Ricafort et al. v. Canada, (1988) 24 F.T.R. 200 (TD)

• Judge: Strayer, J.
• Court: Federal Court (Canada)
• Case Date: November 22, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 24 F.T.R. 200 (TD)

Ricafort v. Can. (1988), 24 F.T.R. 200 (TD)

MLB headnote and full text

Fernando E. Ricafort, Lydia P. Ricafort, Patricia P. Ricafort, Mabel P. Murdoch and Marie Cynthia Arons Pratt (plaintiffs) v. Her Majesty the Queen in the Right of Canada as represented by the Treasury Board and The Department of National Defence and Brigadier General Clive Milner, Colonel William Brian Vernon, Lieutenant Colonel Roger K. St. John, Major Terry A. Demeria, Major Gordon Oliver Manning, Major William S. Tait, Captain Murray L. Captain R.A. John Poirier, Donna A. and Zimbunasha Valiani (defendants)

(T-1220-88)

Indexed As: Ricafort et al. v. Canada

Federal Court of Canada

Trial Division

Strayer, J.

November 30, 1988.

Summary:

The plaintiffs commenced an action against the federal Crown and several Crown servants (the defendants), seeking damages in tort and contract resulting from dismissals, and one plaintiff sought damages for wrongful discrimination. The defendants applied to strike out portions of the statement of claim.

The Federal Court of Canada, Trial Division, allowed the application and ruled on which portions of the pleading were to be struck.

Practice - Topic 2210

Pleadings - Striking out - Time for application to strike - The plaintiffs sued the federal Crown and several Crown employees - The Crown filed a statement of defence and then applied to strike out portions of the plaintiffs' statement of claim - The plaintiffs argued that the court should not entertain the application to strike where the Crown filed a statement of defence - The Federal Court of Canada, Trial Division, held that the Crown could make its application to strike where the same objections to the statement of claim were made in the statement of defence, there was no delay in filing the application to strike and in part the application was based on there being a lack of jurisdiction in the court - See paragraph 2.

Practice - Topic 2230

Pleadings - Striking out - Grounds - Failure to disclose a cause of action - A Crown employee sued the federal Crown for damages for wrongful discrimination - The Federal Court of Canada, Trial Division, struck out the claim - The court held that at common law discrimination does not per se give rise to a claim for damages and the Canadian Human Rights Act was not intended to create civil liability enforceable by the courts - See paragraph 7.

Practice - Topic 2230

Pleadings - Striking out - Grounds - Failure to disclose a cause of action - A Crown employee sued the federal Crown in contract for damages for wrongful dismissal - The Federal Court of Canada, Trial Division, struck out the claim where it disclosed no reasonable cause of action - The court pointed out that absent special circumstances, remedies of a dismissed public servant lie elsewhere (i.e. the Public Service Employment Act), and not in an action for wrongful dismissal - See paragraph 6.

Practice - Topic 2241

Pleadings - Striking out - Grounds - Lack of jurisdiction - The plaintiffs commenced a tort action against the Crown and several employees (the individual defendants) - The individual defendants argued that the statement of claim should be struck as against them because the court lacked jurisdiction to deal with the claim against them - The Federal Court of Canada, Trial Division, held that the court had a statutory grant of jurisdiction respecting the individual defendants under s. 17(4)(b) of the Federal Court Act, but the claim was not based on a law of Canada within the meaning of s. 101 of the Constitution Act, 1867, therefore, the court lacked jurisdiction respecting the individual defendants - The court struck out the claim as against the individual defendants - See paragraphs 4, 5.

Cases Noticed:

Montreuil v. The Queen, [1976] 1 F.C. 528 (T.D.), refd to. [para. 2, footnote 1].

Procter & Gamble Company v. Nabisco Brands Ltd. (1985), 62 N.R. 364 (F.C.A.), refd to. [para. 2, footnote 1].

Canadian Olympic Association v. Olympic Life Publishing Ltd. (1986), 1 F.T.R. 291 (T.D.), refd to. [para. 2, footnote 1].

Oag v. Outerbridge and Howland, [1987] 2 F.C. 511; 73 N.R. 149 (C.A.), refd to. [para. 5, footnote 2].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, refd to. [para. 5, footnote 3].

T.E.G. Phillips v. The Queen, [1977] 1 F.C. 756 (T.D.), refd to. [para. 6, footnote 6].

Schecter v. Canada (1986), 8 F.T.R. 144 (T.D.), refd to. [para. 6, footnote 6].

Evans v. Canada (1986), 4 F.T.R. 247 (T.D.), refd to. [para. 6, footnote 6].

Sheldrick v. Canada, [1986] 1 F.C. 244; 1 F.T.R. 222 (T.D.), refd to. [para. 6, footnote 7].

Brennan v. Canada and Robichaud, [1987] 2 S.C.R. 84; 75 N.R. 303, refd to. [para. 7, footnote 9].

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 7, footnote 10].

Saskatchewan Wheat Pool v. Government of Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 7, footnote 11].

Murray v. Government of Canada (1983), 47 N.R. 299 (F.C.A.), refd to. [para. 7, footnote 11].

Statutes Noticed:

Canadian Human Rights Act, S.C. 197677, c. 33, generally [para. 7].

Constitution Act, 1867, sect. 101 [para. 5].

Crown Liability Act, R.S.C. 1970, c. C-38, sect. 3 [para. 5].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 17(4)(b) [para. 5].

Federal Court Rules, rule 419 [para. 2]; rule 419(1)(a) [para. 1]; rule 419(2) [para. 6].

Human Rights Act - see Canadian Human Rights Act.

Public Service Employment Act, R.S.C. 1970, c. P-32, sect. 24 [para. 6].

Counsel:

A. Webster Macdonald Sr., for the plaintiffs;

Larry M. Huculak, for the defendants.

Solicitors of Record:

A. Webster Macdonald Sr., Calgary, Alberta, for the plaintiffs;

John C. Tait, Q.C., Deputy Attorney General of Canada, for the defendants.

This application was heard in Calgary, Alberta, on November 22, 1988, before Strayer, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on November 30, 1988: