Date: 20030123
Docket: T-230-02
Neutral Citation: 2003 FCT 67
Between:
STEPHEN M. BYER
Plaintiff
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
REASONS FOR JUDGMENT
PINARD J.:
The requested summary judgment is granted on the ground that the plaintiff's action is time-barred and that the question is determinative of the whole of the action.
In Riva Stahl GmbH et al. v. Combined Atlantic Carriers GmbH et al. (1999), 243 N.R. 176, the Federal Court of Appeal, upholding (1997), 131 F.T.R. 231, acknowledged the suitability of granting summary judgment where the motion for such a judgment was based exclusively on a time bar defence. Mr. Justice Stone, for the Court, noted the following in denying the appeal:
[11] The appellants' final submissions concern the suitability of granting summary judgment in the circumstances of this case . . . Their motions for summary judgment were based exclusively on the time bar defence. . . .
Here, the plaintiff in his action is seeking damages for an alleged "conspiracy" of Crown counsel which led to penal proceedings being taken against him on May 12, 1997. The plaintiff's action was filed on February 12, 2002, four years and nine months after he was charged with the illegal exercise of the profession of advocate, at a time when he was aware of the involvement of Crown counsel in this matter.
The relevant provisions of the law read as follows:
a) Section 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50:
32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose.
32. Sauf disposition contraire de la présente loi ou de toute autre loi fédérale, les règles de droit en matière de prescription qui, dans une province, régissent les rapports entre particuliers s'appliquent lors de poursuites auxquelles l'État est partie pour tout fait générateur survenu dans la province. Lorsque ce dernier survient ailleurs que dans une province, la procédure se prescrit par six ans.
b) Articles 2925 and 2929 of the Civil Code of Québec, S.Q., 1991, c. 64:
2925. An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise established.
2925. L'action qui tend à faire valoir un droit personnel ou un droit réel mobilier et dont le délai de prescription n'est pas autrement fixé se prescrit par trois ans.
2929. An action for defamation is prescribed by one year from the day on which the defamed person learned of the defamation.
2929. L'action fondée sur une atteinte à la réputation se prescrit par un an, à compter du jour où la connaissance en fut acquise par la personne diffamée.
In view of section 32 of the Crown Liability and Proceedings Act, which provides that provincial prescription and limitation periods shall apply in proceedings against the Crown, and in view of article 2925 of the Civil Code of Quebec, which states that an action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise established, the period in which the plaintiff could file his action ended three years after May 12, 1997. To the extent that the plaintiff's action is based on defamation, which is not clear, article 2929 of the Civil Code of Quebec, which states that an action for defamation is prescribed by one year from the day on which the defamed person learned of the defamation, applies.
In any event prescription clearly applies, and as this is determinative of the whole of the action, there is no genuine issue for trial with respect to the plaintiff's claim (subsection 216(1) of the Federal Court Rules, 1998, SOR/98-106).
Consequently, the motion for summary judgment sought in this case is granted and the plaintiff's action is dismissed.
As no costs were requested, none should be awarded.
JUDGE
OTTAWA, ONTARIO
January 23, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-230-02
STYLE OF CAUSE: STEPHEN M. BYER v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE PINARD
DATED: January 23, 2003
APPEARANCES:
Mr. Stephen M. Byer ON HIS OWN BEHALF
Me Daniel Latulippe FOR THE DEFENDANT
SOLICITORS OF RECORD:
Mr. Stephen M. Byer ON HIS OWN BEHALF
Verdun, Quebec
Mr. Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario