T-1473-78
Richard Bosada (Plaintiff)
v.
The Queen, in right of Canada, the Queen, as
represented by R. H. Simmonds, Commissioner of
the Royal Canadian Mounted Police; Saul Frum-
kin; Roger Leclair; Eugene Ewaschuk; Graham
Pinos; Gerald McCracken; Arne Kay; Douglas
Smith; and others unknown (Defendants)
Trial Division, Mahoney J.—Ottawa, March 13
and 21, 1979.
Practice — Application to strike out — Various defendants
allege that no reasonable cause of action shown, that fair trial
of action would be delayed, that statement of claim is frivol
ous and vexatious, and that Court is without jurisdiction as
against individual defendants — Individual defendants either
officers of R.C.M.P. or employees of the Crown — Plaintiff, a
lawyer, was charged, arrested and subjected to criminal pro
cess after search, and seizure of file prepared in connection
with civil suit between his client, who was under criminal
investigation, and the Crown and certain R.C.M.P. officers —
Federal Court Rule 419(1)(a),(c),(d).
In an action claiming damages for the torts of conspiracy,
malicious prosecution, false arrest, libel and slander and negli
gence, all defendants move to strike out the statement of claim
and to dismiss the action on the ground that it discloses no
reasonable cause of action and that it may prejudice, embarrass
or delay the fair trial of the action; to strike out all defendants
save the Queen on the ground that the Court is without
jurisdiction as against themselves; and finally to dismiss the
action against defendants the Queen, Kay and Smith on the
ground that the statement of claim is scandalous, frivolous and
vexatious. Defendants Kay and Smith are R.C.M.P. officers,
while the other individual defendants are lawyers employed in
the Department of the Attorney General of Canada. Plaintiff is
a lawyer in public practice and was solicitor for a client who
was the subject of a criminal investigation and for whom he
commenced a civil action against the Queen and certain
R.C.M.P. officers. One or more or all of the defendants, after a
search of plaintiff's home and office, removed files from the
office and later threatened him with criminal prosecution and
authorized his being charged. Plaintiff was charged, arrested,
and subjected to the various applications and proceedings of the
criminal court which proceedings received wide press coverage.
Held, the statement of claim is struck out and the action is
dismissed. Defendant Frumkin has not been served and is not
concerned with these motions. As the claim for relief in respect
of the torts of conspiracy, malicious prosecution, false arrest,
libel and slander and negligence is not under "existing federal
law", this Court lacks jurisdiction to entertain plaintiffs action
against the individual defendants. The Crown's vicarious liabili-
ty arising under the Crown Liability Act may be asserted in
this Court, but that liability turns on the liability of the
Crown's servants. The two conspiracies alleged are not reason
able causes of action. Where the object of the conspiracy to
cause the plaintiff to breach the solicitor-client relationship is
to injure the client, the right of action, if any, rests with the
client, not the solicitor. The conspiracy to commit the other
torts is, by its very nature, not actionable. With respect to the
tort of malicious prosecution, an essential element is that the
legal proceedings in issue have been terminated in favour of the
plaintiff; the charges against the plaintiff have not yet been
disposed of. No reasonable cause of action for the torts of libel
and/or slander is disclosed because the publication of the
alleged libel and slander is plainly in circumstances of absolute
privilege. As to false arrest, the statement of claim simply does
not allege that the plaintiff was arrested by any of the defend
ants and hence does not assert a cause of action against them.
While the statement of claim, in the prayer for relief, asserts
negligence as a separate cause of action, it does not do so in
setting forth the material facts. As pleaded, the tort of negli
gence depends for its existence on the other causes of action
alleged, excluding the conspiracies, and must fall with them.
Quebec North Shore Paper Co. v. Canadian Pacific Ltd.
[1977] 2 S.C.R. 1054, applied. Marrinan v. Vibart [1963]
1 Q.B. 528 (C.A.), applied. Mayor of Montreal v. Hall
(1886) 12 S.C.R. 74, followed.
APPLICATION.
COUNSEL:
Leonard Max, Q.C. for plaintiff.
J. A. Bowie and A. S. Fradkin for defendants
the Queen in right of Canada, the Queen as
represented by R. H. Simmonds, Commis
sioner for the Royal Canadian Mounted
Police, Arne Kay and Douglas Smith.
C. Campbell for defendants Eugene Ewas-
chuk, Roger Leclair, Graham Pinos and
Gerald McCracken.
No one appearing for defendant Saul
Frumkin.
SOLICITORS:
Bosada, Max, McKinley & Carroll, Ottawa,
for plaintiff.
Deputy Attorney General of Canada for
defendants the Queen in right of Canada, the
Queen as represented by R. H. Simmonds,
Commissioner for the Royal Canadian
Mounted Police, Arne Kay and Douglas
Smith.
McCarthy & McCarthy, Toronto, for defend
ants Eugene Ewaschuk, Roger Leclair,
Graham Pinos and Gerald McCracken.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The defendant, Frumkin, has not
been served and is not concerned with these
motions. The defendants, Kay and Smith, are
R.C.M.P. officers and, along with Her Majesty,
are represented herein by the Deputy Attorney
General of Canada. The other individual defend
ants are barristers and solicitors, servants of Her
Majesty, employed in the Department of the
Attorney General of Canada and are represented
by outside counsel.
They all move to strike out the statement of
claim and dismiss the action under paragraphs (a)
and (d) of Rule 419(1) on the ground that it
discloses no reasonable cause of action and that it
may prejudice, embarrass or delay the fair trial of
the action. Just how an entire statement of claim,
as opposed to some particular portions of one,
could be struck out under paragraph 419(1)(d)
escapes me and I do not propose to deal with that
aspect of the motion further. Her Majesty, Kay
and Smith also move to strike it out under para
graph 419(1)(c) on the ground that the statement
of claim is scandalous, frivolous and vexatious. All,
except Her Majesty, move to strike it out and
dismiss the action as against themselves on the
ground that this Court is without jurisdiction.
There are a number of alternative motions for
particulars, to strike out immaterial allegations,
for extensions of time for delivery of defences and
to conform the style of cause, in so far as the claim
against Her Majesty is concerned, to the require
ments of section 48 of the Federal Court Act.'
The essential facts alleged in the statement of
claim, which must be accepted as true and capable
of proof for purposes of these motions, are:
1. The plaintiff is a lawyer in public practice.
2. He was solicitor for one Michel Elias Saikaly
who was subject of a criminal investigation and,
on whose behalf, he commenced a civil action,
R.S.C. 1970 (2nd Supp.), c. 10.
on February 11, 1975, against Her Majesty and
certain named and unnamed R.C.M.P. officers
"for trespass, invasion of privacy, property
damage, personal injury and denial of right to
counsel".
3. On June 23, 1977, one or more or all of the
defendants entered and searched the plaintiff's
office and home and removed files from his
office.
4. Between June 23 and November 30, 1977,
one or more or all of the defendants threatened
the plaintiff with criminal prosecution.
5. On November 30, 1977, one or more or all of
the defendants authorized the defendant Smith
to charge the plaintiff with certain criminal
offences. Smith did.
6. The actions described in paragraphs 3, 4 and
5 were taken in furtherance of a conspiracy
among two or more or all of the defendants to
cause the plaintiff to breach his solicitor-client
relationship with Saikaly for the purposes of,
firstly, obtaining evidence regarding the offences
with which Saikaly had been charged and,
secondly, to permit the defendants to examine
the file compiled by the plaintiff in connection
with the civil suit.
7. Following the laying of charges against him,
the plaintiff was "unlawfully and wrongfully"
arrested. It is not said by whom.
8. Pursuant to the charges the plaintiff has been
subjected to various applications in the criminal
court and those proceedings have been widely
reported by the news media.
9. The defendants knew, or ought to have
known or were negligent in not knowing that the
plaintiff had not committed the offences of
which he was charged and that there were no
reasonable grounds for believing he had.
When the statement of claim was filed, the
charges against the plaintiff had not been disposed
of finally. It is admitted that they have yet to be
disposed of finally.
The causes of action asserted in the statement of
claim are the torts of conspiracy, malicious pros
ecution, false arrest, libel and slander and negli
gence. The claim for relief in respect of those torts
is not under "existing federal law". 2 This Court
lacks jurisdiction to entertain the plaintiff's action
as against the individual defendants and, for that
reason alone, the statement of claim must be
struck out and the action dismissed as against
them. Her Majesty's vicarious liability arises
under the Crown Liability Act a and may be assert
ed in this Court. That liability, however, turns on
the liability of her servants and the statement of
claim can only disclose a reasonable cause of
action against Her Majesty if it discloses a reason
able cause of action against the individual
defendants.
Two conspiracies are alleged, firstly, the con
spiracy to cause the plaintiff to breach the solici-
tor-client relationship between the plaintiff and
Saikaly and, secondly, a conspiracy to commit the
other torts. The words "solicitor-client relation
ship" are those of the statement of claim. Nothing
in it leads to the conclusion that the contractual
relationship between the plaintiff and Saikaly was
attacked by the alleged conspirators and that the
conspiracy was to induce the plaintiff to a breach
of contract. It is evident that what the alleged
conspirators are said to have been seeking is a
breach of professional confidence by the plaintiff,
a breach of the privilege which Saikaly may have
been entitled to assert as a result of consulting the
plaintiff in his professional capacity with respect to
the civil or criminal proceedings in which he,
Saikaly, was involved.
The elements of an actionable conspiracy are
well defined. 4 Two of those elements are that the
conspiracy had been directed against the person
asserting it and that he had suffered special dam
ages as a result.
It is trite law that the privilege of communica
tions between solicitor and client is client's privi
lege, not the solicitor's. If a conspiracy were car
ried out to lead a solicitor to breach his client's
privilege with the intent of injuring the solicitor,
not the client, and the solicitor was thereby
damaged, that conspiracy might well be actionable
by the solicitor. However, where, as is pleaded
here, the object of the conspiracy is to injure the
2 Quebec North Shore Paper Company v. Canadian Pacific
Limited [1977] 2 S.C.R. 1054.
3 R.S.C. 1970, c. C-38.
4 Quinn v. Leathem [1901] A.C. 495 at p. 528.
client, the right of action, if any, rests with the
client, not the solicitor. Furthermore, the state
ment of claim does not allege that the conspiracy,
in fact, succeeded in leading the plaintiff to breach
Saikaly's privilege nor that the plaintiff was there
by damaged. In this respect, the statement of
claim does not assert a reasonable cause of action
by the plaintiff.
As to the conspiracy to commit the other torts,
that is, by its very nature, not actionable. The law
is stated in Ward v. Lewis: 5
It is important to remember ... that when a tort has been
committed by two or more persons an allegation of a prior
conspiracy to commit the tort adds nothing. The prior agree
ment merges in the tort.
An essential element of the tort of malicious
prosecution is that the legal proceedings in issue
have been terminated in favour of the plaintiff. 6
Here the charges laid against the plaintiff Novem-
ber 30, 1977, have yet to be disposed of by the
criminal courts. The statement of claim does not
assert a reasonable cause of action for the tort of
malicious prosecution.
The only publication of the alleged libel and
slander is said to have occurred in; the following
circumstances:
in the laying and causing to be published or disseminated in
Court the [charges of November 30, 1977], knowing further
that such events would be republished and disseminated coun-
try-wide in all forms of the news media.
Those circumstances of publication are essentially
the same as those considered in Marrinan v.
Vibart. 7 The publication was absolutely privileged,
having occurred in the ordinary course of a pro
ceeding before a court of law. Publication is an
essential element of libel or slander. While a plea
of privilege is a matter for defence, where the only
publication alleged in the statement of claim is
plainly in circumstances of absolute privilege, the
statement of claim does not disclose a reasonable
cause of action for the torts of libel and/or
5 [1955] 1 W.L.R. 9 at 11 (C.A.).
6 Mayor of Montreal v. Hall (1886) 12 S.C.R. 74 at 82, 104
and 105.
7 [1963] 1 Q.B. 528 (C.A.).
slander.
As to false arrest, the statement of claim simply
does not allege that the plaintiff was arrested by
any of the defendants. It does not assert that cause
of action against the defendants.
It did occur to me, although it was not argued
by the plaintiff, that if his arrest was effected by
someone not party to the alleged conspiracy, the
torts might not be merged and the tort of conspir
ing to cause a false arrest might stand alone. The
statement of claim does not disclose that situation
and, while a matter for defence, the fact that the
conspirators caused charges to be laid before the
arrest was effected is totally inconsistent with the
conspirators' intention to cause a false arrest. I see
no reason, in the circumstances, to permit the
complete omission of material facts to be supplied
either by amendment or particulars and propose to
deal with the pleading as it stands.
While the statement of claim, in the prayer for
relief, asserts negligence as a separate cause of
action, it does not do so in setting forth the ma
terial facts. No particulars of negligence are
alleged. Rather negligence, like the second con
spiracy, is pleaded as an adjunct to the other torts
of malicious prosecution, false arrest and libel and
slander: if the defendants did not conspire to
commit those torts, then they committed them by
their negligence. None of the material facts
alleged in the statement of claim supports a right
of action against the defendants, or any of them,
for the tort of negligence per se. It is a sort of
alternative cause of action, the material facts of
which are to be inferred, perhaps by application of
the maxim res ipsa loquitur, from the facts plead
ed in respect of the other torts. As pleaded, the
tort of negligence depends for its existence on the
other causes of action alleged, excluding the con
spiracies, and must fall with them.
For all of the foregoing reasons, the statement of
claim will be struck out and the action dismissed
as against all defendants. The two groups of
defendants are each entitled to costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.