Date: 20000911
Docket: T-782-00
BETWEEN:
ARTHUR ROSS,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons arise from a motion in writing to strike out the action of a Federal prison inmate, presently serving his sentence in a medium security institution, a proceeding which the Defendant submits ought to be by way of an application for judicial review. The principle attack is thus that the matter discloses no cause of action, or alternatively, and I do not need to deal with this aspect, that the action is an abuse of process. Dealing with the former I must assume that the facts, as set out in the Statement of Claim, so long as relevant, are for the purposes of this motion correct.
[2] The Defendant has provided a substantial motion brief. The Plaintiff, in a short letter in reply, says that he has no intention to respond to the motion for he has nothing to say beyond what is set out in the Statement of Claim. The balance of what he sets out in the letter is irrelevant for the purposes of the motion. Such an approach, that of ignoring a motion, hoping that all will come right at an eventual hearing of the proceeding, is fraught with peril. It leaves the judge or prothonotary, who deals with a motion such as this, with nothing more to go by than perhaps some educated guess-work. Here I have given the Plaintiff the benefit of the most liberal interpretation of his Statement of Claim that I am able.
[3] In the Statement of Claim the Plaintiff refers to past wrongful conviction, present wrongful conviction, transfers between institution which are said to have put him at danger and then goes on to seek $100,000 in damages for failure to provide needed educational programs, a writ of mandamus to remove points which the Plaintiff says were unfairly added to his security classification scale and an Order transferring him to a minimum security facility at Prince Albert, Saskatchewan.
[4] It appears, from the Statement of Claim that the Plaintiff spent time at the Grand Cash Institution, at the Stoney Mountain Institution and at the Drumheller Institution where there were no programs available and the environment was said not to be a safe one for his incarceration.
[5] For the Defendant's part, she relies upon no evidence, being the correct approach under Rule 221(2) of the Federal Court Rules, 1998, merely referring to legislation and to various allegations in the Statement of Claim. From the latter it is clear that the Plaintiff was part of a program at the Regional Psychiatric Centre in Saskatoon, Saskatchewan, but was dismissed from that program in that he refused to accept responsibility for the crime for which he was convicted, that conviction occurring in May of 1997.
[6] The test to strike out a Statement of Claim, as disclosing no reasonable cause of action, is that it be plain, obvious and beyond doubt that the proceeding has no chance of success. It is a case that is futile and one which will not succeed: this has been set out in many places, in similar words, including by the Supreme Court in Hunt v. Carey Canada Inc. [1990] 2 S.C.R. 959 at 979 and 980.
[7] I am in agreement with the Defendant that this proceeding ought to have progressed through the Grievance and Review System set out in the appropriate legislation and here I would refer to the Corrections and Conditional Release Act S.C. 1992, c. 20 and to the related Regulations and that if the Plaintiff were then dissatisfied he might bring a judicial review application under section 18.1 of the Federal Court Act. In this way the Plaintiff might have dealt with transfers among institutions, transfers with which he disagrees. By that procedure he could have obtained at least an initial review of the extra penalty points which the Plaintiff says were added to his docket, thus limiting his access to a minimum security facility. However it is certainly not up to this Court, in this case, to determine the institution in which the Plaintiff ought to serve his sentence. That is the purpose of the process set out in the Corrections and Conditional Release Act, S.C. 1992 c. 20, and particularly as set out sections 28, 29, 90 and 91 of that Act and in sections 11 through 16 and 74 through 82 of the Corrections and Conditional Release Regulations, SOR/92-620.
[8] These are internal procedures which, except in special circumstances, for example where internal procedures would not afford any real remedy. Such procedures must first be followed by an inmate before he or she becomes eligible for the review procedure offered by the Federal Court. There are no special circumstances set out in the Plaintiff's material which might provide an exception to this general rule.
[9] In the Statement of Claim the Plaintiff merely states that he "... has used the internal grievance procedure but to little or no avail, ...", referring to an un-attributed passage said to be written by Madame Justice Louise Arbour and that as a result he will receive no relief by way of parole until May of 2013. This might, in some instances, lead to an exploration of whether the Plaintiff in this action might be able, allowing the Plaintiff the benefit of any doubt, to say that the action is not forlorn and that it might be converted to judicial review under Rule 57 of the Federal Court Act which provides "an originating document shall not be set aside only on the ground that a different originating document should have been used.". Were the application of this Rule open to the Plaintiff it might be that he could successfully bring a motion to have the present action converted to judicial review and then to obtain a time extension within which to seek relief.
[10] The difficulty I have with the Rule 57 approach is that there is virtually nothing in the Statement of Claim setting out what steps the Plaintiff took or might have taken to obtain internal relief under the prison grievance procedures. Nor is there any chronology which would show that he had sought relief relatively recently, to bring himself near to the 30 day cutoff period within which Federal Court judicial review must be taken from the decision of a prison tribunal. There is nothing in the Statement of Claim or in the Plaintiff's material to explain the delay. Further, on the facts set out in the Statement of Claim and looking at them in the light of the applicable Corrections and Conditional Release Act legislation, I can see no reasonable argument that might be made to the contrary in order to establish that the Plaintiff has an arguable case.
[11] In conclusion, the Plaintiff's action is struck out. There appears not a scintilla of a chance that an amendment would succeed, therefore the striking out is without leave to amend.
[12] As to costs, the Defendant has not filed a Defence. While the motion material is substantial, the Defendant does not seek costs. Therefore none are awarded.
(Sgd.) "John A. Hargrave"
Prothonotary
September 11, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-782-00
STYLE OF CAUSE: ARTHUR ROSS
v.
HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER OF HARGRAVE P.
DATED: September 11, 2000
WRITTEN SUBMISSIONS BY:
Mr. Arthur Ross FOR PLAINTIFF
Ms. Tracy King FOR DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg,
Deputy Attorney General
of Canada FOR DEFENDANT