A-245-7f
The Area Selection Board of the Atlantic Region
of the Canadian Penitentiary Service, The Com
missioner of Penitentiaries and The Assistant
Director (Security) of Springhill Institution
(Appellants)
v.
Roger Marcotte, John Turner and Jack Whalen
(Respondents)
Court of Appeal, Jackett C.J., Urie and Ryan
JJ.—Ottawa, July 22, 1976.
Crown—Practice—Grounds for striking out statement oj
claim—Respondents' claim simple declaratory judgment oj
wrongful transfer to maximum security institution Authority
for transfer in s. 13(3) of Penitentiary Act No need to
consider s. 28(3) of Federal Court Act—Penitentiary Act,
R.S.C. 1970, c. P-6, s. 13(3)—Federal Court Act, s. 28(3).
Appeal from dismissal by Trial Division of application that
statement of claim be struck out on the ground inter alia that it
disclosed no reasonable cause of action. (Respondents consent
ed to amendment of memorandum of appeal stating that Trial
Division was deprived of jurisdiction by section 28(3) of the
Federal Court Act.) Respondents claim wrongful transfer to
maximum security institution in that they were not informed of
or given an opportunity to answer allegations made against
them, that they unsuccessfully resorted to grievance procedure
under the Penitentiary Act, that they had subsequently been
absolved of guilt in connection with the facts alleged against
them and that they were adversely affected by the transfers.
Respondents seek a declaration that they should have been
notified of the decision to transfer them, with reasons, that they
should have been given an opportunity to reply and to cross-
examine adverse witnesses and that in the absence of compli
ance with such requirements the decision to transfer them was
not lawful.
Held, the appeal is allowed and the statement of claim is
struck out. The appeal is not governed by the decision in The
Queen v. Wilfrid Nadeau Inc. but by The Queen v. Douglas in
that it is quite clear that no cause of action is disclosed. The
authority for the transfers is set out in section 13(3) of the
Penitentiary Act. The relief claimed is only for a declaration
that the respondents should have been given notice of their
transfers and an opportunity to reply. There is no allegation
that the decisions to transfer were an abuse of the powers
conferred by the Penitentiary Act. The decision of this Court in
Martineau v. Matsqui Institution Inmate Disciplinary Board
bars the granting of the relief sought. In the circumstances it is
not necessary to consider section 28(3) of the Federal Court
Act.
The Queen v. Wilfrid Nadeau Inc. [1973] F.C. 1045,
distinguished. The Queen v. Douglas [1976] 2 F.C. 673
and Martineau v. Matsqui Institution Inmate Disciplinary
Board [1976] 2 F.C. 198, applied.
APPEAL.
COUNSEL:
George Ainslie, Q.C., and Paul Malette for
appellants.
Michael Paré for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
appellants.
Michael Paré, Sackville, for respondents.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal from an order
of the Trial Division dismissing with costs an
application that the statement of claim in the Trial
Division action be struck out on the ground inter
alia that it disclosed no reasonable cause of
action.'
By the statement of claim it is alleged, in effect,
that the three respondents, who had been peniten
tiary inmates at Springhill Institution, a medium
security institution, were transferred to Dorchester
Penitentiary, a maximum security institution, by
virtue of warrants signed on May 30, 1975, as a
result of allegations that they were involved in the
setting of fires in the Springhill Institution; and
that they had not been informed of, or given any
opportunity to answer, such allegations. It is fur
ther alleged that the respondents unsuccessfully
resorted to grievance procedure under the Peniten
tiary Act 2 , that following the transfers, third per
sons had made admissions and statements absolv
ing the respondents from any guilt in connection
with the fires, and that the respondents have been,
in fact, "adversely affected" by the transfers in
ways that are particularized. The statement of
Counsel for the Deputy Attorney General of Canada
referred to two points not mentioned in the memorandum filed
on his behalf in this Court, viz:
(a) that the wrong parties had been named as defendants in
the declaratory action in which the application to strike out
was made, and
(b) that the Trial Division was deprived of jurisdiction in
that action by section 28(3) of the Federal Court Act.
As the respondents had dealt with the section 28(3) point in
their memorandum, their counsel consented to that point being
dealt with. Counsel for the Deputy Attorney General did not
press the first point in so far as this appeal is concerned.
2 R.S.C. 1970, c. P-6.
claim concludes:
22. The transfers have affected the right of each of the plain
tiffs to liberty and security of the person and his right not to be
deprived thereof except by due process of law.
The Plaintiffs claim as follows:
(a) A declaration that the decisions to transfer the plaintiffs
were of such a nature as to require the Commission, the Board
or the Assistant Director to give each of the plaintiffs a notice
of the pending decision giving an outline of the reasons to be
presented in favour of the transfer, a reasonable opportunity to
reply orally either personally or through a representative, a
reasonable opportunity to cross-examine adverse witnesses, and
a declaration that the transfers of the plaintiffs and the decision
to transfer the plaintiffs were not lawful because the above
requirements were not met.
(b) Such further relief as the Court should deem
appropriate.
The reasons for the order appealed against quote
the statement of claim and conclude:
After having considered the facts alleged in the Statement of
Claim that have to be taken as proven, heard the argument and
the memorandum of Counsel for Defendants and for Plaintiffs,
I am convinced that the Statement of Claim discloses a reason
able ground of action that can be fairly adjudicated upon only
at trial.
In my view, this appeal is not one that is gov
erned by our decision in The Queen v. Nadeau 3
but falls within the type of exception mentioned in
The Queen v. Douglas 4 in that "once the allega
tions in the statement of claim, the statute law and
an authoritative decision have been examined, it is
quite clear that no cause of action is disclosed by
the statement of claim."
The authority for the transfers in question is to
be found in section 13(3) of the Penitentiary Act,
which reads as follows:
(3) Where a person has been sentenced or committed to
penitentiary, the Commissioner or any officer directed by the
Commissioner may, by warrant under his hand, direct that the
person shall be committed or transferred to any penitentiary in
Canada, whether or not that person has been received in the
relevant penitentiary named in rules made under subsection
(2).
It is important to note that the prayer for relief
in the statement of claim asks only for a declara
tion that the decisions to transfer were of such a
nature as to require the appellants to give them "a
notice of the pending decision ..." and "a reason
3 [1973] F.C. 1045.
4 [1976] 2 F.C. 673 at pp. 674-5.
able opportunity to reply ..." and for a declara
tion that the transfers and the decision to transfer
were not lawful because such requirements were
not met. It should also be noted that there is no
allegation of any facts in the body of the statement
of claim that would support an attack on the
decisions to transfer on the ground that they were
so unfair or unjust as to be an abuse of the
administrative powers conferred by the Penitentia
ry Act. Indeed, counsel for the respondents, as I
understood him, made it clear that any allegation
of unjustness or unfairness would be based only on
the lack of pre-decision procedural steps.
In my view, this Court has taken a position in
Martineau v. Matsqui Institution Inmate Disci
plinary Boards that is inconsistent with the grant
ing of the relief sought by the statement of claim;
and, as long as that decision remains unreversed, I
am of opinion that we should proceed on the basis
that it is good law.
In the circumstances, it is not, in my view,
necessary to consider section 28(3) of the Federal
Court Act.
I am, therefore, of opinion that the appeal
should be allowed with costs if asked for, that the
order of the Trial Division should be set aside, and
that the statement of claim should be struck out.
* * *
URIE J. - concurred.
* * *
RYAN J. concurred.
5 [1976] 2 F.C. 198.
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