Tucker v. Levy

Tucker v. Levy Court (s) Database Federal Court of Appeal Decisions Date 2002-02-12 Neutral citation 2002 FCA 61 File numbers A-695-00 Decision Content Date: 20020212 Docket: A-695-00 Neutral citation: 2002 FCA 61 CORAM: RICHARD C.J. EVANS J.A. MALONE J.A. BETWEEN: REVEREND BROTHER WALTER A. TUCKER and REVEREND BROTHER MICHAEL J. BALDASARO Appellants and JEFFREY A. LEVY Respondent Heard at Toronto, Ontario, on February 7, 2002. Judgment delivered at Ottawa, Ontario, on February 12, 2002. REASONS FOR JUDGMENT BY: RICHARD C.J. CONCURRED IN BY: EVANS J.A. MALONE J.A. Date: 20020212 Docket: A-695-00 Neutral citation: 2002 FCA 61 CORAM: RICHARD C.J. EVANS J.A. MALONE J.A. BETWEEN: REVEREND BROTHER WALTER A. TUCKER and REVEREND BROTHER MICHAEL J. BALDASARO Appellants and JEFFREY A. LEVY Respondent REASONS FOR JUDGMENT RICHARD C.J. [1] This is an appeal pursuant to section 27 of the Federal Court Act from a decision of a judge of the Trial Division decision, (2000) 191 F.T.R. 152, dismissing the appellants' appeal from the order of the Associate Senior Prothonotary striking out, without leave to amend, the action commenced by the appellants. [2] In their action, the appellants claimed damages against the respondent for malicious prosecution and persecution arising out of the conduct of the respondent, acting at all times as the agent of the Attorney General of Canada, during a bail hearing before a Justice of the Peace. [3] The bail hearing arose out of the arrest and detention of the appellants on charges of trafficking marijuana and possession of marijuana for the purpose of trafficking. [4] The Criminal Code contains a comprehensive framework for bail hearings, release and review. At the bail hearing, where the respondent acted as the agent for the Attorney General of Canada, the appellants were released by the Justice of Peace on certain conditions. These bail conditions were later reviewed and altered by a judge of the Ontario Superior Court of Justice. The charges against the appellants were pending when they commenced their action in this Court. [5] The judge of the Trial Division found that: [25] There is nothing in the Statement of Claim to show that the defendant, Mr. Levy, was responsible for the commencement of criminal proceedings against the appellants which led to the bail hearing. On the basis of the materials filed it appears to me that the bail hearing for the appellants was conducted in accordance with the process laid out in the Criminal Code of Canada, including a review of the original bail conditions. The conduct of the proceedings before the Justice of the Peace and subsequently, before the Ontario Superior Court of Justice is a matter solely within the discretion of the courts involved. [6] In exercising her discretion de novo to strike out the statement of claim, the judge asked herself the right question and applied the proper principles. [7] We have not found any reviewable error in her conclusion that there is nothing in the record to show that there is a justiciable cause of action against the respondent arising from the Statement of Claim. [8] Accordingly, I would dismiss the appeal with costs. "J. Richard" Chief Justice "I agree John M. Evans J.A." "I agree B. Malone J.A." FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-695-00 STYLE OF CAUSE: Reverend Brother Walter A. Tucker et al v. Jeffrey A. Levy PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: February 7, 2002 REASONS FOR JUDGMENT BY: Richard C.J. CONCURRED IN BY: Evans and Malone J.J.A. DATED: February 12, 2002 APPEARANCES: Mr. Robert Jaworski FOR THE RESPONDENT SOLICITORS OF RECORD: Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada Ottawa, Ontario Reverend Brother Walter Tucker ON THEIR OWN BEHALF Reverend Brother Michael Baldasaro Reverend Brother Walter Tucker ON THEIR OWN BEHALF Reverend Brother Michael Baldasaro Hamilton, Ontario