Court File and Parties

COURT FILE NO.: 05-CV-301832CP

DATE: 20120618

ONTARIO SUPERIOR COURT OF JUSTICE

PROCEEDING UNDER the Class Action Proceedings Act, 1992 , S.O. 1992, C. 6

BETWEEN:

Charles C. Roach, Ashok Charles, michael Mcateer, howard jerome gomberg Plaintiffs – and – The Attorney general of canada Defendant

Michael F. Smith , for the Plaintiff Charles Roach and Howard Gomberg
Peter Rosenthal, for the Plaintiff Michael Mcateer
Selwyn Pieters , for the Plaintiff Ashok Charles
Kristina Dragaitis and Sharon Stewart Guthrie , for the defendant

HEARD: May 29 2012

c. hORKINS J.

[ 1 ] This proceeding was initially commenced by notice of application issued on December 7, 2005 pursuant to the Class Proceedings Act 1992 , S.O. 1992, c. 6 (" Class Proceedings Act ") and rule 14.05(3) (g.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 . Charles Roach was the sole applicant.

[ 2 ] In January 2009, a motion was brought to convert the application to an action, add Ashok Charles, Michael McAteer and Howard Jerome Gomberg as plaintiffs and certify the proceeding as a class action. On February 23, 2009, Cullity J. released his decision. He converted the application to an action, added the additional plaintiffs and refused to certify this proceeding as a class action.

[ 3 ] The plaintiffs now seek an order under s. 7 of the Class Proceedings Act to continue this action as an individual proceeding as set out in the proposed Amended Statement of Claim (“proposed claim”). The defendant brings a motion seeking to dismiss the action for delay.

overview of the proposed claim

[ 4 ] The proposed claim is essentially the same as the one that Cullity J. considered on the certification motion. References to the Class Proceedings Act have been removed and the new plaintiffs have been added.

[ 5 ] The plaintiffs challenge the constitutionality of the oath that applicants for Canadian citizenship are required to swear, or affirm, pursuant to s. 24 of the Citizenship Act, R.S.C. 1985, c. C-29. The form of the oath, as contained in the schedule to the statute, is as follows:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

[ 6 ] The proposed claim alleges that the oath forces the plaintiffs to express allegiance and faithfulness to a royal family and/or monarchial form of government and to disavow republican thoughts and activity or their religious cultural or moral beliefs. As a result, the plaintiffs allege that the defendant has infringed their rights under s. 2 and 15(1) of the Canadian Charter of Rights and Freedoms ( the “Charter”) .

[ 7 ] Details of the circumstance of each plaintiff are set out in the reasons of Cullity J. In summary, the plaintiffs were born outside of Canada. Mr. Roach and Mr. McAteer have refused to take the oath. Mr. Gomberg and Mr. Charles are Canadian citizens. They gave the oath “under duress”.

[ 8 ] The plaintiffs seek the following relief:

(a) a declaration pursuant to s. 52(1) of the Constitution Act , 1982 , Schedule B to the Canada Act 1982 (UK), 1982, c 11 that the statutory requirement to take the oath with the impugned words violates the Charter and is invalid and of no force and effect;

(b) in the alternative, a declaration that the class members are entitled to an exemption from such requirement ( s. 24(1) of the Charter );

(c) general, exemplary and symbolic damages; and

(d) an injunction restraining the defendant from withholding a citizenship certificate from Mr. Roach on the ground that he chose not to take the oath containing the impugned words.

Motion to Dismiss for Delay

[ 9 ] For the reasons that follow, the defendant’s motion to dismiss this action for delay is dismissed.

[ 10 ] The plaintiffs appealed the order denying certification. They served the defendant with a Notice of Appeal to the Court of Appeal rather than the Divisional Court. Counsel for the defendant alerted them to this error. The plaintiffs required an order extending the time to perfect the appeal. The Divisional Court granted this relief on May 5, 2009. The correct Notice of Appeal was served on May 12, 2009 but the plaintiffs failed to perfect the appeal within the extended time allowed. When the Divisional Court notified the plaintiffs that the appeal would be dismissed if it was not perfected in 10 days, the plaintiffs perfected the appeal. The Divisional Court dismissed the appeal on December 4, 2009.

[ 11 ] The plaintiffs sought leave to appeal to the Court of Appeal. Once again they failed to perfect the appeal on time and a motion seeking an extension was required. The plaintiffs obtained an extension of the time to perfect the appeal and the court noted that “no further extension should be granted in this matter”. The appeal was perfected and on June 9, 2010 the court dismissed the appeal. Costs awarded to the defendant were not paid until April 2011.

[ 12 ] On July 27, 2010, Mr. Roach wrote to the defendant’s counsel to ask if the defendant would consent to an order under s. 7 of the Class Proceedings Act permitting the action to proceed as an individual action. Counsel advised that she needed to see the proposed pleading before the request could be considered. When the proposed pleading was delivered, counsel for the defendant confirmed that she would not be consenting. After some further delay, a date for the motion was set.

[ 13 ] While it is obvious that this matter has not proceeded as promptly as it should have, the delay does not justify an order dismissing the action for delay. This is not a case where the delay was “intentional and contumelious” or where the plaintiffs and/or counsel are responsible for “inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible” ( North Toronto Chinese Alliance Church v. Gartner Lee Limited , 2012 ONCA 251 at para. 11 ).

[ 14 ] Plaintiffs’ counsel recognize that if an order is granted to continue the action, the plaintiffs must proceed without further delay and that a timetable for moving the matter ahead is required.

The s. 7 Motion

[ 15 ] The proposed claim is essentially the same pleading that Cullity J. considered on the certification motion. In summary, he concluded that declaratory relief under s. 52(1) of the Constitution Act was the only claim that survived and that it should be pursued in an individual action, not a class proceeding.

[ 16 ] There is no principled basis why I would disagree with Justice Cullity. There has been no change to the claim or the law that supported his decision. Furthermore, the decision was upheld on appeal to the Divisional Court. I accept Justice Cullity’s analysis and his conclusions.

[ 17 ] In detailed reasons, Cullity J. explained why an exemption from the oath under s. 24(1) of the Charter is not available. Excerpts of the reasons are set out below ( Roach v. Canada (Attorney General) , 2009 ON SC 7178 , [2009] O.J. No. 737):

43 It is, I believe, now established that remedies under section 24(1) will normally be confined to unconstitutional acts by government officials and will rarely be available when an order could be made under section 52(1) of the Constitution Act : Doucet-Boudreau v. Nova Scotia (Minister of Education) , 2003 SCC 62 , [2003] 3 S.C.R. 3, para 43 ; R. v. Ferguson , 2008 SCC 6 , [2008] 1 S.C.R. 96, para 63 ; Schachter v. Canada , 1992 SCC 68 , [1992] 2 S.C.R. 679, para 89 . …

44 The preference for declarations of invalidity under section 52(1) over constitutional exemptions granted under section 24(1) of the Charter was strongly emphasised in Ferguson . …

47 This is not one of the "unusual cases" referred to in Ferguson (at para 63 ) "where additional s. 24(1) relief is necessary to provide the claimant with an effective remedy". That would be provided under section 52(1) . In my judgment, there is nothing in the pleading to suggest that it could, exceptionally, be considered appropriate and just to grant a constitutional exemption under section 24(1) in lieu of, or in addition to, an order under section 52(1). In consequence, for the purposes of this motion, I find that the exemption would not be available to the plaintiffs and the members of the class.

[Emphasis added.]

[ 18 ] Cullity J. also expressed concerns about the claim for damages, noting that an “allegation that a statute infringed the Charter would be insufficient in the absence of bad faith or wilful blindness to the Crown's constitutional obligations” At para. 48, Cullity J. stated as follows:

48 Similar problems attach to the claims for damages. This remedy also falls within section 24(1) of the Charter and, as such, will rarely be available in conjunction with a declaration under section 52(1) of the Constitution Act : Schachter v. Canada , 1992 SCC 68 , [1992] 2 S.C.R. 679, at para 78 . An allegation that a statute infringed the Charter would be insufficient in the absence of bad faith or wilful blindness to the Crown's constitutional obligations: Guimond v. Quebec (Attorney General) , 1996 SCC 12 , [1996] 3 S.C.R. 347, paras 13-20 ; Mackin v. New Brunswick (Minister of Finance) , 2002 SCC 13 , [2002] 1 S.C.R. 405, paras 78-82 ; Wynberg v. Ontario , 2006 ONCA 464 , [2006] O.J. No. 2732 (C.A.), paras 192-202 .

[ 19 ] The plaintiffs pleaded then, as they do now, that “moral or symbolic damages” are appropriate in this case because the defendant “knowingly pursued a policy of enforcing a legislated provision that it knew to be oppressive and contrary to fundamental rights under the Charter ; and further, the Defendant willfully failed to advise grantees of Canadian citizenship whether their fundamental rights would be compromised by taking the mandatory Oath of Allegiance but instead caused them (as a vulnerable group of people) to believe that they must abide by the oath and refrain from activity inimical to fidelity and true allegiance to the Queen.” (at para. 68 of the proposed claim). No such allegation was advanced for the general and exemplary damages.

[ 20 ] For the purpose of the s. 5(1)(a) criterion, Cullity J. noted that he had to assume the defendant had knowledge of the Charter violations unless (at para. 55) “an assertion that such knowledge existed is patently ridiculous or incapable of proof: Nash v. Ontario (1995), 1995 ON CA 2934 , 27 O.R. (3d) 1 (C.A.), at page 6.”. He concluded that this assertion is “incapable of proof”. His explanation follows:

56 … the Crown and its officials administering the provisions of the Citizenship Act could not, in my opinion, be found to have known, or to know, that the form of the oath infringes rights guaranteed by the Charter even if in this proceeding it is held to do so. They could not have been wilfully blind to such an infringement unless its existence should have been apparent to them. The fact that firm views about the effect of the Charter might be held by practitioners and scholars, or that a particular decision does not receive general approval, or that there is reason to believe it might be revisited after the case law undergoes further evolution, could not, in my opinion, justify a conclusion that the Crown or its servants have, or had, the required knowledge that the provisions of a statute breached the Charter - or that they were wilfully blind to such an infringement. Knowledge that would justify a finding of bad faith, or wilful blindness, by officials administering a statute connotes a degree of certainty that could not have existed. To suggest the contrary after the decision of the Federal Court is, in my opinion, patently ridiculous.

57 In my judgment, none of the allegations of fact in the statement of claim could support an inference that the Crown, or any of its servants or agents, have acted in bad faith in the administration of the oath or with wilful disregard of the plaintiffs' rights. Accordingly, I find that the pleading is inadequate to support the claim for damages as a fair and adequate remedy under section 24(1) of the Charter .

[ 21 ] The plaintiffs argue that because Cullity J. stated in para. 47 that “ for the purposes of this motion ” (emphasis added) the exemption was not available, that I am free to find otherwise on the motion to continue under s. 7 of the Class Proceedings Act . I disagree that this turn of phrase has such meaning. Even if it meant that I was free to start over and consider the issue fresh, the fact remains that the law has not changed. I have not been provided with any law that would support a different result.

[ 22 ] The plaintiffs also argue that because Cullity J. considered these issues under the preferable procedure criteria (s. 5(1)(d)), there is no finding that it is plain and obvious that the claims will fail. While the issue of which remedies could survive was part of the preferable procedure analysis, it is clear that Cullity J. had s. 5(1)(a) in mind as he embarked on his analysis. He states at para. 37 that “[a] further question arises with respect to the remedies available to the plaintiffs as a consequence of the alleged breaches of the Charter . Whether or not this question might properly be addressed under section 5(1)(a), it will, in my judgment, have a direct bearing on the result of the inquiry into the preferable procedure under section 5(1)(d).” Furthermore, the Divisional Court found it was implicit in Justice Cullity’s approach that he applied a '“plain and obvious” test to the relief sought' ( [2009] O.J. No. 5286 ).

[ 23 ] This leaves the injunctive relief to consider. The only consideration of this remedy is found in para. 64 where Cullity J. states that “[t]he question whether Mr. Roach individually, rather than as a class member, is entitled to the injunctive remedy he seeks could more properly be considered in an individual proceeding.” Counsel on this motion seem to agree that injunctive relief may be unnecessary and that the focus of the individual claim going forward will be on the declaratory relief that the plaintiffs seek. Given Justice Cullity’s views noted above, I conclude that the role of injunctive relief, if any, is best considered as the individual claims proceed.

Conclusion

[ 24 ] The defendant’s motion to dismiss for delay is denied. I order that pursuant to s. 7 of the Class Proceedings Act , the individual claims may proceed on the following terms:

(1) The plaintiffs may proceed by application or statement of claim to seek the declaratory relief that is articulated in the proposed claim.

(2) The plaintiffs may issue a fresh statement of claim or application and must do so no later than September 21, 2012. This includes service of the claim or application on the defendant.

(3) By the end of September, the parties will agree on a timetable for moving the proceeding ahead.

(4) A copy of this order and reasons will be posted on the website of plaintiffs’ counsel for a period of 60 days.

(5) If the parties cannot agree on costs, they will agree on a timetable for exchanging brief submissions and deliver them to the court by July 23, 2012.

___________________________ C. Horkins J.

Released: June 18, 2012

COURT FILE NO.: 05-CV-301832CP

DATE: 20120618

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:

Charles C. Roach, Ashok Charles, michael Mcateer, howard jerome gomberg Plaintiffs – and – The Attorney general of canada Defendant

REASONS FOR JUDGMENT

C. Horkins J.

Released: June 18, 2012