Date: 20000529
Docket: T-1092-95
BETWEEN:
KIRK MICHAEL MACNEIL
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of an application on behalf of the defendant for summary judgment dismissing all or parts of the plaintiff"s Amended Statement of Claim, in the alternative, for an order striking out all or parts of the plaintiff"s Amended Statement of Claim and for costs of the motion and of the action on a solicitor and client scale. The defendant"s application was heard before me at Toronto on the 17th of May, 2000. At the close of the hearing, I reserved my decision and indicated that these reasons and an order reflecting these reasons would follow.
BACKGROUND
[2] By Amended Statement of Claim filed the 26th of May, 1999, the plaintiff seeks substantial damages, special damages for out of pocket expenses and lost income, pre-judgment interest and post-judgment interest and costs of the action based upon actions of the Royal Canadian Mounted Police (the "Force") alleged to constitute invasions of privacy, breaches of confidence, unlawful interference with the economic interests of the plaintiff, abuse of public office and defamation, following the plaintiff"s resignation from the Force on the 12th of July, 1991. At the time of his resignation from the Force, the plaintiff was serving at the detachment in Sicamous, British Columbia.
PRINCIPLES REGARDING APPLICATIONS FOR SUMMARY JUDGMENT
[3] Applications for summary judgment are governed by Rules 213 to 219 of the Federal Court Rules, 19981. A defendant may, after serving and filing a defence and at any time before the time and place for trial are fixed, bring a motion for summary judgment dismissing all or part of the claim set out in the statement of claim. The principles governing such an application are well settled and are succinctly stated in Granville Shipping Co. v. Pegasus Lines Ltd.2. They may be briefly summarized as follows: first, the rules regarding summary judgment are intended to summarily dispense of cases which present no genuine issue for trial; second, the test on an application for summary judgment is whether the case is so doubtful it deserves no further consideration; third, each case must be interpreted in its own context; fourth, provincial practice can aid in interpretation of the rules of this Court; fifth, questions of fact and law may be determined on the motion; sixth, summary judgment cannot be granted if necessary facts cannot be found; and seventh, where there are serious issues of credibility, the action should go to trial.
[4] In Feoso Oil Ltd. v. "Sarla" (The)3, the Federal Court of Appeal adopted the following passage from Pizza Pizza Ltd. v. Gillespie4:
| In my opinion, there is a lower threshold that is contemplated by the new Rule 20 and the case law developing. It is that the court, in taking a hard look at the merits, must decide whether the case merits reference to a judge at trial. It will, no doubt, have to go to trial if there are real issues of credibility, the resolution of which is essential to determination of the facts. That aside, however, the rule now contemplates that the motions judge will have before him sworn testimony in the affidavits and other material required by the rule in which the parties put their best foot forward. The motions judge, therefore, is expected to be able to assess the nature and quality of the evidence supporting "a genuine issue for trial"; the test is not whether the plaintiff cannot possibly succeed at trial; the test is whether the court reaches the conclusion that the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial; if so then the parties "should be spared the agony and expense of a long and expensive trial after some indeterminate wait"... [citation omitted] |
[5] In the Ontario Courts at least, the "best foot forward" principle as it applies to a respondent on a motion for summary judgment, would appear to have been qualified in Aguonie v. Galion Solid Waste Material Inc.5, where Mr. Justice Borins sitting as an ad hoc member of the Court of Appeal wrote for the Court at page 173:
| In ruling on a motion for summary judgment, the court will never assess credibility, weigh the evidence, or find the facts. Instead, the Court"s role is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility, weighing evidence, and drawing factual inferences are all functions reserved for the trier of fact. |
[6] Recent judgments of this Court would appear to have adopted this more restrictive approach to applications for summary judgment in a manner that limits the responsibility of the respondent on such a motion to put his or her "best foot forward" where issues of credibility, weighing of evidence and drawing of factual inferences are present.
[7] Finally, this Court has refused to grant summary judgment on the basis that a limitation period had expired where, if mala fides as alleged here were established in the evidence, the protection afforded by the limitation period might be lost6.
POSITIONS OF THE PARTIES
[8] Counsel for the defendant/applicant urged that the plaintiff, in responding to the motion for summary judgment, had not "put his best foot forward" with the result that the material before the Court disclosed no serious issue to go to trial. Counsel further alleged: that the evidence before the Court on this motion disclosed no damage suffered by the plaintiff by reason of any actions of the Force following his resignation and relating to applications for employment that he made to other police forces and to the Canadian Security Intelligence Service; that the plaintiff failed to properly plead the claim in respect of defamation7; that the claim in defamation was statute barred by paragraph 45(1)(i) of the Limitations Act of Ontario8; that the elements of the test for the tort of abuse or misfeasance of public office as set out in Alford v. Canada (Attorney-General)9 were simply not made out on the evidence before the Court; that the same might be said in respect of the claim based upon alleged unlawful interference with economic relations10; that the claim based on breach of confidence was clearly not established in that the material before the Court failed to demonstrate that the disclosures allegedly made by the Force were not in the public interest11; that the tort of violation of privacy has simply not been recognized in Canada12; and finally, that the plaintiff simply failed to put before the Court any evidence regarding mitigation of any damages that he might have suffered by reason of the actions of the Force.
[9] Counsel for the respondent/plaintiff urged that the application for summary judgment was not timely, notwithstanding the fact that it was brought in a time frame contemplated the Rule 213(2) of the Federal Court Rules, 1998.
[10] Further, counsel for the respondent/plaintiff argued that the evidence before the Court on behalf of the plaintiff, whether or not it represented a "best foot forward" on behalf of the plaintiff, clearly demonstrated that there were issues of credibility, of weighing of evidence and of drawing factual inferences that, on the authority of Aguonie v. Galion Solid Waste Material Inc.13, are all issues that should be reserved to a trier of fact at a full trial of this action.
ANALYSIS
[11] The material before the Court on this application for summary judgment clearly discloses very strongly held views that are virtually diametrically opposed regarding the propriety of certain actions of members of the Force following the resignation of the plaintiff from the Force that may have seriously impacted the plaintiff"s possibility of further employment in the law enforcement field or in the security intelligence field. An internal investigation conducted by the Force and a second investigation conducted by the Royal Canadian Mounted Police Public Complaints Commission failed to resolve issues to the plaintiff"s satisfaction. It was only following those investigations that this action was commenced.
[12] Documentary disclosure by the Force to the plaintiff has involved a long and arduous process and has been inhibited by the fact that the plaintiff"s personnel file at the Sicamous detachment of the Force has mysteriously disappeared.
[13] I am satisfied that there are credibility issues, weight of evidence issues and issues regarding reasonable factual inferences that cannot satisfactorily be resolved on an application such as this. In short, I am satisfied on the evidence that is before the Court, notwithstanding that it does not represent a "best foot forward" on the part of the respondent/plaintiff, demonstrates that there are genuine issues for trial in this matter. Those include the issue of the limitation of the claim in defamation and in this regard I rely on the earlier decision of this Court in Olympia Interiors Ltd. v. Canada14.
[14] In the result, this application for summary judgment will be dismissed.
[15] There remains the alternative relief claimed to strike all or parts of the Amended Statement of Claim, and more particularly the claim in defamation.
[16] In Control Data Canada, Ltd. v. Senstar Corp.15, Mr. Justice McNair wrote at page 426:
| Actually, the delay of some four years in bringing on the motion to strike smacks of being downright cavalier, if not oppressive. In any event, a pleading will only be struck on summary motion under Rule 419(1)(a) where it is plain and obvious beyond doubt that the case raised by the pleading is incapable of success. Moreover, a pleading should not be struck where the other party has pleaded over or where there has been a lengthy delay between delivery of the pleading and the bringing of the motion to strike... [citations omitted] |
[17] In this matter, the Statement of Claim was filed on the 26th of May, 1995. The applicant/defendant "pleaded over". The applicant/defendant consented to an order, issued the 19th of April, 1999, that provided for filing of an Amended Statement of Claim. No question of inadequacy of pleading in respect of the claim in defamation was then raised. The Amended Statement of Claim was filed the 26th of May, 1999. Once again, the applicant/defendant pleaded over by Amended Statement of Defence filed the 22nd of September, 1999. The motion now before the Court seeking to strike portions of the Amended Statement of Claim was only filed the 7th of December 1999, more than four years after the filing of the Original Statement of Claim which reflected the same claim in defamation that is now before the Court.
[18] I am satisfied that the words of Mr. Justice McNair are fully applicable in respect of the requested relief of striking out all or parts of the plaintiff"s Amended Statement of Claim. The portion of the motion now before the Court that seeks to strike "...smacks of being downright cavalier, if not oppressive. ..." That portion of the motion will also be dismissed.
COSTS
[19] Given the success of the respondent/plaintiff on this application, counsel for the plaintiff urges that the costs of the motion, fixed by the Court in a quite substantial amount for fees plus disbursements, should follow the event, in any event of the result of a trial herein. I am concerned that the material before the Court demonstrates a somewhat cavalier attitude on the part of the plaintiff to bringing this motion on for hearing and to putting before the Court material that would demonstrate a serious attempt to put his best foot forward. Based on these concerns, costs of this motion will be in the cause.
CONCLUSION
[20] In summary, this application on behalf of the defendant will be dismissed in its entirety. Costs of the motion will be in the cause.
_____________________________
J. F.C.C.
Ottawa, Ontario
May 29, 2000
__________________
1 SOR/98 - 106.
2 [1996] 2 F.C. 853 (T.D.).
3 [1995] 3 F.C. 68 at 80 (C.A.).
4 (1990), 75 O.R. (2d) 225 at 237- 238. (Gen. Div.).
5 (1998), 38 O.R. (3d) 161 (Ont. C.A.).
6 See: Olympia Interiors Ltd v. Canada (1993), 66 F.T.R. 81, affirmed, (1994), 170 N.R. 281 (F.C.A.).
7 See: Promatek Industries Ltd., v. Creative Micro Designs Inc., (1989), 33 C.P.C. (2d) 272 at 274 and 276 (O.S.C.).
8 R.S.O. 1990, c. L-15.
9 (1997), 31 B.C.L.R. (3d) 228 at 244 (B.C.S.C.).
10 See: Whistler Cable Television Ltd. v. Ipec Canada Inc. [1992] B.C. J. No. 2681 (Q.L.), (B.C.S.C.).
11 See: Lion Laboratories Ltd. v. Evans et al. [1985] 1 Q.B. 526.
12 See: Bingo Enterprises Ltd. et al. v. Plaxton et al. (1986), 26 D.L.R. (4th) 604 at 608 (M.C.A.).
13 Supra, note 5.
14 Supra, note 6.
15 (1988), 23 C.P.R. (3d) 421 (F.C.T.D.).
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