T-1786-90
Glen Kealey (Plaintiff)
v.
Her Majesty the Queen, the Attorney General of
Canada, Norm Inkster, André Potvin, Brian
Mulroney, Harvey Andre* and Doug Lewis
(Defendants)
INDEXED AS: KEALEY V. CANADA (ATTORNEY GENERAL)
(T.D.)
Trial Division, Teitelbaum J.—Ottawa, April 29 and
May 2, 1991.
Federal Court jurisdiction — Trial Division — Application
of test in ITO—International Terminal Operators Ltd. v. Miida
Electronics Inc. et al. — Federal common law constituting
"law of Canada" within Constitution Act, /867, s. /0/ —
Charter not "law of Canada" — Court having jurisdiction
over torts committed by members of RCMP, including Com
missioner — No power of review over Cabinet under Federal
Court Act, s. 18 — Houses of Parliament, committees not
boards, commissions or tribunals.
Crown — Torts — Court having jurisdiction over torts com
mitted by Crown servants even if lacking jurisdiction over indi
vidual tort feasors.
Practice — Parties — Redundant, confusing to name Attor
ney General where Crown named as defendant.
These were motions brought by the defendants under Rule
419 to strike the second amended statement of claim. The
action arose out of the plaintiff's arrest by the defendant
Potvin, an RCMP officer, on Parliament Hill, March 19, 1990,
on a charge of infringing the Public Works Nuisances Regula
tions. The Regulations had been amended by Order in Council
on March 1, 1990 to prohibit demonstrations near the doors of
the Parliament buildings. The plaintiff spent four days in cus
tody before being released at a show cause hearing on the basis
that his detention was unreasonable. The Crown stayed the
charges. The plaintiff's claim is for general, special and exem
plary damages and a declaration. Plaintiff's assertion is that the
amendment to the Regulations was made for the improper pur
pose of infringing his Charter rights and that his arrest, deten
tion and prosecution were malicious.
* Editor's note: The style of cause reproduces the spelling of
the name of the defendant Harvie Andre found in the
pleadings.
Held, the motions to strike the individual defendants from
the statement of claim should be allowed, and the claims for
breach of constitutional rights and abuse of process struck. The
statement of claim should be amended to claim only for false
arrest, false imprisonment and malicious prosecution and only
against the Crown.
Three conditions for Federal Court jurisdiction were laid
down by the Supreme Court of Canada in ITO—International
Terminal Operators Ltd. v. Miida Electronics Inc. et al: (I) a
statutory grant of jurisdiction by the federal Parliament, (2) an
existing body of federal law which is essential to the disposi
tion of the case and which nourishes the statutory grant of
jurisdiction, and (3) that the law on which the case is based is a
"law of Canada" within section 101 of the Constitution Act,
1867.
The Crown Liability Act, paragraph 3(a), and the Federal
Court Act, subsection 17(1) and paragraph 17(5)(b), provide
the statutory grant of jurisdiction over the Crown for torts
committed by its servants, even where there is no jurisdiction
over those servants individually. The Public Works Act and the
Public Works Nuisances Regulations constitute an existing
body of federal law, and are essential to the determination of
the question as to whether the plaintiff's arrest was wrongful.
The causes of action in false arrest, false imprisonment and
malicious prosecution arise out of the common law of torts.
Federal common law is capable of satisfying the requirement
that the case be based on a law of Canada.
The Charter is not a law of Canada within section 101 of the
Constitution Act, 1867; rather, the claim for breach of constitu
tional rights is subsumed by the claims for the nominate torts
and, since the Court has jurisdiction over those claims, it can
deal with any Charter issues which arise. There is no nominate
tort of breach of statutory duty. The Court has jurisdiction over
torts committed by members of the RCMP, including the Com
missioner, since, under the Royal Canadian Mounted Police
Act, they are servants of the Crown for the purpose of Crown
liability. The cause of action against them personally, however,
does not depend on federal law, and they may not be
impleaded in Federal Court. The Court lacked jurisdiction over
the claims against the Prime Minister and the Cabinet Minis
ters. The Houses of Parliament and their committees are not
"boards, commissions or other tribunals" within section 18 of
the Federal Court Act, rather, they create such bodies and are
not on their level.
Where the Crown is named a defendant to an action, it is
redundant and confusing to also name the Attorney General.
On a motion under Rule 419, all allegations of fact are
assumed to be proven. On that basis, the plaintiff may have a
claim against the Crown for false arrest, false imprisonment
and malicious prosecution.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C., 1985, Appendix III.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44].
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], s. 101.
Crown Liability Act, R.S.C., 1985, c. C-50, ss. 2, 3(a).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 17(1),(5)(b).
Federal Court Rules, C.R.C., c. 663, RR. 337(2)(b),
419(1)(a).
Police Act, R.S.O. 1980, c. 381, s. 24.
Public Works Act, R.S.C., 1985, c. P-38.
Public Works Nuisances Regulations, C.R.C., c. 1365, ss.
6(2) (as enacted by SOR/85-370, s. I), 10.1 (as enacted
by SOR190-155, s. 2), 11 (as am. idem, s. 3).
Royal Canadian Mounted Police Act, R.S.C., 1985, c.
R-10, ss. 1, 3, 5 (as am. by R.S.C., 1985 (2nd Supp.), c.
8, s. 2), 6 (as am. idem, s. 3), 53 (as am. idem, s. 22).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
ITO-International Terminal Operators Ltd. v. Miida
Electronics Inc. et al., [1986] I S.C.R. 752; (1986), 28
D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241; Roberts v.
Canada, [1989] I S.C.R. 322; [1989] 3 W.W.R. 117;
(1989), 35 B.C.L.R. (2d) 1; 25 F.T.R. 161; 92 N.R. 241;
McNamara Construction (Western) Ltd. et al. v. The
Queen, [1977] 2 S.C.R. 654; (1977), 75 D.L.R. (3d) 273;
13 N.R. 181; Southam Inc. v. Canada (Attorney General),
[1990] 3 F.C. 465; 1990, 73 D.L.R. (4th) 289 (C.A.).
APPLIED:
Bradasch v. Warren et al. (1989), 27 F.T.R. 70
(F.C.T.D.); affd [1990] 3 F.C. 32; (1990), III N.R. 149
(C.A.).
DISTINGUISHED:
Pacific Western Airlines Ltd. v. R., [1979] 2 F.C. 476
(T.D.); affd [1980] 1 F.C. 86; (1979), 105 D.L.R. (3d) 60;
14 C.P.C. 165 (C.A.); Rhine v. The Queen; Prytula v. The
Queen, [1980] 2 S.C.R. 442; (1980), 116 D.L.R. (3d) 385;
34 N.R. 290.
CONSIDERED:
Weisfeld v. Canada, [1990] 1 F.C. 367; (1989), 42 C.R.R.
238; 27 F.T.R. 30 (T.D.); Stephens v. R. (1982), 26 C.P.C.
I; [1982] CTC 138; 82 DTC 6132; 40 N.R. 620 (F.C.A.);
Kigowa v. Canada, [1990] I F.C. 804; (1990), 67 D.L.R.
(4th) 305; 10 Imm. L.R. (2d) 161; 105 N.R. 278 (C.A.);
Lagiorgia- v. The Queen, [1985] 1 F.C. 438; (1985), 18
C.R.R. 348; [1985] 2 CTC 25; 85 DTC 5419 (Fr.); 85
DTC 5554 (Eng.) (T.D.); Roncarelli v. Duplessis, [1959]
S.C.R. 121; (1959), 16 D.L.R. (2d) 689; Gershman v.
Manitoba Vegetable Producers' Marketing Board (1976),
69 D.L.R. (3d) 114; [1976] 4 W.W.R. 406 (Man. C.A.);
Crown Trust Co. v. Ontario (1988), 64 O.R. (2d) 774
(H.C.); Bosada v. R., [1979] 2 F.C. 335 (T.D.).
REFERRED TO:
R. in right of Canada v. Saskatchewan Wheat Pool,
[I983] I S.C.R. 205; (1983), 143 D.L.R. (3d) 9; [1983] 3
W.W.R. 97; 23 CCLT 121; 45 N.R. 425.
AUTHORS CITED
Hogg, Peter W., The Liability of the Crown, 2nd ed.,
Toronto: Carswell Co. Ltd., 1989.
COUNSEL:
Todd A. McKendrick for plaintiff.
Barbara A. Mclsaac, Q.C. for defendants Her
Majesty The Queen, the Attorney General of
Canada, Norm Inkster and André Potvin.
H. Lorne Morphy, Q. C. and Kent E. Thomson
for the defendants Brian Mulroney, Harvie
Andre and Doug Lewis.
SOLICITORS:
Bosada & Associates, Ottawa, for plaintiff.
Deputy Attorney General of Canada for defend
ants Her Majesty The Queen, the Attorney Gen
eral of Canada, Norm Inkster and André Potvin.
Tory, Tory, DesLauriers & Binnington, Toronto,
for defendants Brian Mulroney, Harvie Andre
and Doug Lewis.
The following are the reasons for order rendered in
English by
TEITELBAUM J.: These are two motions, one by the
defendants Brian Mulroney, Harvie Andre and Doug
Lewis and the second by the defendants Her Majesty
the Queen (Queen), the Attorney General of Canada
(Attorney General), Norman Inkster (Inkster) and
André Potvin (Potvin) for an order striking out the
second amended statement of claim. The defendants,
Mulroney, Andre and Lewis, in addition to request
ing an order to strike pursuant to Rule 419 of the
Federal Court Rules [C.R.C., c. 663] ask:
(b) in the alternative to (a) above, an order pursuant to s. 50 of
the Federal Court Act permanently staying this action;
(c) in the alternative to (a) and (b) above, an order pursuant to
rule 415 of the Federal Court Rules compelling the plaintiff to
provide particulars of the following allegations in the State
ment of Claim:
(i) particulars of the "improper and malicious purpose"
referred to in paragraph 15 of the Statement of Claim which
is alleged to have motivated the Board of Internal Economy
to cause the Regulation to be forwarded to the Cabinet of the
Government of Canada for approval, including particulars of
the nature of the purpose, the manner in which the purpose
was allegedly formulated and by whom;
(ii) particulars of the allegation in paragraph 15 of the State
ment of Claim that Andre was "instrumental in developing
the amendment" and that he is responsible in his personal
capacity and as a representative of the Crown, including par
ticulars of the act or acts for which Andre is allegedly liable
and the basis upon which he is alleged to be liable;
(iii) particulars of the "improper and malicious purpose"
referred to in paragraph 16 of the Statement of Claim which
is alleged to have motivated the Cabinet of the Government
of Canada to "pass" the Amendment, including particulars
of the nature of the purpose, the manner in which the pur
pose was allegedly formulated and by whom;
(iv) particulars of the allegation in paragraph 16 of the State
ment of Claim that Mulroney, Andre and Lewis are "respon-
sible in their personal capacities and as representatives of
the Crown" for the passing of the Amendment by the Fed
eral Cabinet, including particulars of the act or acts relied
upon in support of this allegation and the basis upon which
the Defendants are alleged to be liable; and
(v) particulars of the claims in paragraph 22(a) of the State
ment of Claim, including particulars of which defendants the
various claims are asserted against and on what basis;
(d) this costs of this motion, and of the action; and
(e) such further and other relief as to this Honourable Court
may seem just.
The grounds of the motion on behalf of Mulroney,
Andre and Lewis, as stated in the notice of motion,
are:
(a) the Federal Court of Canada has no jurisdiction in respect
of the claims asserted in this action against Mulroney, Andre
and Lewis;
(b) the Statement of Claim discloses no reasonable cause of
action against Mulroney, Andre and Lewis;
(c) the allegations in the Statement of Claim made against
Mulroney, Andre and Lewis are scandalous, frivolous or vexa
tious, or are otherwise an abuse of the process of this Court;
(d) the plaintiff has failed to plead the material facts upon
which he relies in support of the allegations referred to in
paragraphs (c)(i), (ii), (iii) and (iv) above, and in the absence of
the requested particulars the Defendants Mulroney, Andre and
Lewis cannot plead intelligently in this action; and
(e) such further and other grounds as counsel may advise and
this Honourable Court may permit.
The grounds of the motion on behalf of the Queen,
the Attorney General, Inkster and Potvin as stated in
the notice of motion are:
(a) The Federal Court of Canada has no jurisdiction pursuant to
section 17 of the Federal Court Act in respect of a claim
founded in tort against the said Norm Inkster for breach of
constitutional rights, wrongful arrest, abuse of process and
breach of statutory duty, or malicious prosecution;
(b) The Federal Court of Canada has no jurisdiction pursuant
to section 17 of the Federal Court Act in respect of a claim
founded in tort against the said André Potvin for breach of
constitutional rights, wrongful arrest, abuse of process and
breach of statutory duty, or malicious prosecution;
(c) The Federal Court of Canada has no jurisdiction pursuant to
section 17 of the Federal Court Act in respect of a claim
founded in tort against the Attorney General of Canada, in her
personal capacity, for breach of constitutional rights, breach of
statutory duty, abuse of process, wrongful arrest, false impris
onment, and malicious prosecution;
(d) The Statement of Claim is otherwise scandalous, frivolous
and vexatious, may prejudice, embarrass or delay the fair trial
of the action and is an abuse of the process of the Court, and
ought to be struck out pursuant to subrules 419(1)(c), (d) & (f)
of the Federal Court Rules.
The events leading up to the present proceeding
can best be summarized as follows:
(a) March 1, 1990 Amendment [SOR/90-155] to
the Public Works Nuisances Regulations [C.R.C.,
c. 1365], pursuant to the Public Works Act,
R.S.C., 1985, c. P-38.
(b) March 19, 1990 Plaintiff arrested while demon
strating on the sidewalk across from the Central
Block of Parliament Hill allegedly in contraven
tion of the new amendment. He is detained in
custody.
(c) March 23, 1990 Plaintiff's show cause hearing.
Plaintiff is released from custody on the basis of
the unreasonableness of his detention.
(d) June 27, 1990 Plaintiff files first statement of
claim.
(e) September 14, 1990 The Crown stays the pro
ceedings against the plaintiff on the nuisance
charges.
(f) October 10, 1990 The defendants file notices of
motion to strike the statement of claim.
(g) October 17, 1990 Hearing before Dubé
J.—Leave is given to plaintiff to amend his state
ment of claim. The motions are adjourned.
(h) December 20, 1990 The plaintiff files his sec
ond amended statement of claim. Jim Hawkes
and John Fraser are no longer listed as defend
ants.
The following are the defendants involved in the
present proceedings:
(a) Her Majesty the Queen
(b) The Attorney General of Canada
(c) Norm Inkster: Commissioner of the RCMP.
(d) André Potvin: Member of the RCMP in charge
of the arrest of the plaintiff and the swearing of the
information against the plaintiff.
The above four defendants are represented by Bar-
bara McIsaac, Q.C. of the Department of Justice.
(e) Brian Mulroney: Prime Minister of Canada and
was a member of the Federal Cabinet at the time
that the Order in Council amending the Regula
tions was passed.
(t) Harvie Andre: was a member of the Federal
Cabinet at the time that the Order in Council
amending the Regulations was passed.
(g) Doug Lewis: at the time Minister of Justice, a
member of the Federal Cabinet at the time that the
Order in Council amending the Regulations was
passed.
The last three defendants are represented by H.
Lorne Morphy, Q.C. of Tory, Tory, DesLauriers &
Binnington.
The plaintiff's second amended statement of claim
may be summarized as follows:
(a) That the amendment to the Public Works Nui
sances Regulations was made for an improper and
malicious purpose, that is, specifically to infringe
the plaintiff's Charter rights.
(b) That the amendment to the Public Works Nui
sances Regulations constitutes a breach of statu
tory authority by Mulroney, Andre and Lewis, who
are responsible in their personal capacities and as
representatives of the Crown.
(c) That the Regulation as amended and arrest and
detention contravenes the plaintiff's constitutional
rights pursuant to sections 2, 7, 9, 12 and 15 of the
Charter and as recognized in paragraphs 1(a), 1(b),
1(d), 1(e), 2(a), 2(b) of the Canadian Bill of
Rights.
(d) That the plaintiff's arrest, detention and prose
cution were carried out for a malicious and
improper purpose and that the said arrest was cruel
and unusual given the nature of his offence.
The Regulation, as amended, prohibits demonstra
tions or loud disruptive noises within a radius of 50
metres from any entrance to the East Block, the Cen
tre Block and the West Block on Parliament Hill from
Monday to Friday. Anyone who contravenes the rele
vant provisions of the Act is guilty of an offence pun
ishable on summary conviction and is liable to a fine
not exceeding $400.
10.1 (1) Subject to subsection (2), no person shall engage in
any of the following activities, within a radius of 50 metres
from any entrance to the East Block, the Centre Block and the
West Block on Parliament Hill, Monday to Friday, except holi
days:
(a) making any loud disruptive noise;
(b) demonstrating, alone or with other persons, with or with
out a sign, or participating in any demonstration; or
(e) distributing any literature or document.
(2) Subsection (I) does not apply in respect of the central
sidewalk on Parliament Hill or to the east and west lawns
immediately adjacent to the central sidewalk.
11. (1) Every person who contravenes any provision of sec
tion 2, 3, 4, 5, 7 or 10.1 is guilty of an offence punishable on
summary conviction and is liable to a fine not exceeding $400.
(2) Any person who fails to forthwith remove his personal
property from and quit a public work after receiving a notice
referred to in subsection 8(1) or who resumes an activity in
respect of which he has received a notice referred to in subsec
tion 8(1) or (2) is guilty of an offence punishable on summary
conviction and is liable to a fine not exceeding $400.
Plaintiff alleges in his second amended statement
of claim that shortly after his arrest, the defendant
Potvin was directed to refrain from enforcing the
order in council.
In his conclusions, plaintiff claims:
(a) As against the Queen and Attorney General, for breach of
constitutional rights, breach of statutory duty, abuse of process,
wrongful arrest, false imprisonment, and malicious prosecu
tion:
i) a declaration that the Public [Works] Nuisances Regula
tions, C.R.C. c. 1365, paragraph 9 is of no force and effect
in that it contravenes section 2 of the Canadian Charter of
Rights and Freedoms;
ii) general damages in the amount of $49,000.00;
iii) punitive or exemplary damages in an amount deemed
appropriate by this Honourable Court;
(iv) special damages in an amount to be determined;
(v) pre- and post-judgment interest on the above claim for
damages;
(vi) costs of this action;
(vii) such further and other relief as this Honourable Court
may deem just.
(b) As against the Defendants Inkster and Potvin, for breach of
constitutional rights, wrongful arrest, abuse of process and
breach of statutory duty, malicious prosecution:
(i) general damages in the amount of $49,000.00;
(ii) punitive or exemplary damages in an amount deemed
appropriate by this Honourable Court;
(iii) special damages in an amount to be determined;
(iv) pre- and post-judgment interest on the above claim for
damages;
(v) costs of this action;
(vi) such further and other relief as this Honourable Court
may deem just.
(c) As against the Defendants Mulroney, Andre and Lewis for
breach of constitutional rights, breach of statutory duty and
abuse of process:
i) general damages in the amount of $49,000.00;
ii) punitive or exemplary damages in an amount deemed
appropriate by this Honourable Court;
iii) special damages in an amount to be determined;
(iv) pre- and post-judgment interest on the above claim for
damages;
(v) costs of this action;
(vi) such further and other relief as this Honourable Court
may deem just.
Counsel for Inkster, Potvin, the Queen and the
Attorney General makes the following submissions:
(a) Norman Inkster—Commissioner of the
RCMP—directing mind behind arrest of plaintiff
It appears that Inkster is being sued because of his
position as Commissioner of the RCMP. She submits
that the Chief or Commissioner of a police force is
not, at common law, vicariously responsible for the
acts of members of that police force. It is submitted
that such liability arises from statute only as section
24 of the Ontario Police Act, R.S.O. 1980, c. 381.
Counsel's submission is that there is no comparable
provision in the Royal Canadian Mounted Police Act,
R.S.C., 1985, c. R-10 as amended.
(b) André Potvin—arrestin: officer and the swearin:
of the information against plaintiff
It appears that Potvin is being sued for wrongful
arrest, malicious prosecution and the related tort of
false imprisonment. These are torts recognized at
common law. There being no federal law with respect
to any of these torts, the Federal Court lacks jurisdic
tion against individual servants of the Crown.
The defendants claim that, in any event, the second
amended statement of claim fails to plead any mate
rial facts which would give rise to an action in any
one of these three torts.
(c) Attorney General of Canada and Her Majesty the
Queen
It is submitted that, even though the Federal Court
of Canada does have the jurisdiction to entertain a
claim seeking a declaration that the amendments to
the Public Works Nuisances Regulations contravene
various sections of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44]] the state
ment of claim does not sufficiently plead facts upon
which the cause of action is based nor does it suffi
ciently state what cause of action is being advanced
to allow the defendants to answer or to allow the
Court to regulate the action.
Counsel further submits that the Federal Court
does not have jurisdiction to hear a claim against the
Attorney General in her personal capacity. If the
plaintiff intends to sue the Attorney General in her
official capacity, then it is redundant and confusing to
add the Attorney General as a separate party; it is suf
ficient to sue Her Majesty the Queen.
The Crown is liable for the torts of her servants by
virtue of section 3 of the Crown Liability Act, R.S.C.,
1985, c. C-50, as amended. However, the Crown is
only liable if the servant himself could, apart from
the provisions of the Crown Liability Act, be found
liable. It is submitted that the statement of claim fails
to sufficiently delineate what torts are alleged to have
been committed and by whom.
Counsel for Mulroney, Andre and Lewis make the
following submissions:
(a) Jurisdiction of the Federal Court
It is submitted that since the plaintiff's claims
against the defendants are framed in tort, that the law
on which these claims are based is not a "law of
Canada" within the meaning of section 101 of the
Constitution Act, 1867 [30 & 31 Viet., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Sched
ule to the Constitution Act, 1982, Item 1) [R.S.C.,
1985, Appendix II, No. 5]], such that the Federal
Court has no jurisdiction in respect of these claims.
i. Abuse of process
An action for abuse of process is maintainable
against a party who attempts to use the processes of
the Court for an improper purpose and who commits
a definite act or threat in furtherance of such a pur
pose. The gist of this tort lies in the misuse of pro
cess, no matter how properly obtained, for any pur
pose other than that it was designed to serve. The
personal liability, if any, of Mulroney, Andre and
Lewis for the tort of abuse of process allegedly com
mitted by them arises under the common law. That
liability does not arise under the "laws of Canada" or
under "federal law". This liability arises irrespective
of the capacity in which they were acting at the time
the tort was allegedly committed. This is so even if
the plaintiff's claim involves the application or con
struction of a federal statute. The plaintiff's claim
against Mulroney, Andre and Lewis does not flow
from the Public Works Nuisances Regulations them
selves, but from tort law i.e. the general principles of
common law. It is therefore submitted that the Fed
eral Court lacks jurisdiction to entertain the claim
against these defendants.
ii. Breach of statutory duty
The plaintiff has not pleaded the statute or statu
tory duty which he maintains has been breached. The
Federal Court does not have jurisdiction to entertain
plaintiff's claim for damages against Mulroney,
Andre and Lewis for "breach of statutory duty".
There is no nominate tort in Canada of breach of stat
utory duty.
iii. Breach of constitutional rights
It is submitted that the provisions of the Charter
upon which the plaintiff's claim is founded are not
"laws of Canada" within the meaning of section 101
of the Constitution Act, /867, such that the Federal
Court lacks jurisdiction to entertain this claim.
(b) No reasonable cause of action
i. Abuse of process
There is no allegation that these defendants mis
used the legal process in any way or took any steps to
do so. There is no suggestion that the defendants
Mulroney, Andre and Lewis played any part in the
arrest, imprisonment or prosecution of the plaintiff.
The plaintiff simply alleges that Mulroney, Andre
and Lewis were members of the Federal Cabinet at
the time the amendment was passed. There is no sug
gestion in the second amended statement of claim
that Mulroney, Andre or Lewis played any role in
developing, sponsoring or promulgating the amend
ment to the Regulations, or in causing the amend
ment to be passed by Cabinet.
ii. Breach of constitutional rights
There is no allegation that these defendants
infringed the plaintiff's constitutional rights. There is
no basis in law upon which these defendants could be
held personally responsible for the actions of bodies
of which they are a part (i.e. Cabinet).
According to counsel, the Canadian Bill of Rights
[R.S.C., 1985, Appendix III] does not confer upon an
individual a cause of action in damages.
Plaintiff Glen Kealey
The submissions of counsel for the plaintiff may
be summarized as follows: provided that the plead-
ings disclose a cause of action founded in law, nov
elty of the cause of action is of no concern. Counsel
submits that the causes of action claimed are founded
in law. The threshold for allowing a motion to strike
is very high; there must be no scintilla of a cause of
action for a court to strike a claim without leave to
amend.
The causes of action claimed to be founded in law
are:
(a) Breach of statutory duty—abuse of process
(b) Wrongful or false arrest
(c) False imprisonment
(d) Malicious prosecution.
With regard to the issue of jurisdiction, counsel for
plaintiff submits that a claim will only he struck
where it is plain and obvious the claim cannot suc-
ceed on that basis. Counsel submits the Federal
Court, Trial Division has concurrent jurisdiction in
proceedings in which relief is sought against any per
son for anything done or omitted to be done in the
performance of his duties as an officer or servant of
the Crown (Federal Court Act [R.S.C., 1985, c. F-7],
paragraph 1 7(5)(b)). Counsel argues that the defini
tion of "servant" found in the Crown Liability Act,
paragraph 3(a)* and other federal legislation covers
all defendants. Counsel further argues that where a
federal law impinges to such an extent that it is
essential to the disposition of the case, a "detailed
statutory framework" is created. Where that statute is
federal, the Federal Court of Canada has jurisdiction
over the action. The "detailed statutory framework"
is the source of the plaintiff's right to sue. Where a
right to sue is not explicitly provided for within a fed
eral statute, but the subject-matter is so integrally
connected to the matter over which the Federal Court
has jurisdiction, the law is within the jurisdiction of
the Federal Court.
Plaintiff's counsel submits that the "existing and
applicable Federal law" required may be federal com
mon law. He also cites a case in which he states that
the Public Works Nuisances Regulations have previ
ously been accepted within the jurisdiction of the
Federal Court (Weisfeld v. Canada, [1990] 1 F.C. 367
(T.D.)).
Jurisdiction
I am satisfied that the Federal Court of Canada has
jurisdiction over the Queen as defendant in this
action and over the matters raised in general terms; a
challenge to the legitimacy of the application of a
* Editor's note: Section 2 and paragraph 3(a) of the Crown
Liability Act provide:
2. In this Act,
"servant" includes agent, but does not include any person
appointed or employed by or under the authority of an ordi
nance of the Yukon Territory or the Northwest Territories;
3. The Crown is liable in tort for the damages for which,
if it were a private person of full age and capacity, it would
be liable
(a) in respect of a tort committed by a servant of the
Crown;....
section of the Public Works Nuisances Regulations. I
am also satisfied that the Federal Court of Canada
does not have jurisdiction over the other defendants
named, that is, Inkster, Potvin, Mulroney, Andre,
Lewis, and the Attorney General in this case. I am
also satisfied that plaintiff's claims for damages for
breach of statutory duty and breach of constitutional
right must be struck out.
The case of Weisfeld v. Canada (supra) ensures
that the Federal Court, Trial Division has jurisdiction
over the matter raised in the case before me. Between
1983 and 1985, Mr. Weisfeld established a peace
camp on Parliament Hill to protest the Canadian
Government's cruise missile policy. In 1985, the
RCMP removed Mr. Weisfeld's peace camp from
Parliament Hill in accordance with subsection 6(2)
[as enacted by SOR/85-370, s. 1] of the Public Works
Nuisances Regulations. The Court heard the case on
the merits. Although the Court's jurisdiction was not
challenged, I am satisfied that the Federal Court had
jurisdiction as the Public Works Nuisances Regula
tions is a federal law which is essential to the disposi
tion of the case.
The Federal Court can assert jurisdiction over
claims if three essential conditions are met. These
conditions were enunciated by Mr. Justice McIntyre
in the case of ITO—International Terminal Operators
Ltd. v. Miida Electronics Inc. et at, [1986] 1 S.C.R.
752, at page 766:
... the essential requirements to support a finding of jurisdic
tion in the Federal Court were established. They are:
1. There must be a statutory grant of jurisdiction by the fed
eral 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.
It thus becomes necessary to apply the above
three-part test to each defendant or group of defend
ants.
(a) There must be a statutory grant of jurisdiction by
the federal Parliament.
The Queen
Subsection 17(1) and paragraph 17(5)(b) of the
Federal Court Act and paragraph 3(a) of the Crown
Liability Act form a "statutory grant of jurisdiction"
of the Federal Court over "the Crown" (Her Majesty
the Queen) and against any of the defendants who
were acting as "an officer or servant of the Crown".
Federal Court Act
17. (1) The Trial Division has original jurisdiction in all
cases where relief is claimed against the Crown ....
(5) The Trial Division has concurrent original jurisdiction
(b) in proceedings in which relief is sought against any per
son for anything done or omitted to be done in the perform
ance of his duties as an officer or servant of the Crown.
Crown Liability Act
3. The Crown is liable in tort for the damages for which, if it
were a private person of full age and capacity, it would be lia
ble
(a) in respect of a tort committed by a servant of the Crown;
or....
I am therefore satisfied that there exists a statutory
grant of jurisdiction by the federal Parliament over
the Crown (Queen). I am satisfied that the Queen
(Crown) may be liable in tort if a servant of the
Crown committed a tort by virtue of section 3 of the
Crown Liability Act. I am also satisfied that the Fed
eral Court has jurisdiction over the Queen even if, in
a given case, it does not have jurisdiction over the
Queen's servants who committed the tort.
Counsel for plaintiff submits that the definition of
"servant" found in the Crown Liability Act covers all
the defendants. With respect, I do not agree with the
submission. Counsel submits as authority for this
submission the Royal Canadian Mounted Police Act,
R.S.C., 1985, c. R-10, sections 1, 3, 5 [as am. by
R.S.C., 1985 (2nd Supp.), c. 8, s. 2] and 53 [as am.
idem, s. 22]; the cases of Pacific Western Airlines
Ltd. v. R., [1979] 2 F.C. 476 (T.D.), affirmed [1980]
1 F.C. 86 (C.A.) and Stephens v. R. (1982), 26 C.P.C.
I (F.C.A.) and Peter Hogg, The Liability of the
Crown, 2nd ed. Carswell, Toronto, 1989, at pages
141-142. In Pacific Western Airlines Ltd. v. R., Mr.
Justice Collier held that the Federal Court only had
jurisdiction over the Queen, and that it did not have
jurisdiction over claims in negligence and/or breach
of contract against, inter alia, the Minister of Trans
port and "senior or responsible employees of the
Department of Transport". However, in obiter, Mr.
Justice Collier referred to the Minister of Transport
and the "senior or responsible employees of the
Department of Transport" as "servants of the
Crown". Counsel for plaintiff would argue, by anal
ogy that Lewis, Andre and Mulroney who are also
ministers are therefore servants of the Crown. I am
satisfied that the Pacific Western Airlines case is of
no benefit to plaintiff. I believe the same applies with
regard to the Stephens case (supra).
(b) 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 juris
diction
Plaintiff's position appears to be that the Public
Works Act and the Public Works Nuisances Regula
tions form the "existing body of federal law which is
essential to the disposition of the case and which
nourishes the statutory grant of jurisdiction". I am
satisfied that the Public Works Act and the Public
Works Nuisances Regulations are essential to the dis
position of this case because to deal with the claims
of wrongful arrest and false imprisonment it will he
important to determine whether the arresting officer
acted in accordance with the Regulations. Neither the
Public Works Act nor the Public Works Nuisances
Regulations set out precise procedures for the charg
ing of people under them, nor do they set out proce
dures for dealing with complaints by people so
charged. The Public Works Act and the Public Works
Nuisances Regulations do not contain a "detailed
statutory framework" as was the case in Rhine v. The
Queen; Prytula v. The Queen, [ 1980] 2 S.C.R. 442
cited by counsel for plaintiff.
In the Rhine v. The Queen; Prytula v. The Queen
(supra) case, the Federal Court of Canada was held to
have jurisdiction over questions involving the repay
ment of money advanced under the Prairie Grain
Advance Payments Act, R.S.C. 1970, c. P-18 and the
Canada Student Loans Act, R.S.C. 1970, c. S-17.
Both these enactments contain "detailed statutory
frameworks" for the making of advances or loans to
persons and the recovery of them. Thus an action to
recover such moneys is not merely a provincial com
mon law action in contract, but is firmly grounded in
the applicable federal statute. There is no comparable
relevant statutory framework in the case at bar.
(c) The law on which the case is based must be "a
law of Canada"as the phrase is used in section
101 of the Constitution Act, 1867
The second and third elements of the ITO case
(supra) overlap. In Kigowa v. Canada, [ 1990] 1 F.C.
804 (C.A.), Mr. Justice Mahoney suggests that in
cases such as Rhine (supra) where the third element
of the ITO test is supplied by a comprehensive statu
tory framework, that statutory framework may also
be taken as "the existing federal law which nourishes
the statutory grant (of jurisdiction)", that is, it may
also meet the second element of the test.
As I have stated, I am satisfied that the Public
Works Act and the Public Works Nuisances Regula
tions are not a "detailed statutory framework" com
parable to the statutory frameworks in Rhine &
Prytula (supra). However, the third part of the ITO
test in the present case can be met by the body of
federal tort law on which many of the causes of
action is based. The causes of action raised by the
plaintiff are (1) breach of constitutional rights (2)
breach of statutory duty, (3) abuse of process, (4)
wrongful arrest, (5) false imprisonment and (6) mali
cious prosecution.
The last four causes of action, abuse of process,
wrongful arrest, false imprisonment and malicious
prosecution are all recognized as torts which are part
of the federal common law. The case of Roberts v.
Canada, [1989] 1 S.C.R. 322 is authority for the pro
position that federal common law is sufficient to meet
the third part of the ITO test. In the case of McNa-
mara Construction (Western) Ltd. et al. v. The Queen,
[1977] 2 S.C.R. 654, at page 659, Laskin C.J. stated,
referring to the Quebec North Shore Paper Co. et al.
v. Canadian Pacific Ltd. et al. [1977] 2 S.C.R. 1054
case that the third part of the ITO test could be met as
long as the action was founded "on some existing
federal law, whether statute or regulation or common
law".
In the Quebec North Shore Paper Company case, this Court
observed, referring to this provision, that the Crown in right of
Canada in seeking to bring persons in the Exchequer Court as
defendants must have founded its action on some existing fed
eral law, whether statute or regulation or common law. [Under-
lining added.]
In Roberts v. Canada (supra) Wilson J. (at page
339) reiterates that Laskin C.J. must have meant that
federal common law was capable of meeting the third
part of the ITO test.
Breach of constitutional rights
I agree with the submission of counsel for Mulro-
ney, Andre and Lewis that the provisions of the
Canadian Charter of Rights and Freedoms upon
which the plaintiff bases his claim are not "laws of
Canada" within the meaning of section 101 of the
Constitution Act, /867, and therefore the Charter will
not suffice to meet the third part of the ITO test (see
Kigowa v. Canada (supra) at page 811; Southam Inc.
v. Canada (Attorney General), [ 1990] 3 F.C. 465
(C.A.)). In that I am satisfied that the third part of the
ITO test is met by federal tort law, the Federal Court
would have jurisdiction over the Charter issues as
these Charter issues would be part of the same mat
ter. Support for this proposition is to be found in the
case of Lagiorgia v. The Queen, [ 1985] 1 F.C. 438
(T.D.) where the Federal Court dealt with challenges
brought under section 8 and subsection 24(1) of the
Charter in relation to the administration of the
Income Tax Act [S.C. 1970-71-72, c. 63]. Although
the issue of jurisdiction was not raised in the case,
Lagiorgia (supra) shows by example that where the
ITO test is met, the Federal Court will have jurisdic
tion to deal with Charter issues.
Breach of statutory duty
There is no nominate tort of breach of statutory
duty (R. in right of Canada v. Saskatchewan Wheat
Pool, [ 1983] 1 S.C.R. 205). Therefore, the Federal
Court will not have jurisdiction to hear plaintiff's
claim for damages based on breach of statutory duty.
The cases cited by counsel for plaintiff, Roncarelli v.
Duplessis, [1959] S.C.R. 121 and Gershman v. Mani-
toba Vegetable Producers' Marketing Board (1976),
69 D.L.R. (3d) 114 (Man. C.A.) involve gross and
wilful misconduct by public officials and goes
beyond breach of statutory duty as discussed in the
Saskatchewan Wheat Pool case (supra).
The Attorney General of Canada
According to subsection 23(2) of the Crown Lia
bility Act, the Attorney General of Canada will usu
ally be a named defendant in proceedings against the
Crown in the provincial courts. The Crown Liability
Act appears to be silent on the question of whether
the Attorney General of Canada is a proper defendant
in the Federal Court.
I am satisfied that if it is not the intention to sue
the Attorney General personally, then it is redundant
to include the Attorney General of Canada as a party;
it is sufficient to name Her Majesty the Queen as
defendant. In the case of Crown Trust Co. v. Ontario
(1988), 64 O.R. (2d) 774 (H.C.), Henry J. of the
Ontario High Court noted that it was "simply confus
ing" to have both the Attorney General of Ontario
and the Queen in Right of Ontario as defendants in an
action for declaratory relief on a constitutional point.
Accordingly, Henry J. struck out The Queen from the
list of defendants.
RCMP Commissioner Inkster and RCMP Member
Potvin
These two defendants meet part one of the ITO test
by virtue of the interaction of paragraph 17(5)(b) of
the Federal Court Act and sections 5 [as am. by
R.S.C., 1985 (2nd Supp.), c. 8, s. 2] and 53 [rep.
idem, s. 22] (section 53 is soon to be repealed)* of
the Royal Canadian Mounted Police Act . Section 53
of the Royal Canadian Mounted Police Act provides
that a member of the RCMP is a servant of the
Crown.
53. For the purpose of determining liability in any action or
other proceeding by or against Her Majesty, a person who was
at any time a member shall be deemed to have been at such
time a servant of the Crown.
The reading together of sections 3, 5 and 6 of the
Royal Canadian Mounted Police Act indicates that a
Commissioner is a "member" of the RCMP. Thus,
both Inkster and Potvin are servants of the Crown. As
stated, paragraph 17(5)(b) of the Federal Court Act
provides that the Federal Court has jurisdiction over
servants of the Crown. The two RCMP members thus
meet part one of the ITO test. This is confirmed in the
case of Bradasch v. Warren et al. (1989), 27 F.T.R.
70 (F.C.T.D.), result affirmed [1990] 3 F.C. 32
(C.A.).
According to the case of Bosada v. R., [1979] 2
F.C. 335 (T.D.) and Bradasch v. Warren et al.
(supra), the Royal Canadian Mounted Police Act
does not constitute "existing federal law" as required
under part two of the ITO test. In Bradasch (supra),
the Federal Court of Appeal held that, while the
"authority, duties and powers" of the Royal Canadian
Mounted Police Act may form the basis of a defence
to the causes of action raised, the torts of assault and
battery and wrongful imprisonment, the cause of
action itself did not depend on the Royal Canadian
Mounted Police Act.
I am satisfied, in light of Bosada v. R. (supra) and
Bradasch v. Warren et al. (supra) that the Federal
Court of Canada does not have jurisdiction over Ink
* Editor's note: Section 53 was repealed by R.S.C., 1985
(2nd Supp.), c. 8, section 22, in force June 30, 1988.
ster and Potvin. In that the Crown is liable for torts
committed by Crown employees (such as RCMP
officers) and the Federal Court of Canada does, in
this case, have jurisdiction over the Queen, such indi
viduals, Inkster and Potvin, need not be impleaded
personally in tort actions.
Mulroney, Andre and Lewis
The Federal Court of Canada does not have juris
diction over the claims against these three defendants
by virtue of Southam Inc. v. Canada (Attorney Gen
eral), [ 1990] 3 F.C. 465 (C.A.). In this case, Chief
Justice Iacobucci (as he then was) stated that the Fed
eral Court had no jurisdiction over the Senate, the
House of Commons or House of Commons or Senate
Committees. These bodies could not be considered
"federal boards, commissions or other tribunals"
under section 18 of the Federal Court Act as they are
a level above, being intended to "give birth" to "fed-
eral boards, commissions or other tribunals".
The Chief Justice at page 480 states:
However, even if I am wrong in interpreting section 18 of
the Constitution Act, 1867 as conferring the privileges, immu-
nities and powers on the Senate, 1 do not see how the Senate or
one of its committees can be treated as a "federal board, com
mission or tribunal" by the plain meaning of those words in
section 18 of the Federal Court Act. The Senate, as one of the
Houses of Parliament provided for in section 17 of the Consti
tution Act, 1867, is a body that, with the House of Commons,
is an essential part of the process that gives birth to federal
boards, commissions or tribunals, and as such the Senate sim
ply is not on the same level as those entities.
Furthermore, if Parliament had intended to confer
upon the Federal Court of Canada supervisory judi
cial review jurisdiction over the House of Commons,
the Senate or their committees, this would have been
expressly stated in the Federal Court Act.
Do the pleadings disclose a reasonable cause of
action?—Rule 419(1)(a)
Before a statement of claim is to be struck out
under Rule 419, the statement of claim must be con
strued as generously as possible. The case of Crown
Trust Co. v. Ontario (1988), 64 O.R. (2d) 774, at
page 777 gives the following principles re: the strik
ing out of a statement of claim:
(a) all allegations of fact in the statement of claim, unless
patently ridiculous or incapable of proof, must be assumed
to be proven, and
(b) the moving parties [for the motion to strike], in order to
succeed, must show that it is plain, obvious and beyond
doubt that the plaintiffs could not succeed: Operation Dis
mantle Inc. v. The Queen, [1985] 1 S.C.R. 441 at pp. 449,
475 to 479, 18 D.L.R. (4th) 481, 13 C.R.R. 287.
Because I have decided that the Federal Court does
not have jurisdiction over the defendants, with the
exception of Her Majesty the Queen, I must now only
decide if the statement of claim discloses a reasona
ble cause of action as it relates to Her Majesty the
Queen. The plaintiff may well be able to succeed on
his claim for wrongful or false arrest and/or false
imprisonment. I am satisfied that the statement of
claim, which allegations for these purposes are
deemed to be true, establishes that Kealey was in fact
arrested and/or imprisoned, that the arrest and/or the
imprisonment was caused by the defendant and that
plaintiff now states that he suffered special damages
which damages plaintiff will have to prove at a trial.
Plaintiff may have a claim against Her Majesty the
Queen for malicious prosecution. This is a matter that
is to be determined at a trial. I am satisfied that the
plaintiff has no other reasonable cause of action,
neither for breach of constitutional rights nor for
breach of authority, abuse of process.
Conclusion
The Federal Court of Canada has jurisdiction over
the matter in issue but the following defendants are
struck from the statement of claim:
(a) The Attorney General
(b) Norman Inkster
(c) André Potvin
(d) Brian Mulroney
(e) Harvie Andre
(f) Doug Lewis
The claim by the plaintiff for breach of statutory
duty—abuse of process is to be struck from the state
ment of claim.
The plaintiff is to file, within 30 days from today's
date, an amended statement of claim in accordance
with these reasons.
With regard to the issue of costs:
(a) in relation to the motion to strike on behalf of
Her Majesty the Queen, the Attorney General,
Norman Inkster and André Potvin, there is to be no
award as to costs as the motion was allowed on
behalf of the Attorney General, Inkster and Potvin
but not allowed as regards Her Majesty; and
(b) costs are to be granted to the defendants Mulro-
ney, Andre and Lewis. These costs are fixed at the
total sum of $500.
Therefore, pursuant to paragraph 337(2)(b) of the
Federal Court Rules, counsel for defendants are
directed to prepare a draft of the formal order and to
submit the same to counsel for the plaintiff for
approval as to its form and then to me for review and
if accepted, for entry.
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