Date: 20100224
Docket: T-1752-06
Citation: 2010
FC 217
Ottawa, Ontario,
February 24, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
GARY SAUVE
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA,
THE ROYAL CANADIAN MOUNTED POLICE,
MARC FRANCHE (RCMP), LARRY TREMBLAY
(RCMP),
LOUIS DORAIS (RCMP)
Defendants
REASONS FOR ORDER AND ORDER
[1]
Gary Sauvé is a
member of the Royal Canadian Mounted Police who is currently on suspension
without pay. Mr. Sauvé has commenced an action for damages against Her Majesty
the Queen in Right of Canada, the RCMP and several RCMP officers. The
defendants now seek an order striking Mr. Sauvé’s statement of claim in its
entirety, without leave to amend.
[2]
For the reasons that
follow, I have concluded that the statement of claim should indeed be struck.
I have further concluded that, with the exception of one claim, leave to amend
should not be granted.
Background
[3]
Mr. Sauvé was engaged
in protracted litigation in the province
of Québec with respect to the paternity of two
children. In the course of this litigation, documents were sent by Mr. Sauvé
to the children’s mother’s lawyer and to the Supreme Court of Canada. As a
result of this correspondence, the mother of the children filed a public
complaint against Mr. Sauvé with the RCMP under the provisions of the Royal
Canadian Mounted Police Act, R.S.C. 1985, c. R-10. In addition, the
mother’s lawyer filed a criminal complaint with the police in Thetford Mines, Québec.
[4]
The Ottawa-Carleton
Police Service ultimately charged Mr. Sauvé with two counts of uttering death
threats and two counts of criminal harassment under the provisions of sections
264.1(2) and 264(3) of the Criminal Code of Canada, R.S.C. 1985, c. C-46,
respectively. Because of concerns that he was potentially a danger to himself
or others, Mr. Sauvé was held without bail at the Ottawa-Carleton Regional
Detention Centre for some five months pending his criminal trial.
[5]
Following a trial in
the Ontario Court of Justice, Mr. Sauvé was acquitted of the charges of
uttering death threats, but was convicted of both counts of criminal
harassment. While I understand Mr. Sauvé to have appealed his convictions,
there is no suggestion in either the evidence before me or in the parties’ oral
submissions that either conviction was ever quashed.
[6]
Mr. Sauvé has
commenced an action in the Province of Ontario against Her Majesty the Queen
in Right of Ontario with respect to the conduct of various provincial
authorities in relation to his arrest, pre-trial detention and prosecution.
This litigation is ongoing.
[7]
Mr. Sauvé has also
commenced this action in the Federal Court seeking some $13 million in general,
punitive and aggravated damages. Mr. Sauvé’s amended statement of claim asserts
numerous different causes of action, and contains allegations that several of
his rights under the Canadian Charter of Rights and Freedoms, Part I of
the Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.),
1982, c. 11, have been violated. As I understand his claim, Mr. Sauvé alleges
that he was wrongfully treated by the RCMP and its officers, who failed to
properly investigate the allegations made against him. Mr. Sauvé further
alleges that the RCMP is vicariously liable for the treatment that he received
at the hands of provincial authorities in the course of his criminal
investigation, arrest, pre-trial detention, prosecution and trial.
Principles
Governing Motions to Strike
[8]
The defendants’
motion to strike Mr. Sauvé’s amended statement of claim is brought under Rule
221(1)(a), (b), (c) and (f) of the Federal Courts Rules, which provide
that:
|
221.
(1) On motion, the Court may, at any time, order that a pleading, or anything
contained therein, be struck out, with or without leave to amend, on the
ground that it
(a) discloses no reasonable cause of action or
defence, as the case may be,
(b) is immaterial or redundant,
(c) is scandalous, frivolous or vexatious,
[…]
(f)
is otherwise an abuse of the process of the Court,
and
may order the action be dismissed or judgment entered accordingly.
|
221. (1) À tout moment, la Cour peut, sur requête, ordonner la
radiation de tout ou partie d’un acte de procédure, avec ou sans autorisation
de le modifier, au motif, selon le cas :
a) qu’il ne révèle aucune cause d’action ou
de défense valable;
b) qu’il n’est pas pertinent ou qu’il est redondant;
c) qu’il est scandaleux, frivole ou
vexatoire;
[…]
f) qu’il constitue autrement un abus
de procédure.
Elle
peut aussi ordonner que l’action soit rejetée ou qu’un jugement soit
enregistré en conséquence.
|
[9]
A motion to strike
will only be granted where it is plain and obvious that the action cannot
succeed, assuming the facts alleged in the statement of claim to be true: Hunt
v. Carey Canada Inc., [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321.
[10]
In considering a
motion to strike, the statement of claim should be read as generously as
possible, in a manner that accommodates any inadequacies in the allegations
that are merely the result of deficiencies in the drafting of the document: see
Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441 at para.14.
Does
Mr. Sauvé’s Statement of Claim Disclose a Reasonable Cause of Action?
[11]
Rule 221(2) further provides that no
evidence shall be heard on a motion for an order under Rule 221(1)(a). That
is, the pleading must stand or fall on its own. Thus, while I have set out some
background information in the first part of this decision in order to provide a
context for these reasons, I have limited my examination to the matters pleaded
in the claim itself in considering whether Mr. Sauvé’s statement of claim
discloses a reasonable cause of action.
[12]
Rule 174 of
the Federal Courts Rules requires that “[e]very pleading shall contain a
concise statement of the material facts on which the party relies”. A
statement of claim that contains bare assertions, but no facts on which to base
those assertions discloses no cause of action: see Vojic v. Canada (M.N.R.)
(F.C.A.), [1987] 2 C.T.C. 203, 6 A.C.W.S. (3d) 203, (F.C.A.).
[13]
While Rule
175 permits a party to raise a point of law in a pleading, a conclusion of law
pleaded without the requisite factual underpinning to support the legal
conclusions asserted is defective, and may be struck out as an abuse of Court: Merck & Co. v. Nu-Pharm Inc.,
(1999), 179 F.T.R. 87, 4 C.P.R. (4th) 522 at para. 29, aff’d (2000), 193 F.T.R. 256, 9 C.P.R. (4th) 379.
[14]
A number of
paragraphs in the statement of claim relate to the alleged vicarious liability
of the defendants for the damages that Mr. Sauvé says he suffered at the hands of
provincial law enforcement, correctional and prosecutorial authorities: see,
for example, paragraph 12 (after the words “the plaintiff submits that he was
detained by the RCMP police officers for over two (2) hours”), and paragraphs
13, 19, 25, 26, 27, 28, 39, 40 and 45.
[15]
Mr. Sauvé
makes the bald assertion that the defendants owed him a duty of care and are
vicariously liable for the actions of the provincial authorities, but provides no factual underpinning for this
assertion. In paragraph 50, Mr. Sauvé asserts that the defendants owed him a
duty of care “as any other reasonable person would owe a duty of care to any
other person”. This is clearly insufficient.
[16]
Similarly, in
paragraph 23 of the claim, Mr. Sauvé asserts that the RCMP had him under its
care, and as such became vicariously liable for his safety while he was in
custody. No facts have been pleaded, however, to show how Mr. Sauvé was in the
care of the RCMP while he was in the custody of provincial officials, nor is
there any allegation that any of the defendants had any control over the
conditions of Mr. Sauvé’s pre-trial detention, or the manner in which his case
was prosecuted by the provincial Crown.
[17]
Given
that insufficient material facts have been pleaded by Mr. Sauvé to link the
RCMP to the damages that he says he suffered at the hands of provincial law
enforcement, correctional and prosecutorial authorities, paragraphs 12, 13, 19,
23, 25, 26, 27, 28, 39, 40 and 50 disclose
no cause of action and should be struck.
[18]
In paragraphs
24, 30, and 42 of his amended statement of claim Mr. Sauvé pleads that he has
been defamed. Paragraph 24 refers to news of his arrest and incarceration
having been broadcast over the Ottawa Police Services’ airways. Not only have
the precise words complained of not been pleaded as is necessary in a claim for
defamation, more fundamentally, there is nothing in the pleading to suggest
that the statements complained of were untrue. Indeed, Mr. Sauvé acknowledges
in his amended statement of claim that he was arrested and incarcerated: see
paragraphs 12 and 25.
[19]
Furthermore,
there is nothing in the pleading to connect the broadcast complained of to any
actions on the part of any of the defendants in this action.
[20]
Paragraph 30
relates to the defendants’ release to the media of information regarding Mr.
Sauvé’s name, years of service, position within the RCMP and the charges that
he was facing. Once again, there is no suggestion in the pleading that any of
this information was inaccurate or untrue. As such, the publication of this
information by the defendants cannot support a claim in defamation, and these
paragraphs will be struck, as will paragraphs 31, 32 and 42, which relate to
damages allegedly suffered by Mr. Sauvé and by his child and ex-wife (who are
not parties to this action) as a result of the alleged defamation.
[21]
In paragraphs
16 and 29, Mr. Sauvé alleges that the defendants, specifically Messrs. Franche
and Tremblay, wrongfully accused Mr. Sauvé in court of having uttered threats.
Testimony given in court is subject to an absolute privilege, and thus cannot
form the basis of a claim in defamation: Prefontaine v. Veale, 2003
ABCA 367, 339 A.R. 340 at para. 10; Dooley v. C.N. Weber Ltd., (1994),
118 D.L.R. (4th) 750, 50 A.C.W.S. (3d) 1011 at para. 12. Consequently, these
paragraphs will also be struck.
[22]
Mr. Sauvé has
made a number of allegations of conspiracy. He has, however, failed to plead
the requisite elements of the tort. In particular, he has not identified the
parties to the conspiracy, the agreement between the defendants, the precise
purpose of objects of the conspiracy and the overt acts alleged to have been
done in furtherance of the conspiracy: see Balanyk v. University of Toronto, 1999), 1 C.P.R. (4th) 300, 88 A.C.W.S.
(3d) 1157 at para. 71; Peaker v. Canada Post Corp. (1989), 68 O.R. (2d)
8 (Ont. H.C.) at 27-28; Normart Management Ltd. v. Westhill Redevelopment
Co., (1998), 37 O.R. (3d) 97 at 104.
[23]
For example,
in paragraph 29, Mr. Sauvé asserts that the
defendants conspired to injure him during his bail hearing and criminal trial.
However, Mr. Sauvé does not provide any material facts as to who the defendants
conspired with, or what the agreement was between these defendants and any
other parties to the conspiracy. While I will make additional comments with
respect to paragraph 38 of the statement of claim further on in these reasons,
I would also observe that the pleading of conspiracy in this paragraph is
similarly deficient.
Is the Claim
an Abuse of Process in Light of the Ontario
Action?
[24]
The defendants also
submit that Mr. Sauvé’s entire amended statement of claim is an abuse of
process, as he is attempting to relitigate matters that are currently before
the Ontario Courts. As a result, the defendants say that the claim should
therefore be struck under the provisions of Rule 221(1)(f). In the
alternative, the defendants ask that this action be stayed pending the outcome
of the Ontario proceeding.
[25]
I do not agree that
the matter is an abuse of process in light of Mr. Sauvé’s pending Ontario civil action. While it is true that the Ontario action relates to many of the events referred to in Mr.
Sauvé’s Federal Court claim, the defendants to the two actions are different.
The fundamental issue in the Ontario action is the liability of various
provincial entities in relation to the matters complained of, whereas the
question at issue in this case is the liability of Mr. Sauvé’s employer and
co-workers at the RCMP for the same matters.
Is
Mr. Sauvé’s Statement of Claim Otherwise an Abuse of Process?
[26]
While I do
not accept that Mr. Sauvé’s claim is an abuse of process in light of his
Ontario civil action, a close examination of Mr. Sauvé’s amended statement of claim
nevertheless discloses that it is an abuse of process as it is largely an
attempt to relitigate the question of his guilt in relation to the criminal
charges laid against him – a matter that has been resolved in his criminal
trial.
[27]
This is
particularly evident from paragraphs 14 and 21 of the amended statement of
claim, which plead that:
[14] The plaintiff
respectfully submits that if the defendants had properly investigated the
matter, they would have found out that the plaintiff and his family have been
harassed, threatened, defamed by [the mother of the children] for over a period
of 23 years (1983 to present) and as such, would not have detained and arrested
the plaintiff on October 8, 2004.
[…]
[21] The plaintiff submits that had the defendants conducted a
proper and diligent investigation, they would have realized that the two
documents were not threatening in nature and there were no reasonable and
probable grounds to detain, arrest and incarcerate the plaintiff.
[28]
Indeed, a
fair reading of the amended statement of claim as a whole discloses that Mr.
Sauvé’s action is premised on the idea that he was wrongfully detained by the
RCMP, and then wrongfully arrested, charged, held in pre-trial detention and
tried. Indeed, Mr. Sauvé asserts in paragraph 35 of his amended statement of
claim that there was an absence of reasonable and probable cause to commence
criminal proceedings against him, and that these proceedings were ultimately terminated
in his favour.
[29]
However, as
Mr. Sauvé acknowledges in paragraph 36 of his amended statement of claim, he
was in fact convicted of two counts of criminal harassment as a result of his
having sent the documents in question. The fact that he was ultimately
acquitted of the charges of uttering threats does not in any way detract from
the fact that his conduct in sending these documents has been found by the
courts to have been criminal in nature.
[30]
As the
Supreme Court of Canada observed in Toronto (City) v. Canadian
Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 [Toronto (City)], it is both improper
and an abuse of process to attempt
to impeach a judicial finding of criminal guilt by the impermissible route of
relitigation in a different forum: see para. 46.
[31]
The fact that Mr. Sauvé’s motive for attempting to
relitigate the matter of his guilt may be to secure damages rather than to
directly challenge his criminal conviction does not render it any less abusive:
see Toronto (City),
at para. 46.
[32]
This Court could not find any of the defendants liable to
Mr. Sauvé for, by way of example, “wrongful prosecution, detention, arrest and
imprisonment” or “abuse of process”, without the Court first finding that Mr.
Sauvé was not guilty of the matters with which he was charged. This the Court
cannot do.
[33]
As a consequence, and subject to the comments in the next
paragraphs with respect to paragraphs 33 and 38 of the amended statement of
claim, the remainder of the claims will be struck as an abuse of process,
without leave to amend.
Is
Mr. Sauvé’s Statement of Claim Scandalous, Frivolous or Vexatious?
[34]
In paragraphs 33 and 38 of Mr. Sauvé’s statement of claim,
he complains about the conduct of the defendants in relation to subpoenas
served upon him. These claims do not arise out of the criminal charges against
him, and thus do not constitute an abuse of process as discussed in the
previous section of these reasons.
[35]
The
question, then, is whether the claims asserted in either of these paragraphs
are scandalous,
frivolous or vexatious within the meaning of Rule 221(1)(c) of the Federal
Courts Rules.
[36]
Paragraph 38 alleges that an unidentified individual acting
on behalf of the defendants served Mr. Sauvé with a subpoena at his home to
compel him to appear as a witness in a criminal trial in which he was involved
as a police officer. As I understand the paragraph, Mr. Sauvé’s concern is not
that he was served with the subpoena, but the fact that his home address and
work phone number were disclosed on the face of the subpoena. Because of this,
Mr. Sauvé claims that the defendants are liable to him for damages for
“invasion of privacy, intrusion upon plaintiff’s solitude, harassment,
conspiracy to injure and breaches pursuant to the Charter.” The damages that
he claims to have suffered as a result were “stress, worry, fear and anxiety”.
[37]
Mr. Sauvé and his employer would both have already been in
possession of information regarding Mr. Sauvé’s home address or work phone
number, and there is no assertion in the pleading that this information was
ever disclosed to a third party. I cannot see how the disclosure of Mr.
Sauvé’s personal information to Mr. Sauvé himself could be actionable.
[38]
Moreover, Canadian courts have generally resisted emotional
distress claims based on pure nervous shock, or fear, without visible and
provable illness: see Steiner v. Canada, (1996), 122 F.T.R. 187, 66 A.C.W.S. (3d) 873 at para. 13, citing Radovskis v. Tomn
(1957), 21 W.W.R. 658, Guay v. Sun Publishing Company Ltd.,
[1953] 2 S.C.R. 216 at 238 and Rahemtulla v. Fanfed Credit Union
(1984), 51 B.C.L.R. 200 at 216.
[39]
A claim is frivolous “where it is of little weight or
importance or for which there is no rational argument based upon the evidence
or law in support of the claim”. A vexatious proceeding is “one that is begun
maliciously or without a probable cause, or one which will not lead to any
practical result”: see Steiner, at para. 16. The
claim asserted at paragraph 38 of the amended statement of claim is both frivolous and vexatious.
[40]
More difficult, however, is the claim asserted in paragraph
33 of Mr. Sauvé’s amended statement of claim, which states that:
[33]
On or about the 30th day of November 2004, the plaintiff submits
that the defendants caused damages to his person by serving a subpoena to the
plaintiff while incarcerated and by removing him out of segregation to attend
the Ottawa Court House to testify as a police officer, for and on behalf of the
RCMP and the Ottawa Police Services with respect to a criminal case involving
organized crime. The plaintiff feared for his safety and that of his family by
increasing the risk by exposing his identity as a police officer. The
plaintiff sustained fear, stress, anxiety, emotional trauma, loss of
reputation, loss of integrity, dignity, respect, humiliation, embarrassment and
degradation. The Plaintiff submits that being experienced and well trained,
the defendants knew or ought to have known that their actions and/or inactions
would cause damages to the plaintiff.
[41]
The pleading
with respect to this claim is clearly defective in its current form, in that it
does not identify a cause of action. That said, while there are undoubtedly deficiencies in the drafting of the
claim, I am not persuaded that it is plain and obvious that this claim could
not succeed.
[42]
Indeed,
in response to questions from the Court, counsel for the defendants fairly
conceded that although the claim was novel, it was not plain and obvious that
the “outing” of an incarcerated individual as a police officer, with the
potential increase in risk to the individual’s personal safety that could
ensue, could not potentially attract liability, for example, in negligence.
Moreover, it is not at all clear that the damages that Mr. Sauvé allegedly
suffered in this regard were limited to emotional distress.
[43]
As a
consequence, while paragraph 33 of the claim will be struck, leave will be
granted for Mr. Sauvé to amend his statement of claim to advance this one
claim. Mr. Sauvé shall have 30 days in which to file a further amended
statement of claim with respect to this claim.
The Naming
of the Royal Canadian Mounted Police as a Defendant
[44]
The RCMP is
not a suable entity: see Downey v. Canada (Royal Canadian Mounted Police). [2002] S.J. No. 52 at para. 18
and Dix v. Canada, [2001] A.J. No. 410. Actions seeking monetary
compensation against the RCMP should instead be instituted against the Crown:
see Sauvé v.
Canada, 2009 FC
1011 at para. 39. Consequently, the style of cause must be amended to remove the RCMP
as a defendant, and paragraph 4 of the statement of claim is struck, without
leave to amend.
Case
Management
[45]
I agree
with the defendants that in the event that this matter is to proceed, it would
benefit from case management. Indeed, I do not understand Mr. Sauvé to object
to this. As a consequence, the matter will continue as a specially-managed
proceeding.
Costs
[46]
I
acknowledge that Mr. Sauvé is a self-represented litigant. Nevertheless, all
parties appearing before the Court are obliged to comply with the rules
governing pleadings. Given the defendants’ substantial success on the motion,
I am of the view that an award of costs in their favour is appropriate. Having
regard to all of the circumstances, including Mr. Sauvé’s apparent
impecuniosity, I fix these costs at $250.
ORDER
THIS
COURT ORDERS that:
1. The defendants’
motion is granted in part. All of the claims in Mr. Sauvé’s amended statement
of claim, with the exception of the claim identified in paragraph 33, are
struck without leave to amend. The claim identified in paragraph 33 of the
amended statement of claim is struck, with leave to amend. Mr. Sauvé shall
have 30 days in which to file a further amended statement of claim with respect
to this one claim;
2. The style of cause is amended to
remove the RCMP as a defendant. Paragraph 4 of the amended statement of claim
is also struck without
leave to amend;
3. This matter will be continued
as a specially managed proceeding; and
4. The defendants will have their
costs fixed at $250.
“Anne
Mactavish”
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