Massey v. Canada
T-807-96
Hargrave P.
10/6/97
21 pp.
Action alleging notice of hearing into alleged improper conduct by RCMP members in dealing with labour unrest at Yellowknife Giant Mine strike, lockout in 1992 defamatory-Union filing complaints alleging plaintiffs used excessive force in pointing, discharging firearms at strikers on mine property-Even though investigators concluding all that was done was reasonable in circumstances, no excessive force used, Commissioner deciding to institute hearing to inquire into complaints-Notice referring to plaintiffs "who demonstrated excessive force"-Plaintiffs exonerated at conclusion of hearing-Motion dismissed, but all references to Jean-Pierre Beaulne, Q.C. as defendant deleted-In motion to strike, test whether plain and obvious or beyond doubt, action will not succeed-Only when action certain to fail by reason of radical defect should material be struck out-Allows court to differentiate between situation in which law might evolve, progress i.e. malicious prosecution, and futile proceeding-(1) Statement of claim, paragraph 3 alleging defendant maliciously, without probable cause and in excess of legislative authority, sending out notice of hearing naming plaintiffs-Statutory breach should be considered in context of general law of negligence-Duty to make discretionary decisions in good faith, with no ulterior or improper purpose-Paragraph 3 might be read as claim in tort or as merely setting out background upon which to build case for defamation-Not plain, obvious plaintiffs not able to meet elements required to establish malicious prosecution set out in Nelles v. Ontario, [1989] 2 S.C.R. 170, at p. 193-(i) Proceedings terminated in plaintiffs' favour-(ii) May be absence of reasonable, probable cause for hearing, given investigators' reports showing no reason to pursue plaintiffs-(iii) Actions of Commission, particularly wording of notice of hearing, inferring malice, and in addition material generated by Commission itself (indicating concern about what television, movie industry might make of strike and tragic fatal explosion and desire to increase Commission's profile) may show agendas other than that of carrying purpose of RCMP Act into effect-Unable to say action doomed to failure-(2) Statement of claim, paragraph 7 alleging defamation-Defamation communication tarnishing one's good name, impairing standard in community or causing one to be pitied, even though statement such that no one believing it to be true-Question whether reasonable person, reading notice of hearing would conclude plaintiffs guilty-Many reasonable people tend to believe what they read and to act accordingly; and statement may be defamatory even if no one believing it to be true-Legislative requirement for publication of notice of hearing not giving Commission licence to make extraneous comments in notice of hearing-Notice of hearing might well be reasonably capable of defamatory meaning-Once notice of hearing issued, sent out as press release, damage done-(3) Application of test in ITO-International Terminal Operators Ltd. v. Miida Electronics et al., [1986] 1 S.C.R. 752, at p. 766 to determine Federal Court's jurisdiction over Commission Chairman-Claim against Chairman based in tort-Existence of claim not depending on federal law, legislation-Should be litigated in court having jurisdiction between individuals, not in Federal Court-Court not having jurisdiction over Jean-Pierre Beaulne, Q.C.-Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-9.