Date: 20120529
Docket: T-1355-11
Citation: 2012 FC 654
Ottawa, Ontario, May 29,
2012
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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JUSTIN GERMA
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Plaintiff
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and
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THE ATTORNEY GENERAL OF CANADA
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Defendant
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REASONS FOR ORDER AND
ORDER
[1]
The
Plaintiff in this proceeding, Justin Germa, seeks leave under Rule 334.3 of the
Federal Courts Rules, SOR/98-106 (Rules) to discontinue this
proceeding. The Defendant opposes the motion ostensibly because a
discontinuance of the action may prejudice the interests of other proposed
members of the class. The Plaintiff has requested that this motion be dealt
with in writing. Having reviewed the materials filed by the parties, I have
concluded that the motion can be dealt with under Rule 369 of the Rules and
that there is no reason for an oral hearing.
Background
[2]
This
action arises out of a prison lockdown at the Kent Institution in Agassiz, British
Columbia
between January 7, 2010 and January 18, 2010. During the lockdown, the rights
of inmates were allegedly infringed by way of unlawful searches, cell
extractions and the use of excessive force.
[3]
On
August 19, 2011, Mr. Germa commenced this proposed class proceeding on
behalf of all inmates who were subject to the lockdown. The Chief Justice
ordered this action into case management on November 29, 2011. The Plaintiff
brought a motion to certify the action as a class proceeding and the Defendant
responded with a motion to strike the action for disclosing no viable cause of
action. Before those motions could be heard, the Plaintiff indicated a desire
to discontinue this proceeding in favour of a class proceeding commenced on
January 6, 2012 by another inmate, Jeffrey Ewert, in the Supreme Court of
British Columbia claiming almost identical relief (the Ewert action). Counsel
for the plaintiffs in both actions is the same.
[4]
On
January 17, 2012, a class proceeding was brought in the name of a third inmate,
Trevor Bell. That proceeding was also brought in the Supreme Court of
British Columbia by way of a Statement of Claim asserting claims that
substantially overlap those in the other two proceedings. Mr. Bell is
represented by a different counsel. There does not yet appear to be an
agreement or resolution about which of the two Supreme Court of British
Columbia actions should take priority.
[5]
On
March 21, 2012, the Minister moved to strike out the Ewert action on
jurisdictional grounds and on the basis that it represented an abuse of
process. Justice R. B. T. Goepel dismissed that motion on April 30, 2012.
Justice Goepel held that the Supreme Court of British Columbia had jurisdiction
and that, in the face of Mr. Germa’s pending motion to discontinue this
proceeding, it was not an abuse of process to allow the Ewert action to go forward.
That Order was made without prejudice to the right of the Minister to bring the
motion again in the event that Mr. Germa was not permitted to discontinue
this proceeding.
Issue
[6]
Should
leave to discontinue this action be granted under Rule 334.3 of the Rules?
Analysis
[7]
Mr. Germa’s
affidavit discloses that it is no longer practical for him to continue as the
representative plaintiff in the class action because he has been transferred to
the Springhill Institution in Nova Scotia. He deposes that he is
content to have his claim advanced in the context of the Ewert action and he
seeks to discontinue this proceeding.
[8]
The
Defendant opposes Mr. Germa’s motion saying that it is premature to
dispose of this proceeding because it might seek to appeal the decision of
Justice Goepel. In other words, until the uncertainty of the Ewert action is
resolved, this motion should either be dismissed or adjourned.
[9]
The
Defendant also argues that the interests of the “unnamed, putative class
members” need to be considered on this motion and, in particular, the
possibility that limitation defences may arise if the Ewert action is
successfully appealed and ultimately dismissed.
[10]
The
Defendant’s argument in favour of protecting the juridical interests of members
of the proposed class is somewhat unusual in the face of its efforts to strike
out both the Ewert action and this action.
[11]
There
are no obvious limitations issues that would bar the claims advanced in the
Ewert action. The fact that individual claims may now be statute barred does
not appear to me to be of any consequence so long as the Ewert action is
prosecuted. There may well be limitations issues in the Bell action, but
presumably that will be a consideration when the Supreme Court of British
Columbia is required to determine which of those actions should move forward.
It is not for this Court to be concerned about procedural issues that may arise
in the Supreme Court of British Columbia: see Campbell v Canada (AG), 2009 FC 30
at para 28, [2009] 4 FCR 211.
[12]
This
proceeding is also in its very early stages and there is no material concern
about thrown-away costs.
[13]
The
sole foundation for the Defendant’s motion to strike out the Ewert action was
the existence of this action. The Defendant claimed that a collateral
proceeding in the Federal Court deprived the Supreme Court of British Columbia
of jurisdiction and gave rise to an abuse of process. As Justice Goepel
understood, those arguments are rendered moot if this action is discontinued. In
fact, it is only by keeping this proceeding in place that the Defendant has a
basis upon which to strike out the Ewert action. If the Defendant successfully
accomplished that outcome, it would presumably reassert its motion to strike
out this action as disclosing no cause of action a strategy that, if
successful, would leave the class without any recourse.
[14]
In
these circumstances, it does not seem advisable to force a relunctant party to
continue with an action in which he has lost interest. Absent a concern about
meaningful prejudice to the interests of the putative class members, the forum
for prosecuting a class proceeding ought to be left in the hands of
Mr. Germa and his counsel.
[15]
This
motion for leave to discontinue this action is, therefore, allowed without
costs.
ORDER
THIS COURT
ORDERS that leave to discontinue this action is granted without costs
to either party.
"R.L.
Barnes"
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