Date: 20020227
Docket: T-1515-00
Neutral citation: 2002 FCT 219
BETWEEN:
DAVID JONATHAN WILD
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
THE CORRECTIONAL SERVICES OF CANADA
(Mission Medium Security Institution)
Defendant
[1] The plaintiff sues the defendant in tort for damages allegedly suffered by him while an inmate in a penitentiary and claims monetary compensation. For present purposes, paragraphs 2 and 5 of the Amended Statement of Claim give a sufficient indication of the plaintiff's case:
2. That HM the Queen in Right of Canada (The Correctional Service of Canada) in the persons of [...] who did wilfully, knowingly and regularly, awaken the Plaintiff specifically and unnecessarily, on very many occasions, commencing September 21, 1996 until December 31, 2001, causing the Plaintiff to lose 509 full night's sleep. 312 of the awakenings were from REM sleep, the "graveyard hour" 03:30h to 05:30h, in contravention of C & CRA s 69.
5. That HM the Queen in Right of Canada (The Correctional Service of Canada) in the persons of [...] who were always in wilful default of their legal obligation to act fairly, apply the duty of care and attention to the letter of the law and implement the policy objectives of CD [Commissioner's Directive 565] issued by the Commissioner of the Correctional Service of Canada, warranted by the Corrections and Conditional Release Act Part I.,s69; 70 and 86 in failing to ensure that the Plaintiff was treated humanely, his dignity not undermined and his current and future health not jeopardized.
[2] The plaintiff is unrepresented.
[3] The defendant now moves for an Order striking the statement of claim as disclosing no reasonable cause of action and as being frivolous or vexatious. There are three main thrusts to the defendant's argument.
[4] In the first place, it is said that the claim discloses no reasonable cause of action because it claims emotional distress and does not allege malice. There are two short answers to that: the claim is not only for emotional distress but for physical and neurological damage and other things as well; and in any event, it is far from being plain and obvious that the quoted allegations are insufficient to support evidence of malice.
[5] Second, the defendant adduces affidavit evidence (improperly, see rule 221(2)) to show that there was authority to wake the plaintiff in the course of regular inmate counts. This begs not only the question of the propriety of the authorization, which the plaintiff contests, but also that of the appropriateness of the actions taken by the defendant's servants and agents in the course of carrying out their orders, a matter clearly put in issue by the quoted allegations and a proper cause of action.
[6] Finally, the defendant says that the plaintiff had an adequate alternative recourse in the grievance procedure: see Corrections and Conditional Release Regulations, SOR/92-620, ss. 74-82. He clearly does not. The grievance procedure is not an adequate method of obtaining monetary relief. It may in some circumstances be an appropriate precursor to an application for judicial review of an administrative decision but it cannot take the place of an action at law.
[7] Although the motion asserts that the action is frivolous or vexatious, there is absolutely nothing to support such a claim.
ORDER
The motion is dismissed.
Judge
Ottawa, Ontario
February 27, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1515-00
STYLE OF CAUSE:David Jonathon Wild v. Her Majesty the Queen and others
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF THE PARTIES
PLACE OF HEARING: Ottawa, Ontario
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE
HUGESSEN
DATED: February 27, 2002
WRITTEN REPRESENTATIONS BY:
Mr. David J. Wild FOR PLAINTIFF, ON HIS
OWN BEHALF
Mr. Edward Burnet FOR DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT