PAUL BURKE Plaintiff v. HER MAJESTY THE QUEEN, 2021 FC 645

Date: 20210621 Docket: T-217-20 Citation: 2021 FC 645 St. John’s, Newfoundland and Labrador, June 21, 2021 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:PAUL BURKEPlaintiffandHER MAJESTY THE QUEENDefendant ORDER AND REASONS [1] By a Statement of Claim issued on February 12, 2020, Mr. Paul Burke (the “Plaintiff”) commenced an action against Her Majesty theQueen (the “Defendant”) seeking the recovery of damages in the amount of $10,000.00, together with interest and costs.

The Plaintiffcommenced his action as a Simplified Proceeding pursuant to the Federal Courts Rules, SOR 98/106 (the “Rules”). [2] Service of the Statement of Claim upon the Defendant was effected on February 12, 2020. [3] The Plaintiff is an inmate at Mission Institution.

In his Statement of Claim consisting of 59 paragraphs, he challenges his segregationfrom the general prison population, following a lockdown on October 2, 2019. [4] The Plaintiff complains that his segregation from the general prison population is unlawful under the Corrections and ConditionalRelease Act, S.C. 1992, c. 20 (and the Corrections and Conditional Release Regulations, S.O.R./92-620 (the “Regulations”), andbreaches his rights to liberty and security as guaranteed by the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act,1982, being

Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the “Charter”). [5] The Statement of Claim sets out the Plaintiff’s allegations about the Defendant’s failure to provide him with adequate, or any,disclosure of the allegations justifying his initial and continued placement in segregation, the Defendant’s failure to meet statutoryrequirements pursuant to the CCRA in placing him in administrative segregation, and the alleged breaches of his rights under the Charter. [6] The Plaintiff seeks recovery of general damages in the amount of $10,000.00, together with pre-judgment interest and post-judgmentinterest and the costs of his action. [7] By a Notice of Motion dated March 12, 2020, the Defendant moved to strike the Plaintiff’s Statement of Claim.

The Defendantsought adjudication of her Motion without personal appearance, that is pursuant to Rule 369 of the Rules. [8] According to the affidavit of service of Natasha Fitter sworn on March 12, 2020, on behalf of the Defendant, the Plaintiff was servedwith the Notice of Motion on March 12, 2020.

By letter dated March 23, 2020, the Plaintiff requested an extension of six months withinwhich to respond to the Defendant’s Notice of Motion. [9] By an Order of the Court, issued on April 8, 2020, the Plaintiff was granted an extension of thirty days after the lifting of theSuspension Period imposed after the commencement of the Covid-19 pandemic.

The Suspension Period was lifted for the Court’soperations in British Columbia effective June 15, 2020. [10] According to the Index of Recorded Entries for this file, the Plaintiff did not file any response to the Defendant’s Notice of Motion. [11] The Defendant submits that the Plaintiff fails to identify any tort in his Statement of Claim but rather, alleges breaches of variousstatutes, regulations and policies. [12] The Defendant also argues that the Plaintiff fails to plead material facts in support of any alleged breach of his Charter rights. [13] The Defendant also submits that the allegations raised are more appropriately the subject of an application for judicial review.

Shenotes that the Plaintiff was aware of the lockdown decision in October 2019 and that the time for seeking judicial review of that decisionhas expired. [14] I agree with the submissions of the Defendant that the Statement of Claim discloses no reasonable cause of action. [15] In a motion to strike on the grounds that the Statement of Claim discloses no reasonable cause of action, pursuant to Rule 221(1)(a)of the Rules, no evidence can be submitted; see Rule 221(2). The Court is to accept that the allegations that are capable of being proven,are true; see Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959.

That principle does not apply to allegations basedon speculation and assumptions; see Operation Dismantle Inc. v. The Queen (1985), (SCC), 18 D.L.R. (4th) 481(S.C.C.) at pages 486-487 and 490-491. [16] Insofar as the Plaintiff tries to ground an action upon breach of a statute, the allegations must fail. There is no such thing as a right ofaction for breach of legislation, as discussed by the Supreme Court of Canada in Canada v. Saskatchewan Wheat Pool, (SCC), [1983] 1 S.C.R. 205 at page 225 as follows:

For all of the above reasons I would be adverse to the recognition in Canada of a nominate tort of statutory breach.

Breach ofstatute, where it has an effect upon civil liability, should be considered in the context of the general law of negligence.Negligence and its common law duty of care have become pervasive enough to serve the purpose invoked for the existenceof the action for statutory breach. [17] In order to obtain a remedy for any alleged statutory breach, the Plaintiff must establish a breach of the common law duty of care.The criteria for advancing a claim in negligence against the Defendant was addressed in Childs et al v.

Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643 when the Supreme Court of Canada stated the Canadian view of the "“Anns”" test for determiningwhether a duty of care is made out as follows: 1) is there “a sufficiently close relationship between the parties” or “proximity” to justify imposition of a duty and, if so, 2) are there policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom it isowed or the damages to which breach may give rise. [18] A claim for Charter damages cannot be entertained in the absence of adequate factual allegations.

I refer to the decisions in MacKayv. Manitoba, (SCC), [1989] 2 S.C.R. 357 and Danson v. Ontario (Attorney General) (1987), (ONCA), 60 O.R. (2d) 676 (C.A.). [19] No material facts are pleaded to support a cause of action for any breach of Charter rights. [20] I agree with the contentions of the Defendant that the "“claims”" in the Plaintiff’s Statement of Claim "“sound”" like challenges toadministrative decisions.

His claims about breaches of procedural fairness are similar to arguments made in the context of applicationsfor judicial review. [21] There is no evidence that the Plaintiff filed an application for judicial review within the time limited for such a proceeding.Subsection 18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, provides as follows: Time limitation" " "Délai de présentation " 18.1

(2) An application forjudicial review in respect of adecision or an order of a federalboard, commission or othertribunal shall be made within 30days after the time the decisionor order was first communicatedby the federal board, commissionor other tribunal to the office ofthe Deputy Attorney General ofCanada or to the party directlyaffected by it, or within anyfurther time that a judge of theFederal Court may fix or allowbefore or after the end of those30 days." " 18.1

(2) Les demandes decontrôle judiciaire sont àprésenter dans les trente jours quisuivent la premièrecommunication, par l’officefédéral, de sa décision ou de sonordonnance au bureau du sous-procureur général du Canada ouà la

partie concernée, ou dans ledélai supplémentaire qu’un jugede la Cour fédérale peut, avantou après l’expiration de cestrente jours, fixer ou accorder." " [22] There is no evidence that the Plaintiff sought an extension of time within which to file an application for judicial review. [23] I am satisfied that the Defendant’s objections to the Plaintiff’s Statement of Claim are well grounded. I agree that the Statement ofClaim discloses no cause of action and should be struck out, in its entirety, without leave to amend. [24] The Defendant seeks costs in the amount of $150.00, if successful upon her motion.

"[""25""] " Pursuant to the discretion afforded by Rule 400 of the Rules, that costs lie wholly within the discretion of the Court, I awardcosts to the Defendant in the amount of $75.00." " ORDER in T-217-20 THIS COURT’S ORDER is that the Motion is granted, the Statement of Claim is struck out without leave to amend, with costs to theDefendant in the amount of $75.00. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: T-217-20 STYLE OF CAUSE: PAUL BURKE v. HER MAJESTY THE QUEEN MOTION IN WRITING CONSIDERED AT ST. JOHN’S, NEWFOUNDLAND AND LABRADOR PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND REASONS: HENEGHAN J. DATED: june 21, 2021 WRITTEN REPRESENTATIONS BY : No written representations from the Plaintiff For the plaintiff (on his own behalf) Courtenay Landsiedel For The DEFENDANT SOLICITORS OF RECORD : Attorney General of Canada Vancouver, British Columbia For The DEFENDANT