Date: 20050217
Docket: T-1917-02
Citation: 2005 FC 259
BETWEEN:
MARIO CYR
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
HUGESSEN J.
[1] This is a motion for summary judgment filed by the defendant without personal appearance under rule 369. Notwithstanding service of the motion and supporting documents, the plaintiff has not filed any reply whatever and the deadlines for doing so have passed.
[2] The plaintiff is an inmate in a federal penitentiary. He is suing the federal government in a civil liability action. He claims he was unlawfully placed in segregation, denied the medical care required for his condition and forced to be in smoking areas although he is a non-smoker. He is claiming extensive damages.
[3] He alleges facts beginning in 1984, the year in which his incarceration began. His statement of claim was filed on November 14, 2002. The defendant has filed a statement of defence relying on the three-year prescription under article 2925 of the Civil Code of Quebec.
[4] The defendant essentially claims that all of the facts alleged in paragraphs 15 to 22, 24 and 26 to 33 of the statement of claim occurred before November 14, 1999, more than three years before the filing of the statement of claim. Furthermore, in paragraphs 45 and 46 of the statement of claim, most of the alleged facts occurred more than three years before it was filed. Thus, all of the causes of action originating between 1984 and November 14, 1999, are prescribed. The plaintiff could have sued for each of the causes of action within the three-year period, and since he did not do so this right is extinguished.
[5] Section 32 of the Crown Liability and Proceedings Act provides that provincial law is the applicable law for prescription. Section 39 of the Federal Courts Act is to the same effect.
[6] In the case at bar, since all the facts giving rise to this action occurred in the province of Quebec, it is Quebec law that must be applied.
[7] The following articles of the Civil Code are relevant:
2875. Prescription is a means of acquiring or of being released by the lapse of time and according to the conditions fixed by law: prescription is called acquisitive in the first case and extinctive in the second.
Under extinctive prescription, the Code provides:
2921. Extinctive prescription is a means of extinguishing a right which has not been used or of pleading the non-admissibility of an action.
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.
[8] In Quebec law, contrary to the situation at common law (see Kibale v. Canada, [1990] F.C.J. 1079 (F.C.A.)), the facts that would interrupt prescription must be alleged in the statement of claim. The failure to do so may result in the action being dismissed (Desruisseaux v. Croft, J.E. 88-887, Q.C.A.).
[9] In this case, the plaintiff has not cited any fact that would interrupt prescription, either in his statement of claim or in his reply. The motion for summary judgment must therefore be allowed, as the causes of action arising between 1984 and November 14, 1999, are prescribed.
ORDER
Paragraphs 15 to 22, 24 and 26 to 33 of the statement of claim are struck out. As for paragraphs 45 and 46 of the statement of claim, the action is dismissed for any cause of action arising between 1984 and November 14, 1999.
"James K. Hugessen"
Judge
Ottawa, Ontario
February 17, 2005
Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1917-02
STYLE OF CAUSE: MARIO CYR v. HER MAJESTY THE QUEEN
MOTION IN WRITING UNDER RULE 369
REASONS FOR ORDER
AND ORDER: HUGESSEN J.
DATED: February 17, 2005
WRITTEN REPRESENTATIONS BY:
MARIO CYR FOR PLAINTIFF
CLAUDE MORISSETTE FOR DEFENDANT
SOLICITORS OF RECORD:
MARIO CYR FOR PLAINTIFF
JOHN H. SIMS, Q.C. FOR DEFENDANT
DEPUTY ATTORNEY GENERAL
OF CANADA