Date: 20010628
Docket: T-816-01
Neutral citation: 2001 FCT 732
BETWEEN:
JOHN HOWARD YEARSLEY
Plaintiff
HER MAJESTY THE QUEEN
Defendant
[1] The Plaintiff's statement of claim, the action being commenced 14 May 2001, is a prolix pleading of 35 pages of single-spaced material. The Plaintiff seeks, among other things, a writ of mandamus to allow him the sacramental use of marijuana, together with substantial exemplary and punitive damages apparently arising out of being deprived of the use of marijuana.
[2] The statement of claim was followed, in short order, on 24 May 2001, by the Plaintiff's motion to dispense with the rules, for mandamus and for summary judgment. Rule 213(1) allows a motion by a plaintiff for summary judgment at any time after a defence has been filed: here, no defence has yet been filed, time still running.
[3] The Plaintiff then amended his statement of claim on June 20. The Crown has just now managed to catch up with the Plaintiff, bringing a motion to strike out the statement of claim for want of a reasonable cause of action; as scandalous, frivolous and vexatious, in that it presents no rational argument and does not lead to any practical result; or, that it is an abuse of process in that the Plaintiff has failed to pursue the available administrative process in that he has not applied for an exemption to allow the use of marijuana under section 56 of the Controlled Drugs and Substances Act. Here, the Plaintiff says that it would be improper for him to apply for an exemption as he does not look to use marijuana for medical purposes: this is not a complete answer for section 56 goes beyond an exemption for medical use. I will deal first with the Plaintiff's motion to dispense with the Rule 213(1) requirement that a summary judgment application must await the filing of a defence.
Consideration
Plaintiff's Motion
[4] While the Plaintiff's motion seeks mandamus by way of a summary judgment application, I will deal only with the first part of the motion, that is seeking a Rule 55 dispensation from compliance with Federal Court Rules. As I understand it, the dispensation sought is to allow the Plaintiff to bring a summary judgment motion before the Defendant has filed a defence and without the necessity that the Plaintiff file a memorandum of fact and law.
[5] To come within Rule 55, a party must show special circumstances and indeed this is explicit from the rule:
In special circumstances, on motion, the Court may dispense with compliance with any of these Rules.
[6] Two applicable points arise out of the present consideration of Rule 55. First, dispensing with compliance with the Rules of the Court does not extend sufficiently to allow the Court to substitute an alternate procedure from one required by the rules: Hoffmann-LaRoche Ltd. v. Canada, (1996) 109 F.T.R. 216, affirmed (1997) 205 N.R. 331. Here, instead of a procedure involving an exchange of pleadings so each side may learn something of the other side's case, and the production of a memorandum of fact and law by the party moving for summary judgment, the former required by Rule 213 and the latter by Rules 214 and 366, the Plaintiff seeks an alternate procedure, one not even suggested by the rules, and indeed does not refer to any special circumstances by way of justification. This leads to the second point.
[7] Second, as I pointed out in Chow v. Canada, (1999) 161 F.T.R. 156 at 158, it is implicit in considering the special circumstances referred to in Rule 55 that, on the one hand, justice be done and, on the other hand, there be no prejudice. Were the Defendant to be forced to deal with a summary judgment application before a defence has been filed, and without the benefit of a memorandum of fact and law from the Plaintiff, that would work not only an injustice, but also be prejudicial.
[8] The Plaintiff's motion for a summary judgment hearing is premature. Thus, the motion is adjourned sine die, to perhaps be resurrected by the Plaintiff should my order striking out the action, the reasoning for that order to which I now turn, be overturned on any appeal.
Striking Out a Pleading
[9] The law as to striking out a pleading has been considered and summarized in many cases, for example, recently in British Columbia Native Women's Society v. The Queen, unreported 12 June 2001 reasons in file T-2175-99. I will touch only on sufficient law so that Mr. Yearsley, a lay litigant, may understand the process.
[10] In considering whether a pleading ought to be struck out, I must read it in context with a generous eye and only strike it out if it is plain and obvious that it must fail at trial:
Equally elementary is the principle that on a motion to strike, such as this one, the Court must have regard to the whole of the impugned pleading, must read that pleading in context and with what I may call a generous eye and should only strike it if is plain and obvious that the pleading must fail at trial. (Martel v. Samson Band, an unreported 17 March 1999 decision of Mr. Justice Hugessen in action T-2391-88)
[11] The party moving to strike out a pleading has a heavy burden, that of establishing that it is plain, obvious, and beyond reasonable doubt that the claim cannot succeed. This test is set out in many cases including Hunt v. Carey Canada Inc. [1990] 2 S.C.R 959 at 979, Operation Dismantle Inc. v. The Queen [1985] 1 S.C.R. 441 at 475 and following, and AGC v. Inuit Tapirisat of Canada [1980] 2 S.C.R. 735 at 740.
[12] Where, as in the present instance, the statement of claim is said to be scandalous, frivolous or vexatious, relying on Rule 221(1)(c), the test for striking out is at least as stringent, or perhaps even more stringent: see for example Waterside Ocean Navigation Co. v. International Navigation Ltd. [1977] 2 F.C. 257 at 259, a decision of Associate Chief Justice Thurlow. In the case of abuse of process, the test to strike out a statement of claimunder Rule 221(1)(f) is as stringent as the test under Rule 221(1)(a) dealing with disclosure of reasonable cause of action. Indeed, the test may be more stringent: see for example Micromar International Inc. v. Micro Furnace Ltd., (1989) 23 C.P.R. (3d) 216.
[13] In the present instance, I am not certain that the action is scandalous for, while the Plaintiff casts aspersions upon the Crown and upon lawyers, those entities have broad shoulders and, in any event, I am not certain that those comments cast a derogatory light on the moral character of such persons: see for example Steiner v. Canada, (1997) 122 F.T.R. 187 at 191. Here, it is unlikely that the amended statement of claim pleads anything unbecoming to the dignity of anyone. Thus, I have considered the amended statement only from the point of view of being vexatious or frivolous, lacking a reasonable cause of action, and as an abuse.
[14] A frivolous and vexatious action includes one which will not lead to a practical result. The terms frivolous and vexatious define a claim which obviously cannot be sustained: Attorney-General of the Duchy of Lancaster v. London & North Western Railway Co. [1892] 3 Ch. 274 (C.A.) at page 277. An abusive action is one which misuses or perverts the Court's procedure. It is a proceeding which can lead to no possible good, one in which defendants are dragged through long and expensive litigation for no possible benefit: see for example Willis v. Earl Beauchamp (1886) 11 P.D. 59 (C.A.) at page 63. In a sense, there is an intertwined relationship for a frivolous or vexatious pleading includes one which is an abuse of process: Ashmore v. British Coal Corporation [1990] 2 Q.B. 338 (C.A.) at page 347.
[15] Where a pleading is drafted in such a way that a court will not be able to regulate a proceeding, a court may strike out the pleading as an abuse of process of the court, for the court has the jurisdiction to protect itself from such an abuse. Where pleadings are vague, or confusing, or contain many different allegations, so that it would be impossible for a court to regulate a trial of the matter, that is an abuse of the system which will lead to a statement of claim being struck out: here, I will refer to an on-point passage from Mountain Prison (Inmates) v. Canada, (1998) 146 F.T.R. 265 at 267:
The statement of claim also suffers from a second fatal defect. It is at first reading confusing. I have again read through the statement of claim with a view to giving the Plaintiff the benefit of any doubt. The statement of claim contains so many different allegations, without any specifics and so many different types of relief, many of which are difficult to connect to the statement of claim, that it would be near impossible for a Court to regulate the trial of the matter or to transmute the allegations into remedies. As such it is an abuse of the system. The statement of claim is therefore struck out.
[16] It is important that the nature of a pleading be kept in mind. A pleading must contain a precise statement of facts: see for example Evans v. The Queen, (1986) 4 F.T.R. 247, affirmed (1998) 93 N.R. 252. This is reflected in Rule 174 requiring that a pleading contain a concise statement of the material facts. I would also note the two principal functions of pleadings: first to define clearly the issues between litigants, and second, to give fair notice of the case to be met: see for example Weatherall v. Canada [1989] 1 F.C. 18 at 29 (F.C.A.).
[17] In the present instance, the Defendant asks that the statement of claim be struck out without leave to amend. The test in having a pleading struck out without leave to amend is that there be not a scintilla of a legitimate cause of action, this being the view of Associate Chief Justice Jerome in McMillan v. Canada, (1996) 108 F.T.R. 32 at 39.
Striking Out the Present Statement of Claim
[18] The 35-page single spaced statement of claim, as it stands, is unmanageable. It contains much irrelevant material, law, including conclusions of law which have no place in a statement of claim, argumentative paragraphs and many bare assertions of conclusions. The statement of claim not only fails to set out a precise statement of material fact, but also neither clarifies the issues nor gives fair notice of the case to be met. As such, it is a virtually impossible proceeding both from the point of view of the Defendant to plead to, and from the point of view of the Court to control. As such, it is vexatious and abusive and ought to be struck out.
[19] That I have determined the statement of claim to be vexatious and an abuse of process does not necessarily end the matter, for such a statement of claim may be made presentable by editing and amendment. However, the statement of claim has a more basic and fundamental flaw.
[20] The statement of claim is lengthy, prolix and meandering. However, leaving this characterization aside, I have given the statement of claim a thorough and generous reading. I fail to find a reasonable cause of action, even taking such material facts as might seem to have bearing on issues as if proven. I have come to the conclusion that there is no reasonable cause of action on the basis that the Plaintiff ought to first have exhausted his administrative remedies, specifically an application to the Minister of National Health and Welfare under section 56 of the Controlled Drugs and Substances Act, chapter 19 of the Statutes of Canada, 1996, which provides that the Minister may provide an exemption to allow the use of a banned substance for medical purposes, for scientific purposes, and where it is otherwise in the public interest. Here, the Plaintiff submits that he is unwilling to make the application for his use is not a medical use. Yet, that leaves the public interest option open. Public interest is rather a difficult and elastic concept involving many considerations, and particularly community values. In Collins v. The Queen [1987] 1 S.C.R. 265, Mr. Justice Lamer, as he then was, set out as one of the criteria to take into consideration when dealing with public interest, that there be a consideration of community values and, particularly, long-term community values:
It serves as a reminder to each individual judge that his discretion is grounded in community values; and, in particular, long term community values. (page 282-283)
[21] Various portions of the Plaintiff"s amended statement of claim seem to deal with the realm of community values and the use and decriminalization of marijuana, as touched upon in various opinion polls. Freedom of religion, again a topic in the statement of claim, is a matter of public interest. The Plaintiff deals with marijuana in the context of the Bill of Rights and in the Charter of Rights, again matters which may be in the public interest. This leads to the possibility of an administrative remedy. The question then becomes whether the Plaintiff is foreclosed from a remedy by way of the statement of claim and litigation in the court by an adequate alternative remedy, that set out in section 56 of the Controlled Drugs and Substances Act.
[22] To make the determination as to whether there is an adequate alternative remedy foreclosing litigation, the courts have looked at a number of factors, including the procedure, who makes the decisions, the powers of the decision-maker, the manner in which the power of making the decision might be exercised, previous findings, expeditiousness and cost: see for example Harelkin v. University of Regina [1979] 2 S.C.R. 561 at 588.
[23] By way of example of the application of Harelkin, one may look to the Federal Court of Appeal decision in Anderson v. Canada, (1997) 141 D.L.R. (4th) 54. There, the applicant, Petty Officer Anderson, took his grievance only through the first step of the military grievance procedure. Petty Officer Anderson then commenced Federal Court judicial review proceedings. The trial judge denied a motion to strike out a proceeding. However, the Court of Appeal was of a different view, referring to Harelkin and noting that:
Judicial review will not be granted if there is an adequate alternative remedy that has not been exhausted. (page 57)
The Federal Court of Appeal thus held that a grievance procedure, which in fact afforded an adequate alternative remedy, barred litigation.
[24] In the present instance, the Crown has merely referred, in the written submissions in support of the motion to strike out the statement of claim, to the principle in Harelkin without any analysis of the present case in the framework of factors set out at page 588 of Harelkin. The Plaintiff, in response to the Crown's principal argument based on Harelkin, merely says that the remedy provided in section 56 of the Controlled Drugs and Substances Act, that of a ministerial exemption, does not apply because he does not look upon marijuana as a medication, and further, that it is up to this Court to require legislators to live up to their domestic and international obligations in the interests of freedom of religion and equal treatment of citizens. None of this is helpful. I am left to my own devices to decide whether or not the remedy is adequate.
[25] The record, and here I include the statement of claim and the Plaintiff's material in support of his motion, make it clear that the federal government has at least an "Interim Guidance Document" and an application form pertinent to an application for an exemption under section 56 of the Controlled Drugs and Substances Act. This appears to be a simple, cheap, speedy and reasonable administrative remedy as opposed to the present, overly complex, expensive and time-consuming Federal Court action. Further, should the Plaintiff be unhappy as to the outcome of such an administrative application, he may then apply for judicial review of that decision. All of this is a good indication that the Plaintiff has a perfectly adequate alternative remedy, a remedy which, if the resulting decision is unsatisfactory to the Plaintiff, may then be reviewed in a summary manner by the court.
Conclusion
[26] I intend to follow the Court of Appeal's view in Anderson that, if there is an adequate alternative remedy, the court will not litigate a matter until that remedy has been exhausted.
[27] The present action is struck out. While it is clearly vexatious and abusive by reason of the way in which it is pleaded, more important, it discloses no reasonable cause of action. Indeed, the Plaintiff abuses the procedure of the court by bringing such an action in the face of an administrative remedy. This cannot be remedied by any amendment. If the Plaintiff does have a judicial remedy, it will only be after he has exhausted his perfectly adequate alternative administrative remedy.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, B.C.
June 28, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-816-01
STYLE OF CAUSE:JOHN HOWARD YEARSLEY
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER: MR. JOHN A. HARGRAVE, Prothonotary
DATED: June 28, 2001
WRITTEN SUBMISSIONS
John Howard Yearsley ON HIS OWN BEHALF
Shirley Park FOR DEFENDANT
SOLICITORS OF RECORD:
John Howard Yearsley ON HIS OWN BEHALF
Morris Rosenberg
Attorney General of Canada FOR DEFENDANT