Vancouver, British Columbia, January 17, 2007
PRESENT: The Honourable Mr. Justice Pinard
BETWEEN:
CAROLE ANN BROWN
and
HER MAJESTY THE QUEEN IN THE RIGHT
OF CANADA (as vicariously liable on behalf of counsel for
the Deputy Attorney General of Canada, Ms. Sarah Frost)
REASONS FOR ORDER AND ORDER
[1] This is a motion by the Defendant under Rule 369 of the Federal Court Rules for an order that the statement of claim be struck without leave to amend. In the alternative, the Defendant seeks an order pursuant to Rule 8(1) extending the time for the Defendant to file a statement of defence. In the further alternative, the Defendant seeks an order that the Plaintiff seek leave to file an amended statement of claim.
[2] The Defendant’s motion to strike is brought pursuant to Rule 221(1) (a), (c) and (f) alleging that the statement of claim discloses no reasonable cause of action, is scandalous, frivolous and vexatious, and is an abuse of process. The Defendant further submits that the statement of claim fails to conform to Rule 174 that requires that a statement of claim contain material facts and Rule 181 that requires that a statement of claim contain particulars of every allegation.
[3] A statement of claim should only be struck if it is plain and obvious that the claim discloses no reasonable cause of action (Hunt v. Carey Inc., [1990] 2 S.C.R. 959). The statement of claim names as Defendant the Crown "as vicariously liable on behalf of counsel for the Deputy Attorney General of Canada, Ms. Sarah Frost" and alleges, among other things, that the Defendant denied the Plaintiffs access to the courts and conspired with a variety of persons, including provincial Attorneys General and the Judicial Administrator of this Court, to amend the Constitution of Canada, perpetrate Charter torts, and misapply the law in a fraudulent and abusive manner. The allegations are incomprehensible and there is not a single fact to support the allegations. Moreover, the acts alleged are not causes of action. The plain and obvious test is met in this case.
[4] The statement of claim should also be struck on the ground that it is frivolous and vexatious. An action will be considered scandalous, vexatious or frivolous where pleadings are so deficient in factual material that the defendant cannot know how to answer (Ceminchuk v. Canada, [1995] F.C.J. No. 914 (QL), Kisikawpimootewin v. Canada, 2004 FC 1426).
[5] The Plaintiffs did not file a motion record for this motion; however, in a letter to the Court dated December 11, 2006, the Plaintiffs state that they were not notified of the motion. There is no foundation to this argument given that a certificate of service was filed with the Court.
[6] The Plaintiffs also submitted that the Court could not deal with this motion before a number of outstanding motions in this action have been dealt with. One of the motions referred to is a motion brought by the Plaintiffs that was adjourned sine die by Madam Justice Heneghan in a direction dated December 1, 2006, upon a request by the Plaintiffs to adjourn. The matter could have been brought back on for hearing after the Plaintiffs complied with Rule 360. The Plaintiffs have chosen not to bring the matter back and they cannot now claim that the Court is barred from hearing other motions until that motion is heard.
[7] I note that the Plaintiffs attempted to file an amended statement of claim. Mr. Justice Harrington on November 9, 2006, directed the registry not to file the amended statement of claim as it adds new Defendants and alleges causes of actions not covered in the original statement of claim. The amended statement of claim was even less comprehensible than the original one. It listed the federal Attorney General as a defendant, as well as two provincial Attorneys General, and alleged they were vicariously liable for the acts of dozens of people.
[8] Finally, I note that this is the second action brought by the Plaintiffs in this Court in which the statement of claim has been struck. In his order of November 9, 2006, Mr. Justice Harrington struck out a statement of claim of the Plaintiffs in an earlier action naming the Federal Crown as the defendant. Based on that order, it appears that the statement of claim suffered from the same defects as the one in this action. The Plaintiffs had the benefit of Mr. Justice Harrington’s order which clearly explained the flaws with their statement of claim and, yet, the Plaintiffs started this action with a statement of claim that was fatally flawed.
[9] I strike out the entire statement of claim, without leave to amend, and dismiss the action.
ORDER
THIS COURT ORDERS that the Defendant's motion is granted. The statement of claim is struck out and the Plaintiffs' action is dismissed with costs.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1940-06
STYLE OF CAUSE: PRADEEP KUMAR VERMA and
CAROLE ANN BROWN
- and –
HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA (as vicariously liable on behalf of counsel for the Deputy Attorney General of Canada, Ms. Sarah Frost)
MOTION IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ORDER AND ORDER: PINARD J.
WRITTEN REPRESENTATIONS BY:
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n/a
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(on their own behalf)
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Ms. Valerie Anderson
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SOLICITORS OF RECORD:
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Dr. Carole Ann Brown
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(on their own behalf)
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada |