Docket: T-1662-11
Citation: 2012 FC 27
Vancouver, British Columbia, January 9, 2012
PRESENT: Roger
R. Lafrenière, Esquire
Prothonotary
BETWEEN:
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CARLTON
JONES
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Plaintiff
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and
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WARDEN MARK KEMBALL
AND
CORRECTIONS
SERVICE CANADA AND
THE ATTORNEY
GENERAL OF CANADA
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Defendants
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REASONS FOR ORDER AND ORDER
[1]
The Defendants seek an Order pursuant to Rule
221(1)(a) or Rule 221(1)(f) of the Federal Courts Rules [FCR] striking
the Statement of Claim, without leave to amend, on the grounds that it
discloses no reasonable cause of action, or is otherwise an abuse of process of
the Court. The Plaintiff has not responded to the motion, although duly served
with the Defendants’ motion record on November 9, 2011.
[2]
The Plaintiff commenced this action on October
11, 2011 against Warden Mark Kemball, Corrections Service Canada and the
Attorney General of Canada. He seeks ordinary damages, aggravated and exemplary
damages, and an injunction against the Defendants based on a number of claims
relating to his imprisonment at the Grande Cache and the Kent Institutions,
including negligence, intentional and negligent infliction of mental suffering,
misfeasance in public office, libel and slander, harassment, and breach of his Charter
rights.
[3]
For the purposes of this motion, the allegations
made in the Statement of Claim must be taken as proven. In short, the Plaintiff
alleges that mental health services were withheld from him since 1999. On July
27, 2011, the Plaintiff sent a request to the Kent Institution Health Care
Department. While the nature of the request is not disclosed, it appears that
it was responded to by a social worker. According to the Plaintiff, he has been
housed in solitary confinement since July 2011 and the Defendants are not
making health services available to him.
[4]
On a motion to strike out a pleading under Rule
221(a) of the FCR, the applicable test is whether it is “plain and obvious”
that the claim discloses no reasonable cause of action: Hunt v Carey
[1990] 2 S.C.R. 959. The burden on the defendant is very high and the Court should
exercise its discretion to strike only in the clearest of cases. The pleading
should be read generously with allowance for inadequacies due to drafting
deficiencies.
[5]
It remains, however, that the Court cannot allow
a pleading to stand when it does not set out the essential elements of a cause
of action, or is impossible to understand or respond to in any meaningful way.
The basic rules of pleading require that every pleading must contain a concise
statement of the material facts on which the party relies. More specifically,
Rules 174, 181 and 182 impose an obligation on a plaintiff to plead, in a
concise manner, material facts that disclose a reasonable cause of action, as
well as the nature of the damages. Bald assertions, vague statements, and bare
conclusions are simply insufficient.
[6]
Being substantially in agreement with the
written representations filed on behalf of the Defendants, I conclude that the
Statement of Claim fails to disclose a reasonable cause of action. Some of the
more egregious deficiencies are listed below.
[7]
First, the Plaintiff fails to name a Crown
servant for each of the actions or omissions that are alleged to give rise to a
cause of action. In Merchant Law Group v Canada Revenue Agency, 2010 FCA
184, the Federal Court of Appeal held that a plaintiff must either name the
individual who is alleged to have engaged in misfeasance or, at the every
least, identify a particular group of individuals who were dealing with the
matter, one or more of whom were allegedly responsible.
[8]
Second, at paragraph 20 of the Statement of
Claim, the Plaintiff states that the prison administrators were negligent. He
fails to specify how or whether the allegations contained in that paragraph
constitute breaches of the standard of care owed to the Plaintiff, or what
damages, if any, were caused by these alleged breaches.
[9]
Third, the Plaintiff claims damages for “negligent
infliction of mental suffering”. No such independent tort exists. In any event,
in order to establish liability for psychiatric injury, the injury must satisfy
the legal concept of nervous shock. This does not include emotional upset,
mental distress, grief, sorrow, anxiety, worry or other transient and more
minor psychiatric injury. The same can be said about the bald allegation of
harassment.
[10]
Fourth, as for the allegations of intentional
infliction of mental suffering, the Plaintiff has failed to plead any material
facts that would establish a flagrant or outrageous act done by the Defendants
without legal justification that would give rise to their liability for
intentionally inflicting nervous shock: see Cooper v Hobart, 2001 SCC
79, [2001] 3 S.C.R. 537.
[11]
Fifth, the Plaintiff’s claim for damages for
misfeasance in public office is also deficient in that the requisite
elements of the tort, as set out in Odhavji Estate v Woodhouse, [2003] 3
SCR 263, 2003 SCC 69, have not been pleaded. The Plaintiff was required to
plead that: (a) the public officer engaged in deliberate and unlawful conduct
in his or her capacity as a public officer; (b) the public officer was aware
that his conduct was unlawful; (c) the public officer was aware that his
conduct was likely to cause harm to the Plaintiff; (d) the tortuous conduct was
the cause of the Plaintiff’s loss or injury; and (e) the Plaintiff suffered
compensable loss as a result of the tortuous conduct.
[12]
Sixth, at paragraphs 8 and 13 of the Statement
of Claim, the Plaintiff claims that he had been libelled and slandered.
However, the two paragraphs are not only speculative and vague, they do not
describe any defamatory statements.
[13]
Finally, to successfully plead a Charter
rights infringement in a torts action, a plaintiff must first plead material
facts to support a rights violation. While the Plaintiff states at paragraph 26
of the Statement of Claim that his section 7, 12, and 15 Charter rights
have been infringed, he does not make his allegations any more specific than
this bald statement.
[14]
Taken as a whole, the allegations in the
Statement of Claim are so vague and deficient that the Defendant cannot
ascertain the exact nature of the question to be tried, rendering the
proceeding impossible to regulate. The Plaintiff has not proposed any
amendments that could cure the radical defect in the pleading. In the
circumstances, I conclude that the Statement of Claim should be struck out,
without leave to amend.
[15]
Since the Defendants have not requested their
costs of the motion, none will be awarded.
ORDER
THIS COURT ORDERS that:
1.
The Statement of Claim is struck out, without
leave to amend.
2.
There shall be no order as to costs of this
motion.
“Roger R. Lafrenière”
I HEREBY CERTIFY that the above document is a true copy of the
original filed of record in the Registry of the Federal Court the
______ day of
____________________, A.D. 2012.
Dated this _____ day
of _________________, 2012.
_____________________________________________
Frank Fedorak, Acting Registry Officer
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