Date: 20081007
Dockets: A-495-07
A-509-07
A-549-07
A-550-07
Citation: 2008 FCA 298
CORAM: NADON
J.A.
SEXTON
J.A.
PELLETIER
J.A.
BETWEEN:
RON CROWE
Appellant
and
THE ATTORNEY GENERAL OF CANADA, THE
HONOURABLE CHIEF JUSTICE OF CANADA BEVERLY McLACHLIN, THE HONOURABLE JUSTICE
CHARRON, THE HONOURABLE JUSTICE ROTHSTEIN OF THE SUPREME COURT OF CANADA, THE
HONOURABLE CHIEF JUSTICE OF ONTARIO ROY McMURTRY, THE HONOURABLE JUSTICE
FELDMAN, THE HONOURABLE JUSTICE LANG OF THE COURT OF APPEAL FOR ONTARIO, THE
HONOURABLE MADAM JUSTICE JANET WILSON OF THE ONTARIO SUPERIOR COURT OF JUSTICE,
THE HONOURABLE RICHARD SCOTT, CHIEF JUSTICE OF MANITOBA AND CHAIRPERSON OF THE
JUDICIAL CONDUCT COMMITTEE OF THE CANADIAN JUDICIAL COUNCIL, (in their judicial
and private capacities) THE CANADIAN JUDICIAL COUNCIL, THE MARITIME LIFE
ASSURANCE COMPANY, now known as THE MANUFACTURERS LIFE INSURANCE COMPANY,
MANULIFE FINANCIAL, DOMINIC D'ALESSANDRO, ARTHUR R. SAWCHUK, JOHN CASSADAY,
LINO J. CELESTE, GAIL COOK-BENNETT, THOMAS P. D'AQUINO, RICHARD B. DE WOLFE,
ROBERT E. DINEEN JR., PIERRE Y. DUCROS, ALLISTER P. GRAHAM, THOMAS E. KIERANS,
LORNA R MARSDEN, HUGH W. SLOAN JR., GORDON G. THIESSEN (in their corporate and
private capacities), PAOLO GREGO
Respondents
REASONS FOR JUDGMENT
PELLETIER J.A.
Introduction
[1]
Mr. Ron
Crowe, acting on his own behalf, appeals from two decisions of Mr. Justice
Harrington of the Federal Court (the motions judge) in which the latter struck
the claims against all of the defendants in the action brought by Mr. Crowe. In
the first decision reported at 2007 FC 1020, the motions judge dismissed Mr.
Crowe's claims against The Manufacturers Life Insurance Company, Manulife
Financial, and their directors (collectively the insurers) as well as the claim
against Mr. Crowe's former solicitor, Mr. Greco. In addition, the motions judge
struck the claim against the Attorney General of Canada. In his second
decision, reported at 2007 FC 1209, the motions judge dismissed the claims
against Madam Justice Wilson of the Ontario Superior Court, Chief Justice
McMurtry and Justices Feldman and Lang of the Ontario Court of Appeal, as well
as Chief Justice McLachlin and Justices Charron and Rothstein of the Supreme
Court of Canada. In addition, he also struck the claims against Chief Justice Richard
Scott of the Manitoba Court of Appeal in his capacity as Chair of the Judicial
Conduct Committee of the Canadian Judicial Council as well as the claim against
the Canadian Judicial Council (the Council) itself. The effect of the two
decisions was to strike the claims against all defendants, thus putting an end
to Mr. Crowe's action.
[2]
In
addition to appealing these two decisions, Mr. Crowe also served a Notice of
Constitutional Question returnable on the date of the hearing of this appeal,
as well as a notice of motion seeking certain other relief which was not
opposed. I do not propose to deal with the notice of motion; Mr. Crowe was
granted the relief he sought.
Facts
[3]
Mr. Crowe's
claim against these various persons and entities are set out in a statement of
claim which runs to some 60 pages. In essence, what began as a claim on a
disability insurance policy in the Ontario Superior Court has become a claim in
the Federal Court in which it is alleged that all of the defendants were
engaged in a "chain conspiracy" to shield the insurers by depriving
Mr. Crowe of his constitutionally protected right to a fair and impartial
hearing of his claim against the insurers for damages (including punitive
damages).
[4]
The
insurers allege that they reached a settlement with respect to his disability
insurance claim, subject to the execution, in due course, of a release in
favour of the insurers. Mr. Crowe alleges that the insurers attempted to
defraud him by obtaining a more inclusive release than had been agreed to in
the settlement negotiations. His former solicitor is alleged to have
participated in this scheme.
[5]
When the
parties could not agree on the terms of the release, a motion was brought
before Justice Wilson who ruled that there should be a summary trial of the
issue of whether Mr. Crowe was bound by the terms of the settlement. Mr. Crowe
notes that this assumes the existence of a settlement on agreed terms, a matter
which he disputes. He alleges that Justice Wilson, knowing that the matter
could not proceed by summary trial without his consent, obtained his consent to
proceed by summary trial by misrepresentation.
[6]
Mr. Crowe
says that Justice Wilson and the other judicial defendants, acted knowingly
without jurisdiction by either making orders which they knew they lacked
jurisdiction to make, or, in the case of the appellate judges, by failing to intervene
with respect to the deliberate wrongful acts of the other judicial defendants. The
Canadian Judicial Council and Chief Justice Scott are alleged to have failed in
their duty to sanction the extra-judicial wrongdoing of the judicial defendants;
the Government of Canada, as represented by the Attorney General of Canada (the
Federal Government), is said to be liable to Mr. Crowe for the wrongful conduct
of the judicial defendants. Further particulars of the allegations against the
various defendants can be found in the decisions of the motions judge.
The decision under appeal
[7]
The
motions judge dismissed the claims against the various defendants on various
grounds. As regards the insurers, he found that the claim was essentially one
sounding in property and civil rights and therefore within the jurisdiction of
the provincial superior courts. He came to the same conclusion with respect to
the claim against Mr. Crowe's former solicitor: see 2007 FC 1020, at paras. 19
to 21. As regards the claim against the Federal Government, he referred to the Crown
Liability and Proceedings Act, R.S.C. 1985, c. C-50 (the CLPA). He held
that, since the Federal Government's liability was contingent upon the
liability of servants of the Crown and that, since Superior Court judges
(including judges of the appellate courts) were not servants of the Crown, the
claim contained no reasonable cause of action against the Federal Government:
see 2007 FC 1020, at paras. 28 to 30.
[8]
As regards
the judicial defendants, the motions judge found that there was no federal law
which would support an action against a judge of a provincial superior court (which
includes members of the provincial court of appeal) or judges of the Supreme
Court of Canada. Saying that it would be sterile to decide the question on
jurisdictional grounds only, the motions judge went on to deal with the claims
against the judicial defendants on more substantive grounds by invoking the notion
of judicial immunity, acknowledging that immunity was partial and not absolute.
Citing Lord Denning, the motions judge held that the immunity is lost if the
judge is "not acting judicially, knowing that [s]he had no jurisdiction to
do it.": see 2007 FC 1209, at para. 39. The motions judge found that
Justice Wilson was acting within her jurisdiction in making the order to which
he objects (see para. 41 of his reasons), and that the other judicial
defendants were acting within their jurisdiction when they declined to
intervene as requested by Mr. Crowe: see para. 46 of his reasons. As a result
of his application of the doctrine of judicial immunity, the motions judge held
that there was no reasonable cause of action against the judicial defendants.
[9]
In so far
as the claim against the Council is concerned, the motions judge referred to the
decision of this Court in Canada v. Grenier, 2005 FCA 348 (Grenier),
which holds that a federal board commission or tribunal (the Council falls
within this class) cannot be sued for damages resulting from the exercise of
statutory authority unless its decision is first found to be unlawful in an
application for judicial review. Since no such proceedings had been undertaken
by Mr. Crowe, his action against the Council could not proceed. In any event, the
motions judge found that there was no causal connection between any breach of
duty owed to Mr. Crowe by the Council and the damages which he seeks in his
action.
Mr. Crowe's submissions
[10]
The
substance of Mr. Crowe's arguments in support of his appeal can be summarized
as follows. In that portion of the motion judge's decision dealing with the
motion to strike pleadings for lack of a reasonable cause of action, the judge
was bound to take the pleadings as true. He was not in a position to make
findings of fact or credibility. In his Statement of Claim, Mr. Crowe alleged
that each of the judicial defendants acted deliberately, knowing that they had
no jurisdiction. If that plea is taken as true, as it must be for the purposes
of the motion to strike, then judicial immunity does not apply and there was a
reasonable cause of action against the judicial defendants. Mr. Crowe rejects
the argument that he has not pleaded sufficient particulars of the deliberate
and wrongful acts, or of the nature of the conspiracy, by pointing out that
none of the defendants has filed an affirmative defence, as required by Rule
183 of the Federal Courts Rules, SOR/98-106.
[11]
As to
whether the Federal Court has jurisdiction over his claim against the Federal
Government, Mr. Crowe invokes the CLPA, and in particular subparagraph
3(b)(ii) which provides as follows:
|
3. The Crown is liable
for the damages for which, if it were a person, it would be liable
…
(b) in any
other province, in respect of:
(i) a tort committed
by a servant of the Crown or
(ii) a breach of duty
attaching to the ownership, occupation, possession or control of property.
|
3.
En matière de responsabilité, l'État est assimilé à une personne pour :
[…]
b) dans les autres provinces :
(i)
les délits civils commis par ses préposés,
(ii) les manquements
aux obligations liées à la propriété, à l'occupation, à la possession ou à la
garde de biens.
|
[12]
Relying on
the definition of property in subsection 2(1) of the Federal Courts Act,
R.S.C. 1985, c. F-7, which includes incorporeal property, "including
rights of any kind", Mr. Crowe argues that his right to a fair and
impartial trial is property, and that the Federal Government is liable to him,
pursuant to subparagraph 3(b)(ii), for its breach of its duty to protect
his constitutional right to a fair trial.
[13]
As for the
jurisdiction of the Federal Court, Mr. Crowe's position is that since the
Superior Court of Ontario "impugned" its own jurisdiction by the
deliberate and wrongful acts of the judges of that Court, the Federal Court
must assume jurisdiction so as to enable him to obtain a fair and impartial
hearing of his claim.
[14]
Mr. Crowe
served and filed a Notice of Constitutional Question, returnable at the hearing
of this appeal. The Notice does not seek to question the constitutional
validity or operability of any particular statute. By framing certain questions
in constitutional terms, Mr. Crowe asks for "affirmative answers" as
to the motivation for the various defendants' allegedly wilful and deliberate
conduct designed to infringe his constitutional rights.
Analysis
[15]
Given that
the questions raised in this appeal are all questions of law, the standard of
review is correctness.
[16]
The
difficulty which Mr. Crowe faces is that the Federal Court is a statutory court
and, as such, has only the jurisdiction conferred upon it by statute. It is not
a court of inherent jurisdiction as are the provincial superior courts:
46 As a statutory
court, the Federal Court of Canada
has no jurisdiction except that assigned to it by statute. In light of the
inherent general jurisdiction of the provincial superior courts, Parliament
must use express statutory language where it intends to assign jurisdiction to
the Federal
Court…
[Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 46.]
[17]
In
ITO-International
Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, the
Supreme Court of Canada set out the conditions required to support Federal
Court jurisdiction at p. 766:
The
general extent of the jurisdiction of the Federal Court has been the
subject of much judicial consideration in recent years. In Quebec North Shore
Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, and in McNamara
Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654, the
essential requirements to support a finding of jurisdiction in the Federal Court
were established. They are:
1. There must
be a statutory grant of jurisdiction by the federal Parliament.
2. There must
be an existing body of federal law which is essential to the disposition of the
case and which nourishes the statutory grant of jurisdiction.
3. The law on
which the case is based must be "a law of Canada" as the
phrase is used in s. 101 of the Constitution Act, 1867.
[18]
Dealing
first with the claims against the judicial defendants, there is no statutory
grant of jurisdiction to the Federal Court by the Parliament giving it
jurisdiction over the tortuous conduct of judges. Nothing in the Judges Act,
R.S.C. 1985, c. J-1, or in any other act creates civil liability for acts done
by judges in their capacity as judges. As a result, the question of judicial
immunity simply does not arise since there is no liability enforceable in the
Federal Court to which that immunity could apply. The allegation of loss of
immunity by a judge as a result of deliberate misconduct does not create
jurisdiction in the Federal Court: any action against the judge must be brought
in the provincial superior court. The motions judge was correct to find that
the Federal Court lacks jurisdiction to hear the claims brought against the
judicial defendants.
[19]
The same
is true of the claims against the insurers and Mr. Greco. Once again, there is
no statutory grant of jurisdiction which would enable the Federal Court to
entertain an action against them for damages for wrongful conduct. The legal
obligations which Mr. Crowe seeks to enforce against them are not part of a
body of existing federal law: they arise from the law of contract or tort
administered by the provincial superior courts in the exercise of their
jurisdiction as courts of inherent jurisdiction. The motions judge was again
correct when he held that the Federal Court has no jurisdiction to entertain
the claims against those defendants.
[20]
The claim
against the Canadian Judicial Council must also be struck. The specific
pleadings against the Council appear in paragraph (f) of the Statement
of Claim (which follows paragraph 205), in which Mr. Crowe pleads:
The Canadian Judicial
Council has
refused or failed to protect the fundamental rights of Canadians to fair
hearing, impartial adjudication and fair judicial procedure in accordance with
the rules of natural justice, and has refused or failed to act in accordance
with its stated objects pursuant to s. 60.(1), (2) of the Judges Act,
R.S. 1985, namely, to improve the quality of judicial services in the superior
courts of Canada, and refused or failed to make bona fide inquiries and the
investigation of complaints or allegations as is its mandate under section
63.(2) of the Judges Act, R.S. 1985, and refused or failed to make a
bona fide inquiry under s. 65.(2) thereunder with respect to the conduct of the
Honourable Madam Justice Wilson of the Ontario Superior Court of Justice as was
requested by the Plaintiff in regard to her conduct of motions heard by her on
December 9, 2005 brought by the Plaintiff and MANULIFE in furtherance of the
Plaintiff's claim Court File No. 04-CV-274116CM1 against MANULIFE for long-term
disability benefits where it is plain and obvious from the materials submitted
to the Canadian Judicial Council by the Plaintiff that the motions judge had been
incapacitated or disabled from the due execution of the office of judge by
reason of having been guilty of misconduct, having failed in the due execution
of that office, and having been placed, by his conduct or otherwise, in a
position incompatible with the due execution of that office, and the Canadian
Judicial Council refused or failed to recommend to the Minister of Justice that
the Honourable Madam Justice Wilson be removed from office or sanctioned in any
way despite clear and compelling evidence that she had willfully acted with
extreme prejudice to the Plaintiff, and in so doing caused further injury to
the Plaintiff including extreme emotional anguish and mental distress.
[21]
As I
understand this pleading, it alleges that the Council has failed to comply with
its statutory duty and that, as a result, Mr. Crowe has suffered extreme
emotional anguish and mental distress which entitle him to damages. The basis
of the allegation of breach of duty is the Council's decision to refuse to proceed with an
inquiry into the conduct of the judicial defendants. The Council is a "federal board,
commission or other tribunal" within the meaning of subsection 2(1) of the
Federal Courts Act and as such, its decisions are subject to the judicial
review in the Federal Court. This Court's decision in Grenier
establishes that no action lies against a "federal board, commission or
other tribunal" with respect to an action taken under the authority of a
federal law unless the decision has first been shown to be unlawful in an
application for judicial review before the Federal Court: see paras. 23 to 26. Given
that the Council's decision has not been attacked by way of judicial review,
Mr. Crowe's action against the Council is premature; it does not disclose a
reasonable cause of action and must therefore be dismissed.
[22]
Mr. Crowe's
pleadings against the Federal Government are found in paragraphs (d) and
(e), which follow paragraph 205 of the Statement of Claim. They provide,
in their material parts, as follows:
(d) The Crown in Right of
Canada and through its agency the Canadian Judicial Council, has wilfully
refused or failed its responsibility to protect the inviolable constitutional
and quasi-constitutional rights of not only the Plaintiff but all Canadians, by
enabling the Canadian judiciary under the rubric of immunity to purposefully
subvert justice in order to effect the unjust enrichment of MANULIFE at the
expense and to the prejudice of the Plaintiff…
(e)
The Crown in Right of Canada and the Attorney General of Canada have refused or
failed to protect the Constitutional and quasi-Constitutional rights of the
Plaintiff…by knowingly permitting the Canadian Judiciary to proclaim and assume
absolutism from public accountability by means of the unwritten principle of
judicial immunity which is a perversion and not a fulfillment of jurisprudence
in the absence of which the judges in this case would not have considered
themselves free to have knowingly misused their judicial offices for a purpose
inconsistent with its proper judicial function and in which MANULIFE was
knowingly complicit, which has caused injury to the Plaintiff pecuniary and
otherwise as disclosed in the pleadings herein for which the Crown of Right in
Canada and the Attorney General of Canada are liable.
[23]
To the
extent that these claims against the Federal Government are claims in tort,
then they come within section 3 of the CLPA which makes the Federal
Government "liable for the damages for which, if it were a person, it
would be liable" in respect of any tort committed by a servant of the
Crown. In other words, the liability of the Federal Government is established
by showing that persons for whom the Crown is liable committed tortious acts: see
Stephens Estate v. Canada (1982), 40 N.R. 620.
[24]
The
pleadings quoted above do not refer to servants of the Crown as such, though
they do refer to judges and the Canadian judiciary. Judges are not servants of
the Crown. They are not employees of the Federal Government. The principle of
judicial independence is a constitutional principle: see Reference re Remuneration
of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R.
3, at para. 106. Its application requires that judges be, and be seen to be,
free of interference from the government of the day. That independence is
incompatible with the status of an employee. As a result, even if a judge
behaves extra-judicially and without jurisdiction, his or her conduct would not
engage the liability of the Federal Government. The motions judge correctly
held that the claim against the Federal Government must fail for failure to
disclose a reasonable cause of action because, assuming Mr. Crowe's allegations to be true, they do not
engage the liability of the Crown.
[25]
Insofar as
Mr. Crowe's complaint is founded on subparagraph 3(b)(ii) of the Act which
deals with property rights, it must be dismissed as well. Mr. Crowe argues that
his right to due process and a fair trial is an incorporeal right which is
included in the definition of "property" at subsection 2(1)
of the Federal Courts Act. Starting from this premise, he argues that
the Federal Government is liable to him by reasons of subparagraph 3(b)(ii)
of the CLPA, which provides for a right of action against the Crown for "a
breach of duty attaching to the ownership, occupation, possession or control of
property." The flaw in Mr. Crowe's argument is that the rights referred to
in subparagraph 3(b)(ii) are property rights, that is, rights in
relation to real and personal property, whether tangible or intangible. Mr.
Crowe's procedural and constitutional rights are not property rights, even
though they are intangible and, in that sense only, "incorporeal". As
a result, they do not give rise to any claim against the Federal Government
under subparagraph 3(b)(ii). This argument fails.
[26]
That is
sufficient to dispose of Mr. Crowe's appeal. I now turn to the Notice of
Constitutional Question filed by Mr. Crowe. In that document, Mr. Crowe raises
a series of seven questions which are framed in constitutional terms but which
raise no constitutional issue. By way of example, the first question reads as
follows:
Question 1: On the Courts'
wilful denial of the constitutional rights of the Appellant and its misuse of
judicial office for a purpose other than that for which it was intended.
THE APPELLANT
INTENDS TO QUESTION the constitutional validity and effect of decisions made by
the Ontario Superior Court of Justice, the Court of Appeal for Ontario, the
Supreme Court of Canada and the Federal Court, namely what is the affirmative
reason for the Courts in the case at hand to have wilfully denied and defeated
the fundamental, substantive, quasi-constitutional and constitutional rights of
the Appellant to a fair hearing, impartial adjudication, fair judicial
procedure and to full plenary trial of all genuine issues in dispute as between
the parties by way of consistent decisions made which shield the defendant
Manulife from damages in consequence of misconduct which the Courts plainly
know to be tortious and to in so doing cause further injury to the Appellant?
[27]
Each of
the other constitutional questions raised by Mr. Crowe is framed in much the
same way. Mr. Crowe characterizes certain acts, decisions or omissions of one
or more defendants as wilful attempts to protect the insurers and to injure him,
and then seeks an "affirmative answer" to the question as to why the
defendants would knowingly and wilfully behave in such a way.
[28]
In
essence, the questions raised by Mr. Crowe under the rubric of constitutional
questions are questions about the motivation of the defendants for doing what
Mr. Crowe characterizes as wilful acts designed to injure him. These are not
constitutional questions, nor are they questions which this Court can answer. They
assume the truth of unproven allegations of misconduct which, notwithstanding
Mr. Crowe's convictions to the contrary, are not self-evident. Nothing more
need, nor can, be said.
[29]
The appeal
will be dismissed with costs.
"J.D.
Denis Pelletier"
"I
agree
M. Nadon J.A."
"I
agree
J. Edgar Sexton J.A."
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