PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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ANNE KELLY AND DON HEAD
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REASONS FOR ORDER AND ORDER
[1] Mr. Spidel, at relevant times an inmate at Ferndale Institution, a minimum-security penitentiary, has taken action against Her Majesty and three of her servants in the employ of the Correctional Service of Canada. The alleged cause of action arises from a decision of the Warden to reject his nomination to run for election for the inmate committee, and his subsequent transfer out of
[2] Before me is a motion on behalf of the defendants to have the statement of claim struck in its entirety or, failing that, to dismiss the action as against the individuals named as defendants and to strike out the claim for aggravated and punitive damages.
[3] The motion is granted in part. The style of cause is struck in part and the action dismissed against the defendants Anne Kelly and Don Head. Otherwise, the motion is dismissed.
BACKGROUND
[4] Although Mr. Spidel had served from time to time on the inmate committee at
[5] Madam Justice Mactavish was not impressed. Although the matter was moot, she decided to hear it anyway. Her reasons in Spidel v
[6] Madam Justice Mactavish stated at paragraphs 17 and 19:
[17] I do not intend to review each of the affidavits in detail. Suffice it to say that the picture painted by the evidence adduced by Mr. Spidel is troubling. While I understand that other evidence was put before the British Columbia Supreme Court by the respondent to justify the decision to reclassify and transfer Mr. Spidel, the affidavits before me suggest that the Warden of Ferndale Institution had become very irritated by Mr. Spidel as a result of grievances that he had brought, and that a variety of retaliatory measures were taken by the Warden against Mr. Spidel, including the abolition of a mental health program in order to justify the firing of Mr. Spidel.
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[19] Two affidavits were provided by the psychologist who authored the document relied upon by CSC to justify the transfer. He deposes that he had been told that “management wanted Mr. Spidel gone and they wanted an assessment report … that would assist in accomplishing this end”. While the psychologist says that he did not provide such a report at that time, he later drafted the note that provided the justification for moving Mr. Spidel. The psychologist swears that he was misled with respect to the alleged behaviour of Mr. Spidel, and that he did not take any steps to confirm what he had been told by CSC management before writing the note in question.
[7] Thereafter, in his statement of claim, Mr. Spidel asserts that his Charter rights, particularly freedom of assembly, were violated and that as well he suffered domestic hardship, humiliation, shame, dishonour, embarrassment, degradation and injury to his self-respect and esteem. The basis for the prohibition from running for office was allegedly maliciously false and misleading and intended to and did cause correctional setbacks, loss of reputation, mental suffering and other damage.
[8] Contrary to what Mr. Spidel asserts in the statement of claim, Madam Justice Mactavish reached her decision without having to consider the Charter.
[9] The basis of the motion is that pursuant to Rule 221 of the Federal Courts Rules, the statement of claim should be struck as disclosing no reasonable cause of action. The test is whether it is plain and obvious that no reasonable cause of action is disclosed (Hunt v Carey Canada Inc, [1990] 2 SCR 959, [1990] SCJ No 93 (QL)). The facts alleged in the statement of claim are assumed to be true (Operation Dismantle Inc v the Queen, [1985] 1 SCR 441, [1985] SCJ No 22 (QL)). In my opinion, if substantiated, there is a real possibility a cause of action exists, which extends to special damages.
[10] In addition, it is submitted that insufficient material facts were asserted to establish the Charter breaches alleged by the plaintiff.
[11] The leading case on Charter damages is
| 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
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24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s'adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.
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[12] At paragraph 20, Chief Justice McLachlin speaking for the Court said:
The general considerations governing what constitutes an appropriate and just remedy under s 24(1) were set out by Iacobucci and Arbour JJ. in Doucet-Boudreau v
[13] She added at paragraph 22 that in Ward what was being sought was not private law damages, but the distinct remedy of constitutional damages. Such an action lies against the state and not individual actors. However, she continued “[a]ctions against individual actors should be pursued in accordance with existing causes of action.”
[14] The allegations against Anne Kelly and Don Head are simply that in their positions of authority they appointed the decision-makers at the second and third grievance level. If there is any cause of action against them at all, which I doubt, it would have to be constitutional in nature and lies only against the state, as set out in Ward, above. The same does not hold true for the Warden, Bill Thompson. The alleged cause of action arises from his decision not to let Mr. Spidel run for office, not from the grievance procedure.
[15] It is far too early to determine how this matter will develop, and at what stage, if any, Mr. Spidel may have to elect between private law damages and Charter damages.
[16] If there is a chance that the plaintiff might succeed, then he should not be “driven from the judgment seat,” as per Hunt, above.
[17] If the remaining defendants think that the pleadings are somewhat vague then they are entitled to seek particulars.
ORDER
FOR REASONS GIVEN;
THIS COURT ORDERS that:
The motion to strike is granted in part:
The statement of claim is struck, without leave to amend, and the action dismissed as against the defendants, Anne Kelly and Don Head.
The style of cause is amended accordingly to read:
MICHAEL AARON SPIDEL
Plaintiff
and
HER MAJESTY THE QUEEN AND
HER SERVANT BILL THOMPSON
Defendants
Otherwise, the motion is dismissed.
The remaining defendants shall have 30 days herefrom to file their statement of defence.
Costs in the cause.
“Sean Harrington”
SOLICITORS OF RECORD
DOCKET: T-1569-11
STYLE OF CAUSE: SPIDEL v HMQ ET AL
MOTION IN WRITING CONSIDERED AT
WRITTEN REPRESENTATIONS BY:
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(Self-represented)
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| Amanda Sanghera
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FOR THE DEFENDANTS
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SOLICITORS OF RECORD:
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(Self-represented)
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| Myles J. Kirvan
Deputy Attorney General of
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FOR THE DEFENDANTS
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