Date: 20110519
Docket: T-639-10
Citation: 2011 FC 582
Ottawa, Ontario, May 19,
2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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ZOLTAN ANDREW SIMON
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Plaintiff
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and
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HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA
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Defendant
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REASONS FOR ORDER AND
ORDER
[1]
Mr.
Simon has commenced an action against Her Majesty the Queen in the Right of
Canada (the Defendant). This is his second attempt to bring his action to the
Federal Court; his first Statement of Claim was struck. At this time, the
Defendant has brought a motion to strike the Amended Statement of Claim.
I. Background
[2]
The
facts underlying both the original Statement of Claim and this Amended
Statement of Claim are the same. They were set out in the decision of Justice
Zinn in Simon v. Her Majesty the Queen in the Right of Canada 2010 FC
617, [2010] FCJ No 752 (QL) at paragraphs 2-6 [Simon FC]:
[2] In January 1999 the plaintiff
sponsored Margarita Reyes, his then wife, and her two sons as permanent
residents of Canada. He signed a sponsorship
agreement with her whereby he undertook to provide her essential needs. He is
adamant that he had no such agreement with Canada.
[3] In June 2000, she and her sons
left him and they began to receive social assistance benefits from the Province of British Columbia. Mr. Simon was unaware of
these payments or that the Province of British Columbia held him
as their sponsor liable to repay them until some time in 2007.
[4] In 2008 and again in 2009 the Province of British Columbia
garnisheed funds standing to his credit in his tax account with Revenue Canada.
[5] Mr. Simon has since remarried
and he sought to sponsor his new family to come to Canada. That application was refused because
Mr. Simon was found to be in default of his previous undertaking. That
application was unsuccessfully appealed to the Immigration and Refugee Board of
Canada, Immigration Appeal Division. This Court refused leave to judicially
review that decision.
II. Judicial History
[3]
In
Simon FC, above, Justice Zinn concluded that the Statement of Claim
should be struck without leave to amend. His decision was based on his
conclusion that Mr. Simon’s claim did not fall within the jurisdiction of the
Federal Court. Justice Zinn awarded $500.00 costs to the Defendant.
[4]
Mr.
Simon appealed to the Federal Court of Appeal. In Simon v. Her Majesty the
Queen in the Right of Canada, 2011 FCA 6, 410 N.R.
374, the Court of Appeal allowed the appeal in part. While the Court of
Appeal concluded that the Statement of Claim should be struck, it disagreed
with Justice Zinn that the Federal Court did not have jurisdiction in all
matters potentially raised by the Statement of Claim.
[5]
The
Court of Appeal agreed with Justice Zinn that large aspects of Mr. Simon’s
claim did not fall within the jurisdiction of the Federal Court. Specifically,
the Court held that the Federal Court did not have jurisdiction to adjudicate
upon the existence or extent of any liability owed by Mr. Simon to the Government
of British Columbia in respect of social assistance benefits (paragraph 9).
However, the Court of Appeal found one area that had been overlooked by Justice
Zinn. As set out in paragraph 12:
[12] That
said, in my view the Judge overlooked an important aspect of Mr. Simon's claim:
whether the Canada Revenue Agency improperly paid monies owing to Mr. Simon
under the Income Tax Act to the government of British Columbia, without
any notice or explanation to Mr. Simon. There is no suggestion that
any garnishment order issued from a court of competent jurisdiction. It may be
that monies otherwise owing to Mr. Simon were applied to Mr. Simon's alleged
sponsorship debt pursuant to subsection 164(2) of the Income Tax Act,
R.S.C. 1985, (5th Supp.), c. 1. The propriety of the Canada Revenue Agency's
treatment of monies otherwise owing to Mr. Simon unquestionably falls within
the jurisdiction of the Federal Court. It follows, in my respectful view, that
the Federal Court erred in law by concluding that none of the matters
complained of by Mr. Simon fell within its jurisdiction.
[6]
The
Court of Appeal found that, although Justice Zinn was correct to strike the
Statement of Claim, it is not plain and obvious that, if amended, Mr. Simon's claim that the Canada
Revenue Agency erred in its treatment of monies he was otherwise entitled to would
not disclose a reasonable cause of action. The result was that Mr. Simon was
granted leave to amend his pleadings. The Amended Statement of Claim was Mr.
Simon’s effort to do so.
[7]
In
its decision, the Court of Appeal provided very precise and helpful advice to
Mr. Simon, at paragraphs 17-20. Briefly stated, the Court advised that:
·
failure
to comply with all of the Rules of the Federal Court governing pleadings would
likely lead to the claim being struck (paragraph 17);
·
each
constituent element of each cause of action must be pleaded with sufficient
articularity a requirement that is not satisfied with a narrative of the events
(paragraph 18);
·
materials
relating to the propriety of the claim to reimbursement advanced by authorities
in British
Columbia
will not likely fall within the jurisdiction of the Federal Court (paragraph
19); and
·
certain
relief sought against federal entities may only be claimed through an
application for judicial review (paragraph 20).
III. Issues
[8]
The
issue before me is whether Mr. Simon’s Amended Statement of Claim, or parts of
it should be struck.
IV. Analysis
[9]
I
have reviewed the Amended Statement of Claim very carefully. I have tried my
best to discern any cause of action. I listened very closely to Mr. Simon’s
oral submissions on this motion to strike with a view to discovering the
elements of his claim.
[10]
Mr.
Simon’s Amended Statement of Claim is lengthy and incomprehensible. He has not
heeded the advice of the Court of Appeal. It suffers from all of the defects
identified by the Court of Appeal. More specifically:
1.
Contrary
to Rule 174, of the Federal Courts Rules, SOR/98-106, the statement of
claim does not contain a concise statement of the material facts on which Mr.
Simon relies.
2.
Contrary
to Rule 174, the statement of claim extensively pleads evidence.
3.
Contrary
to Rule 221(1)(a), the statement of claim does not disclose a reasonable cause
of action.
4.
Contrary
to Rule 221(1)(c), the statement of claim is frivolous or vexatious because it
is so deficient that the Defendant could not know how to answer the claim.
5.
Finally,
while a party may raise any point of law in a pleading (Rule 175), a statement
of claim cannot consist of legal argument. The extensive legal submissions
contained in the statement of claim violate Rule 174 because Mr. Simon's
submissions, including the extensive references to case law and hypothetical
cases, are not concise statements of material fact.
[11]
As
with the original Statement of Claim, most aspects of this Amended Statement of
Claim do not fall within the jurisdiction of the Federal Court. Even though the
wording may be different in the revised pleading, the key element of Mr.
Simon’s complaint is the liability owed by him to the government of British Columbia in respect of social
assistance benefits received by his first wife. As described in the Amended
Statement of Claim, the foundation of his argument is that he does not believe
that there is any enforceable contract agreement between him and the BC
government. In pith and substance, this claim is one against the BC Provincial
Crown, even though the actual garnishment was made by the Defendant. Any
complaints about the actions of the Federal Crown appear to be ancillary to his
main allegations against the BC government.
[12]
The
Federal Court of Appeal suggested that Mr. Simon might have a claim (or grounds
to bring an application for judicial review) against the Canada Revenue Agency
(CRA) in respect of how it carried out the garnishee. Can I extract any
reasonable cause of action against the Defendant – the Federal Crown – from
this Amended Statement of Claim, in respect of this possible claim? I cannot.
[13]
With
respect to a potential claim against CRA, the Amended Statement of Claim makes
a number of references to the CRA. However, none of these references, in my
view, clearly identifies a cause of action. The closest that I can come to
finding that any cause of action is pleaded against CRA is the general
statement in Paragraph 20, where Mr. Simon states that:
This
whole controversial situation has been created or made possible by the
negligence of the Defendant and its public servants involved. The main
aspect of this Statement of Claim is related to the actions and particularly
the omissions of the CRA and the Ministry of Citizenship and Immigration,
between 2007 and present. These federal authorities have been repeatedly
contacted by the plaintiff between those years, without success. Every federal
civil servant of the Defendant involved kept claiming that the whole procedure
had been fair and legally correct, without any error or omission on their
behalf, thus shifting the controversies, responsibilities and jurisdiction
solely to the plaintiff and/or to British
Columbia. [Emphasis added.]
[14]
The
first problem is that this general accusation is against both the CRA and
the “Ministry of Citizenship and Immigration”. Is Mr. Simon’s reference to the
Minister of Citizenship and Immigration another collateral attack on the
refusal of the sponsorship application for his second wife? Further, what
“actions” and what “omissions” is he complaining about? How could any defendant
defend against such claims? It is plain and obvious, in my view, that the
Amended Statement of Claim does not disclose a reasonable cause of action
against the Defendant in respect of the actions of the CRA.
[15]
Moreover,
while he denies that he is attempting to bring a collateral attack on the
refusal of the Visa Officer to allow him to sponsor his second wife, the
pleadings before me raise that issue squarely.
[16]
During
his submissions on this motion to strike, Mr. Simon disclosed that he had
commenced an action against the Federal Government and the Government of
British Columbia (as well as a third party) in the Supreme Court of British
Columbia. He advised the Court that he has discontinued that action. I do not
know why.
[17]
This
is Mr. Simon’s third attempt to bring this action (twice in our Court and once
in the Supreme Court of British Columbia). Mr. Simon has had every opportunity
to amend his pleadings. He has ignored the coaching offered by the Federal
Court of Appeal and has brought an Amended Statement of Claim which does not
comply with the Federal Courts Rules. In spite of the gentle suggestion
from the Court of Appeal that he would be well advised to seek legal advice (at
paragraph 18), Mr. Simon has not done so. In the circumstances, I would strike
the Amended Statement of Claim without leave to amend.
V. Costs
[18]
In
his response to this motion, the Respondent stated that he was seeking an Order
“to reverse the charge of $500.00 for costs payable to the defendant Crown” in Simon
FC, above. This request should have been brought to the Court of Appeal. I
have no authority to reverse the order of Justice Zinn.
[19]
With
respect to this motion, I would award costs to the Defendant in the amount of
$500.00.
ORDER
THIS
COURT ORDERS that :
1.
the Amended Statement of Claim filed in this action is struck,
without leave to amend; and
2.
the Defendant is awarded its costs fixed at $500.00, inclusive of
fees, disbursements and taxes.
“Judith
A. Snider”
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