Date: 20061109
Docket: T-1696-06
Citation: 2006 FC 1353
Montreal, Quebec, November 9, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
PRADEEP KUMAR VERMA and
CAROLE ANN BROWN
Plaintiffs
and
HER MAJESTY THE QUEEN
IN THE RIGHT OF CANADA
(as vicariously liable on behalf
of Judicial Administrator of Federal Court of Canada,
Clerk of the Privy Council of Canada, Royal Canadian Mounted Police,
Attorney General of Canada, Registrar of Supreme Court of Canada,
Executive Director of Canadian
Judicial Council and
Commissioner for Federal Judicial
Affairs and
Her Excellence The Governor
General of Canada)
Defendant
REASONS FOR ORDER AND ORDER
[1]
On
the one hand, these reasons deal with a deficient statement of claim, the
defendants’ motion to strike it, and the plaintiffs’ efforts to save it. On the
other, they also deal with access to justice and the jurisdiction of the
Federal Court.
[2]
The
plaintiffs, who do not say in the statement of claim who they are, have in eighteen
short paragraphs claimed $3 million from eight separate entities. It is alleged
that the defendants have engaged in unspecified conduct which violates the Canadian
Charter of Rights and Freedoms. Among other things, they are said to have a
duty to dissuade the judiciary from misapplication of law, which they have
breached; they have been contemptuous of Parliament and have conspired to
unlawfully interfere with the appeal of unconstitutional orders made by judges
of this Court without jurisdiction. The Attorney General is singled out for
special treatment in that he “has failed to limit and instead profited from the
unlawful conduct of the federally appointed judges who have engaged in a tortious
conduct.”
[3]
It
would seem that the matters are so evident that the plaintiffs need not give
particulars.
[4]
The
plaintiffs are not represented by counsel.
THE MOTION TO DISMISS
[5]
Not
surprisingly, the defendants have moved to have the statement of claim struck
for failing to disclose a cause of action. They assert five grounds.
[6]
The
first is that the plaintiff Pradeep Kumar Verma is a person under legal
disability and can only be represented by the Public Guardian and Trustee of British
Columbia.
[7]
The
second is that the plaintiff Carole Ann Brown is not a solicitor and cannot
represent Dr. Verma. This implies that she does not have a cause of action in
her own right.
[8]
The
third and fourth grounds, which can be treated together, are that the statement
of claim does not contain material facts and particulars as required by the Federal
Courts Rules.
[9]
Finally,
in addition to not disclosing a reasonable cause of action, the statement of
claim is said to be scandalous, frivolous, and vexatious and is otherwise an
abuse of process of the Court.
[10]
The
defendants also ask that their motion be dealt with in writing pursuant to rule
369, without the need to resort to oral argument.
THE PLAINTIFFS’ REPLY
[11]
The
plaintiffs responded in two ways. First, they filed what they call “Plaintiffs
Reply and Cross-Motion”. They also purported to file an amended statement of
claim. In their motion record, they request an oral hearing.
[12]
I
will first deal with plaintiffs’ request that the matter be heard orally, the
status of the amended statement of claim and the status of the cross-motion,
before dealing with the defendants’ motion to strike.
[13]
Although
as a general rule parties have the right to be heard, it does not follow that
they have the right to make oral argument, as opposed to written argument. For
example, applications for leave to appeal to the Supreme Court of Canada are in
writing only, unless the Court orders otherwise. Our rule 369 permits the
moving party to propose that the motion be decided on the basis of written
representations. The respondent on that motion may object and in its written
memorandum set out reasons why the motion should be heard orally. Having
considered the responding record, I am satisfied there are no reasons to
justify an oral hearing, and so the defendants’ motion to strike shall be dealt
with in writing.
[14]
The
plaintiffs have attempted to shore up the deficiencies of their statement of
claim by purportedly filing an amended statement of claim. Although rule 200
provides that a party may amend a pleading without leave before the other party
has pleaded thereto, and although a motion to strike may not be a pleading as
such, rule 200 must be read together with rule 221, the rule invoked by the defendants
in their motion for an order that the statement of claim be struck. If the
Court decides to grant the motion, it may strike out the statement of claim
“with or without leave to amend”. It follows that a party cannot unilaterally
amend a pleading which is subject to a motion to strike without leave of the
Court. Consequently, I direct the registry not to accept the amended statement
of claim as such, but rather to bundle it together as part of the plaintiffs’ reply
and cross-motion. This is the most favourable treatment I could possibly give
the plaintiffs. To the extent the 71 pages contained therein constitute a
reply, they will be considered.
[15]
As
to the extent that the “cross-motion” is a separate motion, it cannot be dealt
with until the defendants have an opportunity to respond thereto and, in any
event, becomes moot as I am striking the statement of claim in its entirety
without leave to amend.
FEDERAL COURT JURISDICTION
[16]
Before
turning to the motion to strike, the plaintiffs either do not understand, or
choose not to understand, that the Federal Court has been established by
Parliament pursuant to section 101 of the Constitution Act as an additional
Court for the better administration of the laws of Canada. As a Court of
statutory jurisdiction, as opposed, say, to the Supreme Court of British
Columbia, the Federal Court only has jurisdiction over the subject matter if
the claim is one with respect to which Parliament has legislative competence,
there is actual and existing federal law, and the administration thereof has
been confided to it. (ITO - International Terminal Operators Ltd. v. Miida
Electronics Inc., [1986] 1 S.C.R. 752, [1986] S.C.J. No. 38 (QL)) For
instance, although the federal Parliament has legislative authority with
respect to criminal law and has enacted the Criminal Code, the
administration of that Code has been left with the provincial courts. It is
obvious that much of the claim is beyond the subject matter jurisdiction of
this Court. Since the statement of claim, even as purportedly amended, is completely
bereft of merit, it is not necessary to deal with this jurisdictional issue.
[17]
I
turn now to the defendants’ allegations.
THE PLAINTIFF VERMA IS NOT
PROPERLY REPRESENTED
[18]
The
general rule is that an individual may represent himself or herself in court
proceedings. Rule 115 allows the Court to appoint somebody to represent a
person who is under a legal disability. Unless otherwise ordered in special
circumstances, rule 121 requires that the representative be a solicitor.
[19]
The
defendants have provided information from the solicitor representing the Public
Guardian and Trustee of British Columbia. The solicitor attaches two earlier letters
she wrote to the Federal Court in November 2002 and November 2004 with respect
to other proceedings taken in the name of Dr. Verma and Ms. Brown. It appears
that the Public Guardian and Trustee is the Committee of the affairs of Dr.
Verma, by certificate of incapability dated 14 November 2001, which
unfortunately is not in the material before me. Under the Patients Property
Act of British Columbia only the committee of the patient may bring an
action on behalf of the patient. Ms. Brown is not the committee.
[20]
Civil
rights are a provincial matter under our Constitution. It follows therefore
that the action was irregularly taken. However as the record on this point is not
perfect, as the certificate of incapability was not provided, and as there are
other grounds on which the statement of claim is subject to dismissal, there is
no need to pursue this matter further. The Public Guardian and Trustee
informally intervened in these proceedings in order to point out that Dr.
Verma’s situation has not changed.
[21]
In
the circumstances, it is not necessary to deal with the vague allegations on
behalf of the plaintiffs that the British Columbia law is unconstitutional and
that the federal government should be appointing a solicitor to act for Dr.
Verma.
STATUS OF CAROLE ANN BROWN
[22]
Although
the original statement of claim does not indicate Ms. Brown’s interest in the
matter, the proposed amended statement of claim and the motion material clearly
indicate that she has taken up Dr. Verma’s cause. She does not have a cause of
action of her own. The defendants have provided ample evidence that she is not
a solicitor and she cannot purport to act for Dr. Verma by naming herself as a
plaintiff.
LACK OF MATERIAL FACTS AND
PARTICULARS
[23]
Rules
171 and following require a party to allege material facts with sufficient
particularity to allow the other party to respond. I add that a court is unable
to change the status quo unless it understands what a party is
talking about. The plaintiffs do not see it that way. In their reply record
they say, among many other things, that the requirement to provide particulars
has been fulfilled because:
The torts are strict liability torts imposing the
duty on the defendant to provide the factual matrix as defence given that mere
alleging these offences is sufficient to switch the onus of supplying evidence
to the defendants…
…And the failure on the part of the defendants to be
able to obtain the regularly relevant particulars is the result of own
misconduct of taking every possible step to cause serious breakdowns in
communication.
[24]
What
does this mean? I do not know.
[25]
The
proposed amended statement of claim breaks down into various parts, and sub-parts.
It is alleged that the defendants:
i.
Have
violated mandatory constitutional guarantees;
ii.
Have
wrongfully or unlawfully excluded the claimants from court proceedings;
iii.
Conspired
to an unauthorized amendment of the Constitution of Canada by this wrongful or
unlawful exclusion;
iv.
Have
committed the tort of misfeasance in public office through unconstitutional
discrimination or an egregious breach of the doctrine of legitimate
expectations;
v.
Have
colluded with the judiciary to perpetrate covert expropriation without
compensation;
vi.
Have
furthered a conspiracy by the provincial attorneys generals, human rights tribunals
and colleges of physicians and surgeons, to perpetrate common law and other
torts; and
vii.
Have
assisted the Public Guardian and Trustee of British Columbia with high
fiduciary breaches and perpetrating criminal offences.
[26]
It
would seem that the plaintiff Verma was a doctor subject to police
investigation, and that the defendants have failed to control the judges in
British Columbia, Ontario, Alberta, the Federal Court and Federal Court of
Appeal (which I might add in itself would be unconstitutional).
[27]
The
proposed amended statement of claim has twenty-five conclusions. The amount of
damages has gone up from $3 million to more than $105 million. They also seek a
declaration to the effect that I cannot do what I am doing now, which is to consider
a motion to strike the claim pursuant to rule 221:
Given that such an order would in
itself be actionable as wrongful covert expropriation of the property rights of
a beneficiary of the Crown and a breach of high fiduciary duty amounting to
secret commission producing constructive trust…
[28]
I
am satisfied that the statement of claim, even as purportedly amended, is bereft
of material facts and particulars, and is incomprehensible. It cannot be saved.
FAILURE TO DISCLOSE A CAUSE OF
ACTION
[29]
The
statement of claim, even as purportedly amended, does not disclose a cause of
action and unquestionably constitutes an abuse of process.
[30]
I
strike out the statement of claim in its entirety, without leave to amend, and
dismiss the action.
[31]
As
the statement has been struck, the cross-motion becomes moot. However since the
statement of claim was struck out on the pleadings, and not after a hearing on
the merits, there is nothing preventing the plaintiffs from filing a fresh
action. The record indicates that the plaintiffs have already been declared
vexatious litigators in British Columbia. If fresh proceedings are instituted,
the Attorney General of Canada may wish to consider section 40 of the Federal
Courts Act.
ORDER
THIS COURT ORDERS that the statement of
claim is struck in its entirety, without leave to amend, and that the action is
dismissed. There shall be no order as to costs.
“Sean Harrington”
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