Date: 20020913
Docket: T-894-99
Neutral citation: 2002 FCT 975
Ottawa, Ontario, September 13, 2002
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
DARCY ANDREW BJORGE
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] This is a motion for summary judgment by the defendant pursuant to rules 214 and 219 of the Federal Court Rules, 1998, SOR/98-106, to dismiss the plaintiff's claims on the basis that there is no genuine issue for trial.
[2] In this action the plaintiff is suing the defendant, alleging that the Crown wrongfully revoked his day parole and failed to forward an extension of his day parole through proper channels. He also seeks damages for having to provide a urinalysis test, and for being held in medium security, rather than minimum security following a subsequent revocation of his statutory release.
THE GOVERNING PRINCIPLES
[3] In Granville Shipping v. Pegasus Lines Ltd. (T.D.), [1996] 2 F.C. 853, I summarized the general principles applicable to summary judgment at p. 859-60:
1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not proceed to trial because there is no genuine issue to be tried (Old Fish Market Restaurants Ltd. v. 1000357 Ontario Inc. et al);
2. there is no determinative test (Feoso Oil Ltd. v. Sarla (The)) but Stone J.A. seems to have adopted the reasons of Henry J. in Pizza Pizza Ltd. v. Gillespie. It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;
3. each case should be interpreted in reference to its own contextual framework (Blyth and Feoso);
4. provincial practice rules (especially Rule 20 of the Ontario Rules of Civil Procedure, [R.R.O. 1990, Reg. 194]) can aid in interpretation (Feoso and Collie);
5. this Court may determine questions of fact and law on the motion for summary judgment if this can be done on the material before the Court (this is broader than Rule 20 of the Ontario Rules of Civil Procedure) (Patrick);
6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so (Pallman and Sears);
7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge (Forde and Sears). The mere existence of apparent conflict in the evidence does not preclude summary judgment; the court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved (Stokes). [References omitted].
[4] The Crown's liability is statutory. According to subsection 3(a) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, the Crown can be vicariously liable for tortious acts committed by its servants.
[5] Subsection 3(a) reads as follows:
| Liability
3. The Crown is liable for the damages for which, if it were a person, it would be liable
(a) in the Province of Quebec, in respect of
(i) the damage caused by the fault of a servant of the Crown, or
(ii) the damage resulting from the act of a thing in the custody of or owned by the Crown or by the fault of the Crown as custodian or owner; and [...]
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Responsabilité
3. En matière de responsabilité, l'État est assimilé à une personne pour_:
a) dans la province de Québec_:
(i) le dommage causé par la faute de ses préposés,
(ii) le dommage causé par le fait des biens qu'il a sous sa garde ou dont il est propriétaire ou par sa faute à l'un ou l'autre de ces titres;
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[6] Section 10 provides that the Crown is only liable if the servant would be liable in tort, apart from the Crown Liability and Proceedings Act, supra.
[7] It reads as follows:
| Liability for acts of servants
10. No proceedings lie against the Crown by virtue of subparagraph 3(a)(i) or (b)(i) in respect of any act or omission of a servant of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action for liability against that servant or the servant's personal representative or succession.
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Responsabilité quant aux actes de préposés
10. L'État ne peut être poursuivi, sur le fondement des sous-alinéas 3a)(i) ou b)(i), pour les actes ou omissions de ses préposés que lorsqu'il y a lieu en l'occurrence, compte non tenu de la présente loi, à une action en responsabilité contre leur auteur, ses représentants personnels ou sa succession.
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[8] The plaintiff has the onus of establishing that a servant of the Crown was negligent and can be held personally responsible for the damages claimed.
THE EVIDENCE
The Defendant's evidence
[9] In support of its motion for summary judgment, the defendant relied on the affidavits of Mark Kemball dated July 19, 2002, Regional Manager of the Conditional Release Program of the National Parole Board and of Greg Yanicki dated July 22, 2002. The facts are summarized as follows:
A. Day Parole - Revocation and Extension
[10] On October 21, 1996, the National Parole Board (NPB) granted the plaintiff day parole for six months until April 20, 1997, on the conditions set out in his day parole certificate. The plaintiff was released to Howard House Community Residential Facility (Howard House) in Vernon, British Columbia.
[11] On March 17, 1997, Darlene Wood, a member of the Vernon Parole Office and an employee of Correctional Service Canada, recommended the continuation of the plaintiff's day parole to the NPB.
[12] On April 10, 1997, Darlene Wood received information that the plaintiff had violated conditions of his day parole: he had travelled outside his allowed radius without permission; he had not reported a financial transaction involving an automobile to his parole officer; and he had falsified the log book at Howard House, saying that he was at school when he was in fact, at his girlfriend's.
[13] On April 10, 1997, Darlene Wood suspended the plaintiff's day parole and issued a warrant of apprehension. The plaintiff was arrested that same day.
[14] Howard House was no longer willing to allow the plaintiff to reside there due to his conduct. Darlene Wood considered trying to locate another residence for the plaintiff, until drug paraphernalia was found in the plaintiff's room at Howard House on April 15, 1997. At that point, Darlene Wood no longer supported day parole.
[15] She recommended that the plaintiff's day parole be revoked and referred the matter to the NPB for a decision.
[16] A post-suspension hearing was held before the NPB on May 22, 1997. The NPB cancelled the suspension of the plaintiff's day parole. By that time, however, the plaintiff's day parole had expired and the plaintiff did not have a community residential facility where he could reside. Accordingly, the NPB did not grant day parole, but indicated that it would consider conditional release once a new plan was presented.
[17] The plaintiff did not appeal the NPB's decision.
[18] On June 4, 1997, the New Westminster Area Parole Office recommended that the plaintiff be granted day parole on the basis that he had been accepted for residence at the Hobden Community Residential Facility in Surrey. On June 24, 1997, the NPB granted the plaintiff day parole. On July 4, 1997, the plaintiff was released from the Ferndale Institution to the Hobden Community Residential Facility.
B. Urinalysis Tests
[19] On or about December 28, 1996, the plaintiff was required to provide a urine sample. The defendant has apparently apologized for this test, and references to it in Correctional Service Canada's file have been deleted. The urinalysis did not result in any disciplinary action for the plaintiff nor did it result in any loss of freedom.
[20] Drug paraphernalia was found in the plaintiff's room at Howard House on April 15, 1997. As a result, the plaintiff was required to take a urinalysis test on April 16, 1997.
C. Medium versus minimum security
[21] The NPB directly revoked the plaintiff's statutory release on September 29, 1998, and a warrant was issued for the plaintiff's arrest. Following his apprehension on September 29, 1998, the plaintiff was initially assessed as warranting a medium security placement.
[22] Subsequently, the plaintiff's behaviour was reviewed and a decision was made to classify the plaintiff in accordance with his previous security classification, namely, minimum security.
[23] There were no beds immediately available in minimum security. As a result, the plaintiff was required to stay in medium security until a bed became available. (Affidavit of Greg Yanicki sworn July 22, 2002).
The Plaintiff's evidence
[24] The plaintiff's affidavit in response does not disclose any specific facts in support of his statement of claim. A simple statement that Darlene Woods disliked him and was out to get him does not provide credible evidence to the Court. Further, in discovery he admitted that he had breached conditions of his day parole.
[25] Pursuant to Rule 215 of the Federal Court Rules, 1998 a respondent party to a motion for summary judgment shall not rest merely on allegations or denials of the pleadings of the moving party, but must set out specific facts showing that there is a genuine issue for trial.
[26] It is settled law that a party responding to a motion for summary judgment must put its best foot forward before the Court, demonstrating that there is a genuine issue for trial.
ANALYSIS
[27] After a review of the evidence before me and having a "hard look" at the merits of this case, I am satisfied that the allegations are not supported by the facts or the law.
A. Day Parole - Revocation and Extension
[28] The plaintiff claims that his day parole was revoked negligently with malicious intent by Correctional Service Canada on April 10, 1997.
[29] Firstly, as pointed out by the defendant, Correctional Service Canada has no authority to revoke the plaintiff's parole, only the NPB can revoke day parole. The plaintiff's day parole was not revoked on April 10, 1997, it was suspended.
[30] Secondly, the evidence before me does not support a claim that the suspension was committed in bad faith. The evidence clearly supports the position that the plaintiff breached conditions of his day parole and that it was therefore reasonable to suspend his day parole. In doing so, the parole officer exercised the authority and discretion given to her by the Correctional and Conditional Release Act, S.C. 1992 c. 20 (CCRA).
[31] There is no evidence before me to support an allegation that her discretion was exercised unreasonably.
[32] The plaintiff complains of the revocation of his day parole, alleging that he should have been on day parole from April 10 to July 2, 1997.
[33] The evidence before me indicates that the NPB did not revoke the plaintiff's day parole at any time during the period complained of in the statement of claim. The plaintiff's six-month day parole expired before the NPB hearing on May 22, 1997. As the plaintiff was no longer welcome at Howard House, the NPB did not grant him day parole. The NPB indicated that it would consider conditional release once a new plan was presented to it. The plaintiff was released soon after on day parole, on the authority of the NPB's decision of June 24, 1997.
[34] On these facts, I can find no claims against the members of the NPB. They did not revoke the plaintiff's day parole and there is no evidence to indicate that they acted in bad faith in rendering their decisions on May 22 and June 24, 1997.
[35] Further, there is no evidence to support the plaintiff's claim that Correctional Service Canada negligently failed to forward an extension of the plaintiff's day parole through proper channels. To the contrary, the evidence shows that Correctional Service Canada did forward a recommendation to the NPB for continuation of the plaintiff's day parole. (Motion Record of the Defendant, Exhibit B at 12).
B. Urinalysis Tests
[36] The defendant conceded that the urinalysis test demanded on the plaintiff on or about December 10, 1996 many not have been authorized by the CCRA. The evidence before me indicates that the plaintiff received apologies and that the results of that test have been expunged from his Correctional Service file.
[37] Given these facts, the minimal physical inconvenience and that no disciplinary action or loss of freedom resulted as a consequence, I am satisfied that the effect on the plaintiff was so minimal that it could on its own warrant an award of damages.
[38] The April 16, 1997 urinalysis was conducted following the discovery of drug paraphernalia in the plaintiff's room at Howard House on April 15, 1997.
[39] Subsection 54(a) of the CCRA authorizes staff members of Correctional Service Canada to conduct urinalysis tests where they have reasonable grounds to believe that an inmate has taken an intoxicant.
[40] Subsection 54(a) reads as follows:
| Urinalysis
54. Subject to section 56 and subsection 57(1), a staff member may demand that an inmate submit to urinalysis
(a) where the staff member believes on reasonable grounds that the inmate has committed or is committing the disciplinary offence referred to in paragraph 40(k) and that a urine sample is necessary to provide evidence of the offence, and the staff member obtains the prior authorization of the institutional head;
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Analyses d'urine
54. L'agent peut obliger un détenu à lui fournir un échantillon d'urine dans l'un ou l'autre des cas suivants_:
a) il a obtenu l'autorisation du directeur et a des motifs raisonnables de croire que le détenu commet ou a commis l'infraction visée à l'alinéa 40k) et qu'un échantillon d'urine est nécessaire afin d'en prouver la perpétration;
[...]
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[41] The jurisprudence has clearly established that urinalysis tests performed pursuant to the CCRA do not engage the Canadian Charter of Rights and Freedoms.
[42] Consequently, the plaintiff cannot claim any damages for the April 16, 1997 test.
C. Medium versus minimum security
[43] The evidence shows that when the plaintiff's statutory release was revoked by the NPB on September 29, 1998, he was assessed taking into account factors indicating risk. These factors included: revocation of the plaintiff's statutory release by the NPB effective September 29, 1998; a special report dated October 15, 1998, from the plaintiff's parole officer; and the outstanding charges. Given these factors, it was determined that medium security was warranted.
[44] The plaintiff's security placement was later reconsidered and on May 13, 1998 he was allowed to stay in minimum security. Once a bed became available, he was moved to minimum security.
[45] These facts do not establish a tort on the part of the defendant.
[46] In summary, the claims alleged are not supported by the facts. The plaintiff has not provided any evidence that would support a viable legal action.
[47] The defendant's motion for summary judgment is granted and the plaintiff's action against the defendant is dismissed with costs.
ORDER
THIS COURT ORDERS THAT
The defendant's motion for summary judgment is granted and the plaintiff's action against the defendant is dismissed with costs.
"Danièle Tremblay-Lamer"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-894-99
STYLE OF CAUSE: DARCY ANDREW BJORGE v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: SEPTEMBER 11, 2002
REASONS FOR ORDER OF MADAM JUSTICE DANIÈLE TREMBLAY-LAMER
DATED: SEPTEMBER 13, 2002
APPEARANCES:
LEE JAMES OLESEN,
ROBERT A. PHILP FOR PLAINTIFF
BRENDA KAMINSKI FOR DEFENDANT
SOLICITORS OF RECORD:
OLESEN LAW OFFICE
ST. ALBERT, ALBERTA FOR PLAINTIFF
MORRIS ROSENBERG
DEPUTY ATTORNEY
GENERAL OF CANADA
OTTAWA, ONTARIO FOR DEFENDANT
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