Maroney v. Canada, 2002 FCT 801

Date: 20020718

Docket: T-678-02

Neutral citation: 2002 FCT 801

BETWEEN:

                                                       JAMES PATRICK MARONEY

                                                                                                                                                         Plaintiff

                                                                                 and

HER MAJESTY THE QUEEN

                                                                                                                                                   Defendant

                          REASONS FOR ORDER

HARGRAVE P.

[1]                              The Statement of Claim in this matter, giving it a fair and reasonable reading, does not primarily seek damages or seek declaratory relief, emphasizing one over the other, but seeks various types of damages and a declaration both that the Plaintiff was wrongfully terminated that he was and wrongfully denied re-admission to the Royal Canadian Mounted Police (RCMP) Cadet Training Programme.

[2]                              The Defendant, by motion in writing, seeks to strike out the whole Statement of Claim for want of jurisdiction, want of reasonable cause of action, by reason of scandalous, frivolous and vexations content and by reason of abuse of the Court's process. To achieve that end the Defendant must satisfy the heavy burden of showing it to be plain, obvious and beyond doubt that the action cannot succeed.

CONSIDERATION

Want of Jurisdiction

[3]                              The Defendant's argument, as to want of jurisdiction, is that the Plaintiff may not have declaratory relief in an action against the RCMP as a federal board, commission or other tribunal: the Commissioner of the RCMP is a federal board when engaging or dismissing someone from the RCMP, as set out in McCleery v. The Queen [1974], 2 F.C. 339 at 347 - 348 (F.C.A.). Such declaratory relief, against a federal board, may only be obtained by judicial review and here I refer to Khaper v Canada (1999), 178 F.T.R. (F.C.T.D.) 68 at 74 and following, upheld (1999), 182 F.T.R. 78 (F.C.T.D.) and subsequently by the Federal Court of Appeal (2001), 268 N.R. 370. Also among the cases bolstering the view that the remedies provided under section 18(3) of the Federal Court Act, declaratory relief arising out of a review of the decision of a federal board or tribunal, may only be obtained on judicial review are Mobarakizadeh v. Canada (1993), 72 F.T.R. 30, a decision of Mr Justice McKeown, at 33 and Afram v. Canada (1994), 88 F.T.R. 224, a decision of Mr Justice Nadon, as he then was, at 225. On this basis the plea for declaratory relief is not good and cannot be maintained, as such, in the present action.

[4]                          Interestingly, when Khaper was initially heard and decided no reference was made to the then very current decision in Ward v Samson Cree Nation No. 444, now reported (1999), 247 N.R. 254 (F.C.A.), a case upon which the Plaintiff relies. In the Ward action the motions judge had allowed amendment of the statement of claim so that it included, among other things, a plea for declaratory relief. In Ward, at issue on the appeal was whether declaratory relief might be obtained, in an action against a Band council, the council acting as a federal board when it made a particular decision. While the authority of the Court to grant declaratory relief, against a federal board, is confined by section 18(3) of the Federal Court Act to judicial review applications, Chief Justice Issac looked upon an amendment to the statement of claim seeking a declaration, as a declaration of right, within section 64 of the Federal Court Rules and thus properly brought by an action, as opposed to a declaration setting aside the decision of the Band council. The view was a minority view, with justices of appeal DéCary and Rothstein pointing out that it was unnecessary to decide whether declaratory relief might be sought outside of a judicial review proceeding, noting that they were reluctant to accept what seemed to be suggested by the Chief Justice:

             Justices DéCary and Rothstein then went on to point out that the proper remedy would be pursuant to section 18.4(2) of the Federal Court Act, which allows, in appropriate circumstances, that judicial review be treated and proceeded with as an action, for it would be senseless to require one set of relief to be pursued in judicial review proceeding, with other directly related relief to be pursued in a parallel action:

In the result, the Court of Appeal allowed the declaratory portion of the relief to continue as an action, for that was, in their view, what the motions judge, had he been alerted to the possibility, ought to have ordered.

[6]                              In this instance, a plea by Mr Moroney, for declaratory relief, has no place as relief in an action unless it were in the guise of a judicial review remedy to be treated as and proceeded with as an action pursuant to section 18.4(2). Thus, in my order to give effect to the reasons of the Court of Appeal in Ward, the Plaintiff in the present action will have 45 days within which to either obtain consent to the application of 18.4(2) or to set an appropriate motion.

Time Bar

[7]                              The Defendant submits that the Plaintiff is out of time within which to seek judicial review, the decision giving rise to this proceeding possibly occurring in March and in May 2001, about a year before the Statement of Claim was issued. This is not a ground upon which to strike out. A better view is that pleading will not generally be struck out on the basis of a time bar. This is both because a time bar is merely a procedural defence which the defendant may elect to plea and because a plaintiff has no obligation to plead all of the facts which may go to demonstrate a timely action. A time bar is just a tool for the defendant to use at a later date, for example by pleading limitation and then setting the matter down as a question of law before the trial. In cases establishing these propositions are referred to BMG Music Canada Inc. v. Vogiatzakis (1996), 67 C.P.R. (3d) 27 (F.C.T.D.) at 33 - 34, (1996), 110 F.T.R. 34 at 41.

Nature of the Statement of Claim

[8]                          I do not see that the whole of the Statement of Claim ought to be struck out because, in the view of the Defendant, it seeks judicial review in the guise of an action in contract and in tort. Taking the Statement of Claim at face value, it contains claims for damages in both contract and in tort. However, the Defendant refers to section 3 of the Crown Liability and Proceedings Act, R.S., 1985, c. C-50, s. 3; as amended 2001, c. 4, s. 36:

This section creates both the vicarious liability of the Crown and the right of action in tort against the Crown. From here the Defendant analyses the wrong alleged in the Statement of Claim, as being in the nature of undue influence. Here the Defendant relies upon the initial decision in Khaper (supra) for the proposition that undue influence does not trigger any right or any relief against the Crown under section 3 of the Crown Liability and Proceedings Act. I would summarize undue influence is an equitable principle which comes into play when a party consenting to a transaction has not given free consent by reason of exposure to influences from the other party which deprive him or her of the free use of judgment. In such a situation, equity will set aside a transaction. While the Defendant, in the present instance, does not particularly elaborate on this aspect in the written submissions, I understand the argument to be parallel to that in Khaper, namely that the Crown is not responsible for errors, blunders, omissions, neglect or excess of authority of its officers or servants unless such liability has been expressly created by statute: Gariepy v. R. [1940], 2 D.L.R. 12 (Can. Ex. Ct.) at 22 and 24.

[9]                               The analysis in Khaper was to the effect that there being no separate tort of undue influence under Canadian law, undue influence could be a psychological tort, such as intimidation or the intentionally infliction of nervous shock. However in Khaper, the plaintiff was neither threatened nor physically injured and there I refer to Steeves v. Canada [1995], 95 F.T.R. 115 at 122 and following. In Khaper the court considered the common law concept of duress which is a tort, but which involves actual or threatened violence or unlawful arrest and which has been expanded to include pre-existing emotional distress, combined with a threatening attitude and the application of brandy which rendered a person unable to protect herself and, thus, deserving equitable relief as in Mundinger v. Mundinger, [1969] 3 D.L.R. (3d) 388 (Ont.C.A.) at 341.

[10]                         Where all these arguments break down in the present instance is in an examination of the Statement of Claim, which does not even need a generous reading to conclude that other than for allegations in paragraphs 7, 8 and 11, which sound in many remedies, including intimidation and negligent or fraudulent misrepresentation, the Statement of Claim is based on contract. Intimidation and fraud or misrepresentation, which make up the tort of deceit, are proper pleas within section 3 of the Crown Liability and Proceedings Act. The argument of the Defendant, based upon undue influence not triggering any right or any relief against the Crown has no application and thus fails.

Particulars Provided in the Statement of Claim

[11]                         I have considered the Defendant's argument that the pleading is defective in that it is so barren of specific particulars as to prevent the Defendant from making either proper investigation or proper response. Here I note that this argument is made without any request for particulars in the motion and, apparently, without any prior demand for particulars.

[12]                         The Statement of Claim sets out a chronological narrate of events and refers to various involved individuals who were in the employment of the Crown. The Statement of Claim appears reasonably drafted, being a concise statement of material facts, without evidence. There seems to be nothing which would prevent the Defendant from making reasonable investigation and giving a proper response. Indeed, there is no evidence that the Defendant is unable to plead to the Statement of Claim, or requires particulars in order to plead to the Statement of Claim.

CONCLUSION

[13]                         The Defendant's motion fails, except as to the objection to the plea for a declaration of wrongful termination set out in paragraph 1(h) of the Statement of Claim. The accompanying order provides that the Plaintiff may have 45 days within which to either obtain consent to the application of section 18.4(2) of the Federal Court Act, or to set an appropriate motion, in order to have this portion of the Statement of Claim, which is judicial review, dealt with as an action, as was done by the Court of Appeal in Ward v. Samson Cree Nation No. 444 (supra).

(Sgd.) "John A. Hargrave"

                                                                                                             Prothonotary

Vancouver, British Columbia

18 July 2002

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                            T-678-02

STYLE OF CAUSE:                        James Patrick Maroney v. HMQ

PLACE OF HEARING:                   Motion in writing

DATE OF HEARING:                      -

REASONS FOR ORDER:            Hargrave P.

DATED:                                               18 July 2002

APPEARANCES:

-                                                                                                       FOR PLAINTIFF

-                                                                                                       FOR DEFENDANT

SOLICITORS OF RECORD:

Dinning Hunter Lamert & Jackson FOR PLAINTIFF

Barristers and Solicitors

Victoria, British Columbia

Morris Rosenberg                                                                       FOR DEFENDANT

Deputy Attorney General of Canada

Vancouver, British Columbia