Date: 19981105
Docket: T-1678-96
BETWEEN:
DAIRN OWEN SHANE,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
WETSTON, J.
[1] This is an application by the Defendant for an Order striking the Amended Statement of Claim on the grounds that it discloses no reasonable cause of action, that it is scandalous, frivolous or vexatious, or that it may prejudice, embarrass or delay the fair trial of the action. Alternatively, the Defendant seeks an Order requiring the Plaintiff to file further and better particulars within 20 days of the Court's Order on this motion and an extension of time within which to file the Statement of Defence.
[2] The Plaintiff essentially seeks the following relief in his amended Statement of Claim:
| (a) A declaration that the failure of the Government of Canada to enact legislation to prevent private citizens or private corporations from requesting or using the social insurance number of other private citizens for any reason other than as the duly authorized agent of the Government of Canada, amounts to the Government of Canada enacting legislation to allow said activity and thus can be challenged pursuant to the Canadian Charter of Rights and Freedoms (hereinafter "the Charter") |
| (b) A declaration that the request or use of social insurance numbers by private citizens is prohibited because it violates the rights of private citizens pursuant to ss. 7 and 8 of the Charter. |
| (c) In the alternative, a declaration that ss. 138-141 of the Employment Insurance Act, and Regulation 89 of the Employment Insurance Regulations violates ss. 7 and 8 of the Charter, and are therefore of no force and effect pursuant to s. 52(1) of the Charter, because the use by the private sector of social insurance numbers which is not duly authorized Government of Canada as proper governmental use flows from the creation of social insurance numbers. |
| (d) In the further alternative, a declaration that the Government of Canada has breached and continues to breach an alleged fiduciary duty to protect the information collected and/or appended to the social insurance number pursuant to the Privacy Act, insofar as the Government of Canada has taken no action to prevent the use of the social insurance number in the private sector, which allegedly increases the risk that confidential information will become known. |
[3] By letter dated August 29, 1996, the Defendant sought further and better particulars of the Statement of Claim but the Plaintiff, Mr. Shane, advised that he had no intention of exceeding to the Defendant's request for particulars.
[4] Mr. Shane is a barrister and solicitor and is a member of the Law Society of British Columbia. He is the Plaintiff in this matter and is acting on his own behalf. In addition to the grounds discussed above with respect to why the Statement of Claim should be struck, the Defendant also argues that the Plaintiff lacks standing in this matter.
[5] The Plaintiff submits that the failure of the Government of Canada to invoke any legislative action to prevent the uncontrolled use of the social insurance number can be challenged under the Charter, as the social insurance number was created by the Government of Canada, and the Government of Canada should not be permitted to set up a situation where the rights of Canadian citizens are being breached by an action of the Government of Canada (that is the creation of the social insurance number), and then in essence step back and disclaim any responsibility for the Charter breaches which have been created. The Plaintiff claims a declaration pursuant to section 24(1) of the Charter that the failure of the Government of Canada to enact legislation to prevent a private citizen or private corporation from requesting or using the social insurance number of another private citizen for any reason other than a duly authorized agent for the Government of Canada is contrary to sections 7 and 8 of the Charter. Alternatively, the Statement of Claim seeks a declaration that the legislative provisions which create and maintain the social insurance number be declared of no force and effect pursuant to section 52(1) of the Charter as the use of the social insurance number in the private sector violates section 7 and 8 of the Charter, as such use violates the constitutional right of a Canadian citizen to life, liberty and security of the person and a constitutional right of a Canadian citizen to privacy.
[6] Firstly, I am of the opinion that the Statement of Claim as filed by Mr. Shane does not plead material facts that are necessary to disclose a reasonable cause of action. The basic rule of pleadings involves four separate elements: 1) every pleading must state facts and not merely conclusions of law; 2) it must include material facts; 3) it must state facts and not the evidence by which they are to be proven; and 4) it must state facts concisely in a summary form. Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare) (1987), 11 F.T.R. 121 (F.C.T.D.) at page 128. Pursuant to section 221(1)(a) of the Federal Court Rules a statement of claim should only be struck if it is plain and obvious that it discloses no reasonable cause of action. In this regard, a fundamental question that should be considered as to whether or not the Statement of Claim should be struck is whether the failure to legislate in this case provides a sufficient basis to argue a violation of the Charter of Rights and Freedoms.
[7] Should the Court pronounce on the effect of an absence of legislation. The Defendant argues that the decision of Vriend et al. v. Her Majesty the Queen in the Right of Alberta et al., [1998] 1 S.C.R. 493 does not apply in this case. In Vriend (supra) at 530, the Supreme Court of Canada stated that the "... notion of judicial deference to the legislative choices should not be used to completely immunize certain kinds of legislative decisions from Charter scrutiny.". Moreover, in that case the Supreme Court noted at page 533 that the:
| "IRPA (Individuals Rights Protection Act) is being challenged as unconstitutional because of its failure to protect Charter rights, that is to say its under- inclusiveness. The mere fact that the challenged aspect of the Act is its under- inclusiveness should not necessarily render the Charter inapplicable. If an admission were not subject to the Charter, underinclusive legislation which was worded in such a way as to simply omit one class rather than to explicitly exclude it would be immune from the Charter challenge. If this position was accepted, the form rather than the substance of the legislation would determine whether it was open to challenge. This result would be illogical and more importantly unfair. Therefore, where, as here, the challenge concerns an Act of the legislature that is underinclusive as a result an omission, section 32 should not be interpreted as precluding the application of the Charter." |
With respect to the Statement of Claim in this matter, the failure of the Government of Canada to include protections of the type advanced by the Plaintiff, in my opinion, does not come within the rationale of the decision of Vriend (supra). For policy reasons, which are unknown to the Court, the Government of Canada has decided not to legislate in the manner which has been alleged by the Plaintiff.
[8] Further, in Vriend (supra) at page 534, the Supreme Court of Canada notes that "... it has not yet been necessary to decide in other contexts whether the Charter might impose positive obligations on the legislatures or on Parliament such that a failure to legislate could be challenged under the Charter.". Does this mean that it is not plain and obvious that in this case the Government of Canada's failure to legislate could be challenged under the Charter.
[9] Mr. Shane agrees that if Vriend does not apply in this case that the Statement of Claim should be struck. While he makes additional arguments regarding a fiduciary duty on the part of the Government of Canada as well as an argument regarding fundamental democratic principles he agrees that the Charter challenge based on the analysis in Vriend is determinative. I agree with the Defendant that the Plaintiff's arguments with respect to fiduciary duty and democratic principles are without merit. While the Supreme Court of Canada has left open the question of a positive obligation on the legislature with respect to certain challenges under the Charter, I am of the opinion that Vriend does not apply in the context of the issues raised by the Amended Statement of Claim of the Plaintiff.
[10] Secondly, the Plaintiff argues that the Charter applies to the actions of private citizens or private corporations due to the failure of the Government of Canada to legislate in this area. The Defendant argues that the actions of third parties are independent of government action and that the matters alleged by the Plaintiff in the Amended Statement of Claim do not involve government action. In essence, if the actions which caused a violation of section 7 and 8 of the Charter have occurred, these are not actions by the government but rather by third parties. In my opinion, in this case, the Charter does not apply to the acts of a private citizen or a private corporation who allegedly request or use the social insurance numbers of other private citizens other than as duly authorized agents for the Government of Canada. In this regard, I agree with the Defendant that no reasonable cause of action flows from the allegations contained within the Amended Statement of Claim. The Charter cannot be applied in such a manner.
[11] Finally, the Defendant argues that the Plaintiff has no standing in this matter. It is well established that in Order to bring a public interest claim, three criteria must be met: 1) Is there a serious issue raised as to the invalidity of the legislation in question; 2) Has it been established that the Plaintiff is directly affected by the legislation or, if not, does the Plaintiff have a genuine interest in its validity; and 3) Is there another reasonable and effective way to bring the issue before the Court? Canadian Council of Churches v. Canada (Minister of Employment and Immigration, [1992] 1 S.C.R. 236 at 253. In my opinion, the pleadings do not disclose a serious issue as to the invalidity of the legislation either by reason of under inclusiveness or by reason of a positive obligation on the legislature or Parliament such that a failure to legislate could be challenged under the Charter. Moreover, I do not on the basis of the Statement of Claim, as amended, agree that the Plaintiff is directly affected or has a genuine interest in this matter. He advises that the basis for standing is that he has a social insurance number and he is a Canadian citizen. The Amended Statement of Claim does not demonstrate how he has been directly affected or has been refused a service or demonstrate how he has been harmed by the use of a social insurance number. With respect to whether there is a more reasonable and effective way to bring the issue before the Court, Mr. Shane indicated that he did not wish to involve third parties by way of a lawsuit. Unfortunately, this is not an acceptable basis upon which to suggest that there is not a more effective way to bring this matter before the Court. Nevertheless, all three criteria must be met and he has, in my opinion, failed both one and two above.
[12] While there may be a number of serious problems with Canada's social insurance number system, this action does not provide the Court with any basis to allow the action to proceed, as alleged, in order to ultimately impose an obligation on Parliament to legislate.
[13] In conclusion, the Plaintiff's Amended Statement of Claim shall be struck as it is plain and obvious that it discloses no reasonable cause of action pursuant to section 221(1)(a) of the Federal Court Rules. The Defendant has asked for costs to be fixed at $1,500. Costs shall be granted to the Defendant in the amount of $750.
(Sgd.) "Howard I. Wetston"
Judge
Vancouver, British Columbia
November 5, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: November 2, 1998
COURT NO.: T-1678-96
STYLE OF CAUSE: Dairn Owen Shane
v.
Her Majesty the Queen
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF WETSTON, J.
dated November 5, 1998
APPEARANCES:
Mr. Dairn Shane on his own behalf
Ms. Leigh Taylor for Respondent
SOLICITORS OF RECORD:
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada