Shaw v. Canada, docket T-246-98

Date: 19990505

Docket: T-246-98

BETWEEN:

     TODD SHAW

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN

     Defendant

     REASONS FOR ORDER

LEMIEUX J.:

A. THE MOTION FOR SUMMARY JUDGMENT

[1]      On February 22, 1999, the defendant filed a motion to the Court in writing under rule 369 of the Federal Court Rules, 1998, SOR/98-106 (the "Rules") for summary judgment under subsection 213(2) of the Rules seeking an order that the plaintiff's statement of claim be dismissed on the grounds that it discloses no genuine issue to be tried. The plaintiff at the time was incarcerated in a federal penitentiary and in these proceedings represented himself.

[2]      In support of the motion, the defendant filed the affidavit of Jean-Marc Trudeau, the Regional Director of the National Parole Board (the "Board") for the Province of Quebec.

[3]      Mr. Trudeau, in his affidavit written in French and sworn on February 19, 1999, deposed in substance that:

(a)      the plaintiff has been eligible for full parole since September 9, 1994;

(b)      the plaintiff was heard by the Board for the first time on August 23, 1996, after several requests from the plaintiff for postponements of hearing;

(c)      previously, in March 1996, the plaintiff had applied to the Board for full parole and for day parole;

(d)      on August 23, 1996, the Board granted the plaintiff day parole;

(e)      the cassette recording the Board's hearing of August 23, 1996, is inaudible and, as a result, it is not possible to determine if the Board, during that hearing, dealt with the plaintiff's application for day parole and full parole;

(f)      the plaintiff did not appeal to the Board's Appeal Division the decision of the Board not to deal with (statuer) on the plaintiff's request for full parole.

[4]      In its memorandum of fact and law, under the heading "The Facts", the defendant relying on Mr. Trudeau's affidavit, asserts:

(a)      under point (4) that "[O]n the hearing of August 23rd, 1996, the only question discussed was whether or not the Plaintiff should be granted day Parole, which Plaintiff was granted";

(b)      under item (5), the "Plaintiff did not appeal the decision of the NPB to the appeals division of the NPB".

B. THE GROUNDS FOR THE SUMMARY JUDGMENT MOTION

[5]      The defendant raises two arguments in support of the proposition that the plaintiff's statement of claim raises no genuine issue to be tried:

(a)      The substance of the plaintiff's statement of claim is, according to the defendant, to seek relief against the decision or inaction of the Board in respect of the Board's statutory duty to consider the plaintiff's application for full parole. Such relief, the defendant says, can only be granted through judicial review before damages are sought subject to another constraint, the existence of an internal appeal route which the defendant says exists but was not exercised.

(b)      The Board, by virtue of section 154 of the Corrections and Conditional Release Act, R.S.C. 1992, c.20 (the "Act") is immune from civil proceedings for anything done or said in good faith in the exercise or purported exercise of its functions. The defendant says the plaintiff's statement of claim does not allege negligence or bad faith.

C.      THE PLEADINGS

     (1)      The statement of claim

[6]      In a statement of claim filed on February 13, 1998, the plaintiff alleges the following:

(a)      he applied for full parole and day parole in March 1996; he received notification that his case would be heard for full and day parole in September 1996 and the Board then moved his day parole hearing ahead to August 1996.

(b)      his request for full parole was never considered by the Board until he applied or inquired again after revocation of his day parole in January 1997;

(c)      he brought this matter to the attention of his parole officer in September 1996 "when he realised his legal right to a full parole hearing was being denied";

(d)      his parole officer contacted the Board after he, the plaintiff, was about to retain counsel in regard to the matter;

(e)      he was told by his parole officer that the Board stated he had no legal right to a full parole hearing. Being told that, he had several arguments with his parole officer in this regard;

(f)      he secured employment that required him to travel throughout northern British Columbia and full parole could have provided the liberty to be employed and to become a taxpaying citizen again;

(g)      the Board had the legal right not to grant full parole but the Board had the legal obligation to grant him his review;

(h)      he was denied his legal right to a full parole hearing and his parole officer refused to grant him privileges for work;

(i)      he became emotionally unstable and relapsed back to drug use, and his day parole was suspended and revoked for drug use and emotional stability;

(j)      the Board continued to deny him any legal rights to a full parole hearing;

(k)      the Board did not adjourn, or grant him his hearing as prescribed by law; this was not an oversight even after he brought the matter to the attention of the staff of the Correctional Service of Canada and the Board and they continued to deny him justice;

(l)      in terms of a cause of action, Mr. Shaw pleads sections 7 and 24 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, as well as section 123 of the Corrections and Conditional Release Act and section 158 of the Corrections and Conditional Release Regulations, SOR/92-620, made under that Act;

(m)      the relief sought by the plaintiff is for general damages.

     (2) The statement of defence

[7]      On June 9, 1998, the defendant filed a statement of defence in which the following allegations were made:

(a)      the plaintiff was serving in 1991 a sentence of eight years, four months and thirty days at the Drummondville Institution in the Province of Quebec for eight counts of robbery, use of a firearm and possession of a weapon;

(b)      at all relevant times, for the purpose of the action, the plaintiff was incarcerated at Mountain Institution in the Province of British Columbia;

(c)      the plaintiff has been admissible for parole since September 4, 1994;

(d)      the plaintiff has asked for postponements of his hearing date until August 23, 1996, when he was heard for the first time;

(e)      at the August 23, 1996 hearing, the plaintiff was granted day parole;

(f)      at all relevant times, the defendant, her employees or agents have acted and treated the plaintiff in accordance with all applicable laws, rules, regulations, directives and guidelines;

(g)      the plaintiff's action is based on assumptions and hypotheses which are unfounded in fact or law;

(h)      the defendant, her agents and employees, have not committed any fault nor is there any fault alleged by the plaintiff in his statement of claim;

(i)      the defendant reserves the right to present a motion to strike the plaintiff's statement of claim according to rule 221 of the Federal Court Rules, 1998;

(j)      in any event, the plaintiff's claim for damages is grossly exaggerated, excessive and too remote.

     (3) The reply

[8]      The plaintiff replied on July 20, 1998, and said in its material parts:

(a)      he was released on day parole to Prince George, B.C., on September 4, 1996 and he was expecting to have his full parole hearing at the end of September;

(b)      he brought this to the attention of his parole officer, Tracy Davidson;

(c)      Tracy Davidson called the Board's Pacific Office and spoke to Sharon Boyce who told him that the plaintiff had not applied for full parole and that he was not eligible until he had been on day parole for six months;

(d)      this statement by Sharon Boyce was false because he had applied for full parole and the Board advised him in writing that his case for day parole and full parole was to be heard in September 1996;

(e)      the Board at the Correctional Service of Canada's request moved the plaintiff's day parole hearing up one month and that at no time was his case for full parole heard;

(f)      the actions of the defendant were unlawful and contrary to the Corrections and Conditional Release Act and Regulations made thereunder which clearly define day parole and full parole as two different types of release and hearings. He says these laws are very clear and that his claim is not based on assumptions or hypotheses nor is his claim grossly exaggerated, excessive or too remote;

(g)      the defendant violated his legal rights to a hearing that may have granted him full liberty;

C.      ANALYSIS

[9]      The defendant's motion is made pursuant to subsection 213(2) of the Rules which provides that a defendant at any time before the time is fixed for trial bring a motion for summary judgment dismissing all or part of the claim set out in a statement of claim. Sections 213 to 219 of the Rules govern summary judgments. In particular, rule 216 reads as follows:

216. (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly. (2) Where on a motion for summary judgment the Court is satisfied that the only genuine issue is (a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or (b) a question of law, the Court may determine the question and grant summary judgment accordingly. (3) Where on a motion for summary judgment the Court decides that there is a genuine issue with respect to a claim or defence, the Court may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law. [emphasis mine] (4) Where a motion for summary judgment is dismissed in whole or in part, the Court may order the action, or the issues in the action not disposed of by summary judgment, to proceed to trial in the usual way or order that the action be conducted as a specially managed proceeding.

216. (1) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue qu'il n'existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence. (2) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue que la seule véritable question litigieuse est : a) le montant auquel le requérant a droit, elle peut ordonner l'instruction de la question ou rendre un jugement sommaire assorti d'un renvoi pour détermination du montant conformément à la règle 153; b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence. (3) Lorsque, par suite d'une requête en jugement sommaire, la Cour conclut qu'il existe une véritable question litigieuse à l'égard d'une déclaration ou d'une défense, elle peut néanmoins rendre un jugement sommaire en faveur d'une partie, soit sur une question particulière, soit de façon générale, si elle parvient à partir de l'ensemble de la preuve à dégager les faits nécessaires pour trancher les questions de fait et de droit. (4) Lorsque la requête en jugement sommaire est rejetée en tout ou en partie, la Cour peut ordonner que l'action ou les questions litigieuses qui ne sont pas tranchées par le jugement sommaire soient instruites de la manière habituelle ou elle peut ordonner la tenue d'une instance à gestion spéciale.

[10]      The defendant cites decisions of this Court in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.) and Old Fish Market Restaurants Ltd. v. 1000357 Ontario Inc. et al. (1994), 58 C.P.R. (3d) 221 (F.C.T.D.), for the proposition that the purpose of the summary judgment rules is to dispense with those cases the Court considers ought not to proceed at trial because there is no genuine issue to be tried. The defendant says the Court's decision is to be made on the particular circumstances of each case and on the law and the facts submitted in support of the claim or defence.

[11]      In the Granville case, which concerned former rules 432.1 to 432.7 of this Court, Tremblay-Lamer J. reviewed exhaustively the case law pertaining to summary judgment and summarized the general principles at pages 859-860 of the reported case.

[12]      The defendant quotes but two of the propositions set out by Tremblay-Lamer J. in her summary. Other propositions set out in the Granville case are relevant to the determination of the motion before me. They are:

    

(a)      The operative test to determine whether there is a genuine issue to be tried is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial, not whether a party cannot possibly succeed at trial.

(b)      Tied in with the above proposition is the principle that the Court may determine questions of fact and law on a motion for summary judgment if this can be done on the material before the Court.

(c)      On the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so.

(d)      The mere existence of apparent conflict in the evidence does not preclude summary judgment; the Court should take a hard look at the merits whenever possible.

[13]      The principles set out by Tremblay-Lamer J. in Granville are applicable to the interpretation of rules 215 and 216 of the new Rules. (See White v. Canada, unreported, T-1152-97, June 25, 1998, Richard J. (as he then was)).

[14]      In its memorandum of fact and law the defendant defines the issues as follows:

14.      The Defendant submits that all of the issues in this proceeding are questions of law. They are whether the N.P.B. exceeded its jurisdiction in deciding to hear Plaintiff for day parole only and in the light of Plaintiff's own failure to challenge the decision by either appealing or commencing an application for judicial review and whether the NPB can be found liable for damages in a civil action for damages in the absence of bad faith on its part;

ISSUE I " Action Preempted by Judicial Review

[15]      The defendant's reasoning under this issue is as follows:

(a)      Defendant admits that subsection 123(1) gave the plaintiff a right to be heard for full parole, a right which the plaintiff chose to postpone until August 23, 1996.

(b)      Defendant admits that on August 23, 1996, plaintiff was only heard for day parole.

(c)      From the plaintiff's statement of claim the defendant says the plaintiff believes the Board exceeded its jurisdiction by deciding not to hear him for full parole on August 23, 1996.

(d)      Paragraph 147(1)(e) of the Act provides an offender a right of appeal to the Appeal Division of the Board on the ground that the Board failed to exercise its jurisdiction.

(e)      The plaintiff did not appeal the decision of the Board dated August 23, 1996 to the Appeal Division.

(f)      The proper course of action would have been for the plaintiff to appeal the August 23, 1996 decision to the Appeal Division on the basis of an excess of jurisdiction because under subsection 147(4) the Appeals Division could have "sent it back for a rehearing or simply render a new decision".

(g)      The purpose of having an internal appeal route is to avoid a multiplicity of proceedings before the Court. As such, where an appeal route exists, it should be pursued before seeking judicial review.

(h)      The defendant concludes with the following proposition:

24.      Where in essence, a Plaintiff is seeking relief as a result of the decision of a federal board in addition to damages, the proper course of action is for an application for judicial review to be brought to subsections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 and then if successful commence an application for damages. The Plaintiff did not appeal nor seek judicial review and is thus attempting to do indirectly what he chose not to do directly, namely not to hear him for full parole;

Sager c. Canada (1977) 140 F.T.R. 204 (tab C)

Zubi c. Canada (1993) 71 F.T.R. 168 (tab D)

[16]      The plaintiff replied to the defendant's motion on February 26, 1999. In particular, the plaintiff challenged the defendant's facts in the following material ways which the plaintiff supported by documentary evidence he produced:

(a)      He applied for full and day parole on March 15, 1996 which meant that the Board had six months to schedule consideration of his application. The Board acknowledged receipt of the plaintiff's application on March 27, 1996 and there is a handwritten note which says "receipted and scheduled for DP/FP panel in September 1996".

(b)      The Board had until September of 1996 to consider his application for full parole. Moreover, there is no law that states day parole and full parole hearings must be heard together.

(c)      The August 23rd hearing was for day parole only " not for full parole and the granting of day parole did not render moot his right to a full parole hearing in September 1996.

(d)      The Board never made a positive decision denying him a full parole hearing and therefor there was nothing to appeal or seek judicial review from.

(e)      The plaintiff appends an extract of what appears to be his parole officer report where the following is underlined:

On 1996.10.07 Shaw attended the office for a supervision meeting. At this time he wanted to discuss his Full Parole. He claimed that he should have been seen for Full Parole at his last hearing. Shaw told the writer that the police back East wanted him to have Full Parole as it would be easier to move him if his life was in danger. He also reported that being on Day Parole is costing him work as he cannot travel out of town. He told the writer that he would get a lawyer involved "if he has to". He also told the writer that I should be happy to have him on my caseload because all of my other cases are failures. The writer told Shaw that his file would be reviewed regarding his Full Parole application.

On 1996.10.07 the writer phoned Sharon Boyce at the NPB regarding Shaw's case. The writer asked why Shaw's Full Parole wasn't addressed at his last hearing. Sharon told the writer that Shaw did not apply to have his Full Parole addressed at the time of his last hearing. She told the writer that if he wished to apply for Full Parole his hearing would not be held immediately, as this office would be allowed five months case preparation time.

[17]      It is clear from the plaintiff's and the defendant's materials, their view of all of the critical facts is completely at odds particularly in respect of what happened at the Board hearing of August 23, 1996, what led up to the organization of that meeting and what happened since.

[18]      What is clear, however, from the defendant's material referencing the Board's pre-release decision sheet attached as appendix A to Mr. Trudeau's affidavit, is that a decision was taken to grant the plaintiff day parole. The defendant's material does not evidence a positive decision by the Board to deny the plaintiff a full parole hearing as required by law.

[19]      Even Mr. Trudeau cannot attest to some material facts as the cassette tape transcribing the proceedings are inaudible.

[20]      This critical divergency in what happened in fact is sufficient for me to conclude that there are genuine issues of fact that cannot be decided in summary judgment on the whole of the evidence before me.

[21]      I add a further point. I do not accept the defendant's characterization of the plaintiff's statement of claim set out at paragraph 15(h) of these reasons. The plaintiff, as I see it, does not seek relief against any decision of the Board in the sense that the plaintiff is seeking a review, challenging, attacking the validity or impugning the Board's decision and/or in effect an order, via a statement of claim, setting aside such decision or perhaps more appropriately in this case, an order compelling the Board to grant him a full parole hearing.

[22]      This Court has held many times that relief against a decision (or lack of a decision) of a federal board must be by way of judicial review (see Lake Babine Indian Band et al. v. Williams et al., 194 N.R. 44 (F.C.A.) and Machado v. Canada, 124 F.T.R. 296 amongst others. It cannot be by way of action.

[23]      The plaintiff's statement of claim is for damages flowing from an allegedly illegal decision or omission. What the plaintiff is saying is that the Board was obliged by statute to accord him a full parole hearing. It breached that obligation wilfully and the plaintiff suffered damages. See for example Oag v. Canada, [1987] 2 F.C. 511 (F.C.A.).

[24]      It would be inappropriate for me, in this motion, to identify the complexities of the law which the plaintiff will face in a claim such as the one presently being advanced (see, for example, [1983] 1 S.C.R. 205">Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205).

[25]      The nature of the plaintiff's action and the relief sought " damages " distinguishes this case from the cases relied on by the defendant namely Zubi v. Canada (1993), 71 F.T.R. 168 and Sager v. Canada (1997),140 F.T.R. 204.

[26]      In Zubi, the Court dealt with a former rule 419(1)(a) motion to strike out a statement of claim by an inmate in a federal penitentiary who sought declaratory relief against the decision of Corrections Service Canada to transfer him to a medium security facility, to declare him to be a minimum security inmate, as well as damages of $5,000.00.

    

[27]      Cullen J. said this about the statement of claim:

[9] The plaintiff's statement of claim seeks declaratory relief against the decision to transfer the plaintiff to a medium security facility, to declare him to be a minimum security inmate, as well as damages in the amount of $5,000. It is clear from the statement of claim that the relief sought is of the type contemplated by s. 18 and not simply damages against the Crown as counsel alleges. Thus, the proper course of action for the plaintiff would be to bring an application for judicial review pursuant to ss. 18 and 18.1, and then, if successful, bring an action for damages. In its notice of motion, the defendant states that it has no objection to allowing such time as required for the plaintiff to file such an application.

[28]      In this case, as noted above, the plaintiff does not seek to overturn the Board's decision or failure to make a decision. He seeks damages from an allegedly illegal act which happens to be, in this case, the Board's decision or omission about his full day parole request. This state of affairs conjures a problem identified in Comeau Sea Foods v. Canada, [1995] 2 F.C. 467 (C.A.).

[29]      In Sager, the Court dealt with a rule 432.3 summary judgment motion launched by the defendant seeking a dismissal of an inmate's action on the grounds that there was no genuine issue for trial. The motion was granted by Mr. Justice Dubé.

[30]      In that case, the Board on June 17, 1996, had revoked the plaintiff's statutory release after he had been charged with possession of stolen property. The plaintiff had been released on March 18, 1996 but on April 30, 1996, a warrant was issued to suspend his statutory release and to apprehend him based on information received from the O.P.P. resulting in his being recommitted to custody on May 17, 1996.

[31]      The plaintiff issued a statement of claim which Dubé J. described as follows:

[2] The action involves a claim for damages by the plaintiff for illegal detention for the period from May 30 to November 17, 1996 on the basis that the National Parole Board ("the Board") acted without jurisdiction in revoking the plaintiff's statutory release on June 17, 1996. It is common ground that on March 18, 1996, the plaintiff was released from the Millhaven Assessment Unit on statutory release pursuant to s. 127 of the Corrections and Conditional Release Act (the "Act"). On April 30, 1996, a warrant was issued to suspend his statutory release and to apprehend him pursuant to s. 135(1) of the Act based upon information received from the Brantford detachment of the Ontario Provincial Police. He was thus recommitted to custody and transferred to the Millhaven Assessment Unit on May 17, 1996.

[emphasis mine]

The plaintiff did not appeal the Board's June 17, 1996 decision nor did he file an application for judicial review.

[32]      Dubé J. decided that the Board had jurisdiction or power to revoke the plaintiff's statutory release on a plain reading of subparagraph 137(7)(b)(ii) of the Act, notwithstanding the post warrant suspension procedure provided for in the Act was not fulfilled as claimed by the plaintiff. Dubé J. held that subparagraph 137(7)(b)(ii) gave the Board an independent source of power to revoke an inmate's statutory release where the Board was satisfied that his continued freedom would constitute an undue risk to society.

[33]      Dubé J. relied on Zubi, (supra), in respect of the necessity to proceed by way of judicial review and on Fehr v. National Parole Board et al. (1995), 93 F.T.R. 161 on the requirement to exhaust an internal appeal route.

[34]      Dubé J.'s reliance on these two cases is indicative that he characterized the action before him as essentially an attack or a challenge to the Board's June 17, 1996 decision and not an action for damages.

[35]      Reed J. in Creed v. The Solicitor General of Canada, T-237-96, February 16, 1998, recently considered the impact of Zubi in a prisoner segregation case where judicial review and a statement of claim had been issued. Her short reasons are as follows:

The applicant is no longer in segregation; he is no longer at Edmonton Institution; he is no longer in the province. The judicial review applications are therefore moot. The decision in Zubi v. Her Majesty the Queen (1993), 71 F.T.R. 168, at 170, does not stand for the proposition that it is necessary to pursue a claim for damages by first completing a judicial review proceeding. The Zubi decision held that when part of the relief being sought was a declaration that a tribunal or board decision was invalid, that declaration must be sought by way of judicial review. Prior to the 1990 changes to the Federal Court Act, a declaration had to be sought by way of an action (a statement of claim). A declaration that a board or tribunal decision is invalid is similar to an order quashing that decision. Thus, it was somewhat inconsistent to require that a request for an order declaring a decision invalid was to be made by way of an action, while an order to quash the same decision could only be given in the context of a judicial review proceeding. Consequently, the two were made subject to the same procedural process - a judicial review application.

The Zubi decision dealt with a case in which an inmate had been transferred from minimum to medium security facilities. The inmate brought a statement of claim seeking a declaration that the transfer decision was invalid as well as damages. Mr. Justice Cullen wrote: "... the proper course of action for the plaintiff would be to bring an application for judicial review pursuant to ss. 18 and 18.1, and then, if successful, bring an action for damages." This is not a statement, however, that in order to obtain damages one must first commence a judicial review application. An action for damage has always been and remains an independent course of action. Mr. Justice Cullen's remarks only relate to the situation in which there is an existing transfer (or segregation) decision that it is sought to be set aside, such that, if granted, the individual is transferred back to the position he was in before the decision was made. That remedy must be sought by judicial review. In the present case, the applicant, as noted, is no longer in segregation, he is no longer in Edmonton Institution, he is no longer even in the province of Alberta. Thus, any finding of invalidity or any quashing of the segregation or transfer decisions would be pointless. The passage of time has rendered that relief moot.

The applicant has filed a statement of claim seeking damages for wrongful imprisonment. That is the appropriate course of action for the applicant to pursue.

In the circumstances, the applications have been dismissed.

[36]      I am in agreement with the approach taken by Reed J. in Creed. This approach is also reflected in Shaw v. Canada (1997), 134 F.T.R. 128. Prothonotary Hargrave states:

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.

[37]      In conclusion, the defendant on the first issue clearly fails. The law does not, in the circumstances of this case, sterilize the plaintiff's statement of claim.

ISSUE 2 " Immunity of the Board

[38]      Section 154 of the Act reads as follows:

154. No criminal or civil proceedings lie against a member of the Board for anything done or said in good faith in the exercise or purported exercise of the functions of a member of the Board under this or any other Act of Parliament.	154. Les membres bénéficient de l'immunité en matière civile ou pénale pour les actes accomplis et des énonciations faites de bonne foi dans l'exercice effectif ou censé tel des pouvoirs et fonctions qui leur sont conférés en vertu d'une loi fédérale, notamment de la présente.

[39]      Defendant argues that the plaintiff's statement of claim does not present a genuine issue to be tried as it does not contain any allegation of bad faith on the part of the Board and since all of the members benefit from statutory immunity from liability for anything done in good faith in the exercise of their functions as members of the Board, his claim ought to be dismissed linking this immunity to section 10 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50.

[40]      Defendant says that plaintiff does not allege any elements that would show either negligence or bad faith on the part of the Board in deciding, on August 23, 1996, to hear the plaintiff only for day parole.

[41]      Defendant concludes by submitting "an alleged violation of the Act is not sufficient to engage it's[sic] liability" citing Joli-Coeur v. Canada, [1998] F.C.J. No. 380 and Allibhai v. Canada, [1996] F.C.J. No. 1467.

[42]      Plaintiff replied by citing Oag v. The Queen, [1986] 1 F.C. 472 (T.D.), anchoring his remedy under subsection 24(1) of the Charter.

[43]      The nub of the issue here is whether the defendant established good faith or the plaintiff has alleged bad faith or fault on the part of the Board. I approach this issue against the following background:

(a)      I agree with Prothonotary Hargrave in Shaw, (supra), in the case of a lay litigant as here, that the statement of claim should be given a generous reading to accommodate inadequacies which are merely the result of deficient drafting. Also, the overriding principle that justice must be done and that a plaintiff should not easily be deprived of a day in court should be kept in mind.

(b)      The Board in its statement of defence did not rely on section 154 of the Act nor does the affidavit of Mr. Trudeau in support of the motion contain facts establishing positively that the Board members acted in good faith.

[44]      In my view, the burden is on the defence to establish that the actions of the members of the Board were conducted in good faith. The defendant has not done so and this failure distinguishes this case from a case such as White v. Canada, (supra).

[45]      Moreover, I am of the view that the plaintiff, in his allegations which I describe in paragraphs 6(c), (e), (g), (j) and (k) of these reasons in respect of the statement of claim and in paragraphs 8(b), (c), (d) and (e) of these reasons in respect of the reply, has sufficiently pleaded bad faith or negligence or fault as required in Joli-Coeur, Allibhai and Saskatchewan Wheat Pool, (supra).

[46]      Lastly, the defendant mentions that the plaintiff's statement of claim presents no genuine issue as plaintiff does not detail any damages he claims to have suffered. I see no merit in this argument in the context of a summary judgment motion. The defendant pleaded to the plaintiff's allegation on this point and the scope and details of damages is a proper matter for an examination for discovery. In any event, the plaintiff, in his reply to the motion, spelled out elements of his damages.

[47]      In conclusion, the defendant fails on this second issue.

[48]      For these reasons, the defendant's motion for summary judgment is dismissed.

     François Lemieux

    

     J U D G E

OTTAWA, ONTARIO

MAY 5, 1999