Native Transfer Committee At Mountain Institution v. Solicitor General of Canada, docket T-1940-96

     T-1940-96

Between:

     NATIVE TRANSFER COMMITTEE AT MOUNTAIN

     INSTITUTION ON BEHALF OF ITS MEMBERS, AND

     ON BEHALF OF ALL ABORIGINAL OFFENDERS OF

     THE CORRECTIONAL SERVICE OF CANADA,

     Plaintiffs,

     - and -

     SOLICITOR GENERAL OF CANADA,

     Defendant.

     REASONS FOR ORDER

JOHN A. HARGRAVE

PROTHONOTARY

     A Native Transfer Committee at Mountain Institution, consisting of and represented by five members of the Federal Penitentiary in Agassiz seeks, on behalf of some 1,800 aboriginal inmates, the implementation of section 81 of the Corrections and Conditional Release Act chapter 44.6 of the Statutes of Canada (also called the "Act"). Section 81 of the Act is permissive legislation which allows the Solicitor General of Canada to enter into agreements, with aboriginal communities, for the transfer of an offender into the care and custody of such communities. The Defendant submits the action should be struck out for a variety of reasons.

     Notwithstanding that this action seems to have been commenced in good faith I have concluded the action will not, for an number of plain and obvious

reasons, succeed and therefore ought to be struck out. But rather than merely provide such an order, which might leave the Committee none the wiser as to why it's action is ill fated, I have prepared these reasons.

ANALYSIS

     I have not dealt with all the points made by counsel for the Defendant in her written brief, but rather only with those which might or do succeed. I turn first to the legislation referred to in the statement of claim.

Applicable Legislation

     Section 3 of the Act sets out the purpose of the Correctional Service of Canada. It provides in part that the "...federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by...(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.".

     Section 81 of the Act allows the Solicitor General of Canada to implement a community program by which offenders are placed in the care and custody of an aboriginal community:

81.      (1) The Minister, or a person authorized by the Minister, may enter into an agreement with an aboriginal community for the provision of correctional services to aboriginal offenders and for payment by the Minister, or by a person authorized by the Minister, in respect of the provision of those services.

(2) Notwithstanding subsection (1), an agreement entered into under that subsection may provide for the provision of correctional services to a non-aboriginal offender.

(3) In accordance with any agreement entered into under subsection (1), the Commissioner may transfer an offender to the care and custody of an aboriginal community.

From the material filed I understand the Minister has not yet put section 81 into practice.

     The Plaintiff committee, on behalf of its members and on behalf of all aboriginal offenders, refers to sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms, Schedule B to the Constitution Act of 1982 which provide:

7      Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

24(1) Anyone who's rights or freedoms, as guaranteed by the Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

and then seeks by declaration and by mandamus to require the Solicitor General of Canada to put section 81 of the Act into action.

Test for Striking Out

     The Defendant submits the statement of claim ought to be struck out under rule 419(1)(a) as disclosing no reasonable cause of action, or in the alternative various portions of the statement of claim ought to be struck out under subsections (b) through (f) of rule 419(1) as scandalous, frivolous or vexatious, or otherwise as an abuse of the process of the court.

     In Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Madam Justice Wilson enunciated the definitive statement on the test to be applied in striking out a pleading:

Most recently, in Dumount v. Canada (Attorney General), [1990] 1 S.C.R. 279, I made clear at p. 280 that it was my view that the test set out in inuit Tapirisat was the correct test. The test remained whether the outcome of the case was "plain and obvious" or "beyond reasonable doubt".

Thus, the test in Canada...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? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driving from the judgement seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. (p. 980)

The test I must apply, in deciding whether to strike out the Plaintiffs' statement of claim (or portions of it) is whether it is plain and obvious, or phrased in another way, beyond reasonable doubt, that the action will not proceed. Indeed, Madam Justice Wilson went on to say that only if an action was certain to fail by reason of a radical defect ought material to be struck out.

Standing of the Committee

     Turning to the Defendant's submissions, the first is that the Plaintiff, the Native Transfer Committee at Mountain Institution, has no capacity or standing to bring an action in the Federal Court, but in any event, as and unincorporated association, the Committee may not be represented before the court by anyone other than a lawyer. In support of the first portion of this proposition the Defendant refers to Federal Court Rule 2, which defines a plaintiff as including ".. any person by whom, or on who's behalf, a proceeding in the Trial Division is instituted;" the Defendant then notes that rule 300(1) allows an individual to act in person, but that rule 300(2) requires that a corporation be represented by a lawyer, subject to the court granting leave for representation of a officer of the corporation. From this the Defendant concludes that as the Plaintiff is neither an individual nor a corporation it can not come before the court.

     Several observations come immediately to mind. First, the definition of plaintiff in rule 2 is not specific, but rather one which includes those instituting a proceeding.

     Second, rule 1713(1) allows persons to be sued in the name or style in which they are carrying on business and this leads to the reasons of Mr. Justice Thurlow in CRTC v. Teleprompter Cable Communications Corporation, [1972] F.C. 1265. In the Teleprompter case the trial judge had held that the CRTC was a suable entity: the CRTC appealed that decision. Mr. Justice Thurlow pointed out that the CRTC was not a body corporate or entity having a legal personality distinct from that of its members and that Teleprompter might well have joined as defendants the members of the CRTC in their own names or by the name of their office. He then said:

Save in the case provided for by Rules 1708 to 1714 I know of no rule of the Court which authorizes the naming of a group of defendants by the name of the group but on the other hand no rule of the Court of which I am aware prohibits such a practice and it seems to me that the practice of naming the group by its statutory name is particularly convenient and appropriate in a case such as this where the principal object of the proceeding is to obtain a determination of the scope of the authority conferred by statute on the group o persons. In my opinion therefore the appellant's objection is technical and without merit and should be rejected. (p. 1267)

Now it would be stretching Mr. Justice Thurlow's observation to an extreme if one were to allow an unincorporated entity such as the Native Transfer Committee to be a plaintiff in its own name and not require the individuals to bring a representative action in their own names. Indeed, the general rule is that unincorporated bodies are not legal persons and therefore do not have the capacity to sue or be sued. However, if I were to strike out the statement of claim only on this basis I would in this instance allow an amendment to the style of cause to substitute, for the Committee, the individual members of the Committee in their own names as plaintiffs.

     Third, that the Plaintiff is not, at this point, represented by a lawyer is not fatal. The proceeding is not a nullity. Rather, if the action where to be allowed to proceed with the Committee as Plaintiff, it might well be stayed on condition that proper counsel be appointed within a given time.

     In summary, the Defendant's capacity and standing argument, to the extent it relates to the Committee as Plaintiff and to the Committee's representation refer to defects which could be cured and while the arguments might lead to a requirement that there be an amendment or that there be a stay, it is certainly not grounds to prevent the Plaintiffs from proceeding by striking out its action. However, there are other submissions by the Defendant which have much more substance.

Charter Relief

     Section 24(1) of the Charter which is set out above provides relief to "anyone" who's Charter rights or freedoms have been infringed or denied. The Defendant submits that an unincorporated association, such as the Committee does not fall within the definition of "anyone" and in support of this proposition refers to Cromwell on Locus Standi (Toronto: Carswell, 1986). The passage dealing with unincorporated associations is as follows:

With respect to unincorporated associations, there is as yet little direct authority, and the commentators have, in the main, ignored the difficulty. The undoubted general rule is that unincorporated associations are not legal persons and do not have capacity to sue or be sued. However, even if the problem of capacity is overcome, the test for standing under s. 24, requiring the applicant to be one whose rights have been infringed or denied, must be met. And it is not clear that unincorporated associations derive rights under the Charter. In any event, the problem is primarily one of capacity rather than of standing. (p. 98)

This passage is too inconclusive to form a basis on which to strike out a statement of claim. Moreover, the action, as styled by the committee is clearly a representative action. And that to my mind is where the Plaintiffs have a major difficulty.

Representative Actions Under Rule 1711

     In unreported reasons of December 2, 1996 in Pawar v. Her Majesty the Queen, action T-1407-96 I dealt with the nature and application of our representative action rule 1711 as follows:

Our class action provisions, contained in Federal Court Rule 1711, apply to both class and representative actions: Logan v. Canada (1994), 89 F.T.R. 37. I will set out only the first section of the Rule:

1711. (1) Where numerous persons have the same interest in any proceeding, the proceeding may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them representing all or as representing all except one or more of them.

The intent of a representative action under this Rule is that all persons with the same interest be bound in one action and by one judgment. In John v. Rees, [1970] Ch. 345, Mr. Justice Megarry, who subsequently for many years was Vice-Chancellor of the Court, considered the English Order 15 Rule 12, which is nearly identical to our Rule 1711. He cited Duke of Bedford v. Ellis, [1901] A.C. 1 at p. 8 in which Lord McNaughton referred to the Chancery form of the rule which later became Order 15 Rule 12, pointing out that it was a rule of convenience, a rule of which one ought to take a broad and liberal view and that if it were not possible to make everybody interested a party, the plaintiff must bring in enough claimants so the matter might be fairly and honestly tried. Mr. Justice Megarry then went on to say "This seems to me to make it plain that the rule is to be treated as being not a rigid matter of principle but a flexible tool of convenience in the administration of justice." (p. 370).

     The Defendant's first submission, dealing with rule 1711, is that the Committee is neither a person nor a corporation and as such may not utilize Rule 1711 in order to bring a representative action. That may well be so, but the defect could be cured by an amendment to the style of cause.

     More pertinent is whether the Plaintiff Committee has satisfied the basic requirements or elements of a representative action. The basic elements for a class or representative proceeding are those set out in The Duke of Bedford v. Ellis, [1901] A.C. 1, which involved a Chancellery rule which later became the English Order 15 Rule 12 and is thus a predecessor to our Rule 1711. There are three requirements: first, the parties must have the same interest in the action; second, the grievance must be common; and third, the relief must be beneficial to all. The Duke of Bedford's case is the foundation of many modern cases: see for example [1983] 1 S.C.R. 72">General Motors of Canada v. Naken, [1983] 1 S.C.R. 72.

     Basic elements have also been set out by the British Columbia Court of Appeal in Oregon Jack Creek Indian Band v. Canadian National Railway Co. (1989), 56 D.L.R. (4th) 404 in which the court dealt with Rule 511 of the British Columbia Supreme Court Rules, which is substantially our Rule 1711. The elements referred to by the British Columbia Court of Appeal, at page 413, are as follows:

1.      Is the purported class capable of clear and definite definition?

2.      Are the principle issues of fact and law essentially the same as regards all members of the class? and

3.      Assuming liability, is there a single measure of damages applicable to all members?

     In the present instance the Defendant submits that I ought to refer to Federal Court Rule 5, the Gap Rule, in order to import into our rules the British Columbia Class Proceedings Act, S.B.C 1995, Chapter 21. However, as I indicated in the Pawar case, referred to above, I am not convinced this is necessary, but rather intend as Mr. Justice Titlebaum did, in Logan v. Canada (1995), 89 F.T.R. 37, to look to previous Federal Court cases and to other cases involving comparable or similar rules, for there are many such cases.

     Before considering whether the Plaintiff Committee has met the various tests required to constitute this proceeding as a representative action, there is a preliminary matter and that is whether the Committee has the ability to represent the class. The Committee certainly speaks for its five members. However, I am asked to take on faith that it also represents some 1,800 other aboriginal offenders. Now it is true that the Plaintiff Committee, as a self elected representative, does not need to obtain the consent of all they purport to represent: see for example Markt & Co. Ltd. v. Knight Steamship Company Limited, [1910] 2 K.B. 1021(C.A.). But even given context in which this action takes place, in a prison setting, I believe the Committee ought to have presented material to show that it speaks for more than just its five members. For this reason the proceeding is defective.

     In addition, I am not convinced the Committee has the ability to fairly and adequately represent some 1,800 other individuals and this is particularly so in that the Committee does not have proper legal assistance. It would be one thing for one or more aboriginal offenders to bring their own test case, each person representing himself or herself, but that is very different from the lay representation of a large number of individuals by the Committee. For this reason the representative aspect of this action ought to be struck out. But the matter does not end there.

Identifiable Class

     There must be proper identification of the persons for whom the class or representative action is taken and their interests must be shown: see for example Mayrhofer v. Canada (1993), 61 F.T.R 81 at 94. Mr. Mayrhofer, as a landed immigrant of German extraction, was detained during World War II from 1939 until 1944, at which time he was deported. He claimed compensation for the detention and for the labour he was required to perform while detained. He also sought, as an alternative, to constitute a representative action, with the class consisting of those who had suffered discrimination on the basis of race, saying such persons were known to the defendant. Mr. Justice Titlebaum found this an insufficient identification. In contrast, in the present instance the class, although changing as offenders pass through the system, is in my view sufficiently defined. However as Mr. Justice Titlebaum pointed out in the Mayrhofer case there is the matter of the interests of each of the proposed members of the class, a point to which I now turn.

Common Interest and Grievance

     The Duke of Bedford's case requires the represented parties have the same interest in the action and that their grievance be common.

     In this action the interests and the grievances of the members of the proposed class appear not to be the same for all. There will be offenders incarcerated for many different reasons. In some instances it might well be reasonable to place them in willing communities, but not so in the case of others. There will be too many variables. For example, in Kiist v. Canadian Pacific Railway Company, [1982] 1 F.C. 361, the Federal Court of Appeal considered a motion to strike out a claim by grain producers against the Canadian Pacific Railway, the Canadian National Railway and the Canadian Wheat Board, for failure to provide adequate accommodation for the transportation of grain. The Court decided that the proposed class contained claimants who where each subject to many variables, including additional quotas and the ability of each of the producers to fill their quota. All would depend to much on the circumstances of each producer. In the result it was found not suitable for a class action. That is also so in the present instance for section 81 does not require the Minister to place all aboriginal offenders in communities. It is a permissive provision, which would require the Minister to consider the circumstances of each offender. One would expect those authorized by the Minister to carry out the program to make their selection of candidates with great care. Issues of fact would not be the same for all members of the class of aboriginal offenders. Some members of the class might benefit were section 81 of the Act put into operation, but others would not. And this leads us to the third element set out in the Duke of Bedfords case, that the relief must be beneficial to all.

Benefit of the Class Action

     In Cairns v. Farm Credit Corporation (1992), 49 F.T.R. 308 at 311 Mr. Justice Denault noted that in a class action "... the relief sought must in its nature be beneficial to all members of the class, or as it has some times been described, "if the plaintiffs win, all win": ..."(p. 311) he then referred to the view of the Supreme Court of Canada as to an identity of interest in the outcome:

Rule 1711 requires that the plaintiffs and those they seek to represent have the "same interest" in the proceedings. In the case of [1983] 1 S.C.R. 72">General Motors of Canada Limited v. Naken, [1983] 1 S.C.R. 72 the Supreme Court of Canada interpreted this term to mean that the plaintiffs must all have the same interest in the outcome of the judgment (loc. cit)

Mr. Justice Denault went on to point out that a class action was not to enable the members of the class to seek numerous types of relief suitable for varying needs, but rather each of the plaintiffs must have the same interest in the outcome and, at a minimum, the outcome must have a practical impact on each member of the class. This is also the view taken by the Supreme Court of Canada in the [1983] 1 S.C.R. 72">Naken case (supra).

     Our Court of Appeal in Canada v. Perry (1982), 41 N.R. 91 at 102 pointed out that the class action rule should not be construed in a strict and rigorous sense, but rather should be applied in a broad and permissive manner (p. 102). However, even by taking a broad and permissive approach there is still the fact that some of the class which the Plaintiff purports to represent may benefit but others will not. Thus this proceeding is not suitable as a class action. For that reason it is struck out.

Permissive Legislation

     Counsel for the Defendant submits the claim that the failure to put into operation section 81 of the Act violates the rights of the Plaintiffs under section 7 of the Charter or fails to comply with a statutorily imposed duty is not a reasonable cause of action at law. Counsel refers to Her Majesty the Queen v. Sheldon S., [1990] 2 S.C.R. 254, in which Chief Justice Dickson delivered the unanimous judgment. In the case of Sheldon S. at issue was a provision of the Young Offenders Act which provided that alternative measures "may" be used to deal with young offenders. The relevant section at issue read as follows:

4.      (1) Alternative measures may be used to deal with a young person alleged to have committed an offence instead of judicial proceedings under this Act only if

(a) the measures are part of a program of alternative measures authorized by the Attorney General or his delegate or authorized by a person, or a person within a class of persons, designated by the Lieutenant Governor in Council of a province;

(emphasis added)

Pertinent both to the case of Sheldon S. and to the present action by the Native Transfer Committee of Mountain Institution is the following passage at pages 275-276 of the Sheldon S. case:

From the point of view of the context, provisions, and scope and objects of the legislation, I find that the Young Offenders Act gives to the provincial Attorneys General a power, buy not a duty, to develop and implement programs of alternative measures. The federal Parliament has left it to the province to deal with a matter which it has determined is best resolved at the provincial level. In my opinion, it must have been within the contemplation of Parliament that the result of s. 4(1) would be diversity among provinces in the content of alternative measures programs and moreover, diversity in term of whether alternative measures programs were instituted at all. In fact, the legislation was intended to foster diversity as a means of "tailoring" programs of alternative measures to the facilities and needs of territorially based communities.

Chief Justice Dickson makes it clear that in reaching this conclusion he has read the words of the legislation in the entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the legislation, the object of the legislation and the intention of parliament so that by reading it as a whole each of the components of the legislation fits logically into its scheme. He concluded that the legislation granted a power, but did not mandate a duty to develop and implement alternative corrective measures for young offenders.

     This finding, that a permissive provision in legislation does not lead to a positive duty to authorize alternative corrective measures has direct application to the present action for section 81 of the Act is clearly permissive in providing that the Minister may enter into an agreement with an aboriginal community to provide correctional services to aboriginal offenders. There is no duty in the present instance. It is clear and beyond doubt that the Plaintiffs' claim will not succeed by reason of this lack of duty: in short, the cause of action relied upon by the Plaintiffs is unreasonable and the action ought to be struck.

Availability of Mandamus

     Counsel for the Defendant makes the further valid point that mandamus does not lie in order to compel the Minister to put a policy in place. In Beauchemin v. C.E.I.C (1988), 15 F.T.R. 83 the plaintiff sought a Writ of Mandamus directing the Canada Employment and Immigration Commission to pay him unemployment insurance benefits. The court pointed out that mandamus was not available as there is no legal duty on the Commission to pay benefits. In the present instance I have already pointed out that the Defendant is under no duty to put section 81 of the Act into operation.

CONCLUSION

     This action can not succeed either as a class action or, with an amendment to the style of cause, as an action by one or more named Plaintiffs in their own right. In the former instance all of the class neither have the same interest and grievance nor will all of the class obtain a benefit. In both the former and the latter instances the claim is not good at law for there is no enforceable duty on the Defendant to implement community placement under section 81 of the Corrections and Conditional Release Act. No amendment would cure the latter defect and thus the proceeding is struck out, as lacking a reasonable cause of action, without leave to amend.

     That the action has been struck out is not to say the Committee has wasted its time, for I expect the Committee members felt they ought to explore the possibilities of Federal Court relief. But now that the action has been struck out, perhaps the Committee members should channel their activities to a more profitable enterprise.     

     This action was reasonably well pleaded by the Plaintiffs. The Plaintiffs provided particulars when requested to do so. By all accounts the Plaintiffs have acted bona fides and reasonably. In addition this action appears to be their first foray into the Federal Court. If I were to award costs it would be at a minimal scale. However, on the one hand I can see no benefit in the Defendant putting further effort into the case by way of taxing costs and on the other hand can foresee the possibility of hardship on the part of the plaintiffs were costs awarded against them in what seemed to them an arguable case. Thus there will be no award of costs.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

Vancouver, British Columbia

January 6th, 1997