Date:
20120119
Docket:
T-1819-11
Citation:
2012 FC 83
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, January 19, 2012
PRESENT:
The Honourable Mr. Justice Scott
BETWEEN:
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RICHARD TIMM
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Plaintiff
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and
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HER MAJESTY THE
QUEEN
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Defendant
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REASONS FOR
ORDER AND ORDER
Introduction
This is a motion by the plaintiff
under sections 50, 51 , 220, 221 and 369 of the Federal Courts Rules (SOR/98-102),
appealing an order made by Prothonotary Richard Morneau on December 12,
2011, allowing the defendant’s motion to strike out and to dismiss the action
under paragraphs 221(1)(c) and (f) of the Federal Courts
Rules, with costs in accordance with column IV of Tariff B, and without
leave to amend. The order further dismissed all of the heads of relief sought
by the plaintiff at pages 13 and 14 of his record in reply to the motion
to strike out and dismiss the action.
UPON reading
the written representations set out in the plaintiff’s motion record, filed
with this Court on December 21, 2011, and more specifically the arguments
asserting that the order made by Prothonotary Morneau on December 12 must be
set aside on the grounds that:
(a) the prothonotary erred
in fact and in law in that he found that it was entirely justified and
reasonable for the solicitors and deponents in file no. T-1110-10,
adjudicated by the Court on September 12, 2011, to have alleged or asserted
that the plaintiff did not tender or pay the required allowances to the three witnesses
summoned, and accordingly those persons committed none of the wrongful acts or
offences listed and described by the plaintiff in his statement of claim;
(b) the prothonotary erred
in finding that the existence of clause 8 in the memorandum of settlement
signed by the parties, allowing the plaintiff to challenge the motion to quash
in file no. T‑1110‑10, did not in any way mitigate the
vexatiousness of the plaintiff’s action;
(c) the prothonotary erred
in concluding that the plaintiff’s action was without merit in fact and in law
and had no chance of succeeding because it was based on an incorrect interpretation
of the concept of perjury and a failure to understand how our judicial system
operates;
(d) the prothonotary erred in
concluding that the plaintiff’s action was based solely on an incorrect
understanding of the basic principles of litigation and a mistaken
interpretation of the Federal Courts Rules;
(e) the prothonotary erred
in concluding that the plaintiff’s action was purely vexatious and in finding
that the action amounted to nothing less than an attack on the judicial system;
(f) the prothonotary erred
because he did not have jurisdiction to hear the case since it involved a claim
for damages exceeding $50,000 and not a simplified action;
(g) the prothonotary erred
in failing to rule on the heads of relief sought in the plaintiff’s reply
record;
AND
HAVING CONSIDERED the defendant’s written representations
in her reply record filed with this Court on January 4, 2012, in which the
defendant seeks the dismissal of the application for review of the order for
the following reasons:
(a) when the plaintiff was
examined on November 22, 2011, he admitted that he had not tendered or paid any
allowance to the three witnesses whom he had summoned by subpoena, and
accordingly the sworn statements by Julie Bergevin, Edith Desnoyer and Diane
Pilon could not have constituted perjury; the defendant submits that it was
therefore open to the prothonotary to conclude that the plaintiff’s action was
without merit in fact and in law;
(b) the plaintiff had no
chance of success since the plaintiff’s entire action was based on an incorrect
interpretation of the concept of perjury and a failure to understand how our
judicial system operates;
(c) the plaintiff’s action
is based solely on an incorrect understanding of the basic principles of
litigation and an incorrect interpretation of the Federal Courts Rules;
(d) the plaintiff’s action is
purely vexations and amounts to nothing less than an attack on the judicial
system and its representatives;
(e) the plaintiff’s action
is a flagrant abuse of process;
AND
HAVING CONSIDERED the order made by Prothonotary Morneau
and the tests concerning appeals from a decision of a prothonotary laid down by
the Federal Court of Appeal in Aqua-Gem Investments Ltd, 1993 2 FC 425,
149 NR 273 and Merck Co v Apotex Inc, 2003 FCA 488, 4004 2 FCR at
para. 19:
Discretionary orders of prothonotaries ought not to
be disturbed on appeal unless (a) the question raised in the motion are vital
to the final issue of the case, or (b) the orders are clearly wrong, in the
sense that the exercise of the discretion by the prothonotary was based on a
wrong principle or upon a misapprehension of the facts.
AND
HAVING CONSIDERED and reviewed the transcript of the
examination of the plaintiff held on November 22, 2011, and concluded that
the prothonotary:
(a) did not err in law or
make incorrect findings in his assessment of the evidence in the record, since
the plaintiff admitted that he had not paid or tendered the prescribed amounts
to the three witnesses whom he had summoned by subpoena, and accordingly the
deponents could not have perjured themselves when they so stated under oath;
(b) did not err in his
assessment of paragraph 8 of the memorandum of settlement signed by the
plaintiff and the Attorney General of Canada or of its impact in file no. T-1819-11;
(c) did not err and disposed
of the heads of relief sought in the plaintiff’s reply record, since he
dismissed them;
(d) concludes that the
prothonotary had jurisdiction to dispose of the motion under the Federal
Courts Rules and could reasonably have concluded that the plaintiff’s
action was vexatious and futile, even if the amount claimed exceeds $50,000
(see the decision in Maheux v Canada, 2011 FC 901, [2011] FCJ
No. 1126 at para. 7; First Canadians’ Constitution
Draft Committee the United Korean Government (Canada) v Canada, 2004 FCA 93, 238 DLR (4th) 306).
ORDER
THE
COURT
dismisses the plaintiff’s appeal with costs.
“André
F. J. Scott”
Certified
true translation
Daniela
Guglietta, Reviser
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