Khaper v. Canada
T-2763-92
Hargrave P.
14/1/00
13 pp.
Action commenced in 1992 by means of declaration seeking declaratory relief money owed, interest-Defendant seeking to strike out proceeding for want of cause of action-Plaintiff alleging pressured into signing resignation from RCMP while under mental disability, undergoing psychiatric treatment-Whether Crown liable in tort under Crown Liability and Proceedings Act for allegation of undue influence by RCMP officer in getting plaintiff to sign resignation-Crown liable in tort only if made liable by statute under Crown Liability and Proceedings Act, s. 3-Canadian law having as yet no separate tort of undue influence-Necessary elements pleaded not constituting psychological tort as plaintiff not threatened, but merely taken advantage of, no physical injury arising as result-Circumstances surrounding resignation not duress-Tort of duress involving actual, threatened violence, unlawful arrest-Negligence in broad sense cause of action provided certain elements present-Plaintiff not pleading duty of care, duty recognized by law to avoid damage-RCMP Regulations, 1988, s. 30 merely providing for voluntary resignation, acceptance of resignation, not conferring civil right of action for any breach-Approach of tort by way of statutory duty not helping plaintiff-Document initiating present proceeding, while called declaration, clearly statement of claim-On basis declaratory relief cannot be given against Federal Board, herein Commissioner of RCMP, other than by way of judicial review, proceeding ought to be struck out as seeking relief by way of action-Under old Federal Court Rules, commencing what should have been judicial review proceeding as action fatal-State of affairs altered by new r. 57-No case law as to scope, application of r. 57 other than decision of Lutfy J. in McLean v. Canada (1999), 164 F.T.R. 208 (F.C.T.D.)-By reason of McLean v. Canada, pending motion, not proper to strike out present declaration unconditionally-Declaration without reasonable cause of action, will stand as struck out 30 days from now unless Court allows it to be reconstituted as application for judicial review-Grace period will allow plaintiff time to bring on motion to convert action to judicial review application-Motion allowed in part-Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 3-Royal Canadian Mounted Police Regulations, 1988, SOR/88-361, s. 30 (as am. by SOR/94-219, s. 11)-Federal Court Rules, C.R.C., c. 663-Federal Court Rules, 1998, SOR/98-106, r. 57.