[1993] 2 F.C. 157
T-62-92
Hermann Mayrhofer (Plaintiff)
v.
Her Majesty the Queen in Right of Canada (Defendant)
Indexed as: Mayrhofer v. Canada (T.D.)
Trial Division, Teitelbaum J.—Vancouver, December 16, 1992; Ottawa, January 8, 1993.
Crown — Torts — Action for damages arising out of German's internment during World War II — Statement of claim struck — No cause of action — Crown immune from tort liability prior to 1953.
Criminal justice — Crime against humanity — Internment of German during World War II — Crime against humanity requiring individual responsibility — Plaintiff alleging arrest by RCMP — Not naming individuals who allegedly committed crimes — Criminal Code, s. 7(3.71) referring to individuals and crimes committed outside of Canada — Arrest in Canada not within s. 7(3.71).
Constitutional law — Charter of Rights — Equality rights — German alleging discrimination based on arrest, detention during World War II because of race — Charter not applicable to events occurring prior to enactment — Ex gratia payment to Japanese interned during War not discrimination pursuant to s. 15 — Order authorizing payment specifically precluding construction as admission of liability.
Human rights — Mandamus sought to compel CHRC to investigate complaint German interned during World War II and give compensation — Plaintiff not proving complaint within CHRC jurisdiction — Even if complaint within jurisdiction, CHRC having discretion whether to entertain.
Practice — Pleadings — Motion to strike — Statement of claim — German allegedly arrested by RCMP, detained during World War II, deported — Seeking damages in tort, for crime against humanity, or compensation equivalent to that paid by Government to Japanese interned during War — Motion allowed — No cause of action — According to common law and Criminal Code no crime against humanity — Action based in tort — Crown immune from tort liability prior to 1953 — As arrest, internment prior to 1953, no action against Crown.
Practice — Parties — Standing — Class action — German interned during World War II seeking to bring class action on behalf of those who suffered discrimination based on race as result of internment during War — R. 1711 requiring numerous persons with same interest, identification of persons for whom class action taken, demonstration of interests — Insufficient identification of members of class — Each class member would be affected differently and entitled to different awards of damages if action successful.
Practice — Preliminary determination of question of law — German arrested by RCMP, interned during World War II, seeking damages for tort, crime against humanity — Crown raising preliminary question whether action can proceed when limitation period expired prior to filing statement of claim — Prescription period must be pleaded in statement of defence for R. 474 application to succeed — Claim statute-barred as more than two years since end of War, when plaintiff could have commenced action.
This was an application to strike out the statement of claim for failure to disclose a reasonable cause of action. The plaintiff, now an American citizen, alleged that in 1939, when a landed immigrant, he was arrested by the RCMP, interned for the duration of World War II, subjected to forced labour and deported because he was German. The Government of Canada has compensated Japanese persons who were similarly treated in the amount of $21,000 per person. The plaintiff alleged that his treatment was “discriminatory and contrary to fundamental human decency and was a crime against humanity”. He sought damages therefor, payment for forced labour, or compensation similar to that paid to Japanese persons. Alternatively he sought an order to compel the Canadian Human Rights Commission to investigate his complaint and to compensate him in a manner equivalent to that of Japanese persons; and an order directing the Canadian government to compensate those incarcerated during the War on the basis of race only. Finally he sought to bring a class action on behalf of those who suffered discrimination on the basis of race, alleging that the defendant knew the numbers involved.
The defendant submitted that the causes of action were barred by Crown Liability Act, section 8 in that the actions alleged to have been taken were taken under authority of law. It was submitted that the wartime treatment of the plaintiff was carried out under section 21 of the Defence of Canada Regulations which authorized such detention and was validly enacted. The defendant also argued that the Crown was immune from suits for torts committed before 1953. Alternatively, the defendant raised for determination pursuant to Rule 474 a preliminary question of law as to whether an action can proceed when the limitation period to bring the action against the defendant has expired prior to the statement of claim being filed.
Held, the application should be allowed.
The plaintiff's action was based in tort. Before 1953 the Crown could not be liable for tort. The plaintiff did not have a cause of action because the alleged false arrest and internment occurred before 1953.
According to case law, crimes against humanity require individual responsibility. The plaintiff did not name any individuals who allegedly committed the acts against him. He merely stated that he was arrested by the RCMP. Under the Criminal Code crimes against humanity are criminal offences for which individuals acting on behalf of a state are responsible and which have been committed by Canadians or by the persons listed in subsection 7(3.71) of the Criminal Code, but outside of Canada. The plaintiff had no legal basis upon which to claim that Canada or its servants could legally commit a crime against humanity by arresting him in Canada during World War II.
The Charter does not apply to events which occurred prior to its enactment. That the Government of Canada granted an ex gratia payment to compensate certain members of the Japanese Canadian population is not discrimination pursuant to Charter, section 15. The order authorizing compensation to Japanese Canadians specifically provided that it should not be construed as an admission of liability on the part of the Crown.
The plaintiff failed to show that the CHRC has jurisdiction to deal with his complaint. The CHRC has the discretion to deal with a complaint within its jurisdiction under Canadian Human Rights Act, paragraph 41(c). It may decide, as it did, that the complaint is beyond its jurisdiction. The alleged discriminatory act does not fall within sections 5 to 14 of the Act.
To have the legal right to proceed with a class action, Rule 1711 requires that there be numerous persons with the same interest, some identification of the persons for whom the class action is taken, and demonstration of their interests. The plaintiff did not sufficiently identify the members of the class. Furthermore, each individual for whom the claim was made would be affected differently and would be entitled to different sums of damages were the action to succeed.
For a Rule 474 application to be allowed, the statement of defence must plead prescription. But the claim was statute-barred in any event since more than two years have elapsed since the end of World War II, at which time the plaintiff could have commenced legal proceedings.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, August 8, 1945, 82 U.N.T.S. 279, Charter of the International Military Tribunal, Art. 6.
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. 15.
Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 41(c).
Criminal Code, R.S.C., 1985, c. C-46, s. 7(3.71) (as enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 1), (3.76) (as enacted idem).
Crown Liability Act, S.C. 1952-53, c. 30, s. 3.
Crown Liability Act (now Crown Liability and Proceedings Act), R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21), s. 8.
Defence of Canada Regulations, P.C. 2483, s. 21.
Federal Court Rules, C.R.C., c. 663, RR. 419, 474 (as am. by SOR/79-57, s. 14), 1711.
Rules of Practice, R.R.O. 1970, Reg. 545.
War Measures Act, R.S.C. 1927, c. 206.
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33 N.R. 304; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Creaghan Estate v. The Queen, [1972] F.C. 732; (1972), 72 D.T.C. 6215 (T.D.); Magda, Michael v. The Queen, [1953] Ex. C.R. 22; [1953] 2 D.L.R. 49; R. v. James, [1988] 1 S.C.R. 669; (1988), 63 O.R. (2d) 635; 40 C.C.C. (3d) 576; [1988] 2 C.T.C. 1; 88 DTC 6273; 85 N.R. 1; R. v. Cornell, [1988] 1 S.C.R. 461; (1988), 40 C.C.C. (3d) 385; 63 C.R. (3d) 50; 33 C.R.R. 193; 4 M.V.R. (2d) 153; 83 N.R. 384; 27 O.A.C. 360; Judge et al. v. Muslim Society of Toronto Inc., et al., [1973] 2 O.R. 45 (H.C.).
DISTINGUISHED:
R. v. Finta (1992), 92 D.L.R. (4th) 1; 73 C.C.C. (3d) 65; 14 C.R. (4th) 1; 53 O.A.C. 1 (Ont. C.A.).
CONSIDERED:
Re Carriere, [1943] 3 D.L.R. 181; (1943), 79 C.C.C. 329 (Que. Sup. Ct.).
REFERRED TO:
General Motors of Canada Ltd. v. Naken et al., [1983] 1 S.C.R. 72; (1983), 144 D.L.R. (3d) 385; 32 C.P.C. 138; 46 N.R. 139.
AUTHORS CITED
Hogg, Peter W. Liability of the Crown, 2nd ed. Toronto: Carswell Co., 1989.
Lordon, Paul. Crown Law, Markham: Butterworths Canada Ltd., 1991.
APPLICATION to strike out statement of claim. Application allowed.
COUNSEL:
Douglas H. Christie, Victoria, for plaintiff.
H. J. Wruck, Q.C. and Esta Resnick, Vancouver, for defendant.
SOLICITORS:
Douglas H. Christie, Victoria, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for order rendered in English by
Teitelbaum J.: On January 9, 1992, the plaintiff, Hermann Mayrhofer, filed into the Federal Court Registry a statement of claim wherein he is claiming, as relief, the following:
WHEREFORE THE PLAINTIFF CLAIMS:
A. Damages in an unspecified amount for the crime against humanity perpetrated by the Canadian government against the Plaintiff;
B. Payment in the amount of $9.00 per hour for a total of 2080 hours of forced labour performed by the Plaintiff doing forestry and road building work for a total of $37,440.00, plus interest from the period when the work was performed;
C. Alternative damage in the amount of $21,000.00 as compensation, similar and equivalent to that given to Japanese persons;
D. Costs of this action;
E. Interest on the award aforesaid at the Pre Judgment Interest rate in the Province of British Columbia from the date of incarceration in 1939 in White Rock, B.C. until deportation from Canada in Alberta and New Brunswick.
IN THE ALTERNATIVE THE PLAINTIFF CLAIMS:
A. An order that the Human Rights Commission be compelled to investigate this complaint and compensate the Plaintiff in a manner equivalent to and equal to that of Japanese persons;
B. This Honourable Court direct an order that the Canadian government compensate all those incarcerated during the war on the basis of race only, without trial and without charge as similar to the Plaintiff herein. To do otherwise would be contrary to fundamental human rights and discriminatory on the basis of race or ethnic origin, contrary to the provisions of the Charter of Rights and Freedoms;
C. Such further and other relief as to this Honourable Court shall seem just.
In his statement of claim, the plaintiff states that he is 73 years of age and an American citizen. He states that in August 1939 he and his family were arrested by the Royal Canadian Mounted Police (RCMP) in White Rock, British Columbia (B.C.) and held without trial and without charge until 1944 when he was transferred against his will and deported out of Canada to England and further incarcerated on the Isle of Man until the end of the war and “ultimately deposited in Germany without citizenship in 1945”.
Plaintiff alleges that he had been a landed immigrant in Canada with his family in the area of Vernon, B.C. He states that after being arrested he spent almost six years in custody and was forced to do two years' labour at 20 per day in Canada “by the authority of the Canadian government” and that he was incarcerated for no other reason than the fact that he was German.
Plaintiff further alleges that the Government of Canada “through Her Majesty the Queen has compensated Japanese persons for similar treatment in the same circumstances during the war” and this in the sum of $21,000 per person.
Furthermore, plaintiff alleges that by forcing him to work against his will and of deporting him against his will “was discriminatory and contrary to fundamental human decency and was a crime against humanity”.
Plaintiff also alleges that on November 13, 1989, he approached the Canadian Human Rights Commission (CHRC) for the same compensation as that paid the Japanese which was denied.
In paragraphs 12, 13 and 14 of the statement of claim, plaintiff states:
12. The Plaintiff claims the provisions of the Human Rights Act and requests an Order of this Honourable Court to do what the Human Rights Commission should have done, namely award the Plaintiff compensation in the amount of $21,000.00 for the treatment he received.
13. In the alternative to the foregoing paragraph, the Plaintiff says he ought to be compensated for a crime against humanity which is not specifically subject to any period of limitation under international law, and in view of the Canadian Criminal Code is still subject to prosecution in view of the fact that he was deported outside Canada by Canadian authorities.
14. The Plaintiff says he has suffered loss and damage over the years as a result of his incarceration which effected his health and his relationship with his mother and his family from whom he was separated due to the incarceration both in Alberta and New Brunswick and after deportation to Germany and Austria.
It is as a result of the allegations in the statement of claim, as previously stated herein, that plaintiff is claiming the above-noted relief.
On May 6, 1992, the defendant, Her Majesty the Queen In Right of Canada, filed into the Federal Court Registry a notice of motion.
The Motion is for an order pursuant to Rule 419 and the inherent jurisdiction of this court to control its own processs that:
(a) the Statement of Claim herein be struck out;
(b) the action be dismissed;
(c) costs be awarded to Her Majesty the Queen; and
(d) such further and other relief be granted as to this Honourable Court may seem just.
The grounds for the defendant's motion to strike, as stated in the notice of motion are:
a) it discloses no reasonable cause of action;
b) it is immaterial or redundant;
c) it is scandalous, frivolous or vexatious;
d) it may prejudice, embarrass or delay the fair trial of the action;
e) it is otherwise an abuse of the process of the Court; and
f) the action is beyond the jurisdiction of the Court.
The defendant states in her motion to strike that she relies on the following statutory provisions:
(a) the Crown Liability Act, S.C. 1953 c.30;
(b) the Crown Liability Act, R.S.C. 1985, c.C-50;
(c) Rule 419 and 1711 of the Rules of Court;
(d) Sections 17 and 39 of the Federal Court Act;
(e) Section 3 of the Limitation Act, R.S.B.C. 1979 c.236; and
(f) Section 7 of the Criminal Code of Canada, R.S.C. 1985, c.C-46.
The defendant, in the alternative, is asking:
THE FURTHER ALTERNATIVE MOTION is for an order for a determination of a question of law, namely, whether an action can proceed when the limitation period to bring the action against the Defendant has expired prior to the Statement of Claim being filed in this Honourable Court.
The defendant filed, as evidence, 3 affidavits. One of the affidavits is by Paul O'Donnell, Historical Researcher, engaged under contract by the Government of Canada as an historical researcher with the Department of Multiculturalism and Citizenship. A second affidavit filed is by Dr. Jean-Pierre Wallot, a public servant, who is the National Archivist of Canada and a third affidavit by William Carew, a public servant employed by the Government of Canada as the Manager of the Records Management Section of the Department of Justice.
Attached to the affidavit of Paul O'Donnell are two exhibits, “A” and “B”. To the affidavit of Dr. Jean-Pierre Wallot are found three exhibits, Exhibits “A”, “B” and “C”. To the affidavit of William A. Carew are attached two exhibits, Exhibits “A” and “B”.
Counsel for defendant and plaintiff were asked to file a memorandum of fact and law. Both counsel did so. After counsel for defendant had completed his oral submissions, counsel for plaintiff informed me that he had no oral submissions to present. He relied entirely on his written memorandum of fact and law.
The law governing an application to strike out a statement of claim is found in Rule 419 of the Federal Court Rules [C.R.C., c. 663] which provides:
Rule 419. (1) The Court may at any stage of an action order any pleading or anything in any pleading to be struck out, with or without leave to amend, on the ground that
(a) it discloses no reasonable cause of action or defence, as the case may be,
(b) it is immaterial or redundant,
(c) it is scandalous, frivolous or vexatious,
(d) it may prejudice, embarass or delay the fair trial of the action,
(e) it constitutes a departure from a previous pleading, or
(f) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly.
It is settled law that on a motion to strike a statement of claim pursuant to Rule 419(1)(a), the facts pleaded are taken to be true and that the Court will only strike out pleadings in plain and obvious cases and where the case is beyond doubt (Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735 and Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441). Furthermore, a statement of claim should not be struck out as frivolous and vexatious or as an abuse of process unless it is so clearly futile that it has not the slightest chance of success (Creaghan Estate v. The Queen, [1972] F.C. 732 (T.D.)).
Furthermore, pursuant to Rule 419(2), no evidence shall be admissible on an application to strike made pursuant to Rule 419(1)(a) where it is alleged the statement of claim shows no reasonable cause of action.
Rule 419....
(2) No evidence shall be admissible on an application under paragraph (1)(a).
Defendant's Submission
The defendant submits that the plaintiff purports to advance four causes of action in his statement of claim. They are:
2. a. a general tort claim for:
i. wrongful arrest,
ii. wrongful imprisonment, and
iii. forced labour;
b. crime against humanity perpetrated by the Canadian government;
c. discrimination of the Plaintiff on the basis of race or ethnic origin contrary to s. 15 of the Charter; and
d. an order of this Court that the Canadian Human Rights Commission be compelled to investigate the Plaintiff's complaint and compensate the Plaintiff in a manner equivalent to and equal to that of Japanese persons.
In support of this submission, counsel for defendant looks to the relief sought by plaintiff. He submits plaintiff is looking for damages for an alleged crime against humanity perpetrated by the Canadian government against the plaintiff, damages for forced labour and alternate damages in the amount of $21,000.
Defendant submits that the above-mentioned causes of action are barred by virtue of section 8 of the Crown Liability Act, R.S.C., 1985, c. C-50 (now the Crown Liability and Proceedings Act [as am. by S.C. 1990, c. 8, s. 21] and previously subsection 3(6) of the Crown Liability Act, S.C. 1952-53, c. 30) in that the actions alleged to have been taken by the defendant against the plaintiff were taken under authority of law.
Section 8 of the Crown Liability Act states:
8. Nothing in sections 3 to 7 makes the Crown liable in respect of anything done or omitted in the exercise of any power or authority that, if those sections had not been passed, would have been exercisable by virtue of the prerogative of the Crown, or any power or authority conferred on the Crown by any statute, and, in particular, but without restricting the generality of the foregoing, nothing in those sections makes the Crown liable in respect of anything done or omitted in the exercise of any power or authority exercisable by the Crown, whether in time of peace or of war, for the purpose of the defence of Canada or of training, or of maintaining efficiency of, the Canadian Forces.
Counsel for defendant submits that the actions of the defendant were taken under the authority of law and assuming the defendant would be liable for tort, the Crown would still not be liable as the actions of the Crown in arresting and interning the plaintiff would have been done for the defence of Canada. Defendant submits that the wartime treatment of plaintiff was carried out under the authority of the War Measures Act, R.S.C. 1927, c. 206 and the Defence of Canada Regulations, P.C. 2483 [September 3, 1939 (as am. by P.C. 3720 of August 5, 1940)] made under the War Measures Act and in particular section 21 which provides:
21.(1) The Minister of Justice, if satisfied, that with a view to preventing any particular person, from acting in any manner prejudicial to the public safety or the safety of the State it is necessary so to do, may, notwithstanding anything in these Regulations, make an order: -
(a) prohibiting or restricting the possession or use by that person of any specified articles;
(b) imposing upon him such restrictions as may be specified in the order in respect of his employment or business, in respect of his movements or place of residence, in respect of his association or communication with other persons, or in respect of his activities in relation to the dissemination of news or the propaganda of opinions;
(c) directing that he be detained in such place, and under such conditions, as the Minister of Justice may from time to time determine;
and any person shall, while detained by virtue of an order made under this paragraph, be deemed to be in legal custody.
Paragraph 21(1)(c) is particularly applicable to plaintiff.
Defendant submits that since subsection 21(1) was validly enacted, the orders cannot now be reviewed by a court of law. He submits for this proposition the case of Re Carriere, [1943] 3 D.L.R. 181 (Que. Sup. Ct.) which involved an application for discharge on habeas corpus by a person (Carriere) detained pursuant to detention order made under Defence Regulation 21(1)(c). Mr. Justice Surveyer of the Quebec Superior Court held that [at page 181] “Although the right to habeas corpus is not abrogated by the War Measures Act and the Defence of Canada Regulations, nevertheless it is effectually superseded where the prisoner is detained under a valid order signed by the Minister under Defence Regulation 21(1)(c) since the Courts on habeas corpus proceedings are not entitled to review the discretion of the Minister.”
Counsel for defendant submits that pursuant to section 21 of the Defence of Canada Regulations the Minister of Justice made an order detaining the plaintiff in legal custody, which order was confirmed by the Governor in Council. Counsel makes reference to Order in Council authorizing internment of persons acting in a manner prejudicial to the State, P.C. 3720 [of August 5, 1940]. Part of that Order states:
THEREFORE His Excellency the Governor General in Council, on the recommendation of the Acting Minister of Justice and pursuant to the provisions of the War Measures Act, is pleased to order and it is hereby ordered that all recommendations for the detention of any particular person or persons under regulation 21 of the Defence of Canada Regulations approved, or which may hereafter be approved, under the signature or initials of the Minister of Justice or the Acting Minister of Justice, together with the order of the Minister of Justice, dated the twenty-second day of September, 1939, above referred to, shall be deemed to be and shall be construed for all purposes as valid orders made pursuant to the provisions of the said regulation. ((1940), LXXIV The Canada Gazette, at page 408).
Counsel for defendant was unable to produce the original signed order of the Minister of Justice made under section 21 of the Defence of Canada Regulations, P.C. 2483 [of September 3, 1939] relating to the plaintiff. By means of the affidavit evidence, defendant attempted to introduce unsigned copies of the order to show that the plaintiff was legally detained. Counsel also submitted much jurisprudence to show the admissibility of such an unsigned copy of an order of the Minister of Justice at the time, the Right Honourable Ernest Lapointe, dated September 3, 1939.
No evidence shall be admissible on an application under Rule 419(1)(a). Evidence may be filed with respect to Rule 419(1)(b) to (f). I am satisfied that for the purpose of the present Rule 419(1)(a) claim of defendant, the affidavit evidence of Carew, O'Donnell & Wallot should not be admissible. It is making evidence as to whether or not an order was or was not signed by the then Minister of Justice. This issue is better determined by a judge hearing the case on the merits in that he would be able to hear and possibly question witnesses as to whether or not such an order ever came into existence as it applies to the plaintiff.
Counsel for defendant also states that even if plaintiff were to have a cause of action in tort for allegedly being falsely arrested and detained because of the impossibility of proving an order signed by the then Minister of Justice, the plaintiff has no cause of action because the Crown was immune from suits in tort before 1953.
Counsel for defendant refers me to Crown Law by Paul Lordon, Q.C., Butterworths, 1991, Chapter 9, Crown Law—Torts, at pages 327-333 and to Hogg, Liability of the Crown, 2nd ed. (Toronto: Carswell 1989), pages 1-9, 17-18 and 80-84.
Counsel for defendant makes the following submission:
17. It follows therefrom that the Crown is immune from the various tortious causes of action plead by the Plaintiff, since the acts complained of by the Plaintiff arose prior to 1953. This includes the general tort claim for wrongful arrest, wrongful imprisonment and forced labour, as well as the crime against humanity claim.
18. General crown liability for all torts of the federal crown was first established effective May 14, 1953 by the Crown Liability Act, S.C. 1952-53, c. 30.
19. The immunity for tortious acts by the federal crown is only waived as specifically provided for in sections 3 and 24 of the Crown Liability Act, S.C. 1952-53, c. 30;
3. (1) 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, or
(b) in respect of a breach of duty attaching to the ownership, occupation, possession or control of property.
24. (1) No proceedings shall be taken against the Crown under this Act in respect of any act, omission, transaction, matter or thing occurring or existing before the day on which this Act was assented to.
(2) No proceedings shall be taken against the Crown in respect of a claim under paragraph (b) of subsection (1) of section 3 in respect of any property unless that paragraph was in force with respect to that property at the time the claim arose. (See also R.S.C. 1985, Appendix 1, Schedule—R.S.C. 1970 c. C-38 Crown Liability Act , s. 24 not consolidated).
20. Furthermore, section 24 specifically bars the various tortious causes of action plead by the Plaintiff in his Statement of Claim since the alleged events occurred or existed before the day on which the Crown Liability Act was assented to, which was on May 14, 1953.
In the case of Magda, Michael v. The Queen, [1953] Ex. C.R. 22, a cause very similar to the case at bar, at pages 29-30, President Thorson (of the Exchequer Court of Canada) states:
The only matter that is before the Court is the bare question of law, namely, whether the suppliant has any legal claim against the Crown even if he should be able to prove that the allegations in his petition of right are true and establish that he was unlawfully imprisoned and interned and that the acts of which he complains were wrongful. The answer to this question must, in the present state of the law, be in the negative. Consequently, I must hold that even if the allegations in the petition of right are true and even if the suppliant was unlawfully imprisoned and unlawfully interned and even if the acts of which he complains were wrongful he is not entitled to any relief as against the Crown and his claim for damages must be wholly denied. The reason for this is that in the present state of the law no petition of right lies against the Crown in right of Canada for any tort, or “faute”, to use the language of Article 1053 of the Civil Code of Quebec, committed by an officer or servant of the Crown while acting within the scope of his duty or employment except for such tort or segment of “faute” as will give rise to a claim expressly permitted by statute, as under section 19(c) [re-enacted 1938, c. 28, s. 1] of the Exchequer Court Act, R.S.C. 1927, chap. 34, and that the allegations in this petition are not allegations of acts of negligence within the meaning of that section.
and further on at page 30, he states:
A measure of reform that will remove this defect in the law is before the present session of Parliament but it cannot affect the present case.
It is clearly apparent that before 1953, the Crown could not be liable for tort. The “measure of reform” referred to by President Thorson in the Magda case (supra) was the Crown Liability Act, S.C. 1952-53, c. 30.
Counsel for the plaintiff makes the following submission as regards defendant's submission of the immunity of the Crown from suits in tort before 1953:
6. In regard to the argument the Crown was immune from suits in tort before 1953, it will be submitted that a Crime Against Humanity at International Law was held in Regina v. Finta to pre-exist the Second World War.
7. The Crown can not both reprobate and approbate, i.e. prosecute Crimes Against Humanity law maintaining immunity from the consequences of those crimes themselves.
8. Crown immunity is of no greater consequence than the domestic laws of other countries who committed Crimes Against Humanity. Under the appropriate provisions of the Criminal Code those are deemed to have no consequence at all.
9. The argument that the Crown Liability Act restricts the liability of the Crown for conduct which constitutes a Crime Against Humanity denies the implications of the court's ruling in Regina v. Finta in that the Crown cannot escape the consequences of its conduct, its servants or agents, in perpetrating a criminal act upon the plaintiff.
10. It is respectfully submitted that Magda v. H.M.Q. is no longer good law after Regina v. Finta, specifically because Magda v. H.M.Q. hinges upon the words, “The answer to this question must, in the present state of the law, be in the negative”.
It would therefore appear that the plaintiff does not disagree that if in fact his action would be based on tort, plaintiff would not have a cause of action because of the fact that the alleged false arrest and internment of plaintiff occurred before 1953. Plaintiff is saying that plaintiff's internment was a “crime against humanity” and thus the Crown cannot claim immunity.
It therefore becomes important to attempt to determine what is a “crime against humanity”.
As can be seen, counsel for plaintiff refers to the case of R. v. Finta (1992), 92 D.L.R. (4th) 1 (Ont. C.A.) for, I assume, a definition of “crimes against humanity” and that plaintiff's claim against Canada is for damages arising out of “crimes against humanity” committed by Canada against the plaintiff.
It must be first stated that the Finta case (supra) is presently in appeal before the Supreme Court of Canada.
Plaintiff refers me to the Finta case for the definition of “crimes against humanity”. In Campbell J.'s charge to the jury, he states, at page 11671:
All of our law of war crimes and crimes against humanity and all of international law is based on a very important principle of personal responsibility.
That is because war crimes and crimes against humanity are committed by individual men and individual women, not just by abstract entities called states or nations. It is only if we attach personal responsibility against those individual men and women who individually commit war crimes or crimes against humanity that the civilized world can enforce basic principles internationally of humanity. Because they are committed by individuals, there has to be individual responsibility.
Thus, there must be individual responsibility. Plaintiff fails to name any individual or individuals who allegedly committed the acts against the plaintiff. All that he states is that he was arrested by the RCMP.
The case of Finta involves a “crime against humanity” allegedly committed by an individual against individuals and not a sovereign country against individuals and is thus distinguishable from the case at bar. Nevertheless, by necessary implication, I am satisfied that plaintiff is pursuing the defendant because of the allegedly illegal actions of the Crown's servants and is thus claiming that the servants of the Crown committed the alleged acts against humanity.
A crime against humanity is a crime referred to in the Canadian Criminal Code, R.S.C., 1985, c. C-46, subsection 7(3.71) [as enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 1] and only applies to acts and omissions committed outside Canada.
(3.71) Notwithstanding anything in this Act or any other Act, every person who, either before or after the coming into force of this subsection, commits an act or omission outside Canada that constitutes a war crime or a crime against humanity and that, if committed in Canada, would constitute an offence against the laws of Canada in force at the time of the act or omission shall be deemed to commit that act or omission in Canada at that time if,
(a) at the time of the act or omission,
(i) that person is a Canadian citizen or is employed by Canada in a civilian or military capacity,
(ii) that person is a citizen of, or is employed in a civilian or military capacity by, a state that is engaged in an armed conflict against Canada, or
(iii) the victim of the act or omission is a Canadian citizen or a citizen of a state that is allied with Canada in an armed conflict; or
(b) at the time of the act or omission, Canada could, in conformity with international law, exercise jurisdiction over the person with respect to the act or omission on the basis of the person's presence in Canada and, subsequent to the time of the act or omission, the person is present in Canada. (Underlining is mine.)
The Criminal Code [subsection 7(3.76) (as enacted idem)] defines a “crime against humanity” as:
7. ...
(3.76) murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations;
Crimes against humanity are criminal offences for which individuals acting on behalf of a state are responsible and which have been committed by Canadians or by the persons listed in subsection 7(3.71) of the Canadian Criminal Code but outside of Canada.
I am in agreement with the submission of counsel for defendant that the origin of the definition of crime against humanity is found in the Charter of the International Military Tribunal annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis signed on August 8, 1945 (also known as the London Charter) [82 U.N.T.S. 279]. Article 6 provides, in part, as follows:
Article 6
...
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
...
(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
... crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who committed such crimes can the provisions of International Law be enforced.
Clearly, the plaintiff has no legal basis upon which to claim that Canada or its servants could legally commit a crime against humanity by arresting him, in Canada, during the period of what is commonly known as the Second World War.
Therefore, if plaintiff's claim for damages cannot be legally considered as damages arising from a crime against humanity, it can only arise from tort. Before 1953, Canada could not be liable for tort committed by Her servants. As stated, plaintiff has not proceeded to take action against any servant of the defendant.
Plaintiff's claim does not have any legal cause of action and must therefore be struck.
Plaintiff also alleges 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]] as a cause of action.
It is trite law that the Charter is not retrospective (R. v. James, [1988] 1 S.C.R. 669; R. v. Cornell, [1988] 1 S.C.R. 461). It is clear that the Charter does not apply to acts or events which took place prior to its enactment.
The fact that the Government of Canada allowed an ex gratia payment to compensate certain members of the Japanese Canadian population is not discrimination pursuant to section 15 of the Charter. Although section 15 of the Charter is not specifically pleaded in the statement of claim, it is the section in the Charter that speaks of discrimination.
The Order Respecting Ex Gratia Payments to Persons of Japanese Ancestry allowed the Minister of State (Multiculturalism and Citizenship) to make an ex gratia payment of $21,000 to any person of Japanese ancestry under certain conditions. It is clearly stated in the said order that the payments made shall not be construed as an admission of liability on the part of the Crown (Order in Council P.C. 88-990).
In the statement of claim, the plaintiff asks for an order (mandamus) that the Canadian Human Rights Commission (CHRC) be compelled to investigate plaintiff's complaint and to compensate the plaintiff in a manner equivalent to and equal to that of Japanese persons.
I am satisfied from a reading of the statement of claim that the plaintiff has failed to raise any grounds to warrant the issuance of a writ of mandamus.
Paragraph 41(c) of the Canadian Human Rights Act [R.S.C., 1985, c. H-6] states:
41. Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
…
(c) the complaint is beyond the jurisdiction of the Commission;
It is thus clear that the CHRC has the discretion to deal with a complaint within its jurisdiction. It may decide, as it did, that the complaint is beyond its jurisdiction. Counsel for plaintiff has failed to show that the CHRC has the jurisdiction to deal with the plaintiff's complaint. After reading sections 5 to 14 of the Canadian Human Rights Act, I am satisfied that the discriminating act alleged by plaintiff does not fall within sections 5 to 14 of the Act.
I am satisfied that the allegations as pleaded in plaintiff's statement of claim as they relate to the CHRC must also be struck.
Plaintiff also attempts to bring, as an alternative, a class action. In his submission, counsel for plaintiff submits, as to why he should be permitted to bring a class action, the following:
A. The Plaintiff has identified the members and numbers of the class as those who suffered discrimination on the basis of race, and the numbers are known to the Defendant.
B. The Plaintiff has identified a common interest and a common grievance, namely the interest in compensation in the grievance of unlawful incarceration, deportation, kidnapping, and robbery.
18.The Plaintiff ought to have standing to pursue the class action on his own since he is one of the members of the class who suffered discrimination.
Counsel for defendant submits that plaintiff's class action must fail for the following reasons:
a) Plaintiff has failed to identify the members and numbers of the class;
b) Plaintiff has failed to identify a common interest and common grievance of the said members;
c) Plaintiff does not have standing to pursue a class action on his own.
Rule 1711 of the Federal Court Rules speaks of a “class action”.
Rule 1711. (1) Where numerous persons have the same interest in any proceeding, the proceeding may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2) At any stage of a proceeding under this Rule, the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued to represent all, or all except one or more, of those persons in the proceeding; and where, in exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall make an order adding that person as a defendant.
(3) Where an order is made under this Rule, it shall contain directions as to consequential pleadings or other steps and any interested party may apply for supplementary directions.
(4) A judgment or order given in a proceeding under this Rule shall be binding on all the persons as representing whom the plaintiffs sue or, as the case may be, the defendants are sued, but shall not be enforced against any person not a party to the proceeding without leave of the Court, which leave will only be granted on an application notice of which has been served personally upon the person against whom it is sought to enforce the judgment or order.
(5) Notwithstanding that a judgment or order to which any such application relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability.
(6) The Court hearing an application for leave under paragraph (4) may order the question whether the judgment or order is enforceable against the person against whom the application is made to be tried and determined in any manner in which any issue or question in any action may be tried and determined.
It would therefore appear that, to have the legal right to proceed with a class action, there must be numerous persons who have the same interest. I am also satisfied that there must be some identification of the persons for whom the class action is taken and their interests must also be shown.
In the case of Judge et al. v. Muslim Society of Toronto Inc., et al., [1973] 2 O.R. 45 (H.C.) Mr. Justice Holland, in speaking of Rule 75 of the Ontario Rules [Supreme Court of Ontario Rules of Practice, R.R.O. 1970, Reg. 545] which states:
75. Where there are numerous persons having the same interest, one or more may sue or be sued or may be authorized by the court to defend on behalf of, or for the benefit of, all.
and is thus similar to Rule 1711(1) of the Federal Court Rules held that to say “on behalf of themselves and all members and adherents of the Jami Mosque of Toronto” is a description that is too vague to sufficiently define the members of the class.
It is insufficient to simply identify the members as those who suffered discrimination on the basis of race and to say the numbers are known to defendant as plaintiff has done in his statement of claim. Furthermore, each individual for whom the claim is being made would be affected differently and thus would be entitled to different sums of damages if a claim can legally be proved. Therefore, it appears to me that, to have a class action, one must be required to allege more than what plaintiff has alleged in his statement of claim (see General Motors of Canada Ltd. v. Naken et al., [1983] 1 S.C.R. 72).
For the above reasons, it is clear that plaintiff's action cannot succeed. For this reason, I do not have to deal with the Rule 474 [as am. by SOR/79-57, s. 14] application as to the issue that plaintiff's claim is statute-barred. I would say that I am satisfied that plaintiff's action is based on tort. This being the case, I would, had I not found that plaintiff's claim should be struck, have determined that the plaintiff's claim is statute-barred as more than two years have elapsed since the end of the Second World War and from which time plaintiff could have commenced legal proceedings against the defendant. This is not to say that I would have allowed a proceeding under Rule 474, in that, the issue of prescription must first be pleaded in a statement of defence.
The application to strike plaintiff's claim is allowed with costs.