Date: 20020702
Docket: T-70-02
Neutral citation: 2002 FCT 721
BETWEEN:
GARY SAUVE
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
INTRODUCTION
[1] Pursuant to paragraph 221(1)(f) of the Federal Court Rules, 1998, (the "Rules"), the defendant, Her Majesty the Queen (the "Federal Crown"), moves to strike, as an abuse of process, the plaintiff's statement of claim filed on January 14, 2002.
BACKGROUND
[2] The plaintiff's January 14, 2002 statement of claim is virtually identical, in terms of material facts giving rise to the cause of action, the cause of action itself and the relief sought, to the statement of claim he had filed on October 10, 1997, when commencing an action which was dismissed for delay under Rule 382 in the following circumstances.
[3] On May 27, 1999, Justice Muldoon issued a notice of status review requiring the plaintiff to show cause why his action should not be dismissed for delay because more than 360 days had elapsed since the filing of the statement of claim and no requisition for a pre-trial conference had been filed.
[4] On November 3, 1999, after considering submissions, Justice Dubé ordered the plaintiff to file a reply to the federal Crown's statement of defence within twenty days and also ordered he pursue the action in accordance with the Rules.
[5] On March 30, 2000, Justice Pinard issued a second notice of status review for the same reasons as Justice Muldoon had previously.
[6] On May 9, 2000, after considering the plaintiff's written submissions, Justice McKeown ordered that the action be dismissed for delay.
[7] Gary Sauve appealed Justice McKeown's decision to the Federal Court of Appeal. That Court, on October 17, 2001, dismissed the appeal with Sharlow J.A. issuing brief reasons for judgment which read:
In view of the plaintiff's unjustified failure to comply with the order of Mr. Justice Dubé issued on November 3, 1999, after the first status review, there is no basis for interfering with the discretionary decision of Mr. Justice McKeown to dismiss the action after the second status review commenced on March 30, 2000.
[8] Counsel for the federal Crown relies on three cases: the House of Lords' decision in Hunter v. Chief Constable of West Midlands et al., [1981] 3 All.E.R. 727, the Ontario Court of Appeal's decision in Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 and the Manitoba Court of Appeal's decision in Solomon v. Smith et al. (1987), 22 C.P.C. (2d) 12.
[9] Counsel for Mr. Sauvé says the plaintiff's second action is not an abuse of process if the prior lawsuit for the same cause of action is dismissed without an adjudication on the merits. He points to two decisions of this Court one by Justice Rothstein, then a member of the Trial Division, in Lifeview Emergency Services Ltd. v. Alberta Ambulance Operators Association, [1995] F.C.J. No. 1199 and Justice Blais' decision in A.B. Hassle v. Apotex, [2001] F.C.J. No. 809.
ANALYSIS
[10] Lord Diplock in Hunter, supra, spoke about abuse of process of the High Court. He said at page 729:
It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the Court has a duty (I disavow the word discretion) to exercise this salutary power. [emphasis mine]
[11] Striking out a pleading, with or without leave to amend, forms part of the Federal Court Rules, 1998, (the "Rules") as now do the Case Management Rules.
[12] Rule 221 reads:
| 221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it (a) discloses no reasonable cause of action or defence, as the case may be, (b) is immaterial or redundant, (c) is scandalous, frivolous or vexatious, (d) may prejudice or delay the fair trial of the action, (e) constitutes a departure from a previous pleading, or (f) is otherwise an abuse of the process of the Court,and may order the action be dismissed or judgment entered accordingly. Evidence 221(2) (2) No evidence shall be heard on a motion for an order under paragraph (1)(a).
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221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas : a) qu'il ne révèle aucune cause d'action ou de défense valable; b) qu'il n'est pas pertinent ou qu'il est redondant; c) qu'il est scandaleux, frivole ou vexatoire; d) qu'il risque de nuire à l'instruction équitable de l'action ou de la retarder; e) qu'il diverge d'un acte de procédure antérieur; f) qu'il constitue autrement un abus de procédure. Elle peut aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en conséquence. Preuve 221(2) (2) Aucune preuve n'est admissible dans le cadre d'une requête invoquant le motif visé à l'alinéa (1)a).
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[13] Rule 382 dealing with the powers of the Court on status review reads:
| 382. (1) A status review shall be conducted by a judge or prothonotary assigned for that purpose. Powers of Court on status review 382(2) (2) At a status review, the Court may (a) require a plaintiff, applicant or appellant to show cause why the proceeding should not be dismissed for delay and, if it is not satisfied that the proceeding should continue, dismiss the proceeding; (b) require a defendant or respondent to show cause why default judgment should not be entered and, if it is not satisfied that the proceeding should continue, grant judgment in favour of the plaintiff, applicant or appellant or order the plaintiff, applicant or appellant to proceed to prove entitlement to the judgment claimed; or (c) if it is satisfied that the proceeding should continue, order that it continue as a specially managed proceeding and make an order under rule 385.
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382. (1) L'examen de l'état de l'instance est présidé par un juge ou un protonotaire affecté à cette fin. Pouvoirs de la Cour 382(2) (2) À l'examen de l'état de l'instance, la Cour peut : a) exiger que le demandeur ou l'appelant donne les raisons pour lesquelles l'instance ne doit pas être rejetée pour cause de retard et, si elle n'est pas convaincue que l'instance doit être poursuivie, rejeter celle-ci; b) exiger que le défendeur ou l'intimé donne les raisons pour lesquelles il n'y a pas lieu d'enregistrer un jugement par défaut et, si elle n'est pas convaincue que l'instance doit être poursuivie, rendre un jugement en faveur du demandeur ou de l'appelant, ou ordonner au demandeur ou à l'appelant de démontrer qu'il a droit au jugement demandé; c) si elle est convaincue que l'instance doit être poursuivie, ordonner qu'elle le soit à titre d'instance à gestion spéciale et rendre toute ordonnance prévue à la règle 385.
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[14] In Canam Enterprises Inc., supra, Justice Finlayson, for the majority, said this about abuse of process at paragraph 31 of the report:
[31] However, we are not limited in this case to the application of issue estoppel. The court can still utilize the broader doctrine of abuse of process. Abuse of process is a discretionary principle that is not limited by any set number of categories. It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy... . [emphasis mine]
[15] In that same case, Goudge J.A. in dissent, framed the concept of abuse of process in these words at paragraphs 55 and 56 of the report:
[55] The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel... .
[56] One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined... . [emphasis mine]
[16] In Lifeview Emergency Services, supra, the plaintiff's claim was struck against one of the defendants based on a provision in the Alberta Rules which required material steps to be undertaken in an action. In other words, there was a dismissal for want of prosecution. The plaintiff later discontinued its action against other defendants but commenced an action in the Federal Court essentially raising the same issues as before the Alberta Court.
[17] Justice Rothstein wrote at paragraph 13 of the reported case:
[13] As to whether it is an abuse of the process to discontinue in one court and commence action in another having concurrent jurisdiction, I do not think that there is any general rule of law to this effect. Of course, in particular cases, discontinuing and commencing afresh may be found to be abusive whether it be in the same or a different court. But such a finding would be based on the facts of the case. Further, it may be that in the case of particular statutory schemes or particular schemes of the rules of court, a second action in a court of concurrent jurisdiction will be precluded if a party has first elected to proceed in one court. [emphasis mine]
[18] In Babavic v. Babowech, [1993] B.C.J. No. 1802, Justice Baker stated the principle of abuse of process is somewhat amorphous and the discretion afforded courts to dismiss actions on the ground of abuse of process extends to any circumstance in which the court process is used for an improper purpose. Justice Baker added the categories of abuse of process are open.
[19] As I see it, the case law has established the following parameters surrounding the doctrine of abuse of process:
(1) it is a flexible doctrine, not limited to any set number of categories;
(2) its purpose is a public policy purpose used to bar proceedings that are inconsistent with that purpose;
(3) its application depends on the circumstances and is fact and context driven;
(4) its aim is to protect litigants from abusive, vexatious or frivolous proceedings or otherwise prevent a miscarriage of justice;
(5) a particular scheme of the rules of court may provide a special setting for its application.
[20] Applying those principles in the particular circumstances of the case before me, I agree with counsel for the respondent that, notwithstanding the plaintiff's claim has not been adjudicated on the merits, his refiling of his statement of claim after its dismissal under the case management rules constitutes an abuse of process. In my view, he had every reasonable opportunity to advance his case to an adjudication on its merits, was given an opportunity to do so by order of Justice Dubé of this Court, but violated that order and so the dismissal of his first action.
[21] In upholding the dismissal of the plaintiff's first action, Justice Sharlow focussed on the fact he had unjustifiably failed to comply with Justice Dubé's case management order. That order, it will be recalled, gave the plaintiff an opportunity to pursue his action by filing a reply and proceeding in accordance with the Rules.
[22] I agree with counsel for the respondent, in the circumstances of this particular case, to allow the plaintiff to proceed with a second action which is simply a mirror of his first action would make a mockery of the Case Management Rules.
[23] Case management judges make a multitude of orders for the purpose of ensuring the orderly progress of an action. To allow a plaintiff to disregard such orders leaving a plaintiff at liberty to simply refile a new mirror action would be contrary to the very purposes of those Rules.
[24] The Ontario Court of Appeal in Nitsopoulos v. Marriott Corp. Canada, [2000] O.J. No. 3953, upheld as an abuse of process the dismissal of a refiled action which had been struck out on the grounds the plaintiff had not complied with case management orders.
[25] I originally invited submissions with respect to the Ontario Case Management Process and cases decided under that process which might be of benefit.
[26] On reflection, as I see it, in this case, nothing turns on any differences between the two systems.
[27] For all of these reasons, the plaintiff's statement of claim in court file T-70-02 is struck out in its entirety with costs and without leave to amend.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JULY 2, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-70-02
STYLE OF CAUSE: Gary Sauve v. Her Majesty the Queen
PLACE OF HEARING: Ottawa
DATE OF HEARING: February 28, 2002
REASONS FOR ORDER OF: THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: July 2, 2002.
APPEARANCES:
Bruce Sevigny FOR PLAINTIFF
Anne Turley FOR DEFENDANT
SOLICITORS OF RECORD:
D. Bruce Sevigny & John R.S. Westdal
Sevigny Law Office FOR PLAINTIFF
Ottawa, Ontario
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR DEFENDANT