in fact agreed to take over?
A. Yes, yes.
96. Q. Is there any reason to think that your society would oppose this motion?
A. No.
97. Q. There's reason to think the opposite, isn't there? There's every reason to think that you would want to take over supervision of these children?
A. They were already supervising the children.
98. Q. That's my point.
A. Yes. The only difference, it seems to me, is that the case would return to court here in Windsor rather than Toronto, which makes sense.
...
101. Q. Would you agree with me that it seems then that the relief that's being requested here that supervision be transferred from York Region to Essex has essentially already taken place.
A. Yes.
15. As a result of Mr. Cassells' arrest, Mrs. Cassells had reason to believe that he would be deported notwithstanding the subpoena which had been served upon him. The officials charged with execution of the deportation order took the view that the entire exercise before the Ontario Court Family Division was a sham and that the summons was simply an attempt to defeat the removal of Mr. Cassells from Canada. They provided him with a letter to the effect that if he was required to attend in Canada for the court proceedings, they would facilitate his return but at his expense.
16. On April 29, 1998, Mrs. Cassells, once again acting on her own behalf, initiated a Notice of Application in the Ontario Court General Division in the name of the three children asking for an "Injunction against Removal" with respect to the removal of Mr. Cassells . She invoked the court's parens patriae jurisdiction to argue that the children should not be deprived of the care of their father through an unlawful removal. Notice of the application was given to the Immigration officials. This was the third application seeking to prevent Mr. Cassells' removal in six days and the first to be brought in the Ontario Court of superior jurisdiction. Notice of the application was served upon the Minister of Citizenship and Immigration's (the "Minister") officials in the hour prior to Mr. Cassells' removal but he was deported to Jamaica notwithstanding the subpoena and the pending application for judicial review.
17. Following this sequence of events, there was correspondence between counsel and Mrs. Cassells. The tenor of the correspondence appears from the following excerpt from the cross-examination of Mrs. Cassells:
91. Q. At page forty of the application record, it's one of the exhibits to your affidavits, it's a letter from Mr. Barnwell, your lawyer, to you. And page forty of the record is page two of the letter. And the second full paragraph -- first of all, just for the clarity of the record I want to note that it certainly seems to me that in that paragraph and the following paragraphs where he's talking about January, he's actually talking about April.
A. Yes.
92. Q. He says ‘As you know we obtained a summons to witness on Monday, January 27th,' that should read April 27th. Now, when he says we, does he mean you and him.
A. No.
93. Q. Why do you think he would say we? Did he play any part in it?
A. Well, because he's our counsel at that time.
94. Q. Did he play any part in actually obtaining the summons?
A. No, he's in Toronto.
95. Q. So, why would he say we obtained the summons?
A. We, meaning our side, as opposed to your side.
96. Q. All right, in the next paragraph he makes the comment in about the middle of the paragraph, ‘As I indicated to you I anticipated that the Minister would have deferred removal given the summons to witness and the application seeking an injunction.' Now that's phrased in the past tense. What that suggests to me, and you tell me if I'm wrong, is that you had discussions with Mr. Barnwell and that part of the discussions involved the fact that you would issue this summons to witness for the purpose of deferring the removal.
A. This is April 29th. This is after the fact. That's why it's past tense.
97. Q. Well, he's talking about anticipating that the Minister would defer removal given the summons to witness.
A. Right.
98. Q. He can't anticipate something after the fact.
MS. VOYVODIC: I think that would be very difficult for this witness to know what is meant by a third party by a word like anticipate.
99. Q. Do you have any idea what he's talking about when he says as I indicated to you and then he says that? Do you recall him ever indicating something like that to you?
MS. HILLIS: Counsel, when you say something like that, I'm not sure what you're referring to.
100. Q. Well, the phrase that follows, as I indicated to you. Did Mr. Barnwell ever communicate to you how he anticipated that the Minister would have deferred removal given the summons to witness. Do you recall him ever telling you that?
A. Well, yes. Because it's happened on two other times just prior to this one that they deferred removal. Plus they've acknowledged it themselves in other letters to us that that's what they do.
18. The contents of the letter being referred to by cross-examining counsel leave open the possibility that Mrs. Cassells acted with the benefit of legal advice in taking the steps she did on April 27 and April 29, 1998. If a certain view were taken of this evidence, it would be possible for a trier of fact to conclude that the decision not to make Mr. Cassells a party to the application was made with the benefit of legal advice. It would also be possible for a trier of fact to conclude that the sole purpose of the application was to create a pretext for the issuance of a summons whose service upon Mr. Cassells was designed to block his removal from Canada. Finally, it would also be possible for a trier of fact to conclude that the sequence of events leading to the unlawful removal was a deliberate manipulation of legal process designed to frustrate the removal of Mr. Cassells.
19. Mrs. Cassells' Notice of Application came before Mr. Justice Brockenshire of the Ontario Court (General Division) on June 8, 1998. The learned judge was very concerned about the apparent flouting of the law by the Immigration officials who deported Mr. Cassells in the face of the summons. His endorsement on the file is reproduced below:
ENDORSEMENT OF MR. JUSTICE BROCKENSHIRE
This is an application brought by the children of Jan Hoy Cassells for injunctive relief to reverse the removal of their father from Canada under the Immigration Act.
I find, on the materials that the children do have a sufficient interest based on questions of their own welfare to permit the Court to invoke the "unlimited" parens patriae principle to look into the alleged wrong doing here (see E. v. Eve 1986 2 SCC, 389). It is clear that Mr. Cassells could have brought his own Application in Federal Court, but only at great expense and difficulty. That, plus the urgency urged here, in my view, satisfies the urging of caution by La Forest.
Mr. Cassells has an extensive history with immigration. Clearly, subject to whatever further rights of review he may have with the Minister and the Federal court, or which I do not pass. The Department was entitled to remove him from Canada, except for one thing, he was the subject of a subpoena (Summons to Witness) in Family Court, Provincial Division, summoned to appear there on June 30, 1998.
Mr. Cassells had earlier been subject to another summons to witness in Provincial Court and Gibson J. of the Federal Court had, on December 17, 1997, declared that the existence of that summons brought into existence a statute Stay of execution of a removal order per s. 50(1)(a) of the Immigration Act.
The difference now, in the view of the Department, is that the current summons is a sham, issued to subvert the process under the Act. That is a very grave and serious allegation. If true, serious consequences could flow. The only basis for that view, in existence when the removal took place, was the opinion of a functionary in the Department. That view was not taken before the Court that issued the summons for a determination. It was not taken on before any Court. Indeed, despite the Department having notice of this application 34 minutes before the plane left, 2 functionaries in the Department together decided that this Application did not constitute a bar to removal. He was accordingly flown to Jamaica.
Many cases were quoted to me on the relative jurisdictions of this Court and Federal Court. I have no doubt that immigration matters are best dealt with by the Federal Court system but this, in my view, is not a case about immigration. It is about preserving the authority of the Courts - all of the Courts - against unsurpation [sic] by well meaning persons in the civil service.
Here, s. 50(1)(a) is a clear bar so found in this very case, against removal in the face of a Summons to Witness. The departmental functionaries chose to make their own determination of the validity and appropriateness of a second Summons to Witness. In my view, they had absolutely no business to do so. It is absolutely essential that the integrity of the Court process be preserved - if it is to be questioned, it will be before the Courts - not in the office of a civil servant.
The removal was wrong. The only appropriate remedy, to right the wrong, is what is sought here - the return of Mr. Cassells to Canada, at the expense of the government. I so order the details of the arrangements if not settled by counsel, will be settled by me.
The Applicants ask that this file be sealed. There is a witness protection process that involves persons named in the materials here and that constitutes sufficient reason to order the sealing of this entire file, subject to further order.
The applicant shall have their costs throughout and for the reasons above indicated on a solicitor-client basis.
June 8, 1998
John H. Brockenshire
20. In accordance with the order of Mr. Justice Brockenshire, Mr. Cassells was returned to Canada at public expense. He then launched the present action seeking damages under various heads of liability arising from his wrongful deportation to Jamaica. A claim is asserted on the basis of the Canadian Charter of Rights and Freedoms; another invokes the Libel and Slander Act of Ontario. Examinations under oath of the various parties having been completed, Mr. Cassells brings this application for summary judgment arguing that since the wrongfulness of the deportation has already been established, there is nothing for the court to do but assess damages. The Crown takes the position that this is not an appropriate case for summary judgment because the facts are complicated and disputed. The Crown also says that the plaintiffs have not made out a cause of action, that the question of civil liability is a separate question from the one which was before Mr. Justice Brockenshire, and that absence of malice is a defence to the allegations made by the plaintiffs.
21. The rules as to summary judgment were introduced in the course of the revision of the Federal Court Rules which culminated in the Federal Court Rules, 1998. Unlike the summary conviction rules in some other jurisdictions, they permit summary judgment to be taken out where the facts may be contested, or for a limited portion of a claim:
216. (1) 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.
(2) Where on a motion for summary judgment the Court is satisfied that the only genuine issue is
216. (1) 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.
(2) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue que la seule véritable question litigieuse est :
(a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or
(b) a question of law, the Court may determine the question and grant summary judgment accordingly.
(3) Where on a motion for summary judgment the Court decides that there is a genuine issue with respect to a claim or defence, the Court may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law.
a) le montant auquel le requérant a droit, elle peut ordonner l'instruction de la question ou rendre un jugement sommaire assorti d'un renvoi pour détermination du montant conformément à la règle 153;
b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence.
(3) Lorsque, par suite d'une requête en jugement sommaire, la Cour conclut qu'il existe une véritable question litigieuse à l'égard d'une déclaration ou d'une défense, elle peut néanmoins rendre un jugement sommaire en faveur d'une partie, soit sur une question particulière, soit de façon générale, si elle parvient à partir de l'ensemble de la preuve à dégager les faits nécessaires pour trancher les questions de fait et de droit.
22. It is also established that the Court is entitled to take a hard look at the facts in assessing a summary judgment application in order to determine if there is genuine issue for trial, F. Von Langsdorff Licensing Ltd. v. S.F. Concrete Technology, [1999] F.C.J. No. 526 :
[para12] Accordingly, the respondent has an evidential burden to discharge in showing that there is a genuine issue for trial: Feoso Oil Ltd. v. Sarla (The), [1995] 3 F.C. 68, 81-82 (F.C.A.). However, this does not detract from the principle that the moving party has the legal onus of establishing the facts necessary to obtain summary judgment: Ruhl Estate v. Mannesmann Kienzle GmbH (1997), 80 C.P.R. (3d) 190, 200 (F.C.T.D.); Kirkbi AG. v. Ritvik Holdings Inc. (F.C.T.D.; T-2799-96; June 23, 1998). Thus, both parties are required to "put their best foot forward" so that the motions judge can determine whether there is an issue that should go to trial: Pizza Pizza Ltd. v. Gillespie (1990), 33 C.P.R. (3d) 519, 529-530 (Ont. Ct. Gen. Div.).
[para13] It seems to me that the dominant trend in the jurisprudence of this Court has been to interpret liberally the rules governing summary judgment, so that a motions judge must subject the evidence to a "hard look" in order to determine whether there are factual issues that really do require the kind of assessment and weighing of evidence that should properly be done by the trier of fact.
23. Whatever the merits of the process leading up to the issuance of the summons to Mr. Cassells and the launching of the judicial review application in the Ontario Superior Court, the bald fact is that the Minister's officials acted in disregard of those proceedings and have been found to have effected an unlawful removal. But it does not follow from this that the plaintiffs are entitled to their remedy.
24. Damages are a legal and not an equitable remedy so that the maxim of equity, "One who comes to equity must come with clean hands", does not apply. However, the same principle applies at law under the rubric of "Ex turpi causa non oritur actio" whose effect Lord Denning described as follows:
... the courts will not enforce a right which would otherwise be enforceable if the right arises out of an act committed by the person asserting the right ... which is regarded by the court as being sufficiently anti-social to justify the court's refusal to enforce that right.
Hardy v. Motor Insurers' Bureau, [1964] 2 All E.R. 742 at 750-751.
25. Given the scope of the Court's rules as to summary judgment, it would be open to me to make certain findings of fact which might well establish a course of conduct which was sufficiently anti-social to justify a refusal to enforce the rights asserted by the plaintiffs. However, this would involve drawing conclusions about individuals without having given them a chance to put their position before the Court. Fairness requires that conclusions as to disreputable conduct should only be reached, if they are reached at all, on the best evidentiary record. That is not the case in this application.
26. It is also significant that the defendant has not raised "ex turpi causa" as a defence. Notwithstanding the adversarial system, this Court is under no obligation to allow itself to be the passive instrument to those who would manipulate the justice system for their own purposes. Whether that is the case here remains to be determined, but fairness requires that such conclusions not be drawn without having heard from the parties, and those whose interests are otherwise implicated, in person.
27. Nothing said here should be taken as condoning the course of conduct adopted by the Minister's representatives. Legal process must be treated as valid until found to be otherwise by a court of competent jurisdiction. It is not for the Minister's representatives to decide which orders or proceedings are "real" and which are not. If they wish to challenge an order or proceeding, they have at hand the means to do so. If the Minister's representatives were seeking to draw some advantage from their misconduct, their claim would attract the same reservations as has this application. This issue here is not whether the Minister's officials behaved badly; that has already been decided. The issue which remains to be decided is whether the plaintiffs have put themselves in a position where the Court is entitled to refuse to grant them their remedy.
28. For that reason, the application for summary judgment is dismissed. The costs of the motion will be costs in the cause.
ORDER
For the reasons stated above, the application for summary judgment is hereby dismissed.
"J.D. Denis Pelletier"
Judge
[1] The terms Children's Aid Society of Metropolitan Toronto and York Region Children's Aid Society are used more or less interchangeably in the materials before me. Similarly, there are references to the Catholic Children's Aid Society of Windsor and the Essex County Children's Aid Society. For my purposes, I assume that the family dealt with one Children's Aid Society in Toronto and one Children's Aid Society in Windsor, whatever name is used in the materials.