COURT FILE NO.: DC-05-298-ML

DATE: 20051228

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

OSVALDO GIACOMELLI

Joseph J. Colangelo, counsel on behalf of the Plaintiff/Responding Party

Plaintiff/Responding Party

• and -

THE ATTORNEY GENERAL OF CANADA REPRESENTING HER MAJESTY THE QUEEN IN RIGHT OF CANADA

Gail Sinclair and James Gorham, counsel on behalf of the Defendant/Moving Party for the

Defendant/Moving Party

HEARD: December 20, 2005 (at Hamilton)

LOFCHIK J.

1The defendant Attorney General of Canada, seeks leave to appeal the Order of Mr. Justice Festeryga made September 29, 2005 wherein he dismissed the Attorney General of Canada’s motion to strike out the plaintiff’s Statement of Claim on the grounds that it discloses no reasonable cause of action.

2The plaintiff’s action is a claim for damages as the result of his being arrested and interned during the period June 13, 1940 until May 15, 1945 during the Second World War because of his Italian origin. The plaintiff had, in fact, been born in Canada to Italian immigrant parents, accompanied his parents when they returned to Italy in 1929 and then returned to Canada in 1939.

3Having considered the matter I am of the view that leave to appeal ought to be granted.

4Whether the internment of the plaintiff was pursuant to the War Measures Act, R.S.C. 1927, c.206 or outside of its scope, his claim is in tort.

5Prior to 1953 the plaintiff, as a matter of common law, did not have a cause of action in tort against the Crown arising from any alleged false arrest or internment that occurred before that date. The Charter of Rights and Freedoms does not apply to events, which occurred prior to its enactment. (Mayrhofer v. Canada [1993] 2 S.C. 157).

6The Crown Liability Act, S.C. 1952-3 c.30 s.24 created the right to sue the Crown which did not otherwise exist. Section 24 of that Act provides that no proceedings may be taken under that Act with respect to any act or omission occurring before the Act was assented to, that is, it provides that the rights given under the Act are not retrospective.

7This does not limit the plaintiff’s current Charter Rights, but rather limits the rights being given by the Crown Liability Act which the plaintiff otherwise would not have. Under these circumstances, it would appear that the Charter cannot be used to circumvent s. 24 of the Proceedings Against the Crown Act.

8The argument that the defendant owed the plaintiff some sort of fiduciary duty whether acting within or outside the scope of the War Measures Act conflicts with decisions such as Guerin v. The Queen {1984 25 (SCC), 1984] 2 S.C.R. 335 and Gladstone v. Canada 2005 SCC 21, [2005] 1 S.C.R. 325 in that there is no agreement, undertaking or statute pleaded which would impose that duty.

9So far as reliance upon the speech by former Prime Minister Mulrony is concerned, it is questionable whether this can be taken as a promise to redress any wrongs which the plaintiff may have suffered. (see Canadian Taxpayers Federation v. Ontario, 2004 48177 (ON SC), 73 O.R. (3d) 621). Even if it is taken as an admission against interest, it can only be used as evidence that a tort was committed prior to 1953. Any action on that tort would appear to be barred by s. 24 of the Proceedings Against the Crown Act, so that, as an admission, it is of little assistance to the plaintiff.

10Based on the foregoing, I am of the view that there are conflicting decisions by another judge or court in Ontario or elsewhere on the matters involved in the proposed appeal and also that there is good reason to doubt the correctness of the decision in question.

11The issues raised here have implications beyond the interest of the plaintiff as they affect the rights of other internees referred to in the speech of former Prime Minister Mulrony mentioned above. I therefore find that it is desirable that leave to appeal ought to be granted.

12The defendant, in my view, has met the test for leave to appeal set out in both subsections (a) and (b) of rule 62.02(4) and leave to appeal is hereby granted.

13Costs of the leave application are referred to the Divisional Court panel hearing the appeal.