A-117-96
Winnipeg, Manitoba, Wednesday this 18th day of December 1996.
Present: The Honourable The Chief Justice
The Honourable Mr. Justice Robertson
The Honourable Mr. Justice McDonald
B E T W E E N:
HER MAJESTY THE QUEEN,
Appellant,
(Defendant)
- and -
DOUGLAS A. MAYER,
Respondent.
(Plaintiff)
JUDGMENT
The appeal is allowed with costs, the order of motions Judge dated
31 January, 1996, is set aside and the statement of claim is struck out in its entirety.
"Julius A. Isaac"
C.J.
A-117-96
CORAM: THE CHIEF JUSTICE
ROBERTSON, J.A.
McDONALD, J.A.
B E T W E E N:
HER MAJESTY THE QUEEN,
Appellant,
(Defendant)
- and -
DOUGLAS A. MAYER,
Respondent.
(Plaintiff)
Heard at Winnipeg, Manitoba, Wednesday, December 18, 1996
Judgment rendered at Winnipeg, Manitoba, December 19, 1996
REASONS FOR JUDGMENT OF THE COURT BY: McDONALD, J.A.
A-117-96
CORAM: THE CHIEF JUSTICE
ROBERTSON, J.A.
McDONALD, J.A.
B E T W E E N:
HER MAJESTY THE QUEEN,
Appellant,
(Defendant)
- and -
DOUGLAS A. MAYER,
Respondent.
(Plaintiff)
REASONS FOR JUDGMENT
McDONALD, J.A.
This is an appeal from an interlocutory order where the motions Judge refused to strike the plaintiff's Statement of Claim on the basis that it disclosed no reasonable cause of action.
The criteria for striking out pleadings has been well established in the jurisprudence of this Court and in the Supreme Court of Canada. Pleadings will only be struck when it is plain and obvious that the claim or defense cannot succeed. This was the test applied by the trial Judge.
The claim as pleaded was that the Canada Pension Plan was ultra vires Parliament and violated the respondent's rights under section 7 and section 15(1) of the Charter. The trial Judge did not express a view as to whether the Canada
Pension Plan was intra vires Parliament or whether it violated the respondent's rights under section 15(1).
In the final paragraph of his order the trial Judge notes that the Court has some concern that the rights alleged to have been infringed are in the nature of "rights to social security" which may give rise to a justiciable issue pursuant to section 7 of the Charter. With respect we must disagree. In his pleadings and in oral argument before us the respondent's contention is in substance that
section 7 guarantees him economic liberty to choose whether he should contribute to the Canada pension Plan. No case was cited to us and we have been unable to find any which would support the proposition that section 7 of the Charter includes a guarantee of economic liberty. We do not read Irwin Toy as authority for that proposition.
We are of the view that the learned motions Judge misapprehended the pleading and argument of the respondent. On the authorities it is plain and obvious that the respondent's claim on this ground cannot succeed.
We are also of the view that based on the authorities it is plain and obvious that the respondent's pleadings alleging ultra vires and violation of section 15(1) of the Charter cannot succeed.
The appeal will be allowed with costs, the order of the motions Judge is set aside and the Statement of Claim is struck out in its entirety.
"F.J. McDonald"
J.A.
WINNIPEG, MANITOBA
December 19, 1996
FEDERAL COURT OF CANADA
APPEAL DIVISION
Court No.: A-117-96
B E T W E E N:
| HER MAJESTY THE QUEEN |
Appellant,
(Defendant)
- and -
| DOUGLAS A. MAYER |
Respondent.
(Plaintiff)
-------------------------------------------------------
REASONS FOR JUDGMENT
-------------------------------------------------------
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-117-96
APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED
JANUARY 31, 1996, TRIAL DIVISION FILE NO. T-1870-95.
STYLE OF CAUSE: Her Majesty the Queen v.
Douglas A. Mayer
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: December 18, 1996
REASONS FOR JUDGMENT
OF THE COURT: THE CHIEF JUSTICE
ROBERTSON, J.A.
McDONALD, J.A.
DELIVERED BY: McDONALD, J.A.
DATED: December 19, 1996
APPEARANCES:
Mr. Gerald Chartier for the Appellant (Defendant)
Department of Justice
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6
Mr. D. Mayer for the Respondent (Plaintiff)
SOLICITORS OF RECORD:
Shewchuk & Associates
Barristers & Solicitors
2645 Portage Avenue
Winnipeg, Manitoba
R3J 0P9
for the Respondent
(Plaintiff)
Mr. George Thomson, Q.C.
Deputy Attorney General
of Canada,
Ottawa, Ontario for the Appellant
(Defendant)