Docket:
T-1557-15
Citation: 2016 FC 93
Toronto, Ontario, January
25, 2016
PRESENT: The
Honourable Mr. Justice Southcott
BETWEEN:
|
|
DAVID
RAYMOND AMOS
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Plaintiff
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and
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HER
MAJESTY THE QUEEN
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Defendant
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ORDER AND REASONS
[1]
This is a motion by the
Plaintiff, appealing an Order of Prothonotary Richard Morneau dated November
12, 2015, which struck out the Plaintiff’s Statement of Claim on the basis
that it disclosed no cause of action and was vexatious.
[2]
For the reasons that follow,
this motion is allowed in part.
I. Preliminary Matter
[3]
At the beginning of the
hearing of this matter, the Plaintiff raised the question whether I would be
in a conflict of interest in hearing his motion. He advised that some of the
evidence, which he considers to support his action, was previously provided
to members of my former law firm and that he had discussed jurisprudence
related to cyberbullying with some of these individuals. He raised the
possibility of communication between me and my former colleagues on this
evidence. The Plaintiff confirmed that, while he was raising this for my
consideration, he was not asserting that I was in a conflict of interest or
asking me to recuse myself but was leaving this decision to my discretion.
The Defendant confirmed that it did not have concerns regarding any conflict
of interest arising from the circumstances described by the Plaintiff.
[4]
I advised the parties that I
did not have concerns about conflict of interest arising from the
circumstances the Plaintiff had described and that I would proceed to hear
his motion. For the record, I confirm that I have had no discussions about
the Plaintiff or any of the above-mentioned evidence with any former
colleagues and that I had no prior knowledge of that evidence. The relevant
test is whether the circumstances described by the Plaintiff create a
reasonable apprehension of bias, taking into account what an informed person
would conclude, viewing the matter realistically and practically and having
thought the matter through (see Justice de Grandpre’s dissenting judgment in Committee for Justice and Liberty et al v
National Energy Board et al, [1978] 1 SCR 369 at page 394). I am unable
to identify an apprehension of bias based on these circumstances.
II. Background
[5]
The Plaintiff has filed a
53-page Statement of Claim against Her Majesty the Queen, claiming $11
million in damages and a public apology from the Prime Minister and
provincial Premiers, for being illegally barred from access to parliamentary
properties, and seeking a declaration from the Minister of Public Safety that
the Canadian government will no longer allow the RCMP and the Canadian forces
to harass him and his clan.
[6]
The Defendant filed a motion
seeking an Order striking out the Statement of Claim without leave to amend.
In granting the Defendant’s motion on the basis that the Statement of Claim
disclosed no cause of action and was vexatious, the Prothonotary indicated
that he agreed with the analysis contained in the following paragraphs of the
Defendant’s written representations:
17. Within
the 96 paragraph Statement of Claim, the Plaintiff addresses his complaint in
paragraphs 14-24, inclusive. All but four of those paragraphs are dedicated
to an incident that occurred in 2006 in and around the legislature in New
Brunswick. The jurisdiction of the Federal Court does not extend to Her
Majesty the Queen in right of the Provinces. In any event, the Plaintiff
hasn’t named the Province or provincial actors as parties to this action. The
incident alleged does not give rise to a justiciable cause of action in this
Court.
(…)
21. The
few paragraphs that directly address the Defendant provide no details as to
the individuals involved or the location of the alleged incidents or other
details sufficient to allow the Defendant to respond. As a result, it is
difficult or impossible to determine the causes of action the Plaintiff is
attempting to advance. A generous reading of the Statement of Claim allows
the Defendant to only speculate as to the true and/or intended cause of
action. At best, the Plaintiff’s action may possibly be summarized as: he
suspects he is barred from the House of Commons.
[footnotes omitted]
III. Plaintiff’s Position
[7]
In his written
representations filed in support of this motion, the Plaintiff explained that,
in response to the Defendant’s motion to strike, he had requested an oral
hearing before a judge. He also takes the position that the Prothonotary did
not have the authority under Rule 50 of the Federal Court Rules, SOR/98-106 to render a final judgment in
this matter without the consent of the parties.
[8]
On the merits of his claim,
the Plaintiff takes issue with the Prothonotary’s conclusion that his
Statement of Claim discloses no reasonable cause of action. The Plaintiff
argues that he is still barred today from access to parliamentary properties
and public records buildings and that the Queen of England rules over every
jurisdiction in Canada. He also takes the position that due process of law
prevents summary dismissal of his Statement of Claim without an opportunity
for him to present evidence in support. He includes in his Motion Record an
affidavit and exhibits upon which he wishes to rely.
[9]
While the Plaintiff’s Notice
of Motion raises only his appeal of the Prothonotary’s Order, his written
representations also seek an order that the Defendant be found in default and
that 11 million dollars plus costs of the motion before the Prothonotary and
this motion be awarded to the Plaintiff.
IV. Defendant’s Position
[10]
The Defendant argues that the
Prothonotary had the authority under Rule 50 to dismiss the Statement of
Claim and to do so without an oral hearing. It is also the Defendant’s
position that, under Rule 221(2), no evidence shall be heard on a motion to
strike a claim for disclosing no reasonable cause of action.
[11]
The Defendant’s position is
that it is plain and obvious that the Plaintiff’s claim cannot succeed. The
arguments in support of this position are summarized in the paragraphs quoted
above that the Prothonotary recited from the Defendant’s written
representations. The Defendant also notes that the claim appears to rely on
Section 24(1) of the Canadian Charter
of Rights and Freedoms as the basis for the relief sought and submits
that the allegations of Charter
violations are so vague and deficient that his causes of action cannot be
maintained as pleaded.
[12]
The Defendant also takes the
position that the Plaintiff’s claim is statue-barred as the exclusion from
legislative properties allegedly occurred in 2004 and 2006, is frivolous as
it is based on no rational argument supported by the evidence or law, and is
vexatious as the Statement of Claim refers to the Plaintiff bringing this
action to see if he will be barred from parliamentary property before polling
day in the recent federal election.
[13]
In the Defendant’s
submission, the defects in the Statement of Claim cannot be cured by
amendment, as there is no basis in law to support a cause of action even if
the Plaintiff were to provide more detail surrounding his factual
allegations.
[14]
In the alternative, if the
appeal were to be allowed, the Defendant seeks an extension of time to file a
Defence to the claim.
V. Issues and Standard of Review
[15]
The
Federal Court of Appeal in Merck &
Co v Apotex Inc, 2003 FCA 488, formulated as follows at paragraph 19 the
test for the standard of review by Federal Court judges of prothonotaries’
decisions:
Discretionary orders of prothonotaries
ought not be disturbed on appeal to a judge unless:
a) the questions raised in the motion are vital to the final issue
of the case, or
b) the orders are clearly wrong, in the sense that the exercise of
discretion by the prothonotary was based upon a wrong principle or upon a
misapprehension of the facts.
[16]
If the questions raised in
the motion are vital to the final issue of the case, then the judge must
exercise his or her discretion de novo.
The Defendant has acknowledged that, as the Prothonotary’s decision disposed
of the action, it was vital to the final disposition of the case, and this
appeal should therefore be conducted as a review de novo.
[17]
This motion raises the
following issues:
A.
Whether the Plaintiff is
entitled to rely on his affidavit evidence in support of this motion;
B.
Whether the Statement of
Claim fails to disclose a reasonable cause of action;
C.
Whether the Statement of
Claim is frivolous or vexatious; and
D.
Whether the Plaintiff is
entitled to default judgment.
VI. Analysis
A. Evidentiary Ruling
[18]
I ruled at the hearing that I
would not consider the new evidence which the Plaintiff wished to introduce
in support of his motion. While the appeal before me is to be conducted as a
review de novo, the law is clear that,
barring exceptional circumstances, such review is to be conducted based on
the evidence that was before the Prothonotary when he made his Order (see Hung
c Canada (Procureur Général), 315 FTR 67 [Hung], affirmed, 2007 FCA 17).
[19]
Exceptional circumstances
permitting introduction of new evidence would require that the evidence could
not have been made available earlier, its introduction will serve the
interests of justice, it will assist the Court, and it will not seriously
prejudice the other side (see Mazhero v Canada (Industrial Relations
Board), 2002 FCA 295).
There are no exceptional circumstances in the present case that would warrant
departing from the principle in Hung.
The evidence could have been made available in response to the motion before
the Prothonotary, and the decision under appeal turns on the allegations in
the Statement of Claim, not on the availability of evidence to support such
allegations.
B. Jurisdiction of Prothonotary
[20]
The Plaintiff’s argument that
the Prothonotary did not have the authority to issue the Order under appeal
is based on Rule 50(1)(c)(i), which provides that a Prothonotary cannot hear
a motion for summary judgment or summary trial, other than in an action where
the amount claimed does not exceed $50,000. However, the Defendant’s motion
was not a motion for summary judgment or summary trial, for which Rule 213
provides, but rather a motion to strike under Rule 221. It was therefore
within the Prothonotary’s jurisdiction and this argument must fail.
C. Requirement for Oral Hearing
[21]
The motion heard by the
Prothonotary was filed in writing under Rule 369. While Rule 369(2) allows a
respondent to a motion in writing to object to the motion being disposed of
in writing, Rule 369(4) then allows the Court either to dispose of the motion
in writing or to fix a time and place for an oral hearing. The Prothonotary
referred in his Order to being satisfied that the Court could adjudicate the
motion without an oral hearing and was entitled by the Rules to reach this
conclusion.
D. Failure to Disclose Cause of Action
[22]
I agree with the Defendant’s
assertion in its written representations that the Plaintiff’s Statement of
Claim is repetitive and contains numerous irrelevant and extraneous
allegations. However, as noted in those representations, in the
Prothonotary’s Order, and in the Plaintiff’s oral submissions before me, the
claim focuses significantly on allegations that the Plaintiff has been barred
from the legislature in New Brunswick. The Prothonotary adopted the
Defendant’s position that the jurisdiction of the Federal Court does not
extend to Her Majesty the Queen in right of the Provinces. This is of course
correct.
[23]
However, as I raised with the
Defendant’s counsel at the hearing, the Statement of Claim alleges that the
actors, who barred the Plaintiff from the New Brunswick legislature in 2004,
included the Royal Canadian Mounted Police [RCMP]. Under Section 17 of the Federal Courts Act, RSC 1985, c F-7
[Act], the Federal Court does have jurisdiction over claims against the
federal Crown based on liability of servants of the federal Crown such as the
RCMP. I would therefore have difficulty in striking out the Statement of
Claim on the basis adopted by the Prothonotary and have accordingly
considered, as I must on a hearing de
novo, whether the other arguments raised by the Defendant warrant the
action being struck.
[24]
Focusing on the final
paragraph of the Statement of Claim in which the Plaintiff sets out the
relief he seeks, I am aware of no basis on which the Court would have
authority to order either (i) a public apology by the Prime Minister and each
Premier for the illegal barring of a citizen from parliamentary properties or
(ii) a declaration from the Minister of Public Safety that the Canadian
government will no longer allow the RCMP and the Canadian forces to harass
him. Therefore these claims for relief should be struck as failing to
disclose a reasonable cause of action.
[25]
I also agree with the
Defendant that much of the Statement of Claim does not conform to the rules
of pleading, which require a concise statement of the material facts upon
which the party relies and not including evidence by which such facts are to
be proven (see Rule 174). As argued by the Defendant, this makes it difficult
for the Defendant to know the intended cause of action to which it must
respond. Other than in relation to the allegation of having been barred from
the New Brunswick legislature in 2004, this conclusion extends to the claims
related to being barred from legislative properties. I do not consider these
claims to be capable of benefiting from amendment.
[26]
I also note that the allegation of having
been barred from the New Brunswick legislature in 2006 does not allege
involvement of any servants of the federal Crown, and the Statement of Claim
expresses uncertainty related to the Plaintiff being barred from the House of
Commons.
[27]
My conclusion is that, other
than in relation to the allegation of having been barred from the New
Brunswick legislature in 2004, the claims related to being barred from
legislative properties should be struck as failing to disclose a reasonable
cause of action. However, I cannot reach this same conclusion with respect to
the Plaintiff’s claim for damages (in some amount) for what appears to be his
principal complaint, that he was barred from the New Brunswick legislature in
2004 for political rather than legal reasons. The Statement of Claim does
contain some precision in relation to the Plaintiff’s principal complaint, as
paragraph 14 of the Statement of Claims identifies the date on which he
alleges he was barred from the New Brunswick legislature and identifies,
although not by name, the alleged participants in this event, including the
RCMP officer acting as Aide-de-Camp to the Lieutenant Governor of New
Brunswick.
[28]
I must therefore consider
whether this event, as pleaded by the Plaintiff, is capable of supporting a
cause of action. As acknowledged by the Defendant, in considering this
question I must give the Statement of Claim a generous reading (Paradis Honey Ltd v Canada (Minister of
Agriculture and Agri-Food), 2015 FCA 89). This is particularly so, given
that the Plaintiff is self-represented. I am unable to conclude that the
Defendant has met the high burden necessary to have this component of the
action struck. Although the Plaintiff has not articulated a specific legal
theory for the cause of action upon which he bases his claim for damages
arising from being barred from the New Brunswick legislature, this does not
preclude a cause of action being supported by his stated allegations. As an
example, I raised with the Defendant’s counsel during the hearing the tort of
misfeasance in public office addressed in Meigs
v Canada, 2013 FC 389 [Meigs],
one of the cases cited by the Defendant on this motion. At paragraph 13 of
that case, this Court identified the elements of that tort as follows:
[13] As in both the cases of Odhavji
Estate v Woodhouse, 2003 SCC 69 [Odhavji] and Lewis v Canada,
2012 FC 1514 [Lewis], I must determine whether the plaintiffs’
statement of claim pleads each element of the alleged tort of misfeasance in
public office:
a) The
public officer must have engaged in deliberate and unlawful conduct in his or
her capacity as public officer;
b) The
public officer must have been aware both that his or her conduct was unlawful
and that it was likely to harm the plaintiff; and
c) There
must be an element of bad faith or dishonesty by the public officer and
knowledge of harm alone is insufficient to conclude that a public officer
acted in bad faith or dishonestly.
Odhavji, above, at paras 23, 24 and 28
[29]
In Meigs, the Statement of Claim was struck out as failing to
disclose material facts necessary to meet the elements of this test related
to the public officer’s statement of mind. However, in the case at hand, the
Plaintiff has alleged that those who barred him from the legislature in 2004,
including the police (which the Plaintiff states includes the RCMP), did so
for political reasons. I am of course reaching no conclusion as to the truth
of these allegations or the damages claimed by the Plaintiff. However,
reading the Statement of Claim generously and with the presumption of truth required
on this motion, I cannot conclude that, were the allegations true, it is
plain and obvious that such allegations could not support a cause of action
which sounds in some measure of damages, nominal or otherwise.
E. Limitation Period
[30]
The Defendant notes that the
allegations involving the RCMP and the New Brunswick legislature occurred in
2004 and therefore argues any resulting claim is barred by the six year
federal limitation period prescribed by section 39(2) of the Act. However, as
acknowledged by the Defendant at the hearing, other than in exceptional
circumstances, a statute of limitations is not a basis for a motion to strike
but rather should be raised in a defence and argued after the plaintiff has
had an opportunity to reply (see Kibale v The Queen (1990), 123 NR 153
(FCA) and Byer v Canada, 2002 FCT 684).
[31]
I do not consider exceptional
circumstances to apply to this case that would warrant departing from the
usual practice of waiting until after pleadings are closed to raise the
application of a limitation period. In reaching this conclusion, I note in
particular that the Court has not yet had the benefit of argument on whether
the applicable limitation period is one applicable under the laws of New
Brunswick as contemplated by section 39(1) of the Act, as opposed to the
federal period under section 39(2) of the Act relied on by the Defendant, or
on the potential for extension of the applicable period.
F. Frivolous and Vexatious
[32]
Finally, I cannot agree with
the Defendant’s arguments that the allegations surrounding the Plaintiff
being barred from the New Brunswick legislature are frivolous and vexatious.
The Defendant argues the claim is frivolous, as there is a scarcity of law
pleaded. However, in my view, the analysis should focus on the facts that
have been pleaded and, as noted above, I cannot conclude that it is plain and
obvious that the facts pleaded are not capable of supporting a cause of
action.
[33]
The Defendant also argues the
claim is vexatious, as the Statement of Claim refers to the Plaintiff wanting
to see if he will be barred from parliamentary property before polling day in
the recent federal election. While this does suggest mixed motives in filing
the action, the Plaintiff has also claimed damages, such that it cannot be
said that the claim cannot lead to any practical result.
G. Default Judgment / Extension of Time to File Defence
[34]
In summary, the Plaintiff’s
appeal is allowed in part, as my conclusion is that the Statement of Claim
cannot be struck in its entirety. The Plaintiff’s allegations related to
having allegedly been barred from the New Brunswick legislature in 2004 by
actors including the RCMP survive the motion to strike. When filing its
original motion to strike which was heard by the Prothonotary, the Defendant
indicated an intention to defend this action if its motion was not
successful. It is therefore not appropriate to grant default judgment as
requested by the Plaintiff but rather is appropriate to grant the Defendant a
suitable period of time to file a Statement of Defence. I will afford the
Defendant 30 days from the date of my Order or the date of any decision
resulting from any appeal of my Order.
[35]
Without the benefit of
argument from the parties as to the effect, on a paragraph-by-paragraph basis
in the Statement of Claim, of a decision that preserves a portion of the
Plaintiff’s claim, my Order will reflect that the claims for relief in the
final paragraph of the Statement of Claim are struck except for the claim for
monetary relief for allegedly being barred by the RCMP from the New Brunswick
legislature in 2004. However, I recognize that, before filing a Statement of
Defence, the Defendant may wish to present a motion arguing which specific
paragraphs of the Statement of Claim should be struck in order to accord with
my decision. As such, my Order will provide that the Defendant is at liberty to
do so and that the time for filing a Statement of Defence will also take any
such motion into account.
H. Costs
[36]
Given the divided success on
this appeal, no costs will be awarded.
ORDER
THIS COURT ORDERS that:
1.
the Plaintiff’s appeal is
allowed in part;
2.
the Order of Prothonotary
Morneau dated November 12, 2015 is set aside;
3.
the claims for relief in the
final paragraph of the Plaintiff’s Statement of Claim are struck without
leave to amend, with the exception of the claim for monetary relief for
allegedly being barred by the RCMP from the New Brunswick legislature in
2004;
4.
the Defendant is at liberty
to present a motion, to be filed within 30 days of the date of this Order or
any decision resulting from any appeal of this Order, arguing which specific
paragraphs of the Statement of Claim should be struck in order to accord with
my decision;
5.
the time for the Defendant to
file a Statement of Defence is extended to 30 days from the later of the date
of this Order, the date of any Order resulting
from a motion by the Defendant arguing which specific paragraphs of the
Statement of Claim should be struck in order to accord with my decision, and
the date of any decision resulting from any appeal of either such Order; and
6.
No costs are awarded on this
motion.
"Richard F. Southcott"
Judge
FEDERAL COURT
SOLICITORS OF
RECORD
Docket:
|
T-1557-15
|
||
STYLE
OF CAUSE:
|
DAVID RAYMOND AMOS v HER MAJESTY THE
QUEEN
|
||
PLACE OF HEARING:
|
Fredericton, New Brunswick
|
||
DATE OF HEARING:
|
January 11, 2016
|
||
ORDER
and reasons:
|
SOUTHCOTT J.
|
||
DATED:
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January 25, 2016
|
||
APPEARANCES:
David Raymond Amos
|
For The Plaintiff
(SELF-REPRESENTED)
|
Jill Chisholm
|
For The Defendant
|
SOLICITORS OF RECORD:
William F. Pentney
Deputy Attorney General of Canada
|
For
The Defendant
|
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