Date: 20180228

Docket: T-1699-12

Citation: 2018 FC 227

[ENGLISH TRANSLATION]

Ottawa, Ontario, February 28, 2018

PRESENT: The Honourable Mr. Justice Martineau

SIMPLIFIED ACTION

ORDER AND REASONS

[1]  This is a motion for reconsideration for which the plaintiff, René Barkley, seeks a “judicial administrative investigation” concerning certain allegations against Correctional Service Canada [Service] and two of the defendant’s counsel, and at the same time, requests that the Court set aside Prothonotary Morneau’s order to strike this simplified action.

[2]  This motion was heard together with the motion brought in docket T-16325-15 and which is disposed by a separate order (René Barkley v. Her Majesty the Queen, 2018 FC 228 [Barkley 2018 #2]). For the reasons that follow, the motion in reconsideration is dismissed.

Dangerous Offender Designation

[3]  The plaintiff is currently incarcerated in the maximum-security Port-Cartier Institution, which the Service manages. Over the past few decades, he has had various disputes with the law and was incarcerated on several occasions—generally for sex-related crimes.

[4]  In fact, on November 12, 2003, the plaintiff was designated a dangerous offender and received an indeterminate prison sentence by Justice Jean-Yves Tremblay of the Court of Quebec (see R v. RB, 2003 CanLII 33102, 2003 CarswellQue 1270 (QCCQ) [R v. RB] [2003 judgment]). The plaintiff, who refers to this affair as “the Chicoutimi file”, had previously pleaded guilty to charges of robbery, break and enter in a dwelling house with intention to commit an indictable offence, threats of death or bodily harm, assault, confinement, obstruction of justice, public mischief and sexual assault causing bodily harm. The plaintiff had not appealed the sentence at the time.

[5]  Nevertheless, in 2015, the plaintiff has addressed the Superior Court (Criminal and Penal Division) to receive a writ of mandamus with certiorari in aid, in order to quash the 2003 judgment and receive all documents that were used against him in the Chicoutimi file to declare him a dangerous offender. Pronovost J. of the Superior Court noted that all the applications were made in the context of preparing an appeal of the decision declaring him a dangerous offender. He dismissed this motion on March 9, 2015, first stating that it would be difficult to obtain this type of order without extending the time of the appeal, and finding that the mandamus was not the appropriate remedy, in the absence of an obligations for the persons concerned to give him the requested documents (see Barkley v. Wullaert, 2015 QCCS 956 [Wullaert]). On June 11, 2015, his motion for an extension of time for the R v. RB decision declaring him a dangerous offender was dismissed by the Quebec Court of Appeal (see Barkley v. R, 2015 QCCA 1134). Dutil J. found that the plaintiff did not show his intention to appeal within the required time, nor with serious grounds of appeal.

[6]  Moreover, on May 18 and September 9, 2016, the plaintiff filed two new motions with the Superior Court (Criminal and Penal Division), i.e. one in certiorari against the 2003 judgment and one in mandamus to receive the production of various documents and computerized information used in the Chicoutimi file. The two motions were once again dismissed on September 25, 2017, the Court emphasizing that it is in fact a disguised appeal of the sentence in R v. RB (see Barkley v. R, 2017 QCCS 5097 at para 10 [Barkley 2017 QCCS]). In terms of the application in certiorari, the Superior Court found that the application is null and void since the Court of Appeal refused to extend the time of the appeal and that the plaintiff's sentence is not clearly illegal – which would otherwise allow the 2003 judgment to be set aside. As for the mandamus remedy, the Court essentially reiterates Pronovost J.’s findings in Wullaert stating that there is no legal duty to provide the requested documents, and notes that the plaintiff already had all his documents in his possession. The application for leave to appeal these judgments were dismissed by the Court of Appeal on November 17, 2017, the Court having no jurisdiction since the judgment in Barkley 2017 QCCS was appealable as of right (see Barkley v. R, 2017 QCCA 1830 [Barkley 2017 QCCA]). The plaintiff thus appealed this judgment.

The relevant facts relating to the simplified action

[7]  Let us now address the facts directly associated with this affair.

[8]  On September 13, 2012, the plaintiff commenced a simplified action against the defendant claiming $50,000 in damages. He relied on various acts of negligence and other illegal acts that were reportedly committed between 2000 and 2003 by the Service’s officers and the Parole Board (appeal section). In short, the plaintiff criticized the Service for referencing his escape from the Waterloo Institution in 1994 to declare him a dangerous offender, whereas he was acquitted of the charge. He also criticized the Service for using an incriminating statement that he reportedly made as part of the Montréal file in which he was convicted in order to incriminate him in the Joliette file, in which there was a stay of proceedings. Further, the Service and the Parole Board forced him to follow a Sex Offender Rehabilitation Program. According to the plaintiff, the purpose of that program was allegedly to make him admit to his guilt and gain incriminating information. In general, the Service allegedly also the information about him and reportedly interfered in the judicial proceedings: after counsel for the Crown stated that there was no documentary evidence in the Joliette file, certain documents came up again in the Chicoutimi file.

Striking the simplified action

[9]  On November 16, 2012, the defendant filed a motion to dismiss and strike the action.

[10]  On December 20, 2012, Prothonotary Morneau ordered the dismissal and striking of the plaintiff's action, without an opportunity for amendment, since it did not reveal any reasonable cause for action and was scandalous, frivolous and vexatious. The Prothonotary relied on three findings: the statement of claim does not contain any material facts that would enable the defendant to prepare and file a defence; the statement is replete with incomprehensible allegations seeking to list the plaintiff's dealings with the justice system; and the case is statute-barred because it relates to events that took place between 2003 and 2009, i.e. beyond the three-year period stipulated in article 2915 of the Civil Code of Quebec, RLRQ v. CCQ-1991).

[11]  The plaintiff appealed. Conducting a de novo review, de Montigny J. dismissed the appeal and confirmed the validity of the striking order in a decision on January 14, 2014. To summarize, de Montigny J. finds that the remedies sought by the plaintiff do not fall into the parameters of a simplified action. Further, the action does not rely upon any material fact and does not reveal any cause of action, even if the alleged facts are assumed to be true and, moreover, is frivolous and vexatious. First of all, only the Parole Board can impose release conditions and not the Service. The plaintiff's allegations on this matter are also speculative: it is uncertain whether he followed the Sex Offender Rehabilitation Program, if he truly revealed incriminating information and if it was used against him. Then, the Service needed to keep up to date the information relating to the escape, since even though he did not receive a sentence for that escape, the plaintiff did indeed escape and remained at large for a month and a half, which he does not deny. This mention in his file does not constitute a reversal of his acquittal. De Montigny J. finds that the plaintiff did not succeed in establishing negligence on the Service” part. Lastly, the Prothonotary also had reason to find that the remedy was statute barred.

[12]  The plaintiff did not appeal the order dismissing his appeal. It is therefore a final judgment that has force of res judicata for all legal purposes.

The current motion for re-consideration

[13]  More than two and a half years later, i.e. on August 22, 2017, the plaintiff filed this motion for reconsideration.

[14]  In support of his application for reconsideration, the plaintiff claims that the Attorney General of Canada and the Service deliberately lied to the Court. He claims that they knew that the Service had engaged in irregularities in 2003 in the Chicoutimi file: they would have illegally obtained certain documents, provided destroyed documents to a witness to manipulate the outcome, etc. Moreover, the Superior Court (Criminal and Penal Division) allowed the re-opening of the Chicoutimi file in 2016 by agreeing to consider the new evidence, which would constitute a "dramatic turn". The plaintiff disputes the striking out of his action due to the prescription. The delays to file an action for damages should have started to accrue the moment of his acknowledgment of the situation – which was far later, since the Service had all the evidence. The plaintiff also claims that the Service took judicial documents that they wanted to use in the proceedings with the purpose to manipulate the outcome. Lastly, he alleges that the Service reportedly had various evidence on a CD-ROM for several weeks that he was allegedly sent through preferred email. By way of relief, the plaintiff is seeking an investigation of the defendant's counsel; costs; provision of equipment and stationary required for his motion for re-consideration; the submission of evidence required for the requested judicial administrative investigation; the examination of individuals related to the investigation; any further remedies depending on the findings of the investigation; the payment of postage; and the supervision of the investigation by an independent counsel.

[15]  The defendant first submits that her counsel had an irreproachable behaviour. Moreover, the Federal Court does not have the jurisdiction to order the requested judicial administrative investigation by the plaintiff, whereas the conditions for the test from ITO-Int’l Terminal Operators v. Miida Electronics, [1986] 1 S.C.R. 752 at p. 766, 28 DLR (4th) 641 [ITO cited with SCR] are not met in this case.

[16]  Further, the Court should not order the re-opening of this file. Rule 399 of the Federal Courts Rules, SOR/98-106 clearly allows the Court, in certain specific and exceptional circumstances, to set aside or vary an order when new facts have arisen or been discovered after it was issued. To do this, the plaintiff must complete three conditions stated in Ayangma v. Canada, 2003 FCA 382 at paragraph 3 [Ayangma], i.e.: (1) the existence of new facts; (2) these must not be facts that were discoverable prior to the making of the order by the exercise of due diligence; and (3) it must be something which would have a determining influence on the decision in question. These criteria are not met in this case.

Judicial administrative investigation denied

[17]  I agree with the defendant that the Federal Court does not have the general power to order an investigation regarding the actions that the Service and the defendant's counsel may have committed in 2003 or at another date in the Chicoutimi file. In fact, the Federal Court only has the jurisdiction given it by law (generally see ITO). In this case, as the defendant emphasizes, no law seems to attribute such jurisdiction to the Federal Court, specifically as part of a motion. In addition, the plaintiff's claims do not invoke any principle of law to support the application, nor any specific statutory basis establishing that jurisdiction. According to the Inquiries Act, RSC 1985, c. I-11, it is rather up to the Governor in Council to proceed with any investigation associated with the public business of Canada or to a Department (see Chaudhry v. Canada, 2008 FCA 417 at para 12 [Chaudhry]).

[18]  It is still important to remember that the Federal Court still has the powers needed to fully and effectively exercise its own jurisdiction (see, generally, Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, 157 DLR (4th) 385; also see Bernard Letarte et al, Recours et procédures devant les Cours fédérales, Montréal, LexisNexis, 2013 at p. 12 [Letarte]). This includes the power to control the integrity of its own procedures and to penalize abuses, [translation] "including [...] overseeing the conduct of counsel" (Letarte at p. 12, citing R. v. Cunningham, 2010 SCC 10; also see Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50 at para 36; Lee v. Canada (Correctional Service), 2017 FCA 228 at paras 13-15). Without the power to order an investigation, the Court still benefits from a certain flexibility to penalize potential misconducts by counsel. However, there is no basis to seek such a power in this case, in the absence of any concrete or credible evidence to this effect.

[19]  It is also unnecessary to examine the other orders sought in the motion which involve a potential investigation: submission of evidence, examinations, additional compensation, etc.

Re-opening of file denied

[20]  Subsection 399(2) of the Rules allows the Court to set aside its orders in certain specific and exceptional cases, therefore making an exception to the rule of the finality of judgments:

[21]  In this case, the plaintiff has provided insufficient evidence to the Court that this situation enters either of these two categories described above. On the one hand, the plaintiff has not shown that there are new facts that could have an impact on the issue of the motion of striking out. On the other hand, any allegation of fraud made against the defendant's counsel is without any foundation, since it is not supported by the evidence and is entirely gratuitous.

[22]  In the Ayangma affair at subsection 3, the Federal Court of Appeal determined three conditions that the plaintiff must be filled in order for the Court to allow his motion under 399(2(a)):

1 - the newly discovered information must be a “matter” with the meaning of the Rule;

2 - the “matter” must not be one which was discoverable prior to the making of the order by the exercise of due diligence; and

3 - the “matter” must be something which would have a determining influence on the decision in question.

[23]   This decision was confirmed in appeal by a de novo assessment of the facts on file by de Montigny J.

[24]  To receive a re-consideration on file, the plaintiff must prove that there are new facts associated with these findings. From the outset, it appears that the plaintiff has not specifically made the connection between his new allegations of fact and the requirement to re-open the file. The plaintiff has not clearly explained which are the new facts cited. Most of the general allegations formulated by the plaintiff are rather associated with the Service’s problematic behaviour that has nothing to do with what the plaintiff claimed against the Crown in his statement on September 13, 2012.

[25]  In fact, this motion has no ties with the allegations related to his escape or the condition to follow a rehabilitation program. The only element that could constitute a new fact seems to be his claim that the Superior Court would have re-opened the Chicoutimi file. Prima facie, this could be relevant since the plaintiff claimed in his September 2012 statement that the Service reportedly interfered in this file to the Court. An audit of the judgments made in this case clearly show that the Superior Court of Quebec focused on a motion from the plaintiff seeking to receive the documents and a re-consideration of the Judge's decision in the Chicoutimi file (see Barkley 2017 QCCS; also see R v. RB). However, this motion was dismissed by the Superior Court and the motion for appeal was also dismissed by the Quebec Court of Appeal (see Barkley 2017 QCCS; Barkley 2017 QCCA). We therefore cannot speak of a "dramatic turn", as the plaintiff puts it. Thus, although the hearing itself of this motion can potentially constitute a new element, which occurred after the motion to strike-out, I am of the view that this has no influence on the decision to strike the plaintiff's statement since the Superior Court did not detect problems in terms of the Chicoutimi file.

[26]  On the other hand, the plaintiff did not prove that the striking order from Prothonotary Morneau, which was confirmed by de Montigny J., was obtained by fraud. The Federal Court of Appeal established that, in order to succeed under paragraph 399(2((b), the following elements must be established in a satisfied manner that a false representation has in fact been made and that the false representation was made either knowingly, without an honest belief in its truth, or recklessly, careless of whether it be true or false (see Pfizer Canada Inc. v. Canada (Health), 2011 FCA 215 at para 20 (leave to appeal to the Supreme Court denied) [Pfizer]). The fraud alleged must be proved on a reasonable balance of probability (see Pfizer at para 21). In this case, although the plaintiff's motion contains serious allegations that the defendant's counsel reportedly lied to the Court and deliberately concealed the relevant information during the hearing of the motion to strike out, that the Service would have stolen documents from him and seized his mail, he did not file any concrete or credible evidence to support his pretentions. No document was submitted by the plaintiff beyond his written pretensions, a brief affidavit and a copy of the Correctional Service’s instructions.

[27]  For the foregoing reasons, the plaintiff's motion for reconsideration is dismissed. Consequently, there is no need to assess the application for stay filed by the plaintiff in his answer on February 8, 2018.

The matter of costs

[28]  Given the outcome, the defendant is entitled to costs.

[29]  Subsection 400(1) of the Rules gives the Court full discretion in awarding costs. In exercising this discretion, I must determine an amount that is just and equitable, while taking into account the three-fold objective of costs, i.e. providing compensation, promoting settlement and deterring abusive behaviour (see, for e.g. Air Canada v. Thibodeau, 2007 FCA 115 at para 24). Costs should not serve as a punishment on the party ordered to pay them. In various affairs involving costs, the judges have often been sensitive to the limited ability of those complainants to pay (see for e.g. Johnson v. Canada (Attorney General), 2008 FC 1357 at para 106; Johnson v. Canada (Correctional Service), 2017 FC 370 at para 35).

[30]  In this case, the defendant claims costs for a total amount of $442.50, pursuant to her bill of costs filed on January 26, 2018. During the hearing on January 22, 2018, the plaintiff reminded the Court of his limited means. In fact, he affirms only receiving a net income of approximated $20 every 15 days, after various deductions from his salary, including a 25% levy serving to pay the $3,308 costs for which he was convicted as part of the motion to strike. He specifically proposes the suspension of costs until his release.

[31]  Costs in the amount of $400 seem reasonable to me in these circumstances. Given the plaintiff's specific situation, it will be up to the defendant to determine whether there is a need to suspend the collection of costs awarded by the Court today.

JUDGMENT in docket T-1699-12

THE COURT ORDERS that the motion for reconsideration is dismissed. The defendant is entitled to costs in the amount of $400.

"Luc Martineau"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: