Date:
20130404
Docket:
T-1937-12
Citation:
2013 FC 337
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario,
April 4, 2013
PRESENT: The
Honourable Madame Justice Bédard
BETWEEN:
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MARC-ANTOINE GAGNÉ
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Applicant
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and
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HER MAJESTY IN RIGHT
OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Before
me is a motion to appeal, pursuant to Rule 51 of the Federal Courts Rules,
SOR/98‑106 (the Rules), from an order made December 21, 2012, by Richard
Morneau, Prothonotary, striking the applicant's statement without possibility
of amendment, and dismissing the applicant's action.
[2]
The
appeal was heard together with the appeal against the order made by Mr. Morneau
in docket T-1935-12 (Gagné v Her Majesty in Right of Canada, 2013 FC
331) and it will have the same outcome.
I. Background
[3]
The
applicant is a former inmate who served a two-year prison sentence. On October
17, 2012, he brought an action against the respondent for damages in the amount
of $100,000. The statement consists of 4 paragraphs, which state:
[translation]
i.
The
relief sought is for: one hundred thousand dollars, and this amount can be
lowered.
ii.
The
applicant was an inmate at the C.S.C. During his incarceration he had very
limited access to computers, and no Internet access.
iii.
We
claim that this is a major violation of a constitutional right (section 2 of
the Charter)
iv.
We
therefore ask for one hundred thousand dollars ($100,000).
[4]
The
respondent submitted a motion to strike the statement and to dismiss the
applicant's action pursuant to Rule 221 of the Rules, stating that the
statement did not contain any statement of facts and did not indicate any cause
of action.
[5]
The
respondent filled her motion pursuant to Rule 369 of the Rules, asking that the
Court process the motion based on written representations.
[6]
The
applicant requested that the motion be heard at a hearing. Mr. Morneau felt
that he could decide on the motion based on the parties' written arguments and
it was not necessary to hold a hearing.
II. Mr.
Morneau's order
[7]
Mr.
Morneau's order can essentially be summarize by the following extract:
[translation]
WHEREAS after reading the above-noted
files and the applicant's very brief statement of claim, the Court clearly
comes to the same findings as the respondent, namely that it is clear this
statement of claim shows no valid cause of action within the meaning of
paragraph 221(1)(a) of the Rules, for the reasons raised by the respondent in
her written arguments, enclosed with the motion record submitted December 6,
2012, and more specifically for the summary of the situation the respondent
presents at paragraphs 14 to 19 of her arguments;
...
WHEREAS, as a result, it is
clear and evident that the applicant's statement of action raises no valid cause
of action within the meaning of paragraph 221(1)(a) of the rules of this
Court and it should therefore be dismissed, with no possibility of amendment
considering, as demonstrated in an order issued the same day in another case
related to the present case and involving the applicant, that even when he
elaborates, the applicant cannot state and limit himself to the material,
specific and relevant facts;
III. Issue
[8]
This
motion raises a single true question: did Mr. Morneau err in his order,
justifying the intervention of the Court?
IV. Standard of review
[9]
For
the same reasons issued at paragraphs 9 to 11 of the judgment rendered in T-1935-12
(the judgment is attached to the present judgment to simplify reference), that
I must exercise my discretionary power and dispose of the motion to strike de
novo.
V. The parties' claims
[10]
The
applicant claims Mr. Morneau did not give him the opportunity to present his
defence at a hearing. He also claims that his statement is sufficient and the
respondent acknolwledged in a reply that he did not have access to the internet
during his sentence, while justifying this restriction with a probation order
issued by the judge, under which he was prohibited from having access to the
internet for three years following his incarceration. The applicant also claims
that his statement is sufficient because it is not a traditional liability
claim, but a claim based on the Canadian Charter of Rights and Freedoms.
[11]
The
respondent essentially claims that the applicant's appeal is without merit
because his statement is devoid of any factual basis.
VI. Analysis
[12]
The
applicant is challenging Mr. Morneau on several issues, in particular for not
scheduling a hearing to allow him to present his arguments orally.
[13]
As
I stated in T-1935-12, I feel that this criticism is without merit. Under rule
369(4) of the Rules, when the respondent to a motion requests a hearing, it is
the Court that decides whether the motion can be determined based on written
arguments or whether a hearing should be scheduled. In Jones v Canada (Minister
of Citizenship and Immigration), 2006 FCA 279, 272 DLR (4th) 274, the Court
of Appeal addressed the Court's discretion to determine whether a hearing is
relevant when a respondent to a motion submitted pursuant to Rule 369 requests
a hearing:
12
I do not agree. Rule 369 imposes no express limits on the
exercise of the Court’s discretion to dispose of a motion under Rule 369 in writing or after an oral
hearing. Neither the text of the Rule nor the jurisprudence supports the
position that motions to dismiss an appeal may not be determined on the basis
of written submissions. Rather, the Court exercises its discretion by asking
whether, in all the circumstances of the given case, it can fairly dispose of
the motion without the delay and additional expense of an oral hearing.
13 The
questions in dispute on this motion are purely legal and, in my opinion, not
unduly complex. None of the factors listed by Prothonotary Hargrave in Karlsson
v. Canada (Minister of National Revenue) reflex,
(1995), 97 F.T.R. 75 at para. 10, as warranting an oral hearing is present
here.
[14]
In
this case, it was absolutely appropriate for Mr. Morneau to make a decision on
the motion to strike based on the parties' written arguments. Additionally, and
as I noted in docket T‑1935-12, the applicant had the opportunity to
present oral arguments during the hearing of his motion to appeal Mr. Morneau's
order.
[15]
As
for the substantive issue, I had to consider the relevant criteria for deciding
a motion to strike a pleading and action in Lewis v Canada, 2012 FC 1514
(available on CanLII), and I refer to paragraphs 17 and 18 of the judgment
rendered in docket T-1935-12 for the statement of the applicable principles.
[16]
In
this case, I feel that the action brought by the applicant has no hope of
success and I support Mr. Morneau's findings. The statement is simply void of
any factual basis. It is insufficient for the applicant to claim he had limited
computer access and that he was deprived of Internet access during his
incarceration and claim it was "a major violation of a constitutional
right (section 2 of the Charter)". The applicant does not provide any
indication of why having limited computer access and being deprived of Internet
access consitutes a violation of his fundamental rights.
[17]
Even
if the applicant claims his action is based on the Canadian Charter of
Rights and Freedoms, he must, in his statement, present the relevant facts
in support of his allegations. This requirement is clearly established at Rule
174 of the Rules, which requires a pleading to include a concise summary of the
material facts. The statement is far from meeting this requirement.
[18]
Moreover,
the very short statement the applicant submitted contains far to few facts to
allow the Court to manage the case and allow the respondent to prepare her
defence (Baird
v Canada, 2006 FC 205 at paras 8-12, 146 ACWS (3d) 445; Jones v Kemball,
2012 FC 27 at paras 5 and 14 (available on CanLII)).
[19]
Considering
the circumstances, I do not see how the applicant could correct the
deficiencies in his statement with an amendment. I share Mr. Morneau's opinion
that the applicant should not be permitted to amend his statement.
[20]
For
all these reasons, the appeal is dismissed.
JUDGMENT
THE COURT ORDERS that the motion to appeal
from the order rendered by prothonotary Morneau on December 21, 2012, is
dismissed with costs to the respondent.
"Marie-Josée
Bédard"
Certified
true translation
Elizabeth
Tan, translator
APPENDIX
Date: 20130403
Docket: T-1935-12
Citation: 2013 FC
331
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 3, 2013
PRESENT: The Honourable Mr. Justice Bédard
BETWEEN:
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MARC-ANTOINE
GAGNÉ
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Applicant
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and
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HER MAJESTY IN
RIGHT OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1] Before
me is a motion under section 51 of the Federal Courts Rules, SOR/98-106
(the Rules), to appeal an order rendered on December 21, 2012, by Richard
Morneau, Prothonotary, who ordered to strike, without leave to amend, the
declaration filed by the applicant and the dismissal of his action.
I -
Background
[2] The
applicant is a former detainee who served a two-year sentence of incarceration.
On October 17, 2012, he brought against the respondent an action in
damages for $5,000,000. The statement of claim referred to various decisions
made against the applicant when he was incarcerated and for which he is
claiming various damages. The allegations in the statement of claim may be
summarized as follows:
a. The applicant argued
that he was given a medium security classification although he should have been
given a minimum security classification; he requested a remedy of $48,600;
b. The applicant alleged
that he was denied parole when it should have been granted; he requested a
remedy of $24,300;
c. The applicant alleged
that the NPB (we presume that the applicant is referring to the Parole Board of
Canada) [Translation] “is not a
true administrative tribunal as it should be”; he requested a remedy of
$100,000;
d. The applicant alleged
that the NPB imposed a residency condition on him; he requested a remedy of
$124,300;
e. The applicant stated
that an unpleasant occurrence took place during which his liberty was
jeopardized on uncorroborated hearsay and that during the habeas corpus
proceeding, documents were hidden from him despite a disclosure order. The
applicant added that an out-of-court agreement was made, but that the
respondent did not respect it; he requested a remedy of $2,060,000 for
obstructing justice and going through the holidays detained without valid
reasons;
f. The applicant argued
that the Federal Court found in his favour but that the respondent disobeyed
the judgment; he requested a remedy of $1,000,000;
g. The applicant alleged
that, in reprisal for his success, Yves Michaud, the respondent’s officer,
intimidated him and had him arbitrarily imprisoned; he requested a remedy of
$1,015,000 and an order requiring the respondent to [Translation] “assist the applicant to obtain a criminal
conviction against Mr. Michaud”;
h. The applicant alleged
that, during his incarceration, the [Translation]
“OCI, despite its role of "policing" the CSC, was nonchalant and went
so far as to throw oil on the fire”; he requested a remedy of $100,000 and the
dissolution of the agency;
i. The applicant
alleged that during his incarceration, he never had access to a [Translation] “true system of efficient
and expeditious complaints and grievances without fear of reprisal, as the Act
requires”; he requested a remedy of $500,000 and the abolition of the current
grievance system;
j. The applicant
alleged that during his entire incarceration, he was a victim of discrimination
on the basis of his age, sex and race; he requested a remedy of $300,000.
[3] The
respondent filed a motion to strike the statement of claim and to dismiss the
action by the applicant under section 221 of the Rules, stating that the
claim failed to disclose a reasonable cause of action, that it was not
relevant, that it was scandalous, frivolous and vexatious and that it
constituted an abuse of process.
[4] The
respondent filed his motion under section 369 of the Rules, asking the
Court to deal with the motion on the basis of written submissions.
[5] In his
reply to the motion to strike, the applicant requested that the motion be heard
as part of a hearing [Translation]
“given the seriousness of the remedy sought”. However, Mr. Morneau a found
that he could dispose of the motion on the basis of the parties’ written
representations and that it was not necessary to schedule a hearing.
II. Order by
Mr. Morneau
[6] The
substance of the reasons of the order by Mr. Morneau is found in the
following excerpt:
[Translation]
CONSIDERING that a
review of the previously noted files and a review of the applicant's statement
of claim leads this Court clearly to the same analysis findings as the
respondent and specifically to the following findings that the respondent
argues at paragraphs 1 to 3 of his written representations, and even if the
applicant is representing himself, since it is not his first time before this
Court:
i. The applicant's statement of claim is only a construct of assertions and allegations
completely devoid of meaning and material facts to support an action in civil
liability against the respondent.
ii. The disjointed nature of the allegations in this case and
their lack of detail impose on the respondent an insurmountable burden and
require that the Court play the largest guessing game as to the nature of the
allegations against the respondent, the nature of the alleged damages and the
causal link between the two.
iii.
In short, the statement of
claim is totally flawed and even with the most
magnanimous review possible, the applicant's action does not raise any
reasonable cause of action in compensation for damages. This action should be dismissed for all the reasons set out
in section 221(1)(a)(b)(c)(f) of the Federal
Courts Rules without leave to amend.
CONSIDERING that the statements of the Quebec Court of Appeal that the
respondent quotes at paragraph 16 of its reply submitted on
December 18, 2012, unfortunately applies to the applicant (see also the
recent statements by this Court in Tew v Canada, 2012 FC 1478, at
paragraphs 8 et seq.);
CONSIDERING,
accordingly, that it is clear and evident that the applicant's statement of
claim discloses no reasonable cause of action, is outrageous, frivolous,
vexatious and constitutes an abuse of process within the meaning of
paragraphs 221(1)(a),(b)(c) and (f) of the
Rules and that it deserves to be stricken without leave to amend;
[7] It should be noted that in his reply to the motion to
strike, the applicant argued that his statement of claim should not be
stricken. In paragraph 29 of his written submissions, he further
raised as an alternative, the following question: [Translation] “If the statement of claim was proven to be
flawed, would there be a less drastic remedy than the dismissal of the motion?”
However, the applicant did not say how he could correct the deficiencies in his
statement of claim nor did he submit an amended draft statement of claim.
III. Issue
[8] This motion
raises a single genuine issue: Does the order issued by Mr. Morneau
contain an error that warrants the intervention of this Court?
IV. Standard of review
[9] In Merck
& Co Inc v Apotex Inc, 2003 FCA 488, at para 17-19, [2004] 2 FCR 459,
the Federal Court of Appeal explained that the applicable standard of review
for discretionary orders of prothonotaries was the following:
17
This Court, in Canada v Aqua-Gem Investment Ltd, [1993] 2 F.C. 425
(FCA), set out the standard of review to be applied to discretionary orders of
prothonotaries in the following terms:
...
Where such discretionary orders are
clearly wrong in that the prothonotary has fallen into error of law (a concept
in which I include a discretion based upon a wrong principle or upon a
misapprehension of the facts), or where they raise questions vital to the
final issue of the case, a judge ought to exercise his own discretion de novo.
(MacGuigan J., at
pages 462 and 463)
[Emphasis added]
…
19 …
The test would now read:
Discretionary orders of
prothonotaries ought not be disturbed on appeal to a judge unless:
a) the questions 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 discretion by the prothonotary was based upon a
wrong principle or upon a misapprehension of the facts.
[10]
Before applying these tests, the issue arises as to
whether Mr. Morneau’s order was discretionary. In Apotex Inc v Canada (Governor
in Council), 2007 FCA 374, at para 15, 370 NR 336, the Federal Court of
Appeal stated that a decision that allows or dismisses a motion to strike is a
discretionary decision. Although in this matter the motion to strike had been
decided by a judge, the same principle applies when the motion was decided by a
prothonotary (Aviation Portneuf Ltd v Canada (Attorney General),
2001 FCT 1299, at para 17-18, 115 ACWS (3d) 64).
[11]
Since Mr. Morneau’s discretionary order
terminated the action brought by the applicant, it is clear that the questions
in the order are “vital to the final issue of the case” and that, accordingly,
I must exercise my own discretion and review the motion de novo.
V. Submissions of the
parties
A. Applicant's arguments
[12]
In support of his appeal, the applicant raises the
following arguments:
a. He criticizes
Mr. Morneau for not holding a hearing and for not giving him a fair and
equitable opportunity to be heard;
b. He argues that if the
statement of claim lacked details, the prothonotary should have issued an order
under section 181(2) and not dismissed the action;
c. He argues that he
should have [Translation] “at
least an opportunity to correct his statement of claim, if the court had found
it flawed to the highest degree”. The applicant further attached an amended
draft statement of claim as an appendix to his motion in appeal;
d. The prothonotary
should have taken into consideration that the action is brought under the Canadian
Charter of Rights and Freedoms according to Vancouver (City) v Ward, 2010 SCC
27, [2010] 2 S.C.R. 28, and not a traditional action and that, accordingly, the
criteria of civil liability such as fault and causation do not apply. The
applicant adds that the harm is the infringement of rights protected by the
Charter and that his only obligation is to prove [Translation] “that there was a violation of Charter
rights”.
B.
Respondent's submissions
[13]
The respondent argued essentially that the applicant’s
appeal is without merit because, although the respondent may argue that his
action was brought under the Charter, he must support his action with facts.
Moreover, the applicant did not submit any facts to support his action.
VI. Analysis
[14]
The applicant made several criticisms of
Mr. Morneau, in part for not calling a hearing to allow him to make his
arguments orally.
[15]
This criticism is without merit. Subsection 369(4)
of the Rules provides that, when a party to motion requests a hearing, the
Court may dispose of the motion in writing or fix a date for a hearing of the
motion. In Jones v Canada (Minister of Citizenship and Immigration),
2006 FCA 279, 272 DLR (4th) 274, the Court of Appeal addressed the Court’s
discretion to determine whether it is justified to fix a hearing when a
respondent to a motion under Rule 369 asks for a hearing:
12
I do not agree. Rule 369 imposes no express limits on
the exercise of the Court’s discretion to dispose of a motion under Rule 369 in
writing or after an oral hearing. Neither the text of the Rule nor the
jurisprudence supports the position that motions to dismiss an appeal may not
be determined on the basis of written submissions. Rather, the Court exercises
its discretion by asking whether, in all the circumstances of the given case,
it can fairly dispose of the motion without the delay and additional expense of
an oral hearing.
13
The questions in dispute on this motion are purely
legal and, in my opinion, not unduly complex. None of the factors listed by
Prothonotary Hargrave in Karlsson v. Canada (Minister of National
Revenue), (1995), 97 F.T.R. 75 at para 10, as warranting an oral
hearing is present here.
[16]
In this case, I find that it was entirely
appropriate of Mr. Morneau to dispose of the motion to strike based on the
parties’ written submissions. In any event, the applicant had the opportunity
to present his arguments orally during the hearing of his motion to appeal the
order of Mr. Morneau.
[17]
As to the substantive issue, I recently had to
consider the criteria for disposing of a motion to strike a pleading and action
in Lewis v Canada, 2012 FC 1514 (available on CanLII) and I take the
liberty of quoting the following passage where I restated the main applicable
principles:
8
Rule 221(1) of the Rules provides that the Court may strike a
pleading if it "discloses no reasonable cause of action". The
stringent test for striking out a Statement of Claim on that basis is whether,
taking the facts as pleaded, it is “plain and obvious” that the action
discloses no reasonable cause of action. This test was reiterated by the
Supreme Court in R v Imperial Tobacco Canada Ltd., 2011 SCC 42 at
para 17, [2011] 3 S.C.R. 45, where Justice McLachlin stressed that
"[w]here a reasonable prospect of success exists, the matter should be
allowed to proceed to trial".
9
The Court also insisted, at paragraph 22, that the claimant
must clearly plead the facts supporting the claim:
... It is incumbent on the claimant
to clearly plead the facts upon which it relies in making its claim. A claimant
is not entitled to rely on the possibility that new facts may turn up as the
case progresses. The claimant may not be in a position to prove the facts
pleaded at the time of the motion. It may only hope to be able to prove them.
But plead them it must. The facts pleaded are the firm basis upon which the
possibility of success of the claim must be evaluated. If they are not pleaded,
the exercise cannot be properly conducted.
10
It is also well established that the Court must read the pleading
generously with a view to accommodating drafting deficiencies (Brazeau v
Canada (Attorney General), 2012 FC 648 at para 15 (available on QL)
(Brazeau), Jones v Kemball, 2012 FC 27 at para 4 (available on
CanLII)). This, however, does not exempt the claimant from pleading the
material facts supporting the claim. Bare assertions and conclusions are not
sufficient.
11
In Brazeau, at para 15, Justice Snider, summarized as
follows this requisite:
The jurisprudence also establishes
that a statement of claim does not disclose a cause of action where it contains
bare assertions, but no facts on which to base those assertions (Vojic v
Canada (MNR), [1987] 2 CTC 203, [1987] FCJ No 811 (CA)). Moreover, a
conclusion of law pleaded without the requisite factual underpinning to support
the legal conclusions asserted is defective, and may be struck out as an abuse
of Court (Sauve v Canada, 2011 FC 1074, at para 21, [2011] FCJ No
1321).
[18] In my
view, even in with a generous reading of the statement of claim, the
applicant’s action has no chance of success and I endorse the comments made by
Mr. Morneau in his order. I would add that the statement of claim is
composed of a series of allegations and conclusions that are in no way
supported by facts. In addition, it contains allegations that are vague, terse
and imprecise. Moreover, some claims against the Correctional Service of
Canada, the Parole Board of Canada and other undetermined persons. Whether the
action brought is based on the Canadian Charter of Rights and Freedoms or on
offences committed by representatives of the respondent, the applicant has the
obligation, in his statement of claim, to argue the relevant facts in support
of his allegations, which he did not do. This requirement is clearly set out in
section 174 of the Rules, which requires that a pleading contain a concise
statement of the material facts.
[19]
Besides that the statement of claim does not meet
the requirements of section 174, I am also of the view that it contains
too few facts to allow the Court to administer the matter and allow the
respondent to defend himself (Baird v Canada, 2006 FC 205, at
paras 8-12, 146 ACWS (3d) 445; Jones v Kemball, 2012 FC 27, at
paras 5 and 14 (available on CanLII)).
[20]
In sum, I consider that the statement of claim does
not contain any facts that, if proven, would help find that the fundamental
rights of the applicant were violated or that offences were committed and would
justify the remedies sought.
[21]
Should the applicant be authorized to amend his
statement of claim to correct the deficiencies? In Simon v Canada, 2011
FCA 6, at para 8, 14-15, 410 NR 374, the Federal Court of Appeal
considered the circumstances justifying that a party be authorized to amend a
faulty pleading to prevent its outright rejection:
8
Motions to strike are governed by Rule 221 of the Federal
Courts Rules which provides that a pleading may be struck out with or without
leave to amend. For such a motion to succeed it must be plain and obvious
or beyond reasonable doubt that the action cannot succeed. See:
Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 at
paragraphs 30 to 33. To this I would add that to be struck without
leave to amend any defect in the statement must be one that is not curable by
amendment. See: Minnes v Minnes (1962), 39 W.W.R. 112
(B.C.C.A.), cited by the Supreme Court in Hunt v Carey Canada Inc. at
paragraph 28 and Ross v Scottish Union and National Insurance Co.
(1920), 47 O.L.R. 308 (C.A.) cited by the Supreme Court in Hunt Carey Canada
Inc. at paragraphs 23 and 24.
…
14 After
determining that a pleading will be struck, Rule 221 requires consideration of
whether a pleading is struck with or without leave to amend.
15 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. Therefore, the Federal
Court erred in striking the statement of claim without leave to amend.
[Emphasis added]
[See also Collins v Canada,
2011 FCA 140, 418 NR 23.]
[22]
In this case, I find that Prothonotary Morneau was
right to strike the applicant’s statement of claim and action without leave to
amend his statement of claim since it contains deficiencies too numerous and
significant, including a number of allegations and conclusions, to be corrected
by an amendment. Further, and as previously noted, the applicant failed to
produce an amended draft statement of claim in support of his response to the
motion to dismiss the action or indicate how he could amend his statement of claim
to correct the deficiencies.
[23]
However, the applicant submitted, in an appendix to
his motion to appeal, an amended statement of claim. Thus, I must determine
whether I should consider this amended draft statement of claim submitted as
part of this appeal.
[24]
It is well established that the
evidence submitted to the prothonotary is admissible in an appeal de novo of
a prothonotary’s decision. The authoritative judgment in this matter is James
River Corp of Virginia v Hallmark Cards, Inc (1997), 126 FTR 1,
69 ACWS (3d) 424 (James River Corp), where Justice Reed wrote at
paragraphs 31 to 33:
As I
understand counsel's explanation of the Associate Senior Prothonotary's
decision, it is that the order requested was refused because there was no
proper evidence before the Associate Senior Prothonotary demonstrating that the
United States proceeding existed and was parallel to the present proceeding,
nor was there evidence demonstrating that the documentation that was sought was
relevant to the present proceeding. It was not argued that this decision by the
Associate Senior Prothonotary was in error. Counsel for the plaintiff sought to
file with the Court an affidavit to supply the missing evidence. He took the
position that an appeal of a prothonotary's decision to a judge is a proceeding
de novo and, therefore, I was entitled to accept this evidence and render the
decision the Associate Senior Prothonotary would have made had he had that
evidence before him.
I do
not interpret the role of a judge on an appeal of a prothonotary's order in
that way. Whatever may be the difference, if any, between the Chief Justice's
description on page 454 of Canada v Aqua-Gem, supra, and that of the
majority of the Court at page 463, the latter governs. It clearly contemplates
that the judge will exercise his or her discretion de novo, on the material
that was before the prothonotary, and not engage in a hearing de novo based on
new materials.
Counsel
for the defendant notes that an appeal from an order of a prothonotary is
required by the Federal Court Rules to be commenced by an “application”
(Rule 336(5)), and that an application to the Court is to be made by a motion
(Rule 319(1)). A motion is commenced by a notice of motion, not a notice
of appeal, and is to be supported by an affidavit setting out "all the
facts on which the motion is based that do not appear from the record"
(Rule 319(2)). Despite this seeming ambiguity in the Federal Court
Rules, I understand the procedure established thereby to be, as noted
above, an appeal based on the material that was before the prothonotary. This
is consistent with the decisions in Woods Canada Ltd. v. Harvey Woods Inc.
(November 30, 1994), [1994] F.C.J. No. 1795, and Symbol Yachts Ltd. v.
Pearson, [1996] 2 F.C. 391, 107 F.T.R. 295. In some circumstances new
evidence may of course be entertained, see Federal Court Rule 1102 and the
jurisprudence thereunder. Such circumstances do not, however, exist in the
present case.
[Emphasis added]
[25]
In Carten v Canada, 2010 FC 857
at paras 19, 23-24 (available on CanLII) (available in English only),
Justice Gauthier cited James River Corp, above, and explained in
which circumstances new evidence may be considered:
I must next deal with the defendant's objection to the
filing of new evidence. As mentioned earlier, the plaintiffs filed new
evidence15 which according to them proves that the misconduct of the defendants
is ongoing, torturous, conspirational and criminal and speaks to matters that
are pertinent to the jurisdiction of the Court. According to Mr. Carten's
representations at the hearing, most of this information came into his
possession or deals with events that took place after the date set up by
Prothonotary Lafrenière for the filing of his evidence.
…
Generally, an appeal
of a Prothonotary's Order is to be decided based on what was before that
decision maker; no new evidence is admitted; James River Corporation v.
Hallmark Cards Inc. (1997) 72 C.P.R. (3d) 157 (F.C.T.D.). Exceptionally,
new evidence may be admissible in circumstances where: it could not have been
made available earlier; it will serve the interests of justice; it will assist
the Court; and it will not seriously prejudice the other side (Mazhero
v. Canada (Insutrial Relations Board) (2002) 292 N.R. 187 (F.C.A.);
Graham v. Canada, 2007 FC 210 at para. 12; Sanbiford v. Canada, 2007 FC
225).
As mentioned, I
reviewed the new evidence to assess whether it could have any impact whatsoever
on the merits of this appeal. I have concluded that it does not. I am thus
persuaded that it is not in the interests of justice and would not assist the
Court to admit any of this evidence at this stage. This is not one of the
exceptional cases referred to above.
[Emphasis added.]
[See also Hung v Canada (Attorney
General), 167 ACWS (3d) 435 at para 10 (available on QL); Shaw v
Canada, 2010 FC 577 at para 8-9 (available on CanLII); Apotex Inc v
Wellcome Foundation Ltd, 2003 FC 1229, at para 10, 241 FTR 174; Galarneau
v Canada (Attorney General), 2005 FC 39 at para 18, 306 FTR 1]
[26]
Although in this case the applicant
does not seek to introduce new evidence but rather proposes to amend his
original statement of claim, I find that the principles established on the
introduction of additional evidence are applicable. The judge who hears an
appeal from a prothonotary’s decision of a right to exercise his discretion in
light of the actual file before the prothonotary. The appeal must not be used
as an opportunity for a party to improve his case and I do not find, in this
case, the elements that would justify making an exception to the rule.
[27]
First, the applicant has not alleged that he was prevented
from submitting his amended statement of claim within the response that he
filed against the motion to strike. Second, I do not believe that it is in the
interest of justice to consider this amended statement of claim since, in any
case, it does not adequately correct the numerous deficiencies in the original
statement of claim submitted by the applicant. The amended statement of claim
is essentially affected by the same defects as the original statement of claim.
The applicant provided some additional information with respect to his
placement in a medium security institution, the original refusal of his request
for an outing during the holidays, the refusal of his parole application, his
residency condition and non-disclosure of documents relating to his suspension,
among other things. However, the amended statement of claim is just as
disjointed as the first—it is still impossible to determine for whom certain
claims are intended and the statement of claim as a whole lacks factual details
to support the allegations and conclusions they contain.
[28]
For all of these reasons, the appeal is
dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that the motion to appeal from the order of Prothonotary Morneau dated
December 21, 2012, is dismissed with costs to the respondent.
"Marie-Josée
Bédard"
Certified true translation
Catherine Jones, Translator
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET:
T-1935-12
STYLE OF CAUSE: MARC-ANTOINE
GAGNÉ v HER MAJESTY IN RIGHT OF CANANDA
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: January
28, 2013
REASONS FOR JUDGMENT: BÉDARD J.
DATE OF REASONS: April
3, 2013
APPEARANCES:
|
Marc-Antoine Gagné
|
FOR THE APPLICANT
(SELF-REPRESENTED)
|
|
Nicholas R. Banks
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
|
FOR THE APPLICANT
|
|
William F. Pentney
Deputy Attorney General of Canada
Montréal, Quebec
|
FOR THE RESPONDENT
|
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