Date: 19990707
Docket: T-1435-91
BETWEEN:
GAYLE KATHLEEN HORII
Plaintiff
- and -
HER MAJESTY THE QUEEN
THE ATTORNEY GENERAL OF CANADA
THE SOLICITOR GENERAL OF CANADA
THE COMMISSIONER OF CORRECTIONS
THE DEPUTY COMMISSIONER OF CORRECTIONS (PACIFIC)
THE INSTITUTIONAL HEAD OF MATSQUI INSTITUTION
THE INSTITUTIONAL HEAD OF FERNDALE INSTITUTION
Defendants
REASONS FOR ORDER
TEITELBAUM J.
[1] This is a Motion by the Defendant, the Attorney General of Canada, for an order striking out the Plaintiff"s Amended Statement of Claim pursuant to Rule 221 of the Federal Court Rules, 1998 .
[2] Rule 221 states:
| 221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it |
| (a) discloses no reasonable cause of action or defence, as the case may be, |
| (b) is immaterial or redundant, |
| (c) is scandalous, frivolous or vexatious, |
| (d) may prejudice or delay the fair trial of the action, |
| (e) constitute a departure from a previous pleading, or |
| (f) is otherwise an abuse of the process of the Court, |
| And may order the action be dismissed or judgment entered accordingly. |
| (2) No evidence shall be heard on a motion for an order under paragraph (1)(a). |
[3] In the Motion to strike, under grounds for the Motion, the Defendant lists all the grounds listed in the Rule.
[4] After hearing the oral submissions of the parties, I decided to dismiss the Motion to strike with costs in the cause.
[5] It is trite law that a Motion to strike should only be allowed if it is plain and obvious that the Plaintiff has no chance of succeeding on any of the issues raised by the Plaintiff in the Statement of Claim.
[6] The only serious ground raised by the Defendant for the present motion is that the entire matter before the Court is now moot.
[7] On April 7, 1986, the Plaintiff was sentenced, on a conviction for second degree murder, to a term of life imprisonment with no parole for 10 years.
[8] The Plaintiff"s action alleges a violation of her rights under Sections 12, 15 and 28 of the Canadian Charter of Rights and Freedom (Charter) and is claiming relief of same pursuant to Section 24(1) of the Charter.
[9] In March 1993, the Plaintiff was released from custody. She is now on full parole.
[10] I am satisfied that the issues raised by the Plaintiff in her Statement of Claim are not moot solely on the basis that because the Plaintiff is on full parole, she is no longer subject to the possibility of being re-incarcerated.
[11] It is an ongoing issue to the Plaintiff as to where she would be incarcerated in the event that the correctional authorities decide to suspend her parole for an alleged violation of her parole conditions. Although it may be speculative that the Plaintiff"s parole will be suspended, the Plaintiff should not have to wait for the event to take place to have her rights under the Charter, determined.
[12] In the case of Horii v. Her Majesty the Queen et al1, a case involving the present parties, Mr. Justice Hugessen, speaking for the Court of Appeal, in dealing with a request for a interlocutory injunction, determined, at that time, that the Plaintiff had a serious issue to be tried. I am satisfied the serious issue has yet to be determined.
[13] On page 5 of the judgment, and in dealing with the issue of harm that may occur in the future, Mr. Justice Hugessen states:
| The fact that the harm sought (to) be avoided is [sic]in the future does not make it speculative. An applicant for an injunction does not have to wait for the damage to occur before seeking relief. In fact, the principal purpose of an interlocutory injunction is to prevent threatened harm before it happens. It is the likelihood of harm, not its futurity, which is the touchstone. |
[14] Therefore, I cannot conclude that it is plain and obvious that the issues of alleged discrimination in which the Plaintiff alleges she was involved in will not raise its ugly head once again.
[15] Because the Charter issues raised by the Plaintiff in the Amended Statement of Claim are of serious public interest, I do not believe that the Amended Statement of Claim should be struck out.
"Max M. Teitelbaum"
Judge
[16]
FEDERAL COURT OF CANADA
TRIAL DIVISION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1435-91
STYLE OF CAUSE: Gayle Kathleen Horii v. Her Majesty The Queen et al
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: Monday, July 5, 1999
REASONS FOR REASONS FOR ORDER OF TEITELBAUM J.
DATED: July 5, 1999
APPEARANCES:
Mr. John Conroy for Plaintiff
Mr. Curtis Workun for Defendant
SOLICITORS OF RECORD:
Conroy & Company for Plaintiff
Barristers and Solicitors
2459 Pauline Street
Abbotsford, B.C.
V2S 3S1
Morris Rosenberg for Defendant
Deputy Attorney General of Canada
Ottawa, Ontario
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