IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Standing v. British Columbia (Minister of Forests, Lands and Natural Resource Operations), 2018 BCSC 1499

Date: 20180831

Docket: S198146

Registry: New Westminster

Between:

Todd Standing

Plaintiff

And

Minister of Forests, Lands, Natural Resource Operations and Rural Development (Her Majesty the Queen in Right of the Province of British Columbia)

Defendant

Before: The Honourable Mr. Justice Ball

Reasons for Judgment

Counsel for Plaintiff: T. Hunter Counsel for Defendant: F. de Lima M. Goodwin (Articled Student) Place and Date of Hearing: New Westminster, B.C. August 14, 2018 Place and Date of Judgment: New Westminster, B.C. August 31, 2018





Introduction

[1] In this case the plaintiff seeks:

1. A Declaration that, Sasquatch is a hominoid or primate (Giganto Horridus Hominoid and/or Gigantopithecus) type of species, also known as a bigfoot, and is an indigenous mammal living within British Columbia.

2. A Declaration that the Defendant infringed the fundamental human rights of the Plaintiff as it relates to his concerns regarding Sasquatch.

3. A Declaration that the Defendant committed a dereliction of duty, in regard to recognizing and protecting the Sasquatch species, a hominoid or primate, also known as bigfoot.

[2] In response to the notice of civil claim brought by the plaintiff, the defendant has applied for an order striking out the notice of civil claim without leave to amend and dismissing the claim against the Province of British Columbia pursuant to Rule 9-5(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. That Rule provides:

(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence, as the case may be,

(b) it is unnecessary, scandalous, frivolous or vexatious,

(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or

(d) it is otherwise an abuse of the process of the court,

and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

(2) No evidence is admissible on an application under subrule (1) (a).

[3] Under Rule 9-5(1)(a), a claim will be struck as disclosing no reasonable claim “if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action”: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 [Imperial Tobacco] at para. 17.

[4] In Willow v. Chong, 2013 BCSC 1083, Fisher J. (as she then was) succinctly set out this test. She continued to say at para. 19:

[19] The rule that material facts in a notice of civil claim must be taken as true does not mean that allegations based on assumption and speculation must be taken as true. This was discussed in Operation Dismantle Inc. v The Queen, 1985 CanLII 74 (SCC), [1985] 1 SCR 441, where Dickson J. (as he then was) stated that “[n]o violence is done to the rule where allegations, incapable of proof, are not taken as proven”. In Young v Borzoni, 2007 BCCA 16, the court stated (at paras. 30-31) that great caution must be taken in relying on Operation Dismantle as a general authority that allegations in pleadings should be weighed as to their truth, but it is not fundamentally wrong to look behind allegations in some cases, and it may be appropriate to subject the allegations in the pleadings to a sceptical analysis. It was considered appropriate in Young, where the plaintiff made sweeping allegations of things like intolerance, deceit, harassment, intimidation and falsifying documents against the defendants, which the court concluded could only be viewed as speculation.

Positions of the Parties

The Position of the Defendant

[5] The defendant submits that the plaintiff’s claim in this case is based on assumptions and speculation, lacks an air of reality, and the alleged statements of fact are ultimately incapable of proof. Therefore, the defendant argues, the notice of civil claim fails to disclose a reasonable claim.

[6] The defendant further argues that declaratory relief is unavailable to the plaintiff because no legal right of the plaintiff has been infringed or violated by any action of the government. Therefore, the plaintiff has no standing to bring such a claim. In particular, the plaintiff has alleged infringement of an assortment of rights under the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter], and the International Covenant on Civil and Political Rights [ICCPR], but has not pleaded the necessary material facts, beyond bald assertions, to support those claims.

[7] Finally, the defendant argues that the plaintiff’s claim is frivolous, being without substance and groundless, and is an abuse of process.

The Position of the Plaintiff

[8] In his application response, the plaintiff states:

The facts pleaded by the Application Respondent included, that the Province knew or ought to have known of the existence of sasquatch; that knowledge gaps exist; that it is likely a species at risk, threatened species and/or endangered; that the Province has done nothing to substantiate or acknowledge the existence of sasquatch; there are no safeguards to protect the species from being killed; that Fish and Wildlife government officials do not acknowledge the existence of sasquatch; and that the Province deem [sic] sasquatch to be fictional.

[9] The plaintiff submits that his claim is reasonable, and the pleadings should not be subject to a sceptical analysis. He further submits, inter alia, that a “serious constitutional issue” has been raised, and denies that the pleadings are speculative on the strength of video evidence he has captured of sasquatch.

[10] It is the plaintiff’s position that declaratory relief is available, and he points to specific Charter rights alleged to have been infringed; he argues that the claim does not represent an abuse of process, and is not frivolous in nature.

Analysis

[11] During submissions, counsel for the plaintiff acknowledged that there was no prior precedent, of which he was aware, in this or any common law jurisdiction where a court has made the type of declaration sought by the petitioner on the existence of any species or scientific fact. Counsel also agreed that the decision to recognize the facts alleged by the plaintiff is usually a decision made by an administrative or executive office in government. This is true because the court has no investigative nor scientific research function to ascertain the truth of alleged scientific facts which are not universally accepted as true. The case of R. v. Bornyk, 2015 BCCA 28, notes:

9 Judicial notice, of course, is limited to facts that are notorious or generally beyond debate, as in the assertion the earth is not flat, or are capable of immediate and accurate demonstration from readily accessible sources of indisputable accuracy, as in the assertion that New Year's Day in 2015 fell on a Thursday: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458.

10 In this case, it is apparent from the excerpts found in the reasons for judgment and the descriptive titles of the articles that the articles uncovered by the judge are discussions on the subject of fingerprint analysis, including opinion. As articles commenting on forensic science, their contents are not matters of which the judge could take judicial notice. It is thus axiomatic that it was not open to the judge to embark on his independent investigation.

[12] While the court is clearly without jurisdiction to embark upon an independent investigation of scientific matters, the court is also without jurisdiction to order the government of British Columbia to expend funds to conduct particular scientific investigations of the flora and fauna of the Province.

[13] Regarding legal standing, the plaintiff acknowledged that a litigant seeking declaratory relief must have, as a foundation for such relief, a legal right that has been infringed: see Cameron v. Albrich, 2011 BCSC 549 at para. 56; Fraser v. Houston (1996), 66 A.C.W.S. (3d) 42 (B.C.S.C.) at para. 29. At para. 28 of the legal basis section of his application response, the plaintiff asserts that his notice of civil claim constitutes a reasonable cause of action; “he has standing, a serious constitutional issue is engaged, he has specifically pleaded infringement of political or other belief, and that the declaration(s) serve a useful purpose.”

[14] The legal rights alleged to have been infringed are derived from the Charter. In particular, the plaintiff alleges that the Government of British Columbia’s actions as pleaded are contrary to his s. 2(b), 12, and 15 Charter rights. Those sections read as follows:

2. Everyone has the following fundamental freedoms:

…

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

…

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

…

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[15] As regards s. 2(b) of the Charter, the plaintiff claims that he is “unable to fully impart information and ideas as to specific locations where sasquatch sightings occur on the basis that there are no safeguards in place to protect the species from being killed.” However, the government’s non-acknowledgement of the sasquatch does not in any way prohibit or restrict the plaintiff’s ability to express his thoughts, beliefs, and opinions regarding the sasquatch. Not revealing “specific locations where sasquatch sightings occur” is the decision of the plaintiff, and in no way infringes upon his ability to espouse his beliefs regarding sasquatch existence. On the facts pleaded, there is no indication how the Province’s action — or lack of action — restricts the plaintiff’s freedom of expression.

[16] To come within s. 12 of the Charter, the plaintiff must show that he is subjected to treatment or punishment at the hands of the state, and that such treatment or punishment is cruel or unusual: Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519 at 608-609. It is clear that the plaintiff is not being subjected by the state to any form of “punishment”. The word “treatment” is discussed in Rodriguez, where the majority finds that “treatment” may include that imposed by the state in contexts other than that of a penal or quasi-penal nature. However, the majority states at 611-612:

However, it is my view that a mere prohibition by the state on certain action, without more, cannot constitute "treatment" under s. 12. … There must be some more active state process in operation, involving an exercise of state control over the individual, in order for the state action in question, whether it be positive action, inaction or prohibition, to constitute "treatment" under s. 12. …

[17] In the case at bar, there is no overt exercise of provincial control over the plaintiff; inaction — in the sense of the Province not recognizing the existence of the sasquatch — is by no means an exertion of control over the plaintiff on the facts of this case. The plaintiff has not been prohibited by the Province from sharing his beliefs regarding the existence of the sasquatch, or from any other action. No facts have been pleaded that amount to “treatment” as described in Rodgriguez, let alone “punishment” that would outrage standards of decency. Rather, bare assertions of a violation are made without reference to any prohibition or act of control. The plaintiff, therefore, has not made out any infringement of his s. 12 Charter right.

[18] Finally, the plaintiff alleges that his s. 15 right to equality before and under the law has been infringed. It is the plaintiff’s contention is that he has been discriminated against on grounds analogous to those enumerated in s. 15(1) of the Charter, namely: “political or other belief”. He claims that the Province, in electing to ignore his concerns and evidence about sasquatch was influenced by this discriminatory analogous ground.

[19] Section 15 of the Charter requires a purposive and contextual approach to discrimination analyses: Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 at para. 6. The test to establish a breach of s. 15, derived from Law, is found in R. v. Kapp, 2008 SCC 41 at para. 17. The questions arising are as follows: (1) Does the law or state action create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

[20] On the first issue, no state action was described in material facts pleaded in the notice of claim. Rather, the Province is alleged to have not acted to substantiate or acknowledge the existence of the sasquatch. This is not treatment that differentiates the claimant from others, or those who believe in the sasquatch from those who do not. There is nothing pleaded to indicate that any response or action was required by the defendant. No duty is owed to the plaintiff to espouse any view on the existence of any creature; the defendant is responsible to the Legislature, and is there subject to oversight by the public’s elected representatives. No distinction has therefore been drawn by the Province between the plaintiff and others.

[21] The conclusion that state action has not created a distinction as against the plaintiff is sufficient to be the end of the matter. However, I further do not find “political or other beliefs” as pleaded to constitute analogous grounds of distinction on consideration of the facts of this particular case. As noted in Corbiere v. Canada (Minister of Indian and Norther Affairs), 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203 at para. 13:

13 What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 — race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making.

[22] A belief in the existence of the sasquatch is not an immutable personal characteristic. First, there is no political belief at issue here; Mr. Standing’s belief in the sasquatch’s existence is not a political matter. Second, such belief is not akin to “constructively immutable” grounds like religion. Where religion can be an element core to a person’s state of being in all aspects of life, the same cannot be said of a belief in the existence of the sasquatch.

[23] Acceding to the plaintiff’s claim would ultimately distort the purpose of s. 15 of the Charter to prevent discriminatory distinctions that impact adversely on members of groups identified in the enumerated or analogous grounds (See Kapp at para. 16).

[24] Finally, the ICCPR does not confer standalone rights, and Canada has not enacted legislation to incorporate the full ICCPR into Canadian law: Hinse v. Canada (Attorney General), 2015 SCC 35 at para. 85. While the ICCPR may inform an interpretation of the scope of the plaintiff’s Charter rights, the plaintiff must still plead facts that, if true, would demonstrate the alleged Charter infringements. He has not done so.

[25] In the result, and even assuming the facts pleaded to be true as required by Rule 9-5(2), it is plain and obvious that the pleading discloses no reasonable cause of action. The facts pleaded by the plaintiff disclose no infringement of any legal rights. Without infringement of a right, declaratory relief as sought by the plaintiff is not available; he has no legal standing to bring such a claim.

[26] Counsel for the plaintiff submitted that the raising of a serious constitutional question was sufficient to found standing for declaratory relief, citing Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 at para. 80.

[27] The paragraph counsel referred to is not taken from the majority judgment of the Court but rather is taken from Wilson J.’s minority reasons. That paragraph is not authority for the proposition submitted by counsel for the plaintiff, but rather is a recitation by Wilson J. of one of the submissions made by the unsuccessful appellants then before the Supreme Court of Canada. Wilson J. did not accept nor accede to this submission, holding that the violation of a right must be the basis for the “serious constitutional issue” and that the infringement or denial of that right must be specifically pleaded: Operation Dismantle at para. 82.

[28] Dickson J. (as he then was) for the majority agreed with Wilson J. on this point. At para. 9 he held that in seeking declaratory relief, the plaintiff must at least be able to establish a threat of violation, if not an actual violation, of rights under the Charter. The plaintiff has not done that here; the violation of a right was not specifically pleaded with necessary material facts.

[29] During submissions, counsel for the plaintiff also handed up a sheet of potential amendments which the plaintiff asked the Court to consider. After reviewing the proposed amendments with care, I am satisfied that none of them address the fundamental issues decided against the plaintiff in the foregoing reasons. No amendment of the plaintiff’s pleadings will be considered.

[30] The test laid out in Imperial Tobacco at para. 17 therefore has not been satisfied by the plaintiff. As a result, the claim of the plaintiff is hereby struck out and dismissed, without leave to amend, as the claim has no reasonable prospect of success.

Costs

[31] The defendant is entitled to its costs, payable by the plaintiff forthwith after assessment pursuant to Appendix “B” as a matter of ordinary difficulty.

“Ball J.”