Sweet v. Canada
A-324-98
Décary J.A.
4/10/99
12 pp.
Appeal from Trial Division decision granting motion to strike appellant's statement of claim in action seeking to end practice whereby inmates serving life sentences subject to involuntary "double-bunking"-Appeal allowed-Court not convinced motion to strike on ground no reasonable cause of action proper vehicle in cases where issue whether party should have proceeded by way of judicial review or by way of action-Appropriateness of procedure not relating to whether procedure, if proper, disclosing reasonable cause of action-Intent of Rules precisely to avoid striking out pleadings that should have originated in another form-Once ascertained that given proceeding judicial review or action, duty of Court to determine applicable category and to allow proceeding to continue in that way-Means must be found by counsel and Court to address issue intelligently and with sense of practicality-New Federal Court Rules, 1998 giving Court and counsel ample guidance to avoid resorting to drastic measures such as motions to strike whenever possible-For example, r. 57 ensuring that originating document shall not be set aside only on ground different originating document should have been used-No useful purpose to move to strike pleadings when, at end of day, Court will allow applicant or plaintiff to file new, and correct, proceeding-Motion to attack irregularity, under r. 58, could well prove useful, yet less drastic, means to bring about change required-In case where many different sorts of relief claimed, some requiring action and some, judicial review, proper course to determine which relief makes more sense to decide first then, to determine whether procedure taken proper one with respect to that relief and, if not, to allow party to correct it with appropriate amendments-As to argument allegations scandalous, frivolous, vexatious or redundant, where Court dealing with self-represented litigant, should resist being too easily put off by mere phrasing of allegations and arguments that do not fall within established parameters-Herein, 43 allegations acceptable, 11 totally unacceptable-Most remedies sought drafted in such confusing way as to be unmanageable or directed at damages which can only be sought by way of action-Even style of cause improper-Defects tainting whole proceeding and cannot be cured by simple amendment-Motion to strike properly granted by Motions Judge-Yet, nature of issue raised, number of acceptable paragraphs, fact respondent made sufficiently aware of main issue raised and of some of evidence appellant intending to bring forward, respect for judicial review process, and fact appellant inmate whose research and working facilities very much limited, all lead Court to conclusion proceeding worthy of continuation and appellant should be allowed to file amended proceeding in form of application for judicial review directed at Correctional Service of Canada and drafted in such way as to follow guidelines suggested herein-Federal Court Rules, 1998, SOR/98-106, rr. 57, 58.