Date: 20000114
Docket: T-2763-92
BETWEEN:
DAVINDER SINGH KHAPER,
Plaintiff,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA ,
Defendant.
AMENDED REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] Counsel for the Plaintiff has inherited this proceeding, styled as an action, but commenced in 1992 by means of a declaration, which seeks declaratory relief, including a declaration that money is owed, and interest. The Defendant seeks to strike out the proceeding for want of a cause of action. Thus, I must accept the claim, which is a rational claim, as if proven and then determine whether it is a forlorn and futile claim, a difficult test for the Defendant to meet.
[2] The claim is based upon the allegation of pressure wrongfully applied upon the Plaintiff, when the Plaintiff was temporarily not mentally competent to weigh or understand what he was doing: to wit, the Plaintiff says he was pressured into signing a resignation from the Royal Canadian Mounted Police while under mental disability and undergoing psychiatric treatment.
[3] The Defendant makes various submissions, but the success of the motion and the fate of the Plaintiff"s claim, as drafted, depends largely upon two issues. The first issue is whether the Crown might be found liable in tort, pursuant to the Crown Liability Act , for what the Crown characterizes, from the pleadings, as an allegation of undue influence by an RCMP officer in getting the Plaintiff to sign a resignation. The second issue is whether the declaratory relief sought by the plaintiff is available by way of an action.
ANALYSIS
Timing of the Motion
[4] It is unfortunate that the Defendant brings the want of cause of action motion at this juncture. The proceeding has been ongoing for some 7 years. The parties have completed discovery. Experienced counsel have been involved throughout. The matter has been case managed by the Court. The case being ready for trial in the spring, a 7 day trial date was set beginning 23 November, now less than a month away. All being ready for trial, the Plaintiff left the country, intending to return for the trial, but in the interim being out of contact with his counsel. The Defendant raised the prospect of this motion on 4 October 1999. This was rather late in the day, but then the want of a cause of action may be raised at any time, even after pleading to the offending allegation: see for example Coca Cola v. Pardhan (1999), 240 N.R. 211 at 216 (F.C.A.) and Olmstead v. Canada (1999), 156 F.T.R. 111 at 114. Crown Liability in Tort .
Test For Striking Out Of Pleadings
[5] Turning now to the test for striking of pleading, it is well known, yet perhaps too often casually applied. One ought to interpret the test, that a pleading be plainly, obviously and beyond doubt one that will not succeed, in terms of its plain and clear meaning. It is then a difficult test to meet. That is as it should be, for a party ought not to be denied a day in Court unless the pleading in question is absolutely forlorn and futile.
Crown Liability And Tort
[6] The first issue is whether any advantage taken of the Plaintiff, when he was not compos mentis, is actionable as a tort thus making the Crown liable.
[7] The Crown may be held liable in tort only if made liable by statute, this is established by section 3 of the Crown Liability Act, R.S.C. 1985 c. C-50, which provides in part:
| The Crown is liable in tort for damages for which, if it were a private person of full age and capacity, it would be liable (a) in respect of a tort committed by a servant of the Crown; ... |
This statutory creation of the Crown"s vicarious liability and of any right of action in tort against the Crown, a right which would not exist outside of statute, are confirmed by the Federal Court of Appeal in Stephens" Estate v. Minister of National Revenue (1982) 40 N.R. 620 at 631.
[8] The Defendant submits that the only possible wrong done to the Plaintiff, according to his pleadings, might be the application of undue influence in order to get him to sign a resignation under section 30 of the RMCP Regulations, P.C. 1988-1137, made pursuant to the RCMP Act, R.S.C. (1985) c. R-10. Section 30 is apparently the only route that an RCMP member may take in order to resign. It provides for voluntary resignation, in writing, at any time, which on acceptance by the Commissioner of the RCMP and forwarding to the Governor in Council becomes final and irrevocable. A resignation may be withdrawn, before acceptance by the Commissioner, on the written approval of a designated "appropriate officer".
[9] The Plaintiff"s declaration sets out the pressures and difficulties the Plaintiff encountered during his posting at Surrey, British Columbia, touches on the medical care that he was receiving and then leads into the resignation process. The alleged wrong, the application of undue influence, appears in paragraph 11 of the Plaintiff"s declaration:
| 9. The Plaintiff, Davinder Singh Khaper further alleges that up to the time of tendering a Resignation on the 17th day of June, 1992, the Plaintiff was suffering from severe, emotional stress and was on heavy medication prior to and at the time of actually tendering his resignation and was not mentally competent to the knowledge of the Defendant to make a bona fide decision for resignation. |
| 10. The Plaintiff, Davinder Singh Khaper, further alleges that Inspector J.H. MacIntosh who conducted the exit interview on the 17th day of June, 1992 on behalf of the Defendant knew that the Plaintiff was not mentally competent to make a decision to voluntarily resign and was unable because of the lack of mental competence of the Plaintiff to complete the exit interview. |
| 11. The Plaintiff, Davinder Singh Khaper, claims a Declaration that the Plaintiff, Davinder Singh Khaper, continues to be a lawful member, pursuant to the Royal Canadian Mounted Police Act and the purported Resignation dated the 17th day of June, 1992 is of no force and effect in that the Plaintiff was subjected to undue influence exercised by the Defendant, its agents and servants, in circumstances when the Defendant knew that the Plaintiff was not mentally competent to make a decision as to whether a Resignation was the proper course of conduct. [Further Amended Declaration, filed 29 April 1996] |
The Declaration goes on to set out that the Plaintiff subsequently sought to withdraw his resignation and that he now claims various declaratory relief, including that the resignation was of no force and effect, that he is entitled to salary and to various benefits and to interest on any money declared due and owing.
[10] The Defendant submits that key is the allegation that "... the Plaintiff was subjected to undue influence exercised by the Defendant, its agents and servants, ... when the Defendant knew the Plaintiff was not mentally competent..." and specifically the plea of undue influence.
[11] Undue influence is an equitable doctrine simply described in the Fourth Edition (Reissue) of Halsbury, Volume 16, Paragraph 667:
| 667. Undue influence. A party to a transaction, though consenting to it, may not give a free consent because he is exposed to such influence from the other party as to deprive him of the free use of his judgment. In such a case equity will set the transaction aside, ... |
[12] The Defendant submits that breach of the equitable principle of undue influence does not trigger a right or any relief against the Crown under section 3 of the Crown Liability Act because undue influence, per se, is not a recognized tort.
[13] The Defendant points out that the Crown "... cannot be held responsible for the errors, blunders, omissions, neglects or excesses of authority of ... officers or servants, save in the special cases provided by law.", here referring to a passage from Gariepy v. The King, [1940] 2 D.L.R. 12 at 23 (Ex.Ct.), for "the Crown is not liable for the wrongs committed by its officers except in cases in which such a liability has been expressly created by statute, ..." (ibid . page 24).
[14] If these submissions were the complete case, the Defendant"s argument becomes immediately compelling. However, before exercising discretion to strike out a pleading, I ought to look at the pleading in a generous manner. Moreover, I should look beyond the mere naming of the wrong in the Plaintiff"s pleadings, for a cause of action is not necessarily that which may be named in a pleading, but rather that which is embodied in a pleading.
[15] Certainly Canadian law has as yet no separate tort of undue influence. While counsel for the Plaintiff suggest that an undue influence may be a psychological tort, I do not see the necessary elements pleaded which might constitute a psychological tort. Here I have in mind torts such as intimidation, and the intentional infliction of nervous shock. In the first instance the Plaintiff was not threatened, but merely taken advantage of. In the second instance, no physical injury arose as a result. For a further consideration of the elements of the these two torts see Steeves v. Canada (1995), 95 F.T.R. 115 at 122 and following.
[16] Nor does characterizing the circumstances surrounding the resignation as duress assist the Plaintiff. While the common law concept of duress is a tort, that tort involves actual or threatened violence or unlawful arrest. Duress has certainly been expanded to include pre-existing emotional distress, combined with a threatening attitude and a liberal application of brandy, to give relief to a person unable to protect herself, but the relief is equitable: see Mundinger v. Mundinger (1969), 3 D.L.R. (3d) 338 at 341 and following (Ontario C.A.) and Larden v. Canada (1998), 145 F.T.R. 140 at 151.
[17] While Plaintiff"s counsel, in argument, suggested that the Plaintiff, in signing the resignation, relied upon the advice of a name RCMP officer, who held a position perhaps analogous to that of a shop-steward, and supposedly took advantage of the Plaintiff in order to satisfy an overall objective of removing the Plaintiff from the RCMP by giving advice that went beyond merely being improper, there is nothing in the pleadings to support this submission. Nor is there any affidavit material to suggest an amendment which might find a cause of action in negligent advice and Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 (H.L.). Yet there is still the tort of negligence to consider.
[18] The train of thought leading to negligence as a cause of action was set in motion by a comment from Plaintiff"s counsel to the effect that the Court should not become preoccupied with unnecessary procedure, but should look at, and if possible give relief, in this instance, for a substantive wrong.
[19] Mr. Justice of Appeal Linden points out in Canadian Tort Law, 6th Edition, 1997, Butterworths, that negligence in the broad sense is a cause of action, provided as certain elements are present. At page 98 he touches on the traditional English test which involves three elements, duty of care, breach of duty and resulting damage, but suggests the test is now perhaps overly simplistic. He proposes a six part test as follows:
| A cause of action for negligence arises if the following elements are presents: |
| (1) the claimant must suffer some damage; |
| (2) the damage suffered must be caused by the conduct of the defendant; |
| (3) the defendant"s conduct must be negligent, that is, in breach of the standard of care set by the law; |
| (4) there must be a duty recognized by the law to avoid this damage; |
| (5) the conduct of the defendant must be a proximate cause of the loss or, stated in another way, the damage should not be too remote a result of the defendant"s conduct; |
| (6) the conduct of the plaintiff should not be such as to bar recovery, that is the plaintiff must not be guilty of contributory negligence and must not voluntarily assume the risk. |
| (Page 99) |
[20] In the present instance, the difficulty I have in applying either a traditional three part test for negligence, or the more contemporary six part test suggested by Mr. Justice of Appeal Linden, is that the Plaintiff does not plead either a duty of care or a duty recognized by law to avoid the damage.
[21] Counsel for the Plaintiff touched upon the concept of a duty and a breach of it, in his oral argument and there may well have been such. However, counsel had no affidavit material for he could not reach his client. Were it not for the fact that declaratory relief is not available in an action, a point I will consider shortly, and were there some evidence that an amendment to allege a duty would be possible, I would be inclined only to strike out with leave to amend to plead a duty or a duty to avoid damage, for a statement of claim ought not to be struck out unless there is no scintilla of a cause of action: Larden v. Canada, (supra).
[22] Counsel touched upon the concept of a tort arising out of breach of a statutory duty. This was dealt with by Mr. Justice Teitelbaum in Kealey v. Canada, [1992] 1 F.C. 195 at 214:
| There is no nominate tort of breach of statutory duty (R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205). Therefore, the Federal Court will not have jurisdiction to hear plaintiff"s claim for damages based on breach of statutory duty. The cases cited by counsel for plaintiff, Roncarelli v. Duplessis, [1959] S.C.R. 121 and Gershman v. Manitoba Vegetable Producers" Marketing Board (1976), 69 D.L.R. (3d) 114 (Man. C.A.) involve gross and wilful misconduct by public officials and goes beyond breach of statutory duty as discussed in the Saskatchewan Wheat Pool case (supra). |
In the Saskatchewan Wheat Pool case, referred to by Mr. Justice Teitelbaum, the Supreme Court accepted an American view that any consequences of breach of a statute ought to be subsumed in the law of negligence. The effect of Saskatchewan Wheat Pool, as pointed out in Hogg on Liability of the Crown, 2nd Edition, 1989, Carswell, is that "...breach of statutory duty as a separate head of tortuous liability has a narrow scope in Canada, covering only those statutes that expressly confer a civil right of action for their breach." (page 101).
[23] In the present instance I refer to section 30 of the RCMP Act, (supra), which merely provides for voluntary resignation and the acceptance of that resignation: it does not confer a civil right of action for any breach. This approach of tort by way of statutory duty does not help the Plaintiff. I now turn to the availability of the declaratory relief in an action: this is a strong point from among the various submissions made by counsel for the Defendant.
Availability Of Declaratory Relief In An Action
[24] As I have noted the document initiating the present proceeding, while called a Declaration, it is clearly a statement of claim. The parties have treated it as such in filing a defence and then in going through the usual discovery procedures. Yet in going back to the original declaration one wonders what the then counsel intended the proceeding to be. Up until the 1st of February, 1992, declaratory relief was sought by an action. Thus, the Plaintiff"s action, styled as a declaration, would have been a proper vehicle by which to seek judicial review before February of 1992. The present proceeding was begun in November of 1992. The Defendants" second main point is that the remedies sought in the Plaintiff"s Declaration are among those set out in section 18(1) of the Federal Court Act which, by section 18(3) of the Act, may be obtained only on an application for judicial review under section 18.1 of the Act. Section 18.1 of the Act deals with judicial review of the decisions of Federal Boards, Commissions or other Tribunals.
[25] A Commissioner of the Royal Canadian Mounted Police, in engaging or dismissing a member of the RCMP, acts as a Federal Board: see McCleery v. The Queen, [1974] 2 F.C. 339 at 347-8 (F.C.A.). In the present instance, section 30 of the RCMP Act deals with resignation and with the acceptance of the resignation by the Commissioner of the RCMP, upon which the resignation is final. In such a role the Commissioner similarly acts as a Federal Board in this instance.
[26] Mr. Justice Nadon, in the Mobarakizadeh v. Canada (1993), 72 F.T.R. 30 at page 33, and Mr. Justice McKeown in Afram v. Canada (1995), 88 F.T.R. 224 at page 225, point out that declaratory relief, such as is sought in this instance by the Plaintiff, is only available on an application for judicial review under section 18.1 of the Federal Court Act. In both Mobarakizadeh and Afram the statements of claim, which sought declaratory relief against bodies which fell within the definition of Federal Boards, Commissions or Tribunals, were struck out.
[27] On the basis that declaratory relief cannot be given against a Federal Board, here the Commissioner of the RCMP, other than by way of judicial review, this proceeding ought to be struck out because it seeks relief by way of action. However, in the present instance, I have tempered the severity of this determination.
CONCLUSION
[28] Under the Federal Court Rules as they stood before the coming into force of the Federal Court Rules, 1998, commencing what should have been a judicial review proceeding as an action was fatal: see for example Lameman v. Gladue (1995), 95 F.T.R. 220 at page 223 and following and the comment of Mr. Justice of Appeal Robertson, in William v. Thomas, are unreported 5 February, 1996, decision in appeal A-649-95 at page 4:
| There appears to be no possibility to convert an action into an application for judicial review in view of subsection 18.4(2) of the Federal Court Act, ... |
[29] This state of affairs appears to have been altered by Rule 57 of the 1998 Rules:
| 57. Wrong originating document - An originating document shall not be set aside only on the ground that a different originating document should have been used. |
There is, to my knowledge, no case law as to the scope and application of Rule 57 other than the unreported 26 March, 1999 decision of Mr. Lufty in McLean v. The Queen, action T-509-90. In that proceeding, Mr. Justice McLufty gave effect to Rule 57 and, notwithstanding that the action had been commenced 8 years previously, gave the Plaintiff leave to convert an action into a judicial review application through the process of filing a new originating notice of motion.
[30] I raise Rule 57 and McLean v. The Queen, even thought it was only touched upon by counsel, for Plaintiff"s counsel has a filed and pending motion as to conversion of this action into an application, however, he is awaiting contact with and instruction from his client. By reasons of McLean v. The Queen and the pending motion, I do not think it proper to strike out the present declaration unconditionally.
[31] In conclusion, the declaration is without a reasonable cause of action and as such, will stand as struck out 30 days from now, or on the first day of trial, whichever is the earlier, unless the Court allows it to be reconstituted as an application for judicial review. This grace period will allow the Plaintiff time to bring on his motion to convert this action to a judicial review application and for any necessary time extension.
[32] While the Defendant has been successful to a substantial degree, the Defendant"s motion was brought at a very late date. Thus, no costs are awarded.
(Sgd.) "John A. Hargrave"
Prothonotary
January 14, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2763-92
STYLE OF CAUSE: Davinder Singh Khaper v. Her Majesty the Queen
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: October 26, 1999
AMENDED REASONS FOR ORDER OF
| Mr. John A. Hargrave, Prothonotary |
DATED: January 14, 2000
APPEARANCES:
George Wood for the Plaintiff
Morris Rosenberg for the Defendant
SOLICITORS OF RECORD:
George J. Wool Law Corporation for the Plaintiff
2nd Floor, 10388 East Whalley Ring Road
Surry, B.C. V3T 4H4
Morris Rosenberg for the Defendant
Department of Justice
900 - 840 Howe Street
Vancouver, BC
V6Z 2S9