Date: 20030220
Docket: T-16-03
Neutral citation: 2003 FCT 213
Vancouver, British Columbia, Thursday, the 20th day of February, 2003
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
ORVILLE GUSTAVSON
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] These reasons relate to a motion by the defendant to strike the plaintiff's statement of claim issued on January 3, 2003.
[2] The plaintiff is a dangerous offender serving an indeterminate sentence at Kent Institution, a maximum security penitentiary located in Agassiz, British Columbia, and operated by the Correctional Services of Canada (the "CSC"). He is a self-represented litigant who drafted his pleading and filed it in his own handwriting in this court.
[3] The plaintiff in his claim recites a series of events which he says happened to him recently in prison: (1) his display of anger (knocking books off a desk) at his being exposed to toxic chemicals when performing his job as a school cleaner in the prison; (2) placement in and out of segregation several times starting on July 16, 2002; and (3) a conviction and 30-day sentence by a Disciplinary Court in September 2002.
[4] The relief sought in his claim is the following:
(1) habeas corpus to compel his immediate release from segregation into the prison population;
(2) reinstatement as a school cleaner;
(3) an order giving his single cell back; and
(4) damages "at least up to $50,000.00 for the severe amount of damage done to me because I have been in prison for over 22 years solid to date and the amount of damage done to me contrary also to the Charter...".
[5] The grounds relied on by the defendant are paragraphs 221(a) no reasonable cause of action, 221(c) the claim is frivolous, vexatious and 221(f) is otherwise an abuse of process, all as provided for in the Federal Court Rules, 1998 (the "Rules").
[6] I agree with the defendant this action should be struck without leave to amend for the reasons outlined below, with liberty to the plaintiff to commence a new action or perhaps seek judicial review taking into account the comments I am making below.
[7] First, it is plain and obvious the relief he seeks for his release from segregation, his reinstatement as a school cleaner and an order giving him back his single cell can only be obtained by judicial review and not by action. Subsection 18(3) of the Federal Court Act is explicit on the point.
[8] However, the plaintiff should not jump to any quick conclusion about seeking judicial review. A good case can be made that the orders he would seek by judicial review should first be sought by way of the grievance procedure provided for in the Corrections and Conditional Release Act and Regulations.
[9] Second, I have read and reread several times the plaintiff's statement of claim and I asked myself the question - if I was the defendant could I file a statement of defence which could respond to the allegations made so as to define the issues between the parties without endless motions being made which take up the Court's resources and can be avoided by new pleadings?
[10] The answer to this question is no and there are several reasons for this: (1) the plaintiff's pleadings are confusing and disjointed; (2) the plaintiff recites events he says happened to him, but does not allege if those actions are unlawful and why; (3) he pleads no material facts to underpin his damage claim; (4) the events he recites "hang up in the air" and appear to be bare allegations without "bringing it home".
[11] In the circumstances, I find that the plaintiff's pleadings have breached rules 174, 181 and 182 of the Rules, and should be struck without liberty to amend because I do not see how they could be amended. It is best that the plaintiff start over.
ORDER
THIS COURT ORDERS that the plaintiff's statement of claim is struck without leave to amend.
(Sgd.) "F. Lemieux"
Judge
| I HEREBY CERTIFY that the above document |
| is a true copy of the original filed of record in the Registry of the Federal Court of Canada on the _______ day of ___________ A.D. 20 ____
Dated this _______ day of ____________ 20 ____
M. Louise Marcotte, Senior Registry Officer |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-16-03
STYLE OF CAUSE: ORVILLE GUSTAVSON
v.
HER MAJESTY THE QUEEN
MOTION IN WRITING WITHOUT APPEARANCE OF COUNSEL
PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER: LEMIEUX J.
DATED: February 20, 2003
SOLICITORS OF RECORD:
Orville Gustavson on his own behalf
Kent Institution
Agassiz, B.C.
Morris A. Rosenberg for Defendant
Deputy Attorney General of Canada