[1] The Defendant seeks to strike out or have dismissed the claim of the Plaintiff, who is self-represented. The Plaintiff has filed a 10-page single-spaced statement of claim, which in some respects appears to be a selective narrative of his life in Canada and in the United States during the past 20 years. It is not an easy narrative to follow, however the general thrust is that he has been under the surveillance and control of Canadian and American security and intelligence agencies throughout and has been guided, controlled and coerced by those agencies to the extent that he has been unable to exercise any free will. This systematic program, run by the agencies, which are not identified in the statement of claim, has run and mandated all of the Plaintiff's actions through "acts", "setups", "pre-specified scenarios" and "symbolic messages" including, but not limited to mysterious automobile breakdowns, deaths in his family, interference with his love life, interference with his jobs and work, health problems and discontinuance of welfare payments. Yet the statement of claim contains virtually no particulars.
[2] In an effort to particularize the statement of claim the Plaintiff has provided a number of bare facts, in his present response to the Defendant's motion to strike out the statement of claim. There, by way of example, the Plaintiff refers to the "curious case of a neighbour's dog", which kept attacking and biting the Plaintiff, as an elaborately staged act involving neighbours, S.P.C.A. staff, his landlord and the government, the latter intending all of this as a directive to convey some message.
CONSIDERATION
[3] The Defendant seeks to strike out the statement of claim on the basis that it discloses no reasonable cause of action, is immaterial and redundant, is frivolous or vexatious and is an abuse of process, all being grounds set out in Rule 221(1). The Defendant has successfully achieved this objective by establishing that it is plain, obvious and beyond doubt that the statement of claim discloses no reasonable cause of action: see, for example to the often cited case of Hunt v. Careys Canada Inc. [1990] 2 S.C.R. 959, at page 980. In applying the test I must assume the facts set out in the statement of claim can be proven. Unless it is plain, obvious and beyond doubt that the claim discloses no reasonable cause of action, the pleading may not be struck out. The same test is applied to the other grounds under Rule 221(1).
REASONABLE CAUSE OF ACTION
[4] The Crown, as a starting point, refers to Kiely v. Canada (1987) 10 F.T.R. 10, in which Associate Senior Prothonotary Giles observed, at page 11 that:
It is my understanding that to disclose a cause of action a statement of claim must 1. allege facts which are capable of giving rise to a cause of action, 2. indicate the nature of the action which is to be founded on those facts and 3. indicate the relief sought which must be of a type which the action could produce and which the court must have jurisdiction to grant. The statement of claim in this action is so mixed up that it is not possible for the court or the defendant to ascertain the claim put forward. The statement of claim should therefore be struck out. However, the defendant Crown also sought that it be struck out without leave to amend. For a claim to be struck without leave there must be no glimmering or scintilla of a cause in the pleading.
Kiely therefore stand for the proposition that the statement of claim must set out facts capable of giving rise to the cause of action, and it must demonstrate the nature of the action on the basis of those facts and indicate the relief sought, which must be within the jurisdiction of the Court. Mr. Giles then observed that to strike out without leave to amend, there must be "no glimmering or scintilla of a cause" of action. On this basis the present statement of claim, taken as a whole, is fundamentally flawed, for there is no coherent or complete statement of material facts giving rise to any cause of action, let alone a reasonable cause of action.
[5] To elaborate on this, while the Plaintiff sues the Crown, he does not specify, in the statement of claim, which departments of the federal government have committed any acts or omissions, but merely, in paragraph 2 of the statement of claim, alleges that he "has been a subject of surveillance activity by the Defendant's security and intelligence agencies since arrival in Canada". Carrying this farther, the Crown is only vicariously liable if a servant of the Crown would personally be liable, yet no Crown servant has been identified. The Plaintiff, in his submissions on this motion, submits it is likely that more than one government department has been involved and refers to CSIS and the RCMP: this does not advance the statement of claim enough to either disclose a reasonable cause of action or to facilitate any amendment. Rather it points to a complete absence of material facts.
[6] I now turn to consider the nature of material facts. Federal Court Rule 174 requires that:
Every pleading shall contain a concise statement of material facts on which the party relies, but shall not include evidence by which those facts are to be proved.
Crucial to section 174 is defining a material fact. Mr. Peter Fraser, Q.C. and Master John Horn provide a consideration of the definition of a material fact, equating it to an essential fact, at pages 224 and 225 of volume 1 of The Conduct of Civil Litigation in British Columbia, Butterworth, Toronto, 1978, going on to observe that a material fact is not always easy to delineate, because it amounts to a prediction of what will be necessary to prove at trial. Certainly, on the one hand, a material fact is one that a party is obliged to plead and when in doubt should plead, but on the other hand, one can certainly recognize when a statement of claim contains no material facts, in the sense of particularized material facts, as is the situation in this instance. Here it is profitable to refer to a passage from Homalco Indian Band v. The Queen, a 13 November 1998 decision of Mr. Justice Smith, then of the B.C. Supreme Court, docket C944747:
[5] The ultimate function of pleadings is to clearly define the issues of fact and law to be determined by the court. The issues must be defined for each cause of action relied upon by the plaintiff. That process is begun by the plaintiff stating, for each cause, the material fact, that is, those facts necessary for the purpose of formulating a complete cause of action: Troup v. McPherson (1965), 53 W.W.R. 37 (B.C.S.C.) at 39. The defendant, upon seeing the case to be met, must then respond to the plaintiff's allegations in such a way that the court will understand from the pleadings what issues of fact and law it will be called upon to decide.
The important points made by Mr. Justice Smith, as he then was, is that the Defendant, upon reading the statement of claim, must be able to respond in such a way that the Court will understand what the action is all about. I would go on to add that the Court could find it virtually impossible to regulate the trial of a matter that is pleaded without sufficient particulars. In the present instance the Court would find it impossible to regulate the trial or to transmute the allegations, such as they are, into remedies. As I pointed out Inmates of Mountain Prison v. The Queen (1998) 146 F.T.R. 265 at 267, such a situation constitutes an abuse of the system sufficient to strike out a statement of claim.
[7] Still dealing with the factual basis required to support a reasonable cause of action, Mr. Justice MacKay gave the following guidance in Kelly Lake Creen Nation v. Canada (1997) F.T.R. 9 at 18:
[19] Nevertheless, where bare conclusions are set out without a supporting factual basis, a claim has been found not to disclose a reasonable cause of action [see footnote 14]. In this regard, I note Mr. Justice Rouleau's decision in Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare) and Apotex Inc. et al. (No. 2) [(1987) 11 F.T.R. 121 at 128] where he sets out the basic rules of pleading as follows:
"The rules governing pleadings establish the fundamental rule that the plaintiff is under an obligation to plead material facts that disclose a reasonable cause of action. This very basic rule of pleadings involves four separate elements: (1) every pleading must state facts and not merely conclusions of law; (2) it must include material facts; (3) it must state facts and not the evidence by which they are to be proved; and (4) it must state facts concisely in a summary form (See Odgers, Principles of Pleading and Practice (21st Ed.), p. 94)."
Mr. Justice MacKay went on to observe that the pleadings in Kelly Lake did not effectively set out the material facts necessary to support the action, although a further amended statement of claim might salvage the action, which I take it would otherwise have been struck out.
[8] In the present instance there are not only insufficient material facts to constitute a reasonable cause of action, but also, the pleading is vexatious in that it is so vague that the judge at trial would not be able to regulate the proceedings or transmute the allegations into appropriate remedies.
A PROLIX STATEMENT OF CLAIM
[9] The Crown also submits that the statement of claim ought to be struck out as prolix for it is immaterial and redundant. Here the Crown specifically to paragraph 26 of the statement of claim, two and a half pages of single-spaced immaterial facts. All or most of the balance of the statement of claim falls into a similar category of prolixity and redundancy and as such it ought to be struck out under Rule 221(1)(b).
ABUSE OF PROCESS
[10] The Crown also contends that the statement of claim is an abuse of process, a ground for striking out under Rule 221(1)(f). Here the Crown refers to Merck & Co. et al. v. Nu-Pharm Inc. et al. (1999) 179 F.T.R. 87, a decision of Madam Prothonotary Aronovitch, in which she observed, at page 95 that:
[29] A party may plead conclusions of law, however a conclusion of law pleaded without support of material facts is defective and may be struck out as an abuse of Court. It is an abuse of Court to simply assert a conclusion of law without furnishing to the Court and the other party the factual underpinning for the assertion. Jackett, P. addressed the need for material facts in a patent infringement case in Dow Chemical Co. v. Kayson Plastics & Chemicals Ltd. (1966), 47 C.P.R. 1 (Ex. Ct.).
"If, however, the plaintiff has no ground for asserting that the defendant has done any particular act that, according to him, constituted an infringement of his rights, I should have thought that he has no basis for institution of proceedings If the plaintiff does not know what his claim is, "he has no right to make a statement of claim at all": [citations omitted] A bare assertion that the defendant has infringed the plaintiff's rights is not an allegation of facts constituting a cause of action and a statement of claim on which that is the only assertion of infringement could be struck out as being an abuse of the process of the court." [p. 5]
The point here is that it is an abuse to merely assert conclusions without furnishing, to both the opposing party and to the Court, the necessary factual underpinnings. This is a sign that the Plaintiff does not know the nature of the claim and has no right to either assert it or to subject the other side or the Court to such a claim. Such a pleading should be struck out as an abuse.
[11] The concept of the inability of the Court to regulate a proceeding, where a statement of claim contains a multitude of allegations, without any specifics, is one that I dealt with as an abuse in Yearsley v. Canada (2001) 208 F.T.R. 38 at 42-43:
[15] Where a pleading is drafted in such a way that a court will not be able to regulate a proceeding, a court may strike out the pleading as an abuse of process of the court, for the court has the jurisdiction to protect itself from such an abuse. Where pleadings are vague, or confusing, or contain many different allegations, so that it would be impossible for a court to regulate a trial of the matter, that is an abuse of the system which will lead to a statement of claim being struck out: here, I will refer to an on-point passage from Mountain Prison (Inmates) v. Canada, (1998), 146 F.T.R. 265 (T.D. Protho.), at 267:
"The statement of claim also suffers from a second fatal defect. It is at first reading confusing. I have again read through the statement of claim with a view to giving the Plaintiff the benefit of any doubt. The statement of claim contains so many different allegations, without any specifics and so many different types of relief, many of which are difficult to connect to the statement of claim, that it would be near impossible for a Court to regulate the trial of the matter or to transmute the allegations into remedies. As such it is an abuse of the system. The statement of claim is therefore struck out."
What is important to keep in mind here is that principal functions of pleadings are to define the issues clearly and to give fair notice of the case the other side must meet and in doing so provide enough specifics and guidance so that the Court may properly regulate the trial and arrive at appropriate remedies.
[12] In the present instance the statement of claim, with its varied allegations, but without any specifics, is clearly an abuse and therefore is also struck out on that basis.
POSSIBLE AMENDMENT
[13] Finally, I must consider whether any amendment might assist the Plaintiff. Here I turn to the concept set out in Kiely v. Canada (supra), at page 11, that "For a claim to be struck out without leave there must be no glimmering or scintilla of a cause in the pleading.". That is the nature of and situation in the statement of claim which Mr. Bashi has filed in the present instance. There is no scintilla of a cause of action, or a proper claim or, for that matter, an available remedy which flows from the statement of claim, which might be augmented or elaborated upon in order to produce any cause of action.
CONCLUSION
[14] On the basis of the statement of claim and even taking into account Mr. Bashi's submissions and assertions in his written argument on this motion the shortcomings in the statement of claim are both fatal and cannot be rectified by amendment. It is plain, obvious and beyond doubt that the claim will not succeed. The statement of claim and is struck out and dismissed, without leave to amend.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1987-03
STYLE OF CAUSE: RAMTIN BASHI v. HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Mr. John A. Hargrave, Prothonotary
DATED: January 20, 2004
WRITTEN REPRESENTATIONS BY:
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Ramtin Bashi
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FOR THE PLAINTIFF
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Glenn Rosenfeld
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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