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T-1240-87
Simma Holt (Plaintiff)
v.
The Queen (Defendant)
INDEXED AS: HOLT v. CANADA
Trial Division, McNair J.—Vancouver, April 18; Ottawa, August 29, 1988.
Federal Court jurisdiction — Trial Division — Application to add former Chairman of National Parole Board and ficti tious persons as defendants — Plaintiff alleging conspiracy to secure her wrongful dismissal, and violation of Charter, s. 15 equality rights — ITO test applied — Tortious claims against individuals not derived from existing body of federal law — Chairman's responsibilities too fragile a link to establish jurisdiction — Action against Crown for vicarious liability not foreclosed by want of jurisdiction over individuals — As liability created by Crown Liability Act, claim founded on federal law.
This was an application for leave to amend the statement of claim and to add as defendants the former Chairman of the National Parole Board and two fictitious defendants in their personal capacities. The plaintiff alleged a conspiracy among the proposed defendants to bring about her wrongful dismissal from the Board, thereby denying her equality rights and dis criminating against her in violation of the Charter, section 15. It was also alleged that the Chairman had played a prominent role in influencing the Cabinet decision not to reappoint the plaintiff. The plaintiff argued that the three requirements set out in the ITO case were met. It was submitted that a statutory grant of jurisdiction was found in paragraph 17(4)(b) of the Federal Court Act; and that the alleged Charter, section 15 violations satisfied both the requirements of an existing body of federal law essential to the disposition of the case and that such law was a "law of Canada" as that phrase is used in the Constitution Act, 1867. The defendant submitted that the causes of action constituted the torts of conspiracy and deceit, and were founded on provincial law. Thus the second and third requirements in ITO could not be met. The issue was whether the Court had jurisdiction over claims against the proposed defendants, and over the claim of vicarious liability against the Crown.
Held, the application should be dismissed as to adding defendants, but the paragraphs raising the issue of vicarious liability should stand.
Paragraph 17(4)(b) is insufficient to found jurisdiction to entertain an action against individual defendants when the claims against them are based on tort, not federal law. The
tortious claims against the individual defendants do not derive from an existing body of federal law governing liability in the context of providing a "detailed statutory framework" suffi cient to fasten liability on such defendants. That the Chairman was the chief executive officer charged by the Parole Act with general supervision over the work of the National Parole Board is too fragile a link on which to found jurisdiction against him as an individual. The causes of action asserted against the individual defendants are not attributable to any fountainhead source of federal law, but emanate from provincial law relating to tortious liability.
The lack of jurisdiction over the Chairman personally did not, however, automatically foreclose a claim of vicarious liabil ity against the Crown for wrongful acts of its servants. The vicarious liability of the Crown and the right of action against it are created by the Crown Liability Act, so that the claim is founded on federal law.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 15.
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 Consti tution Act, 1982, Item 1), ss. 91, 101.
Crown Liability Act, R.S.C. 1970, c. C-38, ss. 3(1)(a), 4(2).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 17(4)(b).
Federal Court Rules, C.R.C., c. 663, RR. 303(1), 402(3), 420, 424, 427, 1716(2).
Income Tax Act, S.C. 1970-7l-72, c. 63.
Narcotic Control Regulations, C.R.C., c. 1041, ss. 53, 58, 59.
Parole Act, R.S.C. 1970, c. P-2, ss. 3(2) (as am. by S.C. 1986, c. 42, s. 1), 4(3).
Penitentiary Act, R.S.C. 1970, c. P-6.
CASES JUDICIALLY CONSIDERED
APPLIED:
ITO--International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] I S.C.R. 752; 68 N.R. 241; Varnam v. Canada (Minister of National Health and Welfare), [1988] 2 F.C. 454 (C.A.); Stephens' Estate v. Minister of National Revenue, Wilkie, Morrison, Smith, Stratham (Deputy Sheriff, County of Oxford), Constable Ross and Davidson (1982), 40 N.R. 620 (F.C.A.).
DISTINGUISHED:
Oag v. Canada, [1987] 2 F.C. 511; 73 N.R. 149 (C.A.).
CONSIDERED:
Pacific Western Airlines Ltd. v. R., [ 1980] 1 F.C. 86 (C.A.); affg. [1979] 2 F.C. 476 (T.D.).
REFERRED TO:
Rhine v. The Queen, [1980] 2 S.C.R. 442; 34 N.R. 290. COUNSEL:
Nancy Matheson for plaintiff. Mitchell Taylor for defendant.
SOLICITORS:
Pierce, van Loon, Vancouver, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for order ren dered in English by
MCNAIR J.: This is an application by the plain tiff for leave to amend the statement of claim and to add as party defendants to the action the former Chairman of the National Parole Board, William R. Outerbridge, and the presently fictitious defendants, John Doe and Jane Doe. The applica tion is made pursuant to Federal Court Rules [C.R.C., c. 663] 303(1), 420, 424, 427 and 1716(2).
An original statement of claim was filed on June 11, 1987. The defendant filed an appearance pur suant to Rule 402(3) on July 6, 1987. A defence in the form of a general denial was filed on Septem- ber 8, 1987. On January 27, 1988' an amended defence was filed.
Essentially, the plaintiff's cause of complaint giving rise to this action in tort for damages is the failure of the Solicitor General to renew her appointment as a member of the National Parole Board by reason of alleged discrimination based on sex, religion and political affiliation. The plaintiff was appointed as a member of the Board for an initial term of one year, following which she was reappointed for a further period of three years on
April 1, 1982. She claims to have been wrongfully dismissed without cause on or about June 11, 1985.
Counsel for the defendant has agreed to the proposed amendments in so far as they relate solely to the Crown, subject to plaintiff's counsel agreeing to the filing of an amended statement of defence in response thereto. Hence, the sole issues to be determined are whether this Court has juris diction over the causes of action alleged against William R. Outerbridge, John Doe and Jane Doe, as pleaded in paragraphs 3, 4, 21 and 22 of the statement of claim and the claim of vicarious liability on the part of the Crown as set out in paragraph 15 thereof. The contentious paragraphs read as follows:
3. The Defendant, William R. Outerbridge (hereinafter referred to as "Outerbridge"), was at all times material to this action the Chairman of the National Parole Board, and an agent, servant or employee of the Solicitor General, and resides at 534 Golden, Ottawa, Ontario, K2A 2E7.
4. John Doe and Jane Doe are persons unknown who conspired with Outerbridge to deny or infringe the Plaintiff's rights and freedoms.
15. The Solicitor General is vicariously liable for the actions of Outerbridge.
21. Outerbridge conspired with John Doe, Jane Doe and other persons unknown to unlawfully prevent the Plaintiff from receiving her initial appointment to the National Parole Board and further conspired with John Doe, Jane Doe and other persons unknown to prevent her reappointment to the National Parole Board, and maliciously misinformed the Minister responsible, and the Prime Minister with respect to the Plain tiff, all with the intent to deny or infringe the Plaintiff's rights and freedoms, and deprive her of her employment and con tinued employment.
22. Further or in the alternative, Outerbridge discriminated against the Plaintiff by misinforming, or not informing at all the Minister responsible and the Prime Minister, and others, or any of them, with respect to the Plaintiff's capabilities, and the said misinformation or failure to inform was motivated by Outerbridge's bias, and prejudice against the Plaintiff on the basis of her sex, religion and/or political affiliation and Outer- bridge thereby denied or infringed the Plaintiff's rights and freedoms, and violated the Charter, and caused the Plaintiff loss, damage and expense.
The plaintiff insists that the Court has jurisdic tion to entertain the pleaded causes of action and
further maintains that it is necessary that these three defendants be added in order to ensure that all matters in dispute in the action may be fully adjudicated upon by the Court.
In order to determine whether a particular matter is within the jurisdiction of the Federal Court, it is necessary to satisfy the requirements of the test prescribed by the Supreme Court of Canada in ITO—International Terminal Opera tors Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752; 68 N.R. 241. Mr. Justice McIntyre, writing for the majority, set out the legal criteria, at pages 766 S.C.R.; 256-257 N.R.:
The general extent of the jurisdiction of the Federal Court has been the subject of much judicial consideration in recent years. In Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, and in McNamara Construction (West- ern) Ltd. v. The Queen, [1977] 2 S.C.R. 654, the essential requirements to support a finding of jurisdiction in the Federal Court were established. They are:
1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 'of the Constitution Act, 1867.
Counsel for the plaintiff contends that the first part of the test is met by paragraph 17(4)(b) of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10], which reads as follows:
17....
(4) The Trial Division has concurrent original jurisdiction
(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of his duties as an officer or servant of the Crown.
It was not strenuously contended that Mr. Outerbridge was not an officer or a servant of the, Crown for the purposes of the test, but counsel for the defendant does not concede the point.
Plaintiff's counsel alluded to the appointment of Board members by the Governor in Council and the designation by that executive authority of one of such members to be Chairman and another to be Vice-Chairman, as provided by subsections 3(1)
and 3(2) of the Parole Act, R.S.C. 1970, c. P-2, as amended by S.C. 1986, c. 42, s. 1. She also stressed the fact that subsection 4(3) of the Act designated the Chairman as the chief executive officer of the Board and charged him with general supervision over the work and the staff of the Board.
The statutory provisions relied on read as follows:
3. (I) There shall be a board, to be known as the National Parole Board, consisting of not more than thirty-six members to be appointed by the Governor in Council to hold office during good behaviour for a period not exceeding ten years.
(2) The Governor in Council shall designate one of the members to be Chairman and one to be Vice-Chairman.
4. ...
(3) The Chairman is the chief executive officer of the Board and has supervision over and direction of the work and the staff of the Board.
The second branch of the test enunciated by ITO, supra, requires that there be an existing body of federal law which is essential to the dispo sition of the case and which nourishes the statu tory grant of jurisdiction. Counsel for the plaintiff contends that Outerbridge and the fictitious Doe defendants conspired illegally to bring about the plaintiff's dismissal from the National Parole Board, thereby denying her equality rights and discriminating against her in violation of section 15 of the 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.)]. Counsel further submits that there is a strong likelihood of evidence being brought out during pre-trial discoveries that might show that Outerbridge played a prominent role as chief executive officer of the Board in influencing the Cabinet decision not to reappoint the plaintiff as a member of the Board.
Counsel for the plaintiff relies heavily on an obiter statement in the case of Varnam v. Canada (Minister of National Health and Welfare), [1988] 2 F.C. 454, a decision of the Federal Court of Appeal. The statement was to the effect that the Trial Judge may not have been wrong in her
refusal to dismiss the plaintiff's claim on a prelim inary motion on the ground of lack of jurisdiction, where it was possible that evidence at trial might establish that the defendant played a decisive, consultative role in influencing the Minister's deci sion. This statement seems somewhat at odds with the actual result of the Court's decision, which was to uphold the appeal and dismiss the plaintiff's action as against the defendant College. In any event, plaintiff's counsel makes the analogy that the second ITO test is met by pleading allegations of Charter violations vis-à-vis the administration of the Parole Act, where there was some possibility of evidence going to show Outerbridge's decisive role in influencing the Crown's decision to dismiss the plaintiff.
The third criterion of the ITO test requires that the law on which the case for jurisdiction is based must be "a law of Canada" as the phrase is used in 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)].
It is urged here that the Charter is clearly a matter of federal law, falling within federal legis lative competence under the general peace, order and good government power accorded by section 91 of the Act as well as coming within the federal powers with respect to criminal law and the establishment, maintenance and management of penitentiaries under subsections 91(27) and 91(28) respectively.
Counsel for the plaintiff argues that if the Court finds that it has jurisdiction to entertain the causes of action alleged against the additional defendants then the issue of vicarious liability on the part of the Crown will automatically follow. Alternatively, she submits that if the Court determines that it lacks such jurisdiction then the Crown is still vicariously liable for the actions complained of on the part of Outerbridge, citing Stephens' Estate v. Minister of National Revenue, Wilkie, Morrison, Smith, Stratham (Deputy Sheriff County of Oxford), Constable Ross and Davidson (1982), 40
N.R. 620 (F.C.A.). I prefer to leave this submis sion for the moment and will deal with it later.
Counsel for the defendant contends that the Court lacks jurisdiction to entertain the individual causes of action against the persons identified in paragraphs 3, 4, 15, 21 and 22 of the amended statement of claim. He characterizes these causes ofaction as constituting the torts of conspiracy and deceit, and submits that they are founded on provincial and not federal law. Thus, he urges that the plaintiff has failed to meet the requirements of the second and third branches of the test criteria prescribed by ITO in that there is no existing body of applicable federal law to underpin the jurisdic tion of the Federal Court with respect to the causes of action alleged against the individual defendants. In short, there exists no body of feder al law essential to the disposition of the case.
In my view, the issue on this aspect of the case is whether there is a sufficient jurisdictional nexus between the causes of action alleged against the individual defendants and some existing body of federal law "which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction" within the second branch of the ITO test.
Defendants' counsel buttressed his submission by citing Pacific Western Airlines Ltd. v. R., [1980] 1 F.C. 86 (C.A.); affg. [1979] 2 F.C. 476 (T.D.). Essentially, this case held that while para graph 17(4)(b) of the Federal Court Act permits servants of the Crown to be sued in the Federal Court, the mere fact of impleading them in that forum does not constitute an existing body of federal law sufficient to entertain actions in negli gence against them, which are clearly matters of provincial law.
Similarly, in Stephens' Estate v. M.N.R., supra, the Federal Court of Appeal held, inter alia, that paragraph 17(4)(b) of the Federal Court Act was insufficient to found jurisdiction to entertain the action as against individual defendants because the claims against them were based on tort and not
federal law, notwithstanding the involvement of the Income Tax Act [S.C. 1970-71-72, c. 63].
Mr. Justice Le Dain, writing the unanimous opinion of the Court, put it this way, at page 630:
In the present case, despite the necessary application of the provisions of the Income Tax Act to the question of validity or legal justification, the right to damages cannot be said to be provided for by federal law. 1f it exists at all, it is created by provincial law. The applicable federal law does not purport to create or provide for this right.
The Varnam case, supra, is the most recent pronouncement of the Federal Court of Appeal on the question of statutory jurisdiction. Here, the plaintiff was a physician whose authorization to prescribe the drug methadone was revoked under a notice issued pursuant to sections 53, 58 and 59 of the Narcotic Control Regulations [C.R.C., c. 1041]. By the terms of section 58 of the Regula tions, the Minister could only act "after consulta tion with" the College. The action against the College was founded upon tortious claims of negli gent misrepresentation and conspiracy to inten tionally interfere with his right and ability to carry on his profession. The College moved to have the action against it dismissed for want of jurisdiction. The Trial Judge dismissed the motion [[1987] 3 F.C. 185] on the ground that the claim against the College was so intertwined with the claim against the Crown as to bring the action within the Court's jurisdiction.
Plaintiff's counsel bases her case for adding the individual defendants on the decision of the Feder al Court of Appeal in Oag v. Canada, [1987] 2 F.C. 511; 73 N.R. 149 in which a prisoner, whose mandatory supervision had been wrongly revoked, was successful in persuading the Court that an action in tort for damages lay against the individu al defendants as officers of the National Parole Board who participated in the wrongful revocation. It was argued [at page 517] that the circumstances surrounding the prisoner's detention and release were governed by the provisions of the Parole Act and the Penitentiary Act [R.S.C. 1970, c. P-6], which constituted "a detailed statutory framework and scheme of regulation in existing and appli-
cable federal law sufficient to underpin the juris diction of the Federal Court of Canada".
Stone J. stated the following reasons for the Court's decision at pages 520-521 F.C.; 155-156 N.R.:
There thus appears, to use the phrase of Laskin, C.J.C., in the Rhine and Prytula' case, "a detailed statutory framework" of federal law under which the appellant not only acquired the right to be free but also the right to remain so. It must be emphasized that, as he remained under sentence, the quality of freedom he enjoyed was not the same as that possessed by a person not under sentence. Its limits were demarcated by federal statutes. If the torts of false arrest and imprisonment were committed as alleged, they were committed because his right to remain free thus delineated was interfered with. I do not think that law need expressly provide a remedy for such interference for the claims to be governed by it. These torts, in my view, depend for their existence upon federal law; any provable damages resulting from their commission are recover able in the Trial Division. I have concluded that the claims are provided for in the "laws of Canada" or "federal law".
Mr. Justice Hugessen distinguished Oag from Varnam on the basis that the wrongful act com plained of in the former case sprang from the twin statutory sources of the Parole Act and the Peni tentiary Act, whereas the mere consultative pro cess envisaged by section 58 of the Narcotic Con trol Regulations in Varnam seemed "far too thin a thread on which to hang the jurisdiction of this Court" [at page 459]. I fully endorse his percep tive distinction.
In my opinion, the tortious claims asserted against the individual defendants do not derive from an existing body of federal law governing liability in the context of providing a "detailed statutory framework" sufficient to fasten liability on such defendants. The fact that the defendant Outerbridge was the chief executive officer charged with general supervision over the work and affairs of the National Parole Board is far too fragile a link on which to found jurisdiction against him in his individual capacity. Under the
' Rhine v. The Queen, [1980] 2 S.C.R. 442; 34 N.R. 290.
circumstances, I find that the causes of action asserted against the individual defendants are not attributable to any fountainhead source of federal law but rather, if they exist at all, are the emana tions of provincial law relating to tortious liability. That being so, the part of the motion seeking leave to add William R. Outerbridge, John Doe and Jane Doe as party defendants is refused.
Counsel for the plaintiff makes the point that even if the Court finds that it lacks jurisdiction over the defendants Outerbridge and John and Jane Doe then it is still possible for the Crown to be held vicariously liable for the part they played as officers or servants of the Crown in bringing about the plaintiff's downfall as a member of the National Parole Board. She further maintains that the allegations pleaded in paragraphs 3, 4, 21 and 22 of the amended statement of claim are suffi cient to support the claim of vicarious liability on the part of the Solicitor General as pleaded in paragraph 15.
Defendants' counsel objects that paragraph 15 does nothing more than plead a proposition of law. He further maintains that the remaining para graphs 3, 4, 21 and 22 should not be allowed to stand as substantiating the plea of vicarious liabili ty, assuming that the amendment designed to imp- lead these individuals personally is refused.
Plaintiff's counsel counters with the argument that the whole foundation of the plaintiff's action revolves around the matter of appointments to the National Parole Board and the actions of the then Chairman, which are said to constitute the torts of conspiracy and misfeasance in public office. The result, in her submission, is that the Solicitor General can still be held vicariously liable for the wrongful acts of the Chairman and his conspira torial associates, notwithstanding the fact that they cannot be sued personally in the Federal Court. As indicated, she supports this submission by citing the case of Stephens' Estate, supra, and makes reference to the statutory provisions alluded to therein, namely, paragraph 3(1)(a) and subsec tion 4(2) of the Crown Liability Act, R.S.C. 1970, c. C-38, which read as follows:
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
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.
I agree with the submission of plaintiff's counsel that the lack of jurisdiction against Outerbridge personally does not automatically foreclose a claim of vicarious liability against the Crown, as repre sented by the Solicitor General, for any acts of misfeasance on the part of Outerbridge as an officer of the National Parole Board. The very point was decided in Stephens' Estate v. M.N.R., supra, where Mr. Justice Le Dain stated the issue and the result, at page 631 as follows:
The Trial Division allowed the Crown's application on the ground that the court lacked jurisdiction to entertain the claims for damages against it. This conclusion appeared to be treated as following necessarily from the decision that the court lacked jurisdiction to entertain the action as against the defendants other than the Crown. I cannot agree with this conclusion. Anomalous as it may seem that the court should have jurisdic tion to entertain an action for the vicarious liability of the Crown, when it would not have jurisdiction to entertain an action against the Crown servants for whose acts the Crown is to be held liable, I cannot see how that anomaly is to be avoided. The vicarious liability of the Crown and the right of action against it are created by paragraph 3(1)(a) of the Crown Liability Act and would not exist apart from it. Thus it appears to be undeniable that the claim is founded on federal law. Whether the acts of the defendants other than the Crown would give rise to a cause of action in tort, for purposes of subsection 4(2) of the Act, must be determined by what, in an action against them, would have to be considered provincial law, but that cannot, in my respectful opinion, make the vicarious liability of the Crown for those acts any less a cause of action founded on federal law when it is so clearly provided for by the Crown Liability Act. [Emphasis added.]
Accordingly, I disallow the application for leave to amend by adding as party defendants William
R. Outerbridge and the unknown parties, John Doe and Jane Doe, and their names are stricken accordingly from the style of cause. Thus, the statement of claim is rendered innocuous and inef fective with respect to its capability for sustaining any basis of personal liability on the part of anyone but the Crown. In my view, the allegations pleaded in paragraphs 3, 15, 21 and 22 of the statement of claim raise a reasonably arguable case that the Solicitor General may well be vicari ously liable for the actions of Outerbridge as an officer or servant of the Crown. Amended para graph 4 serves no practical purpose in substantiat ing the plea of vicarious liability and is therefore disallowed. If it should become apparent later that other officers or servants of the Crown acted in concert with Outerbridge in wrongfully abusing and infringing the plaintiff's rights then an appro priate amendment can be sought at that time to name them as fellow conspirators in the plot.
In the result, my decision is to permit para graphs 3, 15, 21 and 22 of the amended statement of claim to stand, but on the basis that the two last-mentioned paragraphs be re-numbered as paragraphs 4 and 5 and with the deletion from former paragraph 21 (now paragraph 4) of any specific reference to "John Doe, Jane Doe". The remaining paragraphs of the statement of claim can be re-numbered accordingly. Plaintiff's coun sel may wish to consider adding a further para graph by way of pleading the particular sections of the Crown Liability Act relied on and any addi tional facts deemed requisite for bringing the case within the purview of the statutory provisions. In any event, particulars can always be utilized for narrowing or bringing into clearer focus the issue of vicarious liability. The defendant shall have, of course, the usual period of thirty days for filing a defence to the amended statement of claim. Costs of the application shall be to the defendant in the cause.
An order will go accordingly.
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