Dockets: T-1299-11
T-1300-11
Citation:
2012 FC 220
Ottawa, Ontario, February 16, 2012
PRESENT: The Honourable Mr. Justice Harrington
Docket: T-1299-11
BETWEEN:
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THE ESTATE AND SURVIVORS OF
MORDRED HARDY, VETERAN
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Appellants/
Applicants
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent/
Respondent
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Docket: T-1300-11
AND
BETWEEN:
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THE ESTATE, WIDOW AND CHILDREN
OF MORDRED HARDY, VETERAN
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Appellants/
Applicants
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent/
Respondent
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REASONS FOR
ORDER AND ORDER
[1]
Helena
Audry, the widow of the late Mordred Hardy, is 91 years of age. She gets around
with the aid of a walker. She is the principal claimant, and perhaps the only
claimant, in these two proceedings against the Crown. She has the right to
represent herself. However, she has asked her son, Karl Hardy, who is not a
lawyer, to act in her stead. The Crown moved for a stay of proceedings pending
the appointment of a solicitor. Prothonotary Lafrenière granted the motion.
This is the appeal therefrom.
[2]
It
all began in 1943. Mordred Hardy was serving in the Royal Canadian Navy on
board of the HMCS Kamloops. In March of that year, there was a training
accident during a depth charge drill. Mr. Hardy was injured and was
hospitalized. A few months later he was discharged not because of his physical
injury, but on the grounds of schizophrenia. This has been a bone of contention
with the family for the past 69 years.
[3]
It
is alleged that soon after his discharge he applied for a disability pension
because of his physical injury, and again applied in 1975. However, it was only
in 1997 that he was finally awarded a disability pension based on a
degenerative disk disease caused by the depth charge blast. Mr. Hardy died in 1999.
Mrs. Hardy is entitled to a pension as a surviving spouse in accordance with
section 45 of the Pension Act.
[4]
In
2010, the Entitlement Review Panel varied the initial decision by granting
entitlement effective 27 November 1994, three years prior to the Minister’s
decision and an additional award of 24 months. The panel determined that Mr.
Hardy had made an application for a pension in 1975 and that he asked for help
in order to complete the form. No one answered him. The additional two years
were granted in accordance with section 39(2) of the Act as the panel was of
the opinion the pension should have been awarded earlier but was not “by
reasons of delays in securing service or other records or other administrative
difficulties beyond the control of the applicant.” As pointed out in Mackenzie
v Canada (Attorney General), 2007 FC 481, 311 FTR 157, this is a very harsh
provision. The decision of the Entitlement Review Panel was upheld in 2011 by
the Veterans Review and Appeal Board Canada. The next step is a judicial review
of that decision. Although the only beneficiary of the pension is Mrs. Hardy,
the style of cause of the application for judicial review in court docket
T-1299-11 reads: “The Estate and Survivors of Mordred Hardy, Veteran”.
[5]
In
addition, an action for damages was taken under court docket T-1300-11 by: “The
Estate, Widow and Children of Mordred Hardy”. The pleadings are replete with
very strong language. For instance, in anticipation of time bar arguments, it
is alleged that: “It would be awarding perjury, obstruction, fraud and
liability avoidance initiated and perpetuated by the government, continuously,
from 1943.”
[6]
The
Attorney General moved for a stay of proceedings until a solicitor was
appointed to represent the applicants/plaintiffs. Reliance was placed on rule
112 of the Federal Courts Rules which provides that unless the Court
orders otherwise, beneficiaries of an estate or trust are bound by an order
against the estate or trust, and rule 121 which provides that unless the Court
orders otherwise in special circumstances, a person who seeks to act in a
representative capacity shall be represented by a solicitor. The Attorney
General also stated that he intended to move to have the action under T-1300-11
struck, and failing that, sought additional time to file a statement of defence
until after the judicial review under T-1299-11 had been decided.
PROTHONOTARY
LAFRENIÈRE’S DECISION
[7]
Rules
119 and 121 of the Federal Courts Rules provide that an individual may
represent himself or herself, or otherwise be represented by a solicitor. A
person who purports to act in a representative capacity shall be represented by
a solicitor. However, the Court may, in special circumstances, order otherwise.
[8]
The
Prothonotary took note of the two styles of cause, each of which indicates that
there is more than one applicant or plaintiff, as the case may be. There was no
evidence that a grant of probate or letters of administration had been issued
in relation to the estate of Mordred Hardy. There was no evidence that Karl
Hardy had been authorized by the Estate of Mordred Hardy, or the widow,
children or survivors of Mordred Hardy to act on their behalf. Furthermore, the
Court should be satisfied that the party is unable to pay for a lawyer.
[9]
Other
factors considered were whether the proposed representative would be a witness
and had the ability to properly represent the party. The Prothonotary concluded
by stating that he was substantially in agreement with the written
representations filed on behalf of the Crown. The Attorney General had referred
to the decision of Associate Senior Prothonotary Giles in Bernard Estate v
Canada, 57 ACWS (3d) 928, [1995] FCJ No 1158 (QL), which dealt with an
action commenced by Ms. Bernard personally and as Committee for the Estate of
Edith Bernard, and possibly as the Executor of the Estate of Victor Bernard.
Prothonotary Giles relied on the old English case of Wedderburn v Wedderburn
(1853), 17 Beav 158, to hold that all plaintiffs, in the circumstances, must
speak with one voice. If the Committee must be represented by a solicitor, all
the other parties were to be represented by the same solicitor.
[10]
All
motions had been in writing up to this point, including the motion records on
the appeal of Prothonotary Lafrenière’s order. However, Mr. Justice Lemieux
determined that the underlying issues and evidence were so complex that the
appeal could not adequately be presented in writing. Consequently, he wisely
ordered that the hearing of the appeal take place at a special session of the
Court in Calgary.
THE HEARING ON
APPEAL
[11]
It
soon became evident that Mr. Hardy had no knowledge, whatsoever, of the case
law which deals with appeals from orders of prothonotaries to a judge of the
Federal Court. He made the point, however, that the Prothonotary made some
serious errors in fact:
a. in
fact, he had a power of attorney from his mother;
b. in
fact, Mordred Hardy lived in Quebec and had, by notarial will, left his entire
estate to his wife, Helena Audry. A notarial will need not be probated in Quebec.
c. he
also stated that efforts to hire a lawyer had been fruitless.
[12]
There
was, indeed, a power of attorney in the overall record, but not in reply to the
Crown’s motion for a stay pending the appointment of a solicitor. Rather, it
was found in support of a notice of motion for consolidation and a notice of
motion for an alternate written examination.
[13]
Crown
counsel also helpfully pointed out she had a copy of the will, which had formed
part of a reply record which the Prothonotary had not accepted for filing, as
the rules of procedure had not been followed. Post-hearing I had to do the
same.
[14]
In
the interests of justice, I invoked rule 351 of the Federal Courts Rules
which, in special circumstances, permits new evidence in appeal and accepted
copy of the will, as well as another power of attorney Mr. Hardy had,
unsuccessfully, attempted to file.
[15]
Mr.
Hardy stated that he had approached several lawyers who would not act. A number
of reasons were given. They were in a conflict of interest because they represented
the Crown in other matters; the case was too complex; they were not experts in
veterans’ pension matters; and they would not act on a contingency basis. He
was told that it would cost a good $100,000 to try these matters. Indeed, by
simply looking at the pleadings, and the record produced by Veterans Affairs,
$100,000 might be a serious underestimate.
APPEALS FROM
PROTHONOTARIES ORDERS
[16]
The
order was clearly discretionary. I can only exercise my discretion, anew, if
the question raised in the motion is vital to the final issue, or the order was
clearly wrong in the sense that the exercise of discretion was based on a wrong
principle or a misapprehension of the facts (Merck & Co v Apotex Inc,
2003 FCA 488, [2004] 2 FCR 459; Canada v Aqua-Gem Investments Ltd,
[1993] 2 FC 425, [1993] FCJ No 103 (QL), and Z.I. Pompey Industrie v
ECU-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450).
[17]
In
the particular circumstances of this case, I consider the decision to be vital.
In fact, the proceedings are stayed forever unless an attorney is appointed. I
also consider that the facts upon which Prothonotary Lafrenière exercised his
discretion were not the true facts. If it were not for the Crown’s help during
argument in locating documents, and my allowing new evidence, it would not have
been known that there is only claimant to the pension, that there is only one
heir, and that probate was not required. The old English case of Wedderburn,
above, which requires heirs to speak with one voice is not applicable, even
assuming it is still good law. The style of cause in T-1299-11 is a complete
misnomer and Mr. Hardy failed to bring his power of attorney and his late
father’s will to the attention of the Court in a timely and organized manner.
DISCRETION DE
NOVO
[18]
I
fear that Mr. Hardy will not adequately represent his mother.
[19]
I
fear that Mr. Hardy will use the courtroom as a bully pulpit.
[20]
I
fear that Mr. Hardy will be aggravating, as he lacks the manners and skill of a
trained barrister.
[21]
But
most of all, I fear that if Mr. Hardy does not represent his mother, no one
will. Her voice shall be silenced. She shall be driven from the judgment seat
without having the opportunity to make her case. As Mr. Justice
Pigeon said in Hamel v Brunelle, [1977] 1 S.C.R. 147, at page 156: “…que la
procédure reste la servante de la justice et n’en devienne jamais la
maîtresse.” / “…that procedure be the servant of justice not its mistress.” However, there
are limits.
[22]
Chief
Justice McLachlin has pointed out, time and time again, that: “Access to justice
is the greatest challenge facing the Canadian justice system.” As she said to
the Council of the Canadian Bar Association at the Canadian Legal Conference in
Calgary, Alberta, on 11 August 2007:
The cost of legal services limits
access to justice for many Canadians. The wealthy, and large corporations who
have the means to pay, have access to justice. So do the very poor, who,
despite its deficiencies in some areas, have access to legal aid, at least for
serious criminal charges where they face the possibility of imprisonment.
Middle income Canadians are hard hit, and often left with very the difficult
choices that if they want access to justice, they must put a second mortgage on
their home, or use funds set aside for a child’s education or for retirement.
The price of justice should not be so dear.
Self-represented litigants, some driven
by cost, and some who simply prefer to represent themselves, place burdens on
the courts and other parties to litigation. Judges must ensure that
unrepresented litigants are treated fairly, while at the same time, not
appearing partial to one of the parties.
[23]
In
the exercise of my discretion de novo, I shall grant the appeal.
[24]
A
motion for particulars will be welcome. Mr. Hardy has three siblings. However,
it is not at all clear from the statement of claim in T-1300-11 what interests
they are claiming. There is no indication that they have authorized Mr. Hardy
to act on their behalf. In any event, if absolutely necessary, they are
entitled to represent themselves.
[25]
In
his motion, the Attorney General sought ancillary relief as to timing. He
suggested that the action in T-1300-11 be stayed until the outcome of the
judicial review in T-1299-11. He also stated that he intended to seek
particulars and to move to have T-1300-11 struck. Some of these conclusions are
mutually exclusive. As the matters are under case management by Prothonotary
Lafrenière, I think it best that scheduling of these issues be worked out with
him. Until then, the Attorney General need not file his motion record in
T-1299-11 and his statement of defence in T-1300-11.
[26]
In
the circumstances, Mr. Hardy does not deserve costs.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that
1.
The
appeal from the order of Prothonotary Lafrenière in court dockets T-1299-11 and
T-1300-11 is granted.
2.
Mr.
Karl Hardy is authorized to represent the other parties of interest as
applicants or plaintiffs, as the case may be.
3.
Timing
of the Attorney General’s intended motions to strike, to obtain particulars, or
for a stay of T-1300-11 pending the determination of T-1299-11 are referred to
the case management judge, Prothonotary Lafrenière. Until then, the Attorney
General need not file his motion record in T-1299-11 and his statement of
defence in T-1300-11.
4.
The
whole without costs.
“Sean Harrington”
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