Rochon v. Canada, docket T-1887-97

Date: 19971124

Docket: T-1887-97

BETWEEN:

     JOHN JOSEPH ARTHUR ROCHON

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN

     Defendant

     REASONS FOR ORDER

JOHN A. HARGRAVE

PROTHONOTARY

[1]      The Plaintiff, an inmate at the Drumheller Institution who acts for himself, has filed a 23 page Statement of Claim, substantial portions of it single spaced: the Plaintiff says he has an additional claim which he will be pursuing in due course. The present action involves claims and relief arising out of the conditions of his incarceration. The Plaintiff seeks, among other things, injunctive relief, punitive and exemplary damages of $7,000,000.00, contingent punitive and exemplary damages of $10,000,000.00 for which no cause of action has as yet arisen and ongoing punitive and exemplary damages of $1,000 per day.

[2]      The Defendant, by motion filed 23 October 1997, moves to strike out the Statement of Claim, submitting that much of it contains either mere assertions which cannot form the basis of causes of action or is argument which should be left until the trial of the matter. Further, the Defendant points out that some of the Statement of Claim is anticipatory in nature. Finally, the Defendant takes exception to injunctive relief against administrative decisions, of a federal board, commission or other tribunal, as defined in section 2 of the Federal Court Act, being sought in an action, as opposed to in a judicial review proceeding.

[3]      On considering the Defendant's motion, as a motion in writing, together with the Plaintiff's subsequent motion in writing, which I touch on below, my initial reaction was to make an order, without reasons, striking out the entire body of the Statement of Claim, with leave to amend those portions of the Statement of Claim seeking damages, excluding claims based on causes of action which have not yet arisen. However, that approach would likely leave the Plaintiff none the wiser. The result could require further applications by the Defendant, in this and in proceedings to come and further work for the Court, both of which might well be avoided by an explanation. Thus the present reasons which, while they contain, in part, well canvassed and even trite law, may be of assistance in explaining to the Plaintiff the nature of the procedural errors which have resulted in the Statement of Claim being struck out, with leave to file a more limited Amended Statement of Claim.

[4]      More recently, on 13 November 1997, the Plaintiff filed a Notice of Motion first, to allow his action to proceed, on the basis of a Statement of Claim as filed; second, to require that the Manitoba Legal Aid authority provide him with counsel; third, to compel the Manitoba Legal Aid Council to add a further claim to the Statement of Claim; and finally, to have this action stayed until the Plaintiff is provided with counsel.

ANALYSIS

The Plaintiff's Motion

[5]      The Plaintiff's motion is dismissed. It is not appropriate to counter a motion to strike-out with a motion to allow the action to proceed. The Plaintiff has submitted a fairly lengthy written response to the Defendant's motion to strike out the Statement of Claim. That is the appropriate route.

[6]      Second, this Court has no jurisdiction over the provincial Manitoba Legal Aid system nor over unknown counsel who has not only not yet been appointed, but also is not on the record.

[7]      Finally, given that the Court has no jurisdiction over the Manitoba Legal Aid system, or over counsel that the Plaintiff speculates might be appointed at some future date, it would be an abuse of process to stay the Plaintiff's action, at the request of the Plaintiff, leaving the Defendant in the uncertain position of having to deal with the present action at some time in the future, perhaps months or even years in the future. There is no substantial reason for a stay. Thus the Plaintiff's motion is dismissed in its entirety.

Some Applicable Procedural Law

[8]      A motion to strike out a statement of claim, or portions of it, under Rule 419(1)(a), on the ground that there is no reasonable cause of action, impose a heavy onus on a defendant. Under the procedure applicable to Rule 419(1)(a), I must, for the purposes of the motion, accept the Statement of Claim as if the facts had been proven, unless the facts are patently unreasonable. No affidavit evidence is allowed, when testing a statement of claim for a reasonable cause of action, except where there is a jurisdictional issue. In order to strike out a statement of claim the proceeding must be futile: it must be plain, obvious and beyond doubt that the proceeding will not succeed, otherwise it will not be struck out.

[9]      The Court also has the ability to protect a defendant when the statement of claim is in such a form that it is difficult or impossible for a defendant to answer it, for such a statement of claim constitutes an abuse of process. Similarly, when a statement of claim fails to set out a cause or causes of action in a reasonably concise, coherent and orderly way, the Court may be unable to properly control the proceeding: such a statement of claim may be struck out as an abuse of process or as a vexatious proceeding. The test that I should apply, in the case of a vexatious or abusive proceeding, is at least as stringent as that employed when a statement of claim is struck out as containing no reasonable cause of action.

[10]      A Court will not deny a plaintiff a day in Court if there is any chance of the claim succeeding. Indeed, if there is a possibility that the claim might succeed, were the statement of claim to be amended, an amendment ought to be allowed: to deny an amendment there must be no scintilla of a cause of action.

The Statement of Claim as an Abuse of Process

[11]      The Statement of Claim in this action contains a good deal of superfluous and argumentative material. While a Court will not strike out merely surplusage, that does not hold true when the statement of claim is such that a defendant would have difficulty in sorting out what ought to be dealt with. Here that is the situation.

[12]      In addition, the present Statement of Claim is such that a Court would have great difficulty in controlling a trial based upon such a prolix and disjointed statement of claim. For these reasons alone the Statement of Claim ought to be struck out. However, the Defendant does not argue that the Statement of Claim is an abuse, but rather concentrates Her submissions on a lack of a reasonable cause of action, in some instances characterizing paragraphs in the Statement of Claim as bare assertions incapable of supporting a cause of action, in other instances as paragraphs which are argumentative in nature and finally paragraphs seeking relief which is available not through a statement of claim, but rather only by way of judicial review. I will begin with this final point.

Irrelevant Pleas

[13]      Paragraphs 13, 14 and 56 through 66 are argumentative. The material in those paragraphs might be appropriate at trial but is irrelevant and prejudicial at this point. They are struck out.

[14]      Paragraphs 67.9 and 67.10 deal with matters which might or might not happen in the future. They are premature and irrelevant. They are also struck out.

Judicial Review

[15]      In paragraph 15 through 20 of the Statement of Claim, the Plaintiff refers to an involuntary transfer from the Boden Institution from the Drumheller Institution and the steps Mr. Rochon took to have correctional authorities rectify what he felt to be a transfer into an institutional situation dangerous to him. Paragraphs 21 through 22.7.4 contain much surplus material, but also set out, in part, the dangers Mr. Rochon feels he faces in the present prison situation, being a member of the general prison population as opposed to being segregated in protective custody.

[16]      Paragraphs 23 through 52 are difficult to categorize, however I must, as with the whole of the Statement of Claim, give them a broad and generous reading. In part these sections bear on damages arising out of prison incidents and also on incidents which occurred between the Plaintiff and correctional institution staff. These sections, because of their lengthy and disjointed nature, and because of a lack of particulars, would be very difficult for a defendant to construe and to deal with in a rational manner. But more important, they appear to culminate, at least in part, in sections 67.1 through 67.4 of the relief portion of the Statement of Claim, in a plea for injunctive relief. This injunctive relief seems to relate to decisions made by correctional authorities, both in institutions and in Ottawa and as such fall into the category of decisions made by a "federal board, commission or other tribunal" as defined in section 2 of the Federal Court Act. As such they must be dealt with not by way of an action, but rather by way of an application for judicial review under section 18 of the Federal Court Act. Sections 18(1) and (3) are as follows:

18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

[17]      In Gowrinathan v. Her Majesty the Queen (1996), 107 F.T.R. 64 (indexed as Sivaraj v. Canada) Madame Justice Tremblay-Lamer dealt with a situation in which a number of applicants had filed statements of claim which sought declaratory relief, a remedy available under section 18 of the Federal Court Act. In Gowrinathan, the defendant sought to strike out the statement of claim as failing to disclose any reasonable cause of action. The court characterized the main issue as whether the applicants were correct in seeking declaratory relief by way of an action, rather than by way of judicial review:

[3] The main issue in the motions to strike is whether or not the applicants were correct in seeking declaratory relief by way of an action rather than proceeding with an application for judicial review. The respondent took the position that the relief sought should be obtained pursuant to s. 18(3) of the Federal Court Act, R.S.C. 1985, c. F-7, which provides that declaratory relief may only be obtained by way of a judicial review application rather than by way of an action pursuant to s. 17. (page 66)

Madame Justice Simpson, referred to Mobarakizadeh v. Canada (1993), 72 F.T.R. 30 at 33 for confirmation of the concept that the remedies referred to in section 18(1) of the Federal Court Act, being declaratory or injunctive relief may only be obtained by way of judicial review. She concluded that the proceedings should have been by way of an application for judicial review. Thus the defendant was successful in having the statement of claim struck out. The Court of Appeal summed up the issue and dismissed the appeal in Gowrinathan in an unreported decision of 23 May 1996, in action A-72-96:

We are of the view that the learned Motions Judge, Tremblay-Lamer J., did not err in striking the appellant's statement of claim as disclosing no reasonable cause of action. She did so on the basis that the declaratory and injunctive relief sought must be pursued by way of judicial review, as apposed [sic] to an action, pursuant to subsections 18(1) and (3) of the Federal Court Act. As we are substantially in agreement with the reasons given by the Motions Judge, the appeal must be dismissed.

Thus, whether the relief is of a declaratory nature, as it was in Gowrinathan, or of an injunctive nature as is the case here, it must be obtained by an application commenced by an originating notice of motion. In the present instance, those sections of the Statement of Claim, which would seem to be sections 15 through 20, 21 through 22.7.4 and 23 through 52, together with sections 67.1, .2, .3 and .4 of the prayer for relief are struck out. In that no amendment can assist the Plaintiff, they are struck out without leave to amend, so far as they relate to injunctive relief.

Claim for Damages

[18]      A fundamental principle of pleading is that a party must set out the material facts relied upon: see Rule 408(1). It is helpful if a pleading can be brief and in a logical narrative form, so that the other side may clearly know the case to be met.

[19]      One of the pitfalls of pleading is to set out bare assertions, without facts on which to base them. In the present instance the Plaintiff makes bare assertions and arrives at conclusions in his Statement of Claim, which do not support any cause of action. Sections 2.1 through 2.8, which purport to define the scope of this proceeding and other proceedings to follow, are an example of superfluous bare assertions which neither add anything to the action, nor support any cause of action.

[20]      Paragraphs 4 through 12 are again bare assertions: even giving them a generous reading it is difficult to see how they support a cause of action. Further, as they are phrased, it is difficult for the Defendant to understand how they ought to be answered, if at all. Similarly, paragraphs 15 through 21, to the extent they do not deal with background for the injunctive relief are again a series of assertions, which do not seem to lead anywhere. The same may be said of paragraph 53, which charges that Correction Service of Canada has withheld information from the public for the sole purpose of creating their own employment, section 54, which sets out assertions of harassment, but not material facts and section 55, in which the Plaintiff expresses a concern over the ability of Correction Service of Canada to control its staff members. These are assertions to which the Defendant, without a good deal more information, would have difficulty in responding.

[21]      This sort of situation was considered by the Federal Court of Appeal in Vojic v. Minister of National Revenue (1987), 2 C.T.C. 203, an appeal from hearings at which the entire statement of claim had been struck out for a failure to allege facts to which the respondent could plead. The Court of Appeal said:

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.

[22]      In the present instance the Plaintiff has made many assertions, including as to damages. However, the Statement of Claim is short on material facts which Mr. Rochon must plead if the Crown is to be required to respond with a defence. Just as with the Vojic case, Mr. Rochon's Statement of Claim does not disclose a reasonable cause of action for damages. The remainder of the Statement of Claim is therefor struck out. I am unable to say, giving the Statement of Claim a broad and generous reading, that there is not one scintilla of a cause of action and thus the Plaintiff may amend to claim damages for events which have taken place, so long as the Statement of Claim is drafted in such a manner as to set out, in a readable narrative, a precise statement of the material facts leading to relief in the form of damages.

CONCLUSION

[23]      A statement of claim should be a readable narrative, so at the conclusion both the defendant and the Court may understand the plaintiff's claim. This particular Statement of Claim, which is long and difficult to follow, contains few facts, but many bare statements in the nature of assertions and conclusions, together with irrelevant material and argument. It is a claim which does not set out, in a reasonable way, a reasonable cause of action. It seeks arbitrary and unsupported relief, as well as relief which may be had only by way of judicial review. The whole of the Statement of Claim, following the style of cause, is struck out.

[24]      The Plaintiff may file an amended statement of claim, seeking damages relating to events which have already taken place, within the next 30 days. Any proceeding to seek injunctive relief, against the Correctional Service of Canada, should be by way of a judicial review proceeding.

[25]      The Crown seeks the costs of the motion. Were this Mr. Rochon's first foray into the Federal Court I might be hesitant, even though he ought to be familiar with the basics necessary to plan a run his own litigation, to award costs. However, Mr. Rochon has litigated in this Court before. He therefor ought to be aware that costs may be awarded against a party who is not successful either at the end of the day or on an interim proceeding. In this instance, the Statement of Claim was overly long, difficult for a defendant to understand and plead to and most important, not one upon which the Plaintiff might succeed, either in damages or as to injunctive relief. The Plaintiff's motion was ill conceived. In short, the Defendant has been put to a good deal of trouble in dealing with a futile statement of claim and therefor will have its costs payable within the next 30 days. However, in setting costs I ought also to consider the Plaintiff's situation. All things considered, costs will be in the amount of $300.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

November 24, 1997

Vancouver, British Columbia