Date: 20000830
Docket: T-731-00
BETWEEN:
Daniel ARMALY
Plaintiff
and
HER MAJESTY, THE QUEEN
Defendant
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is a motion on behalf of the defendant (Crown) for an order to strike the plaintiff's Statement of Claim on the following grounds, as stated in the Notice of Motion:
| (a) The issue giving rise to the statement of claim is moot and thus the action is frivolous, vexatious or an abuse of process of the Court; |
| (b) Rules 221 and 8 of the Federal Court Rules, 1998. |
[2] The motion was scheduled for hearing on August 21, 2000. The plaintiff did not appear for the hearing in that he is incarcerated in Drumheller, Alberta.
[3] Plaintiff's Statement of Claim is some eight pages and concludes as follows:
For the above-mentioned reasons, the Applicant seeks the following damages:
| 1. For "willful misconduct", and for "blatant disregard" of the Law and the rights of the Applicant, conferred upon him by Law, the Applicant seeks punitive and exemplary damages in the amount of $250,000.00 |
| 2. For failing to uphold their "oath of office", for their failure to uphold the provisions of said Acts and regulations, the Applicant seeks punitive and exemplary damages in the amount of $250,000.00 |
| 3. For the Infringement of the Applicant's Charter rights, by obstructing his proper and lawful right to access his parole decision sheet or any other information they were requested to provide, and interfering with his right to make "full answer and defence" in either the appeal division of the National Parole Board or the Courts, by depriving him of a copy of said information, the Applicant seeks punitive and exemplary damages in the amount of $250,000.00 |
| 4. For implementing a "blanket coverage policy" which has impacted upon the Applicant unnecessarily, unreasonably, and in "willful disregard' of his rights, in "total disregard' of the Applicant as "an individual Canadian citizen", and his needs as such an individual as to be pro-active in both his case management and parole processes, which are his "liberty interests", the Applicant seeks personal and punitive and exemplary damages in the amount of $250,000.00 |
| 5. For the "arrogance" and "willful misconduct" displayed to the Applicant by Ms. Schaffer in stating the "she refused to hand over registered court documents" and stated that the Applicant would "not be allowed to retain his files" that were lawfully requested, with full knowledge and in breach of her "oath of office", the Applicant seeks further punitive and exemplary damages in the amount of $100,000.00 |
| 1. It is because of such personal misconduct and for the deterrence of such future conduct that the Applicant seeks his damages. |
| 2. In the furtherance of deterrence of "unfair and unlawful conduct" that is practiced by certain members of the Correctional Service who feel their authority or conduct is only superceded by God, and then only upon occasion, that the Applicant seeks damages. |
| 3. For the enforcement of the premise that "their actions and conduct are not above the Law", is reason for the Applicant to seek damages. |
| 4. That because monetary penalty is the only deterrance that is understood by those who "abuse their authority of office", and act "in excess of their jurisdiction", that is reason for the Applicant to seek damages. |
| 5. The Applicant cannot recognize any righteousness, in either the policy or conduct of the Warden of Drumheller Institution, and thus the Applicant seeks damages. |
| 6. To deter further, or future conduct that can be seen to be infringement of Charter rights, or conduct that can be seen to be arrogant and disdainful of our right to access the Courts, is reason why the Applicant seeks damages. |
[4] It is now the Crown's submission that the issue raised by the plaintiff is now moot in that the subject matter of plaintiff's claim, the habeas corpus application was first dismissed on February 27, 2000 and that an appeal from that decision by the present plaintiff was also dismissed on June 5, 2000 and that there is therefore nothing further to litigate.
[5] Rule 221 of the Federal Court Rules states:
| 221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it (a) discloses no reasonable cause of action or defence, as the case may be, (b) is immaterial or redundant, (c) is scandalous, frivolous or vexatious, (d) may prejudice or delay the fair trial of the action, (e) constitutes a departure from a previous pleading, or (f) is otherwise an abuse of the process of the Court, and may order the action be dismissed or judgment entered accordingly. |
| 221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas : a) qu'il ne révèle aucune cause d'action ou de défense valable; b) qu'il n'est pas pertinent ou qu'il est redondant; c) qu'il est scandaleux, frivole ou vexatoire; d) qu'il risque de nuire à l'instruction équitable de l'action ou de la retarder; e) qu'il diverge d'un acte de procédure antérieur; f) qu'il constitue autrement un abus de procédure. Elle peut aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en conséquence. |
[6] The present application is being made pursuant to Rule 221(1)(c) and (f).
[7] When should an action be struck pursuant to Rule 221(1)(c)and (f)? It is now trite law that in order for a Court to strike a claim under rule 221(1)(c) or (f) it must be obvious that the plaintiff's action is so clearly futile that it has not the slightest chance of succeeding.
[8] Furthermore, all allegations made in the Statement of Claim are to be considered as true.
[9] This means to me, that upon reading the entire Statement of Claim and one can only conclude that on all of the material and relevant allegations, even if true, there is no chance of succeeding.
[10] The defendant submits, as the primary reason for the present application, in the Crown's written submission:
| 13. The essence of the plaintiff's claim is that the one month adjournment caused a delay in his habeas corpus proceedings and that he suffered damage because he was incarcerated at the time of delay. |
| 14. The defendant submits that the circumstances surrounding the brief adjournment, which are the factual foundation of the statement of claim, are irrelevant because the plaintiff's challenge to the lawfulness of his incarceration was ultimately dismissed. The plaintiff has at all times been in no materially different position than he would have been in any event, regardless of the adjournment. |
| 15. Accordingly, the plaintiff's claim for alleged damages due to his incarceration during the period of the adjournment of his habeas corpus proceedings is vexatious and an abuse of process because he was ultimately unsuccessful and therefore he properly remained in custody throughout the process. |
| 18. In this instance, it is respectfully submitted that there is no longer a live controversy or a concrete dispute as the plaintiff's incarceration was validated by the dismissal of his habeas corpus appeal. |
[11] It is my understanding that the plaintiff submits that the issues for which he is claiming in his Statement of Claim are not moot as long as legal documents addressed to the plaintiff are opened "by CSC staff".
[12] The plaintiff states, in paragraph 2 of his Statement of Claim:
| That the Warden of Drumheller Institution, Mr. T. Fullerton, has caused to be opened, my privileged legal correspondence, subverted and withheld this mail, contrary to the provisions of the governing Postal Act which provides for punishment or prosecution for the subversion, withholding or destruction of mail. He has also acted contrary to Section 94(2) and schedule 94(2) of the C.C.R.A. (Corrections and Conditional Release Act). |
[13] Furthermore, the plaintiff states that the present policy of the warden or other prison officials at Drumheller of opening his "privileged legal documents" or of refusing his right to take the legal documents to his cell is contrary to his legal rights and because this was done, he is presently claiming damages.
DISCUSSION
[14] There is no doubt that the issue of the habeas corpus proceeding is now moot.
[15] I cannot say with absolute certainty that the plaintiff's claim for damages is such that he would not be awarded a nominal sum for the reasons he is claiming in his Statement of Claim.
[16] I am also not convinced that the claim by the plaintiff of his rights being infringed by the policy at Drumheller whereby he was refused access to legal documents in a case where he was personally involved, unless he agreed to read these documents in a designated area, is entirely without merit and which may have caused the plaintiff damage.
[17] Although the issue of the "policy" at Drumheller is not before me, I do have difficulty in understanding the reason for refusing an inmate to receive legal documents in a case in which he is personally involved unless he agrees to take possession of the documents in a designated area. I fail to see why he should not be permitted to take and study the documents in his cell.
[18] As I have stated, I am not convinced all of the issues found in the Statement of Claim if true, and this is assumed, are now moot.
[19] The application to strike the entire Statement of Claim is denied.
[20] The defendant is granted an extension of 20 days of today's date to serve a list of documents.
"Max M. Teitelbaum"
J.F.C.C.
Calgary, Alberta
August 30, 2000