Date: 20000614
Docket: T-1839-99
Ottawa, Ontario, this 14th day of June, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
DAVID IAIN TENCH
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is a motion by Her Majesty The Queen ("defendant") for an Order pursuant to Rules 3, 58, 59(c) and 221(1)(a), (c), (d) and (f) of the Federal Court Rules, 1998 , striking out the plaintiff"s re-amended Statement of Claim dated December 9, 1999. The defendant"s grounds for its motion are:
1. The Statement of Claim constitutes an abuse of process of this Honourable Court;
2. The Statement of Claim does not conform with the requirements of pleading as set out in the Federal Court Rules, 1998;
3. The Statement of Claim discloses no reasonable cause of action;
4. The Statement of Claim is scandalous, frivolous or vexatious; and
5. The Statement of Claim is prejudicial and will embarrass the fair trial of this action.
[2] The defendant presented the following documentary and affidavit evidence in
support of its motion:
| (a) Amended Statement of Claim, dated March 10, 1999 |
| (b) Re-amended Statement of Claim, dated July 9, 1999 |
| (c) Order of Reed J., dated July 19, 1999 |
| (d) Statement of Claim, dated October 20, 1999 |
| (e) Amended Statement of Claim, dated November 12, 1999 |
| (f) Re-amended Statement of Claim dated December 9, 1999 |
| (g) Affidavit of Ron Stolz, sworn November 3, 1999 |
| [3] The plaintiff was a corrections officer employed with Correctional Services of |
Canada. According to the plaintiff"s documents, he was employed with the Correctional Services from July 20, 1992 until March 31, 1993. This period of employment followed by a term of disability which ended on March 3, 1996. This was followed by a second term of employment ending on October 17, 1997, which in turn was followed by a second term of disability.
| [4] The plaintiff filed a complaint with the Canadian Human Rights Commission |
on September 9, 1993. The complaint alleged discriminatory practices by the Correctional Services of Canada, "between February, 1992 and March 10, 1993, on the grounds of race and colour (Black)".
| [5] This complaint was ultimately settled by a minute of settlement, dated March 27, |
1997, which settlement was approved by the Canadian Human Rights Commission on April 24, 1997. At the same time, the plaintiff signed a release, releasing Correctional Services of Canada from any claims relating to his employment.
| [6] On July 19, 1999, Madame Justice Reed of this Court struck out an earlier |
Statement of Claim of the plaintiff which related to his term of employment with Correctional Services of Canada.
| [7] On October 20, 1999, the plaintiff filed a new Statement of Claim which he |
amended on November 12, 1999 and amended again on December 9, 1999. It is the re-amended Statement of Claim of December 9, 1999 that the Court has been asked to deal with on this motion.
Issue
| [8] Should the plaintiff"s Statement of Claim be struck? |
Law
| [9] The Federal Court Rules, 1998, 58, 59(c), 174 and Rule 221(1)(a), (c), (d) and (f) |
have application to this motion. These rules read as follows:
| 58. (1) A party may by motion challenge any step taken by another party for non-compliance with these Rules. (2) A motion under subsection (1) shall be brought as soon as practicable after the moving party obtains knowledge of the irregularity. 59. Subject to rule 57, where, on a motion brought under rule 58, the Court finds that a party has not complied with these Rules, the Court may, by order, (a) . . . (b) grant any amendments required to address the irregularity; or (c) set aside the proceeding, in whole or in part. |
58. (1) Une partie peut, par requête, contester toute mesure prise par une autre partie en invoquant l'inobservation d'une disposition des présentes règles. (2) La partie doit présenter sa requête aux termes du paragraphe (1) le plus tôt possible après avoir pris connaissance de l'irrégularité. 59. Sous réserve de la règle 57, si la Cour, sur requête présentée en vertu de la règle 58, conclut à l'inobservation des présentes règles par une partie, elle peut, par ordonnance: a) . . . b) autoriser les modifications nécessaires pour corriger l'irrégularité; c) annuler l'instance en tout ou en partie. |
| 174. Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved. |
| 174. Tout acte de procédure contient un exposé concis des faits substantiels sur lesquels la partie se fonde; il ne comprend pas les moyens de preuve à l'appui de ces faits. |
| 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) . . . (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. (2) No evidence shall be heard on a motion for an order under paragraph (1)(a). |
221.(a) 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) . . . 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. (2) Aucune preuve n'est admissible dans le cadre d'une requête invoquant le motif visé à l'alinéa (1)a). |
| Analysis and Decision |
| [10] There is no doubt that the provisions of the Federal Court Rules, 1998 (Rules 174 |
| and 221) give the Court the power to strike out pleadings. However, the jurisprudence of this Court makes it very clear that this power should be used only in plain and obvious cases. Rouleau J. of this Court put this in succinct terms in Glaxo Canada v. Canada and Apotex (No. 2) (1987) 11 F.T.R. 121 (F.C.T.D.) at pages 128-129: |
| Jurisprudence has clearly established that the court should only strike out a pleading in plain and obvious cases. The summary procedure of striking out provided for in rule 419 is only appropriate where it is plainly evident that the statement of claim as it stands is insufficient, even if proven, to entitle the plaintiff to the relief for which it asks. So long as a statement of claim discloses some cause of action, or raises some question fit to be decided by trial, the mere fact that a case is weak is no ground for striking it out. The jurisdiction granted to the court by rule 419 is one which is to be exercised very sparingly and only in exceptional cases. Accordingly, an order will only be made in cases where it is obvious that the claim is devoid of all merit or cannot possibly succeed. |
| [11] I have reviewed the re-amended Statement of Claim dated December 9, 1999 with |
| this in mind and I have come to the conclusion that paragraphs 1, 2, 3, 5, 9, 10, 11, 12, 14, 15, 18, 19, 20 and 21 should not be struck. Paragraphs 22 - 34 will stand with the exceptions mentioned in paragraph 18 of this decision. In Glaxo, supra, Rouleau J. stated at pages 127-128: |
| In neither case, however, is the onus on the applicant an easy one to discharge. The court is always slow to strike out a statement of claim and dismiss an action under rule 419(1)(a) and will do so only when it is clear that by no proper amendment can the statement of claim be revised so as to disclose a reasonable cause of action. The test is just as stringent, if not more so, when dismissal is sought on the ground that the proceeding is frivolous or vexatious or an abuse of the process of the court. The court will not stop a proceeding and deny a plaintiff the right to have a case heard unless it is clear that the action is frivolous or vexatious or that the plaintiff has no reasonable cause of action and that to permit the action to proceed is an abuse of its process. |
| [12] A review of these paragraphs indicates to me that although the plaintiff may be |
| facing a difficult case, it is not clear on the basis of the pleadings to date that he cannot succeed. Thus, there is not a proper basis for me to strike these pleadings. |
| [13] I have reviewed paragraphs 4, 6, 7, 8 and 16 and have determined that these |
| paragraphs do not disclose any material facts upon which the plaintiff intends to rely. Rule 174 requires a party to state the material facts on which the party bases the claim. In Canadian Olympic Assn. V. USA Hockey, Inc. (1997) 74 C.P.R. (3d) 348 (F.C.T.D.) at pages 350-351, Jerome A.C.J. stated: |
| Finally, the plaintiff"s Statement of Claim simply does not conform to Rule 408(1) of the Federal Court Rules which states that a party must plead the material facts upon which it relies. The bare assertion of a conclusion upon which the Court is called upon to pronounce is not an allegation of material fact. Pleadings cannot be allowed to stand where it is clear that the person making the allegation has no evidence to support it. |
| [14] These paragraphs, in my opinion, simply contain no material facts on which the |
| claim is based and as such violate Rule 174. Prothonotary Hargrave in Mountain Prison Inmates v. Canada (1998) 146 F.T.R. 265 at page 267 said: |
| The statement of claim is so general and so bereft of specifics, including names and dates, as to prevent the defendant from making either proper investigation or proper response. The Federal Court of Appeal reviewed several similar statements of claim in Murray v. Public Service Commission et al. (1978) 21 N.R. 230 (F.C.A.). The Court of Appeal noted that such statements of claim were fundamentally vexatious in that they revealed insufficient facts to show the basis for the claim, thus making it impossible for a defendant to answer the claim or for a court to regulate the proceedings (p. 236). Such a vexatious proceeding will not lead to any practical result. That is the situation here, for the statement of claim is so general and all-encompassing, yet so bereft of particulars, that the defendant would be unable to draft an answer. |
| [15] I agree with that statement of the law and therefore, I would strike paragraphs 4, |
| 6, 7, 8 and 16 of the Statement of Claim. |
| [16] In relation to paragraph 13 of the Statement of Claim, I would order that this |
| paragraph also be struck. Paragraph 13 should be struck as it was, according to the judgment of Justice Barbara Reed (see David Iain Tench v. Her Majesty The Queen, July 19, 1999, docket T-426-99 and defendant"s Motion Record page 51), the subject of a separate judicial review application in docket T-2235-98. |
| [17] With respect to paragraph 17 of the Statement of Claim, I would order that the |
| words "failing to provide the defendant with timely information regarding a disability priority" be struck for the same reason as stated for the striking of paragraph 13 of the Statement of Claim. The remainder of paragraph 17 will not be struck. |
| [18] Paragraphs 22, 23, 25, 26, 27, 28, 29 and 31 will be amended to reflect the |
| deletion of the paragraphs of the Statement of Claim that were struck out. |
| [19] I have reviewed the release dated March 27, 1997 and it would appear to me that |
| it is related to the subject matter of the human rights complaint, however, without evidence on this aspect of the case, this is a matter that should be decided by the trial Judge. |
| [20] I have considered the request of the defendant to strike the affidavit of the |
| plaintiff. I am not prepared to grant the request as Rule 221(2) only prohibits evidence being adduced on a motion under Rule 221(1)(a) and here the plaintiff"s motion is made under Rule 221(1)(c), (d) and (f) as well as Rule 221(1)(a). |
| [21] As success has been divided, there will be no order as to costs. |
| ORDER |
| [20] IT IS HEREBY ORDERED that: |
| 1. Paragraphs 1, 2, 3, 5, 9, 10, 11, 12, 14, 15, 18, 19, 20 and 21 should not be struck. |
| 2. Paragraphs 22 - 34 of the Statement of Claim will stand with the exceptions mentioned in paragraph 18 of this decision. |
| 3. Paragraphs 4, 6, 7, 8, 13 and 16 of the Statement of Claim are struck. |
| 4. Paragraphs 22, 23, 25, 26, 27, 28, 29 and 31 will be amended to reflect the deletion of the paragraphs of the Statement of Claim that were struck out. |
| 5. The words "failing to provide the defendant with timely information regarding a disability priority." in paragraph 17 of the Statement of Claim are struck and the remainder of paragraph 17 stands. |
| [21] IT IS HEREBY FURTHER ORDERED that there will be no order as to costs. |
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
June 14, 2000