Date: 19980504
Docket: T-64-98
BETWEEN:
MELVIN GOVEREAU,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
MR. JOHN HARGRAVE,
PROTHONOTARY
[1] The Defendant moves to strike out the Statement of Claim for want of jurisdiction or, alternatively, for additional time within which to file a defence. In recognition that striking out a claim is a Draconian remedy, a remedy depriving a person of his or her day in court, the courts have set the test standard very high. It must be clear and beyond doubt that the plea cannot succeed, that it would be futile for the plaintiff to proceed.1
[2] In considering whether a pleading, here a Statement of Claim, ought to be struck out for want of a reasonable cause of action I must not only read the pleading as though the facts were proven, but also generously, keeping in mind that here I deal with a lay litigant who may not make the same reference to rights, or use the same turn of phrase, as would a lawyer, in explaining the facts and the remedies sought.
[3] Reducing the Statement of Claim to its essentials, it sets out that the Plaintiff began a sentence of six years and a day on 22 February 1996. The Plaintiff's wife suffers from Charcot-Marie-Tooth disease, a form of muscular atrophy. As such she is confined to a wheelchair and requires a continuous supply of oxygen.
[4] In May of 1997 the Plaintiff was granted an eight hour escorted temporary absence pass in order to visit his wife. Subsequently he applied for additional passes: one was declared lost and another was denied. The Plaintiff then tried to arrange a visit from his wife: he asked that the Mountain Prison authorities arrange a stand-by supply of oxygen in the event his wife's personal supply should run out during a visit, a request denied. A subsequent request for an escorted temporary absence pass was denied. In the result the Defendant is said to have circumscribed any rights or privileges which would enable the Plaintiff to maintain family ties, thus creating hardship. The prison authorities, in turn, seem to equate passes for escorted temporary absence with participation in voluntary prison programs.
[5] The Plaintiff says this denial of a means to visit constitutes breaches of Charter rights, the Corrections and Conditions Release Act and fair play. The Plaintiff seeks damages as a deterrent, together with declaratory relief, which would allow him to obtain temporary escorted passes in order to visit his wife in an effort to both maintain family ties and to foster mutual support. Refreshingly, all of this is set out in a concise and readable three page Statement of Claim.
[6] The Defendant submits that most of the relief sought is declaratory and ought to be by way of judicial review. However this comment overlooks what was Rule 1723, to the effect that the Court may grant a declaration simpliciter in an action: Administration de pilotage des Laurentides v. Pilotes du Saint-Laurent Central Inc. (1993) 74 F.T.R. 185. Rule 1723 has been re-numbered as Rule 64 of the 1998 Rules as follows:
| "No proceeding is subject to challenge on the ground that only a declaratory order is sought, and the Court may make a binding declaration of right in a proceeding whether or not any consequential relief is or can be claimed.". |
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This plea for declaratory relief is clearly not a ground for striking out the present Statement of Claim for I cannot say that the Plaintiff's claim, although not an easy one to establish, is one so forlorned that it ought to be struck out. Indeed, the Plaintiff may well have Charter rights, for example, as to his treatment or punishment which could conceivably give rise to a remedy under Section 24 of the Charter. Further, there might be some declaratory relief available which would be of value and have practical effect.
[7] Next, the Defendant submits that all of the requirements set out by the Supreme Court of Canada in ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. [1986] 1 S.C.R. 752, at 766, which are next set out, have not been met:
| "1. There must be a statutory grant of jurisdiction by the federal Parliament. |
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| 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. |
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| 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.". |
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[8] The Defendant submits that the Statement of Claim contravenes the first requirement, that there be a statutory grant of jurisdiction to the Federal Court.2 The Defendant goes on to submit that while the Federal Court Act gives the Court jurisdiction to provide some of the relief sought, that relief is available only when a proceeding is brought by way of judicial review, not by way of an action and here counsel refers to Burton v. The Queen, an unreported 8 July 1997 decision of mine in Action T-1348-95 and related actions. In Burton I struck out a number of the eight proceedings which the plaintiff had brought, but did leave in place an action in which the plaintiff alleged a breach of Charter rights and which contained a claim for damages, under Section 24 of the Charter. In Burton the defendant, in seeking to have the statement of claim struck out, relied upon Zubi v. Her Majesty the Queen (1993) 71 F.T.R. 168, in which the statement of claim sought declaratory relief, in connection with a decision to transfer the plaintiff to a medium security institution, as well as damages. In Zubi the Court found relief was of a type contemplated by Section 18 of the Federal Court Act and ought to have been brought by way of an application for judicial review: the Court there rejected the submission that the claim brought by Mr. Zubi was simply for damages. In the Burton reasons I pointed out that there might well be an action sounding in damages and as such I could not say either that the claim had no chance of success or that it was plain and obvious that it disclosed no reasonable cause of action.
[9] This is not to say that all of the relief sought by Mr. Govereau is proper and may be brought by way of an action. Paragraphs 1 and 2 of the relief sought deal with a decision made by administrative authorities of Mountain Prison to require Mr. Govereau to take part in voluntary programs in order to be eligible for temporary escorted passes to visit his wife. To my mind declarations dealing with those decisions of the administration of Mountain Prison ought to have been brought by way of judicial review and will not succeed when brought as an action. Those sections are therefore struck out.
[10] The Plaintiff also seeks some sort of a protective order preventing the Correctional Service of Canada from taking any measure against him in response to this legal proceeding. I would characterize this as either a writ of prohibition or writ of mandamus, by which the Court may exercise a supervisory jurisdiction over the Correctional Service of Canada. However, Section 18(3) of the Federal Court Act makes clear these remedies may only be obtained on an application for judicial review. The Court does not have a statutory grant of jurisdiction, as required by the Miida Electronics case (supra), which would enable it to give Mr. Govereau this type of relief.
[11] I also have doubt as to whether punitive and exemplary damages would flow from the facts set out in the Statement of Claim. I say this because general damages must be assessed first, so the court may then determine whether general damages are a sufficient remedy: for example see Lishman v. Erom Roche Inc., (1996) 111 F.T.R. 44 at 56. Moreover, punitive damages ought only to be awarded where a defendant is deserving of punishment by reason of harsh, vindictive, reprehensible or malicious conduct: see for example Vorvis v. Insurance Corporation of British Columbia [1989] 1 S.C.R. 1085. Mr. Justice McIntyre, who wrote the majority decision in Vorvis, pointed out at pages 1107 and 1108:
| "Moreover, punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. I do not suggest that I have exhausted the adjectives which would describe the conduct capable of characterizing a punitive award, but in any case where such an award is made a conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.". |
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Since Mr. Govereau ought to have sought damages, in order to give the damage claim any chance of success, I will allow him to amend.
[12] The facts set out in Mr. Govereau's Statement of Claim are not easy ones on which to succeed. However I am unable to say that it is plain and obvious that Mr. Govereau cannot succeed, or that his claim is futile, so long as amendments are made to make it clear that the claim is primarily one for damages under the Charter. Mr. Govereau shall have sixty days within which to file an amended statement of claim. Paragraphs 1, 2 and 6 of the section dealing with relief sought shall be deleted from the amended statement of claim. Mr. Govereau may wish to add a prayer for relief in the nature of general damages. He may also wish to be more specific as to the Charter relief claimed. The Crown shall have thirty days, following service of the amended statement of claim by mail on counsel for the Crown, within which to file a defence. Costs shall be in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
4 May 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-64-98
STYLE OF CAUSE: Melvin Govereau
Plaintiff,
v.
Her Majesty the Queen,
Defendant.
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF MR. JOHN HARGRAVE, PROTHONOTARY
dated May 5, 1998
APPEARANCES:
| Mr. Melvin Govereau Plaintiff |
| Mr. Simon Fothergill for Defendant |
SOLICITORS OF RECORD:
| Mr. Melvin Govereau Acting on His Own Behalf |
| George Thomson for Respondent HMQ |
Deputy Attorney General
of Canada
__________________
1 In the present instance the Defendant's motion relies, inter alia , on Rules 401 and 419, the former dealing with conditional appearances where jurisdiction is to be challenged and the latter dealing, among other things, with striking out a pleading for want of a reasonable cause of action. The jurisdiction of the Federal Court may be challenged under Rule 419(1)(a): Mobarakizadeh v. Canada (1994) 23 Imm. L.R. (2d) 93. Since the filing of the motion the 1998 Federal Court Rules have come into force. There is no longer the need to file a conditional appearance for a defendant, served with a statement of claim, may object to the jurisdiction of the court without attorning to the jurisdiction of the court. The former Rule 419 is now embodied in an identical rule, Rule 221.
2 In the present instance the Defendant does not go on to say that there is neither an existing body of Federal law by which to dispose of the matter nor that the law on which the case is based is not a law of Canada and therefore I do not need to consider those aspects.
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