Date: 20030325
Docket: T-1426-02
Neutral Citation: 2003 FCT 344
Montréal, Quebec, March 25, 2003
Present: Richard Morneau, Prothonotary
BETWEEN:
JEAN DUGRÉ
Plaintiff
and
NATIONAL PAROLE BOARD OF CANADA
and
SOLICITOR GENERAL OF CANADA
and
ATTORNEY GENERAL OF CANADA
IN RIGHT OF HER MAJESTY THE QUEEN
Defendants
REASONS FOR ORDER AND ORDER
[1] This is a motion by the plaintiff under rule 221 of the Federal Court Rules, 1998, (the Rules) for an order striking out a series of paragraphs-12 in total-of the defence filed by the defendants.
[2] With respect to striking out pleadings, under paragraph 221(1)(a) it must be plain and obvious (see Canada (A.G.) v. Inuit Tapirisat, [1980] 2 S.C.R. 735, page 740) that all or part of the defendant's defence discloses no reasonable defence.
[3] With respect to the application of the other heads of rule 221 to this case, the requirement is that the impugned allegations be so intolerable and prejudicial that they must be struck, in whole or in part. As Mr. Justice Teitelbaum of this Court stated in Copperhead Brewing Co. Ltd. v. John Labatt Ltd. et al. (1995), 61 C.P.R. (3d) 317, at page 322:
. . . the jurisprudence is consistent that under Rules 419(1)(b) through (f) it must be established that the pleading is so clearly immaterial, frivolous, embarrassing or abusive that it is obviously forlorn and futile (Burnaby Machine & Mill Equipment Ltd. v. Berglund Industrial Supply Co. Ltd. (1982), 64 C.P.R. (2d) 206 (F.C.T.D.)) and that the court will not strike mere surplus statements where no prejudice flows from them (Pater International Automotive Franchising Inc. v. Mister Mechanic Inc. (1989) 28 C.P.R. (3d) 308, 27 C.I.P.R. 112, [1990] 1 F.C. 237 (T.D.)). As I am not entirely satisfied that the defendants will suffer prejudice if para. 9 is not struck, I will allow para. 9 and Sch. "A" to remain in the amended statement of claim.
[4] Here, the plaintiff's action against the defendants is based on an investigation of the plaintiff launched by the Chairperson of the defendant, the National Parole Board of Canada (the NPB), under section 152(4) of the Corrections and Conditional Release Act (S.C. 1992, c. 20) (the Act). This Court held that the investigation was illegal on the grounds that the investigator appointed by the Chairperson of the defendant, the NPB, did not have jurisdiction to investigate and report on whether the plaintiff's conduct was ethical.
[5] In my view, under the principles set out above, the paragraphs of the defence impugned by this motion should not be struck, because they do not call into question the illegality of the investigation that was carried out. Instead, as part of a defence to an action in civil liability, those paragraphs set out certain facts experienced or observed by the Chairperson of the NPB which, according to the defendants, led him to launch an investigation of the plaintiff. The fact that this investigation was undertaken under a mechanism that does not allow for the type of investigation that was actually conducted is not be a reason to prevent the defendants in their defence to set out what motivated the Chairperson of the NPB at all relevant times.
[6] The plaintiff's motion to strike is therefore dismissed with costs in the cause.
[7] The plaintiff has until April 4, 2003, to serve and file his reply to the defence of the defendants.
Richard Morneau
Prothonotary
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030325
Docket: T-1426-02
Between:
JEAN DUGRÉ
Plaintiff
and
NATIONAL PAROLE BOARD OF CANADA
and
SOLICITOR GENERAL OF CANADA
and
ATTORNEY GENERAL OF CANADA IN RIGHT OF HER MAJESTY THE QUEEN
Defendants
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-1426-02
JEAN DUGRÉ
Plaintiff
and
NATIONAL PAROLE BOARD OF CANADA
and
SOLICITOR GENERAL OF CANADA
and
ATTORNEY GENERAL OF CANADA IN RIGHT OF HER MAJESTY THE QUEEN
Defendants
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING: March 10, 2003
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATED:March 25, 2003
APPEARANCES:
| Daniel Paquin |
|
for the plaintiff |
|
|
|
|
| Jean-Marc Aubry Michelle Lavergne |
|
for the defendants |
|
|
|
|
SOLICITORS OF RECORD:
| Alarie, Legault, Beauchemin, Paquin, Jobin, Brisson & Philpot Montréal, Quebec |
|
for the plaintiff |
|
|
|
|
| Morris Rosenberg Deputy Attorney General of Canada |
|
for the defendants
|