Date: 20010212
Docket: T-2652-89
Neutral citation: 2001 FCT 54
BETWEEN:
GUILLAUME KIBALE
Plaintiff
(Applicant)
- and -
HER MAJESTY THE QUEEN
Defendant
(Respondent)
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion by the plaintiff to set aside the order made by the prothonotary Aronovitch on August 18, 2000, allowing the motion by the defendant to strike the plaintiff's statement of claim and dismissing the motion to amend the statement of claim filed by the plaintiff.
FACTS
[2] On November 23, 1989 the applicant brought an action against the respondent for damages on account of the latter's refusal to hire him in the Public Service. The applicant's statement of claim contained 23 pages and over 73 paragraphs.
[3] On February 1, 1990 the respondent filed a motion to strike several paragraphs of the applicant's statement of claim and for particulars in respect of those paragraphs.
[4] On March 6, 1990 Addy J., as he then was, ordered that the applicant's statement of claim be struck in its entirety but reserved the applicant's right to file a new statement of claim in the instant case if he so desired.
[5] On March 12, 1990 the applicant filed a new statement of claim.
[6] On January 7, 2000 the respondent filed a motion to strike the applicant's statement of claim, filed on March 12, 1990, on the grounds that the action was res judicata and that the statement of claim neither disclosed a valid cause of action nor the material facts relied on by the applicant.
[7] On August 17, 2000 the prothonotary Aronovitch allowed the motion to strike the statement of claim and dismissed the action filed by the applicant on the ground that the statement of claim disclosed no valid cause of action and there was no basis for proceeding with the action, since the latter had no chance of being allowed.
[8] The prothonotary Aronovitch also dismissed the applicant's application that he be allowed to file a new statement of claim.
APPLICANT'S ARGUMENTS
[9] The applicant alleged that the prothonotary Aronovitch quashed the order made by Addy J. on March 7, 1990 contrary to s. 50(1)(g) of the Federal Court Rules, 1998 (hereinafter "the Rules").
[10] According to the applicant, the decision by Addy J. is now res judicata and the prothonotary Aronovitch did not have jurisdiction to quash it.
[11] The applicant further submitted that there was no rule or principle that this Court could only authorize a pleading to be amended once.
[12] The applicant indicated that in asking the Court to amend the second statement of claim his intention was not to amend it indefinitely but to amend it for the second time in view of the deficiencies it contained and also in view of the fact that he had prepared his second statement of claim when he was suffering from an affective disorder and problems with depression.
[13] The applicant maintained that he wished to file a draft amended statement of claim but a Registry employee suggested that he wait.
RESPONDENT'S ARGUMENTS
[14] The respondent noted that the applicant failed to mention that the allegations that he was the victim of injustices in a competition had been dismissed at several levels. The major stages in this process were summarized in Kibale v. Canada (1994), 169 N.R. 217 (F.C.A.); leave to appeal to S.C.C. denied, [1994] S.C.C.R. No. 151 (QL); [1998] S.C.C.R. No. 219 (QL).
[15] The respondent maintained that in order to disclose a cause of action a statement of claim must contain a concise statement of the material facts on which the applicant is relying in order to allow the opposing party to exercise his right to a full and complete defence. In the respondent's submission, this statement must contain a description of the alleged act or omission which is the source of liability and identify the government employee concerned.
[16] In the respondent's submission, the applicant's second statement of claim is simply a factual account and is devoid of the material facts which could be the basis for a cause of action either pursuant to the Public Service Employment Act or as the result of the breach of the plaintiff's rights under the Charter.
[17] The statement of claim was based on a [TRANSLATION] "systematic denial" of the plaintiff's right to become a public servant. Such a right does not exist. Only persons considered to be the best qualified can be appointed to a position in the federal Public Service.
[18] In support of this allegation of a "systematic denial", the plaintiff relied on another competition in which he had participated unsuccessfully. He failed to explain that the Court has dismissed his arguments in respect of that other competition, after hearing an action, namely Kibale v. Canada, supra.
[19] The respondent further alleged that an amendment to a statement of claim could only be authorized in order to protect the rights of all parties. In the case at bar, the prothonotary could not allow the desired amendment without causing serious injury to the defendant's right to a full and complete defence.
[20] The lack of a draft amended statement of claim makes it impossible for the Court to perform its task of determining whether the proposed amendment discloses a cause of action and whether it contains a concise statement of the material facts on which the plaintiff relies.
[21] The respondent asked that the motion in appeal from the decision by the prothonotary Aronovitch be dismissed.
POINTS AT ISSUE
[22] 1. Did the prothonotary Aronovitch have jurisdiction to make the order of August 17, 2000?
2. Did the prothonotary Aronovitch err in not authorizing the plaintiff to amend his second statement of claim?
ANALYSIS
1. Did the prothonotary Aronovitch have jurisdiction to make the order of August 17, 2000?
[23] The applicant maintained that the prothonotary Aronovitch did not have jurisdiction to make the order of August 17, 2000 since that order quashed the order made by Addy J. on March 6, 1990, and in the applicant's submission this is contrary to s. 50(1)(g) of the Rules, which reads as follows:
| A prothonotary may hear, and make any necessary orders relating to, any motion under these Rules other than a motion
. . . . .
(g) to stay, set aside or vary an order of a judge, other than an order made under paragraph 385(a), (b) or (c) . . .
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Le protonotaire peut entendre toute requête présentée en vertu des présentes règles - et rendre les ordonnances nécessaires s'y rapportant:
. . . . .
g) une requête pour annuler ou modifier l'ordonnance d'un juge ou pour y surseoir, sauf celle rendue aux termes des alinéas 385 a), b) ou c) . . .
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| |
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[24] Further, the applicant considered that the decision by Addy J. was subject to the res judicata rule and that the prothonotary Aronovitch accordingly could not make the order of August 17, 2000.
[25] I cannot accept the applicant's argument that by his order of August 17, 2000 the prothonotary Aronovitch quashed or varied the order by Addy J. contrary to s. 50(1)(g) of the Rules.
[26] The order by Addy J. related to the striking of the applicant's statement of claim filed on November 23, 1989 and to the facts that were before Addy J. on March 6, 1990. Based on the facts before him, Addy J. concluded that the statement of claim should be struck but that at that time it was proper to allow the applicant to retain his right to file a new statement of claim.
[27] The decision by Addy J. was not res judicata as regards the first statement of claim filed by the applicant on November 23, 1989. The motion filed before the prothonotary Aronovitch did not deal with the first statement of claim filed by the applicant or with the facts that were before Addy J. when he made his order of March 6, 1990.
[28] I therefore cannot accept that the order by Addy J. should be interpreted so as to preserve the applicant's right to file a new statement of claim forever. Such a result, besides being absurd, would mean that whatever the factual situation and new events which might occur after the order by Addy J., no subsequent motion to strike could make it possible to dismiss the action, even if it were an abuse of process or on any other ground mentioned in s. 221(1) of the Rules.
[29] Further, unlike the former s. 336 of the Rules, s. 50 of the Rules provides that a prothonotary has jurisdiction to make orders striking pleadings.
[30] I therefore consider that the prothonotary had jurisdiction to make the order of August 17, 2000.
2. Did the prothonotary Aronovitch err in not authorizing the plaintiff to amend his second statement of claim?
[31] The test for reviewing a discretionary decision by a prothonotary was laid down in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.). MacGuigan J.A. said:
I also agree with the Chief Justice in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they 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, or
(b) they raise questions vital to the final issue of the case
[32] In the case at bar the applicant alleged that the prothonotary Aronovitch erred in law in dismissing the action and not permitting him to amend his statement of claim for a second time.
[33] The test applicable to a motion to strike on the ground that a plaintiff's statement of claim discloses no cause of action was set out in Hunt v. Carey Inc., [1990] 2 S.C.R. 959. The Supreme Court of Canada indicated:
. . . assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the other listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).
[34] The Supreme Court of Canada had also explained the law on motions to strike in Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441:
The law then would appear to be clear. The facts pleaded are to be taken as proved. When so taken, the question is do they disclose a reasonable cause of action, i.e. a cause of action "with some chance of success" (Drummond Jackson v. British Medical Association, [1970] 1 All E.R. 1094) or, as Le Dain J. put it in Dowson v. Government of Canada (1981), 37 N.R. 127 (F.C.A.), at p. 138, is it "plain and obvious that the action cannot succeed?" Is it plain and obvious that the plaintiff's claim for declaratory or consequential relief cannot succeed?
[35] In Tench v. Canada, [2000] F.C.A. No. 861 (F.C.T.D.), O'Keefe J. dealt with the question of striking a statement of claim which had been re-amended by the plaintiff. In para. 10, he indicated:
There is no doubt that the provisions of the Federal Court Rules, 1998 (Rules 174 and 221) give the Court the power to strike out pleadings. However, the jurisprudence of this Court makes it very clear that this power should be used only in plain and obvious cases. Rouleau J. of this Court put this in succinct terms in Glaxo Canada v. Canada and Apotex (No. 2) (1987) 11 F.T.R. 121 (F.C.T.D.) at pages 128 and 129:
Jurisprudence has clearly established that the court should only strike out a pleading in plain and obvious cases. The summary procedure of striking out provided for in rule 419 is only appropriate where it is plainly evident that the statement of claim as it stands is insufficient, even if proven, to entitle the plaintiff to the relief for which it asks. So long as a statement of claim discloses some cause of action, or raises some question fit to be decided by trial, the mere fact that a case is weak is no ground for striking it out. The jurisdiction granted to the court by rule 149 is one which is to be exercised very sparingly and only in exceptional cases. Accordingly, an order will only be made in cases where it is obvious that the claim is devoid of all merit or cannot possibly succeed.
I have reviewed the re-amended Statement of Claim dated December 9, 1999 with this in mind and I have come to the conclusion that paragraphs 1, 2, 3, 5, 9, 10, 11, 12, 14, 15, 18, 19, 20 and 21 should not be struck. Paragraphs 22 - 34 will stand with the exceptions mentioned in paragraph 18 of this decision. In Glaxo, supra, Rouleau J. stated at pages 127-128:
In neither case, however, is the onus on the applicant an easy one to discharge. The court is always slow to strike out a statement of claim and dismiss an action under rule 419(1)(a) and will do so only when it is clear that by no proper amendment can the statement of claim be revised so as to disclose a reasonable cause of action. The test is just as stringent, if not more so, when dismissal is sought on the ground that the proceeding is frivolous or vexatious or an abuse of the process of the court. The court will not stop a proceeding and deny a plaintiff the right to have a case heard unless it is clear that the action is frivolous or vexatious or that the plaintiff has no reasonable cause of action and that to permit the action to proceed is an abuse of its process.
[36] The prothonotary Aronovitch explained his reasons for striking the statement of claim at para. 16 of the reasons for order.
After analysing the statement of claim, and assuming that the facts alleged are true, I am obliged to conclude that there is in fact no valid cause of action and so there is no justification for proceeding with the action, since it has no chance of being allowed. The statement of claim, which contains 12 allegations in all, is just a statement of facts, devoid of the material facts which could be the basis for the cause of action either pursuant to the Public Service Employment Act or on account of a breach of the plaintiff's rights under the Charter. I therefore conclude that the statement of claim should be struck out for this reason (Vojic v. M.N.R., [1987] 2 C.T.C. 203, 87 D.T.C. 5384 (F.C.A.)).
[37] Since the prothonotary Aronovitch used the correct test for striking a statement of claim, the question then is whether she made an improper assessment of the facts.
[38] In Vojic v. Canada (M.N.R.), [1987] F.C.J. No. 811 (F.C.A.), the Court of Appeal affirmed a prothonotary's decision to dismiss an action since there was no valid cause of action. The Court of Appeal indicated:
The Appellant seems unable to grasp that the bare assertion of his conclusions as to the nature of those actions are not the material facts which he must plead if the Respondent is to be required to answer his complaints in a law suit. It follows that the Statement of Claim does not disclose a reasonable cause of action and that it was properly struck out.
[39] In the opinion of the prothonotary Aronovitch, the applicant's statement of claim is only a statement of facts devoid of material facts. In my view, the prothonotary Aronovitch made no flagrant error in assessing the facts of the motion at bar. Indeed, I agree with the prothonotary Aronovitch when she says that the statement of claim is devoid of material facts. The statement of claim is only a series of vague allegations and opinions of the applicant which provide no basis for a valid cause of action.
[40] The prothonotary Aronovitch also rejected the applicant's application to amend his statement of claim, on the ground that this was an abuse of process.
[41] In Kiely v. The Queen (1987), 10 F.T.R. 10 (F.C.T.D.), the prothonotary Giles indicated:
For a claim to be struck without leave there must be no glimmering or scintilla of a cause in the pleading. The Statement of Claim in this action does not appear to be of the same class of confusion as that facing Cameron J. in Empire Dock Ltd. v. The Queen [1954] Ex. C.R. 46 and he there granted time to amend.
[42] However, it is worth noting that the applicant has already had an opportunity to file a new statement of claim, and he did so on March 12, 1990. Further, as the prothonotary Aronovitch noted, the applicant did not file an amended draft pleading in court, but a series of somewhat incoherent allegations which did not necessarily constitute material facts and which indeed recalled the deficiencies previously noted by Addy J.
[43] The plaintiff argued that he had prepared an amended statement of claim which would have contained all the facts relating to the case, in particular facts relating to reprehensible actions by the defendant's employees, and especially the many instances of mistreatment suffered and the physical and emotional problems that resulted therefrom.
[44] However, the plaintiff alleged that he lost this document in his move and ultimately filed his new statement of claim without the relevant additions, as he was the victim of depression at the time of these events.
[45] The plaintiff was unable to explain why he never asked the Court for leave to amend his statement of claim so as to add the relevant points or why he waited until the defendant again applied to dismiss the statement of claim before asking the Court for leave to amend.
[46] The plaintiff's explanation that an employee of the Court advised him to await the decision of the prothonotary Aronovitch before filing an amended draft statement of claim is not satisfactory.
[47] In these circumstances, the prothonotary Aronovitch's conclusion that allowing the applicant to amend his statement of claim simply on the basis of a series of vague allegations would be an abuse of process could not be regarded as a flagrant error that requires this Court's intervention.
[48] I therefore conclude that the prothonotary Aronovitch did not err when she dismissed the applicant's action. The instant motion appealing from the decision of the prothonotary Aronovitch is therefore dismissed.
[49] The whole with costs.
OTTAWA, ONTARIO
February 12, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-2652-89
STYLE OF CAUSE: Guillaume Kibale
v.
Her Majesty the Queen
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 29, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: February 12, 2001
APPEARANCES:
Guillaume Kibale FOR HIMSELF
Marie Crowley FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
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