Bussey v. Canada (Attorney General), docket T-1380-88

Date: 19990625

Docket: T-1380-88

BETWEEN:

     KEVIN BUSSEY

     Plaintiff

     - and -

     ATTORNEY GENERAL OF CANADA

     First Defendant

     - and -

     HER MAJESTY THE QUEEN AND

     THE COMMISSIONER OF THE ROYAL

     CANADIAN MOUNTED POLICE

     Second Defendant

     REASONS FOR ORDER

MacKAY J.

[1]      These are brief reasons for the dismissal of an application by the plaintiff for leave to amend the Statement of Claim in this matter. Counsel for the parties were heard in St. John's, Newfoundland on June 18, 1999, when I orally dismissed the application, and subsequently confirmed that by written order, without prejudice to further amendment upon consent or by leave of the Court setting out the factual basis for the plaintiff's claim to breach of Charter rights, and related relief.

[2]      The action was commenced by Statement of Claim filed July 4, 1988, the essence of which was to raise a claim for malicious prosecution, in relation to events that occurred principally in 1985 and 1986.

[3]      Not much progress had been made in advancing the action when by Notice of Status Review dated October 22, 1998 the plaintiff was directed to file written submissions to show cause why the action should not be dismissed for delay, all in accord with the Court's Rules. Written submissions on behalf of the plaintiff and on behalf of the defendants were considered and on February 3, 1999 Mr. Justice Blais ordered that the plaintiff be available for discovery and the parties arrange discovery no later than March 31, 1999, that all proceedings be filed and served no later than May 14, 1999, and that the plaintiff file and serve a requisition for a pre-trial conference with a memorandum no later than June 4, 1999.

[4]      In April counsel for the plaintiff advised the Court that it had not been possible to conclude discovery of the plaintiff by March 31 and that all discoveries were not expected to be completed until mid to late May. On May 14 the plaintiff filed its Notice of Motion seeking leave to amend the Statement of Claim. The amendments now submitted are said to result from completion of discoveries which provided a comprehensive understanding by the plaintiff of parties who had ultimate responsibility for the investigation, charging and prosecution of the plaintiff and of tortious actions committed by the defendants which give rise to this action.

[5]      I directed that the plaintiff's motion be heard in St. John's, Nfld. on June 18, 1999. When it came on for hearing counsel for the plaintiff and counsel representing the Crown and defendants were present and heard.

[6]      For the plaintiff it was urged that the amendments now proposed in the draft Amended Statement of Claim presented with the motion did not vary the basic facts originally alleged, but merely set these in greater detail, to provide fuller understanding of the nature of the plaintiff's claim. It was urged that the proposed amendments would result in no injustice or prejudice to the defendant that is not compensable by an award of costs, that the amendments would not delay an expeditious trial of the matter and that they do not raise causes of action for which the factual basis has not been previously alleged.

[7]      On behalf of the defendants it was urged by counsel that the proposed amendments did indeed create prejudice for the defendants, that they would create further delay and that they did appear to raise new causes of action. It was urged that if the amendments were permitted the defendants would need to seek further particulars, and in light of those would have to undertake further investigation and review with police officers and others who may have been involved in events more than a decade ago. For example, counsel indicated that the factual basis for the claim set out in the amended paragraph 16 of the Statement of Claim was not at all clear without further particulars. That paragraph provides as follows:

[8]      In the Statement of Claim filed July 4, 1988 there were 16 paragraphs, the last of which sets out the bases of the plaintiff's claims for both general and special damages. The proposed Amended Statement of Claim now sought to be filed with leave of the Court includes 30 paragraphs, the last of which sets out the bases of the plaintiff's claims for general damages, special damages, aggravated damages and punitive damages and a claim for pre and post-judgment interest. The added paragraphs 17 to 20 follow a heading "The Legal Basis of the Claim against the Royal Canadian Mounted Police" and paragraphs 21 to 28, as noted below, appear to concern claims in relation to prosecuting attorneys. Paragraph 29 pleads reliance upon the Crown Liability and Proceedings Act, a pleading, of applicable law, that is not in any way essential, even if it were appropriate, for consideration of the plaintiff's claims.

[9]      While for the plaintiff it is urged that succeeding paragraphs provide the factual basis underlying the general claims in paragraph 16, I am not satisfied that those succeeding paragraphs do not raise new causes of action, including the possibility of actions that lie beyond the jurisdiction of the Court. For example, I note that paragraphs 21 to 28 of the Amended Statement of Claim are set out under the heading "The Legal Basis of Liability of the Crown Attorneys". While those attorneys are said to be "the Crown agents of the Defendant" I am not satisfied on the basis of the pleadings that in the administration of justice in the circumstances of this case, relating to a drug prosecution, the role of prosecuting officers is subject to supervision by the Attorney General of Canada as opposed to the Attorney General of the province who is responsible for the administration of justice in the province. If it is the latter, then of course any claim in relation to the activities of the prosecutors would not, in the ordinary course, give rise to a claim against Her Majesty the Queen in Right of Canada and the claim, presumably directed to the Crown provincial, could not be pursued in this Court. If the claim is one against prosecuting officers personally, it is not one to be heard in this Court

[10]      Since I was not persuaded that the amendments as proposed would not cause prejudice to the defendants or that their approval would not cause further delay, I disallowed the amendments as proposed. I did so without prejudice to further amendment, by consent or on leave of the Court, for the plaintiff to plead facts giving rise to claims perceived as related to Charter rights. While any amendment to include such claims would, in a technical sense, raise new causes of action, those causes, it is said, would be based on the same basic facts for which a claim for malicious prosecution has been outstanding for some years. I make no judgment whether a claim to breach of Charter interests is appropriate or would ultimately be upheld, but I am not prepared to foreclose the possibility that such a claim be argued in this action.

[11]      The Order issued following the hearing, dismissing the plaintiff's motion to amend, was without prejudice to the plaintiff filing, upon consent or by leave of the Court, a further proposed Statement of Claim including facts alleged as a basis for a claim to relief for any claimed breach of Charter rights.

[12]      I now direct that any amendment on consent, or a motion for leave to amend the Statement of Claim, be filed on or before July 30, 1999. After the filing of any amendment, if there be consent or leave granted, the defendants may amend the Statement of Defence within 14 days. Thereafter, the Court will expect the parties to recommend within an additional 30 days, by agreement or separately, a schedule for trial preparations and for a pre-trial conference, in keeping with the spirit of the Order of February 3, 1999 by Mr. Justice Blais.

                                     W. Andrew MacKay

                                         JUDGE

OTTAWA, Ontario

June 25, 1999.