Date:
20121214
Docket:
T-1336-12
Citation:
2012 FC 1478
Ottawa, Ontario, December 14, 2012
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
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TERRANCE
("TERRY") TEW
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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
[1]
The
Defendant Her Majesty the Queen as represented by the Department of Justice has
brought a motion to strike the Statement of Claim herein without leave to
amend, with costs.
[2]
The
Plaintiff is self-represented. He is an inmate of Warkworth Institution, a
medium security institution administered by the Correctional Service of Canada.
He has commenced an action by a Statement of Claim dated 1st day of
July, 2012 claiming declaratory relief in a number of respects: an accounting
of what he describes as a multi-billion dollar budget presently assigned to
Correctional Services Canada, solicitor/client costs, or similar and other
relief. An Amended Statement of Claim claims similar relief, plus claiming a
view of Unit 5 of Warkworth Institute and an accounting of the “multi-million-dollar
budget presently assigned (to) Warkworth Institute”; and an accounting of all
room and board deductions made by the Defendant. That Amended Claim was filed
August 1, 2012. I will consider the motion to be directed against the Amended
Claim.
[3]
The
motion is brought under Rule 221(1), subrules a), c) and f). An affidavit of Rachel
Doran is filed in support of the motion. I will disregard this affidavit, first
because no affidavit can be filed in respect of subrule a); second, because Ms.
Doran appears as a solicitor of record for the Defendant and Rule 82 precludes
the use of such an affidavit without leave and no reason for giving leave has
been shown; third, the affidavit simply gives hearsay evidence. No reason has
been shown why the person having knowledge could not have provided the
information directly.
[4]
The
action and relief sought, to use the words of the Plaintiff at paragraph 126 of
his memorandum, is focused squarely on the issue of double-bunking. The
Plaintiff, it appears, was – at least for some period of time – required to
share a cell with another inmate.
[5]
With
respect to the declaratory relief sought, the Federal Courts Act, RSC
1985, c. F-7, subsections 18(1) (a) and 18.1(1), together with Federal
Courts Rules 300 and following, require that proceedings seeking
declaratory relief shall be proceeded with by way of an application, not an
action. Section 18.4(2) provides that the Court may convert an application to
an action, but not the other way around. An application is to be commenced by a
Notice of Application supported by affidavit evidence. The respondent may
appear and file its affidavit evidence in response. Cross-examination may take
place. Written memoranda are exchanged, and the matter is set down for a
hearing. The proceeding is much simpler and quicker than an action. Therefore,
in seeking declaratory relief, the Plaintiff, who would be described as an
Applicant, should proceed by way of an application. I will not prejudice the
Plaintiff/Applicant if he were to file an application as far as date of
instituting proceedings; I would deem the date to be July 1, 2012, the date of
the original Statement of Claim, if the application is filed forthwith. The
Application would have to be properly constituted and claim proper relief.
[6]
As
to the other relief claimed - accounting of various kinds - the Plaintiff has
made bald assertions as to multi-million dollar budgets assigned to
Correctional Services Canada and Warkworth Institute. No support for that
assertion has been given. The Plaintiff has not asserted that there is any duty
toward him to provide such an accounting, nor has the Plaintiff provided a
proper foundation to establish that there is a public interest, represented by
him, in providing such an accounting.
[7]
As
to an accounting of room and board deductions respecting the Defendant, he has
not established that he has a right to such accounting; or if he does, that he
asked for it and was provided no reasonable excuse for not providing it. The
same pertains to a request for a view of certain premises within Warkworth
Institute.
[8]
The
Plaintiff’s pleading and argument presented by him on this motion indicate that
he has made some study of some of the law applicable to this area, but he has
not expressed himself in a composed fashion free of rhetoric or aspersions or
unwarranted personal attacks on the government’s lawyers. I repeat what I
recently wrote in Brazeau et al v Her Majesty the Queen, 2012 FC 1300 at
paragraphs 7, 12 and 13:
7 I start with noting that none of the
Plaintiffs are lawyers. At paragraph 6 of their Memorandum of Argument, they
state that they "...are not legally trained and must prepare and argue
their case without the assistance/advice of counsel...". Nonetheless, a
reading of the Claim and other materials provided by the Plaintiffs
demonstrates that considerable time and effort has been expended by one or more
of them in conducting some sort of legal research into the matter. Therein lies
one of the problems encountered by self-represented litigants such as the
Plaintiffs. Legal training involves more than just reading materials and
copying from precedents. It requires a thorough knowledge of the law and how it
is practised, and the exercise of experienced judgment in determining, for
instance, whether a claim should be made to the Courts or to some other person
or tribunal; how that claim fits within the principles of law; and how that
claim is to be set forth properly in the relevant documents in which a claim is
submitted. While many people can wield a knife, not all are surgeons. While
many people can read Rules of Practice and legal texts, not all are barristers
or solicitors. It takes not only knowledge, but thorough knowledge, exercised
through experienced judgment to get it right.
. . .
12 The Rules of this Court, including Rule 174,
require a pleading to contain a concise statement of the material facts. Simply
to conclude, for example, that barber services were not provided, or that
library services were inadequate; or that access to sunlight was not provided,
is insufficient. What happened, when, and where; who was involved must be
clearly and precisely set out. What is the standard required by law? How did
the Defendant's servants fall short of that standard? All of this is required
of a proper pleading.
13 Should the Court be involved at this time?
There are more appropriate resources through which anger and frustration can be
worked out. There are resources through which inadequate services can be
identified and redressed. These include mediation and grievance procedures. The
Plaintiffs in their amended Record, paragraph 17, set out a long list of
reference numbers, presumably identifying grievance procedures that have been
initiated. While in some circumstances, the Court has permitted an action to
proceed notwithstanding the availability or pursuit of a grievance process, the
more usual and more desirable procedure is that a proper grievance or
grievances should be fairly pursued and determined before the Court is asked to
address the situation.
[9]
The
Plaintiff should seek the advice and assistance of a competent lawyer. Legal
Aid and other services are available if he cannot otherwise afford a lawyer. It
is dangerous for a litigant to be self-represented in matters of this kind. The
resources of the Court are limited and should be accessed only after mature and
thoughtful consideration aided by professional legal advice. The Courts are not
a forum for venting anger or frustration, nor a playground for those exercising
newfound lawyerlike skills.
[10]
Accordingly,
I will strike out the Amended Statement of Claim without leave to amend;
however, also without prejudice to the commencement of an application limited
to declaratory relief. That application, if commenced within forty-five (45)
days may, for limitations purposes, be deemed to have been filed July 1, 2012.
This is not to preclude any challenge to the propriety of any application
filed. The advice of a competent lawyer should be obtained and followed.
[11]
I
will not award costs to any party.
ORDER
FOR
THE REASONS PROVIDED:
THIS
COURT ORDERS that:
1.
The
motion is granted. The Amended Statement of Claim is struck out without leave
to amend; however, without prejudice to the commencement of an application on
terms as set out in the Reasons; and
2.
No
order as to costs.
"Roger T.
Hughes"
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