Federal Court Decisions

     Court File No. T-608-92

BETWEEN:

     RANJIT PERERA,

     FRANK BOAHENE and

     FRED BLOCH

        

     Plaintiffs

     - and -

     THE QUEEN IN RIGHT OF CANADA

     Defendant

     REASONS FOR ORDER

CULLEN, J.:

The Rule 474 motion

     When assigned this task by the Associate Chief Justice, and after reading much of the material, I was hopeful that I might be able to resolve some issues, and thereby shorten the time required for the trial. This desire was really too ambitious, given the entrenched positions of both parties. The time required for this file to date is much too long and some of the reasons for that are understandable, and have been advanced.

     I had hoped counsel would be in a position to settle by agreement much of what is in dispute. This case apparently does not lend itself to that trend of approval. For example, a typical exchange between the parties starts with the Plaintiff maintaining that he has proven discrimination before the Public Service Commission Appeal Board. To this, the Respondent replies, "No! That matter is still not finalized and needs further debate."

     Sadly for the parties, the Court, and the counsel, a long time is going to be required for the trial of this action in order to solve extremely difficult legal and factual matters.

     Leadership to effect settlement must come from the parties, with the Court suggesting how that might come about. This case cannot, in my view, be settled except through a trial which will be long and expensive.

     Rule 474 confers an unusual remedy, which normally is confined to cases in which the parties agree on the facts, and for that matter, agree on the legal question that they wish to have answered. This Rule confers a remedial, and not advisory jurisdiction on this Court. For the following reasons, this is not an appropriate case for moving under Rule 474.

     After examining Rule 474 and the three criteria established in case law for moving under that section of the Federal Court Rules, I am not satisfied that the necessary conditions have been met.

     First and foremost, the facts that go to the heart of this case are in dispute. The Respondent has out and out denied discrimination. It is no defence to the Respondent's position to say that the facts are not in dispute because the Respondent did not file a Statement of Defence or cross-examine on the Applicants' affidavits. Counsel for the Respondent has made it quite clear that he did not approve of the process embarked upon by the Applicants, and hence did not want to be seen to be doing anything that would lend credence to a Rule 474 motion. The Applicants cannot, therefore, make the point of discrimination and use it as a fact under Rule 474. On the basis of the Applicants' affidavits, which disclose the discrimination allegations, there is no question of law in this particular instance that can be determined conclusively.

     Second, there is, likewise, no pure question of law that can be determined in the Rule 474 motion before this Court, because a ruling would require an adjudication on some of the facts in dispute. It is not in the place of this Court to do so as a preliminary matter of law. One further point made by the Respondent is that the legal questions themselves have not been framed in a way that is acceptable to both parties.

     Third, a Rule 474 motion is a method for, hopefully, shortening the length of a trial. Neither the arguments that I have heard nor the written submissions before me give me any indication that that will happen. It has not been established that proceeding with the Rule 474 motion will expedite the trial.

     The Respondent has very strenuously made the point that everything in this case is in dispute. Unhappily, it is my opinion that a full-blown trial will be necessary to resolve the differences between the parties. This Courtroom, upon a Rule 474 motion, is not the arena to resolve so many issues. The questions of law posed by the Applicants cannot be answered in a clear-cut way.

     Accordingly, this motion is dismissed.

    

The Rule 419 motion

     The Defendant moves that this Court strike out the Plaintiffs' Amended Amended Statement of Claim pursuant to Rule 419, and the within action forever stayed. Alternatively, the Defendant seeks an Order that the first-named and third-named Plaintiffs attend oral examinations of discovery to determine what portion of this action falls within the purview of the Canadian Human Rights Commission under the Canadian Human Rights Act R.S. c. H-6, and that each of the three Plaintiffs' cases heard separately.

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     There is no question in my mind that the Rule 419 motion must be dismissed. For the reasons that follow, I can find no basis for striking the Statement of Claim.

     The case at Bar is distinguishable from The Board of Governors of the Seneca College of Applied Arts and Technology v. Pushpa Bhadauria, [1981] 2 S.C.R. 181, [hereinafter, Bhadauria], a case involving the Ontario Human Rights Code. In Bhadauria, the Supreme Court of Canada held that discrimination by way of repeated denial of an employment opportunity on the alleged ground of racial origin does not give rise to a common law tort. However, this finding was based on the fact that the Ontario Human Rights Code conferred exclusive jurisdiction on the provincial human rights tribunal to hear the discrimination complaint. There is no equivalent clause in the Canada Human Rights Act. The human rights processes authorized by the provincial and federal acts are quite different from each other. The principle enunciated in Bhadauria is, therefore, inapplicable to the case at Bar.

     The Defendant cites Moore¹ as authority for the proposition that this Court should strike the Plaintiffs' cause of action as unnecessary, because an effective remedy is available under the Canadian Human Rights Act. Not only is the Moore case cited by the Defendant on this point distinguishable on the facts, this case is no longer even applicable, given the changes in legislation brought by the advent of the Charter. Furthermore, the Moore case is only a provincial court of appeal decision, and it was decided well before the Supreme Court's pronouncement in the seminal case on equality rights, Andrews v. Law Society of British Columbia (1989) 56 D.L.R. (4th) 15. Moore relies, in its reasoning, on the decision of McKinney v. Board of Governors of University of Guelph (1987), 46 D.L.R. (4th) 193, 63 O.R. (2d) 1 [hereinafter, McKinney]. However, McKinney was not adopted in Andrews. Finally, as counsel for the Plaintiffs correctly points out, there was hardly a ringing endorsement of the decision to strike the Statement of Claim in Moore. Macfarlane, J.A., speaking for the Court at 43, specifically concluded that the Order to strike did not reflect fully the decisions made by the chambers judge, nor even the conclusion which the British Columbia Court of Appeal had reached. Macfarlane, J.A. left the appellant at liberty to apply to the chambers judge to file a new statement of claim, pleading facts to support her allegations of a Charter infringement.

     It has always been open to me to give the Plaintiffs leave to amend their Amended Amended Statement of Claim. However, the very circumstances of the case, the lengthy delays involved, and the three drafts of the Statement of Claim already in existence, all suggest that leave to amend would not further the case in any way. In addition, the Plaintiffs may be out of time to make any such amendments.

     In light of the pivotal importance of Andrews in Charter cases such as the one at Bar, Moore is simply bad law in this day and age. Moore is inconsistent with the supremacy of the Charter.

     There is nothing in the federal human rights legislation that precludes a separate Charter action. There is a human rights process and a Charter process. Both are available to the Plaintiffs, and both processes can even be availed of at the same time, if the Plaintiffs so choose. The within action is not statutorily ousted by the Canadian Human Rights Act.

     The Plaintiffs' action is founded in the supreme law of the country, the Charter. The broad remedial power enshrined in section 24 of the Charter allows for a broader remedy than that provided in the Canadian Human Rights Act. The within action is neither frivolous and vexatious nor an abuse of process warranting Rule 419 intervention, because the Plaintiffs do have a right to bring an action before this Court under the Charter. This right exists notwithstanding the jurisdiction of the Canadian Human Rights Commission to hear human rights complaints. The Respondent cannot use human rights legislation as a shield to Charter action.

     Any suggestion that there is no reasonable cause of action is unfounded. The governing considerations in this regard were expressed by Estey J., delivering the judgment of the Supreme Court of Canada in Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735 at 740-741, as follows:

As I have said, all the facts pleaded in the statement of claim must be deemed to have been proven. On a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that "the case is beyond doubt" (Ross v. Scottish Union and National Insurance Co. (1920), 47 O.L.R. 308 (App. Div.)). Here Bell Canada in its statement of defence has raised the issue of law as to the position of the Governor in Council when acting under s. 64 of the National Transportation Act, supra, and the power and jurisdiction of the court in relation thereto. The issue so raised requires for its disposition neither additional pleadings nor any evidence. I therefore agree with respect with the judge of first instance that it is a proper occasion for a court to respond in the opening stages of the action to such an issue as this application raises.

This principle was quoted and applied in Baird v. The Queen, [1984] 2 F.C. 160 (Fed. C. A.), a case which, similarly to the one at Bar, dealt with the issue of a breach of statutory duty. To repeat, this Court will strike out a claim only in plain and obvious cases, where the Court is satisfied beyond doubt that there is no reasonable cause of action. The case at Bar does not pass this test. In my above finding concerning the Rule 474 motion, I decided that this case involves complex issues of law and fact. A Rule 419 motion is an inappropriate way to dispose of cases involving such complex issues.

     The threshold for striking a claim is very high. The general principles applicable to all pleadings have been neatly summarized in Jane Doe v. Police Board of Commissioners, [1991] 72 D.L.R. (4th) 580 at 583, 584 [hereinafter, Jane Doe]. The four principles are as follows.

     1) As long as there is a reasonable cause of action founded in law, the novelty of the cause of action is of no concern. As stated above, the cause of action is founded in law.

     2) In determining whether a cause of action exists, the material facts pleaded are to be taken as proved. The Plaintiffs' previous lawyer, when asked for particulars, disclosed ample facts setting out acts of differential treatment to support the allegations of discrimination. There has been no further request for particulars since. Differential treatment has been set out in the pleadings. There are enough facts to support the allegations made.

     3) If the facts, taken as proved, disclose a reasonable cause of action, that is, one with some chance of success, then the action may proceed. The material facts pleaded support the cause of action. It simply is not the case that there is no prospect of success, since the first-named Plaintiff has already been successful before the Public Service Commission Appeal Board.

     4) The statement of claim must be read as generously as possible in a motion to strike. Accordingly, I have done so.

     Finally, in an action related to the above Jane Doe,² it was held that Charter rights could not be supplanted by a plaintiff's access to a statutory compensation scheme, the Compensation for Victims of Crime Act, R.S.O. 1980, c. 82. Similarly, in the case at bar, the statutory compensation scheme provided by the Canadian Human Rights Act is insufficient to oust the Plaintiffs' rights to a Charter action.

     Accordingly, this motion to strike out the entire Amended Amended Statement of claim is dismissed. However, I would order that the following paragraphs be struck from the Amended Amended Statement of Claim: subparagraphs 12(a)(iii), 12(b)(iii), 12(c)(iii), 12(d)(i), and 12(d)(ii) in its entirety. These subparagraphs refer to remedies that this Court has no jurisdiction to grant.

     I would further suggest that, in the name of the economy of time and money, each of the three Plaintiffs' cases be heard separately, but consecutively, with the first-named Plaintiff's case being heard first.

OTTAWA

     B. Cullen

February 24, 1997.

     J.F.C.C.

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     ¹      Moore v. The Queen in right of British Columbia et al. (1988), 50 D.L.R. (4th) 29 (B.C.C.A.) [hereinafter, Moore].

     ²      Jane Doe v. Police board of Commissioners (Metropolitan Toronto) (1989), 48 C.C.L.T. 105 at 169 (Ont. S.C.).