Federal Court Decisions

Date: 20030818

Docket: T-1176-03

Citation: 2003 FC 991

BETWEEN:

DANIEL ARMALY

                                                                                                                                                         Plaintiff

                                                                                 and

HER MAJESTY THE QUEEN

                                                                                                                                                   Defendant

                                                            REASONS FOR ORDER

HARGRAVE P.

[1]                  These reasons arise out of a successful application to strike out the Plaintiff's statement of claim.

BACKGROUND

[2]                  By way of background, the Statement of Claim is not an easy one to understand, for it contains much extraneous material, including references to various case law decisions apparently to provide background, or precedent, as to failure to provide material to Mr Armaly in a timely manner for an 11 August 1999 Regional Parole Board hearing. As a result of that hearing, Mr Armaly parole was revoked. Mr Armaly appealed to the National Parole Board Appeal Division, which is said to have, on 17 July 2000, found in his favour, at least some points, but neglected or refused to deal with others. Mr Armaly sets out in the Statement of Claim that, for some jurisdictional reason, he elected not to attend at the scheduled review by the Regional Parole Board on 18 October 2000. There follows the chronology of some of Mr Armaly's venture into the Alberta courts.

[3]                  The Statement of Claim includes a lengthy claim for damages. Here, and this is most pertinent, Mr Armaly claims for unlawful and arbitrary detention. The prayer for relief includes punitive and exemplary damages in excess of $4.5 million, together with smaller miscellaneous amounts and some form of ongoing damages for wrongful detention of $500.00 per day. All of this is clearly centred about wrongful detention, a point which has direct bearing on the Crown's motion.

[4]                  Mr Armaly opposes the Crown's motion to strike out not by affidavit material and written submissions, but rather by an opposing motion seeking to strike out the Crown's motion. This is not the proper way to oppose the motion. I have therefore used Mr Armaly's affidavit and his written submissions as if they were in opposition to the motion. However there is another aspect to Mr Armaly's motion: he wishes the Court to consider and answer 44 questions of law, some of which bear on the present litigation and, were the litigation to continue, might be points that a judge would consider. Questions of law can be the subject of a preliminary determination pursuant to Rule 220, but may not be the subject of interlocutory motions such as the present. Moreover, in that I have allowed the Crown's motion to strike out and have dismissed this action, Mr Armaly's motion becomes moot.

CONSIDERATION

[5]                  Defendant, as an initial ground for striking out the Statement of Claim, points out that, other than for additions to the damages claimed, it is identical to an earlier Statement of Claim filed by Mr Armaly in action T-859-01, which was dismissed, ex parte for delay, by Madam Justice McGillis on 10 December 2002. That dismissal was never appealed, nor was there any move to have it set aside. It may be that the delay and seeming lack of interest on the part of Mr Armaly was the result of mail not following him from an address in Calgary to the Correctional Institute at Innisfail, Alberta.

[6]                  Counsel for the Defendant submits that the identical action having been dismissed, this matter is res judicata. I question whether an ex parte decision to dismiss an action for delay, following a Notice of Status Review, should be given the same weight as an action clearly dismissed on its merits. I recognise that Mr Armaly should have applied to set aside the ex parte dismissal. However I also have in mind the nature of the ex parte decision as explained in WEA Records Ltd. v. Visions Channel 4 Ltd, [1983] 2 All E.R. 589 (C.A.). There Sir John Donaldson M.R. pointed out that an ex parte order is in essence a provisional order made on the basis of evidence and submissions from one side only and thus there are no basis for making an definitive order. This is a pertinent observation, even though the case goes on to stand for the proposition that when a judge reviews his or her provisional order, in the light of full evidence and argument, it is not hearing an appeal and thus the judge in no way inhibited from discharging or varying the initial order:

As I have said, ex parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the applicant is under a duty to make full disclosure of all relevant information in his possession, whether or not it assists his application, this is no basis for making a definitive order and every judge knows this. He expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side, and, in so doing, he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order. (Page 593)

[7]                  In the present instance I do not need to rely upon the res judicata argument involving Mr Armaly's previously dismissed action in this Court. Rather, the Alberta Court of Appeal, in Armaly v. Canada (Parole Service), 2001 ABCA 280, an unreported 11 October 2001 decision, on what seems to be essentially the same facts, the Alberta Court of Queen's Bench erred in granting a writ of habeas corpus, for Mr Armaly's custody was lawful and that the National Parole Board had jurisdiction, indeed a jurisdiction which provided an adequate alternative remedy. The Supreme Court of Canada denied leave to appeal 15 August 2002 and refused to consider the motion for reconsideration 13 November 2002. This leaves us with a res judicata situation in that the Alberta Court of Appeal had definitively ruled that the custody of Mr Armaly was, at all material time, lawful. Thus his present allegations of unlawful confinement cannot stand. Indeed those allegations disclose no reasonable cause of action.

[8]                  Here I recognise that I must accept allegations set out in the Statement of Claim, which are the subject matter of the motion to strike out, as if proven. However, when such allegations are clearly misrepresentations I need not take heed and here I have in mind the assertion by Mr Armaly, in his Statement of Claim, that Madam Justice Kent of Alberta Court of Queen's Bench, had found in his favour, granting habeas corpus with certiorari. Mr Armaly does not mention in this Statement of Claim that the decision of Madam Justice Kent is the one set aside by the Court of Appeal 11 October 2001, leave to appeal refused. In passing, I would note the view of Mr Justice Walsh, in Cameron v. Ciné St-Henri Inc., [1984] 1 F.C (F.C.T.D.) at 426, that on a motion to strike out where affidavit evidence clearly shows that the essential allegation is untrue, "... it would be unreasonable to expect the court to shut its eyes and render judgment on the assumption that the allegation is true.". Similarly, see Temple v. Minister of National Revenue, [2002] 2 F.C. 458 (F.C.T.D.) at 469 for the concept that while affidavit evidence ought not to be accepted on a motion to strike out for want of reasonable cause of action, the court was open to consider an earlier relevant decision of the Tax Court of Canada, involving the same parties.

[9]                  Returning to the present instance, the decision upon which the Plaintiff relies, in order to establish his improper incarceration, was overturned on appeal and then denied twice on application to the Supreme Court of Canada. This is the final word on the merits of Mr Armaly's action. It not only goes to want of a reasonable cause of action, but also because of the reliance, in the Statement of Claim, on a decision which Mr Armaly knew had been overturned, in an abuse of litigation process, the action ought to be struck out as an abuse.

[10]            Were it necessary I would also adopt the argument of counsel that by section 154 of the Corrections and Conditional Release Act no action may be taken against the Parole Board member for anything done or said, in good faith, in the exercise of purport exercise of a member's function. Further, National Parole Board members are appointed by the Governor-in-Council and are thus not Crown servants for the purposes of the Crown Liability and Proceedings Act. This is set out by Mr Justice Teitelbaum in Latham v. Canada (1996), 117 F.T.R. 121 (F.C.T.D.) at 125 and 126. There he pointed out that by section 4(2) of the Crown Liability and Proceedings Act the Crown is not liable for acts of omissions of any servant unless the act or omission gives rise to a cause of action against that servant or his personal representative. He then said "... if there is no servant of the Crown who can be held responsible for an alleged tort, then Her Majesty cannot be held liable." (page 126).

[11]            Finally Mr Justice Teitelbaum referred MacAllister v. The Queen (1985), 16 Admin. L.R. 294 (F.C.T.D.) which held that a National Parole Board member is not a servant of the Crown for the purposes of the Crown Liability and Proceedings Act. He concluded that the Crown could not be held liable and consequently there was no alternative but to strike out the statement of claim. To a similar effect see Sager v. Canada (1997), 140 F.T.R. 204 (F.C.T.D.) at 209.

CONCLUSION

[12]            The result of these analyses is that the present action is res judicata and the Crown is neither directly nor vicariously liable under the Crown Liability and Proceedings Act. The action must be struck out.

[13]            The action is struck out in that it is plain, obvious and beyond doubt that it cannot succeed. I do not see a scintilla of a cause of action. Thus the striking out is without leave to amend. The result is that the action is, in fact, dismissed.

(Sgd.) "John A. Hargrave"

                                                                                              Prothonotary

Vancouver, British Columbia

18 August 2003

                                                                 FEDERAL COURT

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET:                                            T-1176-03

STYLE OF CAUSE:                        Daniel Armaly v. Her Majesty the Queen

REASONS FOR ORDER:            Hargrave P.

DATED:                                              18 August 2003

WRITTEN REPRESENTATIONS BY:                              

                                         

SOLICITORS OF RECORD: