T-2726-84
Donald Oag (Plaintiff)
v.
The Queen in right of Canada, the National
Parole Board, William Outerbridge, Kenneth W.
Howland, Keith Wright, Norman J. Fagnou and
Robert Benner (Defendants)
Trial Division, Muldoon J.—Toronto, March 18;
Ottawa, October 25, 1985.
Constitutional law — Charter of Rights — Enforcement —
Plaintiff illegally "gated" — Action for damages pursuant to
s. 24(1) of Charter for violation of constitutional rights guar
anteed by ss. 7 and 9 of Charter — S. 24(1) meaning State
itself required to accord redress to individual wronged by it, its
boards, commissions or other tribunals — S. 24(1) able to
circumvent Crown Liability Act or no meaning to s. 52 Consti
tution Act, 1982 — Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 9, 24(1) —
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 52.
Parole — Convict "gated" upon release on mandatory
supervision — Action for damages for false arrest and impris
onment, assault and battery — Action dismissed against Na
tional Parole Board — Board not exigible under any subsist
ing ordinary law of Canada — Not appropriate defendant
according to reasoning for impleading State in Maharaj v
Attorney-General of Trinidad and Tobago (No. 2), [1978] 2
All ER 670 (P.C.) — Board not responsible State officer to
answer for State's alleged liability — Board not having suffi
cient resources to satisfy judgment — Parole Act, R.S.C.
1970, c. P-2, ss. 3(1),(2),(6),(9), 4(1),(2), 23 — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 2.
Crown — Torts — Motion to strike out statement of claim
as against defendants other than Crown — Plaintiff illegally
"gated" — Action for damages for false arrest, assault and
battery, or pursuant to s. 24 of Charter — Motion allowed —
Court lacking jurisdiction over individual defendants —
Action not based on 'federal law" pursuant to s. 101 of
Constitution Act, 1867 — Action against Crown stands —
Supporting law ss. 3(1) and 4(2) of Crown Liability Act —
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970,
Appendix II, No. 5 (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982, Item 1), s. 101
— Crown Liability Act, R.S.C. 1970, c. C-38, ss. 3(1), 4(2) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 64(2).
This is a motion to strike out the statement of claim as
against the defendants other than Her Majesty and to strike
out the statement of claim, dismissing the action entirely for
failing to disclose a reasonable cause of action.
The plaintiff was illegally "gated" by being twice arrested
upon his release on mandatory supervision. The plaintiff sues
for damages for false arrest and assault and battery, or for
damages pursuant to subsection 24(1) of the Charter because
of deprivation of his sections 7 and 9 rights.
Held, the statement of claim should be struck out as against
the defendants other than Her Majesty, but the motion to
dismiss the action should be dismissed.
The Court does not have jurisdiction to entertain the action
against the individual defendants as the action is not based in
"federal law" pursuant to section 101 of the Constitution Act,
1867, as explained in numerous Supreme Court of Canada and
Federal Court decisions.
As against the Queen, the supporting law is subsections 3(1)
and 4(2) of the Crown Liability Act. Also, according to the
amended provisions of this Act (pursuant to subsection 64(2) of
the Federal Court Act), the Federal Court is granted jurisdic
tion in this action against the Queen.
The Constitution proclaims that Canada is founded upon
principles that recognize the supremacy of the rule of law.
Under the rule of law even the State is required to accord
redress to an individual whom it, or its boards, commissions or
other tribunals, has wronged. That is the meaning and purpose
of subsection 24(1) of the Charter. Subsection 24(1) must be
able to circumvent the Crown Liability Act or there is no
meaning to section 52 of the Constitution Act, 1982. Otherwise
Crown liability as presently based would impose narrow con
straints upon the potential remedies which seem appropriate
and just, provided for in subsection 24(1).
If the wrong-doer is not a Crown servant or, like the Nation
al Parole Board, not even contemplated by the 1953 Crown
Liability Act, there seems to be no actual redress provided. It is
uncertain that the Board can be sued in tort in any court.
In Maharaj y Attorney-General of Trinidad and Tobago
(No. 2), [1978] 2 All ER 670 (P.C.), the majority of the Privy
Council held that human rights or fundamental freedoms are
not contravened by a judgment that is wrong and liable to be
set aside on appeal for an error of fact or substantive law. Also,
the claim for redress for what has been done by a judge (or, in
this case, an administrative board) is a claim against the state
for what has been done in the exercise of the state's judicial
power. It is a liability in the public law of the state.
Even if the applicant has a right to seek other relief, the
action must be dismissed against the Board. The Board is not
exigible under any subsisting ordinary law of Canada. It is not
an appropriate defendant according to the reasoning for imp-
leading the State in the Maharaj case, because the Board is not
the responsible State officer to answer for the State's alleged
liability, and moreover that Board has no sufficient resources of
its own to satisfy a judgment in the event that State liability be
established.
CASES JUDICIALLY CONSIDERED
APPLIED:
McNamara Construction (Western) Ltd. et al. v. The
Queen, [1977] 2 S.C.R. 654; Quebec North Shore Paper
Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R.
1054; Tomossy v. Hammond, [1979] 2 F.C. 232 (T.D.);
Nichols v. R., [1980] 1 F.C. 646 (T.D.); Maharaj y
Attorney-General of Trinidad and Tobago (No. 2),
[1978] 2 All ER 670 (P.C.); Germain v. The Queen
(1984), 10 C.R.R. 234 (Alta. Q.B.).
REFERRED TO:
Oag v. The Queen et al., [1983] 1 S.C.R. 658.
COUNSEL:
D. Fletcher Dawson for plaintiff.
B. R. Evernden for defendants.
SOLICITORS:
Cohen, Melnitzer, London, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
MULDOON J.: This matter comes before the
Court upon a motion on behalf of the defendants
for an order firstly striking out the statement of
claim as against the defendants, other than Her
Majesty and dismissing the action against them,
and secondly striking the statement of claim and
dismissing the action entirely. In the first instance,
the ground asserted is that this Court lacks the
jurisdiction to entertain the claim against the par
ticular defendants. In the second instance the
ground asserted is that the statement of claim
discloses no reasonable cause of action whatever
against all the defendants. In the alternative the
defendants seek time within which to file a state
ment or statements of defence.
Upon such a motion, the allegations expressed in
the statement of claim are deemed to be true,
whether they could be proved or not upon a trial of
the action. The plaintiff was "gated" to invoke the
coined term for what happened to him, by being
arrested upon his release, on two occasions, on
mandatory supervision. That such action against
him was wrong in law is amply declared and
demonstrated by the decision of the Supreme
Court of Canada in companion appeals on the
same subject. The applicant's case is reported as
Oag v. The Queen et al., [1983] 1 S.C.R. 658. The
plaintiff sues for damages for false arrest, false
imprisonment and assault and battery. He further,
or in the alternative, sues for damages pursuant to
subsection 24(1) of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] because of deprivation and
violation of his constitutional rights guaranteed by
sections 7 and 9 of the Charter.
Leaving aside, for the purposes of the defend
ants' motion herein, all those paragraphs of the
impugned pleading concerned with damage claims
for inconvenience, anxiety and humiliation, a
selection from the remaining allegations in the
statement of claim which is pertinent to the issue
runs as follows:
10. Due to a sentence recalculation, the Defendant, The Na
tional Parole Board, determined that the Plaintiff was entitled
to be released on mandatory supervision pursuant to the Parole
Act, R.S.C. 1970, c. P-2, (as amended), on the 6th day of
December, 1982.
11. On or about the 6th day of December, 1982, the Plaintiff
was placed in handcuffs and taken from the Edmonton Institu
tion by members of either the Edmonton City Police or the
Royal Canadian Mounted Police to the Londonderry Police
Station (Edmonton City Police). At that location the Plaintiff
was removed from the police vehicle, presented by another
police officer with a letter from the Defendant Norman J.
Fagnou, Regional Executive Officer of the National Parole
Board, Prairie Regional Office, which indicated that his man
datory supervision had been "suspended", by the Chairman of
the National Parole Board. Immediately after having been
served with the said letter, the Plaintiff was "arrested" and
returned to the Edmonton Institution.
12. The Plaintiff had never indicated to the National Parole
Board, its servants, officers or agents, that he did not wish to be
released subject to mandatory supervision pursuant to the
provisions of the Parole Act, R.S.C. 1970, c. P-2, (as
amended).
14. An application for an Order in the Nature of habeas corpus
was brought on behalf of the Plaintiff in the Court of Queen's
Bench of Alberta, Judicial District of Edmonton. On or about
the 23rd day of December, 1982, the said application was
granted, and the Plaintiff was ordered to be released by the
Honourable Mr. Justice D.C. McDonald.
15. Prior to the 4th day of January, 1983, the Plaintiff ... was
scheduled to depart the Edmonton International Airport at 5:30
p.m. on the 4th day of January, 1983. On or about the 4th day
of January, 1983, the Plaintiff was asked to sign a Mandatory
Supervision Certificate containing certain special conditions,
and did so.
16. On or about the 4th day of January, 1983, the Plaintiff was
taken from the Edmonton Institution to the Edmonton Interna
tional Airport by two Federal Correctional Officers. The Plain
tiff was accompanied to the cafeteria area of the Edmonton
International Airport and left seated at a table. Shortly thereaf
ter, the Plaintiff walked to the main foyer area of the airport,
was approached by Royal Canadian Mounted Police Officers,
and arrested pursuant to a warrant of apprehension and suspen
sion of Mandatory Supervision, issued by the Defendant the
National Parole Board, on the authority of the Chairman of the
National Parole Board the Defendant William Outerbridge,
and signed by the Defendant Keith Wright.
17. The Plaintiff did not breach any of the conditions of the
Mandatory Supervision Certificate.
18. The Plaintiff was informed by the National Parole Board
that he should undergo psychiatric and psychological assess
ments prior to a determination being made about the propriety
of his further release. The Plaintiff was transferred to the
Regional Psychiatric Centre in the City of Saskatoon, in the
Province of Saskatchewan, and psychiatric and psychological
assessments were completed.
19. An Application in the Nature of habeas corpus was brought
on behalf of the Plaintiff in the Court of Queen's Bench of
Alberta, Judicial District of Edmonton, on the 17th day of
March, 1983. The said Application was allowed by the Honour
able Mr. Justice R.P. Foisy, and the Plaintiff was ordered
released.
It was this last judicial release which was upheld
by the Supreme Court of Canada on May 17,
1983, whose decision is above cited.
In regard to the individual defendants, the dis
position of their motion is clear. Counsel argues
for them that the action against them is not based
in "federal law" or in "the laws of Canada"
pursuant to section 101 of the Constitution Act,
1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970,
Appendix II, No. 5] (as am. by Canada Act 1982,
1982, c. 11 (U.K.), Schedule to the Constitution
Act, 1982, Item 1)]. Those terms have been
defined by the Supreme Court of Canada in the
cases of McNamara Construction (Western) Ltd.
et al. v. The Queen, [ 1977] 2 S.C.R. 654, and
Quebec North Shore Paper Co. et al. v. Canadian
Pacific Ltd. et al., [1977] 2 S.C.R. 1054, and since
then the two cited decisions have been followed in
Tomossy v. Hammond, [1979] 2 F.C. 232 (T.D.),
and in Nichols v. R., [1980] 1 F.0 646 (T.D.), to
cite only two of several decisions of this Court.
Accordingly, the statement of claim is to be
struck out as against William Outerbridge,
Kenneth W. Howland, Keith Wright, Norman J.
Fagnou and Robert Benner and as against them
this action is dismissed on the ground that the
Federal Court of Canada, Trial Division, lacks the
jurisdiction to entertain this action against them.
In light of the allegations expressed in the state
ment of claim, there is reason to retain Her Majes
ty the Queen as a defendant. In this instance the
supporting law of Canada is the Crown Liability
Act, R.S.C. 1970, c. C-38. The pertinent provi
sions of that statute are these:
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.
4....
(2) No proceedings lie against the Crown by virtue of
paragraph 3(1)(a) in respect of any act or omission of a servant
of the Crown unless the act or omission would apart from the
provisions of this Act have given rise to a cause of action in tort
against that servant or his personal representative.
Of course in that Act, "Crown" means Her Majes
ty in right of Canada, and "servant includes
agent". Also, according to the amended provisions
of this Act (pursuant to subsection 64(2) of the
Federal Court Act [R.S.C. 1970 (2nd Supp.),
c. 10]), this Court is accorded jurisdiction in this
action against Her Majesty the Queen. The words
"in right of Canada" are redundant in a style of
cause in the Federal Court of Canada.
Some at least of the now released individual
defendants appear to be federal public servants. If
others than the now released defendants Wright,
Fagnou and Benner were servants of the Crown
they ought to be identified if possible, and the
status of these three ought, if appropriate, to be
made more specific by amendments to the state
ment of claim.
In the result, Her Majesty remains as a defend
ant and the named individuals are released
because the action as against them is dismissed.
What is one to do about the motion herein on
behalf of the National Parole Board? Is it exigible
to suit in this Court for damages as claimed by the
plaintiff?
The National Parole Board (hereinafter, the
Board, or the NPB) is created by an Act of the
Parliament of Canada, the Parole Act, R.S.C.
1970, c. P-2. By section 3 [as am. by S.C. 1976-77,
c. 53, s. 18], it provides:
3. (1) There shall be a board, to be known as the National
Parole Board, consisting of [a certain number of] members to
be appointed by the Governor in Council to hold office during .
good behaviour....
(2) The Governor in Council shall designate one of the
members to be Chairman and one to be Vice-Chairman.
(6) The Board may, with the approval of the Governor in
Council, make rules for the conduct of its proceedings, includ
ing the fixing of a quorum for any meeting or hearing, and the
performance of its duties and functions under this or any other
Act of Parliament.
(9) Where a member of the Board is, at the time of his
appointment, an employee in the Public Service, he shall be
given leave of absence, without pay, by his department and be
paid as a member of the Board.
Further, section 4 of the Act provides:
4. (1) Each member of the Board shall be paid such remu
neration for his services as is fixed by the Governor in Council,
and is entitled to be paid reasonable travelling and living
expenses incurred by him while absent from his ordinary place
of residence in the course of his duties.
(2) The officers, clerks and employees necessary for the
proper conduct of the business of the Board shall be appointed
in accordance with the Public Service Employment Act.
The NPB is obviously a "federal board, commis
sion or other tribunal" as is defined in section 2 of
the Federal Court Act. The NPB, despite the
terms of section 23 of the Parole Act, is exigible to
the supervisory jurisdiction of this Court in regard
to the fairness of its proceedings, its purported
exertion of its own jurisdiction and the constitu
tionality of its dispositions.
The Constitution proclaims that "Canada is
founded upon principles that recognize the
supremacy of ... the rule of law" and "with a
Constitution similar in principle to that of the
United Kingdom". In 1885 when Canada was
young, Professor A. V. Dicey, in England, set out
to publish a study of that very other constitution to
which Canada's is similar in principle, and he kept
updating and revising his study until 1908. Profes
sor Dicey described what was meant by "the rule
of law" when our Constitution was young and his
description endures fairly well even unto these
1980's.
What is found in the Tenth Edition of Dicey
[The Law of the Constitution] (1959; reprint
London: Macmillan, 1975) on the rule of law is
undoubtedly what was meant in essence by the
framers of the Constitution Act, 1982 [Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.)] said at
pages 202 and 203 regarding that other closely
related constitution, as it was at the beginning of
the present century:
That "rule of law," then, which forms a fundamental princi
ple of the constitution, has three meanings, or may be regarded
from three different points of view.
It means, in the first place, the absolute supremacy or
predominance of regular law as opposed to the influence of
arbitrary power, and excludes the existence of arbitrariness, of
prerogative, or even of wide discretionary authority on the part
of the government. Englishmen are ruled by the law, and by the
law alone; a man may with us be punished for a breach of law,
but he can be punished for nothing else.
It means, again, equality before the law, or the equal subjec
tion of all classes to the ordinary law of the land administered
by the ordinary law courts; the "rule of law" in this sense
excludes the idea of any exemption of officials or others from
the duty of obedience to the law which governs other citizens or
from the jurisdiction of the ordinary tribunals; .... The notion
which lies at the bottom of the "administrative law" known to
foreign countries is, that affairs or disputes in which the
government or its servants are concerned are beyond the sphere
of the civil courts and must be dealt with by special and more
or less official bodies. This idea is utterly unknown to the law of
England, and indeed is fundamentally inconsistent with our
traditions and customs.
This last passage is frequently quoted with wry
humour to demonstrate how the field of adminis
trative law—properly so called—has sprung up
and grown enormously in both realms since
Dicey's day. Canadian law preserves this notion
unto these days: that even the State itself is not
immune from having to accord redress to an
individual whom it, or its boards, commissions or
other tribunals, has wronged. That surely is the
meaning and purpose of subsection 24(1) of the
Charter.
Does or can subsection 24(1) circumvent that
which one can think of as a sort of subordinate
constitutional enactment, the Crown Liability
Act? That must be possible or there is no meaning
to section 52 of the Constitution Act, 1982. Crown
liability as presently based would seem otherwise
to impose narrow constraints upon the potential
remedies which seem "appropriate and just" pro
vided for in subsection 24(1) of the Charter.
In its profoundly far-seeing and analytical
Working Paper 40, The Legal Status of the Fed
eral Administration (1985), the Law Reform
Commission of Canada expresses some trenchant
observations on this subject, thus:
Nothing in the Charter expressly preserves the rights and
privileges of the Executive and the Crown. Indeed, subsection
32(1) provides that "[t]his Charter applies ... to the Parlia
ment and government of Canada ..." Insofar as the Charter
operates as a true charter of relations between the State and
individuals, it is quite logical for the Crown to be subject to its
provisions. In addition, there is a clear desire to give the
Charter "universal" effect and general application, the princi
ples stated in it being applicable to all (Gibson, 1982). Does
this, therefore, mean that the various components of the execu
tive branch should receive the same treatment as individuals?
[Pages 48 and 49.]
With the adoption of the Crown Liability Act in 1953, the
maxim "The King can do no wrong" now has only limited
application. The traditional immunity of the Crown in this area
nonetheless continues in theoretical terms, subject to the
modifications made by "the 1953 Act" and the existence of
immunity provisions in particular statutes. A general reform
better suited to the direction in which contemporary law is
moving seems essential. The complexity and confusion which
are characteristic of the present situation require that a simpler
and more consistent system be adopted. It also seems essential
that such a system should be better adapted to certain types of
damage or damaging acts for which it is at present difficult to
obtain compensation. Among other things, consideration should
be given to the possibility of handling applications more rapidly
and more simply. On this particular point, it would be better
not to rely solely on the good will of the Government in
deciding to compensate victims of delicts and quasi-delicts, as
provided in the Introduction to Chapter 525 of the Treasury
Board Administrative Policy Manual:
When it is considered appropriate as a wholly gratuitous act
of benevolence done in the public interest, the government
may compensate an employee or other person ... although
there is no liability on the part of the Crown to do so.
This procedure is better known as an ex gratia payment. It
applies particularly to damages for which "the 1953 Act"
provides no remedy .... The existence of an informal practice
of this kind shows that there are in fact deficiencies which
administrative authorities have tried to remedy. [Page 69.]
The essential principle proposed by "the 1953 Act" is that
the Crown should be treated as an individual in connection with
the relationship of subordination between master (the Adminis
tration responsible for the operation of a department) and
servant (the subordinate who is acting in the course of his
duties) .... Some writers have argued that this requirement,
that the fault must be the act of an individual, only makes the
Crown liable under "the 1953 Act" if its activities can be
treated in the same way as those of a private person (Ouellette,
1985) .... Only in the cases of ownership, occupation, posses
sion or control of property does paragraph 3(1)(b) of "the 1953
Act" recognize the principle of direct liability by the Crown.
This depersonalization of the concept of fault, recognized for
property, seems to correspond more closely with the nature of
administrative activities. Surely the Administration is an organ
ic whole, an institution, an organized body, even more than it is
a group of individuals.
In this sense, fault would be a failure to perform the obligations
of the department: delay, failure of performance, misinforma
tion (Pelletier, 1982); abstention, a deficiency in organization
and operations, an error in material operations, the adoption of
an illegal decision, illicit actions, the fault of incompetence. It
should be weighed objectively with reference to the normal
operations of a modern Administration. [Pages 70 and 71.]
Such a reform would not be a complete novelty, since in any
case under the present system it is the Administration which is
finally responsible for the wrongful acts of its servants. Logical
ly, the process of historical development begun with "the 1953
Act" should culminate in directly recognizing the responsibility
of the Administration alone. [Page 71.]
If the wrong-doer be no servant of the Crown or,
like the NPB, not even contemplated by "the 1953
Act" [Crown Liability Act, S.C. 1952-53, c. 30],
there seems to be no actual redress provided,
unless it be by way of action in tort and judgment
pronounced in a provincial superior or other "sec-
tion 96" court. Given the simultaneously transpro-
vincial operations of the NPB in common with
most other federal boards, commissions and other
tribunals, such recourse could be duplicatively
multifarious, to say the least. It is not even certain
that the NPB (as distinct from its members and
employees) can be sued in tort in any court.
Recent approaches have been developed, in
regard to constitutionally entrenched remedy
provisions, by the Judicial Committee of the Privy
Council. In Maharaj y Attorney-General of Trini-
dad and Tobago (No. 2), [1978] 2 All ER 670
(P.C.), the state official who inflicted a violation
of a constitutional right upon the plaintiff was a
quintessentially immune wielder of State power—
a High Court judge. The judge unlawfully com
mitted the plaintiff, a barrister of the same sur
name to prison for contempt of court. The unlaw-
fulness of the judge's pronouncement had been
determined in an earlier decision of the Judicial
Committee. The majority decision, with Lord
Hailsham alone dissenting, was expressed by Lord
Diplock. Passages from Lord Diplock's reasons,
reported on pages 679 and 680, sufficiently reveal
the Privy Council = 's approach to the subject:
It has been urged on their Lordships on behalf of the
Attorney-General that so to decide would be to subvert the long
established rule of public policy that a judge cannot be made
personally liable in court proceedings for anything done by him
in the exercise or purported exercise of his judicial func
tions .... Their Lordships, however, think that these fears are
exaggerated.
In the first place, no human right or fundamental freedom
recognised by Chapter I of the Constitution is contravened by a
judgment or order that is wrong and liable to be set aside on
appeal for an error of fact or substantive law, even where the
error has resulted in a person's serving a sentence of imprison
ment. The remedy for errors of these kinds is to appeal to a
higher court. When there is no higher court to appeal to then
none can say that there was error. The fundamental human
right is not to a legal system that is infalliable but to one that is
fair. It is only errors in procedure that are capable of constitut
ing infringements of the rights protected by s 1(a), and no mere
irregularity in procedure is enough, even though it goes to
jurisdiction; the error must amount to a failure to observe one
of the fundamental rules of natural justice. Their Lordships do
not believe that this can be anything but a very rare event.
In the second place, no change is involved in the rule that a
judge cannot be made personally liable for what he has done
when acting or purporting to act in a judicial capacity. The
claim for redress under s 6(1) for what has been done by a
judge is a claim against the state for what has been done in the
exercise of the judicial power of the state. This is not vicarious
liability: it is a liability of the state itself. It is not a liability in
tort at all: it is a liability in the public law of the state, not of
the judge himself, which has been newly created by s 6(1) and
(2) of the Constitution.
In the third place, even a failure by a judge to observe one of
the fundamental rules of natural justice does not bring the case
within s 6 unless it has resulted, is resulting or is likely to result,
in a person being deprived of life, liberty, security of the person
or enjoyment of property. It is only in the case of imprisonment
or corporal punishment already undergone before an appeal can
be heard that the consequences of the judgment or order cannot
be put right on appeal to an appellate Court.
Does this decision in the Maharaj case demon
strate that in Canada, too, the violation of Charter
rights by administrative boards (if not by judges)
could be so pursued under subsection 24(1) as to
make the Attorney General answerable despite the
limitations strictly imposed by the Crown Liability
Act? Does the constitutional avenue of redress
override or circumvent any others? Faced with a
somewhat similar situation, Mr. Justice D. C.
McDonald of the Alberta Court of Queen's Bench,
in Germain v. The Queen (1984), 10 C.R.R. 234
declined to stay proceedings or order the dismissal
of the substantive offence charged against the
applicant therein. However, McDonald J.
adjourned the application to give the applicant an
opportunity to consider and perhaps to seek other
relief, of the kind explained by Lord Diplock.
If that course be open to the applicant here, it
will still not avail to prevent the dismissal of this
action against the NPB. The board is not exigible
under any subsisting ordinary law of Canada. It is
not an appropriate defendant per se according to
the reasoning for impleading the State in the
Maharaj case, because the NPB is not the respon
sible State officer to answer for the State's alleged
liability, and moreover that board has no sufficient
resources of its own to satisfy a judgment in the
event that State liability be established. Therefore
the NPB cannot be held to continue as a defendant
in this action. It is not exigible, on the reasoning
expressed in the Tomossy and Nichols cases,
above-mentioned; and it is not an appropriate
defendant in the circumstances revealed in the
Maharaj and Germain cases, also above-men
tioned.
The defendants' first branch of their motion
succeeds; the additional or alternative motion for
dismissing the action is itself dismissed. Time
ought to be accorded reasonably to the plaintiff to
amend his statement of claim as he may be
advised, in view of his significant loss of defend
ants, and to the defendant for the purpose of
formulating and filing a statement of defence if so
advised. Success, despite appearances, having been
truly and equally divided, no costs will be awarded
in favour of any party.
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.