Date: 20090120
Docket: T-1780-08
Citation: 2009 FC 43
Ottawa, Ontario, the 20th day of January 2009
Present:
The Honourable Mr. Justice Shore
BETWEEN:
CLOTILDE
BÉRUBÉ
Plaintiff
and
HER MAJESTY
THE QUEEN
Defendant
and
THE ATTORNEY
GENERAL OF QUEBEC
Mis-en-cause
REASONS FOR ORDER AND ORDER
I. Preliminary Remarks
[1]
This
is a sad case. It illustrates the fragility and precariousness of the human condition,
and calls for understanding and for the Court to deal with this case
sensitively, but nonetheless with a view to the legislation and case law.
[2]
The
plaintiff, Clotilde Bérubé, who represents herself, admits that she is a
compulsive gambler who started going to the Casino du Lac-Leamy in about 1998,
after the suicide of her husband. In what she wrote herself, the plaintiff
discloses that she felt guilty about his death.
[3]
The
plaintiff admits that her world was turned upside down, and had it not been
for her promise to her son never to abandon him, she would undoubtedly have
taken her own life, because she could not live with the sadness that
overwhelmed her. The plaintiff lived for a long time in a state of
psychological and emotional shock and was so depressed that she had no insight
and no sense or reality or of her responsibilities.
[4]
The
plaintiff lost everything through gambling: her real property, her job, her
friends, her self-esteem and her sense of responsibility. As well, she extorted
nearly $500,000 from family members and lenders, who went so far as to threaten
her life and the lives of her children. When the plaintiff could not give her
children the attention they needed, she had to give up her son for several
years, and place him in a foster home.
II. Facts
[5]
On November 18, 2008, the plaintiff filed a statement of
claim asking this Court to pronounce judgment against the defendant in the
amount of $20,000,000.
[6]
In her statement of claim, the plaintiff says that she suffers
from a pathological dependency on gambling and the amounts she is seeking from
the defendant represent the money lost, directly or indirectly, as a result of
that dependency, as well as punitive and exemplary damages for the alleged
wrongdoing by the defendant. More specifically, the plaintiff is claiming the
following damages:
- $2,000,000
representing money lost in the casinos in Quebec, which money for the most
part came from the sale of income properties located in Ottawa, Ontario;
- $2,000,000
representing the added value, or market value, of the properties if they
had been sold today;
- $4,000,000
representing the total amount invested after the sale of those properties
for a period of 20 years;
- $2,000,000 as
punitive, exemplary and aggravated damages;
- $10,000,000 as
damages in tort.
[7]
The plaintiff claims that the defendant is liable because she was
in breach of certain of her duties and responsibilities.
[8]
More
specifically, the breaches alleged by the plaintiff are listed in
paragraphs 75 et seq. of her statement of claim, in which she
alleges:
75. The government of
Canada should or ought to be aware that the Criminal code of Canada as
it now reads forbids the operation of Casinos in Canada and this even for
provincial governments.
76. The government of
Canada should or ought to be aware that the operation of Casinos in Canada by
provincial governments is a threat to life, liberty and security of the
person and the right not to be deprived thereof…
77. The government of
Canada should or ought to be aware that the Criminal code of Canada as
it now reads forbids the operation of Casinos in Canada by aboriginal nations
and by municipalities as it is done actually in Ontario and British Columbia.
78. The government of
Canada should or ought to be aware that the Criminal code of Canada as
it now reads forbids the association of provinces to private enterprise in the
conduct and operations of lotteries.
79. Although the
Defendants should or ought to be aware of their responsibilities towards the
respect of the provision of the Criminal code of Canada, it has done
nothing to oppose the creation and expansion of illegal gambling in Canada by
fear of Constitutional consequences and retaliations from the provinces.
80. The Defendants at
all material times, owed a fiduciary duty, a duty of care and a duty of good
faith to the Plaintiff in particular and the population of Canada in overseeing
that the provinces are acting in conformity with the laws of this country and
more particularly with the Constitution of this country.
81. The Defendant at all
material times, owed a statutory duty and a duty of good faith to the Plaintiff
in particular and to the population of Canada in overseeing that the
Constitution of this country is respected at all times by the provinces and
that no law passed by those provinces contravenes Section 91 of The
Constitutional Act of 1867 and of Section 52 of The Constitutional Act
of 1982.
82. The Defendants and
more particularly the Department of Justice and the Attorney General of Canada
should be aware that its employees owe a duty of loyalty and a duty of good
faith to the Plaintiff in particular and to the population of Canada in
overseeing that no law should be illegally enacted and that no deal should be
made between the provinces and the federal government which his not in
conformity with the Constitution of this country.
83. All of the above
constitute a breach of duty due to the negligence and irresponsible behaviour
of the Defendants which resulted in damages to the Plaintiff.
84. The Plaintiff has
suffered and endured numerous damages due to the faults, the negligence and the
inaction of the Defendants which has resulted in enormous suffering, in mental
anguish, in mental torture, in loss of her health and wealth, in having lived a
veritable hell, in having suffered a heart attack, in living in permanent
physical and mental partial incapacity, in having a pacemaker within her body,
in living below the poverty line… etc… in wanting to die… etc…
[9]
It
is apparent from those passages of the plaintiff’s statement of claim that her
action is essentially based on two allegations:
(a) The Criminal Code, R.S.C. 1985, c. C-46 and the Canadian
Charter of Rights and Freedoms, Part I, Schedule B to the Canada
Act, 1982, 1982, c. 11 (U.K.) (Charter), as they are worded, prohibit
the operation of casinos by the provinces, municipalities and aboriginal
nations, and prohibit provinces entering into partnerships with private
undertakings to conduct and operate lotteries;
(b) The defendant breached her duties and responsibilities by failing
to oppose the creation and operation of casinos by the provinces.
[10]
This
is not the plaintiff’s first attempt to obtain damages for the losses suffered
as a result of her dependency.
[11]
In
an action brought, Court file no. 500-17-039983-070, the plaintiff claimed
damages in the amount of $10,000,000 from Loto-Québec and the Société des loteries
du Québec, the Attorney General of Quebec and Alain Cousineau (Affidavit of Benoît de Champlain, at paras. 10-11 and Exhibit 7
in support of that affidavit).
[12]
In
this action in damages, the plaintiff alleges both that the provincial agency
has no authority to regulate casinos and slot machines and that the
establishment and operation of the casinos is wrongful.
[13]
The
damages claimed by the plaintiff in this action are as follows:
(a) reimbursement
of the money she lost in casinos and slot machines located in Quebec, which
money came from the sale of income properties, in the amount of $2,000,000;
(b) the
amount representing the added value or current market value of the properties
sold by the plaintiff, in the amount of $2,000,000;
(c) the
amount representing the long-term income from those properties, or an annuity
purchased by investing the proceeds of sale of those properties, in the amount
of $2,000,000.00;
(d) moral
damages in the amount of $2,000,000.00;
(e) exemplary,
punitive and aggravated damages under article 1621 C.C.Q. in the amount of
$1,000,000.00;
(f)
general damages and/or punitive and exemplary damages under
section 49(1) of the Charter of rights and freedoms of Quebec in
the amount of $500,000.00;
(g) general
damages and/or punitive and exemplary damages under section 24(1) of the Canadian
Charter of Rights and Freedoms in the amount of $500,000.00.
(Affidavit of
Benoît de Champlain, Exhibit 7, Motion to Institute Proceedings at
para. 1).
[14]
The
case is still pending in the Superior Court; the defendants’ motions to dismiss
have been set down for hearing on April 28, 2009 (Affidavit of Benoît de Champlain at para. 12 and Exhibit 8 in
support of that affidavit).
[15]
In
addition, in file no. 550-17-0011741-055, the plaintiff asked the Quebec
Superior Court for a declaratory judgment ruling that sections 196 to 207 of
the Criminal Code do not allow the province to operate casinos.
[16]
The
application for declaratory judgment was dismissed by the Quebec Superior Court
on motion to dismiss for want of legal basis, and that decision has been upheld
by the Quebec Court of Appeal and the Supreme Court of Canada (on application
for leave to appeal).
[17]
In a separate proceeding, the plaintiff applied to the Quebec
Superior Court, in court file no. 500-17-035480-071,
seeking a declaratory judgment and a permanent injunction and interlocutory
injunction against the Attorney General of Quebec, Groupe Attractions Hippiques
and Senator Paul J. Massicotte, the Honourable Jean Charest and the
Honourable Lise Thibeault.
[18]
Three
types of relief were sought by the plaintiff in that action:
- Declaratory relief:
to declare the operation of slot machines and video lottery machines to be
illegal and unconstitutional, and a declaration that the agreement between
the Government of Quebec and Groupe Attraction Hippiques is illegal,
immoral and unconstitutional;
- Relief by way of mandamus:
to order the Minister of Finance and Loto-Québec to cease operating,
marketing, promoting and renting slot machines, and to prohibit the
Minister of Finance and Lieutenant Governor from issuing “gaming house”
operating permits or licences to Groupe Attractions Hippiques or Senator
Massicotte, and seeking an investigation by the Auditor General of Quebec
into the accounting methods used by Loto‑Québec and by the Sûreté du
Québec into the manner in which the slot machines under the control of Loto‑Québec
are operated;
- Relief by way of
damages: claim in the amount of $99,000 as reimbursement of the money
invested in those machines and as damages and interest.
[19]
That
action was also dismissed on motions to dismiss made by the Attorney General of
Quebec and Senator Paul J. Massicotte, and that judgment was affirmed by the
Quebec Court of Appeal (file no. 500-09-018013-078) and the Supreme Court
of Canada (on application for leave to appeal in file no. 32475).
[20]
Apart
from the numerous civil actions brought by the plaintiff, she has also applied
to the Court of Québec under section 507.1 of the Criminal Code (Madame
C.B. v. K.T., 2006 QCCQ 1985).
[21]
In
that application, the plaintiff accused K.T., manager of a government casino,
of operating a gaming house, contrary to section 201(1) and/or 201(2)(b)
of the Criminal Code.
[22]
Judge
Pierre Chevalier of the Court of Québec dismissed that application; regarding
the meaning of section 207 of the Criminal Code, he wrote:
[TRANSLATION]
[9] ... It is not implausible that
the legislature wished to limit the use of paragraphs 206(1)(a) to (g)
to a “means, device, contrivance or operation” and not a “game”. The
consequence of that interpretation is that it would operate to include in the
exceptions the definition of “game” found in s. 197(1) – “game of chance
or mixed chance and skill” – without the limitation provided in
paragraphs 206(1)(a) to (g). Because the activities alleged
against the casino manager are in the nature of a “game” within the meaning of
that definition, he could not be prosecuted for engaging in them. …
(Madame C.B. v. K.T., 2006 QCCQ
1985).
III. Analysis
The
Plaintiff’s Statement of Claim Discloses no Reasonable Cause of Action
[23]
According
to the cases cited, the plaintiff’s statement of claim and the action brought
by her should be struck out on the ground that she has no reasonable cause of
action (Hunt v. Carey Canada Inc, [1990] 2 S.C.R. 959; Operation Dismantle Inc. v. Canada,
[1985] 1 S.C.R. 441, 31 A.C.W.S. (2d) 45; Inuit Tapirisat of Canada v. Canada
(Attorney General), [1980] 2 S.C.R. 735, 5 A.C.W.S. (2d) 255).
[24]
In
order for a statement of claim to disclose a cause of action, it must: (1) allege
facts which are capable of giving rise to a cause of action; (2) indicate the
nature of the action which is to be founded on those facts; and (3) indicate
the relief sought which must be of a type which the action could produce and
the court must have jurisdiction to grant (Kiely
v. Canada (1987), 10 F.T.R. 10, 4 A.C.W.S.
(3d) 94).
[25]
In
her statement of claim, the plaintiff is seeking a declaration that the
casinos, and the partnership between provinces and private undertakings to
conduct lotteries, are contrary to the provisions of the Criminal Code and
the Charter.
[26]
First,
it is obvious that the alleged violations of the Criminal Code and the
Charter are not the results of actions by the federal government or its agents;
they are actions of the provinces or the provincial Crown corporation
responsible for administering casinos.
[27]
In
addition, the plaintiff’s statement of claim constitutes a disguised attempt to
challenge the validity and/or constitutionality of provincial legislation and
regulations governing casinos or other lotteries.
[28]
As
a result, the defendant is certainly not the appropriate defendant for this
challenge and the Federal Court is not the appropriate forum.
[29]
Accordingly,
the result of the plaintiff’s failure to bring her action against the
appropriate defendant is that the action brought discloses no reasonable cause
of action, because the Court cannot grant the relief sought.
[30]
The
arguments regarding the defendant’s obligation to oppose the casinos are also
without any basis.
[31]
As
the plaintiff submits, the federal government is responsible, under
subsection 91(27) of the Constitution Act, 1867, for legislating in
relation to criminal law.
[32]
The
plaintiff’s attempt to impose liability for failure to legislate in relation to
any matter is without basis in law because, first, any intervention by a court
would amount to an interference by the judicial branch in the powers of the
legislative branch, and such intervention would violate parliamentary privilege.
[33]
Having
regard to the separation of powers in a democracy, it is fundamental to the
Canadian parliamentary system that political choices are made by elected
representatives and not by judges (P. Hogg, Constitutional
Law of Canada, 4th ed., Toronto, Carswell, 1997 at p. 312).
[34]
For
this reason, the claim for the defendant to be held liable for damages for
failing to legislate in relation to a particular matter that comes within its
jurisdiction would be an interference by the judicial branch in the powers of
the legislative branch.
[35]
In
fact, the Quebec Court of Appeal decided just that with respect to
section 207 of the Criminal Code; it wrote:
[TRANSLATION]
[73] I am of the opinion
that Parliament could, as it did in s. 207, exempt a lottery established
and operated by the government of a province from the other provisions of Part
VII of the Criminal Code.
[74] In
legislating in relation to criminal law, which is within its jurisdiction,
Parliament may determine not only what is criminal, but also what is not.
That is what it did when it allowed the provincial government to organize and
operate a lottery. The power to organize a lottery, using video lottery
devices, includes the power to issue licences (s. 92 of the Constitution
Act, 1867) for a provincial purpose (property and civil rights, s. 92(13)).
(Emphasis added.)
(R. v. 3044190 Canada Inc.,
[1997] R.J.Q. 766, 35 W.C.B. (2d) 370).
[36]
It
is not possible to bring action against the Crown for pecuniary compensation
based on enactment of legislation, and that principle necessarily applies to a
political decision by Parliament not to legislate in relation to a particular
matter.
[37]
The
Supreme Court of Canada also ruled to the same effect when it quoted a passage
from Dussault and Borgeat and wrote:
[14] ...
In our parliamentary
system of government, Parliament or a legislature of a province cannot be held
liable for anything it does in exercising its legislative powers. The law
is the source of duty, as much for citizens as for the Administration, and
while a wrong and damaging failure to respect the law may for anyone raise a
liability, it is hard to imagine that either Parliament or a legislature can as
the lawmaker be held accountable for harm caused to an individual following the
enactment of legislation. [Footnotes omitted.]
(Guimond
v. Quebec (Attorney General), [1996] 3 S.C.R. 347, 65 A.C.W.S. (3d) 718).
[38]
For
these reasons, the action brought by the plaintiff discloses no reasonable
cause of action and must be dismissed because it has no chance of success.
The
Plaintiff’s Statement of Claim
[39]
The
multiple proceedings brought by the plaintiff regarding the same cause of
action, and the previous judgments of the Supreme Court of Canada as to the
constitutionality of section 207 of the Criminal Code, mean that
the plaintiff’s statement of claim is necessarily frivolous and vexatious
within the meaning of paragraph 221(1)(c) of the Federal Courts
Rules, SOR/98-106 and constitutes an abuse of process within the meaning of
paragraph 221(1)(f) of those rules.
[40]
First,
the question of the prohibition of casinos under sections 196 to 207 of
the Criminal Code has already been raised by the plaintiff before a
court on more than one occasion.
[41]
In
particular, in an application to the Superior Court in file no. 550-17-0011741-055,
in which the plaintiff alleged that the casinos were contrary to the provisions
of the Criminal Code and that the provincial legislation and regulations
permitting the operation of casinos were unconstitutional.
[42]
In
her judgment on the motion to dismiss the plaintiff’s action, Madam Justice
Johanne Trudel of the Superior Court wrote:
[TRANSLATION]
[15] The final point is that
the application for declaratory judgment must be dismissed if the question it
raises has already been argued in the courts, because there is no longer an
issue to be resolved. This is of particular importance in a constitutional
proceeding since it can affect the very stability of the law and the proper
administration of justice.
[16] While
the facts in Siemens were different, it contains the general principles
that govern the instant case with respect to constitutional jurisdiction. The
first principle is:
… the less-than-ideal legislative drafting
is not an independent ground upon which legislation can be found
unconstitutional. The wording of the statute is only relevant to the analysis
in so far as it informs the determination of the pith and substance of the
legislation. As long as the pith and substance of [the impugned
provision] falls within the provincial sphere of legislative authority, it is
immaterial whether it could have been drafted in clearer terms.
[17] A second principle is
found in Furtney:
In my view, the regulation of gaming
activities has a clear provincial aspect under s. 92 of the Constitution
Act, 1867 subject to Parliamentary paramountcy in the case of a clash
between federal and provincial legislation. ... Altogether apart from features
of gaming which attract criminal prohibition, lottery activities are subject to
the legislative authority of the province under various heads of s. 92,
including, I suggest, property and civil rights (13), licensing (9), and
maintenance of charitable institutions (7) (specifically recognized by the Code
provisions). Provincial licensing and regulation of gaming activities is
not per se legislation in relation to criminal law.
[18] Our Court of Appeal
applied that principle in 3044190
Canada inc. v. Procureur général du Québec, where it said:
[TRANSLATION] If a province
legislates in an area where it has the power to legislate, it does so not as a
delegate, but in the exercise of the powers assigned to it by section 92 of the
Constitution Act, 1867.
...
[24] While the allegations
in the motion to institute proceedings, when read in light of article 165(4) C.C.P., must be assumed to be true,
nonetheless we cannot ignore the existing law and the recent decisions of the
highest court in the land in relation to gambling.
[25] Once
the judge has the complete record in hand and there is a clear legal situation
from which it can be determined whether grounds for dismissal exist, it is in
the interests of the parties and of the proper administration of justice to put
an end to a proceeding that will lead to a pointless process.
[26] The
Court is satisfied from the motion to institute proceedings, as it is framed,
that a court is not the appropriate forum for the battle that the applicant
wishes to wage in order to quench her thirst for vengeance or calm the upset
into which she has been thrown by the unfortunate effects of gambling on her
personal life.
[27] The
Court is satisfied that the applicant is not acting in bad faith, but the
relief she is seeking has already been the subject of decisions of the courts,
including in Siemens and Furtney, supra.
[28] The
question of the statutory construction problems she alleges was also discussed
in Siemens and it was decided that less-than-ideal legislative drafting
is not an independent ground upon which legislation can be found
unconstitutional.
[29] The
purpose of the Quebec legislation and the statutory provisions that the
applicant is challenging is clear. There can be no doubt that they fall within
the jurisdiction of the province that enacted them, in the exercise of the
powers assigned to it by section 92 of the Constitution Act, 1867.
(Bérubé v. Loto Québec (Société
des loteries du Québec inc.), [2005] J.Q. No. 2879).
[43]
That
judgment was affirmed up to and including by the Supreme Court of Canada (on
application for leave to appeal) (Bérubé v. Loto Québec (Société des
loteries du Québec inc.), [2005] C.S.C.R. No.
442).
[44]
The
question of violation of provisions of the Criminal Code has also been
raised previously by the plaintiff in the Court of Québec, in an application
under section 507.1 of the Criminal Code (Madame C.B. v. K.T.,
2006 QCCQ 1985).
[45]
Judge
Pierre Chevalier of the Court of Québec dismissed the application on the
ground, inter alia, that in his opinion the operation of a casino by the
government was not contrary to section 201(1) and/or 201(2)(b) of
the Criminal Code, because it is covered by the exemption in section 207
of the Criminal Code.
[46]
In another proceeding, the plaintiff also applied to the Quebec
Superior Court, in file no. 500-17-035480-071, seeking a permanent
injunction and interlocutory injunction against the Attorney General of Quebec,
Groupe Attractions Hippiques and Senator Paul J. Massicotte, the
Honourable Jean Charest and the Honourable Lise Thibeault.
[47]
That
action was also dismissed on motions to dismiss made by the Attorney General of
Quebec and Senator Paul J. Massicotte (Bérubé v. Québec (Procureur
général), 2007 QCCS 3748, [2007] J.Q. 8140 (QL)). The judgment of Madam
Justice Louise Lemelin was also affirmed by the Quebec Court of Appeal (file
no. 500-09-018013-078 (500-17-035480-071), December 3, 2007) and the
Supreme Court of Canada (on application for leave to appeal, in file no. 32475,
April 10, 2008).
[48]
In
addition, another action was brought by the plaintiff in the Superior Court in
which she sought damages in the amount of $10,000,000, as compensation, from
Loto-Québec, the Attorney General of Quebec and Alain Cousineau (Affidavit of Benoît de Champlain at para. 10 and Exhibit 7 in
support of that affidavit).
[49]
In
that action in damages, the plaintiff alleged both that the provincial agency
had no authority to regulate casinos and slot machines and that the
establishment and operation of the casinos was wrongful.
[50]
The
damages claimed in that action are similar in many respects to the damages
claimed from the defendant in this Court, and in particular:
- $2,000,000
representing money lost in the casinos in Quebec, which money for the most
part came from the sale of income properties;
- $2,000,000
representing the added value, or market value, of the properties if they
had been sold today;
- the
amount representing the long-term income from those properties or an
annuity purchased by investing the proceeds of sale of those properties
($2,000,000);
- moral damages in
the amount of $2,000,000;
- exemplary,
punitive and aggravated damages in the amount of $1,000,000.
(Affidavit of
Benoît de Champlain, Exhibit 7, Motion to Institute Proceedings at
para. 1).
[51]
The
case is still pending in the Superior Court; the defendants’ motions to dismiss
have been set down for hearing on April 28, 2009 (Affidavit of Benoît de Champlain at para. 12 and Exhibit 8 in
support of that affidavit).
[52]
It
is apparent from reading these proceedings and the numerous judgments
associated with them that by bringing action against Her Majesty, the plaintiff
is attempting to raise issues that have already been disposed of in judgments
against the plaintiff and/or that are the subject of proceedings already
pending in the provincial courts involving the real defendants.
[53]
The
plaintiff’s repeated attempts to raise the same issues while naming different
defendants is an abuse of process (Black v. NsC
Diesel Power Inc. (Trustee of) 2000, 183
F.T.R. 301, 97 A.C.W.S. (3d) 859).
[54]
In
addition, as the judgment of Justice Trudel indicates, the question of the
constitutionality of section 207 of the Criminal code has already
been disposed of in the decision of the Supreme Court in R. v. Furtney,
[1991] 3 S.C.R. 89, 129 N.R. 241, and so the issues raised by the plaintiff in
relation to that section have already been considered.
IV. Conclusion
[55]
For
these reasons, the allegations made by the plaintiff do not disclose a
reasonable cause of action and the action is dismissed, but without costs,
given the plaintiff’s fragile health.
ORDER
THE COURT ORDERS that the
plaintiff’s action be dismissed without costs.
Obiter
As the plaintiff demonstrated just before
leaving the courtroom, she has expressed her desire to resume her life. This
will require her to understand what appropriate support is needed, of her own
free will, and call for a keen desire to return to the world with a plan of her
own that inspires her.
“Michel
M.J. Shore”
Certified
true translation
Brian
McCordick, Translator
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