Collie Woolen Mills Ltd. v. Canada
T-2375-92
Richard J.
14/2/96
13 pp.
Motion for summary judgment-Plaintiffs charged with violating Income Tax Act, s. 239(1)(a), (d) by making false, deceptive statements, failing to declare income, and by wilfully evading payment of federal taxes-Acquitted January 19, 1989-By amended statement of claim dated February 15, 1993 plaintiffs making claim for "negligence, reckless and improper investigation" and "wilful negligent and reckless prosecution and reckless and improper investigation" against federal Crown-Defendant alleging claim statute barred, amended statement of claim not disclosing genuine issue for trial-Federal Court Rule 432.3 permitting judge to grant summary judgment where satisfied no genuine issue for trial-Motion granted-R. 432.3 ought to be construed liberally to secure just, most expeditious, least expensive determination of every proceeding-Rules 432.1 to 432.7, establishing procedure for obtaining summary judgment coming into force January 13, 1994-Similar provisions for summary judgment introduced in Ontario Rules of Civil Procedure some 10 years earlier-Language of Ontario Rules identical with that of R. 432.3(1)-Decisions of Ontario courts providing useful guidance-R. 432.3(4)(a) clearly authorizing judge to decide both questions of fact, law on motion for summary judgment if able to do so on material before Court: Patrick v. Canada, [1994] F.C.J. No. 1216 (T.D.)-In that respect Court's power on such motion broader than that provided under Ontario Rule 20-Motion for summary judgment should only be denied where, on whole of evidence, judge unable to find necessary facts, or unjust to do so-Desirable to dispose of cases where no real dispute over law or facts or where such disputes can be resolved by Court-Where genuine issue amount of money involved, Court may order reference to determine amount-Action for negligence based upon Crown's vicarious liability for alleged acts or omissions of servants imposed by Crown Liability and Proceedings Act-S. 32 providing laws relating to prescription, limitation of actions in force within province apply to any proceedings arising in that province against federal Crown-Public Authorities Protection Act, s. 7 providing no action shall be instituted against any person for act done in pursuance of any public duty unless commenced within six months after cause of action arising-Six-month limitation period began January 18, 1989, date of plaintiffs' acquittal-Since action commenced September 1992, outside limitation period-Furthermore, no genuine issue for trial-Tort of "negligent investigation" in context of criminal investigation not one known to law-Plaintiffs not pleading malicious prosecution, only negligence-Plaintiffs not making out case defendant, through its servants, acting in negligent manner or exercising discretion in improper manner-Federal Court Rules, C.R.C., c. 663, RR. 419(1), 432.1 (as enacted by SOR/94-41, s. 5), 432.2 (as enacted idem), 432.3 (as enacted idem)-Rules of Civil Procedure, O. Reg. 560/84, R. 20-Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 32 (as am. by S.C. 1990, c. 8, s. 31)-Public Authorities Protection Act, R.S.O. 1990, c. P.38, s. 7(1).