Dugré v. Canada (National Parole Board), 2003 FCT 344

Date: 20030325

Docket: T-1426-02

Neutral Citation: 2003 FCT 344

Montréal, Quebec, March 25, 2003

Present:          Richard Morneau, Prothonotary

BETWEEN:

                                                                      JEAN DUGRÉ

                                                                                                                                                          Plaintiff

                                                                                 and

                                          NATIONAL PAROLE BOARD OF CANADA

and

SOLICITOR GENERAL OF CANADA

and

ATTORNEY GENERAL OF CANADA

IN RIGHT OF HER MAJESTY THE QUEEN

                                                                                                                                                    Defendants

                                               REASONS FOR ORDER AND ORDER

[1]                 This is a motion by the plaintiff under rule 221 of the Federal Court Rules, 1998, (the Rules) for an order striking out a series of paragraphs-12 in total-of the defence filed by the defendants.

[2]                 With respect to striking out pleadings, under paragraph 221(1)(a) it must be plain and obvious (see [1980] 2 S.C.R. 735">Canada (A.G.) v. Inuit Tapirisat, [1980] 2 S.C.R. 735, page 740) that all or part of the defendant's defence discloses no reasonable defence.

[3]                 With respect to the application of the other heads of rule 221 to this case, the requirement is that the impugned allegations be so intolerable and prejudicial that they must be struck, in whole or in part. As Mr. Justice Teitelbaum of this Court stated in Copperhead Brewing Co. Ltd. v. John Labatt Ltd. et al. (1995), 61 C.P.R. (3d) 317, at page 322:

. . . the jurisprudence is consistent that under Rules 419(1)(b) through (f) it must be established that the pleading is so clearly immaterial, frivolous, embarrassing or abusive that it is obviously forlorn and futile (Burnaby Machine & Mill Equipment Ltd. v. Berglund Industrial Supply Co. Ltd. (1982), 64 C.P.R. (2d) 206 (F.C.T.D.)) and that the court will not strike mere surplus statements where no prejudice flows from them (Pater International Automotive Franchising Inc. v. Mister Mechanic Inc. (1989) 28 C.P.R. (3d) 308, 27 C.I.P.R. 112, [1990] 1 F.C. 237 (T.D.)). As I am not entirely satisfied that the defendants will suffer prejudice if para. 9 is not struck, I will allow para. 9 and Sch. "A" to remain in the amended statement of claim.

[4]                 Here, the plaintiff's action against the defendants is based on an investigation of the plaintiff launched by the Chairperson of the defendant, the National Parole Board of Canada (the NPB), under section 152(4) of the Corrections and Conditional Release Act (S.C. 1992, c. 20) (the Act). This Court held that the investigation was illegal on the grounds that the investigator appointed by the Chairperson of the defendant, the NPB, did not have jurisdiction to investigate and report on whether the plaintiff's conduct was ethical.

[5]                 In my view, under the principles set out above, the paragraphs of the defence impugned by this motion should not be struck, because they do not call into question the illegality of the investigation that was carried out. Instead, as part of a defence to an action in civil liability, those paragraphs set out certain facts experienced or observed by the Chairperson of the NPB which, according to the defendants, led him to launch an investigation of the plaintiff. The fact that this investigation was undertaken under a mechanism that does not allow for the type of investigation that was actually conducted is not be a reason to prevent the defendants in their defence to set out what motivated the Chairperson of the NPB at all relevant times.

[6]                 The plaintiff's motion to strike is therefore dismissed with costs in the cause.

[7]                 The plaintiff has until April 4, 2003, to serve and file his reply to the defence of the defendants.

Richard Morneau     

                 Prothonotary

Certified true translation

Mary Jo Egan, LLB                                                                                                      

                    FEDERAL COURT OF CANADA

                                  TRIAL DIVISION

Date: 20030325

Docket: T-1426-02

Between:

JEAN DUGRÉ

                                    Plaintiff

and

NATIONAL PAROLE BOARD OF CANADA

and

SOLICITOR GENERAL OF CANADA

and

ATTORNEY GENERAL OF CANADA IN RIGHT OF HER MAJESTY THE QUEEN

                                   Defendants

         REASONS FOR ORDER AND ORDER

                          FEDERAL COURT OF CANADA

                              TRIAL DIVISION

                              SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-1426-02

JEAN DUGRÉ

                                                Plaintiff

and

NATIONAL PAROLE BOARD OF CANADA

and

SOLICITOR GENERAL OF CANADA

and

ATTORNEY GENERAL OF CANADA IN RIGHT OF HER MAJESTY THE QUEEN

                                               Defendants

PLACE OF HEARING:Montréal, Quebec

DATE OF HEARING: March 10, 2003

REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY

DATED:March 25, 2003

APPEARANCES:

SOLICITORS OF RECORD: