John Doe v Canada (Attorney General), 2016 ABQB 460

Court of Queen’s Bench of Alberta Citation: John Doe v Canada (Attorney General), 2016 ABQB 460 Date: 20160825 (restricted number) Registry: Edmonton Between: John Doe Plaintiff/Respondent - and - Her Majesty the Queen in Right of Canada, The Attorney General of Canada, The Commissioner of the Royal Canadian Mounted Police, RCMP Member #1, RCMP Member #2, and RCMP Member #3 Defendants/Applicants Restriction on Publication Publication Permitted – See the Memorandum below for discussion of the application of the sealing order to this decision.

By Court Order, this electronic judgment may be published on the court website and distributed to libraries and publishers and may be published by them. Identification Ban – No one may publish the name of John Doe or of any information that could lead to the identification of John Doe. NOTE: This judgment is intended to comply with the ban so that it may be published.

FILE SEALED: The Court's file in this matter is sealed pursuant to a decision of Associate Chief Justice Rooke . referred to in the Memorandum below. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] John Doe is suing the defendants for three causes of action: breach of contractual duty/duty of honest performance; tort, negligence and misrepresentation; and, equity. All causes of action relate to the negotiation and performance of a witness protection agreement to which John Doe is a party. The individuals who signed the agreement, apart from himself, are the individual members of the RCMP referred to by pseudonym in the style of cause.

In his amended statement of claim, John Doe makes no allegation of fact involving the Commissioner of the RCMP. [ 2 ] As to the description of the Crown in the style of cause, the defendants/applicants state that s. 23(1) of the Crown Liability and Proceedings Act governs the correct way of naming the Crown when it is being sued.

[3] As to the naming of the Commissioner of the RCMP as a defendant, the defendants/applicants state that, because noallegations of fact are made against him, he is not a proper party to the proceedings. [4] John Doe responds that the Crown can’t take the benefit of legislation without being bound by it. [5] The application to strike the reference to “Her Majesty the Queen in Right of Canada” is allowed: the statutory provisionsgovern.

This issue is, largely, one of nomenclature only. [6] The application to strike reference to “The Commissioner of the Royal Canadian Mounted Police” as a defendant is allowed:no allegations of fact are made in the statement of claim against the Commissioner, and therefore there cannot be any cause of actionagainst him. The Crown is legally responsible for the acts of individual members of the RCMP; the claim in relation to those individualmembers is properly made against the Attorney General of Canada.

Improper inclusion of the Commissioner as a defendant in thislawsuit would have real consequences: as an individual, the Commissioner of the RCMP should not be obligated to be personallyinvolved in this litigation. [7] Cases and authority cited [8] By the applicant: Crown Liability and Proceedings Act, R.S.C. 1985, c.

C-50; Dix v Canada (Minister of Justice andAttorney General of Canada) 2001 ABQB 256; Ermineskin Cree Nation v Canada (Canadian Human Rights Tribunal) 2005 ABQB76; Tottrup v Alberta (Minister of Environment) 2000 ABCA 121 (the court observes that, elsewhere in case law, this decision is citedas Tottrup v Lund). [9] By the respondent: Witness Protection Program Act, S.C. 1996, c. 15; Agriculture Financial Services Corp. v Redmond1999 ABCA 175. [10] By the court: Canada (Attorney General) v. Newfield Seeds Ltd. [1989] S.J. No. 554 (C.A.); PharmaceuticalManufacturers Assn. of Canada v.

British Columbia (Attorney General) [1997] B.C.J. No. 1902 (C.A.) leave to appeal dismissed[1997] SCCA No. 529; Walton International Group Inc. v. Rocky View (Municipal District No. 44) 2007 ABCA 21 at para. 12;Hoffman v Monsanto Canada Inc. 2007 SKCA 47; Persons Seeking to Use the Pseudonyms of John Witness and Jane Dependant vCommissioner of the Royal Canadian Mounted Police (FC), [1998] 2 F.C. 252; Brewer v Fraser Milner CasgrainLLP 2008 ABCA 160; Horsman & Morley (eds). Government Liability: Law and Practice, Canada Law Book (looseleaf). 1.

Publication Ban/Privacy issues [11] Earlier in these proceedings, Associate Chief Justice Rooke made an order which included the following provisions: UPON the application of the Plaintiff heard in camera; AND UPON HAVING heard submissions from counsel for the Attorney Generalof Canada; AND UPON HAVING heard reference to an Affidavit provided in support of this Application; IT IS HEREBY ORDEREDTHAT: 1. The Plaintiff shall be at liberty to file the Statement of Claim under the pseudonym of" John Doe". 2.

All references to the Plaintiff in the Pleadings or any other documents hereafter filed in this action shall refer to the Plaintiff onlyas "John Doe". · 3. The Plaintiff shall describe those individuals identified as ·defendants in this action in the Affidavit provided in support of thisApplication by the pseudonyms RCMP Member #1, RCMP Member #2 and RCMP Member #3 rather than by their actual names. Allreferences to those defendants in the Pleadings or any other documents hereafter fi1ed in this action shall refer to these defendants onlyby these pseudonyms. 3.

All pleadings and other documents in this Action, [now and in the Future] including the Form 32 and Affidavit filed in support ofthis Application, but excluding this Order, shall be sealed and any court proceedings related to this action will be heard in camera, unlessotherwise ordered by this Court. 4. The transcript of this application, and any future applications, shall be sealed, subject to further Order of this Court. 5. Given a pending limitations date, the requirement for advance notice of this application for restricted court access is dispensedwith.

This Order shall be served in accordance with the procedures for restricted court access and, in particular, Rule 6.32(

a) of theAlberta Rules of Court. 4. Any interested party may apply to vary or set aside this Order on five clear days' notice. 2. Background [12] In his amended statement of claim, the plaintiff John Doe states that he had oral discussions with RCMP Member #1 first, andthen with RCMP Member #2 and RCMP Member #3 . He alleges that the RCMP Members in question made representations to him tothe effect that he would receive specified benefits, including education, a home, and protection as a member of the witness protectionprogram.

Relying on those assurances, John Doe gave the Members a sworn statement which allowed the RCMP to arrest some suspectsand to initiate a prosecution against them, which proceedings subsequently resulted in convictions. Approximately 3 and ½ months later,John Doe signed a standard form Witness Protection Agreement. [13] The only mention of the Commissioner of the RCMP in the amended statement of claim is the following: 2. At all material times, the Commissioner of the Royal Canadian Mounted Police (the “RCMP”) had control and management of theRCMP.

[ 14 ] Pertinent provisions of the Crown Liability and Proceedings Act are: Liability 3. The Crown is liable for the damages for which, if it were a person, it would be liable (

a) in the Province of Quebec, in respect of (

i) the damage caused by the fault of a servant of the Crown, or (ii) the damage resulting from the act of a thing in the custody of or owned by the Crown or by the fault of the Crown as custodian or owner; and (

b) in any other province, in respect of (

i) a tort committed by a servant of the Crown, or (ii) a breach of duty attaching to the ownership, occupation, possession or control of property. . . . Liability for acts of servants 10. No proceedings lie against the Crown by virtue of subparagraph 3(a)(

i) or (b)(

i) in respect of any act or omission of a servant of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action for liability against that servant or the servant's personal representative or succession. . . . Responsabilité 3. En matière de responsabilité, l'État est assimilé à une personne pour :

a) dans la province de Québec : (

i) le dommage causé par la faute de ses préposés, (ii) le dommage causé par le fait des biens qu'il a sous sa garde ou dont il est propriétaire ou par sa faute à l'un ou l'autre de ces titres;

b) dans les autres provinces : (

i) les délits civils commis par ses préposés, (ii) les manquements aux obligations liées à la propriété, à l'occupation, à la possession ou à la garde de biens. ... Responsabilité quant aux actes de préposés 10. L'État ne peut être poursuivi, sur le fondement des sous-alinéas 3a)(

i) ou b)(i), pour les actes ou omissions de ses préposés que lorsqu'il y a lieu en l'occurrence, compte non tenu de la présente loi, à une action en responsabilité contre leur auteur, ses représentants personnels ou sa succession. . . . Procedure Taking of proceedings against Crown 23

(1) Proceedings against the Crown may be taken in the name of the Attorney General of Canada or, in the case of an agency of the Crown against which proceedings are by

an Act of Parliament authorized to be taken in the name of the agency, in the name of that agency. . . . Application of statutes to Crown 33 Except as otherwise expressly provided in this Act, nothing in this Act affects any rule of evidence or any presumption relating to the extent to which the Crown is bound by

an Act of Parliament. . . . Status of Canadian Forces and R.C.M.P .

36 For the purposes of determining liability in any proceedings by or against the Crown, a person who was at any time a member of the Canadian Forces or of the Royal Canadian Mounted Police shall be deemed to have been at that time a servant of the Crown. I have included both official versions of ss. 3 and 10 of the Act because the contractual liability of the Crown may be clearer in the French language version than in the English. [ 15 ]

Section 5 of the Royal Mounted Police Act contains the following provisions: Commissioner Appointment 5

(1) The Governor in Council may appoint an officer, to be known as the Commissioner of the Royal Canadian Mounted Police, to hold office during pleasure, who, under the direction of the Minister, has the control and management of the Force and all matters connected with the Force. Delegation

(2) The Commissioner may delegate to any member, subject to any terms and conditions that the Commissioner directs, any of the Commissioner’s powers, duties or functions under this Act, except the power to delegate under this subsection, the power to make rules under this Act and the powers, duties or functions under subsections 45.4(5) and 45.41(10). [ 16 ] The Witness Protection Program Act states: 2.1 This Act is binding on Her Majesty in right of Canada or a province. . . . Admission to the Program 6(1) A witness shall not be admitted to the Program unless . . . (

c) an agreement has been entered into by or on behalf of the witness with the Commissioner setting out the obligations of both parties. [ 17 ] Alberta’s Rules of Court state: Division 5 Significant Deficiencies in Claims Court options to deal with significant deficiencies 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside; . . .

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim.

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b). . . . 3. How should the Crown be designated in this lawsuit? [ 18 ] The defendant Crown maintains that the correct way to sue the Crown is set out in s. 23(1) of the Crown Liability and Proceedings Act . [ 19 ] Relying on Dix at para. 10 and Ermineskin Cree Nation at paras 20-28 , the applicant observes that the word “may” in the subsection has been interpreted to mean “shall” for procedural purposes and that the word “may” is purposively interpreted as applying to situations where leave is required to sue the Crown.

[20] The Crown notes that John Doe has not pled any federal legislation which applies in this case and which authorizesproceedings to be taken in the name of an agency. [21] John Doe responds that, in the circumstances here, the Crown has taken the benefit of legislation, and should be bound by it;in particular, he emphasizes that s. 2.1 of the Witness Protection Program Act specifically mentions Her Majesty the Queen.

Withrespect, I don’t understand how that argument can be made in the circumstances here; this is not a situation, like the one referred to inAgricultural Financial Services Corp. where the Crown used legislation but did not want to be bound by that same legislation.

Here, theCrown is merely denying that it failed to perform any of its duties to John Doe. [22] As I understand the law, insofar as John Doe sues in contract, the Crown can enter into any contracts another person couldenter into unless a statute specifically restricts that ability, and no such statute applies here: Newfield Seeds Ltd., PharmaceuticalManufacturers Association. The Crown Liability and Proceedings Act merely confirms that principle. That Act also makes it clear thatit is responsible in tort for damages caused by its servants.

Although the Crown’s liability “in equity” is not as clear as its liability incontract or in tort, the language of s. 3(b)(ii) of the Act presumably extends to those duties as well. [23] Indeed, as I understand it, the only practical Crown immunity which survives in contemporary Canadian practice is itsimmunity from restrictive legislation: Government Liability: Law and Practice. These proceedings will determine any Crown liability“in equity”.

It is in the context of the Crown’s immunity from legislation that s. 2.1 of the Witness Protection Program Act is important:that legislation makes it clear that the Crown is bound by that legislation.

How one sues the Crown - otherwise Her Majesty in right ofCanada - is, however, governed by s. 23(1) of the Crown Liability and Proceedings Act. [24] In the result, therefore, the application to strike “Her Majesty the Queen in Right of Canada” as a defendant in this lawsuit isallowed. [25] The court observes that this decision is essentially one on nomenclature; clearly no one expected the current reigning monarchto file process and be subject to questioning in this lawsuit. 4.

The Commissioner of the RCMP is not a proper party to this lawsuit [26] The applicants’ first argument on striking reference to the Commissioner as a party to this lawsuit is based on s. 23(1) of theCLPA, cited above. [27] The second is based on their contention that the Commissioner is not a proper party because no allegations of fact are madeagainst him. [28] The requirement that a pleading contain allegations of fact was established by our Court of Appeal in Tottrup: . . .

If a plaintiff has not alleged facts capable of supporting a cause of action, then a defendant ought not be put to the time, expense andconsequences of further litigation. Conversely, if it is not plain and obvious that no cause of action exists, an application to strike mustfail. The principles governing an application to strike a statement of claim for failure to disclose a cause of action are relatively settled. Inbrief, the Court must assume that the allegations of fact made by the plaintiff are true. The Court then determines whether those factsdisclose a cause of action in law.

The test set out by the Supreme Court in Hunt v. Carey Canada Inc., (SCC), [1990] 2S.C.R. 959 at 980 is whether it is "... 'plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action."Caution is required before concluding that the plaintiff has no chance of success. The plaintiff is entitled to a broad reading of thepleadings. ... Although the pleadings should be liberally interpreted, the Court has a duty to apply the Rule as it is intended. If the alleged facts,examined in light of the existing law, do not disclose a cause of action the claim should be struck.

Needless litigation should be avoidedand subsequently referred to by that court: Walton International. The Tottrup decision has, of course, been followed by Alberta triallevel courts, and, indeed, by courts in other jurisdictions: [29] This articulation of the principle has subsequently been confirmed by our Court of Appeal, Walton, and been approved byother appeal courts, Hoffman. [30] The vicarious liability argument in relation to the naming of the Commissioner has been effectively dealt with by Sulyma J. inDix at para. 12.

As s. 36 of the Crown Liability and Proceedings Act makes it clear, the Crown is responsible for the actions ofindividual members of the RCMP, but the Crown is sued as discussed above. [31] Obviously, there are situations in which the Commissioner of the RCMP has been named as a party in litigation and, even,specifically, in matters relating to the witness protection program: see, for example, John Witness. That decision does not, however, dealwith the Commissioner’s status as a party in the proceedings.

As our Court of Appeal stated in Brewer, where the decision itself does notdiscuss the issue of standing as a party, the authority is, at best, weak: 8 One argument of the Chief Commissioner is that he has appealed judicial review decisions to this Court in recent years, no one hasobjected to his doing so, and this Court has heard those appeals. (The respondent's argument counts three such previous appeals, only oneinvolving jurisdiction.) 9 However, admittedly this Court has not discussed whether the Chief Commissioner had the right or power to do that, and courts mostoften do not raise issues of their own motion.

10 Many cases hold that a previous case (especially at the same court level) which merely assumes a legal proposition not argued, atbest is very weak authority for that proposition. See Clark v. Cdn. Nat. Rwy. (SCC), [1988] 2 S.C.R. 680, 700-01, 89N.R. 81, 54 D.L.R. (4th) 679, 694; and other cases cited in 3 Stevenson and Coté, Civil Procedure Encyclopedia,

Chapter 66, Parts K.2and K.6 (2003). That is doubly so when the legal proposition is jurisdiction (for an appeal), as jurisdiction cannot be conferred byconsent. [32] Applying the Tottrup and Dix principles to the case at hand, because there are no allegations of fact made against theCommissioner in the plaintiff’s amended statement of claim, there is no cause of action against the Commissioner. The RCMP Memberswho are named as defendants are servants, or employees, of the Crown and the usual rules of vicarious liability will apply to the Crownas a result.

The naming of the Attorney General of Canada as a defendant is the proper way to claim that liability. [33] In the result, therefore, the application to strike “The Commissioner of the Royal Canadian Mounted Police” as a defendant inthis lawsuit is allowed. [34] The court observes that, unlike the first decision, the removal of the Commissioner from the lawsuit has practical effect. Itwould be unreasonable, on the facts pleaded here, for the Commissioner to be put to the “time and expense” of personal participation inthe lawsuit.

As the Supreme Court of Canada reminded us in Hryniak, while preserving the essential fairness of civil proceedings, wemust also all strive to ensure that those proceedings are as efficient as possible. 5. Costs [35] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 10th day of August, 2016. Dated at the City of Edmonton, Alberta this 24th day of August, 2016. J.B. Veit J.C.Q.B.A. Appearances: Kanchana Fernando, Department of Justice Canada for the Applicants Soheel Hussein, Bryan & Co. Ltd., Edmonton for the Respondent, John Doe