Date: 20080117
Docket: T-1430-07
Citation: 2008
FC 62
Toronto, Ontario, January 17, 2008
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
REVEREND EDWIN PEARSON,
REVEREND MICHEL ETHIER and
JAMES ROSCOE HOAD
Plaintiffs
and
HER MAJESTY THE QUEEN
as represented by THE MINISTER OF JUSTICE
OF CANADA,
THE ATTORNEY GENERAL OF CANADA, and
THE SOLICITOR GENERAL OF CANADA
Defendants
REASONS FOR ORDER AND ORDER
[1]
The defendants,
as represented by the Attorney General of Canada, have brought a motion pursuant
to Rule 221 of the Federal Courts Rules in this proposed class
proceeding for an order, inter alia, striking out the Amended Statement
of Claim in its entirety without leave to amend and dismissing the action. At
the outset of the hearing of the motion a preliminary objection was raised by
counsel for the plaintiffs concerning class proceeding procedure and
specifically questioning whether a prothonotary had the jurisdiction to hear
and decide a motion to strike a statement of claim in a proposed class
proceeding. After hearing full argument on the preliminary objection, I
adjourned the main motion in order to consider the preliminary objection.
Background
[2]
The plaintiffs
commenced this action as a proposed class proceeding and brought a motion pursuant
to former Rule 299.17, now Rule 334.15, of the Rules for certification
of the action as a class proceeding. The plaintiffs claim damages for
violation of class members’ rights under the Canadian Charter of Rights and
Freedoms (the “Charter”) alleged to be caused by the enforcement by the defendants
of provisions of the Controlled Drug and Substances Act (CDSA) which the
plaintiffs allege have been repealed and are of no force and effect.
[3]
The
proposed class are members of the Assembly of the Church of the Universe. This
religion holds as one of its tenets that cannabis is a sacred substance to be
used in church sacraments and rituals. It is alleged in the Amended Statement
of Claim that the class members use cannabis for sacramental purposes and they
believe that no law exists that prohibits possession of cannabis for use as a
religious sacrament. In essence, the Amended Statement of Claim alleges that
the enforcement of the CDSA against members of the Church of the Universe
infringes their right of religious freedom granted under the Charter.
[4]
The defendants
responded to the Amended Statement of Claim and motion for certification by
bringing the motion to strike the Amended Statement of Claim. In support of
their motion, the defendants raise a number of arguments summarized as follows:
1. The action is an abuse
of process because the alleged improper actions of the defendants
were the subject of judicial determinations by the Ontario Court of
Justice, the Ontario Superior Court of Justice and the Court of Appeal for Ontario. The defendants argue that
the Ontario Courts made judicial determinations,
either implicitly or explicitly, that the underlying offence provisions
were constitutionally valid and thus, as the plaintiffs are seeking to
revisit those decisions, this Court is being asked to sit in appeal of the Ontario
Courts. The defendants argue that the action therefore constitutes an
abuse of process and should be dismissed.
2.
Alternatively,
the defendants say that the action is fatally flawed as it is entirely dependent
on an incorrect conclusion of law, viz., that there is no valid
prohibition against the possession of marijuana. Thus, they
argue, the action is doomed to failure and should be struck as
disclosing no reasonable cause of action.
3. In the further
alternative, the defendants say that the plaintiffs have failed to plead sufficient
material facts to sustain an action in misfeasance in public office or any other
cause of action and for that reason must be struck.
[5]
These
arguments of the defendants result in the following issues for determination on
the motion to strike:
1.
Does the
action constitute an abuse of process because it requires this Court to sit in
appeal of prior determinations made in the Ontario Courts with respect to the
constitutional validity of the provisions of the CDSA?
2.
Should the
claim be struck in its entirety under Rule 221(1)(a) of the Rules without leave
to amend and the action be dismissed because it fails to disclose a reasonable
cause of action?
3.
Should the
claim be struck in its entirety under Rule 221(1)(c) and (f) of the Rules
without leave to amend and the action be dismissed because it is frivolous and
vexatious?
[6]
In their
responding submissions the plaintiffs raised a preliminary jurisdictional
objection concerning the interplay between the class proceeding rules [formerly
Rules 299.1- 299.41, now Rules 334.1 – 334.40 which constitute Part 5.1 of the
Rules] and the rules which govern actions generally [Part 4 of the Rules]. They
argue that because their certification motion can only be heard by a judge of
this Court and the issue of whether a “reasonable cause of action” is one of
the required criteria which must be met for certification that the motion to
strike and the issues it raises should either be heard by a judge or,
preferably, be heard on the certification motion itself.
[7]
Further,
they argue that because the proposed class proceeding seeks damages in excess
of $50,000, a prothonotary does not have the jurisdiction to deal with the
motion. They argue that class proceedings are a unique process governed by
Part 5.1 which is a complete code whereby only judges have the discretion to
certify a class proceeding and as the amount claimed is in excess of $50,000
per claimant a prothonotary does not have jurisdiction.
Preliminary Issues to be Determined
[8]
The
preliminary objection raises the following issues for determination:
1.
Whether a prothonotary
has the jurisdiction to hear and decide a motion to strike a Statement of Claim
in a proposed class action where there is a pending motion for certification?
2.
Whether a
prothonotary has the jurisdiction to hear a motion to strike a class proceeding
in which the amount claimed is in excess of $50,000 per claimant?
General Jurisdiction of a Prothonotary
[9]
The
position of prothonotary is a statutory one. A prothonotary is an independent
judicial officer of the Federal Court, akin to an Associate Judge, appointed by
the Governor in Council pursuant to section 12 of the Federal Courts Act.
Section 12 (3) of the Act provides that the powers, duties and functions of a
prothonotary shall be determined by the Rules.
[10]
The
primary jurisdiction of a prothonotary is set out in Rule 50 as follows:
Prothonotaries
50. (1) A prothonotary may hear, and make any necessary orders
relating to, any motion under these Rules other than a motion
(a) in respect of which these Rules or an Act of
Parliament has expressly conferred jurisdiction on a judge;
(b) in the Federal Court of Appeal;
(c) for summary judgment other than
(i) in an action
referred to in subsection (2), or
(ii) in respect of a
claim referred to in subsection (3);
(d) to hold a person in contempt at a hearing
referred to in paragraph 467(1)(a);
(e) for an injunction;
(f) relating to the liberty of a person;
(g) to stay, set aside or vary an order of a judge,
other than an order made under paragraph 385(a), (b) or (c);
(h) to stay execution of an order of a judge;
(i) to appoint a receiver;
(j) for an interim order under section 18.2 of the
Act;
(k) to appeal the findings of a referee under rule
163; or
(l) for the certification of an action or an application
as a class action.
Actions
not over $50,000
(2) A prothonotary may hear an action exclusively for monetary
relief, or an action in rem claiming monetary relief, in which no amount claimed by a
party exceeds $50,000 exclusive of interest and costs.
Class
actions
(3) A prothonotary may hear a claim in respect of one or more
individual questions in a class proceeding in which the amount claimed by a
class member does not exceed $50,000 exclusive of interest and costs.
Foreign
judgment
(4) A prothonotary may hear an application under rule 327 for
registration, recognition or enforcement of a foreign judgment.
Matters
on consent
(5) Despite paragraphs (1)(c) and (k), a prothonotary
may render any final judgment that could be rendered by a judge of the Federal
Court, except in a proceeding in respect of which an Act of Parliament
expressly confers jurisdiction on a judge, if the prothonotary is satisfied
that all of the parties that will be affected by the judgment have given their
consent.
[11]
The
definition of “Court” in Rule 2 includes a prothonotary. Rule 2 provides as
follows:
"Court"
means, as
the circumstances require,
. . .
(b) the Federal Court, including a prothonotary acting
within the jurisdiction conferred under these Rules.
[12]
Pursuant
to Rule 50 a prothonotary has jurisdiction to deal with any motion under
the Rules other than those that are specifically excluded. Thus, as can be
seen, a prothonotary has a very wide jurisdiction as the majority of the Rules
refer to orders of the “Court” or decisions made by the “Court”. Indeed, the
role of prothonotary is recognized in the jurisprudence as extensive. In First
Canadians’ Constitution Draft Committee et al. v. Canada, 2004 FCA 93, the Federal Court of Appeal
reviewed the jurisdiction of a prothonotary. Justice Décary observed:
[6] The intention of Parliament cannot be
clearer. The office of prothonotary is created to ensure "the efficient
performance of the work of the Court that, under the Rules, is to be performed
by them" (subsection 12(1) of the Act) and the description of the work of
the Court that can be performed by the prothonotary is to be found in the Rules
(subsections 12(1) and (3) of the Act).
[7] The role of prothonotaries in
the Federal Court has been described by Chief Justice Isaac in Aqua-Gem,
and his description has most recently been reaffirmed by the Court in Merck
(supra, at para. 22). I wish to quote here from the reasons of Isaac
C.J. in Aqua-Gem:
Doubtless, in providing for the office of the
Registrar or Master in the Exchequer Court and of the prothonotary in
this Court, Parliament was mindful of the pre-trial and post-judgment support
which the master system provided for superior court judges in the judicial
systems of England and Ontario, both of which made extensive use of these
judicial officers.
In his Hamlyn Lectures (published under the
title The Fabric of English Civil Justice, London: Stevens & Sons,
1987), Sir Jack Jacob, Q.C., himself a former senior master of the High Court
of Justice in England, sketched the historical development of the master system
in England and the manner of its operation. The following passage at pages
110-111 is instructive of the historical evolution of that system:
The most striking feature of the English
pre-trial process is that, save for a few exceptions, the proceedings are
conducted not before a judge but before a junior judicial officer, called the
Master or Registrar. Before 1837, the judges of the three superior common law
courts themselves dealt with pre-trial applications, which were then
comparatively few in number and in variety. In 1837, Parliament abolished a
great number of administrative and a few quasi-judicial offices and in their place
created the Masters of the three Common Law Courts to assist the judges in
their pre-trial work. In 1867, Parliament took the bold leap forward to
transform the position of the Master from being an assistant to the judge into
becoming a separate, distinct and independent judicial officer. This was
achieved by enabling the judges to make rules of court empowering the Masters
to transact all such business and exercise all such authority and jurisdiction
as may be transacted and exercised by the judge in Chambers, except in
specified matters and proceedings. Needless to say, the requisite rules of
court were immediately made and they have continued with considerable expansion
to this day. They operate to confer on the Masters original jurisdiction in
respect of the matters and proceedings that come before them. For these
purposes in the High Court, the Master is the equivalent of the judge in
Chambers and his decision, order or judgment is made or given in his capacity
as "the court" itself.
The jurisdiction of the Masters, which has from
time to time since their creation been greatly expanded, is very extensive
indeed and covers almost the entire range of pre-trial proceedings, with the
important exception of applications for an injunction, other than in agreed
terms, and it also extends to almost all post-judgment proceedings. They
have power to make final as well as interlocutory orders and to give final
judgments which are as operative and enforceable and which must be complied
with as if made or given by a judge. [emphasis in original]
[13]
Justice Décary then concluded with the
following summary of the jurisdiction of prothonotaries:
[8] The
jurisdiction of the prothonotaries, as that of the Masters in the English
system, has therefore been greatly expanded with time and "covers almost
the entire range of pre-trial proceedings, with the important exception of
applications for an injunction .... and it also extends to almost all
post-judgment proceedings". That jurisdiction is determined by the Rules
Committee established under section 45.1 of the Act, which is thus given the
exceptional authority to empower the prothonotaries "to transact all such
business and exercise all such authority and jurisdiction as may be exercised
by the judge in Chambers, except in specified matters and proceedings".
Jurisdiction of a Prothonotary in Actions Where the Claim is
Greater than $50,000
[14]
In
addition to the Rule 50(1) jurisdiction, Rule 50 (2) grants full trial
jurisdiction to a prothonotary in actions for monetary relief not exceeding
$50,000 exclusive of interest and costs. This monetary amount, however, does
not limit the actions over which a prothonotary has jurisdiction. The First
Canadians’ case put to rest the issue of whether a prothonotary has
jurisdiction to hear a motion to strike in which the amount in issue exceeds
$50,000. In that case, a prothonotary had struck out a Statement of Claim in
which the monetary amount claimed exceeded $50,000 and awarded costs to the
moving party. On appeal from a judge of the Federal Court affirming the
decision of the prothonotary, Justice Décary,
speaking for the Court, noted:
[9] Rule 50(1) has
established the principle that a prothonotary has authority with respect to
"any motion" under the Federal Court Rules "other than"
motions expressly identified in Rule 50(1). This is a wide authority indeed and
unless a motion falls under one of the headings of Rule 50(1), it may be
entertained by a prothonotary. Rule 50(1) has been drafted carefully and does
not grant prothonotaries any authority with respect to actions. It is Rule
50(2) which grants prothonotaries authority with respect to actions and the
Rule expressly limits that authority to actions that are taken exclusively for
monetary relief, or in rem actions claiming monetary relief, in which no
amount claimed by a party exceeds $50,000 exclusive of interest and costs. The
distinction between "motion" and "action" was clearly in
the mind of the regulator, and had the latter wished to exclude from the authority
of the prothonotary motions made in the context of actions in which the amount
claimed exceeded $50,000, it would certainly have done it. There is
therefore no doubt, in my view, that a prothonotary has jurisdiction under Rule
50(1) to decide a motion to strike an action made under Rule 221 whatever the
amount claimed in the action. [emphasis
added]
Rules Regarding Actions and Class
Proceedings
[15]
Part 4 of
the Rules governs the conduct of actions. Rule 169 specifically provides that
Part 4 applies to all proceedings that are not applications or appeals. Class
proceedings may be initiated by action or application [Rule 334.12]. However,
although the procedure relating to the conduct of class proceedings is set out
in Part 5.1, the rules applicable to actions apply to any class proceeding that
is an action [Rule 334.11]. There is no rule in Part 5.1 which requires that a
motion to strike relating to class proceedings be heard only by a Judge.
There is no issue that a certification motion falls exclusively within
the jurisdiction of a judge [Rule 334.16]. However, there are several aspects
of class proceeding procedure that fall to be dealt with by the “Court”. For
example, Rule 334.22 provides that a party in an action that has been certified
may examine a class member for discovery, other than the representative
plaintiff, “only on leave granted by the Court”. To apply Justice Décary’s language from the First
Canadians’ case, the distinction between “certification” and other
procedures was clearly in the mind of the regulator, and had the latter wished
to exclude a Prothonotary from dealing with Rule 334.22 motions, it would
clearly have done it. Thus, there can be no doubt that Prothonotaries have,
not only the jurisdiction of Rule 50 (2) in class proceedings, but also have
any jurisdiction relating to class proceedings that is not specifically granted
to a Judge.
Preliminary Motions in Class Proceedings
[16]
Inherent
in the position of the Plaintiffs is the suggestion that preliminary motions to
strike a Statement of Claim on the ground of not disclosing a reasonable cause
of action are somehow not permitted and are to be dealt with only on the
certification motion. This suggestion is without merit.
To give life to this submission would be to emasculate the
Rules as they relate to class proceedings. The Rules are in place to ensure
that any proceeding initiated in the Federal Court is regulated by the same
procedural principles. The primary principle behind the Rules is to secure the
just, most expeditious and least expensive determination of every
proceeding on its merits [Rule 3].
[17]
Motions to
strike pleadings are governed by Rule 221, which is found in Part 4 of the
Rules. By virtue of Rule 169, Part 4 applies to actions in class proceedings.
Rule 221 specifically refers to the Court as having the jurisdiction at any
time to order that a pleading be struck out on various enumerated grounds.
There is nothing in the rule that exempts class proceedings from its effect nor
is their anything inherently in the rule that is incompatible with class
proceedings.
[18]
Rule
334.16(1) and (2) set out, respectively, the criteria which must be satisfied
on a certification motion and the matters to be considered. The rule provides
as follows:
334.16 (1) Subject to subsection (3), a judge shall,
by order, certify a proceeding as a class proceeding if
(a) the pleadings disclose a reasonable
cause of action;
(b) there is an identifiable class of
two or more persons;
(c) the claims of the class members
raise common questions of law or fact, whether or not those common questions
predominate over questions affecting only individual members;
(d) a class proceeding is the preferable
procedure for the just and efficient resolution of the common questions of law
or fact; and
(e) there is a representative plaintiff
or applicant who
(i) would fairly and adequately represent the
interests of the class,
(ii) has prepared a plan for the proceeding that sets out a workable method of
advancing the proceeding on behalf of the class and of notifying class members
as to how the proceeding is progressing,
(iii) does not have, on the common questions of law or fact, an interest that
is in conflict with the interests of other class members, and
(iv) provides a summary of any agreements respecting fees and disbursements
between the representative plaintiff or applicant and the solicitor of record.
Matters
to be considered:
(2)
All relevant matters shall be considered in a determination of whether a class
proceeding is the preferable procedure for the just and efficient resolution of
the common questions of law or fact, including whether
(a)
the questions of law or fact common to the class members predominate over any
questions affecting only individual members;
(b)
a significant number of the members of the class have a valid interest in
individually controlling the prosecution of separate proceedings;
(c)
the class proceeding would involve claims that are or have been the subject of
any other proceeding;
(d)
other means of resolving the claims are less practical or less efficient; and
(e)
the administration of the class proceeding would create greater difficulties
than those likely to be experienced if relief were sought by other means.
[19]
It is to
be noted that Rule 334.16 is imperative in that a Judge shall certify
the proceeding as a class proceeding if all of the criteria are met. It is a
very different exercise than that contemplated by Rule 221. Rule 334.16 speaks
only to the pleadings disclosing a reasonable cause of action while Rule 221
grants the Court jurisdiction to strike a pleading on several different grounds
including the ground that the pleading discloses no reasonable cause of
action. It would be a wasteful exercise and not in keeping with the purpose of
the Rules to have a motion based on striking a pleading on the basis of no
reasonable cause of action only in the certification process while allowing
motions on the various other enumerated grounds in Rule 221 in preliminary
motions.
[20]
Further
support for this conclusion can be found in the case management rules. All
proposed class proceedings are specially managed [Rule 384.1]. Rule 385(1)
sets out the powers of a case management judge or prothonotary as follows:
385. (1) Unless the Court directs otherwise, a case management judge
or a prothonotary assigned under paragraph 383(c) shall deal with all
matters that arise prior to the trial or hearing of a specially managed
proceeding and may
(a) give any directions that are necessary for the
just, most expeditious and least expensive determination of the proceeding on
its merits;
(b) notwithstanding any period provided for in these
Rules, fix the period for completion of subsequent steps in the proceeding;
(c) fix and conduct any dispute resolution or
pre-trial conferences that he or she considers necessary; and
(d)
subject to subsection 50(1), hear and determine all motions arising
prior to the assignment of a hearing date. [emphasis added]
[21]
Thus, the
case management prothonotary assigned as a case management judge under Rule 383
(b), subject to the exclusions of Rule 50(1), is empowered to deal with all
matters that arise prior to the trial or prior to the assignment of a hearing
date.
[22]
However,
the plaintiffs still argue that as the certification rule [Rule 334.16]
requires that only a judge may certify a proceeding as a class proceeding and
then only if a number of criteria are met, the first of which being that “the
pleadings disclose a reasonable cause of action” [Rule 334.16 (1)(a)] only a judge
and not a prothonotary can determine if the pleadings disclose a reasonable
cause of action. They argue that if a prothonotary determines on a Rule 221
motion that the pleadings do or do not disclose a reasonable cause of action,
the prothonotary has usurped the jurisdiction of the judge. Further, they
argue that whether there is a reasonable cause of action should be determined
at the certification stage before a judge and not on a preliminary motion such
as that brought by the defendants here. Putting the issue another way, is a
preliminary motion to strike under Rule 221 incompatible with the class
proceeding rules?
[23]
The simple
answer is no. The interpretation urged by the plaintiffs strains the practice
and procedure relating to actions found in the Rules. The class proceedings
rules simply establish a comprehensive procedural code for the conduct of a
class proceeding within the context of the Rules as a whole. They do not oust
the rights of defendants to strike a Statement of Claim on any of the
enumerated grounds found in Rule 221. It makes no sense that a proposed class
proceeding action cannot be struck down until the certification motion. To
give this interpretation legitimacy is to undermine the ability of the Court to
control its process and strike out proceedings that do not meet the
requirements of pleading a proper cause of action or striking abusive, or
frivolous and vexatious proceedings.
[24]
Finally, if
any additional support is required for the proposition that motions to strike
may be brought prior to the certification hearing, Justice Hugessen in Always
Travel Inc. et al v. Air Canada, 2003 FCT 212 implicitly observed that
preliminary motions to strike are available to parties prior to certification.
In that case, Justice Hugessen, as the case management judge, made an order
requiring the parties to file all preliminary motions by a certain date. The
only motion brought was for an extension of time for filing statements of
defence.
[25]
The issue
in the case was whether the defendants could delay filing their statements of
defence until after the certification hearing. Justice Hugessen determined that
it was an appropriate case in which to grant that order, relying in part on
Rule 385. However, in the course of his reasons, Justice Hugessen noted that
because the only motion brought was for an extension of time in accordance with
his prior order, “the defendants are now in my view foreclosed from bringing
any further preliminary motions, and therefore may not now move to strike all
or any part of the statement of claim, they may still argue on the return of
the motion for certification that no cause of action is shown or that some
alleged causes of action are not proper causes of action”.
[26]
Thus, a
motion to strike the claim pursuant to Rule 221 may be brought prior to
certification. As a prothonotary may now be appointed a case management judge
in a specially managed proceeding [Rule 383 (b)] and is empowered under the
Rules to deal with any motion not excluded by Rule 50, a prothonotary has the
jurisdiction to hear a motion to strike a class proceeding under the Rules.
ORDER
THIS COURT ORDERS that:
1.
The preliminary objection to the jurisdiction of a prothonotary
to hear and decide motions to strike a proposed class proceeding is dismissed.
2.
Counsel for the defendants shall consult with counsel for
the plaintiffs and advise the Court within ten days of the date of this order
of mutually convenient dates for the hearing of the defendants’ motion on the
merits, failing which a case conference shall be arranged to fix a date for the
hearing.
“Kevin R. Aalto”
Email this Content