Date:
20130417
Docket:
T-2013-12
Citation:
2013 FC 389
Ottawa, Ontario,
April 17, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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ERNEST MEIGS,
GREGORY BLAIR BEAUDOIN,
DAX MACK, IAN BUTZ, HARLEY LAY
SHANE HINTON, MICHAEL MITCHELL
AND LEON WALCHUK
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Plaintiffs
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and
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HER MAJESTY THE QUEEN
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Defendant
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REASONS FOR
ORDER AND ORDER
[1]
This
is an action brought against Her Majesty the Queen in Right of Canada under the
Crown Liability and Proceedings Act, RSC, 1985, c C-50 and sections 7,
8, 12, and 15(1) of the Canadian Charter of Rights and Freedoms, for
damages arising from various personal harms allegedly suffered by eight
plaintiffs while they were inmates at the Grande Cache Institution in Alberta.
[2]
The
causes of action generally include the Correctional Service of Canada [CSC]’s
alleged failure to ensure the plaintiffs’ rights with regards to privileged
legal correspondence and access to legal research and/or counsel, as well as a
breach of the duty of care in exercising the mandate, duties and discretion
under the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA]
and the Corrections and Conditional Release Regulations, SOR/92-620 [CCRR].
They also rely on the Commissioner’s Directives 084 entitled “Inmates’ Access
to Legal Assistance and the Police” and 085 entitled “Correspondence and
Telephone Communication.”
[3]
The
plaintiffs, representing themselves, seek $50,000.00 in damages for pain and
suffering, as well as costs of their action, in a statement of claim dated
October 18, 2012.
[4]
On
December 7, 2012, the defendant filed a statement of defence, arguing that the
claim should be dismissed as it fails to disclose a cause of action, and that,
alternatively, the Crown or any of its servants acted at all times in a
prudent, reasonable and lawful manner giving full protection to the plaintiffs’
Charter rights. In a further alternative, the defendant denied that the
plaintiffs suffered any loss or injuries and argued that the plaintiffs failed
to mitigate their damages. The defendant also submits that the Court should
decline to exercise its jurisdiction because the plaintiffs have not exhausted
the internal grievance procedure that is available to them.
[5]
The
defendant seeks an Order under Rule 221(1)(a) or 221(1)(f) of the Federal
Courts Rules, SOR/98-106, striking the statement of claim, without leave to
amend, for failing to disclose a reasonable cause of action and being an abuse
of process.
[6]
The
stringent test to strike a statement of claim pursuant to Rule 221(1)(a) is
whether, taking the facts as pleaded to be true, it is “plain and obvious” that
the claim discloses no reasonable cause of action. The impugned statement of
claim should be read as generously as possible to accommodate any inadequacies
in the form of the allegations which are a result of mere drafting deficiencies
(R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17; Operation Dismantle Inc v Canada,
[1985] 1 S.C.R. 441 at 455; Jones v Kemball, 2012 FC 27 at para 4).
[7]
However,
it is also clear from Federal Court Rules 174, 181 and 182, as well as the
relevant jurisprudence concerning those Rules, that a plaintiff must plead
concise material facts in support of each and every cause of action and cannot
simply plead bare assertions, or conclusions of law without the requisite
factual underpinnings (Brazeau v Canada (Attorney General), 2012 FC 648
at para 15; Sauve v Canada, 2011 FC 1074 at para 21).
[8]
Moreover,
absent explicit liability under a statute, breach of a statutory duty does not
give rise to a claim for damages. As stated by the Supreme Court of Canada in Canada (Attorney General) v TeleZone Inc, 2010 SCC 62 [Telezone] at
paras 28-29:
Tort liability, of course, is based on fault, not
invalidity… breach of a statute is neither necessary nor is it sufficient to
ground a private cause of action.
Nor is a breach of statutory power necessarily
sufficient…
[9]
Finally,
the plaintiffs’ initial obligation to properly plead concise material facts to
support a cause of action is not relieved by stating that they may, in future,
provide additional facts, particulars or amendments to further support the
claim.
[10]
The
plaintiffs’ allegations may be broken down into:
a) misfeasance
in a public office;
b) breach
of sections 7, 8, 12 and 15(1) of the Charter; and
c) breach
of sections 126(1) and 356 of the Criminal Code, RSC, 1985, c C-46.
[11]
They
seek aggravated and exemplary damages.
[12]
The
plaintiffs’ claims of wrongdoing are made against the Attorney General of
Canada, the Warden of Grand Cache Institution, the “V&C staff”, including a
Mrs. Plante, the Regional Commissioner and the Commissioner of CSC.
I. Misfeasance in
Public Office
[13]
As
in both the cases of Odhavji Estate v Woodhouse, 2003 SCC 69 [Odhavji]
and Lewis v Canada, 2012 FC 1514 [Lewis], I must determine whether
the plaintiffs’ statement of claim pleads each element of the alleged tort of
misfeasance in public office:
a) The
public officer must have engaged in deliberate and unlawful conduct in his or
her capacity as public officer;
b) The
public officer must have been aware both that his or her conduct was unlawful
and that it was likely to harm the plaintiff; and
c) There
must be an element of bad faith or dishonesty by the public officer and
knowledge of harm alone is insufficient to conclude that a public officer acted
in bad faith or dishonestly.
Odhavji,
above, at paras 23, 24 and 28
[14]
With
respect to determining “bad faith” or “dishonesty”, the comments of Justice
David W. Stratas in Merchant Law Group v Canada (Revenue Agency), 2010
FCA 184 at paras 34-35, are helpful:
I agree with the Federal Court's observation (at
paragraph 26) that paragraph 12 of the amended statement of claim
"contains a set of conclusions, but does not provide any material facts
for the conclusions." When pleading bad faith or abuse of power, it is not
enough to assert, baldly, conclusory phrases such as "deliberately or
negligently," "callous disregard," or "by fraud and theft
did steal": Zundel v Canada, 2005 FC 1612, 144 ACWS (3d) 635; Vojic
v Canada (MNR), [1987] 2 CTC 203, 87 DTC 5384 (FCA). "The bare
assertion of a conclusion upon which the court is called upon to pronounce is
not an allegation of material fact": Canadian Olympic Association v USA
Hockey, Inc (1997), 74 CPR (3d) 348, 72 ACWS (3d) 346 (FCTD). Making bald,
conclusory allegations without any evidentiary foundation is an abuse of
process: AstraZeneca Canada Inc v Novopharm Limited, 2010 FCA 112 at
paragraph 5. If the requirement of pleading material facts did not exist in
Rule 174 or if courts did not enforce it according to its terms, parties would
be able to make the broadest, most sweeping allegations without evidence and
embark upon a fishing expedition. As this Court has said, "an action at
law is not a fishing expedition and a plaintiff who starts proceedings simply in
the hope that something will turn up abuses the court's process": Kastner
v Painblanc (1994), 58 CPR (3d) 502, 176 NR 68 at paragraph 4 (FCA).
To this, I would add that the tort of misfeasance in
public office requires a particular state of mind of a public officer in
carrying out the impunged action, i.e., deliberate conduct which the public
officer knows to be inconsistent with the obligations of his or her office: Odhavji
Estate v Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69 at paragraph 28. For this
tort, particularization of the allegations is mandatory. Rule 181 specifically
requires particularization of allegations of "breach of trust,"
"wilful default," "state of mind of a person,"
"malice" or "fraudulent intention."
[15]
Justice
Marie-Josée Bédard’s findings in Lewis, above, at paras 23-24 are
applicable to the plaintiffs’ pleading:
The plaintiff
essentially claims in his written representations that it was the duty of CSC's
representatives to know the Act, the Regulations and the Commissioner's
Directives and that, by not abiding by them, they acted intentionally. The
plaintiff claims that CSC'S representatives cannot plead ignorance of the law.
With respect, I am of the view that it is not sufficient to allege that because
it was the responsibility of CSC's representatives to deal with the applicant's
grievance in accordance with the Act, Regulations and Directives, there is an
inference that, in violating them, they acted deliberately and in bad faith and
they knew that their conduct was unlawful and likely to harm the plaintiff. In
order to proceed to trial, those kinds of allegations must be supported by
facts that, if proven, would allow the Court to concluded that CSC's
representatives acted in a deliberate manner and knew that their conduct was unlawful
and likely to injure the plaintiff. The Statement of Claim, as filed, is
insufficient to support such conclusions.
Finally, while Rule
181(2) provides a party the opportunity, on motion, to request that another
party be ordered to provide "further and better particulars of any
allegation in its pleading", this possibility does not exempt the
plaintiff from his initial obligation to file a Statement of Claim that
contains "a concise statement of the material facts on which [he]
relies" (Rule 174) and to provide "particulars of every
allegation" (Rule 181(1)), especially when bad faith is alleged.
[16]
The
plaintiffs’ claim in respect of misfeasance in public office should be struck,
as disclosing no material facts to support their claim.
B. Charter of Rights
[17]
The
plaintiffs’ claim for damages under section 24(1) of the Charter also
must fail, for lack of any material facts to support the plea, in terms of each
of the alleged breaches of section 7, 8, 12 and 15(1) of the Charter.
[18]
Taken
individually or collectively, the allegations of Charter violations are
so vague and deficient that the plaintiffs’ causes of action cannot be
maintained as pleaded. They have:
a) failed
to establish the elements necessary for an award of damages for a Charter
breach (Vancouver (City) v Ward, 2010 SCC 27 at para 4);
b) failed
to plead the material facts necessary to support a section 7 breach, in failing
to identify the principles of fundamental justice alleged to have been breached
(Prentice v Canada (Royal Canadian Mounted Police), 2005 FCA 395 at para
45);
c) failed
to plead material facts to support a section 12 breach. The standard to be
applied in determining whether treatment or punishment is cruel and unusual
within the meaning of section 12 of the Charter is relatively high. As stated
in is Piche v Canada (Solicitor General), [1984] FCJ No 1008, aff’d [1989]
FCJ No 204 (CA), the court should determine “whether the treatment or
punishment is so excessive as to outrage standards of decency and surpass all
rational bounds of treatment or punishment.”
d) failed
to establish material facts explaining why and to what extent they allege a
reasonable expectation of privacy under section 8 of the Charter. The
penitentiary context, by its very nature, creates a diminished expectation of
privacy (Weatherall v Canada (Attorney General), [1993] 2 S.C.R. 872) and
prisoners do not have an unfettered right to unopened mail (Henry v Canada), [1987] FCJ No 307; Canada v Solosky, [1980] 1 S.C.R. 821); and
e) there
are no facts in support of any discrimination that falls within section 15(1)
of the Charter. To prove a violation of equality rights under section 15
of the Charter, a claimant must demonstrate that i) the law or
government action treated the claimant differently than others, by purpose or
effect; ii) the differential treatment was based on an enumerated or analogous
ground of discrimination; and iii) the differential treatment was
discriminatory in a substantive sense, considering such factors as pre-existing
group disadvantage and the nature of the interest affected: Andrews v Law
Society of British Columbia, [1989] 1 S.C.R. 143.
[19]
The
plaintiffs have failed to properly plead material facts in support of any of
these alleged Charter breaches.
III. Breach of the
Criminal Code
[20]
Similarly,
the plaintiffs’ claim for breaches of sections of the Criminal Code
fails for lack of material facts to support the claim.
IV. Damages claim
[21]
Counsel
for the defendant argues that the claim does not disclose a reasonable private
clause of action for damages. It is argued that, if anything, the plaintiffs’
claim is a veiled application for judicial review, and that the plaintiffs
should be required to exhaust the statutory grievance procedure pursuant to
sections 90 and 91 of the CCRA and sections 74 to 82 of the CCRR. The Telezone
case, above, at paragraph 78 is cited:
To this discussion, I would add a minor caveat.
There is always a residual discretion in the inherent jurisdiction of the
provincial superior court (as well as in the Federal Court under s. 50(1) of
its Act), to stay the damages claim because in its essential character, it is a
claim for judicial review with only a thin pretence to a private wrong.
Generally speaking the fundamental issue will always be whether the claimant
has pleaded a reasonable private cause of action for damages. If so, he or she
should generally be allowed to get on with it.
[22]
This
is the case here, as well. Moreover, even in the plaintiffs’ written
submissions in response to this motion, nothing proposed would cure the defects
in the pleadings.
[23]
In
conclusion, I find that the defendant’s motion to strike must prevail.
Nevertheless, I want to emphasize that this decision should in no way be taken
to excuse any denial by the defendant or its servants of the plaintiffs’ right
to reasonable access to counsel and the courts, or to appropriate legal and
regulatory documents, as provided for pursuant to paragraph 97(3)(a) of the
CCRR, and Commissioner’s Directive 084, which provides the policy basis for
that access.
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.
"Michael D.
Manson"
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