Date:
20121107
Docket:
T-1128-12
Citation: 2012 FC 1300
Toronto, Ontario, November 7, 2012
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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CHRISTOPHER BRAZEAU AND
BRADLEY ROGERS AND
HARVEY ANDRES AND
ERNEST MEIGS AND
TROY BURTON
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Plaintiffs
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and
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HER MAJESTY THE QUEEN
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Defendant
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REASONS FOR ORDER AND
ORDER
[1]
The
Defendant, Her Majesty the Queen, has brought a motion to strike the Statement
of Claim in this action as filed on June 13, 2012 and for other relief. For the
reasons that follow, I am ordering that the action is to be stayed for six (6)
months on certain conditions.
[2]
The
Plaintiffs, as enumerated in the Statement of Claim filed June 13, 2012, are
all prisoners in a federal penitentiary located in Prince Albert, Saskatchewan. They claim damages in excess of fifty thousand ($50,000.00) dollars as
against the Defendant for, as described in paragraph 1 of that Claim:
•
negligence
•
negligent
infliction of nervous shock
•
intentional
infliction of nervous shock
•
misfeasance
in Public Office
•
breach
of sections 7, 8, 9, 12 and 15(1) of the Charter
[3]
In
addition, they claim aggravated and exemplary damages, costs on a lawyer/client
basis, and other relief.
[4]
The
first named Plaintiff, Christopher Brazeau, describes himself in paragraph 2 of
the Claim as “Plaintiff in lead”. None of the Plaintiffs describe themselves as
lawyers entitled to practise law in any of Canada’s provinces or territories.
Each of the Plaintiffs has personally signed the Statement of Claim. In the
materials filed in the Court record, such as the Plaintiff’s submissions on
this motion, the Plaintiff Brazeau appears to be acting as the spokesman for
all Plaintiffs.
[5]
In
response to the Defendant’s original motion to strike, the Plaintiffs filed a
response, together with a document entitled “Amended Statement of Claim etc”.
This document was not filed as a separate document purporting to amend the
original Statement of Claim. This document purports to add two further
Plaintiffs and to provide further particulars beyond that which was set out in
the original Statement of Claim. In the meantime, Justice Snider of this Court
has given an Order, together with Reasons (cited as 2012 FC 648), in another
action, T-1543-11, involving the same person, Christopher Brazeau, as Plaintiff,
and the Attorney General of Canada. Her Order dealt with a motion to strike
brought by the Attorney General.
[6]
As
a result, I gave a Direction requesting that the Defendant in the present
action provide an amended argument dealing with Justice Snider’s Reasons and
the purported amendments to the Statement of Claim in this action. The
Defendant has now provided an Amended Motion Record. The Plaintiffs, through
the Plaintiff Brazeau, have provided an Amended Record in response. I will deal
with the motion, principally having regard to these documents; but I also have
in mind the earlier documents provided in the record.
[7]
I
start with noting that none of the Plaintiffs are lawyers. At paragraph 6 of
their Memorandum of Argument, they state that they “…are not legally trained
and must prepare and argue their case without the assistance/advice of
counsel…”. Nonetheless, a reading of the Claim and other materials provided by
the Plaintiffs demonstrates that considerable time and effort has been expended
by one or more of them in conducting some sort of legal research into the
matter. Therein lies one of the problems encountered by self-represented
litigants such as the Plaintiffs. Legal training involves more than just
reading materials and copying from precedents. It requires a thorough knowledge
of the law and how it is practised, and the exercise of experienced judgment in
determining, for instance, whether a claim should be made to the Courts or to
some other person or tribunal; how that claim fits within the principles of
law; and how that claim is to be set forth properly in the relevant documents
in which a claim is submitted. While many people can wield a knife, not all are
surgeons. While many people can read Rules of Practice and legal texts, not all
are barristers or solicitors. It takes not only knowledge, but thorough
knowledge, exercised through experienced judgment to get it right.
[8]
I
have no information as to whether the Plaintiffs sought legal advice and failed
to obtain it, for financial reasons or otherwise. Nor do I have any information
as to whether the Plaintiffs did secure legal advice and chose not to follow
it.
[9]
The
Plaintiffs’ circumstances are described by themselves in paragraph 17 of their
Amended Statement of Claim:
17. The awkward, damaging positions and
uncomfortable extremes of the Plaintiffs Detention is inflicting extreme stress
and nervous shock by inter alia:
(a)
being
unable to understand, control or offset the effects or impositions;
(b)
having
to self deaden in order to cope, which in turn;
(c)
diminishes
ability and capacity to bear desire, feel/express emotions including the
ability/desire to;
(d)
express
and/or enjoy mutuality, connectivity and meaning making;
(e)
sleep
deprivation
(f)
being
unable to express and/or realize my rights
(g)
constantly
being overwhelmed with hopelessness and erosion of self worth/value
(h)
loosing
control over my ability to tolerate my circumstances and maintain my
composure/sanity at the same time;
(i)
constantly
worrying and fearing over the longevity and extent these effects will have on
my life, personality and future;
(j)
feeling
constant and incessant subtle anger over being unable to make fundamental
and critical life choices;
(k)
all
of which resemble the symptoms associated with Morbid Depression, Antisocial
Personality Disorder, Obsessive Compulsive Order, Post Traumatic Stress
Disorder
(l)
other,
not limited by the foregoing which has occured both during and subsequent to
the conduct of the Defendant
[10]
Here
we see expressions of anger, hopelessness, diminished capacity and losing
control. One is reminded of a quotation ascribed to Gautama Buddha, “Holding on
to anger is like grasping a hot coal with the intent of throwing it at someone
else; you are the one who gets burned”. Similarly, one can cite Greeks such as
Sophocles and Seneca “Whom god wishes to destroy, he first makes mad.”
[11]
In
viewing the Statement of Claim and Amended Statement of Claim, the Court can
clearly grasp that the Plaintiffs are unhappy to the point of frustration,
distraction and despair, with the circumstances of their imprisonment. Whether
this is a normal and expected consequence of that imprisonment or whether their
circumstances have gone beyond those prescribed by the laws of Canada, is not sufficiently clear from the pleadings, even those as amended. What the
pleadings do set forth are conclusions. What they must set forth are:
•
the
precise circumstances at issue: the who, what, when and where relevant events
leading to the complaint took place
•
the
resulting effect
•
the
standard required by law
•
the
manner in which those circumstances failed to live up to the standards required
by law
•
what
harm resulted
[12]
The
Rules of this Court, including Rule 174, require a pleading to contain a
concise statement of the material facts. Simply to conclude, for example, that
barber services were not provided, or that library services were inadequate; or
that access to sunlight was not provided, is insufficient. What happened, when,
and where; who was involved must be clearly and precisely set out. What is the
standard required by law? How did the Defendant’s servants fall short of that
standard? All of this is required of a proper pleading.
[13]
Should
the Court be involved at this time? There are more appropriate resources
through which anger and frustration can be worked out. There are resources
through which inadequate services can be identified and redressed. These
include mediation and grievance procedures. The Plaintiffs in their amended
Record, paragraph 17, set out a long list of reference numbers, presumably
identifying grievance procedures that have been initiated. While in some
circumstances, the Court has permitted an action to proceed notwithstanding the
availability or pursuit of a grievance process, the more usual and more
desirable procedure is that a proper grievance or grievances should be fairly
pursued and determined before the Court is asked to address the situation.
[14]
Accordingly,
the Court concludes in respect of the pleadings, including the draft amended
Statement of Claim:
a)
the
Statement of Claim is inadequate; it fails to set out the specific factual
circumstances giving rise to a claim; it fails to set out the standard
required; it fails to set out how and in what respect the Defendant’s officers
failed to meet that standard;
b)
the
Statement of Claim, however, is not so inadequate that leave to amend should be
denied;
c)
no
party can be added by simply filing an amended Claim; leave of the Court must
be sought;
d)
the
Plaintiffs should seek competent legal representation;
e)
the
parties should calmly act in good faith and follow appropriate mediation and
grievance procedures before seeking the assistance of the Court.
ORDER
ACCORDINGLY, I
will stay the present action for a period of six (6) months so as to permit:
1.
The
Plaintiffs to secure competent legal counsel. If they cannot do so, they shall
advise the Court within five (5) months as to the difficulties experienced and
why they are unable to do so.
2.
Defendant’s
Counsel shall, within two (2) months, advise the Plaintiffs and the Court as to
competent legal services that may be available to the Plaintiffs , including
Legal Aid, pro bono services, and otherwise.
3.
The
parties shall advise on or before the expiry of six (6) months as to the status
of any grievance procedure or procedures taken.
4.
The
parties shall advise on or before the expiry of six (6) months as to any
mediation process(es) undertaken, and efforts undertaken as between themselves
to discuss and resolve their disputes.
5.
Upon
receipt of the foregoing, the Court shall provide direction as to procedures to
be followed in the present action.
6.
Costs
are reserved.
“Roger
T. Hughes”
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