Date: 19980817
Docket: T-1045-98
BETWEEN:
GUNTHER R. MUNZEL,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Defendant moves to strike out this action either because the Plaintiff lacks standing to bring the claim or because the Statement of Claim lacks a reasonable cause of action, is scandalous, frivolous or vexatious, or is an abuse of the process of the Court. The Defendant succeeds on the first ground.
BACKGROUND
[2] Mr. Munzel's Statement of Claim, while not easy to follow, sets out his view that the Income Tax Act, R.S.C. 1985, c. 1 (5th supp) and the Pension Benefits Standards Act, R.S.C. 1985, c. P-7 improperly and unconstitutionally allow employers not only to withhold their pension fund contributions, but also allow employers to remove actuarial determined surplus money from pension funds. His concern is an under-funding of pension plans by reason of improper actuarial forecasting. While setting out a number of examples, and a good deal of case law in his Statement of Claim, the Plaintiff does touch on his connection to these allegations by pleading that he is a pensioner of a chartered bank. However, he then concedes, by reason of his age and health, that it is unlikely that he will benefit from any declaration, although he submitted, in argument to the Court, that his wife could conceivably be affected.
[3] The Defendant submits that not only has the Plaintiff no standing at law to bring this action, but also that the Plaintiff's action should be struck out under Federal Court Rule 221 as lacking a cause of action, as scandalous, frivolous or vexatious, or as an abuse of process.
CONSIDERATION
Striking the Statement of Claim as frivolous, vexatious or abusive
[4] While the Plaintiff, who acts for himself, seems sincere in what he is trying to do and has put substantial effort into drafting the Statement of Claim, it has a number of faults and indeed, might be struck out under Rule 221 by reason of a lack of particulars and as an abuse, for in its present form it would be exceedingly difficult for the court to regulate.
[5] To elaborate, Mr. Munzel asserts, both in argument and in his written submissions, that his Statement of Claim is clear and contains sufficient particulars and facts. Leaving aside that a part of the Statement of Claim is made up of bare assertions, Mr. Munzel has not distinguished between example and law, on the one hand, and particulars and facts on the other hand. The former, while factual in a sense, are merely tools to illustrate and decide a claim which must be grounded on facts and particulars, the details relevant and personal to Mr. Munzel's situation. Here there are few, if any, facts and particulars, in this latter sense, which are relevant to Mr. Munzel's own situation, that of a pensioner under federal legislation, but a pensioner who is not affected by the legislation which he feels is in need of correction. While I must assume that what facts there are in the Statement of Claim are true, I would still be prepared to strike out the Statement of Claim as frivolous, vexatious or an abuse of process as claim without the slightest chance of success as drafted. However, Mr. Munzel might then be tempted to amend his Statement of Claim. That would be a fruitless task given that Mr. Munzel, as one who will not benefit, does not have standing to bring the claim: it is on this ground, to which I now turn, that I have struck out the action.
Standing to bring the action
[6] A person, in order to bring a claim to the courts, must be affected or aggrieved or otherwise have an interest sufficient to engage the assistance of the courts. As put by Jones and de Villars in Principles of Administrative Law, 1994 Carswell, at page 485, "... mere busy-bodies need not apply.", the authors relying upon, among other authority, Gouriet v. Union of Post Office Workers, [1978] A.C. 435 (H.L.) and League for Life in Manitoba Inc. v. Morgentaler (1985), 4 W.W.R. 633 (Man.Q.B.).
[7] This is not to say I view Mr. Munzel as a busy-body in an derogatory sense, but it is well established that no individual can, on his own initiative, come to the courts and sue on his own behalf unless it is to protect his private rights or contest a right asserted against him by another person. Here Mr. Munzel acknowledges that his private legal rights have been neither threatened nor breached at this point. While there might be a public right involved, that of some other group of pensioners, Mr. Munzel has to date neither suffered nor does he believe that in the future he will suffer damage. All of this may be analyzed in the context of standing to bring the claim, using the frame-work set out by the Supreme Court of Canada in Canadian Council of Churches v. Canada, [1992] 1 S.C.R. 236. There, Mr. Justice Cory, delivered the judgment of the Court, set out the principles for public interest standing in order to bring an action:
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It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court? (page 253) |
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I must therefore consider first, whether there is a serious issue of invalidity, second, whether Mr. Munzel has a genuine interest and finally whether there is another reasonable and effective way to bring the matter before the Court.
| (1) Serious issue of invalidity |
[8] The Statement of Claim alleges that the Income Tax Act and the Pension Benefit Standards Act, or portions of them, are unconstitutional (paragraph 14 of the Statement of Claim). However, Mr. Munzel does not go on to set out why the legislation is unconstitutional. This idea, that a mere distaste for legislation, or a general interest in testing the legislation is not enough, is touched upon by Chief Justice Laskin, albeit in a dissenting judgment, in [1981] 2 S.C.R. 575">Minister of Justice v. Borowski, [1981] 2 S.C.R. 575:
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I start with the proposition that, as a general rule, it is not open to a person, simply because he is a citizen and a taxpayer or is either the one or the other, to invoke the jurisdiction of a competent court to obtain a ruling on the interpretation or application of legislation, or on its validity, when that person is not either directly affect by the legislation or is not threatened by sanctions for an alleged violation of the legislation. Mere distaste has never been a ground upon which to seek the assistance of the court. Unless the legislation itself provides for a challenge to its meaning or application or validity by any citizen or taxpayer, the prevailing policy is that a challenger must show some special interest in the operation of the legislation beyond the general interest that is common to all members of the relevant society. (page 578) |
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Chief Justice Laskin goes on to note that the courts do not generally deal with "... questions in the abstract merely to satisfy a person's curiosity or perhaps his or her obsessiveness with a perceived injustice in the existing law." (page 579).
[9] In the present instance, Mr. Munzel has perceived an injustice which may result in the under-funding of some pensions. He believes his perception is supported by analysis of pension funding and by existing law. However, I am not prepared to accept that his Statement of Claim raises any serious issue as to the validity of the pension legislation which Mr. Munzel attacks. Rather, what is displayed is a distaste for the legislation and what, in Mr. Munzel's view, it allows employers to accomplish.
| (2) Demonstrations of a genuine interest |
[10] The Statement of Claim indicates that Mr. Munzel is both an old-age pensioner and receives pension benefits from an unidentified bank, presumably under a scheme to which the Pension Benefits Standards Act applies. The difficulty Mr. Munzel faces here is that he does not claim to be personally affected by foregone employer contributions or by surplus funds being taken out of a pension scheme by an employer. Indeed he submits that "... it is unlikely that the plaintiff would benefit from any potential changes discussed in this statement of claim: .... " but that the action is "... for the benefit of those who are unable & /or less capable to fend for their rights and privileges." (paragraph 12 of the Statement of Claim).
[11] The Plaintiff does not, in his Statement of Claim, establish a genuine interest. Moreover, there is no reason to believe that there are not other individuals with a genuine interest capable of bringing a similar claim.
| (3) Other reasonable and effective ways to bring the issue to the courts |
[12] That there are at least some other individuals who have a genuine interest and who may have been directly affected by the impugned legislation is clear in two ways. First, Mr. Munzel acknowledges that while he has not and will not be directly affected, the same might not be said about his wife, who is younger. Second, pension scheme issues relating to contribution holidays and enabling legislation have been before the Courts. Indeed, Mr. Munzel refers to several in his Statement of Claim, although without citations. Counsel for the Defendant refers to several similar cases, including Schmidt v. Air Products of Canada Ltd. [1994] 8 W.W.R. 305 (S.C.C.) involving the surplus in two private pension plans upon their being wound up; Hockin v. Bank of British Columbia (1990), 46 B.C.L.R. (2d) 382 (B.C.C.A.) concerning the withdrawal of surplus pension funds; and C.U.P.E. - C.L.C. Local 1000 v. Ontario Hydro (1989), 58 D.L.R. (4th) 552 (Ont.C.A.), leave to appeal to Supreme Court of Canada refused (1989), 104 N.R. 320, involving a contribution holiday. While it may be laudatory that Mr. Munzel wishes to bring this claim on behalf of others, whom he speculates may not be able to speak for themselves, there is no evidence to show a complete absence of individuals with standing who are unable to bring there own claims. Indeed, just the opposite is the situation.
CONCLUSION
[13] Mr. Munzel has put considerable effort into his foray into Federal Court in order to bring attention to what, in his sincere view, is an unfairness favouring employers, in federal pension legislation. However there is no general mechanism by which any citizen may make a claim to right a perceived inequity which does not inflict any special damage on that particular citizen.
[14] In the present instance, Mr. Munzel's private legal rights have neither been threatened nor breached. He has no genuine interest. It may be that a breach of a right of others in federally regulated pension schemes is involved and that they may have suffered or may apprehend damage: if so, those private citizens can sue in their own names. It is not for Mr. Munzel to bring proceedings in their names.
[15] While I have not used rule 221 of the Federal Court Rules to strike out the action as, per se, disclosing no reasonable cause of action, as scandalous, frivolous or vexatious, or as an abuse, rule 221 (formerly rule 419) may be utilized to strike out pleadings where the plaintiff has no standing: see Canadian Council of Churches v. Canada (1989), 27 F.T.R. 129 (T.D.); (1990), 106 N.R. 61 (F.C.A.); and [1992] 1 S.C.R. 236. In Canadian Council of Churches, in upholding the conclusions of the Federal Court of Appeal to strike out substantial portions of the statement of claim, the Supreme Court of Canada recognized the need to balance the access to Courts of public interest litigants against scarce judicial resources so that courts not become over-burdened with marginal or redundant suits brought by well-meaning persons (see pages 249 and 252). However, I must not place too great an emphasis on overburdening the Court with marginal or redundant suits, for a plaintiff with an action that stands even some small chance of success ought not to be deprived of a day in court. Indeed, I must exercise the discretion to strike out a statement of claim with reserve, doing so only where it is plain, obvious and beyond doubt that the plaintiff will not succeed. Mr. Munzel's action, by reason of his lack of standing, is futile. It is struck out without leave to amend.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
August 17, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: August 10, 1998
COURT NO.: T-1045-98
| STYLE OF CAUSE: GUNTHER R. MUNZEL, |
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF JOHN A. HARGRAVE, PROTHONOTARY
dated August 17, 1998
APPEARANCES:
Mr. Gunther R. Munzel for Plaintiff
| Ms. Adrienne Mahaffey for Defendant |
SOLICITORS OF RECORD:
| Morris Rosenberg for Defendant |
Deputy Attorney General
of Canada
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