Shaw v. Canada
T-246-98
Lemieux J.
5/5/99
24 pp.
Motion for summary judgment under r. 213(2) seeking order plaintiff's statement of claim be dismissed as disclosing no genuine issue to be tried-Plaintiff eligible for full parole since September 9, 1994-Heard by National Parole Board for first time on August 23, 1996, after several requests for postponements of hearing-In March 1996, plaintiff applied to Board for full parole, day parole-On August 23, 1996, Board granted plaintiff day parole-In Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.), Tremblay-Lamer J. reviewed exhaustively case law pertaining to summary judgment-Operative test to determine whether genuine issue to be tried whether case so doubtful that not deserving consideration by trier of fact at future trial, not whether party cannot possibly succeed at trial-Court may determine questions of fact, law on motion for summary judgment if can be done on material before Court-On whole of evidence, summary judgment cannot be granted if necessary facts cannot be found or if unjust to do so-Mere existence of apparent conflict in evidence not precluding summary judgment-First issue whether action preempted by judicial review-Defendant admitting Correc tions and Conditional Release Act, s. 123(1) gave plaintiff right to be heard for full parole-On August 23, 1996, plaintiff only heard for day parole-Plaintiff's, defendant's view of all critical facts completely at odds particularly in respect of what happened at Board hearing of August 23, 1996-Defendant's material not evidencing positive decision by Board to deny plaintiff full parole hearing as required by law-Critical divergency in what happened in fact sufficient to conclude genuine issues of fact that cannot be decided in summary judgment on whole of evidence before Court-Plaintiff not seeking relief against any decision of Board in that plaintiff seeking review, challenging, attacking validity, impugning Board's decision via statement of claim-Plaintiff's statement of claim for damages flowing from allegedly illegal decision, omission-Plaintiff arguing Board obliged by statute to accord him full parole hearing, breached that obligation wilfully-Not seeking to overturn Board's decision, failure to make decision-Seeking damages from allegedly illegal act, Board's decision, omission about full day parole request-Defendant failing on first issue-Law not sterilizing plaintiff's statement of claim-Second issue immunity of Board-Whether defendant established good faith, plaintiff alleged bad faith, fault on part of Board-Burden on defence to establish actions of members of Board conducted in good faith-Defendant has not done so-Plaintiff sufficiently pleaded bad faith, negligence, fault-Spelled out elements of damages in reply to motion-Defendant failing on second issue-Motion dismissed-Federal Court Rules, 1998, SOR/98-106, r. 213(2)-Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 123(1).