Date: 20081211
Docket: T-1430-07
Citation: 2008
FC 1367
Ottawa, Ontario,
December
11, 2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
REVEREND EDWIN PEARSON,
REVEREND MICHEL ETHIER
and JAMES ROSCOE HOAD
Plaintiffs
and
HER MAJESTY THE QUEEN as
represented by THE MINISTER OF JUSTICE OF CANADA, THE ATTORNEY GENERAL OF CANADA,
and THE SOLICITOR GENERAL OF CANADA
Defendants
REASONS FOR ORDER AND ORDER
[1]
This is a
motion brought by the Plaintiffs by way of an appeal from an Order of a
Prothonotary of this Court dated October 15, 2008 in which the Plaintiffs’
claim was struck without leave to amend with costs to the Defendants. For the
reasons that follow I will dismiss the appeal and maintain the striking of the claim.
[2]
An Order
of a Prothonotary striking out an action is clearly an Order vital to the final
determination of the proceeding. The matter must be considered de novo
on this appeal. A de novo consideration does not require that any error
be identified in the decision under appeal (City Centre Aviation Ltd. v.
Jazz Air LP, 2007 FCA 304 at para. 13). This Court must approach the
matter afresh based on the Record before the Prothonotary.
[3]
This
action, as pleaded in the Amended Statement of Claim dated September 6, 2007,
seeks to style itself as a class action brought on behalf of the named
Plaintiffs on their own behalf and “on behalf of all Ministers and
practitioners of the Assembly of the Church of the Universe in Canada who have
been and will be affected by actions, conduct and potential future actions and
conduct of the Defendants” for damages. The damages claimed are itemized as
various sums for alleged breaches of the Charter of Rights and Freedoms,
for misfeasance of public office, punitive and exemplary damages, and special
damages, together with interest, costs and further and other relief.
[4]
The action
does not seek to challenge the constitutional validity of the Charter or
any Act or Regulation.
[5]
The
Defendants moved to have the Amended Statement of Claim struck out without
leave to amend on the basis that it fails to disclose a reasonable course of
action, that it is frivolous and vexatious and that the Federal Court lacked
jurisdiction to entertain common-law tort claim against individuals. The
motion was brought before any motion for certification of the action as a class
action was taken. No such certification has yet been made. No defence has
been filed by any Defendant.
[6]
The
Prothonotary, in a decision cited as 2008 FC 1161, concluded that the action
was based on a fundamentally faulty premise, namely that section 4 of the Controlled
Drugs and Substances Act, S.C. 1996, c. 19 (CDSA) is of no constitutional
force and effect. That premise, the Prothonotary held, was fundamentally flawed.
He concluded that the claim disclosed no reasonable cause of action and was
bereft of any chance of success. The Amended Statement of Claim was struck out
without leave to amend. The Prothonotary wrote at paragraphs 26 to 28:
26 In this case, the Plaintiffs'
amended statement of claim is based upon a fundamentally faulty premise: that
section 4 of the CDSA is of no constitutional force and effect. However, none
of the cases cited by the Plaintiffs support their idyllic view of the laws
governing the personal possession and use of marijuana in Canada. It may
very well be that, on the ethereal plane, the possession and consumption of
marijuana is a divine experience. However, at the present moment, the laws
promulgated by the Parliament of Canada deny the Plaintiffs the sacramental satisfaction they
seek.
27 Given this fundamental flaw, it
must be concluded that the Plaintiffs claim discloses no reasonable cause of
action (see generally Canada v. Roitman, [2006] F.C.J. No. 1177, 2006 FCA 266) and is bereft of any chance of success.
28 In coming to the conclusion that
this claim should be struck, I have considered all of the allegations in the
amended statement of claim in light of the teachings of the Supreme Court of
Canada in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. Applying the test in Hunt v. Carey it is plain and obvious that this claim
cannot succeed. The claim must therefore be struck.
[7]
The
Plaintiffs are herein moving to set aside the Prothonotary’s Order on a large
number of grounds, essentially that he misunderstood or misapplied the law.
The Defendants assert that the Prothonotary was correct and, in the alternative
state that there are other grounds for striking out the action raised before
the Prothonotary but not determined by him namely that the pleading fails to
state sufficient material facts to sustain an action in misfeasance in public
office, or any other cause of action, and that the action is a blatant
collateral attack on convictions entered against the Plaintiffs in the Ontario
Courts, hence an abuse of process.
ISSUES
[8]
I had some
difficulty in discussions with Counsel for the Plaintiffs at the hearing in
determining what were the real issues both before the Prothonotary and now
before me.
[9]
The
Prothonotary at paragraph 9 of his Reasons stated that the parties were in
agreement that there was a single question to be answered namely:
“In light of the existing
jurisprudence, does section 4(1) of the CDSA remain an enforceable law in Canada?”
[10]
Counsel
for the Plaintiffs, who also argued the matter before the Prothonotary, said
that there must have been a misunderstanding. Counsel says that the issues
then and now are in respect of whether the Amended Statement of Claim should be
struck on the basis whether:
1. During the “class period”
(defined in paragraph 6 of the Amended Statement of Claim to be from on or
about May 14, 1997 to the present time) there was no law prohibiting the use of
cannabis;
2. The Amended Statement of Claim
pleads a cause of action based on a breach of religious freedom as guaranteed
by the Charter, by the Respondents?
[11]
Subsequently
in argument, Counsel for the Plaintiffs argued that the claim period as defined
by paragraph 6 in the Statement of Claim should be amended by reducing it to a
period between July 31, 2001 and October 7, 2003 having regard to decisions of
the Ontario Court of Appeal in R. v. Parker, (2000), 146 CCC (3d) 193
and Hitzig v. Canada, (2003), 231 D.L.R. (4th) 104.
[12]
Counsel
for the Defendants argued that the Prothonotary got it right. Counsel also said
that the Defendants argued a second and overarching ground for dismissal namely
abuse of process, which ground was not dealt with by the Prothonotary.
[13]
A further
issue was raised by Counsel for the Plaintiffs, namely even if the Amended
Statement of Claim as it currently stands in is struck out, the Prothonotary
ought to have given leave to amend.
[14]
The
Plaintiffs, in their written Memorandum, but not in oral argument, raised the
issue as to whether the Prothonotary had jurisdiction to determine the matter
at all. In their written Memorandum paragraph 26 the Plaintiffs state that
they will not dwell on this point. I take it therefore that this is not an
issue that requires determination here since I am considering the matter de novo.
[15]
Given the
somewhat shifting ground upon which Plaintiffs Counsel has endeavoured to
establish the issues for determination, I formulate the issues now before this
Court, on a de novo basis to be the following:
1. Should the claim as pleaded in
the Amended Statement of Claim be struck out as an abuse of process?
2. Should the claim as pleaded in
the Amended Statement of Claim be struck out for failure to disclose a
reasonable cause of action?
3. In the event that the claim as
pleaded is struck out, should the Plaintiffs be given leave to amend?
Issue 1 – Abuse of Process
[16]
Rules 221
(1)(c) and (f) of this Court provide that the Court may at time strike out an
action on the ground that it is scandalous, frivolous or vexatious or is
otherwise an abuse of the process of the Court.
[17]
The
Supreme Court of Canada in Toronto (City) v. C.U.P.E. Local 79,
[2003] 3 S.C.R. 77, 2003 SCC 63 has stated that the doctrine of abuse of
process engages the inherent power of the court to prevent misuse of its
procedure in a way that would bring the administration of justice into
disrepute even where the strict requirements of issue estoppel are not met.
Arbour J. for the majority wrote at paragraph 37:
37 In the context that
interests us here, the doctrine of abuse of process engages "the inherent
power of the court to prevent the misuse of its procedure, in a way that would
... bring the administration of justice into disrepute" (Canam Enterprises
Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge
J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the
following terms at paras. 55-56:
The
doctrine of abuse of process engages the inherent power of the court to prevent
the misuse of its procedure, in a way that would be manifestly unfair to a party
to the litigation before it or would in some other way bring the administration
of justice into disrepute. It is a flexible doctrine unencumbered by the
specific requirements of concepts such as issue estoppel. See House of
Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R.
990 (C.A.).
One
circumstance in which abuse of process has been applied is where the litigation
before the court is found to be in essence an attempt to relitigate a claim
which the court has already determined. [Emphasis
added.]
As Goudge
J.A.'s comments indicate, Canadian courts have applied the doctrine of abuse of
process to preclude relitigation in circumstances where the strict requirements
of issue estoppel (typically the privity/mutuality requirements) are not met,
but where allowing the litigation to proceed would nonetheless violate such
principles as judicial economy, consistency, finality and the integrity of the
administration of justice. (See, for example, Franco v. White (2001), 53 O.R. (3d) 391 (C.A.); Bomac Construction Ltd.
v. Stevenson, [1986] 5 W.W.R. 21 (Sask. C.A.); and Bjarnarson v.
Government of Manitoba (1987), 38 D.L.R. (4th) 32 (Man. Q.B.), aff'd (1987), 21 C.P.C. (2d) 302 (Man. C.A.).) This has resulted
in some criticism, on the ground that the doctrine of abuse of process by
relitigation is in effect non-mutual issue estoppel by another name without the
important qualifications recognized by the American courts as part and parcel
of the general doctrine of non-mutual issue estoppel (Watson, supra, at pp.
624-25).
[18]
As
a companion principle to abuse of process is that of preclusion of a collateral
attack on another judgment of a court of competent jurisdiction. Binnie J. for
the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc.,
[2001] 2 S.C.R. 460 wrote at paragraph 20:
20 The law has developed a
number of techniques to prevent abuse of the decision-making process. One of
the oldest is the doctrine estoppel per rem judicatem with its roots in Roman
law, the idea that a dispute once judged with finality is not subject to
relitigation: Farwell v. The Queen (1894), 22 S.C.R. 553, at p. 558; Angle v. Minister of
National Revenue, [1975] 2 S.C.R. 248, at pp. 267-68. The bar extends both
to the cause of action thus adjudicated (variously referred to as claim or
cause of action or action estoppel), as well as precluding relitigation of the
constituent issues or material facts necessarily embraced therein (usually
called issue estoppel): G. S. Holmested and G. D. Watson, Ontario Civil
Procedure (loose-leaf), vol. 3 Supp., at 21 s. 17 et seq. Another aspect of the
judicial policy favouring finality is the rule against collateral attack, i.e.,
that a judicial order pronounced by a court of competent jurisdiction should
not be brought into question in subsequent proceedings except those provided by
law for the express purpose of attacking it: Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. Sarson, [1996] 2 S.C.R. 223.
[19]
Turning to
the Amended Statement of Claim, it is styled as a proposed class action; it has
not yet been certified as such. The motion to strike was brought before a certification
motion has been heard. The claim is for damages, no attack on
constitutionality has been made. The Plaintiffs style themselves as members of
a church, Ethier and Pearson claim to be ordained ministers, Hoad claims to be
a parishioner (paragraph 2). The class which the Plaintiffs claim to represent
as defined (paragraphs 19 to 22) is said to be all Ministers, parishioners and
adherents of the Church who hold cannabis as a sacrament, the size of the class
is undetermined. Paragraph 6 defines a “class period” said to be from on or
about May 14, 1997 to the present time. The common issue of law (paragraphs 23
to 23.4) is said to be entitlement to equal treatment and benefit of the law in
the use of cannabis for sacramental purposes. The common issues of fact
(paragraphs 24 to 26) are set out in paragraph 24.4 as whether each class
member has been subjected to rights guaranteed by the Charter and
whether the rights have been violated. No time period whether “class period”
or otherwise is specified. No particular rights or violations are identified.
Paragraphs 30 and 31 state generally that some members of the proposed class
have been arrested, prosecuted and detained for possession of cannabis and
promise that particulars of loss and damage will be provided before trial.
[20]
Paragraphs
32 to 45 of the Amended Statement of Claim allege broadly that the Defendants
have engaged in deliberate acts and conduct. Those acts are generally stated
to be the arrest and laying of charges pertaining to cannabis.
[21]
Paragraph
43 alleges a conspiracy between the Defendants after July 31, 2001 and continuing. Paragraphs
46 sets out a general listing of provisions of the Charter, Federal
Court Act and Rules, Crown Liability Act, and CDSA.
[22]
With
respect to the Plaintiff Pearson, paragraphs 48 to 52 make allegations without
giving particulars. Pearson claims a sincere belief in the use of cannabis as
a sacrament and alleges that during the “class period” police officers
subjected “his congregation” sometimes called “parishioners” to search and
seizure and that he was required to attend criminal courts to “assist
parishioners”.
[23]
Paragraphs
53 to 63 purport to identify facts pertaining to the Plaintiff Ethier. It is
said that since 1998, the Defendants or their agents have arrested Ethier and
detained him on eight separate occasions in respect of cannabis related
matters. He claims that, as a result, he is apprehensive of assembling with
other Church members for religious purposes including the possession of
cannabis.
[24]
Paragraphs
64 to 75 address the circumstances of the Plaintiff Hoad. He claims that since
1998 he has been arrested four times on cannabis related charges as a result of
which he fears assembling with other members of the Church for religious
purposes.
[25]
This is a
brief summary of the Amended Statement of Claim. I have not intended to refer
to every part of it, rather, I have endeavoured to set out a broad outline for
the purposes of these Reasons.
[26]
The
individual Plaintiffs are no strangers to the Court system. Each of Ethier and
Hoad admit in the Amended Statement of Claim to have been arrested on several
occasions on cannabis related charges. The evidence before this Court on this
motion demonstrates the numerous occasions that Ethier alone or Ethier together
with Hoad have been before the Courts on cannabis related criminal charges and
that a number of proceedings and appeals have been taken in such proceedings.
Ethier raised issues in the Ontario Court such as violation of “fundamental
principles of justice” and that the “essential elements” referring to the CDSA were
“unconstitutional and of no force and effect”. He lost at the trial level. The
Ontario Court of Appeal by Order dated November 18, 2003 dismissed his appeal.
The Plaintiff Hoad was also charged in the matter but does not appear to have
taken part in the appeal since the Trial Judge stayed his matter until the
disposition of Ethier’s appeal (Karom J. May 22, 2003, Court File 030313,
transcript page 16).
[27]
The
Plaintiff Pearson has been active in the Quebec Courts and the Federal Courts
as well as the Supreme Court of Canada. The Supreme Court of Canada dismissed
his appeal from a conviction in the Quebec Courts of trafficking in narcotics
([1998] 3 S.C.R. 320). In the Federal Court, Pearson brought an action for
wilful abuse of process and malicious violation of his rights under the Charter.
Richard A.C.J. of this Court, as he then was, stayed that action pending final
determination of proceedings in the Quebec Courts ([1999] F.C.J. No. 1298).
When such proceedings ended the stay was lifted by Teitlebaum J. ([1994] F.C.J.
No. 1991). The matter ultimately went to trial before de Montigny J. of this
Court who dismissed the action with written reasons cited as 2006 FC 931. That
decision was affirmed by a unanimous decision of the Federal Court of Appeal,
2007 FCA 380.
[28]
Justice de
Montigny began his Reasons by setting out the nature of Pearson’s claim, which
was for various kinds of damages for “known and wilful abuse of process and
malicious violation of (Pearson’s) Charter rights by the Crown and her
officers”. That Judge spoke of the complex, extraordinary and chequered history
of Court proceeding that were involved. He wrote at paragraphs 1, 2 and 3:
1 On February 24,
1999, the plaintiff commenced an action in this Court against
the defendant, based on the actions of her servants. Mr. Pearson is seeking
compensatory damages, general damages, exemplary damages and punitive damages
for a total of $13 000 000.00. His claim rests on the alleged known and willful
abuse of process and malicious violations of the plaintiff's Charter rights by
the Crown and her officers, servants and agents in his criminal prosecution in
the Quebec courts.
2 This case has had a
very complex history, both in the courts of criminal jurisdiction and in this
Court. A number of my colleagues, both judges and prothonotaries, have been
called upon to adjudicate on various motions filed by the plaintiff and the
defendant at various stages of this proceeding. Indeed, Justice Hansen
commented in her reasons for an order dismissing a motion by the plaintiff that
the case had become procedurally complex, "a fact to which the file's
fifty six pages of recorded entries attests"; that was on June 21, 2001.
3 Not only is this file
complex and extraordinary by reason of its procedurally chequered history, but
it also raises substantive issues that are still somewhat uncharted and
contentious, from a strictly legal point of view. They have to do with the
tangled web of civil and criminal law, with the elusive concepts of civil
remedies and time limitations for Charter violations, and to a certain extent
with the very jurisdiction of this Court.
[29]
In
concluding his Reasons for dismissal of the action, de Montigny J. wrote at
paragraph 88:
88 I am therefore bound to
reject Mr. Pearson's claim, even if I were to assume that it is not prescribed
and that I am not precluded to look into it as a result of the various
decisions made by the courts of criminal jurisdiction. As forceful and
persuasive as he was in his honestly held belief that he has been wronged by
the Crown in the conduct of his criminal trial, Mr. Pearson has failed to
establish that he is entitled to an award of damages. I am unable to conclude
that his constitutional rights have been infringed, and that the
behaviour of the Crown agents involved in the investigation or in the conduct
of his trial was in any way reprehensible, at least to the extent required to
call for damages. If, through no fault of the Crown, Mr. Pearson was impaired
in his ability to make full answer and defence, he was granted an appropriate
and just remedy in obtaining a new trial limited to the issue of entrapment.
The Court of Appeal of Quebec did not see fit to award
damages to Mr. Pearson, and he cannot now come to this court and ask for what
he was denied in the courts of competent jurisdiction. If the plaintiff feels
strongly that his defence was jeopardized as a consequence of his ignorance of
key documentary evidence, the proper recourse is to try and obtain a reopening
of his trial, not to challenge (albeit obliquely) the decisions of the Quebec
Superior Court and Court of Appeal in this Court.
[30]
The
Federal Court of Appeal per Linden JA. unanimously dismissed the
appeal. He wrote at paragraph 6:
6 While it is clear that
a violation of the Charter may sometimes ground an award of civil damages
pursuant to section 24, this is not automatic. The jurisprudence is clear that
to recover damages something more than a technical violation of the Charter is
required. It is necessary to demonstrate that there has been conduct that was
done in bad faith, clearly wrong or which amounted to an abuse of power. Merely
acting in an unconstitutional way, if it is done in good faith and without abuse
of power, does not lead to civil liability, (See Mackin v. New
Brunswick; Rice v. New Brunswick, [2002] 1 S.C.R. 405, per Gonthier J. at paras. 78 and 79)
even though there may be other legal consequences. ((R v. Carosella), [1997] 1 S.C.R. 80.)
[31]
With this
history, the present action taken by the Plaintiffs Pearson, Ethier and Hoad
can be seen as yet another endeavour to do what they have failed to do in
earlier criminal and civil proceedings namely to persuade a Court that the possession
and use, by them and their colleagues of cannabis for what they characterise as
“sacramental purposes” is lawful and protected by the Charter. To cast
the present action as a proposed class action and to plead that there are
others, “parishioners” who have suffered like abuses is simply an endeavour by
them to relitigate what has been lost by them many times or, put another way,
to attack collaterally decisions of this and other superior courts and
appellate courts of this country. These are the same issues simply packaged
differently. To allow such a claim to be made would bring the administration of
justice into disrepute. The claim will be struck out as an abuse of court.
Issue 2 – Disclosure of a Reasonable
Course of Action
[32]
Prothonotary
Aalto dismissed the action on the basis that the premise of the action was
based on an incorrect premise namely whether 4(1) of the CDSA remains an
enforceable law of Canada. I agree with his decision
on this issue and for the Reasons that he gave. From discussions with each
Counsel for the parties at the hearing, I understand that they accept this
decision as well subject to the submissions of Plaintiffs’ Counsel as set out
next.
[33]
Counsel
for the Plaintiffs at the hearing sought leave to amend the claim so as to be
restricted to a time period in respect of which wrongful actions are said to
have been committed by the Defendants, defined as the claim period, to that
from July 31, 2001 to October 7, 2003. This period is established by
Plaintiffs’ Counsel through a reading of the decisions of the Ontario Court of
Appeal in Parker, supra and Hitzig, supra and the
decision of Lederman J. of the Ontario Superior Court in Hitzig (2003),
171 CCC (3d) 18 that preceded the Court of Appeal decision.
[34]
Essentially,
the time period is established by Plaintiffs’ Counsel on the basis that in Parker
the Ontario Court of Appeal declared that the prohibition on the possession of
marihuana in the CDSA was of no force and effect however the declaration of
invalidity would be suspended for one year, and during that period the law
remained in full force and effect. Rosenberg
JA. for the Court said at paragraph 11:
[11]
Accordingly, I would uphold the trial judge's decision to stay the charges
against Parker and I would dismiss that part of the Crown's appeal. However, I
disagree with Sheppard J.'s remedy of reading in a medical use exemption into
the legislation. I agree with the Crown that this is a matter for Parliament.
Accordingly, I would declare the prohibition on the possession of marijuana in
the Controlled Drugs and Substances Act to be of no force and effect. However,
since this would leave a gap in the regulatory scheme until Parliament could
amend the legislation to comply with the Charter, I would suspend the
declaration of invalidity for a year. During this period, the marijuana law
remains in full force and effect. Parker, however, cannot be deprived of his
rights during this year and therefore he is entitled to a personal exemption
from the possession offence under the Controlled Drugs and Substances Act for
possessing marijuana for his medical needs. Since the Narcotic Control Act has
already been repealed by Parliament, there is no need to hold it
unconstitutional. If necessary, I would have found that Parker was entitled to
a personal exemption from the cultivation offence for his medical needs.
[35]
That
decision was dated July
31, 2001.
[36]
One day
before the expiry of the one year period, the federal government enacted
provisions of the Marihuana Medical Access Regulations SOR/2001-227
(MMAR) which were allegedly curative of the deficiencies found by the Ontario
Court of Appeal in Parker.
[37]
A new
challenged to the CDSA and the new MMRA provisions were launched in Hitzig.
Justice Lederman of the Ontario Superior Court in his decision dated January 9,
2003, declared that the relevant portions of the CDSA and MMAR were
unconstitutional but suspended the application of his ruling for a period of
six months. That decision was appealed; however the six month period came and
went with no amendments to the MMAR. The Crown sought an extension of that six
months period but that request was denied. After the expiration of the six
month period, on October 7, 2003, the Ontario Court of appeal in Hitzig
upheld Lederman J.’s decision however a remedy was provided in that Court’s
decision that would maintain the constitutionality of section 4 of the CDSA.
At paragraph 2 of its unanimous decision the Court wrote:
2 These
applications concern the constitutionality of the Marihuana Medical Access
Regulations, S.O.R./2001-227, made by the Governor in Council on 14 June 2001
pursuant to subsection 55(1) of Controlled Drugs and Substances Act, S.C. 1996,
c. 19. More particularly, at issue is whether these regulations, in conjunction
with prohibitions specified in the Controlled Drugs and Substances Act [CDSA],
violate some or all of the applicants' rights to liberty and security of the
person as guaranteed by s. 7 of 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 [Charter]. These applications follow very much in the
footsteps of the Ontario Court of Appeal's 31 July 2000 decision in R. v.
Parker (2000), 49 O.R. (3d) 481 [Parker]. Indeed, the accused in
the Parker case is one of the applicants presently before this court.
[38]
At
paragraph 170 of Hitzig, the Ontario Court of Appeal affirmed the
validity of section 4 of the CDSA:
170 This section permits
legislative provisions which would otherwise breach Charter rights to be found
constitutional. As when considering the principles of fundamental justice, the
inquiry at this stage involves some consideration of whether the "law
strikes the right balance between the accused's interests and the interests of
society." (Cunningham v. Canada, [1993] 2 S.C.R. 143 at 152). But the justification
analysis under s. 1, as noted above, goes beyond the internal limitations
proscribed by the principles of fundamental justice and incorporates broader
values, namely those of a free and democratic society. (See Mills, supra).
Section 1 analysis thus involves two parts.
[39]
In a
companion case proceeding at the same time as Hitzig, R. v. J.P.
(2003), 67 O.R. (3d) 321 the Ontario Court of Appeal in a unanimous decision
confirmed that section 4 was in force and effect. It wrote at paragraphs 31 to
33:
[31] The
court in Parker, supra, declared that the marihuana prohibition in s. 4 was
inconsistent with the Charter and consequently of no force or effect absent an
adequate medical exemption. In making the declaration, the court did not and
could not repeal or otherwise alter the terms of the statute. The court could
only declare the constitutionally offensive part of the legislation to be of no
force or effect.
[32]
By bringing forward the MMAR, the Government altered the scope of the
possession prohibition in s. 4 of the CDSA. After the MMAR came into force, the
question therefore became whether the prohibition against possession of
marihuana as modified by the MMAR was constitutional. If it was, then the
possession prohibition was in force. If the MMAR did not solve the
constitutional problem, then the possession prohibition, even as modified by
the MMAR, was of no force or effect.
[33]
There was no need to amend or re-enact s. 4 of the CDSA to address the
constitutional problem in Parker. That problem arose from the absence of a
constitutionally adequate medical exemption. As our order in Hitzig
demonstrates, the prohibition against possession of marihuana in s. 4 is in
force when there is a constitutionally acceptable medical exemption in force.
[40]
Applying
this legal history to the circumstances of this case, the Plaintiffs argue that
an amendment could be made to the present Amended Statement of Claim to
restrict the “claim date” to the period between the Ontario Court of Appeal
decision in Parker and Hitzig, July 31, 2001 to October 7, 2003. They
argue that during that period the status of the relevant provisions of the CDSA
were in doubt. That period could even be reduced further to the end of the six
month delay provided for by Lederman J. to October 7, 2003, that is, from July 9, 2003
to October 7,
2003.
[41]
The
Defendants’ Counsel argues that simply to limit the time period in this way is
insufficient. Counsel argues that a law is presumed to be valid and ultimately
the Ontario Court of Appeal in Hitzig and J.P. held that it was.
Government actions taken pursuant to legislation, Counsel argued, even legislation
subsequently held to be unconstitutional, cannot sustain an action for damages
citing Guimond v. Quebec (Attorney General) [1996] 3 S.C.R. 347.
[42]
Further,
Defendants’ Counsel argues that a claim for misfeasance in a public office must
be based on pleading and subsequently proof of two elements, first deliberate
and unlawful conduct and, second, awareness that the conduct is unlawful and
likely to injure. Iacobucci J. for the Supreme Court of Canada in Odhavji
Estate v. Woodhouse, [2003] 3 S.C.R. 263 wrote at paragraph 32:
32 To summarize, I am of
the opinion that the tort of misfeasance in a public office is an intentional
tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct
in the exercise of public functions; and (ii) awareness that the conduct is
unlawful and likely to injure the plaintiff. Alongside deliberate unlawful
conduct and the requisite knowledge, a plaintiff must also prove the other
requirements common to all torts. More specifically, [page287] the plaintiff
must prove that the tortious conduct was the legal cause of his or her
injuries, and that the injuries suffered are compensable in tort law.
[43]
Rule
181(1)(b) of this Court requires that where a plea such as that of malice is
made, that plea must be particularized.
[44]
There is
no plea let alone a particularized plea, that would satisfy the criteria
established in Odhavji Estate supra.
[45]
I find
therefore, that the Amended Statement of Claim as it stands, fails to set out a
reasonable cause of action and must be struck out.
Issue 3 – Leave to Amend
[46]
Rule 221
of this Court states that the Court may strike out a pleading “with or without
leave to amend”. The Prothonotary denied leave to amend.
[47]
Generally
speaking, if an amendment can cure a defect in a pleading the Court is willing
to allow such an amendment, subject to consideration of matters such as prejudice
and costs. If the striking out of the claim was based on Issue 2 above,
pleading a reasonable cause of action, I would allow amendments directed to a
more limited time period and setting out, if there is a proper basis for it
that the Defendants conduct fell within the Odhavji Estate criteria,
with full particulars.
[48]
However, I
have already struck out the claim on the first ground, abuse of process. This
is not a matter that can be cured by amendment.
[49]
Therefore,
I will not grant leave to amend.
COSTS
[50]
Ordinarily
costs would follow the event, that is, the Defendants, being successful, would
be awarded costs. This is what the Prothonotary did.
[51]
The
Plaintiffs argue, however, that this proceeding is to be considered as a class
action and, as such, no costs should be awarded against the Plaintiffs. A
one-way rule applies, Plaintiffs’ Counsel argues, such that the Plaintiffs may
be awarded costs, but not costs against them. I do not agree.
[52]
This is a
motion brought before the action has been certified as a class action and is
dispositive of the action. The class action rules and concepts such as one-way
costs, even if applicable at a later stage, are not yet engaged.
[53]
The
Defendants are entitled to their costs of the motion.
ORDER
For the Reasons given:
THIS COURT ORDERS that:
1.
The motion
by way of an appeal from the Order of the Prothonotary dated October 15, 2008,
is dismissed;
2.
The
Amended Statement of Claim dated September 6, 2007 herein is struck out without leave to amend;
3.
Costs are
awarded to the Defendants.
"Roger
T. Hughes"
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