Massey v. Canada, docket T-807-96

     T-807-96

Between:

     INSPECTOR DENNIS MASSEY,

     CONSTABLE AMRIK VIRK,

     CONSTABLE DAVID JOYCE,

     Plaintiffs

     (Respondents),

     - and -

     HER MAJESTY THE QUEEN IN RIGHT OF

     CANADA AND JEAN-PIERRE BEAULNE, Q.C.,

     CHAIRMAN, RCMP PUBLIC COMPLAINTS

     COMMISSION,

     Defendants

                                         (Applicants).

     REASONS FOR ORDER

JOHN A. HARGRAVE

PROTHONOTARY

     This action arises out of the wording of a Notice of Decision to Conduct a Hearing issued by the Royal Canadian Mounted Police Public Complaints Commission (also referred to as the "Commission"), a body constituted under The Royal Canadian Mounted Police Act, R.S.C. (1985) Chapter R-9, as amended. The Notice is of a hearing into alleged improper conduct by members of the RCMP in dealing with labour unrest at the Yellowknife Giant Mine strike and lockout in June of 1992. The Plaintiffs, among other things, allege the wording of the Notice, which went out with a press release, is defamatory.

     The Defendants, by the present motion, seek to have the Plaintiffs' action struck out under Rule 419 on the grounds of want of a reasonable cause of action, that it is scandalous, frivolous or vexatious and that it is an abuse of the process of the Court. Alternatively, the Defendants ask that all references to Jean-Pierre Beaulne, Q.C., Chairman of the Commission, be struck out as an improperly or unnecessarily named party.

     The action is not to be struck out. Rather, all reference to Jean-Pierre Beaulne, Q.C., as a Defendant, is to be removed. I now turn to some relevant facts.

SOME RELEVANT FACTS

     During the summer of 1992 a strike and lockout at the Giant Mine at Yellowknife, Northwest Territories, resulted in a divided community, tension and the anticipation that the labour unrest might lead to violence. In addition to the local RCMP, members of a tactical unit came from Red Deer, Alberta, to assist. The members of the unit included the Plaintiffs, of whom the Plaintiff, Inspector Massey, was in charge.

     During the first part of June, 1992, several altercations arose between strikers and the RCMP, although no one was seriously injured. The union representing the miners made some 50 complaints to the RCMP, to Crown Ministers, and ultimately to the RCMP Public Complaints Commission. In particular, two of the complaints were allegations that the Plaintiffs used excessive force in pointing and discharging their firearms at strikers on mine property.

     The Royal Canadian Mounted Police Public Complaints Commission was established in 1988 pursuant to amendments to the Royal Canadian Mounted Police Act, R.S.C. (1985), Chapter R-10. The legislation and the evolution of the Commission is set out at length in Attorney General of Canada v. Royal Canadian Mounted Police Public Complaints Commission, [1991] 1 F.C. 529 (F.C.A.), particularly at pages 555 through 562.

     The genesis of the Commission was a need for an independent review authority so that members of the public, with complaints against the RCMP, might perceive that such complaints are properly handled by an independent review authority, an authority that would deal with such complaints in an objective, open and fair manner, a manner commanding public confidence. Equally important is that the Commission deal with complaints in a way which properly preserves a delicate balance between protection of the rights of the public, on the one hand, and of the individual members of the RCMP, on the other hand. Indeed, this balancing is a critical aspect, for the Commission must ensure protection of the public, which might otherwise have its complaints investigated internally and in a manner which might give a perception of bias, yet must deal with members of the RCMP in a way which would not work mischief and prejudice. The Reasons for Judgment in the RCMP Public Complaints Commission case, are written by Mr. Justice of Appeal MacGuigan, who makes an apt comment at pages 560 and 561, first that the Commission may not impose sanctions upon RCMP personnel, but, second, that it would be unrealistic to conclude that there will be no effect upon those under investigation. Thus the importance of an even handed approach by the Commission.

     In the present instance, the Defendant, Jean-Pierre Beaulne, Q.C., was Commission Chairman. The Commission had the complaints investigated. The investigators' reports are attached to the Plaintiffs' affidavit material. In the case of the 2 and 3 June 1992 incident, a pointing and discharge of firearms, the Commission investigators concluded "... the use of warning shots were justified in this instance." and in the case of the 14 June incident, an alleged use of excessive force and the pointing and discharge of a firearm by Inspector Massey, the Commission investigators concluded "... that Inspector Massey acted properly and within Force policy in the use of his weapon."

     Section 45.39 of the RCMP Act, requires the Commissioner to send interim reports at intervals. The Commissioner's interim report of April, 1993, concludes, in the first instance with a finding that "The Commission finds the subject RCMP members neither used excessive force nor improperly discharged their firearms." In the case of the second incident, of 14 June 1992, the Commission reported that the firing of warning shots was effective and appropriate and that Inspector Massey had reasonable grounds to believe "... that using his firearm in the manner he did was necessary for the purpose of preserving himself and other persons on Mine property under his protection from suffering death or grievous bodily harm.". The Commission also concluded that Inspector Massey "... used his firearm in a proper and justifiable manner.", a manner justified in Section 25 of the Criminal Code.

     It was against this background that Jean-Pierre Beaulne, Q.C. considered it advisable and in the public interest to institute a hearing to inquire into the complaints. I would note that the Plaintiffs have provided a number of letters, reports and memoranda, which might be interpreted as showing the Commission had motives, other than investigating the force used by the RCMP, in holding the inquiry, including that "A hearing would increase the Commission's profile." (Memorandum of 14 April 1994 from the Executive Director of the Commission to the Chairman of the Commission) and that:

The possibility of a public hearing must be considered in conjunction with the possibility of future considerations of television programs and/or movie productions dealing with the strike and/or the fatal explosion. The strike has been identified as "a tragedy without precedent in Canadian labour history." That comment alone may support the decision to hold a public hearing in order that the public may be appraised of all the information available."

(Unsigned memo to the Chairman of the Commission obtained by the Plaintiffs under the Freedom of Information Act.)

While all of this is interesting, this is a motion to deal with striking out pleadings, rather than to impute motives to the Commission, whose Chairman, on 20 April 1994, signed the Notice of Decision to Conduct a Hearing.

     Initiation of the hearing brings us to the crux of the Plaintiffs' case, which is set out in paragraph 3 of the Statement of Claim:

On the 20th day of April, 1994, the Defendant JEAN-PIERRE BEAULNE, Q.C. maliciously and without probable cause and in excess of his legislative authority signed a Notice of Decision To Conduct a Hearing, naming the Plaintiffs and alleging the following:

"IN THE MATTER OF a complaint made by Mr. Harry Seeton about the conduct of Inspector Dennis Massey, Constable D.N. Joyes and Constable Amrik Singh Virk who demonstrated excessive force when they pointed a firearm at picketing strikers on Giant Mine property at or about midnight June 2, 1994; and about the conduct of Inspector Dennis Massey who demonstrated excessive force when he discharged his firearm at picketing strikers on Giant Mine property on June 14, 1992."

The use of the phrase "who demonstrated excessive force", in effect a pre-judgment of the Plaintiffs in the eyes of some, is at least very careless wording. At the conclusion of the Hearing, the Plaintiffs were exonerated.

The Plaintiffs say, in paragraph 6 of their Statement of Claim, that as a result of the Defendants conducting the hearing, their reputations have been harmed, that they have suffered mental anguish, that their careers have been held in abeyance, and that they have suffered damages: this may all be true enough, for it is one of the unfortunate possible results that Mr. Justice of Appeal MacGuigan referred to in the RCMP Public Complaints Commission case. But more important, the Plaintiffs go on to allege, in paragraph 7 of the Statement of Claim that:

7.      In addition, the Defendants caused a press release to be issued setting out the terms of the Notice of Decision To Conduct a Hearing, knowing that the said Notice was unfair, inaccurate, malicious, and in excess of their jurisdiction, and the press release was defamatory to the Plaintiffs and was published by the Defendants or some of them maliciously knowing and intending and desiring that they should cause the said words or the imputations therefrom to be reproduced.

On this basis, publication of what the Plaintiffs say was an unfair, inaccurate and malicious press release, setting out the Notice of the Hearing, which publication the Plaintiffs say was both intended and malicious, the Plaintiffs seek substantial general and punitive damages.

THE DEFENDANTS' MOTION

     The Defendants characterize the Statement of Claim as containing two separate causes of action: the first, that the Defendants acted improperly and maliciously in deciding to hold a public hearing; and second, that the Notice of Hearing is defamatory.

     Counsel for the Defendants made submissions on a number of points including: first, does the concept of malicious prosecution, as used by the Plaintiffs, constitute a cause of action existing at law; second, is there any reasonable and genuine chance of either cause of action succeeding; third, is the Statement of Claim, or portions of it, frivolous, vexatious or otherwise an abuse of process; and finally, is Jean-Pierre Beaulne, Q.C. a proper or necessary party. In effect, the last point goes to the jurisdiction of the Court. Counsel for the Defendants conceded, he says for the purposes of the motion only, that Jean-Pierre Beaulne, Q.C. is a servant of the Crown.

ANALYSIS

Preliminary Matters

     To begin, there are several preliminary matters. In dealing with a motion to strike out, either for want of a reasonable cause of action, or alternatively on the grounds that all or a portion of a pleading is scandalous, frivolous, vexatious or an abuse of process of the Court, I must in the first instance assume that the facts set out in the pleading can be proven, unless the facts are patently ridiculous or incapable of proof, but in the second instance, I may look at affidavit material. The test that I must apply, in the case of a statement of claim, is whether it is plain and obvious, or phrased in another way, beyond doubt, that the action will not succeed. Only if the action is certain to fail by reason of a radical defect ought material to be struck out. This is set out well and in detail in Hunt v. Carey Canada Inc. [1990] 2 S.C.R. 959 at 980 in which Madame Justice Wilson delivered the judgment of the Court.

     Counsel for the Plaintiff raises an additional concern: counsel submits that some of the areas of law on which he will rely at trial, notably malicious prosecution, are areas that are expanding and evolving. Counsel questions how judges might allow the law to evolve if an innovative pleading is cut off on an interlocutory motion to strike out. The answer is that only when an action is certain to fail by reason of a radical defect should material be struck out. This allows a court hearing an interlocutory motion to strike out to differentiate between, on the one hand, a situation in which the law might evolve and progress along possible open channels and, on the other hand, a proceeding or part of a proceeding in which the law has come up against a dead end such that it would be futile to allow the action or a particular plea to go forward.

     Counsel for the Defendants submits that the Plaintiffs ought to have complained about the form of the Notice of Hearing when they first received it in April of 1994; that the Plaintiffs had their own counsel by 28 November 1994 and had ample time to challenge the wording of the Notice; and indeed counsel for the RCMP did find time to mount an initial challenge to the Commission's jurisdiction. Counsel for the Plaintiffs responds that he had two months in which to go through many boxes of material in order to prepare for the hearing; that the pending hearing was his first priority; and that the Plaintiffs needed a final decision from the Commission before they could embark on a malicious prosecution and defamation proceeding.

     The delay in this instance means little or nothing. Further, once the Notice of Hearing went out, any damage was already accomplished. I now turn to the merits of the motion, beginning with the plea of what amounts to malicious prosecution.

Malicious Prosecution

     The Defendants say that paragraph 3 of the Statement of Claim, which alleges that the Defendant, Jean-Pierre Beaulne, Q.C. maliciously, without probable cause and in excess of his legislative authority, sent out the Notice of Hearing naming the Plaintiffs, ought to be struck out. The Defendants submit that there is no cause of action for what they characterize as a breach of statutory authority. This is in general a sound proposition: see [1983] 1 S.C.R. 205">The Queen v. Saskatchewan Wheat Pool [1983] 1 S.C.R. 205 at 225 where Mr. Justice Dickson prefers the view that in Canada, rather than a nominate tort of statutory breach, statutory breach should be considered in the context of the general law of negligence. Of course, there is clearly a duty to make discretionary decisions in good faith and with no ulterior or improper purpose: [1959] S.C.R. 121">Roncarelli v. Duplessis [1959] S.C.R. 121, and particularly the reasons of Mr. Justice Rand at page 140 and following, and Gershman v. Manitoba Vegetable Producers' Marketing Board (1977) 69 D.L.R. (3d) 114 in which the Manitoba Court of Appeal neatly sums up this principle as follows:

The principle that public bodies must not use their powers for purposes incompatible with the purposes envisaged by the statutes under which they derive such powers cannot be in doubt in Canada since the landmark case of [1959] S.C.R. 121">Roncarelli v. Duplessis (1959), 16 D.L.R. (2d) 689, [1959] S.C.R. 121">[1959] S.C.R. 121. Since that case, it is clear that a citizen who suffers damages as a result of flagrant abuse of public power aimed at him has the right to an award of damages in a civil action in tort. (Page 123)

On one reading of paragraph 3 there might well be a claim in tort for the Plaintiffs say the Commissioner, Jean-Pierre Beaulne, Q.C., called the hearing "... maliciously and without probable cause and in excess of his legislative authority ...". Accepting this for the purpose of the present motion as proven, including the allegation of malice, it might well constitute a reasonable cause of action giving rise to damages. Another view is that paragraph 3 merely sets out background upon which to build a case for defamation. In any event it is not a paragraph to be struck out as futile by reason of want of a reasonable cause of action.

     Counsel for the Defendants also submits that the tort of malicious prosecution does not fit the facts of the case, for the Commission does not deal in disciplining members of the RCMP, but rather with complaints from the public. In the latter instance, it would be an unreasonable extension of the concept of malicious prosecution to apply it to the Commission. Counsel espouses the American functional approach, discussed and rejected by the Supreme Court of Canada, in Nelles v. the Queen (1989) 60 D.L.R. (4th) 609, which gives absolute immunity to judges and others acting in a judicial capacity. The concept here is that the Chairman of the Commission, as a statutory creature, ought to be afforded the absolute immunity afforded judges. The submission continues that the Chairman of the Commission has the sole discretion both to determine what is in the public interest and in the calling of a hearing: Counsel submits that this is consistent with what a judge does. It is, according to the Defendants, a discretion which cannot be reviewed.

     All of this and particularly the reference to the surrounding facts, requires me to look at affidavit material, in addition to the Statement of Claim, and therefore falls within Rules 419 (c) and (f) being the categories of a pleading which is scandalous, frivolous or vexatious, or one that is otherwise an abuse of the process of the Court, all of which are set out as grounds in the Defendants' motion.

     My reading of paragraphs 3 and 6 of the Statement of Claim is not that the Plaintiffs take issue with the Defendants' power to issue a notice and to institute a hearing. Rather the Plaintiffs question whether the Commission, having had the incidents investigated and having received a report from its investigators that all that was done was reasonable in the circumstances, and thus knowing no excessive force was used, ought to convene and have a hearing with a notice that alleges that members of the RCMP "demonstrated excessive force". But in any event, the Defendants say that I ought to take a common sense approach, find that these allegations would be doomed to failure in any event because the Plaintiffs would never be able to establish that the Chairman did not have reasonable grounds for calling a hearing in the public interest, and strike them out. This leads to an examination of what must be shown in order to prove malicious prosecution.

     The Supreme Court of Canada, in Nelles (supra) sets out the necessary elements that must be proven in order to establish malicious prosecution, at page 639:

(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.

     The Defendants do not seem to deny that their investigations, before the decision was made to convene the hearing, turned up no evidence of excessive force, but say that:

The Chairman was advised that the main argument in favour of a hearing was the value of publicizing the process and gaining respect for the findings. The Plaintiffs ignore the fact that a "white-wash", secret [or at least unpublished] "in-house exoneration" of their activities would not be, in the long run, as advantageous to the Plaintiffs as a public hearing in which the media was present to hear the evidence and participate in a public exoneration that would be widely accepted. (page 19 of written argument)

The first portion of this argument, that of publicizing the process and gaining respect for the findings, has some validity. There is also something to be said for the second comment, public exoneration of the Plaintiffs. However against that we have the loaded phrasing used in the Notice of Hearing. In addition, a document in the Plaintiffs' material, gained under Access to Information procedure, indicates that the Commission was concerned about what the television and movie industry might make of the strike and the tragic fatal explosion, and felt that a public hearing would be in order: this rather strays from the purpose of the Commission. But in addition, to quote another of the documents generated by the Defendants, "A hearing would increase the Commission's profile." (page 2 of a memorandum of 14 April 1994, form the Commission's Executive Director to the Chairman). This purpose may well be incompatible with the purposes envisioned by the RCMP Act, from which the Commission derives its powers: see the passage from the Gershman case quoted earlier.

     Certainly the Commission has a great deal of discretion as to whether to hold a hearing, but the Plaintiffs say that the hearing was held against all of the tenor of the evidence and for the wrong reasons. I do not say that the action ought to succeed for it is a difficult one, but neither am I able to determine that the Plaintiffs' action is doomed to failure and thus to strike it out on this basis.

     I now return to the Nelles test, for the Defendants submit that if I reject their argument that the Commissioner cannot be criticized for calling a hearing, the Defendants say that in any event the Plaintiffs have no evidence of malice. Here the Defendants deal with three sets of circumstances: first, that the investigators' reports were tampered with; second, what the Defendants refer to as the "admittedly unfortunate wording of the Notice of Hearing"; and third, an inference of an improper motive associated with the decision to call the hearing.

     I do not see the first item, the tampering with of the investigators' reports, as a crucial item by itself. Counsel for the Defendants submits the Chairman can make any changes he wishes in reports. One rather doubts he ought to or would make changes in the reports of his investigators: if such changes were made it may indicate that the Commission does not recognize the necessity of an even-handed approach. The investigators' reports, even if tampered with, did clear the Plaintiffs, although such tampering, when coupled with other actions, might at trial assist the Plaintiffs in establishing malice.

     Counsel refers to the conclusion in the wording of the Notice of Hearing, that the Plaintiffs demonstrated excessive force, as an honest mistake and acknowledges that the Commission might have used the neutral wording of the Notice as originally drafted: he concedes that the wording is unfortunate, but submits that malice may not be inferred from that wording. However, all conduct, including language, is a legitimate source of inferences leading to a determination of malice.

     As to the inference of an improper motive associated with the decision to call the Hearing, the Defendants say the Commission had a duty to consider complaints by the public and to make recommendations, in effect a policy role. Counsel emphasis that the Commission's hearings do not have a disciplinary facet and have a broader scope than just a complaint against an individual: the hearings must include all of the surrounding facts. Indeed the submission here is that it is within the Commission's mandate to explore and investigate the discharge of firearms, even after the Commission knew the Plaintiffs were innocent.

     Certainly the Court of Appeal makes the point in the RCMP Public Complaints Commission case (supra) at page 555 that the complaint system is operationally and functionally distinct form the disciplinary system. The policy role of the Commission is acknowledged by the Federal Court of Appeal in Re: Canada (Commissioner of the RCMP), [1994] 3 F.C. 562 at 580, to which I will refer as the Colvin case. Counsel for the Defendants, at this point in his submission, refers to the Commission as an ombudsman, a term used by the Court of Appeal in the RCMP Complaint Commission case at page 560 and picked up, again by the Court of Appeal, in the Colvin case at 591. That is a good concept, for an ombudsman has a duty to investigate complaints of improper administrative actions and to remedy any resulting injustices, acting impartially between government and individual. This ombudsman's role is touched upon by the Court of Appeal in the RCMP Complaint Commission case, at page 560, where the Court of Appeal notes that the " ...Commission is rather like an ombudsman with an opportunity to persuade the ultimate authority, the Commissioner (i.e. of the RCMP)." And this leads to the Court's comment, at page 561, that it would be unrealistic to think that there would be no effect on members of the RCMP in the case of such an investigation.

     This line of reasoning by the Defendants does not help them, for it again reinforces the concept that the Commission, no matter how broad its mandate, must be even handed.

     While the Plaintiffs' case may be a difficult one in which to establish malicious prosecution, I am unable to say it is plain and obvious that they will not be able to meet the elements set out by the Supreme Court of Canada in Nelles at page 639. Clearly the proceedings, initiated by the Defendants, have terminated in favour of the Plaintiffs. There may well be an absence of a reasonable and probable cause for the Hearing, given that the investigators' reports showed no reason to pursue the Plaintiffs. Finally, the actions of the Commission and particularly the wording of the Notice of Hearing, may be taken to infer malice and in addition material generated by the Commission itself may show agendas other than that of carrying the purpose of the RCMP Complaints Legislation into effect. I am not prepared to strike out paragraphs 3 or 6 on the basis of any of the heads under Rule 419. I now turn to the Defendants' argument that the allegations of defamation ought to be struck out.

Defamation

     The Defendants submit that the Plaintiffs' claim in defamation, paragraph 7, is doomed to failure for three reasons and here I paraphrase:

1.      No reasonable person, on reading the Notice of Hearing, could possibly come to the conclusion that anyone had prejudged the Plaintiffs;

2.      The Notice of Hearing is inextricably linked to the statutory inquiry process which the Chairman had to follow: it is the activity of the Chairman which is at issue and that activity cannot be the subject of an action for damages; and

3.      The Chairman's wording in the Notice of Hearing is privileged: even if the words cause damage, without malice, they could never be the subject of a successful action.

     For the sake of convenience, I will again set out paragraph 7 of the Statement of Claim:

7.      In addition, the Defendants caused a press release to be issued setting out the terms of the Notice of Decision To Conduct a Hearing, knowing that the said Notice was unfair, inaccurate, malicious, and in excess of their jurisdiction, and the press release was defamatory to the Plaintiffs and was published by the Defendants or some of them maliciously knowing and intending and desiring that they should cause the said words or the imputations therefrom to be reproduced.

     The Court must, as a preliminary question of law, consider whether the words, in their context, are capable of a defamatory meaning: see for example Bailey v. Ventin (1993) 93 C.L.L.C. 14,030 (Ont.C.J.). The Notice of Hearing is such that the words, in connection with the circumstances of the Hearing, might well be reasonably capable of carrying a defamatory meaning. This is not to say that they are in fact defamatory, but the onus on the Defendants, to show that a claim based on those words is futile, is a heavy one, an onus which they have not displaced. However, the matter does not end there.

     The test that the courts have applied, in order to determine whether a statement is defamatory, one which was adopted by the BC Court of Appeal in Vander Zalm v. Times Publishers et al. [1980] 4 W.W.R. 259 at 261, is that set out in Salmond on Torts, 1977 edition at pages 139-140:

A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society. Hence the test is an objective one, and it is no defence to say that the statement was not intended to be defamatory, or uttered by way of a joke. A tendency to injure or lower the reputation of the plaintiff suffices, for 'If words are used which impute discreditable conduct to my friend, he has been defamed to me, although I do not believe the imputation, and may even know that it is untrue.' Hence it is settled that a statement may be defamatory although no one believes it to be true.

In short, defamation is a communication that tarnishes one's good name, impairing their standard in the community or causing them to be pitied, even though the statement may be such that no one believes it to be true.

     In the present instance the question is whether the reasonable man or woman, reading the Notice of Hearing, would come to the conclusion that the Plaintiffs were guilty. The Defendants submit that it is absurd that any reasonable person would come to that conclusion for "A reasonable person in Canada knows that a hearing is a preliminary step designed to determine the truth, and a finding of guilt or innocence only comes afterwards." (page 25 of the Defendants' written argument).

     Counsel for the Defendants says that it is one thing if some one were standing on the corner calling out that "Inspector Massey is guilty of excessive force", but that it is patently absurd that a reasonable person might come to the conclusion of guilt merely on the basis of the Notice of Hearing to enquire into that very conduct. The difficulty with the Defendants' position here is first, that many otherwise reasonable people tend to believe what they read and to act accordingly; and second, as Salmond points out in the above-quoted paragraph, "...apparently a statement may be defamatory although no one believes it to be true.".

     I have already dealt with and rejected the Defendant's proposition that there can be no action for damages by pointing out that there is clearly a duty that discretionary decisions be made in good faith and with no ulterior motive or improper purpose. Such an allegation is not futile either by reason of want of a reasonable cause of action or for any other reason enumerated in Section 419 of the Federal Court Rules.

     Finally, the Defendants say the wording of the Notice is privileged. There may well be two answers to this submission. First, privilege certainly extends to reports of public proceedings before courts, using that term in the broadest sense, and this is to make certain those deciding cases, witnesses, lawyers and parties, may speak freely without concern of liability for defamation. However I question whether the privilege accorded to judicial proceedings and reports of those proceedings ought to extend to a notice of a hearing which includes a totally extraneous comment, not germane to the occasion, a comment which the Plaintiffs allege, and which in the context of a motion to strike out for want of a reasonable cause of action I must take to be proven, is both malicious and defamatory. In this regard I would refer to More v. Weaver [1928] 2 K.B. 520 at 525 where Lord Justice Scrutton, writing for the Court of Appeal, referred to Browne v. Dunn (1893) 6 The Reports 67 at 80 for the proposition that malice might destroy such privilege if it is shown what passed was not germane to the occasion. While the Public Complaints Commission portion of the RCMP Act does require the publication of a notice of hearing, that ought not to give the Commission licence to make extraneous comments in the Notice of Hearing, superfluous comments which are not germane to the occasion. This is not to say that the Plaintiffs will succeed on this point, but rather that the Defendants have not convinced me that this aspect of the Plaintiffs' case is futile.

     The Defendants go on to submit that by the Plaintiffs remaining silent, until this action was commenced, the Chairman was deprived of any opportunity to set the record straight and thereby avoid any damage. I have already pointed out the main fallacy in this: once the Notice of Hearing was issued and sent out as a press release, the damage was done. It may be that a trial judge, if he or she should find for the Plaintiffs, will take the delay into consideration in awarding damages, but this delay is not a reason for striking out the cause of action at this point. I now turn to the question of whether the court has jurisdiction to consider allegedly tortious acts of the individual plaintiff, namely those of the Chairman of the Commission.

Jurisdiction over the Chairman of the Complaints Commission

     Counsel concedes that the Court has jurisdiction to determine the claim as against the Crown, but not the jurisdiction to determine claims of malicious prosecution and defamation against the Chairman of the Commission, Jean-Pierre Beaulne, Q.C.

     In Charest v. Canada et al. (1994) 73 F.T.R. 185, Mr. Justice Joyal dealt with a motion to strike out in which one of the issues was whether the Attorney General ought to be a party along with the Crown. The test that Mr. Justice Joyal applied, relying upon Alda Enterprises Ltd. v. The Queen [1978] 2 F.C. 106, is that " ...if the court would have jurisdiction over an individual action against each defendant taken separately, the defendants may be added to her Majesty in the style of cause..." (page 189).

     Any analysis of jurisdiction of this sort begins with that set out by the Supreme Court of Canada in International Terminal Operators Ltd. v. Miida Electronics, [1986] 1 S.C.R. 752 at 766:

1. There must be a statutory grant of jurisdiction by the federal Parliament.

2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.

3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867.

Certainly Section 17 (5)(b) of the Federal Court Act provides the statutory grant of jurisdiction over officers, servants and agents of the Crown, that being the first requirement in order to establish jurisdiction as set out in Miida Electronics.

     The second part of the test set out in the Miida case, requires that the plaintiff establish the existence of a body of Federal law upon which to base the cause of action. A good example of the application of this requirement occurs in Kealey v. Canada (1992) 46 F.T.R. 123 in which criminal charges against the plaintiff were subsequently dropped, whereupon the plaintiff sued both the Crown and an RCMP officer alleging bad faith and negligence in the investigation of the case, by reason of which the plaintiff had suffered various injuries, including damage to his reputation. Again, Mr. Justice Joyal was the Judge. He declined jurisdiction over the RCMP officer on the basis that the causes of action were not based on Federal statute. This case points to the anomalous dichotomy that the Federal Court may hear a claim based on the vicarious liability of the Crown for the actions of its officer or servant, yet not have the jurisdiction to determine a personal action against that same officer or servant: this may unfortunately lead to a multiplicity of proceedings, but that can sometimes be the effect of this Court's statutory jurisdiction.

     Turning to the third part of the test, that the law on which the case is based must be a law of Canada, I have not overlooked the fact that malicious prosecution has been recognized as a tort which is part of the federal common law: see for example Kealey v. Canada (1992), 46 F.T.R. 107 at 119. This sort of federal common law is sufficient to meet the third part of the Miida Electronics test: see Dick v. the Queen, [1989] 1 S.C.R. 322 at 339. However, I fail to see any existing body of federal law to meet the second requirement of the Miida Electronics test, for the RCMP Act has no bearing on any of the Plaintiffs' tort claims.

     The result can be different where the case against the individual is based substantially on Federal Statute or Regulation, as was the situation in Oag v. Canada [1987] 2 F.C. 511 (FCA). However, in the present instance the basis of the claim against the Chairman is in tort. The existence of the claim depends not at all on Federal law or legislation: indeed, the Plaintiffs' claim refers only fleetingly and does not rely, for disposition, upon the RCMP Act. Now it could conceivably be that the Chairman of the Commission acted improperly and beyond the scope of his position, but given that this is a claim in tort it ought to be litigated in a court that has jurisdiction as between individuals, not in the Federal Court.

     In summary, the Court does not have a jurisdiction over the Defendant, Jean-Pierre Beaulne, Q.C. Indeed, he does not need to be impleaded personally, for the Crown would be vicariously liable for the negligence of its servants and agents.

CONCLUSION

     The Plaintiffs' claim may not be an easy one to bring to a successful conclusion, but I do not find it, on the pleadings as they stand, so bereft of a reasonable cause of action that it is plain and obvious and beyond doubt that it will not succeed. In addition, where a pleading contains a reasonable cause of action under Rule 419 (1)(a), it is usually very difficult to strike it out under the headings of being scandalous, frivolous or vexatious, or as an abuse of process of the Court. That is the case here. Certainly the Defendants have made some valid arguments, but they have not overcome the burden of showing plainly and obviously that the case is doomed to fail.

     In the result, the Statement of Claim will stand, however, Jean-Pierre Beaulne, Q.C. will be removed from the style of cause, with the Plaintiffs to file an appropriately Amended Statement of Claim within 30 days. I thank counsel for a thorough presentation.

                                         (Sgd.) "John A. Hargrave"

                                             Prothonotary

June 10, 1997

Vancouver, British Columbia

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

STYLE OF CAUSE:          INSPECTOR DENNIS MASSEY,                      CONSTABLE AMRIK VIRK, CONSTABLE DAVID JOYCE

                     - and -

HER MAJESTY THE QUEEN IN RIGHT                      OF CANADA and JEAN-PIERRE BEAULNE, Q.C., Chairman, RCMP Public Complaints Commission

COURT NO.:              T-807-96

PLACE OF HEARING:          Edmonton, AB

DATE OF HEARING:          June 3, 1997

REASONS FOR ORDER OF JOHN A. HARGRAVE, PROTHONOTARY, dated June 10, 1997

APPEARANCES:

     Mr. Lorne E. Goddard                      for Plaintiffs

     Mr. Robert M. Curtis                      for Defendants

Ms. Karen M. Trace

SOLICITORS OF RECORD:

     Chapman Riebek                          for Plaintiffs

Edmonton, AB

     McCuaig Desrochers                      for Defendants

     Edmonton, AB