Federal Court Decisions

     T-1990-96

Between:

     SIGMUND STEINER,

     Plaintiff,

     - and -

     THE QUEEN, ELIZABETH THE SECOND, BY THE

     GRACE OF GOD, OF THE UNITED KINGDOM,

     CANADA AND HER OTHER REALMS AND

     TERRITORIES, QUEEN, HEAD OF THE

     COMMONWEALTH, DEFENDER OF THE FAITH,

     Defendant.

     REASONS FOR ORDER

JOHN A. HARGRAVE

PROTHONOTARY

     The Defendant applied, by motion in writing, to strike out the Statement of Claim. The Plaintiff filed submissions in opposition and subsequently took the opportunity to speak to his position at an oral hearing on October 21, 1996. However, before turning to the motion, some background information is required in order to understand this proceeding.

BACKGROUND

     This action is an offshoot of an earlier action, T-1448-96, in which Mr. Steiner, a former serviceman, claims against the Crown and various entities, including a Military Pension Board. He appears to seek, in the earlier action, among other things, damages arising out of his military service, including by reason of a failure of the military to properly diagnose or advise him of a congenital disability, the tasks that he was put to by the military and his treatment when he applied for a pension.

     Bearing more specifically, on this present action during a motion in the earlier action, Mr. Steiner, who acts for himself, made an uncalled for and dangerous remark, which was decidedly out of order. I dismissed the motion forthwith. Subsequently, according to Mr. Steiner's Statement of Claim in this action, Crown counsel who had appeared on the summarily dismissed motion (but who is no longer involved with this litigation) received a facsimile which she took to be a threat. As a result, police attended at Mr. Steiner's home to question him and his wife. This last event lead to the present action.

     The Statement of Claim which the Crown desires to strike out, under Rule 419(1)(a) as disclosing no reasonable cause of action or under Rule 419(1)(c), as scandalous, frivolous and vexatious, consists of four paragraphs as follows:

1.      That the Crown set the police to investigate me because she thought that I was the person that faxed her a threat, [sic] The police did not read it as a threat but they came to my home and questioned me and my wife.

2.      That because the Crown has acted in a cowardly and paranoid manner I do not believe that I can trust her or she herself. She is in contact with criminal types all the time and because of her paranonia [sic] she can cause anyone of them to act on her behalf of her position and the power she holds over them.

4.      [sic] I believe that this is the only way that I can make my position known so I can attempt to protect my home and family from any harm or damage.

5.      [sic] I must ask the Court to award me danages [sic] to the amount of $500.000.00 [sic] I ask this sum because of the mental anguish and fear of harm from this Crown Attorneys [sic] actions and holding the Director Jim Bissel directly responsible for allowing his staff to lose controll [sic] to badly.

ANALYSIS

Striking Out: Some General Principles

     While Mr. Steiner's claim is in some respects novel, that is not a justification for striking it out: see for example Gilbert Surgical Supply Co. v. F.W. Horner Ltd. (1960), 34 C.P.R. 17 at 21, a decision of the Ontario Court of Appeal. For the purposes of the present motion to strike out for want of a cause of action and for the purposes of the motion only, I must take the facts set out in the Statement of Claim as true.

     The Defendant's motion to strike out the Statement of Claim is not supported by any affidavit material, but rather relies upon the material contained in the Statement of Claim itself. I must give the Statement of Claim a thorough and generous reading in order to accommodate inadequacies which may have been the result of drafting deficiencies: see for example Operation Dismantle Inc. v. Canada, ]1985] 1 S.C.R. 441 at 451.

     As I say, in determining whether the Statement of Claim lacks a cause of action, I am to take the facts pleaded as proven and then decide whether the action stands some chance of success. Indeed, a statement of claim should be struck out only if it is plain and obvious that the claim discloses no reasonable cause of action: see for example Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.

     I now turn to the second ground on which the Defendant seeks to have the action struck out, that is Rule 419(1)(c), that it is a scandalous, frivolous or vexatious action. Generally such an action is one in which the claimant presents no rational argument, based on evidence or law, to support the claim and indeed, it is an action without reasonable cause which will not lead to a practical result.

     The test for striking out an action, alleged to be scandalous, frivolous or vexatious, is at least as stringent as the test for striking out a proceeding for want of a cause of action: see for example Waterside Ocean Navigation Co. v. International Navigation Ltd., [1977] 2 F.C. 257 at 259. The approach I should take is one set out by Mr. Justice Pratte, as he then was, in Creaghan Estate v. Canada, [1972] F.C. 732 at 736:

(3)      Finally, in my view, a statement of claim should not be ordered to be struck out on the ground that it is vexatious, frivolous or an abuse of the process of the Court, for the sole reason that in the opinion of the presiding judge, plaintiff's action should be dismissed. In my opinion, a presiding judge should not make such an order unless it be obvious that the plaintiff's action is so clearly futile that hit has not the slightest chance of succeeding, whoever the judge may be before whom the case could be tried. It is only in such a situation that the plaintiff should be deprived of the opportunity of having "his day in Court".

     An action that is scandalous, frivolous or vexatious may be struck out as an abuse of process of the Court, for the Court has the jurisdiction to protect itself from the abuse of its process.

Reasonable Cause of Action

     Mr. Steiner's submissions and material in opposition to the Crown's motion to strike out are not particularly relevant in that they and his affidavit material on file relate largely to his earlier action. Therefore, in assessing whether the Statement of Claim contains a cause of action, I have not rejected it out of hand, as a novel claim, unsupported by any submissions, but have considered whether the claim might be supported by one or more recognized areas of tort.

     Mr. Steiner seeks $500,000.00 in damages ". . . because of the mental anguish and fear of harm from this Crown Attorneys [sic] actions . . . ". Tort law has in modern times recognized a cause of action in acts or statements giving rise to emotional distress. However, such must be calculated or intended to cause harm or must be the result of reckless conduct. Mr. Steiner has not pleaded these elements. Furthermore, the law of tort recognizes liability only where the defendant's conduct exceeds the bounds usually tolerated by society or it is calculated to cause or does cause serious damage. Fleming on The Law of Torts, Carswell 1992, refers to two controlling devices designed to discourage spurious claims. He points out that the Courts have postulated a high degree of robustness in the average citizen's reactions to the visitudes of life (p. 33). He then goes on to say:

A second safeguard against extravagant claims is that the plaintiff's emotional distress must have been accompanied by objective and substantially harmful physical or psychopathological consequences, such as actual illness. Mere anguish or fright will not do. This means, in effect, that our courts, while at last admitting that injury to mental health is capable of causing recognisable physical injury, are not yet prepared to protect emotional tranquility as such, except in the anomalous case of assault.

p. 34 [emphasis added]

The author makes it very clear that anguish or fright do not qualify a plaintiff for damages for emotional distress. Yet that is exactly what Mr. Steiner claims.

     The Canadian courts have generally been consistent, resisting emotional distress claims based on pure nervous shock, or fear, without visible and provable illness: see for example Radovskis v. Tomn (1957), 21 W.W.R. 658, a decision of the Manitoba Court of Queen's Bench, Guay v. Sun Publishing Company Ltd., [1953] 2 S.C.R. 216 at 238 and Rahemtulla v. Fanfed Credit Union (1984), 51 B.C.L.R. 200, a decision of Madame Justice McLaughlin, as she then was, at p. 216. I have concluded that Mr. Steiner's claim does not set out a cause of action within the framework of emotional distress.

     I have also considered whether what occurred might in any way be a form of malicious prosecution. However, as the Supreme Court of Canada pointed out in Nelles v. Ontario, [1989] 2 S.C.R. 170 at 204, there are four necessary element in an action for malicious prosecution:

A.      The proceedings must have been initiated by the defendant.

B.      The proceedings must have terminated in favour of the plaintiff.

C.      The plaintiff must show that the proceedings were instituted without reasonable cause, and

D.      The defendant was actuated by malice.

In the present instance, I do not know the nature of the facsimile received by Crown counsel, which she took to be a threat, however, given the nature of the statement Mr. Steiner made in the courtroom, I would find it completely reasonable that Crown counsel report the matter to the police. Mr. Steiner's cause of action certainly does not come within the ambit of malicious prosecution.

     I have also considered whether there has been some form of an assault, for if one were to give a very broad reading to paragraph 2 of the Statement of Claim, there might be some suggestion of this. However, the Statement of Claim stops short of saying that there has either been a threat to use unlawful force or that the Crown has intentionally created apprehension of eminent harmful or offensive contact, which are elements required for the tort of assault. However, I also believe that the Statement of Claim and particularly paragraph 2 may be characterized as scandalous, frivolous or vexatious, to which topic we now turn.

Scandalous, Frivolous and Vexatious Proceedings

     A scandalous pleading includes one which improperly casts a derogatory light on someone, with respect to their moral character. A claim is a frivolous one where it is of little weight or importance or for which there is no rational argument based upon the evidence or law in support of the claim. A vexatious proceeding is one that is begun maliciously or without a probable cause, or one which will not lead to any practical result.

     Paragraph 2 of the Statement of Claim is certainly scandalous in that, without any grounds, it impugns the moral character of the Crown counsel who was initially involved.

     The pleading as a whole is insufficient on its face. It does not present a rational argument, either on evidence or on the law, in support of the claim, but merely complains of a police investigation, which I have pointed out was not unreasonable, given the circumstances, and goes on to cast unreasonable aspersions on Crown counsel. As such this claim is frivolous.

     I have already determined that this proceeding is without a cause of action: as such it will not lead to a practical result and so is vexatious.

---

CONCLUSION

     The Statement of Claim is struck out as being both without a reasonable cause of action and as being scandalous, frivolous and vexatious.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

October 21, 1996

Vancouver, British Columbia