Docket: T-135-16
Citation: 2016 FC 235
Vancouver, British Columbia, February 22, 2016
PRESENT: Prothonotary Roger R. Lafrenière
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BETWEEN:
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RICHARD JOSEPH
BERGERON
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Plaintiff
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and
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CORRECTIONAL
SERVICE OF CANADA, BOWDEN INSTITUTION - ALBERTA, AND MATSQUI INSTITUTION -
BRITISH COLUMBIA
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Defendants
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ORDER
AND REASONS
[1]
This is a motion in writing on behalf of the
Defendants for an order striking the Statement of Claim and for other incidental
relief. The Plaintiff has taken no position on the motion although duly served.
[2]
On January 20, 2016, the Plaintiff, who is
self-represented, filed a Statement of Claim which consists of two short
paragraphs. In light of their brevity, the paragraphs are reproduced below in
their entirety.
1. The Plaintiff claims the CSC did commit fraud
on the Plaintiff by charging him $50.00 room and board on his monthly WCB
cheque every month. It was also a violation of Commissioner’s Directive 860-21.
From October 2010 to Sept. 2013, in October 2013 I was charged $180.00 for room
and board totals $1980 plus $2.05 fraud on postage.
2. Plaintiff claims Matsqui CSC committed fraud
on him via depriving him of pay from September 2014 to present so approximately
$320.00.
I.
Motion to Amend the Style of Cause
[3]
The Deputy Attorney General of Canada seeks an
order removing “Correctional Service of Canada”
(CSC), “Bowden Institution - Alberta” and “Matsqui Institution – British Columbia” as parties to
the action and substituting Her Majesty the Queen as the Defendant.
[4]
CSC is responsible for managing institutions of
various security levels and supervising offenders under conditional release in
the community. It operates under the rule of law and, in particular, the Corrections
and Conditional Release Act, SC 1992, c. 20 [CCRA] which provides its
legislative framework. Bowden Institution and Matsqui Institution are operated by
CSC for the care and custody of inmates.
[5]
To be sued, a defendant must be a natural
person, a body corporate, or a body legislatively endowed with the capacity to
be sued. There is nothing in the CCRA or the Crown Liability and Proceedings
Act, RSC 1985, c. C-50 [CLPA] suggesting that it was intended by Parliament
that CSC or federal penitentiaries should have the capacity to be sued in this
Court. In fact, these entities act through the conduct of individual Crown
servants.
[6]
Section 3(b) of the CLPA provides that the Crown
is vicariously liable for the torts committed by its servants and agents. Section
48 of the Federal Courts Act, RSC 1985, c. F-7 [FCA] describes a procedure
for instituting proceedings against the Crown, including the payment of the
required filing fee and service on the Crown by filing the required document
with the Court. Subsection 48(1) states:
48. (1) A
proceeding against the Crown shall be instituted by filing in the Registry of
the Court the original and two copies of a document that may be in the form set
out in the schedule and by payment of the sum of two dollars as a filing fee.
[7]
In the form set out in the schedule to the FCA “Her Majesty the Queen” is named as the defendant. I
should also note that the definitions set out in section 2 of the FCA provide
that for the purposes of the Act “Crown” means
Her Majesty in right of Canada.
[8]
I conclude that the CSC and the two
penitentiaries were improperly named as Defendants and that the style of cause
should be amended by removing the three entities and substituting Her Majesty
the Queen in right of Canada as the sole Defendant.
II.
Motion to Strike the Statement of Claim
[9]
The Deputy Attorney General of Canada also seeks
an order striking the Statement of Claim on the grounds that it does not
contain the necessary facts to support an action in fraud and accordingly does
not disclose a reasonable cause of action.
[10]
The test to be applied on a motion to strike a
pleading under Rule 221(1)(a) of the Federal Courts Rules can briefly be
stated as follows. On the assumption that the facts stipulated in the statement
of claim can be proven, the question is whether it is “plain
and obvious” that the pleading discloses no reasonable cause of action.
Only if the action is certain to fail because it contains a radical defect
should it be struck: see Hunt v Carey, 1990 CanLII 90 (SCC), [1990] 2 CR
959.
[11]
The threshold for sustaining a pleading is not
high. However, in the context of this case, where fraud is alleged, the rules
for pleading fraud contained at Rule 181 must be adhered to.
[12]
The elements that must be pleaded in order to
establish the tort of fraud/fraudulent misrepresentation are the following:
(a)
a false representation was made by the
defendant;
(b)
that the defendant knew was false;
(c)
the defendant made the representation with the
intention of deceiving the plaintiff;
(d)
the plaintiff was induced by the representation
to alter his position; and
(e)
damages resulted.
[13]
The Plaintiff has failed to plead any
particulars of fraud, such as what specific representation was made to him,
what was false in the said representation, who made the representation and when
the representation was made. The Plaintiff has also failed to plead that the person
(or persons) who made the representation intended to deceive the Plaintiff or induce
him to act or alter his position. These are all required elements of the tort
of fraud: Bruno Appliance and Furniture, Inc v Hryniak, 2014 SCC 8
(CanLII) at paras 19 and 20.
[14]
The Statement of Claim contains nothing more
than bald allegations of fraud and legal conclusions. Moreover, there is no
clear prayer for relief, making it difficult to ascertain whether the Plaintiff
is intending to proceed by way of ordinary action or simplified action.
[15]
It is plain and obvious that the Plaintiff’s
claim discloses no reasonable cause of action and has no reasonable prospect of
success. In the absence of any submissions from the Plaintiff establishing
otherwise, I can only conclude that the radical deficiencies in the pleading cannot
be cured by amendment.
III.
Conclusion
[16]
For the above reasons, I conclude that the
Defendants’ motion should be granted. The style of cause shall be amended by
substituting Her Majesty the Queen in right of Canada as the Defendant. The
Statement of Claim shall also be struck, without leave to amend.
[17]
I end by observing that section 90 of the CCRA
establishes a grievance procedure to fairly and expeditiously resolve inmate
complaints relating to the actions or decisions of CSC staff members. The Plaintiff
may wish to avail himself of the grievance procedure to redress the substance
of his complaints.
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