Date: 20020617
Docket: T-230-02
Neutral Citation: 2002 FCT 684
Ottawa, Ontario, this 17th day of June, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
STEPHEN M. BYER
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
a. The defendant by motion pursuant to Rule 369 and Rule 221(1)(a) of the Federal Court Rules, 1998, SOR/98-106, seeks to strike the plaintiff's amended statement of claim on the grounds that it discloses no reasonable cause of action.
b. On February 12, 2002, the plaintiff filed a statement of claim seeking relief in the amount of $2,950,000.00 plus interest and costs against the defendant as a result of actions allegedly taken by servants of the defendant, more specifically a former attorney with the Department of Justice and an attorney currently with the Department of Justice.
c. On April 2, 2002, the plaintiff served the defendant and filed an amended statement of claim and a notice of constitutional question.
d. I believe it useful to reproduce paragraph 24 of the plaintiff's amended statement of claim which, in my view, sets out the essence of the plaintiff's claim:
Mr. Michel Lecours, a retired Federal Crown Attorney, formerly with the Department of Justice Canada and Me. Joanne Granger, a Federal Crown attorney, presently with the Department of Justice Canada, have together, maliciously and without colour of right, conspired to have the Plaintiff charged and prosecuted by the Bar of Montreal thereby violating the Constitution of Canada (1867) as well as his charter rights to personal security and his right to be free from prosecution for no offence under the Laws of Canada, the Canadian Charter or Rights and Freedoms (1982, c. 11 [U.K.] Sch. B in R.S.C., 1985, App. II, no 44) and the Charter of Human Rights and Freedoms (R.S.Q., c. C-12);
e. The plaintiff's action is founded on the alleged role of attorneys Lecours and Granger in the eventual filing, by the Barreau de Montréal, of a penal proceeding against the plaintiff charging that he had illegally practised the profession of advocate contrary to the provisions of paragraphs 128.1(b) and 133(a)(b) and (c) of an Act Respecting the Barreau du Québec, R.S.Q., c. B-1.
f. A review of the amended statement of claim makes it clear that the cause of action against the defendant is the "alleged conspiracy" by Her two servants.
g. The defendant advances two arguments on this motion. First, that the plaintiff's action is prescribed. Second, that the amended statement of claim discloses no reasonable cause of action and should be struck.
h. With regards to the first argument, the defendant contends that the events alleged by the plaintiff, notably the malicious conspiracy to have the plaintiff charged by the "Barreau de Montréal" obviously occurred prior to charges being laid by the "Barreau du Québec" on May 12, 1997. The defendant argues that the prescription period should run from this date, May 12, 1997. The within action was filed 4 years and 9 months after this date and is therefore time barred.
i. Section 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 and amendments) provides for the application of provincial prescription and limitation periods in proceedings against the Crown.
32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose.
32. Sauf disposition contraire de la présente loi ou de toute autre loi fédérale, les règles de droit en matière de prescription qui, dans une province, régissent les rapports entre particuliers s'appliquent lors des poursuites auxquelles l'État est partie pour tout fait générateur survenu dans la province. Lorsque ce dernier survient ailleurs que dans une province, la procédure se prescrit par six ans.
j. Article 2929 of the Civil Code of Québec provides a one year prescription period for an action in defamation which runs from the day on which the defamed person learned of the defamation. Article 2925 of the Civil Code of Québec sets the prescription period for any other personal right:
2925. An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise established.
2925. L'action qui tend à faire valoir un droit personnel ou un droit réel mobilier et don't le délai de prescription n'est pas autrement fixé se prescrit par trois ans.
k. The defendant argues that the three year general prescription period applies in the instant case and since the "alleged conspiracy" upon which the action is based obviously occurred before the said charges were laid on May 12, 1997, the plaintiff's action filed on February 12, 2002, is prescribed.
l. The plaintiff argues that the 3 year prescription period has not expired since he was only given the names of those persons who were the authors of the alleged conspiracy on November 19, 2001, as a result of disclosure of all the material facts leading to the institution of the penal charges against him.
m. Striking out proceedings on the basis of a time bar is not usually allowed. A plea of limitation is appropriately raised in a defence and argued at the hearing. This Court has, in exceptional cases, "...where no arguable issues concerning the timing of the decision or its communication to the applicant:", struck out applications commenced in excess of the limitation period. [Professional Service Institute of the Public Service of Canada v. Canada (Customs and Review Agency), [2001] F.C.J. No. 104, online: QL; Jowanda v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 995, online: QL.]
n. In the instant case there exist, in my view, arguable issues concerning timing. The plaintiff argues that he only became aware of the actions of the defendant's servants and their alleged actions upon which the plaintiff bases his case, when he was provided particulars of the prosecution. In my view, the timing, as to when the three year prescription period begins, is by no means sufficiently clear to allow summary dismissal of the application on this basis.
o. The plaintiff further argues that since the penal charges against him are still pending, he has not yet suffered damages from the alleged actions of the defendant but is still exposed to the "danger" of a conviction which could yet have an impact concerning his personal rights including defamation. The plaintiff consequently contends that any prescription period would only run from the time the penal charges are fully disposed of.
p. I am of the view that this latter argument is without merit. Paragraphs 24 and 25 of the amended statement of claim specifically pleads that the plaintiff "has suffered and will likely suffer harm from the actions of the plaintiff." The plaintiff's argument is directly contradicted in his own amended statement of claim.
q. The respondent's second argument is that the amended statement of claim discloses no reasonable cause of action and should be struck. The respondent contends that the defendant has no authority to file penal proceedings against anyone with regard to the alleged illegal exercise of the profession of advocate. This responsibility falls to the Québec Bar pursuant to provincial legislation. The respondent therefore argues that since the decision to file and pursue proceedings against the plaintiff does not lie with the defendant or Her servants, such cannot serve as a basis for a cause of action against Her.
r. The plaintiff claims that the defendant and Her servants ( Me Joanne Granger and Mr. Michel Lecours) "...have together, maliciously and without colour of right, conspired to have the Plaintiff charged and prosecuted by the Bar of Montreal..."
s. It may well be that the decision to pursue the plaintiff for illegal exercise of the profession of advocate does not lie with the defendant. However, the claim is that the defendant and Her servants have maliciously conspired "to have" the plaintiff charged. The tort of conspiracy requires both the intention and the agreement of two or more persons to do a lawful act by unlawful means or to do an unlawful act. The alleged claim by the plaintiff against the defendant falls within the former category.
t. In paragraph 18 of the amended statement of claim, the plaintiff refers to Me Lecours' letter of May 29, 1996, as a "...serious and harmful written endeavour of Me Lecours to denounce the plaintiff criminally in the matter concerning the nature of the present case..."
u. Further in paragraph 20 of the amended statement of claim, the plaintiff states:
It is obvious that the Defendant's servants, namely, Me. Joanne Granger, has also seen fit to conduct herself, along with active participation of Me. Michel Lecours, as the Chief Witness for the prosecution, as the primary party to recommend in Her official capacity as a member of the Infractions Committee of the Bar of Montreal in the Provincial jurisdiction, the institution of criminal proceedings against the Plaintiff;
v. In paragraph 22 of the amended statement of claim, the plaintiff pleads that the defendant is vicariously liable for the actions of Her servants.
w. The pleadings may be deficient in particulars, however, for the purpose of a motion to strike for lack of a cause of action, the allegations in the pleadings are deemed to be proven. In this instance, I am of the view that the deficiencies in the pleadings may be addressed by a request for particulars.
x. I conclude that the defendant has not met the onus of establishing beyond doubt that it is plain and obvious that the action will fail. [Hunt v. Carey Canada Inc. [1990] 2 R.C.S. 959 and[1980] 2 S.C.R. 735">Canada (A.G.) v. Inuit Tapirisat of Can., [1980] 2 S.C.R. 735.]
y. For the above reasons the motion will be dismissed.
ORDER
THIS COURT ORDERS that:
1. The motion by the defendant pursuant to Rule 221(1)(a) and Rule 369 of the Federal Court Rules, 1998, to strike the plaintiff's amended statement of claim is dismissed.
2. The plaintiff will have his costs in the cause.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-230-02
STYLE OF CAUSE: Stephen M. Byer v. Her Majesty the Queen in Right of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: by way of Rule 369
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: June 17, 2002
APPEARANCES:
Stephen M. Byer FOR PLAINTIFF / APPLICANT
Daniel Latulippe FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Stephen M. Byer FOR PLAINTIFF/APPLICANT
254 Berlioz Street, Apt. 408
Verdun, Québec H3E 1P9
Morris Rosenberg FOR DEFENDANT/RESPONDENT
Deputy Attorney General of Canada
Department of Justice
QRO - Guy Favreau Complex
200 René-Lévesque Blvd West
East Tower, 5th Floor
Montréal, Québec H2Z 1X4
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