Date: 19980930
Docket: T-336-97
BETWEEN:
NOËL AYANGMA
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
MacKAY J.:
[1] These reasons concern my disposition of an application on behalf of the defendant, Her Majesty the Queen, for an order that the statement of claim filed in this action be struck, without leave to amend. The motion was heard on March 11, 1998, at Charlottetown when the plaintiff, representing himself, and counsel for the defendant were both heard. Decision was then reserved. I regret that disposition of this matter has been delayed.
[2] The statement of claim here in issue filed on February 28, 1997, is set out in its substantive terms in Appendix A to these Reasons. A statement of defence was filed on behalf of the defendant on April 25, 1997 and the plaintiff filed a reply on April 28, 1997. The plaintiff later applied for judgment and was then granted an order that certain steps, in accord with the Court's Rules for discovery in pretrial preparations as they then applied, be undertaken by the defendant to facilitate preparations for trial. Thereafter, in January 1998, the defendant brought this motion to strike the statement of claim.
[3] The grounds on which the motion to strike, pursuant to then Rule 419 of the Federal Court Rules, are four. It is urged that the Court has no jurisdiction in this matter since the statement of claim does not allege a tort, or civil wrong, committed by a servant of the Crown in circumstances that would make the servant liable in tort to the plaintiff, as required by ss. 3(a) and 10 of the Crown Liability and Proceedings Act , R.S.C. 1985, c. C-50, as amended. Unless a claim for damages for tort falls within the terms provided by that Act this Court, it is said, has no jurisdiction to consider a claim for damages as the plaintiff here sets out, in paragraph 20 of the statement of claim.
[4] The second ground urged is that the statement of claim does not set out a cause of action known to Canadian law. It does allege contravention of statutory responsibilities by Transport Canada, by the Public Service Commission, and by the Canadian Human Rights Commission (paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18), and that certain actions of Transport Canada on behalf of the defendant constitute "the tort of discrimination" against the defendant and others (paragraph 19). But committing "discrimination", though prohibited, and the failure to meet statutory responsibilities, are not torts or civil wrongs giving rise to claims for damages, at least in Canadian law.
[5] The third ground on which the defendant relies is that statutes provide for redress in the case of each of the statutes alleged to have been violated by Transport Canada, by the Public Service Commission, and by the Canadian Human Rights Commission. Together they provide a comprehensive range of statutory redress, and in the absence of specific statutory provision for relief in damages against the defendant, no civil action in damages, for failures alleged to have been committed by the agencies here concerned, lies against Her Majesty.
[6] Finally, it is urged that the statement of claim is so wholly deficient in alleging material facts that it discloses no reasonable cause of action and thus should be struck out, and without leave to amend.
[7] The plaintiff, appearing for himself, urges that the Court should not strike the statement of claim where the defendant has already filed a defence , and here some months before the motion to strike is brought forward. Moreover, in this case the defendant did not, at any stage, demand particulars of the plaintiff's claim. In my view, while the Court may be reluctant to strike the statement of claim after a defence is filed, that is because a claim is raised which the defence confirms is in dispute. There is no bar to striking a statement of claim, in whole or in part, at any time before trial where the Court concludes, even on a motion brought after a defence is filed, that the claim stated does not raise a legal claim warranting trial.
[8] The plaintiff contests the submissions made on behalf of the defendant. Further, referring to the claim in paragraph 14 of the statement of claim of contravention by Transport Canada of his rights pursuant to ss. 7 and 15 of the Charter and the claim, in paragraph 20, to "damages pursuant to section 24(1) of the Charter", the plaintiff urges that his claim arises under the Charter. The plaintiff relies upon Perera v. The Queen in Right of Canada, (1997) 69 A.C.W.S. (3d) 830, [1997] F.C.J. No. 199, (F.C.T.D.), varied on appeal but upheld on the issue here, (1998), 158 D.L.R. (4th) 341 (F.C.A.). In that case, the plaintiffs commenced an action claiming that one of them had been subject to discrimination contrary to s. 15 of the Charter while employed by a government agency and they sought a variety of remedies under ss. 24(1) of the Charter, including a letter of apology and an order to adopt programs to rectify employment discrimination against visible minorities. The defendant moved that the statement of claim be struck out as disclosing no reasonable cause of action. Mr. Justice Cullen refused to strike the statement of claim but did strike certain portions seeking remedies which in his view were not within the jurisdiction of this Court to award. On appeal, the Court of Appeal declined to interfere with the determination that the statement of claim not be struck out, and it restored those portions of the statement's prayer for certain relief which Cullen J. had struck out.
[9] In the decision for the Court of Appeal, rendered after the application now before this court was heard, Mr. Justice Létourneau stated, in relation to the remedies sought, and which the Court of Appeal restored (at 158 D.L.R. (4th) p. 350):
| The appellant's action is founded on section 24 of the Charter. That section as stated by Lamer J. (as he then was) in Nelles v. Ontario [footnote omitted] "confers a right to an individual to seek a remedy from a competent court" and allows "courts to fashion remedies when constitutional infringements occur". |
| As a rule, therefore, on an action under section 24 of the Charter, the Courts must be free, if they find in the plaintiff's favour, to fashion the remedies that they deem appropriate in the circumstances. |
[10] In his reasons as motions judge in that case, in discussing the motion to strike the statement of claim, Cullen J. stated (at paragraph 19):
| The plaintiff's action is founded in the supreme law of the country, the Charter. The broad remedial power enshrined in section 24 of the Charter allows for a broader remedy than that provided in the Canadian Human Rights Act. The within action is neither frivolous and vexatious nor an abuse of process warranting Rule 419 intervention, because the plaintiffs do have a right to bring an action before this court under the Charter. This right exists notwithstanding the jurisdiction of the Canadian Human Rights Commission to hear human rights complaints. The respondent cannot use human rights legislation as a shield to Charter action. |
[11] 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. Facts are alleged in the plaintiff's reply filed in response to the defence filed by the defendant, and additional facts were referred to by the plaintiff in argument when this motion was heard. Those sources supplement the paucity of basic facts alleged in the statement of claim, but they are not themselves facts alleged in the statement of claim itself.
[12] The Court's Rules require that every pleading, and that includes a statement of claim, contain a precise statement of the material facts on which the party relies. Bare assertions of the plaintiff's conclusions without pleading material facts on which those conclusions are based do not meet the requirements for pleading. Here the plaintiff pleads certain basic facts about his application for air traffic controller and flight services positions with Transport Canada, his request for service, in relation to that application, in the French language and the initial failure of Transport Canada to provide that, that he was not considered for the air traffic controller training program and thus that he was discriminated against. The statement of claim does not allege facts to support the plaintiff's assertion of a conclusion that he was discriminated against or that Transport Canada systemically discriminates against certain applicants for employment. No facts are pleaded for the conclusion that the Public Service Commission excludes visible minority groups or that it failed to make proper inquiries or to take appropriate action against Transport Canada. Finally similar conclusions about the work of the Canadian Human Rights Commission are not supported by material facts pleaded in the statement of claim. In the latter connection, replacement of one investigator by another, does not in itself support a conclusion that the Human Rights Commission "permitted discrimination against the plaintiff and condoned discrimination again the class of individuals, the so called 3Foreign Nationals3".
[13] Moreover, the material facts are not here set out to support the plaintiff's assertion in paragraph 14 of the statement of claim "that Transport Canada knowingly systemically discriminated him... in contravention of various sections 7 and 15 of the Constitution Act of 1982..." The facts supporting a claim to breach of his Charter rights are not pleaded in any manner that identifies the plaintiff's claim that would warrant relief under s.s. 24(1) of the Charter.
[14] While in the usual case the absence of material facts would warrant striking the statement of claim, in this case the plaintiff, not a lawyer by training, seeks to plead and then to try his claim based upon alleged breach of his Charter rights and he seeks relief, at least in part, under ss. 24(1) of the Charter. If the statement of claim were now struck, the plaintiff might initiate a new action, either in this Court, where that course would not be precluded, or in the provincial Supreme Court.
[15] In these circumstances, in my opinion, justice is best served by an order that the statement of claim now before the Court be struck unless it is amended, on application by the plaintiff for leave to amend in relation to a proposed revised statement of claim that sets out the material facts upon which the claim, or claims,, is, or are, based. Any such application shall be made within forty-five days of the date of the order now issued. If no application for leave to amend is made within that time the current statement of claim shall be struck effective November 16, 1998. If application for leave to amend is filed on or before November 15, 1998, the defendant may reply to that by written submission on or before December 7, 1998. The Court would then arrange for the application for leave to amend to be heard, in person or by telephone, and the Court after hearing the matter shall dispose of the application for leave. If leave to amend should not be allowed, the Court would then confirm the order striking the current statement of claim.
[16] I consider that I am seised of this matter pending application of the plaintiff for leave to amend or pending confirmation of the effective date for striking the current statement of claim.
W. Andrew MacKay
Judge
Ottawa, Ontario
September 30, 1998
Appendix "A" to Reasons
Date: 19980930
Docket: T-336-97
STATEMENT OF CLAIM
1. The Plaintiff, Noël Ayangma resides in the city of Charlottetown, in the Queens County, Province of Prince Edward Island.
2. The Plaintiff states that on March 23, 1994, he completed an Employment Application Form for Air Traffic controller and Flight Services Specialist positions.
3. The Plaintiff states that he chose French as his language of preference for both correspondence and oral and written testing/interview.
4. The Plaintiff states that despite his language choice referred in to paragraph 3, Transport Canada continued to communicate with him in English.
5. The Plaintiff states that on August 7, 1994, he sat for the Air Traffic Controller written Aptitude Test in French and obtained a perfect score of 90/90 or 100% a score ever obtained in this process.
6. The Plaintiff states that despite its preferred language choice as referred in paragraph 3 in addition to his Aptitude Written Test in French, Transport Canada constrained him to an English interview with all English-speaking board members.
7. The Plaintiff states that Transport Canada failed to respect his rights and violated various sections of the Official Languages Act: 5(1); 21: 22(a) & (b); 28; 39 (1) and (2).
8. The Plaintiff states that Transport Canada constrained him to seat for the English interview in front of all English-speaking board members.
9. The Plaintiff states that the procedures followed by Transport Canada had many irregularities including the lack of understanding by Transport Canada officials of what constitutes the provision of service to members of the public in the language of their choice.
10. The Plaintiff further states that Transport Canada actions were contrary to the spirit and intend of the Official Languages Act and the federal policy on the subject when they failed to take into account the preferred language of applicants.
11. The Plaintiff states that Transport Canada was engaged in differential treatment and unfair staffing procedures by so doing jeopardized his change of becoming Air Traffic Controller when it failed him twice in oral interviews.
12. The Plaintiff states that Transport Canada failed to respect his right to undergo his first interview in his language of choice which is French in contravention of Section 16(2) of Public Service Employment Act.
13. The Plaintiff states that Transport C deliberately failed to consider him for the Air Traffic Controller Training Program as it always does when it comes to visible minority applicants and/or the so called "Foreign Nationals"
14. The Plaintiff states that Transport Canada knowingly systemically discriminated against him and is still discriminating against the class of individuals it calls "Foreign Nationals" as the latter according to the statistics maintained in their office do poorly in Air Traffic Controller Training Program in contravention of various sections 7 and 15 of the Constitution Act of 1982, and section 57 of the Multiculturalism Act and the Employment Equity Act.
15. The Plaintiff states that the Public Service Commission who clearly excludes visible minority group members from the so called "family" failed to make proper inquiries and take appropriate action against Transport Canada.
16. The Plaintiff states that The Canadian Human Rights Commission removed a visible minority investigator in order to cover up and protect Transport Canada. The Plaintiff further states that by replacing the first investigator by a second investigator an unexperienced and part-time contract employee who gathered all the information through telephone, permitted discrimination against the Plaintiff and condoned discrimination against the class of individuals, the so called "Foreign Nationals"
| 17. The Plaintiff states that the Canadian Human Rights Commission failed to make proper inquiries into the Plaintiff's complaint and failed to take appropriate action against Transport Canada. |
18. The Plaintiff states that Transport Canada, the Public Service Commission and the Canadian Human Rights Commission conduct set out herein breached their statutory duties as established by the PSEA and its regulations and/or other statutory provisions established by the government of Canada.
19. The Plaintiff states that the actions of the Defendant referred in to paragraph 14 amount to and constitute the tort of discrimination against the Plaintiff and the so called "Foreign Nationals"
20 The Plaintiff claims against the Defendant as follows:
(a) special damages;
(b) general damages;
(c) punitive damages;
(d) damages pursuant to section 24 (1) of the Charter;
(e) pre-judgment and post-judgment interest
(f) his cost of proceedings