A-354-90
Her Majesty the Queen, the Prime Minister of
Canada, the Rt. Hon. Brian Mulroney, the Justice
Minister of Canada, the Hon. Raymon
Hnatyshyn, the Minister of Indian Affairs and
Northern Development, the Hon. William
McKnight, the Minister of the Department of
Energy, Mines and Resources, Hon. Marcel Masse
(Appellants)
v.
John Clifford Turner (Respondent)
INDEXED AS.' TURNER V. CANADA (CA.)
Court of Appeal, Mahoney, Marceau and Linden
JJ.A.—Vancouver, June 22, 1992.
Practice — Pleadings — Motion to strike — Appeal from
trial judgment striking out substantive allegations of statement
of claim, but preserving paragraphs identifying parties, claim
ing relief and giving respondent leave to amend statement of
claim — Retroactive amendment to federal legislation alleg
edly depriving respondent of defence in another lawsuit and
leading to unfavourable settlement — Respondent alleging
Ministers "through their negligence and outright connivance"
caused enactment of legislation which abridged rights, caused
damages — Whether Trial Judge erred in not dismissing action
entirely as disclosing no reasonable cause of action — Parlia
mentary sovereignty in issue — Appeal allowed — Reference to
elements of sovereignty enunciated in Pickin v. British Rail
ways Board, [1974] A.C. 765 — Action against Crown based
on allegations Parliament induced to enact legislation by tor-
tious acts and omissions of Ministers of Crown not justiciable
— Statement of claim entirely struck out.
Constitutional law — Statement of claim alleging Parlia
ment tortiously misled to enact retroactive legislation depriv
ing plaintiff of defence in other litigation — Plaintiff says
denied fair hearing by surreptitious procedures adopted by
Parliament — Procedural fairness not requirement of legisla
tive process — Action bringing Parliamentary sovereignty into
issue — Elements of sovereignty set out in Pickin v. British
Railways Board, [1974J A.C. 765 — Statement of claim struck
out in entirety as issue not justiciable.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C., 1985, Appendix III.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44].
Yukon Quartz Mining Act, R.S.C. 1970, c. Y-4.
CASES JUDICIALLY CONSIDERED
APPLIED:
Pickin v. British Railways Board, [1974] A.C. 765 (H.L.);
Canada (Auditor General) v. Canada (Minister of Energy,
Mines and Resources), [1989] 2 S.C.R. 49; (1989), 61
D.L.R. (4th) 604; 97 N.R. 241.
REFERRED TO:
Attorney General of Canada v. Inuit Tapirisat of Canada
et at., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33
N.R. 304.
APPEAL from order [T-492-88, Collier J., order
dated 26/4/90, F.C.T.D., not yet reported] striking out
statement of claim except for those paragraphs identi
fying parties and claiming relief. Appeal allowed.
COUNSEL:
Duff Friesen, Q. C. for appellants.
APPEARANCE:
John Turner on his own behalf.
SOLICITORS:
Deputy Attorney General of Canada for appel
lants.
RESPONDENT ON HIS OWN BEHALF:
John C. Turner, Vedder Crossing, British
Columbia.
The following are the reasons for judgment of the
Court delivered orally in English by
MAHONEY J.A.: This is an appeal from a decision of
the Trial Division [T-492-88, Collier J., order dated
26/4/90, F.C.T.D., not yet reported] which struck out
the substantive allegations of the statement of claim
herein, preserving only those paragraphs identifying
the parties and claiming relief. The learned Trial
Judge refused, however, to dismiss the action as
against any of the individual defendants: the Prime
Minister and three named Ministers of the Crown,
and gave the respondent [plaintiff] leave to amend
the statement of claim. The appellants say the Trial
Judge erred in not dismissing the action entirely as
the statement of claim discloses no reasonable cause
of action and also in not dismissing it as against the
named individuals for want of jurisdiction.
The respondent conceded, correctly in our view,
that the appeal should succeed as to the individual
appellants. Accordingly, we are called upon to deal
only with whether the statement of claim discloses a
reasonable cause of action.
It is pleaded that the respondent was engaged in a
lawsuit with another party in the Yukon Supreme
Court when an amendment to the Yukon Quartz Min
ing Act [R.S.C. 1970, c. Y-4], having retroactive
effect, deprived him of his defence in the action and
led him to an unfavourable settlement. It alleges that
the Ministers "through their negligence and outright
connivance" caused the enactment of legislation
which abridged his rights and injured him and he
claims damages therefor.
The fundamental allegations iterated and reiterated
throughout the pleading are that Parliament was tor-
tiously misled to enact the retroactive amendment
and that the respondent was denied a fair hearing by
surreptitious procedures adopted by Parliament. That
procedural fairness is not required in a legislative
process is well established: Attorney General of
Canada v. Inuit Tapirisat of Canada et al., [1980] 2
S.C.R. 735.
Both the Canadian Bill of Rights [R.S.C., 1985,
Appendix III] and the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44]] are
pleaded. In our opinion, while those may undoubt
edly affect the validity and construction of legisla-
tion, they do not bear on the process of legislating.
This action is not framed on the basis that the
impugned legislation is invalid or inoperative but as a
claim for damages as a result of the tainted process
whereby it is said to have been enacted. That brings
Parliamentary sovereignty squarely into issue.
The elements of that sovereignty enunciated by
Lord Simon in Pickin v. British Railways Board,
[1974] A.C. 765 (H.L.), were cited with approval by
Dickson C.J. in Canada (Auditor General) v. Canada
(Minister of Energy, Mines and Resources), [1989] 2
S.C.R. 49 at pages 88 ff., a case, as the present one,
that did not concern the constitutionality of the legis
lation in issue.
[Firstly, this (Parliamentary sovereignty)] involves that, con
trary to what was sometimes asserted before the 18th century,
and in contradistinction to some other democratic systems, the
courts in this country have no power to declare enacted law to
be invalid. It was conceded before your Lordships (contrary to
what seems to have been accepted in the Court of Appeal) that
the courts cannot directly declare enacted law to be invalid.
That being so, it would be odd if the same thing could be done
indirectly, through frustration of the enacted law by the appli
cation of some alleged doctrine of equity.
A second concomitant of the sovereignty of Parliament is
that the Houses of Parliament enjoy certain privileges. These
are vouchsafed so that Parliament can fulfil its key functions in
our system of democratic government....
... Among the privileges of the Houses of Parliament is the
exclusive right to determine the regularity of their own internal
proceedings....
It is well known that in the past there have been dangerous
strains between the law courts and Parliament—dangerous
because each institution has its own particular role to play in
our constitution, and because collision between the two institu
tions is likely to impair their power to vouchsafe those consti
tutional rights for which citizens depend on them. So for many
years Parliament and the courts have each been astute to
respect the sphere of action and the privileges of the other—
Parliament, for example, by its sub judice rule, the courts by
taking care to exclude evidence which might amount to
infringement of parliamentary privilege ....
[Thirdly, a] further practical consideration is that if there is
evidence that Parliament may have been misled into an enact
ment, Parliament might well—indeed, would be likely to—
wish to conduct its own inquiry. It would be unthinkable that
two inquiries—one parliamentary and the other forensic—
should proceed concurrently, conceivably arriving at different
conclusions; and a parliamentary examination of parliamentary
procedures and of the actions and understandings of officers of
Parliament would seem to be clearly more satisfactory than
one conducted in a court of law—quite apart from considera
tions of Parliamentary privilege.
The second and third of those elements are pertinent
here, the first not at all since the validity of the legis
lation is not questioned.
We are all of a view that an action against Her
Majesty based on allegations that Parliament has
been induced to enact legislation by the tortious acts
and omissions of Ministers of the Crown is not justi-
ciable. The appeal will be allowed with costs, the
statement of claim entirely struck out and the action
dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.