PRACTICE |
Judgments and Orders |
Summary Judgment |
Cassells v. Canada
A-223-01
2002 FCA 110, Evans J.A.
18/3/02
7 pp.
Appeal from Trial Division decision (2001 FCT 263) dismissing motion for summary judgment brought by appellants against respondent--Motion arose from action by appellants claiming damages for various kinds of loss sustained when Mr. Cassells unlawfully removed from Canada in 1998 pursuant to deportation order--Removal unlawful as Mr. Cassells then subject to witness summons issued at instance of his wife--Ontario Court judge held existence of witness summons rendered removal unlawful and ordered Minister to permit him to return to Canada at public expense --Appeal dismissed--Motions Judge held that, although not pleaded in defence to appellants' motion for summary judgment, Crown might have available to it defence of ex turpi causa non oritur actio, on ground witness summons might have been obtained for improper purpose of delaying further Mr. Cassells' removal from Canada--Issue of ex turpi causa non oritur actio not res judicata as Ontario Court Judge did not make finding summons not sham; Crown's failure to rely on it in motion in Federal Court to have appellants' action for damages struck as frivolous and vexatious, which was dismissed, not precluding Crown from subsequently amending its statement of defence to appellants' statement of claim-- Furthermore, whether or not Motions Judge erred in raising issue of ex turpi causa non oritur actio on own initiative, statement of claim containing issues of fact and law not appropriately resolved on motion for summary judgment-- Also, fact that, in course of motion for summary judgment, judge suggesting possible defence not previously pleaded not in itself precluding party concerned from seeking to amend pleadings in accordance with that suggestion--Clear from materials before Court that appellants' claim should not be decided without trial--Trial necessary to quantify damages-- As to liability, appellants will have to prove much more than removal from Canada in breach of s. 50(1)(a), only issue decided by Ontario Court Judge--Appellants may have to prove officials involved acted with malice, recklessness or in breach of duty of care owed to Mr. Cassells, or that removal gave rise to claim by appellants, other than Mr. Cassells himself, under Family Law Act, s. 61(1)--Motions Judge correct to refuse to grant appellants' motion for summary judgment as appellants' statement of claim evidently raising multitude of difficult issues of law and fact that can properly be decided only on basis of kind of factual record developed after trial--Immigration Act, R.S.C., 1985, c. I-2, s. 50(1)(a)--Family Law Act, R.S.O. 1990, c. F. 3, s. 61(1).