COURT FILE NO.: CV-17-587057
DATE: 2019/11/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEVEN (ISTVAN) DUGALIN Plaintiff
- and -
THE ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendants
Steven Dugalin, self-represented Rachel Hepburn Craig for the Attorney General of Canada
HEARD: November 15, 2019
PERELL, J.
REASONS FOR DECISION
[1] Pursuant to rule 21.01 (1)(a) of the Rules of Civil Procedure,[^1] the Defendant, the Attorney General of Canada, brings a motion for an order striking the Plaintiff Steven (Istvan) Dugalin’s Statement of Claim or Amended Statement of Claim without leave to amend for failure to plead a reasonable cause of action.
[2] In the alternative, pursuant to rules 21.01 (1)(b) or 21.01(3)(d), the Attorney General seeks an order dismissing Mr. Dugalin’s action as statute barred by the Limitations Act, 2002.[^2] For the reasons that follow, I dismiss the action as statute barred.
[3] For the purposes of these Reasons for Decision, I assume without deciding whether Mr. Dugalin has pleaded a reasonable cause of action against the Attorney General of Canada, which is to say I assume that he has pleaded a legally viable cause of action against the Federal Government of Canada. The focus of these Reasons for Decision is on the matter of whether Mr. Dugalin’s claim is statute barred.
[4] I take the following facts, which for the purposes of this motion I also assume to be true, from Mr. Dugalin’s affidavits, Statements of Claim, and from the documents incorporated by reference in his Statements of Claim and attached as exhibits to his affidavits:
a. On June 39, 1957, Mr. Dugalin, a political refugee from Hungary, arrived in Canada. He was given the status of a “Landed Refugee”.
b. In 1959, a deportation order was made against him because of a criminal conviction in Hungary, but the order could not be enforced because he was a stateless person. He retained his special status as a Landed Refugee.
c. In 1969, the deportation order was cancelled.
d. Approximately 25 years then passed until December 29, 1994, when Immigration Officials of Canada mistakenly arrested Mr. Dugalin based on the old deportation order, which was treated as if it actually existed.
e. Mr. Dugalin was released from detention but on onerous terms that included the condition that he did not engage in employment contrary to the Immigration Act and its regulations.
f. Three years’ later in 1997, Mr. Dugalin hired an immigration lawyer who unsuccessfully brought an application for judicial review.
g. 15 years then passed. With the failure of the judicial review application, Mr. Dugalin lived in fear of deportation until 2012, when he retained Barbara Jackman, a prominent immigration lawyer to investigate the matter.
h. During the 15-year period, Mr. Dugalin’s ability to earn a living, his ability to travel, his rights to O.H.I.P coverage and to other societal benefits, including pension and old age security benefits were substantially restricted or denied.
i. In 2003, the Federal Government denied Mr. Dugalin his O.A.S. (Old Age Security) and Canada Pension Plan benefits. His mental and physical health was adversely affected.
j. Matters began to improve in 2012 after Ms. Jackman contacted Immigration Officials who acknowledged that a mistake had been made. Mr. Dugalin’s O.H.I.P. coverage was granted. He was granted O.A.S. and Canada Pension Plan benefits.
k. Nevertheless, he continued to confront obstacles in obtaining his full social benefits. On October 17, 2013, Mr. Dugalin received a letter from Service Canada informing him that his application for O.A.S. benefits was approved with a year of retroactive pay. Mr. Dugalin, however, claims that he is owed ten years of retroactive pay due to “special circumstances”.
l. Between 2012 and 2016, Mr. Dugalin himself and sometimes through the agency of Ms. Jackman corresponded with numerous government officials and politicians in his efforts to obtain his full benefits and for compensation for the harm he had suffered because of the mistakes made by Immigration Department officials. Amongst others that Mr. Dugalin wrote to for help, he wrote the Honourable Kathleen Wynne, Premier of Ontario, the Honourable Jason Kenney, and the Right Honourable Justin Trudeau, Prime Minister of Canada.
[5] On November 23, 2017, Mr. Dugalin commenced an action against the Federal Government.
[6] On January 19, 2018, Mr. Dugalin delivered his Statement of Claim.
[7] Mr. Dugalin’s claim is for “erroneous decisions and negligence which resulted in the flagrant violation and the loss of [his] Charter of Rights and Freedoms for almost two decades for $1,000,000”.
[8] On November 23, 2018, the Attorney General of Canada delivered the Federal Government’s Statement of Defence. Amongst other defences, the Attorney General of Canada pleaded that Mr. Dugalin’s claim was statute barred.
[9] Mr. Dugalin provided no formal reply to the Statement of Defence but sent two letters to the Attorney General of Canada with his reply.
[10] Although leave to do so was not granted, on December 20, 2018, Mr. Dugalin served an Amended Statement of Claim.
[11] The Attorney General of Canada moves under rule 21.01 (1)(a) for a determination that Mr. Dugalin’s claim is statute barred under the Limitations Act, 2002.
[12] For a motion under rule 21.01(1)(a), the issue to be determined must be an issue of law raised by the pleading.[^3] An issue of fact or of mixed fact and law cannot be determined on a motion made under this rule.[^4] If there is a factual dispute or if a full factual record is necessary to decide the issue of law, the court should decline to hear the motion under rule 21.01(1)(a).[^5]
[13] Courts may determine whether a claim is statute barred on rule 21.01(1)(a) motions, where the determination of the issue does not depend on findings of fact.[^6] Where the availability of a limitation period defence depends upon findings of fact, it is a question of mixed fact and law and not a question of law that can be decided on a motion under rule 21.[^7] A plaintiff’s claim should not be struck under rule 21.01 (1)(a) based on the expiry of a limitation period, where there is a factual controversy about when the claim was discovered.[^8]
[14] Where a statement of defence is delivered and the pleadings reveal that discoverability is not an issue, the court may determine whether the plaintiff’s claim is statute barred under rule 21.01 (1)(a).[^9]
[15] In the immediate case, Mr. Dugalin’s claims sound in the common law tort of negligence and for contravention of the Canadian Charter of Rights and Freedoms both of which are subject to a two-year limitation period.
[16] Charter claims are subject to provincial limitation periods.[^10]
[17] The basic limitation period under the Limitations Act, 2002 is set out in sections 4 and 5 of the Act, which state:
BASIC LIMITATION PERIOD
Basic limitation period
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Discovery
- (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[18] With the enactment of the Limitations Act, 2002, a limitation period commences when a “claim is discovered”. The discoverability principle has been codified in the Limitations Act, 2002. Subject to s. 5(1)(a)(iv), a limitation period commences at its earliest when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence, but because of s. 5(1)(a)(iv), discoverability may be postponed.
[19] Under the Limitations Act, 2002, the discoverability of a claim for relief involves the identification of the wrongdoer, and also, the discovery of his or her acts or omissions that constitute liability.[^11] It is not enough that the plaintiff has suffered a loss and has knowledge that someone might be responsible; the identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence.[^12]
[20] For the limitation period to begin to run, it is not necessary that the plaintiff know the full extent or quantification of his or her damages; rather, the period begins to run with the plaintiff’s subjective or objective appreciation of being damaged, i.e., of being worse off than before the defendant’s conduct.[^13]
[21] Section 5(1)(a)(iv) of the Limitations Act, 2002 adjusts the operation of the discoverability principle, and s. 5(1)(a)(iv) can have the effect of delaying the commencement of the running of limitation period. Where a person knows that he or she has suffered harm; i.e., when the plaintiff knows the elements of ss. 5(1)(a)(i),(ii), and (iii), the delay lasts until the day when a proceeding would be an “appropriate” means to remedy the harm having regard to the nature of the injury, loss or damage.
[22] The appropriateness factor of 5(1)(a)(iv) introduces some uncertainty in the operation of the Limitations Act, 2002 but it also introduces some flexibility and fairness in the application of the discovery principle, which presumptively operates against the claimant as soon as a cause of action becomes objectively apparent.[^14] In Markel Insurance Co. of Canada v. ING Insurance Co. of Canada,[^15] the Court of Appeal held that for s. 5(1)(a)(iv) to have a delaying effect, there must be a juridical reason for the person to wait; i.e., there must be an explanation rooted in law as to why commencing a proceeding was not yet appropriate. Appropriateness must be assessed on the facts of each particular case, including taking into account the particular interests and circumstances of the plaintiff.[^16]
[23] Subject to the adjustment made by s. 5(1)(a)(iv), with respect to the basic limitation period of two years under the Limitations Act, 2002, a claim is “discovered” on the earlier of the date the claimant knew - a subjective criterion - or ought to have known - an objective criterion - about the claim.[^17] Pursuant to s. 5(2) of the Act, the discovery of a claim presumptively occurs for the plaintiff on the date of the act or omission, but the plaintiff may rebut the presumption by demonstrating that he or she could only have reasonably discovered the underlying material facts after the date of the act or omission.
[24] Applying these principles to the circumstances of the immediate case, pursuant to the Limitations Act, 2002 around 2012, presumptively and also subjectively and objectively factually, Mr. Dugalin discovered he had a “claim” against the Federal Government of Canada in 2012 as a result of the inquiries made by Ms. Jackman.
[25] Apart from the presumption found in s. 5(2) of the Limitations Act and accepting the facts pleaded in Mr. Dugalin’s statements of claim and in his affidavits as true in 2012, Mr. Dugalin, whom it should be recalled was being assisted by a lawyer, knew that he had suffered injury, loss, or damage that had been caused by the actions of the Government of Canada and having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy the injuries he had suffered.
[26] In the immediate case there is no factual controversy about when Mr. Dugalin discovered that he had a claim against the Government of Canada. The two-year limitation period for Mr. Dugalin’s claim began to run in 2012. That Mr. Dugalin petitioned various politicians for an extra-judicial remedy for his complaints did not suspend the running of the limitation period. Mr. Dugalin did not commence proceedings until November 23, 2017. By this time, his claim was statute barred.
[27] For the above reasons, I grant the Attorney General of Canada’s motion.
[28] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Attorney General’s submissions within twenty days of the release of these reasons for decision followed by Mr. Dugalin’s submissions within a further twenty days.
Perell, J.
Released: November 19, 2019
COURT FILE NO.: CV-17-587057
DATE: 2019/11/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEVEN (ISTVAN) DUGALIN Plaintiff
- and -
THE GOVERNMENT OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendants
REASONS FOR DECISION
PERELL J.
Released: November 19, 2019
[^1]: R.R.O. 1990, Reg. 194. [^2]: S.O. 2002, c. 24, Sched. B [^3]: McLean v. Vassel, [2001] O.J. No. 3212 (S.C.J.). [^4]: McLean v. Vassel, [2001] O.J. No. 3212 (S.C.J.); Gibson v. Cigna Life Insurance Co. of Canada, [1998] O.J. No. 5447 (Gen. Div.). [^5]: Portuguese Canadian Credit Union Ltd. (Liquidator of) v. CUMIS General Insurance Co., 2010 ONSC 6107, [2010] O.J. No. 4736, 2011 ONSC 6107; Rhône-Poulenc Canada Inc. v. Reichhold, [1998] O.J. No. 2531 at para. 15 (Gen. Div.). [^6]: Charlton v. Beamish (2004), 2004 CanLII 35934 (ON SC), 73 O.R. (3d) 119 at paras 18, 48-49 (S.C.J.); Whittaker v. Great-West Life Assurance Co., 2008 CanLII 13376 (ON SC), [2008] O.J. No. 1194 (S.C.J.); Waschkowski v. Hopkinson Estate (2000), 2000 CanLII 5646 (ON CA), 47 O.R. (3d) 370 (C.A.); Cascone v. Rodney (1981), 1981 CanLII 1748 (ON SC), 34 O.R. (2d) 618 at para. 2 (H.C.J). [^7]: Miano v. Campos, 2019 ONSC 1816; Golden Oaks Enterprises Inc. (Trustee of) v. Lalonde, 2017 ONCA 515 at para. 45; Boutin v. Co-Operators Life Insurance Co. (1999), 1999 CanLII 2071 (ON CA), 42 O.R. (3d) 612 at paras. 20-22 (C.A.) [^8]: Clark v. Ontario (Attorney General), 2019 ONCA 311; Brozmanova v. Tarshis, 2018 ONCA 523; Kaynes v. BP, PLC, 2018 ONCA 337; Ridel v. Goldberg, 2017 ONCA 739; Salewski v. Lalonde, 2017 ONCA 515. [^9]: 1003280 Ontario Inc. v. Canac, A Kohler Co., 2013 ONCA 69; Whittaker v. Great-West Life Assurance Co., 2008 CanLII 13376 (ON SC), [2008] O.J. No. 1194 (S.C.J.). [^10]: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14; Ravndahl v. Saskatchewan, 2009 SCC 7; Alexis v. Toronto Police Service Board, 2009 ONCA 847; Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1. [^11]: Aguonie v. Galion Solid Waste Material Inc., (1998), 1998 CanLII 954 (ON CA), 38 O.R. (3d) 161 (C.A.); Ladd v. Brantford General Hospital (2007), 2007 CanLII 45921 (ON SC), 88 O.R. (3d) 124 (S.C.J.). [^12]: Mark v. Guelph (City) (2011), 2010 ONSC 6034, 104 O.R. (3d) 471 (S.C.J.); Zurba v. Lakeridge Health Corp. (2010), 2010 ONSC 318, 99 O.R. (3d) 596 (S.C.J.); Greenway v. Ontario (Minister of Transportation) (1999), 1999 CanLII 14797 (ON SC), 44 O.R. (3d) 296 (Gen. Div.). [^13]: Pickering Square Inc. v. Trillium College Inc., 2014 ONSC 2629, aff’d 2016 ONCA 179; Hamilton (City) v. Metcalfe & Mansfield Capital Corp., 2012 ONCA 156. [^14]: Pepper v. Sanmina-Sci Systems (Canada) Inc., 2017 ONSC 1516. [^15]: 2012 ONCA 218. [^16]: Winmill v. Woodstock Police Services, 2017 ONCA 962; Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44; 407 ETR Concession Co. v. Day, 2016 ONCA 709, rev’g 2014 ONSC 6409; Kadiri v. Southlake Regional Health Centre, 2015 ONSC 621 aff’d, 2015 ONCA 847; U-Pak Disposals (1989) Ltd. v. Durham (Regional Municipality), 2014 ONSC 1103. [^17]: Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at paras. 33 and 70.