T-422-97
Between:
| TODD B. SHAW, |
Plaintiff,
- and -
HER MAJESTY IN RIGHT OF CANADA,
Defendant.
REASONS FOR ORDERS
JOHN A. HARGRAVE
PROTHONOTARY
These Reasons arise out of the Defendant's motion to strike out all or part of the amended statement of claim for want of jurisdiction, lack of a reasonable cause of action and because it is generally redundant and an abuse of process. The Plaintiff may proceed with his claim for damages, but not with the claim for declaratory relief, which has no place in the present action. Before elaborating on this result I will touch on some of the background and then summarize the amended statement of claim.
BACKGROUND
In March of 1997 the Plaintiff filed a seven page single spaced statement of claim containing 28 unnumbered paragraphs, which the Plaintiff promptly moved to strike out on various grounds. Perhaps realizing, from the Plaintiff's material in support of that first motion, that the statement of claim was so involved a defendant could not properly plead to it, the Plaintiff immediately filed an amended statement of claim of four numbered paragraphs.
The Plaintiff now moves to strike out all or part of the amended statement of claim on three grounds: first, for want of jurisdiction; second, by reason of want of a reasonable cause of action; and third, because in the Defendant's view the statement of claim is immaterial, redundant, scandalous, vexatious or otherwise an abuse of process.
THE AMENDED STATEMENT OF CLAIM
The amended statement of claim sets out in the first paragraph that the Plaintiff was involuntarily segregated on 16 October, 1995, at Warkworth Institution, in Ontario, without advice as to right to counsel or any legal assistance and so remained in detention for eight months. This is said, among other things, to be contrary to both sections 9 and 10 of the Canadian Charter of Rights and Freedoms and section 97 of the Corrections and Conditional Release Regulations SOR/92-620 of 29 October, 1992 (the "Corrections Regulations"). The former sections of the Charter deal with, among other matters, arbitrary detention and imprisonment and the latter section of the Corrections Regulations sets out a right, on arrest or detention, both to retain and instruct counsel and to be advised of that right.
The second paragraph of the statement of claim is a little disjointed, but reading it generously it deals with conditions in the segregation unit which the Plaintiff says caused him emotional distress. Among other things the Plaintiff says the detention was not in accordance with fundamental justice and was cruel or unusual punishment, relying on sections 7 and 12 of the Charter.
The third paragraph of the statement of claim alleges a failure, by the Crown, to make a timely regional review of the Plaintiff's case in order to determine whether the segregation continued to be justified. Such regional review did not take place until the Plaintiff had been confined for 7 months. Section 22 of the Corrections Regulations requires such a review at least once every 60 days during segregation.
In the fourth paragraph the Plaintiff, apparently in connection with his role as a Crown witness, refers to a documented life threatening phone call which his parole officer did not report to anyone. The Plaintiff again refers to section 7 of the Charter, which sets out the principle that everyone has a right to life, liberty and security, a right not to be set aside except in accordance with principles of fundamental justice.
To paraphrase the relief sought, the Plaintiff looks for a declaration upholding his rights under both the Charter and the Corrections Regulations. The Plaintiff also seeks damages: I take it this refers not only to such damages as might be awarded under section 24 of the Charter, which the Plaintiff mentions a number of times in the statement of claim, but also to general damages.
CONSIDERATION
The Plaintiff acts for himself, in what appears to be his first foray into Federal Court. I will therefore touch on some of the applicable principles.
Some Basic Principles
To begin, in the case of the lay litigant, I should give the statement of claim a generous reading to accommodate inadequacies which are merely the result of deficient drafting: Operation Dismantle Inc. v. The Queen (1985) 18 D.L.R. (4th) 481 at 488 (S.C.C.). This does not mean that a lay litigant is relieved from the obligations set out in the Court's Rules. However I should also keep in mind the overriding principles that justice must be done and that a plaintiff should not easily be deprived of a day in court.
In assessing whether a statement of claim contains a reasonable cause of action I must take the allegations as proven, subject to an allegation being obviously ridiculous or unprovable. Where the Defendant's submissions are
founded on lack of a reasonable cause of action, no affidavit material is allowed and here, none has been filed. Some of this is neatly set out in Martel Building Ltd. v. Canada (1994) 71 F.T.R. 281 at 284:
| The facts pleaded must be assumed to be true (except where patently ridiculous or incapable of proof). Only where it is plain and obvious that an action cannot succeed, and the court is satisfied that the case is beyond doubt, the statement of claim should be struck out and the action dismissed (Canada (A.G.) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R. (3d) 1.) |
The key words "plain and obvious" and "beyond doubt" place a very heavy burden on a defendant moving to strike out a statement of claim for want of a cause of action. Such an application will succeed only where it is clear that the statement of claim is devoid of merit and cannot possibly succeed.
The burden the Defendant must satisfy, in order to strike out a statement of claim under the various other categories set out in Rule 419, here that the claim is immaterial or redundant, scandalous, frivolous or vexatious and otherwise an abuse of process, is at least as heavy a burden as that for want of a reasonable cause of action: see for example Waterside Ocean Navigation Co. v. International Navigation Ltd. [1977] 2 F.C. 257 at 259 (T.D.). The approach to take is clearly set out by Mr. Justice Pratte, as he then was, in Creaghan Estate v. Canada [1972] F.C. 732 at 736 (T.D.):
| (3) Finally, in my view, a statement of claim should not be ordered to be struck out on the ground that it is vexatious, frivolous or an abuse of the process of the Court, for the sole reason that in the opinion of the presiding judge, plaintiff's action should be dismissed. In my opinion, a presiding judge should not make such an order unless it be obvious that the plaintiff's action is so clearly futile that it has not the slightest chance of succeeding, whoever the judge may be or before whom the case could be tried. It is only in such a situation that the plaintiff should be deprived of the opportunity of having "his day in Court". |
Before turning to the portion of the Defendant's motion to strike out under Rule 419, I will first deal with the Defendant's submissions that the Court lacks the jurisdiction to deal with the Plaintiff's claim.
Jurisdiction Over the Subject Matter
The Plaintiff is correct in asserting that an application dealing with jurisdiction is more usually brought in two stages, first by applying for leave to file a conditional appearance and then by a motion to deal with the jurisdictional point. However an objection to the Court's jurisdiction, by reason of the nature of the subject matter, may be brought at any time: The "Capricorn" [1977] 2 F.C. 320 at 323 (F.C.A.). In such an instance there is no practical purpose for entering a conditional appearance: there cannot, in that situation, be any attornment to the jurisdiction: see for example Bunker Raimo Corporation v. TRW Inc. [1980] 2 F.C. 488 at 491 (F.C.T.D.).
The Defendant's jurisdictional point is that the Federal Court, as a creation of statute, does not have a jurisdiction at large, but must find a statutory grant of jurisdiction: see ITO - International Terminal Operators Ltd. v. Miida Electronics Inc. [1986] 1 S.C.R. 752 at 766.
The Defendant relies upon Zubi v. Her Majesty the Queen (1993) 71 F.T.R. 168 for the proposition that Mr. Shaw's relief ought to be by way of an application for judicial review, rather than by an action and thus the statement of claim should be struck out without leave to amend.
A good portion of the Zubi decision is substantially on point with the present case. Mr. Zubi was, allegedly without cause, transferred from a minimum security to a medium security institution. He therefore sued the Crown, principally for a declaration, but also for damages. At issue was whether Mr. Zubi could bring his proceeding by an action, as opposed to an application for judicial review. Mr. Justice Cullen, in the course of his decision, referred to sections 18(1) and (3), 18.1(1), (2) and (3) and 18.4(1) and (4) of the Federal Court Act. He struck out the statement of claim, without leave to amend, but noted that the defendant had consented to a judicial review proceeding.
Section 18(1) of the Federal Court Act grants jurisdiction to the Trial Division to issue injunctions, various writs and to "...grant declaratory relief against any federal board, commission or other tribunal;...". The decision to place Mr. Shaw in a segregation unit is the decision of the Commissioner of Corrections, or of an official of the Correctional Service of Canada. Those entities fall within the category of a federal board or tribunal.
Section 18(3) of the Act provides that the remedies set out in section 18(1) of the Act "...may be obtained only on an application for judicial review under section 18.1.". Section 18.1(2) provides that a judicial review application, related to the decision of a federal board, commission or tribunal, be made within 30 days of that decision or within such extended time as a judge may allow. Section 18.1(3) sets out the relief that the Federal Court Trial Division may grant, including declaratory relief. There is no reference in section 18.1(3) to damages as relief.
Sections 18.4(1) and (2) provide that an application for judicial review be heard without delay and in a summary way and that the Trial Division may, where it is appropriate, direct that an application for judicial review be dealt with as an action. However, the converse is not true, for an action may not be treated as judicial review: see Lameman v. Gladue (1995) 95 F.T.R. 220.
It is clear that the Plaintiff's request for what amounts to declaratory relief should have been brought not as an action but as an application for judicial review. While the amended statement of claim does not use the word "declaration" in seeking relief, it is plain that the amended statement of claim seeks two sorts of relief, one in the nature of declaratory relief and the other by way of damages. As an action it is plain and obvious and beyond doubt that it will not succeed so far as declaratory relief is concerned.
Cause of Action for Damages
The issue of the propriety of the present claim for damages is a little more complex. Certainly in the Zubi decision the statement of claim, which sought both a declaration and damages, was struck out, without leave to amend, for in the judge's view the action was not simply one for damages against the Crown. Indeed, from the Reasons in Zubi it is apparent the proceeding was primarily to seek a declaration. The judge in that instance suggested the plaintiff proceed by way of judicial review and, if successful, then seek damages in a separate action.
I do not see that a plaintiff must, in all circumstances, first bring an application for judicial review and only then, if successful, bring an action for damages. All the more so when a declaration would serve no current purpose. Further, this is not a situation in which the procedures the Plaintiff employs are alternatives leading to one end: the remedies are very different. Finally, where there are several approaches or procedures a court should impose the least intrusive remedy capable of providing a cure. In summary, I can see no utility in forcing the Plaintiff to try to obtain declaratory relief, concerning something that happened over a year ago, in order to then begin a second piece of litigation by which to claim damages.
In the present instance the body of the statement of claim makes it quite clear that the action is, at least substantially, one for damages. Indeed, it would seem that the issue of the eight months of segregation in 1995 and 1996, in effect putting the Plaintiff into a more secure position within the institution for his own protection, might well be moot so far as a declaration is concerned.
The Defendant characterizes the Plaintiff's claim for damages as based on poor conditions in a segregation cell and on a failure of a parole officer to report a threatening phone call: the Defendant says none of this constitutes a cause of action. I agree that the failure of the parole officer to report advice received from the Plaintiff of a threatening phone call is not something which, in the way it is laid out in the statement of claim, constitutes a cause of action. Therefore section 4 of the statement of claim will be struck out. However, an equally valid view of the remaining portion of the claim, giving the statement of claim a reasonably broad reading, is that the Plaintiff seeks damages for deprivation of or violation of various rights including a right of access to counsel on being placed in segregation, as provided for in section 97 of the Corrections Regulations and being kept in segregation without review for seven months, contrary to the review requirements set out in section 22 of the Corrections Regulations.
On this interpretation of the statement of claim and taking the allegations as proven, for the purpose of the motion, it follows that the Plaintiff may have suffered damages by reason of a denial of rights on confinement and an improper confinement, being breaches of the Corrections Regulations. This may well constitute a cause of action on which the Plaintiff might possibly succeed. Some of the allegations in the pleadings are perhaps extraneous to this cause of action. However they set out background and might well go to quantum of damages. They are not overly long. They may remain.
I am somewhat less sanguine as to the chances of the Plaintiff succeeding under his Charter arguments centring around detention and deprivation of liberty, under sections 7, 9 and 10 of the Charter of Canadian Rights and Freedoms, with damages to flow under section 24 of the Charter.
Mr. Justice Strayer commented on section 7 of the Charter and on deprivation of liberty, albeit in a slightly different context, in the Minister of Citizenship and Immigration v. Williams, an unreported 11 April, 1997, decision of the Court of Appeal in action A-855-96, to the effect that a proper deprivation of an ability to be anywhere one wishes to be is not a deprivation of liberty:
| Without purporting to decide the question in respect to refugees, I have difficulty understanding how the refusal of a discretionary exemption from a lawful deportation order, as applied to a non-refugee who has no legal right to be in the country, must be seen as involving a deprivation of liberty. Unless "liberty" is taken to include the freedom to be anywhere one wishes, regardless of the law, how can it be "deprived" by the lawful execution of a removal order? (page 14). |
This reasonable limitation on the meaning of liberty detracts somewhat from Mr. Shaw's case in the present instance, however there is a difference. Mr. Shaw says he was not lawfully deprived of his liberty. Again this is a cause of action which might sound in damages under section 24 of the Charter. I cannot say that the references to the Charter are hopeless and beyond doubt incapable of succeeding.
Abuse of Process
At this point I might consider whether the statement of claim is so farfetched, imaginary or rationally unfounded that I ought to strike it out as immaterial, redundant, scandalous, vexatious or otherwise an abuse of process. In this instance, having found the statement of claim does not want a reasonable cause of action, I am not prepared to strike the statement of claim out on any of these alternate grounds.
CONCLUSION
Paragraph 4 of the statement of claim and paragraph (a) of the relief sought or struck out, without leave to amend. The balance of the action, in which the Plaintiff claims damages, is not an easy one on which to succeed. However I am unable to say it stands no chance of success. In that part of the action is to proceed, the Defendant may have 30 days in which to file a defence.
(Sgd.) "John A. Hargrave"
Prothonotary
July 8, 1997
Vancouver, British Columbia
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: TODD B. SHAW
- and -
HER MAJESTY IN RIGHT OF CANADA
COURT NO.: T-422-97
MOTIONS DEALT WITH IN WRITING WITHOUT APPEARANCE OF COUNSEL
REASONS FOR ORDERS OF JOHN A. HARGRAVE, PROTHONOTARY, dated July 8, 1997
WRITTEN REPRESENTATIONS BY:
Mr. Todd B. Shaw for Applicant
Mr. Simon Fothergill for Defendant
SOLICITORS OF RECORD:
Mr. Todd B. Shaw for Applicant
Agassiz, BC
Mr. George Thomson for Defendant
Deputy Attorney General of Canada