Gustavson v. Canada, 2003 FCT 213

Date: 20030220

Docket: T-16-03

Neutral citation: 2003 FCT 213

Vancouver, British Columbia, Thursday, the 20^th day of February, 2003

Present:           THE HONOURABLE MR. JUSTICE LEMIEUX

BETWEEN:

                                                             ORVILLE GUSTAVSON

                                                                                                                                                          Plaintiff

                                                                              - and -

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                               REASONS FOR ORDER AND ORDER

[1]                 These reasons relate to a motion by the defendant to strike the plaintiff's statement of claim issued on January 3, 2003.

[2]                 The plaintiff is a dangerous offender serving an indeterminate sentence at Kent Institution, a maximum security penitentiary located in Agassiz, British Columbia, and operated by the Correctional Services of Canada (the "CSC"). He is a self-represented litigant who drafted his pleading and filed it in his own handwriting in this court.

[3]                 The plaintiff in his claim recites a series of events which he says happened to him recently in prison: (1) his display of anger (knocking books off a desk) at his being exposed to toxic chemicals when performing his job as a school cleaner in the prison; (2) placement in and out of segregation several times starting on July 16, 2002; and (3) a conviction and 30-day sentence by a Disciplinary Court in September 2002.

[4]                 The relief sought in his claim is the following:

(1)         habeas corpus to compel his immediate release from segregation into the prison population;

(2)         reinstatement as a school cleaner;

(3)         an order giving his single cell back; and

(4)         damages "at least up to $50,000.00 for the severe amount of damage done to me because I have been in prison for over 22 years solid to date and the amount of damage done to me contrary also to the Charter...".

[5]                 The grounds relied on by the defendant are paragraphs 221(a) no reasonable cause of action, 221(c) the claim is frivolous, vexatious and 221(f) is otherwise an abuse of process, all as provided for in the Federal Court Rules, 1998 (the "Rules").

[6]                 I agree with the defendant this action should be struck without leave to amend for the reasons outlined below, with liberty to the plaintiff to commence a new action or perhaps seek judicial review taking into account the comments I am making below.

[7]                 First, it is plain and obvious the relief he seeks for his release from segregation, his reinstatement as a school cleaner and an order giving him back his single cell can only be obtained by judicial review and not by action. Subsection 18(3) of the Federal Court Act is explicit on the point.

[8]                 However, the plaintiff should not jump to any quick conclusion about seeking judicial review. A good case can be made that the orders he would seek by judicial review should first be sought by way of the grievance procedure provided for in the Corrections and Conditional Release Act and Regulations.

[9]                 Second, I have read and reread several times the plaintiff's statement of claim and I asked myself the question - if I was the defendant could I file a statement of defence which could respond to the allegations made so as to define the issues between the parties without endless motions being made which take up the Court's resources and can be avoided by new pleadings?

[10]            The answer to this question is no and there are several reasons for this: (1) the plaintiff's pleadings are confusing and disjointed; (2) the plaintiff recites events he says happened to him, but does not allege if those actions are unlawful and why; (3) he pleads no material facts to underpin his damage claim; (4) the events he recites "hang up in the air" and appear to be bare allegations without "bringing it home".

[11]            In the circumstances, I find that the plaintiff's pleadings have breached rules 174, 181 and 182 of the Rules, and should be struck without liberty to amend because I do not see how they could be amended. It is best that the plaintiff start over.

                                                                            ORDER

THIS COURT ORDERS that the plaintiff's statement of claim is struck without leave to amend.

(Sgd.) "F. Lemieux"

Judge

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-16-03

STYLE OF CAUSE:                           ORVILLE GUSTAVSON

v.

HER MAJESTY THE QUEEN

MOTION IN WRITING WITHOUT APPEARANCE OF COUNSEL

PURSUANT TO RULE 369

REASONS FOR ORDER AND ORDER:                           LEMIEUX J.

DATED:                                                                                       February 20, 2003

SOLICITORS OF RECORD:

Orville Gustavson                                                                           on his own behalf

Kent Institution

Agassiz, B.C.

Morris A. Rosenberg                                                                      for Defendant

Deputy Attorney General of Canada