T-1691-77
James F. McNamara (Applicant)
v.
N. Caros, Director of Matsqui Institution and Dr.
J. Mendes, Medical Officer of Matsqui Institu
tion (Respondents)
Trial Division, Mahoney J.—Vancouver, June 27;
Ottawa, July 8, 1977.
Prerogative writs — Section 18 application for mandamus
— Penitentiary Service Regulation requiring proper and
essential medical treatment — Lack of proper medical treat
ment alleged — Application to compel proper treatment —
Whether contravention of Canadian Bill of Rights — Institu
tional physician not deemed "board, commission or tribunal"
— Remedy of mandamus not available — Doctor not qualified
to practice in province where penitentiary situated —
Respondent not appropriate person against whom to seek
remedy — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
ss. 2, 18 — Penitentiary Service Regulations, SOR/62-90, s.
2.06 — Commissioner's Directive Number 207, s. 5
Canadian Bill of Rights, 1960, c. 44, s. 2(b).
APPLICATION.
COUNSEL:
J. W. Conroy for applicant.
W. B. Scarth for respondents.
SOLICITORS:
J. W. Conroy, c/o Community Legal Ser
vices, Abbotsford, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The applicant, an inmate of Mat-
squi Institution, near Abbotsford, British
Columbia, has filed an originating notice of
motion seeking
... an order of Mandamus to be directed to Messrs. Caros and
Mendes, Respondents.
(1) That the applicant, James F. McNamara has been
unlawfully deprived of, and denied, proper and "essential"
medical treatment contrary to the law, as defined in Section
2.06 of the Penitentiary Service Regulations.
(2) That the failure of the Respondents to provide this
"essential" medical treatment constitutes "cruel and unusual"
treatment and, as such, is contrary to Section 2(b) of the
Canadian Bill of Rights.
(3) That the petitioned Court forthwith issue an order of
Mandamus that would compel the Respondents to immediately
provide the Applicant with the "essential" medical treatment
he requires.
It is obvious that items (1) and (2) seek declara-
tory relief, not mandamus. It is well established
that such relief is not available in a proceeding
commenced by originating notice of motion'.
The Court's jurisdiction to issue an order of
mandamus is, by section 18 of the Federal Court
Act 2 , limited to an order against a "federal board,
commission or other tribunal" as defined by sec
tion 2 of the Act.
2. In this Act
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act
of the Parliament of Canada, ...;
The respondent Mendes, institutional physician at
Matsqui Institution, a penitentiary as described in
the Penitentiary Act 3 , is not, when acting in his
professional capacity in the treatment of its
inmates, a "federal board, commission or ...
tribunal" as defined. While I should not wish that
to be thought as exhaustive of the reasons why
mandamus is not available to compel the respond
ent Mendes to provide his patients with any par
ticular medical treatment, it is sufficient.
The one matter that, prima facie, might appro
priately be dealt with by the order sought arises
out of the fact that Dr. Mendes is not duly quali
fied to practice medicine in British Columbia. He
was on the temporary register of the College of
Physicians and Surgeons of British Columbia from
August 6, 1974 to December 31, 1976. His name
was removed from the register because of his
failure to pass the Medical Council of Canada
examinations. Dr. Mendes is duly qualified to
practice medicine in the Province of Saskatche-
wan. It was alleged in argument that Saskatche-
' Sherman & Ulster Ltd. v. Commissioner of Patents 14
C.P.R. (2d) 177.
2 R.S.C. 1970 (2nd Supp.), c. 10.
R.S.C. 1970, c. P-6.
wan is the only Canadian province in which a
medical practitioner who had not passed the Medi
cal Council of Canada examinations can be duly
qualified to practice.
By regulation duly made under authority of the
Penitentiary Act, the Governor in Council has
prescribed:
2.06. Every inmate shall be provided, in accordance with
directives, with the essential medical and dental care that he
requires 4 .
and by a directive likewise authorized, the Com
missioner of Penitentiaries has prescribed, in Com
missioner's Directive No. 207, that:
5....
a. Medical Services shall be provided by appropriate quali
fied professionals in good standing.
I find persuasive the applicant's argument that,
in the absence of competent federal law on the
subject, the standard to be applied in determining
whether or not the institutional doctor at a par
ticular penitentiary is qualified and in good stand
ing is that established by the law of the province in
which the penitentiary is located. However, having
said that, and assuming for the moment that man-
damus would issue to require compliance with
section 5(a) of Commissioner's Directive No. 207,
I do not see that an order directed to the respond
ent Caros would be effective. There is no evidence
that he appointed Dr. Mendes to his position as
Institutional Physician or could remove him from
it. In the absence of evidence to the contrary I am,
I believe, bound to assume that the employment is
entirely governed by the terms of the Public Ser
vice Employment Act 5 . I express no opinion as to
whether section 5(a) of the directive gives rise to a
right enforceable by the applicant, nor, if it does,
whether mandamus is an appropriate remedy. It is
sufficient, for this purpose, to find that the
respondent Caros is not the appropriate person
against whom to seek the remedy.
ORDER
The application is dismissed with costs.
SOR/62-90.
5 R.S.C. 1970, c. P-32.
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.