Martin v. Minister of Employment and Immigration, (1999) 166 F.T.R. 35 (TD)

• Judge: Gibson, J.
• Court: Federal Court (Canada)
• Case Date: February 01, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 166 F.T.R. 35 (TD)

Martin v. MEI (1999), 166 F.T.R. 35 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. AP.061

Louise Martin, Andre Martin and Michel Martin minors by their litigation Guardian, Louise Martin (plaintiffs) v. Her Majesty the Queen in right of Canada, by her Minister of Employment and Immigration (defendant)

(T-2643-93)

Indexed As: Martin v. Minister of Employment and Immigration

Federal Court of Canada

Trial Division

Gibson, J.

April 12, 1999.

Summary:

A deportation order issued against Philip, a landed immigrant, and he was released into the community with conditions. Philip appealed.

The Appeal Division of the Immigration and Refugee Board stayed the deportation order for three years with conditions. Philip was convicted of assaulting his wife.

The Appeal Division of the Immigration and Refugee Board revoked the stay. Philip appealed.

The Federal Court of Appeal dismissed the appeal. Philip was convicted of sexually assaulting, kidnapping and assaulting Martin. Martin sued the Minister in negligence for failing to: execute Philip's removal order; detain Philip pending his removal; and pro­tect her. Martin's minor children claimed for damages for loss of care, guidance and companionship from their mother.

The Federal Court of Canada, Trial Divi­sion, dismissed the action, but provisionally assessed damages.

Crown - Topic 1561

Torts by and against Crown - Negligence by Crown - General - Philip, a landed immigrant, was convicted of sexually assaulting, kidnapping and assaulting Mar­tin - Philip had a prior sexual assault con­viction and was alleged to have committed another sexual assault - The stay of the deportation order issued against Philip was revoked before Martin was assaulted - Martin sued the Minister in negligence for failing to: execute the removal order; detain Philip pending his removal; and adequately protect her - The Federal Court of Canada, Trial Division, held that the Minister did not owe Martin a private law duty of care - Martin belonged to a very broad class of young, single women living in the London, Ontario region who fre­quented bars, which was insufficient to create a proximity relationship - See para­graphs 84 to 92.

Crown - Topic 1561

Torts by and against Crown - Negligence by Crown - General - Philip, a landed immigrant, was convicted of sexually assaulting, kidnapping and assaulting Mar­tin - He had a prior sexual assault convic­tion and was alleged to have committed another sexual assault - A stay of the deportation order against Philip was revoked before Martin was assaulted - Martin sued the Minister in negligence for failing to: execute the removal order; detain Philip pending his removal; and adequately protect her - The Federal Court of Canada, Trial Division, held that the evidence did not limit the scope of any private law duty owed by the Minister to Martin - Officials proceeded deliberately and with caution, acting within the resource constraints and with knowledge of the full range of demands on the resources available to them - See paragraphs 93 to 95.

Crown - Topic 1561

Torts by and against Crown - Negligence by Crown - General - The Federal Court of Canada, Trial Division, discussed the Crown's duty of care owed to: a plaintiff generally; plaintiffs in sexual assault cases; and the plaintiff in this case - See para­graphs 74 to 95.

Crown - Topic 2441

Liability of Crown arising out of the en­forcement of statutes - When liable - Gen­eral - The Federal Court of Canada, Trial Division, discussed Crown liability, stating that "[i]n order for liability to fall upon the Crown, a plaintiff must show that a Crown servant or ser­vants, acting within the scope of employ­ment, breached a duty that was owed to the plaintiff. The plaintiff must additionally establish that the breach caused the plain­tiff injury of a sort that would attract personal liability against a private person" - See paragraph 73.

Crown - Topic 2441

Liability of Crown arising out of the en­forcement of statutes - When liable - Gen­eral - [See all Crown - Topic 1561 ].

Crown - Topic 2801

Crown immunity - General - The Federal Court of Canada, Trial Division, discussed Crown immunity - See paragraph 73.

Damage Awards - Topic 590

Torts - Injury to third parties - Loss of care, guidance and companionship - Philip, a landed immigrant, was convicted of sex­ually assaulting, kidnapping and assault­ing Martin - Philip had a prior sexual assault conviction and was alleged to have com­mitted another sexual assault - A stay of the deportation order against Philip was revoked before Martin was assaulted - Martin sued the Minister in negligence - Martin's two children sued the Minister for loss of care, guidance and companionship of their mother - The Federal Court of Canada, Trial Division, dismissed the action, but provisionally assessed the dam­ages for one child at $6,000 and the other child at $10,000 - See paragraph 110.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault - Philip, a landed immigrant, was convicted of sexually assaulting, kid­napping and assaulting Martin - Philip had a prior sexual assault conviction and was alleged to have committed another sexual assault - A stay of the deportation order against Philip was revoked before he as­saulted Martin - Martin sued the Minister in negligence for failing to: execute the removal order; detain Philip pending his removal; and adequately protect her - The Federal Court of Canada, Trial Division, dismissed the action, but provisionally assessed general damages at $140,000 - The court would have awarded lost income and special damages - See paragraphs 105 to 109.

Damages - Topic 2420

Torts affecting the person - Assault - Gen­eral - The Federal Court of Canada, Trial Division, discussed the law in assessing nonpecuniary damages of a victim of sex­ual assault - See paragraphs 96 to 104.

Practice - Topic 7029

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Novel or important point - Philip, a landed immi­grant, was convicted of sexually assaulting, kid­napping and assaulting Martin - He had a prior sexual assault conviction and was alleged to have committed another sexual assault - A stay of the deportation order against Philip was revoked before he assaulted Martin - Martin sued the Minister in negligence for failing to: execute the removal order; detain Philip pending his removal; and adequately protect her - The Federal Court of Canada, Trial Division, dismissed the action and declined to order costs against the plaintiff because the legal and factual issues raised were novel in an immigration context - The Minister's delays reasonably gave rise to Martin's concerns - See paragraph 113.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See first Crown - Topic 1561 ].

Torts - Topic 79

Negligence - Duty of care - Factors limit­ing or reducing scope of duty of care - [See second Crown - Topic 1561 ].

Torts - Topic 9166

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Immigration officials - [See all Crown - Topic 1561 and first Crown - Topic 2441 ].

Cases Noticed:

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 73, footnote 18].

Olympia Janitorial Supplies v. Canada (Minister of Public Works), [1997] 1 F.C. 131; 117 F.T.R. 31 (T.D.), refd to. [para. 73, footnote 20].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 74, footnote 21].

Jane Doe v. Board of Police Commis­sioners of Metropolitan Toronto et al. (1990), 40 O.A.C. 161; 72 D.L.R.(4th) 580 (Div. Ct.), refd to. [para. 75, foot­note 23].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241, refd to. [para. 76, footnote 25].

Ryan v. Victoria (City) et al. (1999), 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 77, footnote 26].

Jane Doe v. Board of Police Commis­sioners of Metropolitan Toronto et al. (1998), 60 O.T.C. 321; 160 D.L.R.(4th) 697 (Gen. Div.), consd. [para. 78, foot­note 27].

J.S. v. Clement (1995), 122 D.L.R.(4th) 449 (Ont. Gen. Div.), refd to. [para. 78, footnote 28].

Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214; 85 F.T.R. 99 (T.D.), refd to. [para. 94, footnote 32].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 97, foot­note 33].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 98, footnote 34].

Gauthier v. Beaumont - see Gauthier v. Lac Brôme (Ville).

Gauthier v. Lac Brôme (Ville), [1998] 2 S.C.R. 3; 228 N.R. 5, refd to. [para. 99, footnote 35].

Lord et al. v. Downer et al. (1998), 66 O.T.C. 39 (Gen. Div.), refd to. [para. 103, footnote 39].

Williams v. Canada (Minister of Citizen­ship and Immigration), [1997] 2 F.C. 646; 212 N.R. 63 (F.C.A.), refd to. [para. 116, footnote 44].

Counsel:

David G. Waites, Lou-Anne F. Farrell and Stephanie Tiffin, for the plaintiffs;

S. Wayne Morris and Douglas O. Smith, for the defendants.

Solicitors of Record:

Lerner & Associates, London, Ontario, for the plaintiffs;

Dutton, Brock, MacIntyre & Collier, Toronto, Ontario, for the defendants.

This action was heard at London, Ontario, on January 18-22, 25-28 and February 1, 1999, by Gibson, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on April 12, 1999.