PRACTICE |
Judgments and Orders |
Summary Judgment |
Archer v. Pollydore
IMM-435-00
2001 FCT 871, Heneghan J.
10/8/01
10 pp.
Minister of Citizenship and Immigration bringing motion for summary judgment against plaintiff--Plaintiff providing sponsorship undertaking in relation to first defendant and her son in May 1987--Sponsorship to remain in effect for 10 years--Contained clause that as condition for landing, first defendant, plaintiff would marry within 90 days--First defendant arrived in Canada December 29, 1987--On March 3, 1988 plaintiff writing to Minister advising of decision not to marry first defendant, and of intention to cancel, withdraw sponsorship undertaking--Representatives of Minister's office informing him that investigation would be undertaken--In July 1993 plaintiff learning first defendant granted landed status on ground married to plaintiff--Plaintiff replying that this was misrepresentation by first defendant; requested correction of records--Subsequently learned grant of landing to first defendant changed to humanitarian, compassionate grounds; sponsorship undertaking would remain in force for 10 years, notwithstanding change in relationship with first defendant--Plaintiff claiming damages for mental stress caused by Minister's refusal to release him from sponsorship undertaking, and which led to loss of employment, consequential loss of income--Minister arguing claim time-barred by Ontario Limitations Act since words allegedly giving rise to misrepresentation or mental stress spoken more than two years ago in 1988, 1993--Crown Liability and Proceedings Act, s. 32 providing provincial limitation legislation applies to proceedings against federal Crown--Also relying on Public Authorities Protection Act which applies to actions arising in Ontario against federal Crown and prescribes six-month limitation period for commencement of such actions--Plaintiff alleging limitation provisions not applicable because continuing breach of law--Motion allowed--Motion for summary judgment governed by Federal Court Rules, 1998, rr. 213 et seq.--R. 216 requiring Court to grant summary judgment where satisfied no genuine issue for trial--Challenge to exercise of ministerial discretion (in this case, under Immigration Act to grant standing on humanitarian, compassionate grounds) may only be by way of application for judicial review--Such application out-of-time--Issue of manner in which Minister, servants conducted themselves within purview of Ontario Public Authorities Protection Act--But no continuing cause of action--Continuous cause of action referring to cause of action arising from repetition of acts or omissions of same kind as that for which action brought--Minister's unwillingness to change her mind about decision taken not continuous action--Only element of continuity plaintiff's claim for damages, mental stress, but continuous tort not including continuance of all effects or repercussions of defendant's action--Limitations Act, R.S.O. 1990, c. L.15--Public Authorities Protection Act, R.S.O. 1990, c. P. 38--Federal Court Rules, 1998, SOR/98-106, rr. 213, 216--Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 32 (as am. by S.C. 1990, c. 8, s. 31)--Immigration Act, R.S.C., 1985, c. I-2.