Date: 20000621
Docket: T-336-97
BETWEEN:
NOËL AYANGMA
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
MacKAY J.
[1] By statement of claim dated February 28, 1997, and served upon the defendant's representative, the plaintiff commenced an action against Her Majesty ("the Crown"), seeking damages and other relief for alleged wrongs said to have been committed by the defendant's servants or agents. A statement of defence was filed on April 25, 1997 and affidavits of documents were served by the parties as directed by the Court's Rules as they then provided. Certain other pre-trial steps were directed by the Court.
[2] Thereafter, by motion filed in January 1998, the Crown applied to the Court for an order to strike out the plaintiff's statement of claim without leave to amend. That motion was heard by me in Charlottetown, P.E.I., on March 11, 1998 when the plaintiff, who is not a lawyer, appeared, representing himself. Counsel on behalf of the defendant was then heard also. Decision was then reserved. Subsequently an Order issued on September 30, 1998 which records in its recitals my conclusion, in light of the plaintiff's claim and his submissions, that the interests of justice were best served by providing an opportunity for him to move for leave to amend the statement of claim to set out in full the material facts upon which the plaintiff's Charter claims were based. That order then directed as follows:
| 1. The plaintiff's statement of claim filed herein shall be struck effective November 16, 1998, unless on or before November 15, 1998 the plaintiff, by motion, seeks leave to amend that statement, with reference to a proposed revised statement of claim that includes the material facts upon which the plaintiff's claim or claims under the Canadian Charter of Rights and Freedoms is, or are based. |
| 2. If application for leave to amend is made on or before November 15, 1998 it shall be served by the plaintiff upon the defendant when filed in the Court, and the defendant may reply to that motion by written submissions on or before December 7, 1998. The Court will then arrange for the application for leave to be heard in person or by telephone and after hearing the matter the Court shall dispose of the application for leave. If it is not allowed the Court will then confirm the effective date of the order striking the current statement of claim. |
| 3. This Court shall be seised of this matter pending consideration of any application for leave to amend, or pending confirmation of the effective date for striking the statement of claim now filed in the Court. |
[3] In Reasons for Order, in relation to the order of September 30, 1998, I noted that:
| I agree with the defendant's submissions that the statement of claim does not plead material facts to a claim for damages in tort under the Crown Liability and Proceedings Act, and it does not plead material facts that clearly raise the basis for a cause of action. It does nevertheless raise the question whether the plaintiff may have a reasonable claim for relief pursuant to s. 24(1) of the Charter. |
[4] Pursuant to the Order of September 30, 1998, by Notice of Motion, dated and filed on October 13, 1998, the plaintiff applied for leave to amend the statement of claim. In response, and in opposition to that motion, counsel for the defendant filed a motion record on December 7, 1998.
[5] In note with regret that the motion records submitted by each of the parties were not brought to my attention for some time and were not dealt with by me until directions of July 5, 1999 were issued. In accord with those directions, copies of which were sent to the parties, my great regrets for delay were conveyed to them and their advice was sought whether the motion for leave to amend should be heard by personal appearance, or by telephone, or whether the Court might determine the matter on the basis of the written submissions already received. Counsel for the Crown responded that the defendant was satisfied to have the matter considered on the basis of the written motion records submitted. No advice or response has been received by the Court from the plaintiff, to whom a copy of the directions of July 5, 1999 were sent more than 11 months ago. In these circumstances, I now turn to determination of the plaintiff's motion for leave to amend the statement of claim, on the basis of the written motion records received from the parties.
[6] The essence of the plaintiff's claims against the defendant is that when he made an application for employment as an Air Traffic Controller, requesting that he be examined in French, members of the staff of Transport Canada treated him unfairly in testing him and in assessing him for employment, and that the Public Service Commission and the Canadian Human Rights Commission, to whom he complained, did not treat his complaints fairly or fully. In the amended statement of claim the plaintiff alleges that the treatment of his application and of his complaints about that treatment discriminated against him on the basis of race, nationality and ethnic origin and colour, and/or accent, voice clarity and/or elocution and projection, contrary to sections 3, 7, 15, and 20 of the Constitution Act of 1982, that is, the Charter of Rights and Freedoms and other statutes.
[7] I agree with the submissions of counsel for the defendant that by the terms of the Order of September 30, 1998, the applicant was to have the opportunity to seek leave to amend the statement of claim in respect of material facts upon which allegations of breaches of the Charter are based, an opportunity that did not extend to allegations of other alleged wrongs or breaches of statutory duties. I agree also that the Court's discretion to grant leave to amend will be exercised only when the amendments proposed plead material facts upon which there is some prospect of success on the merits of the claim.1
[8] The claims concerning the plaintiff's Charter interests alleged to be adversely affected include claims concerning rights under the following sections of the Charter:
| 1) Section 3, which assures to every citizen of Canada the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. |
| I find that the proposed amended statement of claim includes no facts relating to a possible infringement of the plaintiff's rights under s. 3. |
| 2) Section 20, which assures to any member of the public the right to communicate with and to receive services available from any head or central office of any institution of Parliament or of the Government of Canada in English or French. |
| I find that the proposed amended statement of claim in so far as it relates to failures to provide services in the French language does not contain sufficient material facts of language-related failures of services requested to set out a basis for a claim of violation of s. 20 of the Charter. |
| 3) Section 7, which sets out the legal right to life, liberty and security of the person and the right not to be deprived of those except in accord with the principles of natural justice. |
| I find that the proposed amended statement of claim fails to set out assertions of material fact that would support a finding that the plaintiff's rights under s. 7 were infringed. None of the courses of conduct alleged would constitute infringement of rights recognized under s. 7 of the Charter, even assuming a factual basis were pleaded to establish unfairness on the part of the defendant's servants in the proceedings concerned, which were administrative and of a non-penal nature concerning a claim to a right to work. Even if allegations in the nature of a claim for defamation were established, those concerns alleged do not constitute threats to life, liberty and security of the person as those terms are used in s. 7 of the Charter. |
| 4) Section 15, which provides for every individual equality before and under the law and equal protection and benefit of the law. |
| Here allegations of infringement of the plaintiff's rights under s. 15 of the Charter, by staff of Transport Canada, the Public Service Commission and the Canadian Human Rights Commission, are set out without material facts upon which the basis of the allegations rest. There is not a factual basis for the allegations of discriminatory treatment by the agencies concerned. There is simply no basis for finding an infringement of the plaintiff's equality rights under s. 15 of the Charter. |
In my opinion, the plaintiff has failed to set out material facts upon which he claims the Charter interests he relies upon and identifies have been infringed.
[9] The amended statement of claim now proposed would add further complaints against the Department of Veterans Affairs, matters entirely new to the claim as originally outlined, and matters which counsel for the Crown submits have already been settled between the parties after other proceedings initiated by the plaintiff. Those matters are said to be resolved upon agreed terms. The amendments now proposed, insofar as these concern such a claim, are not allowed.
Conclusion
[10] The plaintiff's application for leave to amend the statement of claim in this matter, as proposed by notice of motion dated and filed October 13, 1998 is dismissed.
[11] The original statement of claim filed on February 28, 1997 is struck out in its entirety. As implied in the Order dated September 30, 1998 the statement of claim discloses no reasonable cause of action.
[12] The plaintiff's action is dismissed with costs to the defendant in respect of the defendant's motion to strike, of the plaintiff's subsequent motion for leave to amend the statement of claim, and any costs of the action. Those costs I now fix in the amount of $1500.000, unless the parties agree upon another fixed figure within sixty days of the date of this Order.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
June 21, 2000
__________________
1 See Wewayakum Indian Band v. Canada (1991), 129 N.R. 385 (F.C.A.) and Keleher v. Canada (Minister of Fisheries and Oceans) (1989), 26 F.T.R. 161 (T.D.).