Perera v. Canada
T-608-92
Cullen J.
24/2/97
8 pp.
Case involving complex issues of law, fact-R. 474 conferring unusual remedy, normally confined to cases in which parties agree on facts, legal question requiring answer-(1) Within case inappropriate for R. 474 motion-(i) Facts in dispute-Respondent flatly denying discrimination-(ii) No pure question of law determinable in R. 474 motion, because ruling would require adjudication on some of facts in dispute-Court should not do so as preliminary matter of law-Furthermore, legal questions not framed in way acceptable to both parties-(iii) R. 474 motion method for shortening length of trial-No indication that will happen herein-Everything in this case in dispute-Trial necessary to resolve differences between parties-(2) No basis for striking amended amended statement of claim pursuant to R. 419-Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, distinguished-Moore v. The Queen in right of British Columbia (1988), 50 D.L.R. (4th) 29 (B.C.C.A.) no longer applicable given changes in legislation brought by advent of Charter-Nothing in federal human rights legislation precluding separate Charter action-Both human rights process and Charter process available to plaintiffs-Plaintiffs' action founded in Charter-Remedial power enshrined in Charter, s. 24 allowing for broader remedy than that provided in Canadian Human Rights Act-Action neither frivolous, vexatious nor abuse of process because plaintiffs having right to bring action before Court under Charter notwithstanding jurisdiction of CHRC to hear human rights complaints-Claim struck only in plain and obvious cases, where Court satisfied beyond doubt no reasonable cause of action-Case at bar not passing that test-R. 419 motion inappropriate way to dispose of cases involving complex issues-Application of general principles applicable to all pleadings: (1) Cause of action founded in law-(2) In determining existence of cause of action, material facts pleaded to be taken as proved-Differential treatment set out in pleadings-Sufficient facts to support allegations of discrimination-(3) If facts, taken as proved, disclose reasonable cause of action, action may proceed-Since first-named plaintiff already successful before Public Service Commission Appeal Board, not case of no prospect of success-(4) Statement of claim read as generously as possible-Statutory compensation scheme provided by CHRA insufficient to oust plaintiffs' rights to Charter action-Paragraphs referring to remedies Court not having jurisdiction to grant struck-Federal Court Rules, C.R.C., c. 663, RR. 419, 474-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], s. 24.