Docket: T-1951-13
Citation:
2014 FC 1090
Ottawa, Ontario, November 19, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
|
BETWEEN:
|
|
LORENCE WILLIAM HUD
|
|
Plaintiff
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
|
|
Defendant
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
A Prothonotary struck out the plaintiff’s
statement of claim without leave to amend. The plaintiff now appeals for an
order reversing that decision pursuant to subsection 51(1) of the Federal
Courts Rules, SOR/98-106 [the Rules].
I.
Background
[2]
In 2010, a drainage referee prohibited Lorence
Hud (the plaintiff) from interfering with the municipality of West Nipissing’s
attempts to repair a culvert on his property (see West Nipissing v Hud
(27 August 2010), North Bay CV-10-4914 (ONSC)). This led to an assessment of
costs against the plaintiff’s property, but the plaintiff’s attempts to
challenge these matters in Ontario’s Divisional Court and Superior Court of
Justice mostly failed (see West Nipissing v Hud, 2011 ONSC 2095; Hud
v West Nipissing, 2011 ONSC 6294, 90 MPLR (4th) 336).
[3]
The statement of claim in this action largely
focuses on events that happened afterwards. It alleges that the plaintiff tried
to convince the Prime Minister of Canada and the Minister of Justice to
intervene and quash what he calls the illegal courts, but both politicians
refused to meet with him despite a written request from his representative
Member of Parliament.
[4]
Following this, he submits that the government
then added to his property tax bill “Illegal Bills from
that Illegal Canadian Court.” As well, the Prime Minister’s Office
allegedly directed the Canadian Revenue Agency (CRA) to intimidate the
plaintiff into abandoning his pursuit of justice by threatening to review his
income tax return. The plaintiff also blames the Prime Minister for phone calls
that he started receiving around the same time.
[5]
The plaintiff claims that these actions violated
his constitutional rights; negatively affected his mother’s health; prevented
him from receiving an award from the Society of Composers, Authors and Music
Publishers of Canada and extinguished his desire to write music.
[6]
He therefore asks this Court for relief that
does the following seven things: (1) requires the defendant to stop government
officials from harassing, threatening, intimidating and discriminating against
him; (2) requires the defendant to quash the Ontario Courts’ decisions against
him; (3) constitutionally exempts him from Ontario’s Drainage Act, RSO
1990, c D 17; (4) requires the defendant to stop government officials from
demanding payment for the plaintiff’s bills from the Court and his property taxes;
(5) gives him $28,000,000 in damages for defamation, torment, pain and
suffering; (6) gives interest on that amount according to Ontario’s Courts of
Justice Act, RSO 1990, c C 43, sections 127 to 130; and (7) allows him his
costs.
[7]
Pursuant to subsection 221(1) of the Rules, the
defendant moved for an order striking out the statement of claim without leave
to amend.
II.
Decision Under Appeal
[8]
On February 10, 2014, the Prothonotary allowed
the defendant’s motion. After deciding that no oral hearing was necessary, she
found the statement of claim was rambling, vague and often incoherent. Still,
she identified the basic claims and held that none showed a cause of action for
the following reasons:
1.
The Federal Court has no power to set aside
decisions of any of Ontario’s courts and neither does the Prime Minister or the
Justice Minister.
2.
No elected official has any duty to meet with a
citizen upon request.
3.
Although the Federal Crown can be vicariously
liable for torts committed by its servants or agents, the statement of claim
was deficient of all material facts in that regard. Specifically, it did not
give enough information to identify the persons responsible for the alleged
acts for which the Crown was vicariously liable. Neither were the allegations
of fraud or breach of trust sufficiently described. Devoid of these details, the
Prothonotary decided that the statement of claim was frivolous and vexatious.
[9]
Consequently, the Prothonotary allowed the
defendant’s motion and awarded it costs of $200.
III.
Issues
[10]
This case raises the following issues:
A.
What is the standard of review?
B.
Did the Prothonotary act unfairly?
C.
Does the statement of claim disclose a cause of
action?
D.
Should costs be awarded?
IV.
Plaintiff’s Written Submissions
[11]
The plaintiff is upset that the Prothonotary
purportedly struck out his Charter rights arguments. He claims in his notice of
motion that the Prothonotary illegitimately refused him an oral hearing and
also offered no opportunity to respond to two exhibits the Crown filed after
his last submissions were received. He argues that Ontario’s courts have
ignored him and prevented him from speaking in his own defence and he says that
has to stop now that he has approached the “higher” courts.
[12]
The plaintiff then attacks the original
injunction by the drainage referee, saying it should not have been permanent
since the work being conducted was only for one day. In his view, that incident
morphed into an all-out war against him directed by the highest levels of
government and the defendant’s attempts to gloss over the whole culvert
incident are proof of its complicity. He argues that the Prothonotary must have
been biased since she ignored these facts entirely. He then compares the
defendant’s arguments to an “amateurish pseudo-legal
juggling act” full of red herrings and he begs this Court not to be
fooled.
V.
Defendant’s Written Submissions
[13]
The defendant admits that the Court owes no
deference to the Prothonotary’s decision, but that it should be upheld because
she was right. Specifically, statements of claim should be struck out if it is
plain and obvious that the action cannot succeed and the defendant says that
test has been met.
[14]
The defendant points out that the Federal Court’s
jurisdiction is limited and it does not extend to most of what the plaintiff
alleges. Indeed, orders of a drainage referee in Ontario can only be appealed
to the Divisional Court of that province and any further appeal would go to Ontario’s Court of Appeal. Nothing in the Drainage Act gives any role to the Federal
Court whatsoever, so neither the claim for reversing that order nor for a constitutional
exemption from that Act has any jurisdictional foundation. The defendant says
the same is true of the Prime Minister and the Minister of Justice.
[15]
Similarly, the defendant says that the provinces
are constitutionally responsible for property taxes and nothing in any of Ontario’s legislation regarding that gives any jurisdiction to the Federal Court.
[16]
As such, the only claim remaining is the one for
$28,000,000 in damages for “Defamation, Torment, Pain and
Suffering”. For this, the defendant says that the Prothonotary was right
to observe that it is not supported by any material facts. Indeed, entirely
absent from the statement of claim are any details about any of the events
alleged, such as time, date, location, the identities of any individuals
responsible or what duties were breached.
[17]
Indeed, the defendant says that “torment” is no
known cause of action at all and for defamation, the actual words alleged to be
defamatory must be pleaded. Moreover, neither the Prime Minister nor the
Minister of Justice had any duty to meet with the plaintiff, so refusing to do
so cannot create a cause of action. Beyond that, letters from the CRA about the
plaintiff’s taxes are completely irrelevant to the actions alleged.
[18]
Finally, the defendant notes that the exhibits A
and B about which the plaintiff complains were just FedEx receipts showing that
the plaintiff was served with the notice of the motion to strike. They were
purely procedural and had no bearing on the merits of the motion.
[19]
The defendant asks for costs.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[20]
A Prothonotary’s order should not be disturbed
unless: (a) the question raised in the motion is vital to the case; or (b) the
order is clearly wrong (see Sanofi-Aventis Canada Inc v Teva Canada Ltd,
2014 FCA 65 at paragraph 10, [2014] FCJ No 254; ZI Pompey Industrie v ECU-Line NV, 2003 SCC 27 at paragraph
18, [2003] 1 S.C.R. 450). Here, the order entirely defeated the plaintiff’s case,
so the question in the motion is certainly vital to the final issues of the case.
As such, I will not defer to the Prothonotary’s conclusions and I will review the
matter de novo.
B.
Issue 2 - Did the Prothonotary act unfairly?
[21]
The plaintiff submits that the Prothonotary
denied him both an oral hearing and an opportunity to respond to an affidavit
filed by the defendant. Whatever the merits of those complaints, they are
irrelevant. The plaintiff had an oral hearing this time and an opportunity to
challenge those exhibits. Since no deference is owed to the Prothonotary, any
unfairness at that time is cured by the procedure followed now.
C.
Issue 3 - Does the statement of claim disclose a
cause of action?
[22]
Subsection 221(1) of the Rules allows the Court
to strike out pleadings for a number of reasons. Most relevant among them, a
statement of claim can be struck out for failing to disclose a reasonable cause
of action (Rule 221(1)(a)) or for being scandalous, frivolous, or vexatious (Rule
221(1)(c)).
[23]
For the first, a statement of claim discloses a
reasonable cause of action so long as it is not plain and obvious that the
action will fail. When considering this, all facts pleaded that could possibly
be proven must be assumed to be true (see R v Imperial Tobacco Canada Ltd,
2011 SCC 42 at paragraphs 17 and 22, [2011] 3 S.C.R. 45 [Imperial Tobacco];
Canada v O’Dwyer, 2013 FCA 200 at paragraph 7, 449 NR 285).
[24]
For the second, a statement of claim can be
vexatious or frivolous if it is so factually deficient that the defendant cannot
know how to answer and the Court would be unable to manage the proceedings (see
Simon v Canada, 2011 FCA 6 at paragraph 9, 410 NR 374 [Simon]; Kisikawpimootewin
v Canada, 2004 FC 1426 at paragraph 8, [2004] FCJ No 1709).
[25]
In this case, the Prothonotary found that
striking out the statement of claim is justified on either ground and I agree.
[26]
To begin, the plaintiff attached a number of
documents to his statement of claim and also filed an affidavit supporting his
appeal. Pursuant to Rules 174 and 221(2), these documents cannot be considered
when assessing the statement of claim. Even if the statement of claim was not
otherwise deficient, all the exhibits must be struck. With respect to the tape
recordings relied upon by the plaintiff, these would not be admissible as they
do not appear to be part of the record that was before the Prothonotary.
[27]
Most of the materials filed by the plaintiff indicate
a fundamental misunderstanding of the courts of this country. First, he
repeatedly refers to Ontario’s Superior Court of Justice as an illegal court,
but it is not. Rather, it has constitutional status ensured by section 96 of
the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC
1985, App II, No 5 [the Constitution].
[28]
Generally, what the plaintiff appears to mean is
that the orders against him were issued illegally because he did not have
notice of the initial proceeding. However, even if the order should not have
been issued, that does not make the court itself illegal.
[29]
Further, the plaintiff’s belief that the Federal
Court is “higher” than Ontario’s courts and could review their orders is wrong.
Rather, the Federal Court is technically an inferior court created by
Parliament pursuant to section 101 of the Constitution. This means that
it has no power to do anything unless it is lawfully granted that power by
Parliament (see ITO-Int’l Terminal Operators v Miida Electronics, [1986]
1 SCR 752, 28 DLR (4th) 641). Here, Parliament has enacted no statute that
purports to allow the Federal Court to review orders of Ontario’s Court of the
Drainage Referee, Divisional Court or Superior Court of Justice and it would
likely be unconstitutional if it had. For the same reasons, this Court cannot
entertain any challenge to the constitutionality of the Drainage Act or
to the plaintiff’s property tax.
[30]
Further, the plaintiff’s belief that the Prime
Minister or the federal Minister of Justice has any power to overturn those courts’
decisions is unfounded. The courts of this country are independent and the
executive branch of government cannot simply reverse a judge’s decision with
which it disagrees.
[31]
The plaintiff also claims that the Prime
Minister and the Minister of Justice refused to meet with him. While this could
potentially be the subject of judicial review in this Court if either had any
duty to meet with the plaintiff, it is plain and obvious that neither did.
Further, his claim that this breaches his right to “equal representation” under
section 3 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[Charter], is completely unjustified. Section 3 only grants rights to
vote and to qualify for membership in legislative bodies. The Prothonotary
rightly dismissed this claim.
[32]
Indeed, all of the plaintiff’s claims that his Charter
rights have been breached are bare assertions or based on claims that cannot be
adjudicated by this Court. None have any merit.
[33]
As such, the only claims remaining are those for
torts allegedly committed by agents working for the Prime Minister. These are
claims over which this Court could conceivably have jurisdiction (see Federal
Courts Act, RSC 1985, c F-7, subsection 17(1), paragraph 17(2)(d); Crown
Liability and Proceedings Act, RSC 1985, c C-50, paragraph 3(b)(i)).
[34]
In this regard, the statement of claim is too
confusing to identify with any certainty what torts are being alleged, but as I
see it the plaintiff claims three:
1.
The injunction against him is defamatory and
prevented him from receiving an award;
2.
The Prime Minister’s Office has directed agents
to harass the plaintiff by making phone calls; and
3.
The Prime Minister’s Office has directed the CRA
to intimidate him by demanding payment of taxes and threatening to review his
tax returns.
[35]
I agree with the defendant that the facts
necessary to sustain these allegations have not been pleaded.
[36]
Even assuming that a Court order could ever be
defamatory (which is doubtful), the federal government is in no way responsible
for publishing the injunction and so would not be liable for it. Beyond that,
the plaintiff failed to identify any published statement by the defendant that
could be considered defamatory (see Grant v Torstar Corp, 2009 SCC 61 at
paragraph 28, [2009] 3 S.C.R. 640). As such, the statement of claim cannot support
that allegation (see Djukic v Canada (Attorney General), 2001 FCT 714 at
paragraph 9, [2001] FCJ No 1037).
[37]
As for the ominous phone calls, it is unclear
whether there even exists a tort of harassment in Canadian law (see Brazeau
v Canada (Attorney General), 2012 FC 648 at paragraph 54, [2012] FCJ No
1489). That said, its novelty should not alone defeat it.
[38]
However, the Prothonotary dismissed both the
second and third allegations on the basis that Rule 174 requires that all
material facts be pleaded. For allegations of vicarious liability, this should
include enough information to identify the specific servant responsible. While
this does not have to be by name, the pleading must give at least enough
information that the defendant could adequately investigate (see Merchant
Law Group v Canada (Revenue Agency), 2010 FCA 184 at paragraph 38, 321 DLR
(4th) 301). I agree with the Prothonotary that simply assigning responsibility
to the Prime Minister’s Office or to the CRA is not nearly specific enough. The
statement of claim is therefore deficient and violates Rules 174 and 181.
[39]
Finally, I agree with the Prothonotary’s
decision to deny the plaintiff leave to amend his statement of claim. Rule
221(1) authorizes this whenever no amendment could cure the defects in the
statement of claim (see Simon at paragraph 8). That is the case here.
The plaintiff only suspects the Prime Minister’s Office because the phone calls
and the CRA’s letter started happening after he sent a letter threatening to
sue the Prime Minister if he did not meet with him within 30 days. That is a completely
unreasonable speculation and it is clear that the plaintiff would not know who
to identify even if given leave to amend his statement of claim. As such, the Prothonotary
was right not to allow him that opportunity.
[40]
Because of my findings above, the plaintiff’s
appeal (motion) must be dismissed. The Prothonotary’s order was correct and I would
come to the same conclusions.
D.
Issue 4 - Should costs be awarded?
[41]
The defendant asked for costs in an amount fixed
by the Court pursuant to Rule 400(1). As well, the defendant relies on Rule
400(3)(k)(i), which suggests that I consider whether any step in the proceeding
was improper, vexatious or unnecessary.
[42]
Although the statement of claim likely vexed the
defendant, I believe the plaintiff actually believes that he has been
aggrieved. I do not believe that the plaintiff has a desire to abuse the processes
of this Court. As such, I would not enhance the costs award against him.
[43]
Further, the defendant used the arguments it
made before the Prothonotary in its brief. For that work, it has already
received its costs from the Prothonotary. Still, the defendant did need to
prepare for and attend a hearing in this Court. In light of that, I am of the
view that an award of $300 would be appropriate.
[44]
I would therefore dismiss the appeal (motion) and
award the defendant its costs in the amount of $300.
Email this Content