Date: 20000918
Docket: T-1435-91
BETWEEN:
GAYLE KATHLEEN HORII
Plaintiff
- and -
HER MAJESTY THE QUEEN
THE ATTORNEY GENERAL OF CANADA
THE SOLICITOR GENERAL OF CANADA
THE COMMISSIONER OF CORRECTIONS
THE DEPUTY COMMISSIONER OF CORRECTIONS (PACIFIC)
THE INSTITUTIONAL HEAD OF MATSQUI INSTITUTION
THE INSTITUTIONAL HEAD OF FERNDALE INSTITUTION
Defendants
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] This unsuccessful motion, to strike out portions of the Statement of Claim as moot for want of a reasonable cause of action and by reason of being incapable of success, provides an illustration of the general rule that, subject to special circumstances, a party should be allowed only one opportunity to attack an opponents pleadings.
ANALYSIS
[2] This action, commenced nearly ten years ago, alleges discrimination as a result of a lack of a federal prison for women in British Columbia. The necessary present result is a cooperation agreement between the Federal Crown and the Provincial Crown whereby federal female inmates, including long-term inmates, are incarcerated in provincial jails. Once there they do not have access to the same educational opportunities as do male inmates in federal institutions, including federal institutions in British Columbia.
[3] The Plaintiff sets out in her pleadings that while incarcerated, by special dispensation at the Matsqui Institution, a men's institution, and through injunctive relief she was able to take advantage of a number of programs which were not available to her when she was incarcerated in provincial facilities for women prisoners.
[4] By motion filed 24 November 1998 the Crown sought to strike out the whole of the Statement of Claim, citing all of the grounds in Rule 221, want of a cause of action, immateriality, scandalous, frivolous or vexatious content, delay and abuse of process. Mr. Justice Teitelbaum denied the motion. He referred to all of the grounds listed in Rule 221 and then said "The only serious ground raised by the Defendant for the present motion is that the entire matter before the Court is now moot.". He then went on to dispose of the issue of mootness. On the face of the reasons it appears clear that Mr. Justice Teitelbaum considered the whole of the motion. However counsel for the Defendants notes that the Order appears somewhat more limited:
| The application to strike for reasons of mootness is denied. Costs in the cause. |
Here I think I may rely upon a presumption that a failure to set out expressly that all relevant considerations have been taken into account is not a basis for an appeal by way of an indication that all factors and collateral aspects have not been taken into account: see for example the reasons of Madame Justice McLachlin, as she then was, in R. v. Burns [1994] 1 S.C.R. 656 at 664.
[5] The majority of the Court of Appeal, in very brief unreported reasons of 13 June 2000, in appeal A-437-99, upheld the decision of the Trial Judge, commenting first that the matter was not moot and second that the Crown had not sought to sever claims for relief which the Crown argued were not available by reason of changes to the correctional system.
[6] There are two further points which arise out of the above results: Ms. Horii, while presently not an inmate, is on parole and therefore subject to be summarily re-incarcerated, thus the finding that her action is still pertinent; and second, that the Crown failed in its motion to have the whole of the Statement of Claim struck out, although it is difficult to tell whether the whole of the motion was argued before the Court of Appeal, or just the one serious point which Mr. Justice Teitelbaum found, out of all of the points in the motion to strike out, that of mootness.
[7] The Crown, in the present motion, submits not, as earlier, that the whole of the Statement of Claim is defective, but that certain selected paragraphs ought to be struck out. These paragraphs may be paraphrased by saying that the programs available at the Matsqui Institution, a federal men's prison in British Columbia, are not available to women who are inmates in the federal system in British Columbia because the federal government contracts with the provincial government to house federal women prisoners in provincial institutions. It is the Plaintiff's position that, when in provincial institutions, federal women inmates are bound by the Provincial Statutes, Regulations and Rules and specifically that the programs available to federal women inmates, in provincial institutions, do not measure up to those that are available to male inmates in federal prisons and thus there would be a violation of her section 15 and 25 Charter rights.
[8] The Defendants say that the paragraphs which make these points are moot, frivolous and disclose no reasonable cause of action: the paragraphs which the Defendants seek to delete and the grounds set out in this motion were included in the earlier unsuccessful motion to strike out.
[9] The Defendants also now object to specific portions of the relief sought, portions which are of a declaratory and of an injunctive nature. Here I would note that the permanent injunction, arising out of the present Amended Statement of Claim and the relief sought, granted by the Court of Appeal, preventing a transfer of Ms. Horii to the Province's institution in Burnaby, is still in effect.
[10] I now turn to relevant case law supporting the general rule that a party should be allowed only one chance to attack an opponent's pleadings, unless there are special circumstances. This rule is at least in part based on the principle that a litigant ought not to be faced with a continuing series of motions on similar subjects. Moreover, there is a judicial economy aspect: motions should be a means to getting expeditiously to the hearing of a case on its merits and not on any other agenda. Thus time spent on interlocutory motions should be kept to a minimum: this may be accomplished in part by combining motions, for example a motion seeking particulars as an alternative to striking out and by not traversing old ground, as in the present instance.
[11] Both the combining of motions and the general rule that there should be one opportunity to attack pleadings, were touched upon by Master Conant K.C. in Stonkus v. Stonkus [1946] O.W.N. 701 at 703:
| The defendant also asks that parts of the Statement of Claim be struck out, "on the grounds that the same are prolix and embarrassing". On the 12th of March, 1946, an application by the defendant to strike out parts of the Statement of Claim was argued in this Court and was disposed of on the 30th of March, the defendant's application being allowed and the parts in question struck out. The defendant now asks that certain other parts of the Statement of Claim be struck out. |
| The question as to whether the Statement of Claim offends against Rule 137 [now Rule 139] as tending to "prejudice, embarrass or delay the fair trial of the action" has become res judicata by the disposition of the defendant's previous application for the same purpose, even though the previous and present application do not attack the same parts of the Statement of Claim. It would result in a multiplicity of proceedings and a manifest absurdity to allow a party to an action to attack his opponent's pleadings piece-meal. When a party moves under Rule 137 he must include therein every part of his opponent's pleading which he alleges so that the question as to whether the pleadings offends against a Rule may be determined in one application. |
Master Conant used, as an analogy, the concept of res judicata. In a direct sense it is an apt analogy and indeed an understandable one. However the Alberta Court of Appeal, while in agreement as to the concept, reduced the analogy to a matter of general practice in Grassick et al. v. Calgary Power Co. Ltd. [1948]1 D.L.R. 103 at 106, Mr. Justice of Appeal O'Connor, after referring to the Stonkus case said:
| With all deference to the learned Master I do not see how an order to strike out one paragraph of a pleading can be said to be res judicata on an application to strike out another and different paragraph. I agree that as a matter of general practice, each party should be limited to one motion to strike out but that there may be special circumstances under which a second motion may be made on proper terms as to costs. [emphasis added] |
[12] While there are many other cases which one might touch upon which comment upon and add a gloss to the general rule, including Slan v. Beyak (1973), 3 O.R. (2d) 295 and Great Lakes Lumber & Shipping Ltd. v. Great Lakes Paper Co. Ltd. [1951] O.W.N. 499, I will instead move to cases decided in this Court.
[13] In Speedo Knitting Mills Pty. Ltd. v. Christina Canada Inc. (1985) 3 C.P.R. (3d) 360, Mr. Justice Walsh touched upon Slan v. Beyak (supra) for the proposition at page 297 that:
| Accordingly, at least in cases where there are no special circumstances, the general rule is that there should be one opportunity only afforded to a party to attack his opponent's pleading. Such attach should include a prayer for all remedies in the alternative so that the matter may be dealt with without a multiplicity of proceedings and thereby confirm the general rules of the Court...." [page 363 of Speedo] |
Mr. Justice Walsh went on to touch upon earlier jurisprudence, noted that there was no ulterior motive in the application in Speedo Knitting Mills and then said that he upheld the general principle that there should not be a series of motions with respect to a given pleading and that motions ought to be combined (see page 365).
[14] The next case I will touch upon in the context of allowing one opportunity to strike out a pleading, subject to special circumstances, is the decision of Associate Chief Justice Jerome in Windsurfing International Inc. et al. v. Novaction Sports Inc. et al. (1988), 18 C.P.R. (3d) 230. In that instance there had been a successful motion to strike out a portion of the statement of Claim, followed by two further motions, the subject of an appeal from the Prothonotary, to strike out other aspects of the statement of claim. Those motions were granted and, as I have indicated, appealed. Associate Chief Justice Jerome again referred to Slan v. Beyak (supra) and Speedo Knitting Mills (supra) for the proposition that:
| In both cases the court recognized, as a general rule, that a party should be allowed only one opportunity to attack his opponent's pleadings. However, these decisions also recognize that special circumstances may arise under which a second motion is justified. [page 233] |
This Rule and the observed exception are exemplary principles.
CONCLUSION
[15] That the Trial Division and the Court of Appeal have refused to strike out the Statement of Claim as futile or leading to no useful result does not mean that the Plaintiff's action will succeed, but rather that the Plaintiff ought not to be denied a day in Court.
[16] Since the inception of the action, nearly 10 years ago, there appears to have been no appreciable change in the situation. Indeed, that is implicit from both the way in which the Trial Division and the Court of Appeal have dealt with intervening interlocutory proceedings. Moreover, I have been referred to no relevant change of circumstances by which yet a further attack on the pleadings might be justified. Rather, and here I turn to the aspect of costs, the Plaintiff has been put to the expense of dealing with an attack which is similar to or identical with that which has already been brought and that must sound in costs.
[17] There is no point in requiring a taxation of costs. Rather every effort should be made to avoid further interlocutory intervention. Keeping in mind the Court Tariffs and all of the considerations that go into a consideration of costs, the Plaintiff shall have her costs forthwith in the amount of $1,000.
(Sgd.) "John A. Hargrave"
Prothonotary
September 18, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1435-91
STYLE OF CAUSE: GAYLE KATHLEEN HORII
v.
| HER MAJESTY THE QUEEN ET AL. |
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: August 22, 2000
REASONS FOR ORDER OF HARGRAVE P.
DATED: September18, 2000
APPEARANCES:
| Mr. John Conroy FOR PLAINTIFF |
Mr. Curtis Workun
Ms. Wendy Divoky FOR DEFENDANT
SOLICITORS OF RECORD:
Conroy & Company
Abbotsford, BC FOR PLAINTIFF
Morris Rosenberg
Deputy Attorney General
of Canada FOR DEFENDANT
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