Baldasaro v. Levy, docket T-1044-00

Date: 20001011

Docket: T-1044-00

BETWEEN:

REVEREND BROTHER MICHAEL J. BALDASARO AND

REVEREND BROTHER WALTER A. TUCKER

     Plaintiffs

     - and -

JEFFREY A. LEVY

Defendant

     REASONS FOR JUDGMENT

HENEGHAN J.

[1]      The Plaintiffs, Reverend Brother Walter A. Tucker ("Reverend Brother Tucker") and Reverend Brother Michael J. Baldasaro ("Reverend Brother Baldasaro"), appealed from the Order of the Associate Senior Prothonotary, Mr. Peter A.K. Giles, made on August 14, 2000 and amended by Order dated August 28, 2000.

[2]      This appeal is taken by way of Notice of Motion pursuant to the Federal Court Rules, 1998 (the "Rules"), rule 51.

[3]      The Order under appeal provides as follows:

UPON motion, dated the 13th day of July, 2000 on behalf of the Defendant, for:

1. An Order dismissing the Plaintiffs' action, without leave to amend, and with costs on a solicitor-client basis.

IT IS HEREBY ORDERED THAT:

The statement of claim is struck out as revealing no cause of action and the action is dismissed. Costs to the defendant in any event of the cause.

[4]      Reverend Brother Tucker and Reverend Brother Baldasaro allege in their Notice of Appeal that the Associate Senior Prothonotary erred in law in making this Order. The specific grounds of appeal set out in the Notice of Motion are as follows:

1. That the Associate Senior Prothonotary, Mr. A.K. Giles, committed grave error of law when he misinterpreted and misapplied the facts and issues of the claim of the plaintiffs, as set forth in paragraph 1, thereof and others, and declared as the result of such misinterpretation and misapplication that standing did not exist.

2. That the Associate Senior Prothonotary, Mr. A.K. Giles, committed grave error of law when notwithstanding the plain and unequivocal language of the statement of claim, held that the claim of the plaintiffs was an action for "malicious prosecution" and that the plaintiffs were without standing to launch such an action.

3. That the Associate Senior Prothonotary, misread the words found in plaintiff's paragraph 1: "malicious and petty persecution", misinterpreted, misapplied, and by reason thereof erred in law and fact to such an extent as requires this Honourable Court to intervene and set aside the Order dated August 14 2000.

4. Rule 51.(1) of the Federal Court Rules, 1998.

5. Such other and further grounds as this Honourable Court may permit.

[5]      The effect of the Order made by the Associate Senior Prothonotary is to strike out the action commenced by the Plaintiffs. The Plaintiffs have taken this appeal in an attempt to reverse that Order so that they can proceed with their action.

[6]      This action relates to the conduct of a bail hearing which resulted from the commencement of criminal proceedings against the Plaintiffs. On May 15, 2000 the Plaintiffs were charged with offences of possession of marijuana and trafficking in marijuana contrary to the Controlled Drugs and Substances Act, R.S.C. 1996, C-38.8. They were subsequently arrested. They attended in the Ontario Court of Justice in Hamilton for a bail hearing on May 17, 2000. The Plaintiffs allege that their rights were infringed as a result of the conduct of the bail hearing.

[7]      The Plaintiffs say that they were not addressed by their proper titles by Mr. Levy, the Crown prosecutor. Mr. Levy, according to the materials filed, was acting as an agent of the Attorney General for the purposes of the prosecution and he represented the Crown at the bail hearing.

[8]      The Plaintiffs allege that Mr. Levy acted maliciously, unlawfully and unprofessionally in his conduct of their bail hearing. They say that they should not have been required to post bail. They say that they were wrongfully detained in custody overnight, directly as a consequence of the actions of Mr. Levy. They say that Mr. Levy acted contrary to their rights as Canadians citizens. They say that the charges against them for possession of and trafficking of marijuana are contrary to their rights to pursue their religious beliefs, since they claim they require marijuana in Order to conduct religious services.

[9]      The record shows that the Plaintiffs were released from custody upon conditions imposed pursuant to part 16 of the Criminal Code of Canada. The conditions were as follows:

(a)      to report to the Hamilton detachment of the RCMP on the first and third Mondays of each month at 100 Main Street East between the hours of 9 a.m. and 5 p.m. commencing June the 5th 2000;

(b)      remain within the regional municipality of Hamilton-Wentworth except to attend court in any other jurisdiction;

(c)      reside at 535 Barton Street East in Hamilton;

(d)      not possess any passport;

(e)      be in their residence midnight to 6 a.m. every day, unless overnight to attend court proceedings in any other jurisdiction;

(f)      keep the peace and be of good behavior [sic];

(g)      not possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance;

(h)      abstain from the possession, consumption or use of cannabis marijuana or any derivative thereof, controlled drugs and substance;

(i)      not associate with persons known to have a criminal or youth record excepting for co-accused.

[1]      Subsequently, the Plaintiffs sought a review of their bail conditions before the Ontario Superior Court of Justice. They appeared in that court on July 7, 2000. Mr. Justice Stayshn heard the application for review of the bail conditions and reduced the bail conditions, but still required the Plaintiffs to notify the police of any change of residence, refrain from association with persons known to have a criminal record (except each other), and to keep the peace and be of good behaviour.

[2]      On June 14, 2000, this action was commenced. It is taken against Mr. Levy in his personal capacity and alleges breaches of the Plaintiffs' constitutional rights. The Plaintiffs claim damages as follows:

i.      General damages for tort, malicious and petty persecution, defamation of character, unlawful detention and imprisonment, cruel and unusual treatment and punishment and other infringements, violations and denials of their constitutional rights and freedoms and fundamental justice in the amount of $69,000,00 per plaintiff plus costs,

ii.      punitive damages in the amount of $69,000,00 per plaintiff plus costs.

[3]      On July 13, 2000, the Attorney General of Canada (the "Attorney General") filed a motion to strike out the within action pursuant to the Rules, rule 221. The Notice of Motion does not specify any particular subsection under which the Attorney General proceeds. Rather, the Notice of Motion is broadly framed and states the following grounds why this action should be stricken out:

(a)      The matter is beyond the jurisdiction of this Court;

(b)      The matter is res judicata;

(c)      The action does not disclose a reasonable cause of action;

(d)      The action is scandalous, frivolous and vexatious;

(e)      The action is otherwise an abuse of process of the Court;

(f)      Rules 3, 221 and 400 of the Federal Court Rules, 1998; and

(g)      Such further and other grounds as counsel may advise and this Court may accept.

[4]      The motion was heard before Mr. Giles on August 14, and he made an Order striking out the Statement of Claim. On August 28, Mr. Giles filed a further Order, referred to above. This Order makes it clear that the Statement of Claim is stricken out without leave to amend. No reasons were filed with these Orders.

[5]      The disposition of this appeal turns on the standard of review applicable to the appeal from an Order of a Prothonotary. That standard is described in the decision of the Federal Court of Appeal in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 at p. 463:

...as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.), at p. 484, and Lacourcière, J.A., in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:

(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or

(b) they raise questions vital to the final issues of the case.

Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.

[6]      Since the Prothonotary's Order is dispositive of the Plaintiffs' action, I must approach the case on appeal by exercising my discretion as if I had heard the motion to strike, initially. The point of commencement is to assess the Statement of Claim by the test applicable to the striking out of a pleading.

[7]      That test was considered by the Supreme Court of Canada in Hunt v. T & N plc et al (1990), 117 N.R. 321 where Wilson, J., writing for the Court said at p. 345:

...assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action?

    

[8]      The material filed before the Prothonotary and on the hearing of this appeal includes extracts from the transcripts of the proceedings before the Justice of the Peace and the Ontario Superior Court of Justice. These transcripts record the remarks made in both hearings by Reverend Brother Tucker, Mr. Levy, the Justice of the Peace and latterly, Mr. Justice Stayshn.

[9]      The material before the Prothonotary also includes the Statement of Claim which was issued in this Court and an affidavit filed by Eric West Q.C., Senior Counsel with the department of Justice who is responsible for Crown agents in Eastern Ontario.

[10]      The cause of action, according to the Statement of Claim filed, is based upon allegations of malice, petty persecution and breach of constitutional rights. The alleged illegal acts all relate to the manner in which the bail hearing was conducted on May 17, 2000. The bail hearing resulted from the arrest of the Plaintiffs on charges relating to possession and trafficking of controlled drugs.

[11]      As noted above, the test for striking out a pleading is whether it is plain and obvious that the claim discloses no reasonable cause of action. This is the applicable test whether a party is proceeding under rules 221(1)(a) or 221(1)(b) or 221(1)(c) of the Rules. However, there is a practical consequence of proceeding under rule 221(1)(a) of the Rules, as opposed to proceeding under the other rules.

[12]      According to rule 221(2) of the Rules, no evidence shall be presented on a motion for an Order to strike on the grounds that the pleading "discloses no reasonable cause of action". In the present case, the Plaintiffs say that the Associate Senior Prothonotary improperly considered affidavit evidence when dealing with the motion presented by the Attorney General.

[13]      While it is clear that no affidavit evidence can be presented in connection with a motion taken under rule 221(1)(a) of the Rules, it is equally clear that the Attorney General did not identify any specific subsections of rule 221(1) of the Rules in the Notice of Motion which was filed. While this may have been deliberate on the part of the Attorney General, to justify the filing of affidavit evidence, in my opinion no prejudice was caused to the Plaintiffs by any reliance which may be placed upon this affidavit.

[14]      Since I am in the position of exercising my discretion de novo, on the basis of the material that was before the Prothonotary, I too must apply the test set out in Hunt v. Carey Canada Inc., supra. When that test is applied to the circumstances of this case, the issue can be framed as follows: Do the appellants have a reasonable cause of action against the defendant, either for malice, persecution or breach of their constitutional rights arising from his conduct in relation to the bail hearing which resulted from certain criminal charges having been laid against the appellants?

[15]      Malice can support an action for malicious prosecution. The constitutional elements for a successful claim for malicious prosecution has been identified by the Supreme Court of Canada in Nelles v. Ontario, [1989] 2 S.C.R. 170. Those four elements are the following:

a)      the proceedings must have been initiated by the defendant;

b)      the proceedings must have terminated in favour of the plaintiff;

c)      the absence of reasonable and probable cause;

d)      malice, or a primary purpose other than that of carrying the law into effect.

(See J. G. Fleming, The Law of Torts (5th ed. 1977), at p. 598.)

[16]      There is nothing in the Statement of Claim to show that the defendant, Mr. Levy, was responsible for the commencement of criminal proceedings against the appellants which led to the bail hearing. On the basis of the materials filed it appears to me that the bail hearing for the appellants was conducted in accordance with the process laid out in the Criminal Code of Canada, including a review of the original bail conditions. The conduct of the proceedings before the Justice of the Peace and subsequently, before the Ontario Superior Court of Justice is a matter solely within the discretion of the courts involved.

[17]      The Plaintiffs have not shown that they have a cause of action for malicious prosecution.

[18]      No authority was cited to show that persecution gives rise to a civil cause of action in this country. Persecution is most frequently encountered in the context of claims for refugee status.

[19]      The Supreme Court of Canada has dealt exhaustively with the constituent elements of persecution in Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689. A key element in the definition of persecution is the inability of the State to protect its nationals.

[20]      There is no allegation on the face of the Statement of Claim filed by the appellants to show that the State, that is Canada, has failed to provide protection to the Plaintiffs. There is no basis for the allegation that the commencement of criminal charges against them amounts to "persecution".

[21]      The issue arising from the Notice of Motion filed by the Attorney General was whether this Statement of Claim discloses a cause of action.

[22]      There is nothing in the material filed before me to show that there is a justiciable cause of action arising from the Statement of Claim in issue. The criminal proceedings relating to the alleged possession and trafficking in marijuana are not yet disposed of and there is no evidence to show that these charges were laid for any reason other than enforcing the laws of Canada as they now stand.

[23]      As for the general allegation concerning breaches of the Plaintiffs' constitutional rights, I am of the opinion that these allegations are subsumed in the implied claim for malicious prosecution. I have already addressed that issue.

[24]      Accordingly, the appeal is dismissed with costs.

     "E. Heneghan"

     J.F.C.C.

OTTAWA, ONTARIO

October 11, 2000