T-3094-79
William Nichols (Plaintiff)
v.
The Queen in right of Canada, Dr. Lyle Brennan,
in his capacity as Deputy Regional Director
(Medical and Health Care Services) and Dr. M.
Medora (Defendants)
Trial Division, Mahoney J.—Ottawa, September
27 and 28, 1979.
Practice — Application to strike out — Jurisdiction —
Individual defendants, both Crown employees, apply for an
order dismissing an action that arose from injury to plaintiff
a federal inmate, as a result of dental treatment performed by
one of the individual defendants on the authorization and
instruction of the other — Argued that motion not based on
federal law as defined by the Supreme Court of Canada —
Application allowed — Penitentiary Service Regulations,
C.R.C. 1978, Vol. XIII, c. 1251, ss. 3, 16.
APPLICATION..
COUNSEL:
Allan S. Manson for plaintiff.
David Sgayias for defendants.
SOLICITORS:
Allan S. Manson, Kingston, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The plaintiff, while an inmate in
a federal penitentiary, received dental treatment
which he alleges to have been performed negligent
ly resulting in injury. The individual defendants,
both employees of Her Majesty, the dentist who
performed the surgery and his superior in the
Penitentiary Service who authorized and instruct
ed him to perform it, move that the action be
dismissed as against them. The basis of their
motion is that, as against them, the action is not
founded in "federal law" or "the laws of Canada"
as those terms have been defined by the Supreme
Court of Canada in Quebec North Shore Paper
Co. v. Canadian Pacific Ltd.' and McNamara
Construction (Western) Ltd. v. The Queen. 2 The
identical or very similar arguments on behalf of
individual defendants have been considered in
numerous reported and unreported decisions of
this Court and nothing useful would be served by
my repeating them here.
The plaintiff opposes the application on two
bases: firstly, that the action against the individual
defendants is based on their breach of, or, in the
alternative, negligence in performing a statutory
duty and, secondly, that the right of a federal
prisoner to sue in tort is a right arising under
federal law. The alleged statutory duty is said to
arise under what are now sections 3 and 16 of the
Penitentiary Service Regulations.'
3. It is the duty of every member to give effect, to the best of
his ability, to the laws relating to the administration of peniten
tiaries in Canada and to use his best endeavours to achieve the
purposes and objectives of the Service, namely, the custody,
control, correctional training and rehabilitation of persons who
are sentenced or committed to penitentiary.
16. Every inmate shall be provided, in accordance with
directives, with the essential medical and dental care that he
requires.
Section 3 imposes a duty on members of the
Penitentiary Service, including the applicants. Sec
tion 16 imposes a duty in favour of inmates,
including the plaintiff. However, the duty under
section 3 is entirely to Her Majesty and the duty
under section 16 is entirely an obligation of Her
Majesty. Neither section gives rise to a cause of
action by an inmate against a member of the
Penitentiary Service. The only cause of action
asserted in the amended statement of claim
against the applicants is the tort of negligence.
The plaintiff argues that, in the evolution of the
common law over the past 150 years, penitentiary
inmates have acquired a right previously denied
them. It is the right to sue their keepers in tort.
The establishment, maintenance and management
[1977] 2 S.C.R. 1054.
2 [1977] 2 S.C.R. 654.
C.R.C. 1978, Vol. XIII, c. 1251.
of penitentiaries being within the exclusive legisla
tive competence of the Parliament of Canada, it
follows that that evolution must be federal law. I
do not find it necessary to reject that argument
although I do regret that counsel did not find it
possible to document the alleged evolution.
Accepting the evolution as having, in fact,
occurred and accepting it to be federal law, it did
not create or expand a cause of action but rather
vested prisoners with the capacity or status to sue
in respect, at least in this case, of a cause of action
that already existed. The cause of action itself
remains the tort of negligence and that does not
arise from federal law.
ORDER
The application is granted with costs. Proceed
ings herein are stayed pending the filing of an
appropriately amended statement of claim.
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.