2023 FC, 2023 FC 1559

Date: 20231124 Docket: T-120-23 Citation: 2023 FC 1559 Toronto, Ontario, November 24, 2023 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: DARREN BAUER Plaintiff and HIS MAJESTY THE KING IN RIGHT OF CANADA Defendant REASONS AND ORDER [ 1 ] By a Statement of Claim issued on January 13, 2023, Mr.

Darren Bauer (the “Plaintiff”) began an action against His Majesty the King in Right of Canada (the “Defendant”), seeking general and special damages allegedly resulting from the disclosure of “sensitive personal medical information” to staff while he was an inmate at Mission Institution in the province of British Columbia. The Plaintiff alleges that the disclosure happened when his personal medical information was " “mistakenly” " attached to food service carts. [ 2 ] The Plaintiff alleges that the Institution began sending meal carts to the living units, after the beginning of the COVID Pandemic.

He does not have an exact date of the disclosure but estimates it occurred after April 2, 2020. The disclosure was discovered by staff at the Institution on July 29, 2020. [ 3 ] The Plaintiff alleges that the disclosure of his personal medical information was unlawful and that the disclosure was due to the negligence of the employees at Mission Institution.

He claims that he suffered damages, including emotional pain and suffering. [ 4 ] By a Notice of Motion dated February 20, 2023, submitted for consideration without personal appearance pursuant to Rule 369 of the Federal Courts Rules , SOR 98/106 (the “ Rules ”), the Defendant moved to strike out the Statement of Claim, on the basis that the claims advanced are outside the time periods set out in the Limitation Act , S.B.C. 2012, c. 13 (the “ Limitation Act ”). [ 5 ] The Defendant seeks the following relief in his Notice of Motion: THE MOTION IS to strike the whole or portions of the Statement of Claim filed by the Plaintiff, Darren Bauer, under Rules 369 and 221 of the Federal Courts Rules .

In the event that the Court does not strike the whole of the Statement of Claim, the Federal Crown seeks an Order granting extension of time to file a Statement of Defence. [ 6 ] In his Motion Record, the Defendant included written arguments, as required by the Rules . [ 7 ] According to the Index of Recorded Entries for this file, the Plaintiff submitted a document purporting to be a Responding Motion Record on March 10, 2023. [ 8 ] In his motion record, that was returned and not filed with the Court, the Plaintiff did not include an affidavit but he included some documents relating to an apparent contingency fee agreement with lawyers. [ 9 ] In this motions record, the Plaintiff included a " “statement” " , referring to his understanding that a Class Action had been undertaken.

He also mentioned pursuit of a grievance. He said that these events took place during the COVID Pandemic shutdown. He also said that during this time, he was transferred from one institution to another. [ 10 ] This document was not accepted for filing because it was presented beyond the time limits in the Rules for a response to a Motion. [ 11 ] By a Direction issued on March 14, 2023, the Plaintiff was advised that he could seek an extension of time to file his responding record. [ 12 ] The Defendant submitted a letter dated April 3, 2023, addressed to the Plaintiff.

In his letter, Counsel for the Defendant referred to correspondence dated March 28, 2023, received from the Plaintiff. Counsel for the Defendant referred to the Rules about service of documents and offered his assistance to the Plaintiff, if same were required. [ 13 ] The Plaintiff also submitted a letter dated April 3, 2023. This letter is addressed to Counsel for the Defendant.

In his letter, the Plaintiff says he is enclosing all the documents that he is filing with the Court. [ 14 ] However, no documents were “filed” with the Court since by a Direction issued on March 14, 2023, the Plaintiff’s motion record was returned to him because it did not comply with the Rules about a responding record. [ 15 ] I have reviewed the materials submitted by the Plaintiff.

His submissions seem to address an extension of time for commencing his action, rather than the substance of the Motion advanced by the Defendant. [ 16 ] So, it follows that the Defendant’s motion will be decided on the basis of the arguments that he presented. [ 17 ] I note that the motion is brought under Rule 221 of the Rules which provides as follows:

" Motion to strike " " Requête en radiation " " 221

(1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it " " 221 (1) " " À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou

partie d’un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas : " " (

a) discloses no reasonable cause of action or defence, as the case may be, " " a) " " qu’il ne révèle aucune cause d’action ou de défense valable; " " (

b) is immaterial or redundant, " " b) " " qu’il n’est pas pertinent ou qu’il est redondant; " " (

c) is scandalous, frivolous or vexatious, " " c) " " qu’il est scandaleux, frivole ou vexatoire; " " (

d) may prejudice or delay the fair trial of the action, " " d) " " qu’il risque de nuire à l’instruction équitable de l’action ou de la retarder; " " (

e) constitutes a departure from a previous pleading, or " " e) " " qu’il diverge d’un acte de procédure antérieur; " " (

f) is otherwise an abuse of the process of the Court, " " and may order the action be dismissed or judgment entered accordingly. " " f) " " qu’il constitue autrement un abus de procédure. " " Elle peut aussi ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en conséquence. " " Evidence " " Preuve " "

(2) No evidence shall be heard on a motion for an order under paragraph (1)(a). " " (2) " " Aucune preuve n’est admissible dans le cadre d’une requête invoquant le motif visé à l’alinéa (1)a). " [ 18 ] Rule 221(2) of the Rules provides that no evidence " “shall be heard” " upon a motion under this Rule. Evidence upon a motion is presented by way of affidavit, not by the submission of documents presented on a “standalone” basis. [ 19 ] In the Written Submissions filed in support of his motion, the Defendant says that the " “sole basis” " for his motion is that the Statement of Claim was filed beyond the time period set out in

section 6 of the applicable legislation, that is the Limitation Act , supra . It reads as follows: Basic limitation period 6

(1) Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered.

(2) The 2 year limitation period established under subsection (1) of this

section does not apply to a court proceeding referred to in

section 7. [ 20 ] The Defendant refers to two federal statutes, that is Crown Liability and Proceedings Act , R.S.C. 1985, c. C-50 and the Federal Courts Act , R.S.C. 1985, c. F-7 , in support of his argument. [ 21 ]

Section 32 of the Crown Liability and Proceedings Act , supra is relevant and provides as follows: " Provincial laws applicable " " Règles applicables " " 32 Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose.

" " 32 " " Sauf disposition contraire de la présente loi ou de toute autre loi fédérale, les règles de droit en matière de prescription qui, dans une province, régissent les rapports entre particuliers s’appliquent lors des poursuites auxquelles l’État est

partie pour tout fait générateur survenu dans la province. Lorsque ce dernier survient ailleurs que dans une province, la procédure se prescrit par six ans. " [ 22 ] Subsection 39(1) of the Federal Courts Act , supra is relevant and provides as follows: " Prescription and limitation on proceedings " " Prescription — Fait survenu dans une province " " 39

(1) Except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings in the Federal Court of Appeal or the Federal Court in respect of any cause of action arising in that province. " " 39 (1) " " Sauf disposition contraire d’une autre loi, les règles de droit en matière de prescription qui, dans une province, régissent les rapports entre particuliers s’appliquent à toute instance devant la Cour d’appel fédérale ou la Cour fédérale dont le fait générateur est survenu dans cette province.

" [ 23 ] The combined effect of these provisions is that the Limitation Act , supra of British Columbia applies to the Plaintiff’s claim since

the alleged privacy breach occurred in the province of British Columbia.

Section 6 of the British Columbia statute creates a two-year period for the commencement of an action. [ 24 ] The Defendant does not address whether a breach of the Privacy Act , R.S.C. 1985, c. P-21 , gives rise to a claim for damages in a civil action. [ 25 ] The Defendant refers to the suspension of time limits during the COVID Pandemic, pursuant to the Time Limits and Other Periods Act (COVID-19) , S.C. 2020, c. 11 . He refers to subsection 6(1) of that statute which provides as follows: " Suspensions " " Suspension " " 6

(1) The following time limits are, if established by or under

an Act of Parliament, suspended for the period that starts on March 13, 2020 and that ends on September 13, 2020 or on any earlier day fixed by order of the Governor in Council made on the recommendation of the Minister of Justice: " " 6 (1) " " Les délais ci-après prévus sous le régime d’une loi fédérale sont suspendus pour la période commençant le 13 mars 2020 et se terminant soit le 13 septembre 2020, soit à la date antérieure fixée par décret pris sur recommandation du ministre de la Justice : " " (

a) any limitation or prescription period for commencing a proceeding before a court; " " a) " " tout délai de prescription du droit d’introduire une instance devant une cour; " " (

b) any time limit in relation to something that is to be done in a proceeding before a court; and " " b) " " tout délai relatif à l’accomplissement d’un acte dans le cadre d’une instance devant une cour; " " (

c) any time limit within which an application for leave to commence a proceeding or to do something in relation to a proceeding is to be made to a court. " " c) " " tout délai dans lequel une demande visant à obtenir l’autorisation d’introduire une instance ou d’accomplir un acte dans le cadre d’une instance doit être présentée à une cour. " [ 26 ] The Defendant submits that if the suspension of time limits applies to the Plaintiff’s claim, then the latest date for commencement of the action was September 13, 2022.

The Plaintiff commenced his action on January 13, 2023. [ 27 ] Relying on the decision in Whaling v. Canada (Attorney General) , 2018 FC 748 , the Defendant pleads that a limitation defence can properly be the basis for striking an action. [ 28 ] The arguments of the Defendant are persuasive and supported by case authority.

I refer to paragraph 12 of Whaling , supra as follows: [12] I accept the Defendant’s point that a Statement of Claim may be struck where the cause of action it asserts is clearly and irretrievably out of time: see Bassij v Canada , 2008 FC 1090 , [2008] FCJ No 1378, and the authorities therein cited. […] But these points do not detract from the underlying premise that, in the face of a pleaded limitations defence, the cause of action must be doomed to fail.

It is simply not the case that, on a motion to strike, the Court is entitled to resolve difficult issues about whether the asserted defence actually applies or when time begins to run. This is particularly true for a relatively novel cause of action. [ 29 ] The Plaintiff advanced a broad claim for damages, based on his allegations of unauthorized disclosure of personal medical information. [ 30 ] The Plaintiff did not file an acceptable response to the Defendant’s Motion to strike. [ 31 ] The argument advanced by the Defendant, based on the limitation period, is solid. The Plaintiff did not oppose this argument.

The arguments of the Defendant justify an order to strike this Statement of Claim. [ 32 ] In these circumstances, the Defendant’s Motion is granted and the Plaintiff’s Statement of Claim is struck out in its entirety. The Defendant does not seek costs and no costs will be awarded. ORDER IN T-120-23 THIS COURT’S ORDER is that the Plaintiff’s Statement of Claim is struck out in its entirety, there is no Order as to costs. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-120-23 STYLE OF CAUSE: DARREN BAUER v.

HIS MAJESTY THE KING IN RIGHT OF CANADA MOTION IN WRITING CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS

RULES REASONS AND ORDER: HENEGHAN J. DATED: NOVEMBER 24, 2023 WRITTEN REPRESENTATION BY : Darren Bauer FOR THE PLAINTIFF (ON HIS OWN BEHALF) Benjamin Bertram For The DEFENDANT SOLICITOR OF RECORD : Attorney General of Canada Vancouver, British Columbia For The DEFENDANT